With the introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, Section 498A of the Indian Penal Code (IPC), which criminalised cruelty against married women, has been retained with minor modifications. Now listed as Section 85 of the BNS, the provision continues to address domestic violence and harassment, particularly in cases involving dowry-related cruelty. Despite its crucial role in protecting women, concerns over its alleged misuse have persisted, prompting calls for legal safeguards to prevent false cases while ensuring justice for genuine victims. This necessitates a balanced approach that upholds the law’s intent while incorporating necessary reforms to prevent its exploitation.

The primary criticism levelled against Section 498A is that it has been exploited by some women to file false complaints, leading to wrongful arrests and harassment of innocent individuals. This concern has been echoed in various Supreme Court and high court rulings, which have called for caution in its application. Yet, a crucial question remains largely overlooked: Is the problem rooted in the law itself, or is it the failure of institutions responsible for its implementation? This piece argues that the so-called misuse of Section 498A is not a reflection of the law’s inherent flaws but rather a consequence of systemic failures by law enforcement, the legal fraternity, and district court judges. Their lack of diligence, patriarchal biases, and procedural lapses often result in either wrongful prosecutions or the dismissal of genuine cases, creating an illusion of widespread abuse of the provision.

Understanding section 498A and its intent

Section 498A was specifically designed to protect women from cruelty, which includes acts that endanger their physical or mental well-being, harassment for dowry, and behaviour that could drive them to suicide. The provision is broad in its scope, recognising that cruelty manifests not only in physical violence but also in emotional and psychological abuse. Despite its protective intent, the law has been portrayed as a tool for harassment, with critics arguing that false cases are filed to settle personal scores. However, such claims often fail to acknowledge the larger reality—domestic violence and dowry-related abuse remain rampant in India, as consistently reflected in National Crime Records Bureau (NCRB) data.

The Supreme Court has addressed concerns regarding the misuse of Section 498A in several key judgments. In Shobha Rani v. Madhukar Reddi (1988), the Court held that the demand for dowry itself constitutes cruelty, reaffirming the necessity of stringent legal measures against such practices. In Samar Ghosh v. Jaya Ghosh (2007), the Court elaborated on the concept of mental cruelty, recognising that humiliation, emotional neglect, and lack of support could all amount to cruelty in matrimonial cases. The judgment in Savita Bhatnagar v. V.K. Bhatnagar (2014) further underscored that cruelty is not limited to physical violence but also includes psychological harm. More recently, in K. Srinivas Rao v. D.A. Deepa (2013), the Supreme Court acknowledged that filing false criminal complaints could itself amount to mental cruelty, which has often been cited in discussions about alleged misuse of the law. However, these cases highlight the need for better procedural safeguards, not the redundancy of Section 498A itself.

The necessity of Section 498A is further underscored by real-life cases of cruelty. In Ram Kishan Jain & Ors v. State of Madhya Pradesh, a woman was unable to meet dowry demands, leading to her being administered sedatives and ultimately attempting suicide by cutting her veins. In Surajmal Banthia & Anr. v. State of West Bengal, a woman was subjected to prolonged ill-treatment, denied food, and harassed to the point of death. Such cases illustrate the horrifying realities that necessitate strong legal protection under Section 498A. The provision does not solely address dowry-related violence but also encompasses any wilful conduct that endangers a woman’s health or safety. Yet, in cases such as Ashok Batra & Ors v. State, where a deceased woman’s letters detailing harassment were disregarded, the judiciary’s failure to treat such evidence seriously highlights the systemic shortcomings in the law’s implementation.

Use of section 498A

Section 498A has been instrumental in providing legal recourse to women who face cruelty and abuse within their matrimonial homes. In numerous cases, it has been a crucial tool in holding perpetrators accountable. For instance, in Ram Kishan Jain & Ors v. State of Madhya Pradesh, a woman was subjected to extreme cruelty when she was administered sedatives and later attempted suicide after being unable to meet dowry demands. Similarly, in Surajmal Banthia & Anr. v. State of West Bengal, the victim was ill-treated, denied food, and mentally tortured for days before succumbing to abuse. Cases like these highlight the persistent and grave nature of domestic cruelty, underscoring why Section 498A remains necessary.

The provision not only addresses dowry-related harassment but also extends to broader forms of cruelty, including emotional and mental abuse. In Ashok Batra & Ors v. State, the courts failed to give due weight to letters left behind by the deceased woman detailing her harassment, ultimately granting the accused the benefit of the doubt. Such instances demonstrate how, despite the presence of evidence, judicial reluctance sometimes leads to injustice for victims. Section 498A serves as a legal safeguard against such oversights, ensuring that complaints of cruelty are taken seriously and investigated thoroughly.

The real problem: systemic failures, not the law

The discourse on the misuse of Section 498A often fails to scrutinise the role of those responsible for its enforcement. Law enforcement officers frequently act arbitrarily—either making indiscriminate arrests without investigation or, conversely, dismissing genuine complaints due to entrenched biases or corruption. Legal professionals, too, contribute to the problem, with some exploiting procedural loopholes to either misuse the provision for personal gain or to shield accused individuals from accountability. District court judges, who preside over most of these cases, often lack the necessary gender sensitisation, leading to inconsistent verdicts where both wrongful convictions and unjust acquittals occur.

There are key elements to Section 498A that dictate its implementation. For an offence to be recognised under this section, the woman must be married, must have been subjected to cruelty or harassment, and such acts must have been perpetrated by her husband or his relatives. Additionally, situations that warrant immediate legal intervention include medical evidence of abuse, the refusal to return a woman’s assets under Section 406 IPC (criminal breach of trust), and threats or coercion that endanger her life. However, rather than conducting thorough investigations, police officers often either act hastily or dismiss complaints altogether, further complicating the issue.

Judicial interventions have sought to regulate the use of Section 498A by setting guidelines to prevent arbitrary arrests and ensure due process. However, such rulings should not be misinterpreted as evidence that the law itself is flawed; rather, they highlight the need for better enforcement mechanisms to ensure that both victims and the wrongfully accused receive justice.

Recent judgment lamenting “misuse of Section 498A”

Yashodeep Bisanrao Vadode v. State of Maharashtra (2024)

In October 2024, the Supreme Court overturned the conviction of a man under Sections 498A and 34 of the IPC, ruling that there was no substantive evidence against him. The appellant, the brother-in-law of the deceased, had been accused of harassing and torturing her over dowry demands, alongside her husband and sister-in-law. However, he challenged the High Court’s decision upholding his conviction, arguing that the alleged dowry demand took place in January 2010, whereas his marriage to the deceased’s sister-in-law occurred later in October 2010.

The Supreme Court found “no scintilla of evidence” linking him to the alleged cruelty and criticised the indiscriminate implication of family members in Section 498A cases. The bench emphasised that courts must be vigilant in identifying instances of over-implication to prevent innocent individuals from enduring unwarranted legal consequences. The judgment highlighted concerns over exaggerated accusations in 498A cases, cautioning against their misuse.

Payal Sharma v. State of Punjab (2024)

In November 2024, the Supreme Court cautioned lower courts against the unnecessary implication of distant relatives of a husband in Section 498A cases. The case arose after the complainant, the wife’s father, lodged an FIR shortly after the husband-initiated divorce proceedings. The complaint not only named the husband and his parents but also included the husband’s cousin and his cousin’s wife, alleging dowry harassment and cruelty. When the implicated relatives sought to have the case quashed, the High Court rejected their plea, citing the filing of the chargesheet.

On appeal, the Supreme Court criticised the High Court’s approach, stating that it was obligated to assess whether the inclusion of distant relatives was an instance of over-implication or exaggeration. The Court noted that the accused relatives resided in a different city from the complainant’s daughter, raising questions about the credibility of the allegations. Additionally, the Court clarified that while Section 498A does not explicitly define “relative,” the term should be understood in a common-sense manner, typically referring to immediate family members such as parents, children, siblings, and their spouses. It stressed that if allegations extend to individuals not directly related by blood, marriage, or adoption, courts must carefully scrutinise whether the claims are exaggerated. The judgment reinforced the need for judicial vigilance to prevent unwarranted prosecutions under Section 498A.

Achin Gupta v. State of Haryana (2024)

In the said case, the Supreme Court raised concerns over the potential misuse of Section 498A IPC and its equivalent provisions in the Bharatiya Nyaya Sanhita, 2023 (BNS), namely Sections 85 and 86. The Court urged Parliament to reconsider these provisions in light of the “pragmatic realities” surrounding allegations of cruelty in matrimonial disputes. The case involved a husband who had approached the Supreme Court after the High Court refused to quash an FIR filed against him under Sections 323, 406, 498A, and 506 IPC. The FIR had been lodged by his wife following his decision to initiate divorce proceedings on grounds of cruelty.

The Supreme Court held that if an FIR, when read in its entirety, suggests that criminal proceedings were initiated with an ulterior motive to harass the accused, the High Court must exercise its inherent powers under Section 482 CrPC to quash the case. The judgment cautioned law enforcement against the mechanical application of Section 498A in every case of marital discord, stating that police authorities should ensure that the provision is not used as a tool to exert undue pressure on husbands. The Court also emphasised that trivial disputes or day-to-day quarrels between spouses should not automatically be classified as cruelty under the law.

Expressing serious apprehensions over the misuse of Section 498A, the bench of Justices J.B. Pardiwala and Manoj Misra called upon the Legislature to reassess the provisions under the BNS before they took effect. The Court noted that while Sections 85 and 86 of the BNS largely replicate Section 498A IPC, the explanation defining “cruelty” has been structured as a separate provision under Section 86. The ruling reinforced the need for judicial scrutiny in matrimonial disputes and warned against indiscriminate prosecutions under the guise of protecting women’s rights.

Dara Lakshmi Narayana & others v. state of Telangana & another (2024)

On December 10, 2024, the Supreme Court once again cautioned against the indiscriminate use of Section 498A IPC, stressing that it should not be misused as a tool for personal vendetta. While quashing a domestic cruelty case against a husband and his in-laws, the bench comprising Justices B.V. Nagarathna and N. Kotiswar Singh criticised the growing tendency to implicate all members of a husband’s family in cases arising from matrimonial disputes. The Court noted that such misuse of the law distorts its original intent, which was to protect women from cruelty inflicted by their husbands and in-laws.

The case arose from a complaint filed by the wife after her husband sought the dissolution of their marriage. The Telangana High Court had refused to quash the domestic cruelty case, prompting the appellants—comprising the husband and his family—to approach the Supreme Court. Examining the complaint, the Court found that the allegations were vague and generalised, with no clear prima facie case against the accused. The Court observed that while genuine cases of cruelty must be taken seriously, frivolous and retaliatory complaints undermine the law’s credibility and burden the judicial system.

Justice Nagarathna, authoring the judgment, highlighted that while the provision was enacted to curb cruelty and ensure swift state intervention, its misuse has become increasingly common in matrimonial conflicts. The Court reiterated that Section 498A should not be weaponised to coerce or intimidate husbands and their families into submission. It also warned lower courts against mechanically prosecuting accused persons without scrutinising the legitimacy of complaints. In this case, the Court found that the wife had lodged the complaint as a counterblast to the husband’s divorce petition, thereby misusing the provision.

While quashing the proceedings, the Court clarified that its observations should not discourage women from filing genuine complaints under Section 498A when they have actually suffered cruelty. However, it stressed that cases lacking specific allegations should not be entertained, as they undermine the law’s purpose and erode trust in the legal system.

Digambar and another v. the State of Maharashtra and another (2024)

On December 20, 2024, the Supreme Court quashed a domestic cruelty case under Section 498A IPC against a husband’s parents, ruling that the case was filed with an ulterior motive to pressure their son into consenting to a divorce. The bench, comprising Justices B.R. Gavai and K.V. Viswanathan, set aside the Bombay High Court’s Aurangabad Bench decision, which had refused to quash the criminal proceedings.

The complainant alleged that her in-laws forced her to consume adulterated food, causing her miscarriage. She also accused them of mental and physical cruelty for not bearing a male child, leading to charges under Sections 312/313 IPC in addition to Section 498A. However, the Supreme Court noted that the complaint regarding the miscarriage and cruelty was made to the police two years after the alleged incident, with no supporting evidence that the appellants were aware of the complainant’s pregnancy or administered any harmful substances. The Court ruled that a mere allegation of cruelty does not constitute an offence unless it is shown to have been committed with the intent to cause grave injury, drive the victim to suicide, or inflict severe harm.

Justice Gavai, authoring the judgment, observed that the allegations were vague and lacked specific details of cruelty or misconduct. The only injury-related allegation mentioned that the complainant’s husband used to beat her, but no direct accusation was made against the appellants. Additionally, the Court pointed out the complainant’s failure to include these serious allegations in the ongoing divorce proceedings, raising doubts about her intentions. Given the two-year delay in filing the FIR, the Court inferred that the complaint was a retaliatory measure to exert pressure during the divorce case.

By quashing the proceedings, the Supreme Court reaffirmed that matrimonial disputes should not be weaponised through criminal complaints. It stressed that while genuine cases of domestic violence and cruelty must be taken seriously, courts should remain vigilant against attempts to misuse legal provisions for personal advantage.

Geddam Jhansi & Anr. v. the State of Telangana & Ors (2025)

On February 7, 2025, the Supreme Court quashed criminal charges of cruelty, dowry demand, and domestic violence against certain family members of the accused husband, emphasising the dangers of invoking criminal law in domestic disputes without specific allegations or credible evidence. The bench, comprising Justices B.V. Nagarathna and Nongmeikapam Kotiswar Singh, observed that family relationships are deeply rooted in social and cultural values and should not be disrupted by indiscriminate criminal proceedings. The Court stressed that while it is essential to protect victims of domestic violence, allegations must be scrutinised to prevent misuse of the law.

The case involved a complaint under Section 498A IPC, Section 506 IPC, and Sections 3 and 4 of the Dowry Prohibition Act, 1961, filed against the husband’s mother, his mother’s younger sister, and her brother-in-law. The appellants had sought to quash the proceedings, but the High Court refused, stating that a prima facie case had been made out against them. Challenging this decision, they approached the Supreme Court, which carefully examined the charge sheet and witness statements. The Court found that the allegations of harassment were based on information provided by the complainant to her parents rather than direct witness accounts. Additionally, claims of physical abuse by the husband and relatives were not mentioned in the complainant’s statement but had been added later by her parents, raising doubts about their credibility.

The Court further noted inconsistencies in the testimony of panchayat elders, who claimed to have attended meetings in Chennai despite residing in Telangana. It underscored that while specific allegations against the husband and mother-in-law existed, the accusations against the present appellants were vague. The Court warned against the tendency to implicate extended family members without clear evidence of their active participation in domestic violence. It clarified that merely failing to intervene in an abusive situation does not equate to perpetrating cruelty unless direct involvement is established.

Striking a balance, the Court reaffirmed that genuine cases of cruelty and violence must be addressed with sensitivity, ensuring that true perpetrators face consequences while preventing an indiscriminate legal dragnet. It held that there was no prima facie case against the appellants, as the evidence relied solely on the complainant’s allegations without specific roles attributed to them. Consequently, the criminal proceedings against them were quashed, with the Court making it clear that its findings would not affect the prosecution of other accused persons in the case.

Section 498A IPC: Addressing misuse without dilution

Section 498A of the Indian Penal Code was enacted to protect women from cruelty, particularly in the context of dowry-related harassment. However, debates around its alleged misuse have intensified over the years. While some argue that the law is frequently misused for personal vendettas, others assert that this narrative is largely exaggerated and has led to calls for dilution that could harm genuine victims. The reality is that the law is neither inherently flawed nor unnecessary; rather, its misuse stems from systemic weaknesses in enforcement, legal procedures, and societal attitudes.

Misuse of Section 498A does not occur in isolation. It involves various actors, each playing a role in how the law is applied or misapplied. A closer look at these factors reveals the need for reform in its implementation rather than weakening its protective provisions.

1. Complainants: False or exaggerated allegations: While Section 498A is a crucial legal safeguard for women facing domestic abuse, concerns about false or exaggerated complaints cannot be ignored. In some cases, women or their families may misuse the provision to settle personal scores, gain leverage in divorce or custody disputes, or pressure the husband’s family into financial settlements. The law’s stringent nature, which allows immediate arrest without preliminary investigation, can be misused in such situations.
2. Role of legal professionals: Some legal advisors contribute to the misuse of Section 498A by encouraging clients to file fabricated or exaggerated complaints. This is often done to strengthen matrimonial disputes, secure favourable financial settlements, or harass the husband’s family. Lawyers who prioritise winning cases over ethical considerations play a key role in enabling such exploitation.
3. Law enforcement and investigating agencies: The police, as the primary enforcers of the law, play a crucial role in its potential misuse. In some cases, officers arrest accused individuals solely based on complaints, without conducting a proper investigation. This may stem from external pressures, fear of being accused of negligence, or even corruption. Investigating agencies also contribute to wrongful prosecution when they fail to verify allegations thoroughly, sometimes due to inadequate resources or bias. The lack of proper scrutiny at this stage can lead to wrongful arrests, reinforcing the perception that Section 498A is frequently misused.
4. Judicial system and its role: The judiciary has acknowledged the possibility of abuse and issued guidelines to prevent wrongful prosecutions. However, inconsistencies in the application of these safeguards remain a challenge. The cognizable and non-bailable nature of the offence means that accused individuals can be arrested and face social stigma even before their case is heard in court. This reinforces the argument for stricter procedural safeguards while ensuring that genuine victims receive justice.
5. Societal and cultural influences: Deeply entrenched patriarchal norms contribute to the complex dynamics surrounding Section 498A. On one hand, families sometimes use the law as a weapon in dowry disputes or personal conflicts. On the other, societal conditioning discourages women from reporting domestic abuse, fearing social backlash. The stigma associated with marital discord often forces women to endure years of cruelty before seeking legal recourse, making it imperative that Section 498A remains a robust legal protection.
6. Lack of procedural safeguards: The absence of sufficient procedural checks has made Section 498A vulnerable to both misuse and under-enforcement. The law allows for immediate arrest without the need for preliminary verification, which can lead to wrongful detentions. At the same time, genuine victims often struggle to navigate the legal system due to patriarchal biases in law enforcement and the judiciary. Strengthening procedural safeguards—such as mandatory preliminary inquiries before arrest—could help balance the rights of the accused with the need to protect victims.

Strengthening implementation instead of dilution

Justice Dr Neela Gokhale of the Bombay High Court, speaking at an event on February 8, 2025, asserted that Section 498A is not misused but widely misunderstood. She noted that while some women may misuse the provision, this should not justify treating all cases under it as frivolous.

“I can confidently say that Section 498A is not being misused; rather, it is being misunderstood by everyone. It is now the responsibility of both the Bar and the Bench to rise to the occasion and offer appropriate legal guidance to clients,” she remarked, as per LiveLaw.

Justice Gokhale highlighted how societal attitudes discourage women from reporting domestic violence, citing a 2003 government report that found over 30% of married women in India experience physical, sexual, or emotional abuse at the hands of their husbands or in-laws. However, due to societal pressures, many cases remain unreported. She also addressed concerns regarding over-implication in complaints, where women sometimes name distant relatives to pressure the husband’s family into financial settlements.

Acknowledging this, she cautioned that overuse of Section 498A risks discrediting real victims.

“On the bench, we may see ten cases in a day where the ingredients of Section 498A are not met due to over-implication. But what about the eleventh case, which may be a genuine one? Unfortunately, such overuse affects the credibility of real victims, and this is deeply concerning,” she observed.

Re-orienting the application of Section 498A

Rather than advocating for dilution, efforts should focus on improving the implementation of Section 498A. The following reforms could help strike a balance between preventing misuse and ensuring justice for genuine victims:

• Stronger investigative protocols: Law enforcement agencies should be required to conduct a preliminary inquiry before making arrests in Section 498A cases, as recommended by the Supreme Court in Rajesh Sharma v. State of UP (2017). This would help filter out false complaints while ensuring that genuine victims receive immediate protection.
• Legal accountability: Lawyers who misuse procedural gaps to encourage false cases should face disciplinary action. Legal professionals must prioritise ethical advocacy over strategic litigation tactics.
• Judicial sensitisation: District court judges must receive gender sensitisation training to distinguish between routine marital discord and legally recognised cruelty. This will help ensure fair adjudication without bias against either party.
• Public awareness campaigns: Educating women on their rights and legal options can reduce unnecessary litigation while encouraging victims of genuine abuse to seek justice.

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The post The Debate around Section 498A: Misuse or inappropriate application? appeared first on SabrangIndia.

In its judgment, the court held that “An offence punishable under section 120-B will become a scheduled offence only if the conspiracy alleged is of committing an offence specifically included in the schedule.” (Para 27)

The Supreme Court also laid down that a person accused of an offence under Section 3 of the Prevention of Money Laundering Act (PMLA), which captures all processes and activities linked to the proceeds of crime- whether directly or indirectly, need not necessarily be shown as an accused in the scheduled offence. The judgment clarified that a person, unconnected to the scheduled offence but knowingly assisting in the concealment of the proceeds of crime, can be held guilty of committing an offence under Section 3 of the PMLA.

“It is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. What is held in paragraph 270 of the decision of this Court in the case of Vijay Madanlal Choudhary supports the above conclusion. The conditions precedent for attracting the offense under Section 3 of the PMLA are that there must be a scheduled offense and that there must be proceeds of crime in relation to the scheduled offence as defined in clause (u) of subsection (1) of Section 3 of the PMLA,” the Supreme Court bench held. (Para 15)

The Supreme Court bench comprising Justices Abhay S. Oka and Pankaj Mithal pronounced the aforementioned judgment in an appeal against a judgment of the Karnataka High Court which refused to quash the proceedings in a case pending before Special Judge, Bengaluru for the offence of money laundering against the appellant under PMLA. The Supreme Court bench quashed and set aside the order of the High Court and quashed the complaint pending before the Special Court, Bengaluru. 

The present case:

On March 7, 2022, a complaint had been filed by the Enforcement Directorate (ED) against the former Vice-Chancellor of Alliance University, Pavana Dibbur. The ED has charged her under sections 44 and 45 of the Prevention of Money Laundering Act (PMLA), citing offenses defined under section 3 read with sections 8(5) and 70, which are punishable under section 4 of PMLA.

The allegations suggested that during her tenure as VC of Alliance University from 2014 to 2016, the appellant acquainted with Madhukar Angur (Accused no.1), conspired to execute a sham and nominal sale deed without any consideration, involving properties belonging to Alliance University. It was further claimed that she facilitated Accused No. 1 in using her bank accounts to conceal money siphoned from the university. Here, the FIR in the predicate offence were registered under Sections 143 (unlawful assembly), 406 (Criminal breach of trust, 407 (Criminal breach of trust by carrier), 408 (Criminal breach of trust by clerk or servant), 409 (Criminal breach of trust by public servant, or by banker, merchant or agent.), 149 (common object of unlawful assembly) of the IPC.

On March 17, 2022, the Special Court for PMLA cases in Bengaluru took cognizance of the allegations made against Dibbur and the Special Judge proceeded with the case. In response to the same, the petitioner approached the Karnataka High Court, seeking to quash the proceedings under Section 482 of the Criminal Procedure Code (CrPC).

However, the High Court dismissed the petition for quashing the complaint moved by Dibbur. The High Court relied on the judgment declared by the Supreme Court in Vijay Madanlal Choudhary v. Union of India & Ors., and emphasized that the phrase used by the Court in its judgment is “any person” and not “any accused.” Therefore, one need not be accused in the principal offense to be subject to proceedings under the Act. The court further held that even assisting in the process or activity constitutes a part of the crime of money laundering. 

The present appeal was filed by the appellant in the Supreme Court against the said judgment of the High Court. 

Submissions by the parties:

Appellants: During the hearings, it was argued by Senior Advocate Meenakshi Arora, representing the appellant, that her client was neither named in the FIR nor in the subsequent charge sheet. As provided by the counsel, the appellant had only been arraigned as an accused for the first time in a complaint under sections 44 and 45 of PMLA.

It was further submitted by advocate Arora that proceeds of crime must be derived from criminal activity related to a scheduled offence. For this, the counsel had relied on the judgment delivered in the Vijay Madanlal Chowdhury case. The third argument that was raised by advocate Arora was that Section 120-B of the IPC cannot stand alone, emphasizing the need for a conspiracy to commit an illegal act mentioned in the scheduled offences under Section 2(y) of PMLA. Through this, the counsel had brought forth the question on whether Section 120-B of the IPC can be utilized independently by authorities under PMLA for investigation or if it must be read together with other scheduled offenses. Based on the aforementioned submissions, it was urged by advocate Arora that the complaint against the appellant deserved to be quashed.

Respondents- the Additional Solicitor General SV Raju was representing ED in the present hearings. It was contended by him that the PMLA is an independent code, and a person who is not named in the FIR can be arraigned as an accused. Further, the ASG submitted that a person can be held guilty of the commission of a money laundering offence under Section 3 of the PMLA even if they are not shown as an accused in the predicate offence.  

As provided in a report of LiveLaw, during the hearing, the Court had posed a hypothetical scenario to the ASG and asked “If there is a theft of 100 crores and there is no scheduled offense other than 120-B, then will the authorities under PMLA have the power to initiate the prosecution?” to the same, the ASG had responded by stating that the authorities would rightfully have the power to investigate the offense, citing Section 120-B as a scheduled offense under Section 2(y) of the PMLA Act.

What are the scheduled offences annexed to the PMLA?

The PMLA has listed scheduled offence in the Schedule annexed to it. The Schedule comprises Part A, Part B and Part C.

Part A enlists numerous offences under the IPC, Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and other statutes. Certain serious offences such as those connected with waging war against the Nation, circulation of Fake Indian Currency Notes, etc. have been included in this.

Part B of the Schedule includes only one offence under Section 132 of the Customs Act, 1962. The offence under Section 132 of the Customs Act, of making a false declaration, etc., becomes a scheduled offence in view of the sub-clause (ii) of clause (y) of sub-section (1) of Section 2 of the PMLA only if the total value involved in the offence is ₹1 crore or more.

Part C of the Schedule provides that any offence specified in Part A having cross-border implications becomes a part of Part C.

In the present case, ASG Raju argued that even though the charge involved a criminal conspiracy to commit an offence not covered by the Schedule, the offence became scheduled because Section 120¬B of the IPC is included in Part A of the PMLA Schedule.

Observations by the Supreme Court:

On scheduled offences: The Supreme Court bench rejected the argument of the ED that the “scheduled offence” under Section 120B (criminal conspiracy) would apply even if there were no other scheduled offences in the charge sheet, deeming it a violation of the legislative intent behind the PMLA. The bench held that if the aforementioned argument of the ED were to be accepted by the Court, the Schedule to the PMLA would become redundant and meaningless. The Bench also warned that the interpretation suggested by the ED may attract the vice of unconstitutionality for being manifestly arbitrary. 

“If we accept such an interpretation, the statute may attract the vice of unconstitutionality for being manifestly arbitrary,” stated the court in para 25 of the judgment. 

Upon this, the Bench pointed out that many offences under Chapter XVII (offence against property) of the IPC are not included in Parts A and B of the PMLA Schedule. They become scheduled offences, the Bench noted in para 22 of the judgement, only if they have cross-border implications.

“As stated earlier, many offences under Chapter XVII of the IPC are not included in Parts A and B.  They become scheduled offences only if the same have cross-border implications. Thus, the offences of dishonest misappropriation of property or criminal breach of trust or theft can become a scheduled offence, provided they have cross-border implications.”

The bench then cited an example to highlight the fallacy of the ED’s argument “If the argument of the learned Additional Solicitor General is accepted, if there is a conspiracy to commit offences under Section 403 or Section 405, though the same have no cross-border implications, the offence under Section 120B of conspiracy to commit offences under Sections 403 and 405 will become a scheduled offence,” the Bench stated in Para 22 of the judgment. In other words, the bench stated that as per the argument of ED, any offence is not included in Parts A, B and C of the Schedule but if the conspiracy to commit the offence is alleged, the same will become a scheduled offence.

In furtherance to this, the Bench gave another illustration to emphasise the effect that the argument of the ED will have on the working of PMLA. The Bench noted that a crime punishable under Section 132 of the Customs Act is made a scheduled offence under Part B, provided the value involved in the offence is ₹1 crore or more. But if Section 120B of IPC is applied, if the ED’s argument were to be accepted, one who commits such an offence having a value of even ₹1 lakh can be brought within the purview of the PMLA.

The bench then observed that “By that logic, a conspiracy to commit any offence under any penal law which is capable of generating proceeds can be converted into a scheduled offence by applying Section 120B of the IPC, though the offence is not a part of the Schedule,” (Para 22)

Interpretation of the PMLA in this manner could not be the intention of the legislature, the Bench thus held. 

On Section 120 B of the IPC not being an aggravated offence- Further in the judgment, in regards to Section 120B of the IPC, the divisive bench opined that merely because there is a conspiracy to commit an offence, the same does not become an aggravated offence.

“If we look at the punishments provided under Section 120B, it becomes evident that it is not an aggravated offence. It only incorporates the principle of vicarious liability.” (Para 25)

Furthering this, the bench stated that interpretation suggested by the ED will defeat the legislative object of making only a few selected offences as scheduled offences and held “If no specific punishment is provided in the statute for conspiracy to commit a particular offence, Section 120B treats a conspirator of the main accused as an abettor for the purposes of imposing the punishment,” the Bench said.

Decision of the Supreme Court: 

The bench of the Supreme Court then observed that the conditions precedent for attracting the offense under Section 3 of the PMLA is that it requires the presence of a scheduled offense and the existence of proceeds of crime related to the scheduled offense, which were absent in the present case. Hence, the Court held that the appellant cannot be prosecuted for the offenses punishable under Section 3 of the PMLA.

It is crucial to highlight here that the bench also made an essential observation and held that that if the prosecution for the scheduled offense concludes with the acquittal or discharge of all the accused, or if the proceedings of the scheduled offense are entirely quashed, the scheduled offense ceases to exist. In such cases, individuals cannot be prosecuted for the offense punishable under Section 3 of the PMLA since there would be no proceeds of crime.

However, the court made it clear that an accused in a PMLA case, who becomes involved after the commission of the scheduled offence by assisting in the concealment or use of proceeds of crime, does not need to be an accused in the scheduled offence. Such individuals can still be prosecuted under the PMLA as long as the scheduled offense exists.

“Even if an accused shown in the complaint under the PMLA is not an accused in the scheduled offence, he will benefit from the acquittal of all the accused in the scheduled offence or discharge of all the accused in the scheduled offence. Similarly, he will get the benefit of the order of quashing the proceedings of the scheduled offence,” the Court observed.

Thus, the court concluded that while they rejected the contention that Section 120B would apply even if there were no other scheduled offences in the charge sheet it concluded, the submission that the appellant needed not necessarily be an accused in the scheduled offense was upheld. The judgment clarified that a person, unconnected to the scheduled offence but knowingly assisting in the concealment of the proceeds of crime, can be held guilty of committing an offence under Section 3 of the PMLA.

The complete judgment can be read here:

Related:

Madras HC: Legal bar on ED’s detention, split verdict, PMLA case against Senthil Balaji

Arrest of Shiv Sena MP, Sanjay Rautt a ‘Witchunt’ & ‘Illegal’ says PMLA Court granting him bail in Money Laundering case

Women, Sick & Infirm may get bail under PMLA: Delhi HC

ED a ‘vengeful complainant’: Mumbai PMLA court

Rajasthan High Court: ED summons against Congress candidate in the midst of electioneering, quashed

The post Supreme Court on PMLA: Section 120(B) of the IPC can’t be invoked by ED when criminal conspiracy not linked to schedule offence appeared first on SabrangIndia.

Background:

The survivor boy used to take coaching classes from the accused person. But he started to sexually assault the boy whenever his mother was not present.

The accused tuition teacher was booked under Section 6 of POCSO read with Section 506 of the Penal Code, 1860 (IPC). He was convicted by the lower Court and hence filed an appeal.

Court held:

The Court noted that the survivor boy’s testimony to the doctor and in the trial court was consistent.

 Further, the court noted, “however depraved a person may be to sexually molest another person, he may not be foolish enough to indulge in such an act in open public view. Such offences are committed stealthily or surreptitiously when the survivor is alone or by luring the survivor to a secluded spot.” (Para 19)

The testimony of the boy was completely reliable and it was further corroborated by his medical examination through which evidence of sexual assault was found.

The court also noted that the accused should stop taking the defence of lack of witnesses to sexual assault/ rape. The court said that it is difficult for a child to cook up such stories out of nothing and for the same to be consistently repeated.

“When the survivor is a child, it is difficult to imagine that a story would be conjured up out of nothing and the same would be consistently repeated. Thus, when the survivor is a child of, say, up to 11-12 years of age, unless the court finds the child to be precocious enough to make out a story and consistently repeat the same, the fact that there may not have been any witness to the incident of sexual assault may not, by itself, let the accused off the hook.”(Para 20)

 The High Court did not find any merit in the appeal and upheld the decision by the Trial Court.

Significance of the Judgment:

Section 6 of POCSO discusses the punishment for penetrative sexual assault which ranges 20 years to life imprisonment or death. While section 506 IPC provides punishment for criminal intimidation for two years; or fine.

This judgment is quite significant since, as the court rightly noted, the accused are usually let off the hook for lack of witnesses for their acts. At a time when wrestlers are protesting against inaction/ slow action by the Delhi Police against multiple allegations against the Wrestling Federation of India (WFI) Chief, Brij Bhushan Sharan Singh. 10 complaints of molestations and 2 FIRs have been recorded against him. Out of this, one of the survivors is a minor girl and the case has been filed under POCSO Act for aggravated sexual assault.

Aggravated sexual assault is defined under Section 9 and 10 of the POCSO Act. The punishment for which is no less than five years.

The offences under POCSO are cognizable and non-bailable and the accused are usually arrested. A Supreme Court lawyer, Aparna Bhat was quoted by the Print as saying,
“The reason an offence gets identified as aggravated is because of the position a person is holding, because it is a position of trust, and a position of authority in an organisation. In this case, there was a position of trust because he held an official position in an organisation which was supposed to be looking after these wrestlers. These people also knew who this person was, so there are two positions of trust that the accused would have allegedly violated…. Ordinarily, in such cases, the police take action and the person is identified. And then they have to take formal bail from the court.”

The Meghalaya High Court judgment may be read here:

Related:

Seers in Ayodhya raise demands to amend POCSO Act, deem that it is being “misused”

1.9 lakh POCSO cases pending in Fast Track Courts: Ministry of Women and Child Development

“I changed my statement because I was scared, my family is living under constant threat”: father of the minor wrestlers’ complainant

Protesting wrestling champs meet union sports minister, 2nd meet with govt in 5 days

FIRs suggest wrestlers had informed PM about their repeated sexual trauma in 2021

Battling the Indian sports industry: the cries for justice by women

Protests and Mahapanchayats announced in support of the protesting wrestlers, 5 days given till medals are immersed in Ganga River

Wrestler Protest: Law student moves NHRC, files complaint over the detention & brutal police action against protesting wrestlers

The post POCSO: lack of witness not a ground for acquittal, says Meghalaya HC appeared first on SabrangIndia.

Representational image

Dawoodi Bohra activists are “absolutely delighted” over the statement of Union Minister for Women and Child Development (WCD), Maneka Gandhi that the central government will pass a law to prohibit female genital mutilation (FGM) unless the community’s headpriest [Syedna Mufaddal Saifuddin] voluntarily issues an advisory to the community to banish the practice.

Gandhi according to a report today in the Hindustan Times has described the practice of female genital mutilation (FMG, also referred to as female genital cutting, khatna) as a “criminal offence”.

On May 8, the Supreme Court has issued notices to the Centre and four state governments in response to a PIL seeking the outlawing of the shameful practice.

It is reliably understood that the WCD ministry has sent advisories to state governments pointing out that FMG is a violation of sections of the IPC and the POSCO Act.

Also read: "I do not believe in your wisdom and power anymore": A Dawoodi Bohra woman's missive to Syedna Mufaddal Saifuddin

“We will write to respective state governments and Syedna, the Bohra high priest, shortly to issue an edict to community members to give up FGM voluntarily as it is a crime under Indian Penal Code (IPC) and Protection of Children from Sexual Offenses (POCSO) Act, 2012. If the Syedna does not respond then we will bring in a law to ban the practice in India,” Gandhi told the Hindustan Times.

“This is fantastic news and absolutely welcome”, the convener of the group ‘Speak Out Against FGM’, Masooma Ranalvi told Sabrang India. The group had recently launched an online petition calling upon the WCD minister to bring a law banning the practice.

“We are very excited and very happy”, enthused Arefa Johari of Sahiyo, an organization of Dawoodi Bohra women campaigning to end the practice of what it prefers to call female genital cutting (FGC).

Also read: SC Issues Notice On PIL Seeking Complete Ban On Female Genital Mutilation

“This is something we have been working at for a very long time and we heartily welcome the minister’s statement”, Johari added.

Ranalvi told SabrangIndia her group has been holding talks with the minister on how to banish the FGM practice which is “un-constitutional, against human rights and against existing Indian laws of the land”: Indian Penal Code (IPC) and The Protection of Children from Sexual Offences Act, 2012 (POSCO Act).   

Johari stated that individual members of Sahiyo who were victims of FGC had also made representations before the WCD ministry.

Also read: Bohra women want an end to the practice of “female genital cutting": Sahiyo report

“We hope that Syedna saheb (head priest of the global Dawoodi Bohra community will abide by the laws of the land and issue an advisory to all his Indian followers to give up the practice of FGM just as he has already issued advisories to all Dawoodi Bohras living in the West,” she told Sabrang India.

Ranalvi categorically asserted that what is referred to as khatna or khahafz is not “female circumcision” as the community’s priests pretend it to be but falls within the Type 1 and Type 4 categories of FMG as described by the World Health Organisation (WHO).

Also read: Jain fasting or Bohra female circumcision, why should children bear the brunt of religious fervour?

It may be noted that FMG is considered a serious criminal act with severe consequences both under IPC and POSCO.

Section 326 of IPC: “Voluntarily causing grievous hurt by dangerous weapons or means—Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to re­ceive into the blood, or by means of any animal, shall be pun­ished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
 
Section 327 of IPC: “Voluntarily causing hurt to extort property, or to constrain to an illegal act.—Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person inter­ested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such suf­ferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
 
Section 9 (h) (i) and (j) of the POSCO Act define Aggravated Sexual Assault as:
“(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or
“(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
“(j) whoever commits sexual assault on a child, which —
“(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2 of the Mental Health Act, 1987 or causes impairment of any kind so as to render the child unable to perform regular
tasks, temporarily or permanently”.
 
The punishment for aggravated sexual assault under the Act is “rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also be liable to fine”.
 
In the past year members of the Dawoodi Bohra community held responsible for FMG have been jailed in Australia last year. In USA last month federal authorities have made arrests and the accused face prosecution for performing, aiding or abetting FMG.
 

The post Dawoodi Bohra activists jubilant over Union Minister Maneka Gandhi’s plan to abolish female genital mutilation appeared first on SabrangIndia.

 

Over half a century after the Indian Constitution outlawed untouchability, two special Acts to enforce it continue to be subverted. While the police routinely makes a mockery of law, the role of the judiciary leaves much to be desired
 

Every hour two Dalits are assaulted,
Every day three Dalit women are raped,
Every day two Dalits are murdered and two Dalit houses are burnt in India….
(Report of the Ministry of Welfare of the Government of India, 1992-1993)
 

Indian democracy, known worldwide for a Constitution that does integral notions of human rights and dignity proud, has aged, allowing persistent and systemic, often brutal and violent, rights violations. These violations cover a wide trajectory from the violations of the rights of the individual – child to adult – related to the State, family and community, to rights violations experienced by groups that are either socially, politically, economically or religio-culturally marginalised and/or discriminated against. Violations that these groups experience is often both historical and traditional as much as fluid and evolving and often experienced from a set of powerful and well-entrenched non-State actors ably aided by agents of the State. When sections of those marginalised and oppressed organise and articulate themselves into demanding their rights, violence, read ‘atrocities’, against these sections are redoubled, as tools for punitive subjugation.
 

If, at an international level, this recognition that rights violations can be experienced by the individual as also by groups so positioned within and without state boundaries found expression in several covenants, laws and charters after the first Universal Declaration of Human Rights (UDHR), back home our first realisation on this front came with the enactment of the Protection of Civil Rights Act in 1955. Article 17 of the Constitution is that provision of our constitutional mandate through which untouchability was abolished and its practice in any form forbidden. Despite clear and specific constitutional provisions guaranteeing every individual’s right to a life of dignity, equality and non-discrimination, the shameful existence of caste-based discrimination and denials made this specific articulation on untouchability a necessity at the point of time when the Constitution was drafted.
 

Five years later, the Protection of Civil Rights Act, 1955 was enacted in order to enforce this constitutional provision. The provisions of this Act extended to the whole of India. Thirty-four years later even these enactments were found at the ground level to be inadequate. In order to check and deter crimes against Dalits and Adivasis, the Scheduled Castes and Scheduled Tribes, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was brought into force with effect from January 30, 1990 (forty years after we gave ourselves the Constitution).
 

Its main objective was "to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto." The provisions of the Act extend to the whole of India except the state of Jammu and Kashmir. Comprehensive rules were also notified under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 on March 31, 1995, which among other things provide for immediate relief and rehabilitation to the affected persons through the district administration. The provisions of these Acts are meant to be implemented by respective state government/union territory administrations and fifty per cent central aid is provided to ensure the implementation of all provisions.
 

Fifteen years after its enactment, nationwide studies show that while this legislation has provided a critical tool for the social and political mobilisation of Dalits, an insensate State and government machinery has resulted in poor implementation of this Act. Moreover, a concerted backlash from a society and State that staunchly refuses to accept the reality of caste-driven crimes seeks to dilute registration of crimes under this Act as ‘normal’ Indian Penal Code (IPC) crimes. It is time that public stock is taken of the hurdles being put in the way of the implementation of the Atrocities Act.
 

Specific provisions under this legislation were enacted to ensure that certain crimes are taken cognisance of and recorded as caste-based crimes and that for these, stringent punishment and a relief and rehabilitation package for the victim complainant is ensured. Section 4 of the Act specifically relates to penal provisions to be invoked if a police official or any government official fails to perform his/her duty in taking cognisance of the offence or investigating it thoroughly. Despite many studies that have established before various regimes that officers have violated this provision, not only has no action been taken, but in fact policemen have been rewarded with promotions for violating these provisions of the Atrocities Act. (See accompanying story on Gujarat and Andhra Pradesh).
 

It is section 3 under chapter II of the Atrocities Act that gives legislative teeth to the phenomenon of racist caste crimes. It is this section that describes and defines not simply the crimes committed against certain sections of the population (SCs and STs) but positions them for what they are, as caste crimes committed in the context of the existence of caste-based discrimination. It is this section that outlines specifically a crime under section 3(1) of the Atrocities Act as that which "forces a member of a SC or ST to drink or eat any inedible or obnoxious substance" (this in the context of SCs even today being forced to drink urea and human excreta); or under section 3(iii) "forcibly removes clothes from a person/member of the SC or ST… or parades him/her naked…"; or section 3(iv) "wrongfully occupies or cultivates land owned by or allotted to, or notified by a competent authority…"; section 3(xi) "assaults or uses force on any woman belonging to SC or ST with intent to dishonour or outrage (her) modesty".
 

For the first time, this Act specifies the atrocities suffered by SCs and STs, such as the deprivation of their land rights, bonded labour, forcible eviction from their homes, coercion during elections, gender violence against their women and protection against malicious prosecution.
 

Ironically, however, detailed and widespread studies on this law conducted in Gujarat, Andhra Pradesh and other parts of India show distinct and disturbing trends behind the non-implementation of the Atrocities Act. A combination of factors, many based on caste-driven bias, demonstrate that due to the conduct of investigating officers (policemen) and the prosecutors (advocates appointed by state governments to prosecute the offences under this Act) who allow technical lapses in both the investigation and prosecution, offences are often left unprosecuted under the Atrocities Act while the accused is given less serious and less stigmatised punishment under the IPC and Criminal Procedure Code (CrPC). The judiciary thus expends much energy trying to discern whether or not the offence was a caste crime, leading to a further dilution of these acts.

Detailed and widespread studies on this law conducted in Gujarat, Andhra Pradesh and other parts of India show distinct and disturbing trends behind the non-implementation of the Atrocities Act.

Whether in Maharashtra, Gujarat or Andhra Pradesh, judicial pronouncements in lower and higher courts often dismiss cases under the Atrocities Act on technical grounds. What judges overlook in this process is that the Legislature has already clarified that the term "atrocity" denotes an offence under the Indian Penal Code committed against SCs and STs by persons belonging to communities other than SCs or STs. The necessary mens rea (motive) is therefore established with the offence itself and the communities to which both victim and perpetrator respectively belong, not on the court attempting to delve into the very mind of the accused and discern to what extent the atrocity was committed solely because the victim was a SC/ST.
 

The significance of the resultant judicial dilution of the crime – whether through failure of investigation or prosecution – is that the racist element in these crimes gets diluted. A failure to closely analyse this trend can actually make the record books show that, in fact, caste crimes (atrocities under this Act) are mere propaganda, not factual reality. Those offences that are prosecuted and dealt with judicially look, on our records, like simple criminal acts not actions resulting from deep-rooted and widespread caste and social sanction.
 

Apart from a centuries’ old tradition of caste crimes, over the past three decades or so, specifically since the ’80s, brutal pogroms against groups belonging to certain religious communities within India have become a tragic recurrence, enjoining caste atrocities and crimes as organised mass crimes in the life of the Indian nation.
 

These bouts of concentrated violence have had serious genocidal traits. There has been systemic and vicious, even high-level, preparation and pre-planning behind these genocidal pogroms (involving those in power and even the State), active verbal and written demonisation through hate propaganda, targeting of women belonging to these communities, large scale and brutal extermination along with economic targeting and religio-cultural desecration. The disturbing emergence of this phenomena has thrown open a widespread debate on the need for another law that addresses genocidal mass crimes (see Communalism Combat, Draft Bill, September 2004).

While this debate and cry for such a legislative enactment gains momentum, as it should, a close look at our track record on implementation of other such legislation deserves attention. The faulty registration of FIRs, poor investigation of the crime, and the pathetic conduct of public prosecutors, apply more acutely to cases under the Atrocities Act and are therefore also likely to affect those crimes committed against religious minorities. They are also the factors responsible for the failure of the criminal justice system as a whole. Specifically, while a special legislation that pinpoints accountability and punishment on officials of the Indian State for allowing genocidal pogroms – also tracing this accountability to the top man in the chain of command when mass crimes result – is the need of the hour, this special legislation needs to be backed by urgent structural and administrative reform in the Indian police force to give teeth and meaning to the new law.

Illustration: Amili Setalvad
 

Registration of FIRs
The deliverance of justice begins with the registration of a first information report, an FIR. The time factor is vital in lodging a meticulously documented FIR and any inordinate delay may prove detrimental both for effective investigation and prosecution. Thus the endeavour should be to ensure that the FIR is registered at the police station so that the investigation begins at the earliest. Rule 1 (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 also provides that the superintendent of police shall ensure that the FIR is registered in the book of the concerned police station and effective measures are taken to apprehend the accused. In case registration of the FIR is denied by the police officer on duty, such an officer, if not being a member of a Scheduled Caste or a Scheduled Tribe, can be prosecuted under Section 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, for wilful neglect of duties required to be performed by that officer under the Act. This rarely happens.
 

Pendency of cases
According to the Union Ministry of Social Justice and Empowerment, out of 138,484 cases (including brought forward cases) in the courts during the year 2003, the cases pending in the courts at the end of the year numbered 117,678, which implies that 84.97% cases were pending in the courts. Once again, the failure of justice to SC and STs is linked to the widespread pendency of cases in general.
 

Though the state governments of Andhra Pradesh, Bihar, Chhattisgarh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan, Tamil Nadu and Uttar Pradesh have set up exclusive special courts with the intention of conducting trial of cases as required under the Act, the data available with the central government for the year 2002 in respect of the exclusive courts in the states of Bihar, Chhattisgarh, Gujarat, Karnataka, Madhya Pradesh, Rajasthan and Tamil Nadu indicates that the pendency of cases in these courts varies between 56.55% (in Rajasthan) and 88.76% (in Bihar). Likewise, the conviction rates vary from 01.86% (in Gujarat) to 29.20% (in Madhya Pradesh). Since the pendency of cases in the exclusive courts is very high, it is difficult to conclude that the exclusive special courts are proving to be fast track courts serving the ends of justice.
 

Low rate of convictions
According to Union Government figures, though the number of cases ending in conviction by the courts under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 marginally increased from 1,241 cases (10.49%) in the year 2000 (when a total of 11,237 cases were disposed of by the courts) to 2,694 cases (11.04%) in the year 2003 (when a total of 19,858 cases were disposed of by the courts); yet the conviction rate is far less than that in case of IPC cases i.e. 40.80% (Source: National Crime Records Bureau, Ministry of Home Affairs, ‘Crime In India’ Report for the year 2001. The Central Vigilance Commission states that conviction rates for criminal cases are just six per cent – 2001).
 

Role of public prosecutors
It is important that the public prosecutors ensure both timely and effective handling of the prosecution case. For this it is necessary to strengthen the institution of special public prosecutors with appropriate remuneration/fees paid to them, so that they are motivated to take up cases effectively, which has a bearing on the end result of the case.
 

In six recent cases from the state of Maharashtra relating to gender violence against women victims belonging to the SCs, cases were summarily disposed of at the lower level due to the questionable conduct of the special public prosecutors (A special survey on the Atrocities Act in Maharashtra will feature in a forthcoming issue of CC).
 

The special public prosecutors appointed under this Act are required to play a very important role to ensure successful results in the case. But as in other cases related to caste and communal crimes, the abdication of the role of the special public prosecutor further disables the implementation of this Act. More than ever the role of special public prosecutors and their conduct require transparent audit before the people. It is the experience of groups attempting to get provisions of this Act implemented that the long pendency of cases and failure of the PPs to interact with the victim and investigate the atrocity/offence dilutes the offence and stymies the prosecution case.
 

Public prosecutors do not even contact the complainant till he enters the witness box. As a result, the poor illiterate complainant experiences isolation from a system meant to guarantee him/her justice.
 

The enforcement of the Atrocities Act is not mandatory – It is voluntary. Thus, non-implementation of the provisions of this Act does not amount to an offence. One can well imagine the consequences when the public prosecutor, instead of making submissions for strict compliance of the provisions of the Act and convicting the accused for an offence under the Act, behaves totally contrary to the provisions of the Act.
 

Role of senior policemen
The Atrocity Act has many provisions that hold the police and district administration responsible for creating a climate under which the atrocities committed under the provisions of this Act can be effectively prosecuted. Rule 8 of the Atrocity Act, Rules – 1995 has provided for a police protection unit under the control of special IG, police. The duty of the unit is to investigate the negligence of state government employees in the implementation of the Act. To date this unit has not taken any suo motu notice of any such non-implementation in most states in the country.
 

Senior officers at the level of district superintendents of police in many states have often been found responsible for criminal negligence under the Act and been indicted by courts for such criminal negligence. The accompanying study on Gujarat and the judgements delivered under the Act in that state shows that it is the district SPs who have been squarely responsible – the responsibility for the effective enforcement of the Atrocities Act at the district level lies with the district superintendents of police of the districts concerned. As per the mandatory provisions contained in Rule 7 (1) and (2) of the Atrocities Rules of 1995, district superintendents of police are required to appoint subordinate officers not below the rank of DySp as investigating officers to investigate offences under the Act.
 

Rule 7 of the Atrocity Rules under the Act framed in 1995 was specifically enacted to ensure responsibility in the appointment of investigating officers under the Atrocities Act. The reasoning behind asking a senior level officer to not merely investigate the alleged offence under the Act but also ensure that a special government notification is made endorsing his appointment has to do with specific abilities of officers chosen to investigate such crimes based on past records. Rule 7 states that such an officer is appointed "after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it on the right lines within the shortest possible time."
 

Moreover, they are also required to see that the investigating officers so appointed undertake investigation on a priority basis and complete the same and submit their report to the DySp within 30 days. Further obligation on the part of DySps is that they should certify such reports and forward the same immediately to the DGP.
 

Despite such clear and mandatory provisions, the DySps continue to entrust investigation to police officers of the level of head constable, police sub inspector or police inspector and have often certified defective investigation reports prepared by the unauthorised investigating officers and produced such reports in the courts. Such defective reports are even forwarded to the DGP by the district SPs!
 

Responsibility of the district administration
The district magistrate/district collector and the district superintendent of police are enjoined under Rule 12 (1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, to visit the place of occurrence of atrocity to assess the loss of life and damage to property and draw a list of victims, their family members and dependents entitled for relief. Government and non-governmental studies reveal that the administration does not fulfill this legally required function.
 

Besides, Rule 12 (2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that the district magistrate or the sub divisional magistrate or any other executive magistrate shall make arrangements to provide immediate relief in cash or in kind or both, to the victims of atrocity, their family members and dependents according to the scale as provided in the Rules. Despite funds for such relief and rehabilitation claimed to be disbursed by the central government, figures show that payments are not made out swiftly, violating the provisions of this Act.
 

Monitoring provisions
The law provides for a quarterly review of the implementation of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the nodal officer with district magistrates and superintendents of police in accordance with Rule 9 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
 

In accordance with Rule 9 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, nodal officers for coordinating the functioning of district magistrates and superintendents of police or other authorised officers have been nominated in the states of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Nagaland, Orissa, Punjab, Rajasthan, Tamil Nadu, Tripura, Uttar Pradesh, Uttaranchal, West Bengal, Chandigarh, Daman & Diu, Dadra & Nagar Haveli, Delhi and Pondicherry. Yet widespread atrocities continue and the non-implementation of the Act is the norm rather than the exception. This is largely due to utter lack of transparency and public attention given to their functioning.
 

Again, according to details available with the central government, the State Level Vigilance and Monitoring Committees under the chairpersonship of the chief minister and district level Vigilance and Monitoring Committees in accordance with Rule 16 and Rule 17 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 have been set up in the states of Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Nagaland, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, Uttaranchal, Dadra & Nagar Haveli, Andaman & Nicobar Islands, Daman & Diu.
 

Annual reports under the Protection of Civil Rights Act, 1955 and the Prevention of Atrocities (Scheduled Castes and Scheduled Tribes) Act, 1989 are meant to be tabled in both houses of Parliament. The last annual report under each of these Acts tabled was related to the year 2002. The fact that this is three-year-old data and also that Parliament spares scant time and attention on social justice and resultant atrocities, has rendered this exercise, too, limited if not redundant.
 

The Indian State, despite its constitutional mandate and obligations, aided by a limping criminal justice system resistant to democratic transparency and reform, has failed not simply to implement the rule of law in general, but has, with relation to our marginalised and weaker sections, failed in these obligations completely.
 

Women, Dalits, Adivasis and religious minorities have reason enough to specifically charge sheet the Indian State.
 

An honest stocktaking of this failure in our sixth decade as a republic may provide some answers. Can social justice or social transformation be ensured without a staunch adherence to the rule of law?

Archived from Communalism Combat, March  2005 Year 11  No.106, Cover Story 1

The post Caste Crimes appeared first on SabrangIndia.

On the caste front, too?

A detailed and systematic study undertaken by the Council for Social Justice (CSJ), Ahmedabad, reveals a shocking pattern behind the main reasons for the collapse of the cases filed under the Atrocities Act within Gujarat: utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile role played by the public prosecutors.
 

Valjibhai Patel, secretary, CSJ (who has meticulously documented 400 judgements delivered under this act since April 1, 1995 in the Special Atrocity Courts set up in 16 districts of the state), avers that while the common perception is that the inefficacy of this law is due to false complaints being lodged or compromises between the parties, in actuality it is a complicit State that has rendered the Act toothless.
 

In over 95 per cent of the cases, acquittals have resulted due to technical lapses by the investigation and prosecution, and in the remaining five per cent, court directives are being flouted by the government. Often while crimes under the IPC against the accused have been proved, offences under the Atrocities Act have not, suggesting a systemic bias against recording and establishing crimes under this law.
 

The judgements that have been studied are from special courts in the districts of Banaskantha, Vadodara, Surat, Mehsana, Patan, Bharuch, Surendranagar, Ahmedabad, Sabarkantha, Rajkot, Jamnagar, Amreli, Anand, Veraval, Navsari, Godhra, Valsad and Junagadh. As a result of the attitude of the state police and the state public prosecutors, those accused under the Act for criminal acts like murder (for which life imprisonment is the sentence) and rape are being allowed to go scot-free.
 

Numerous judgements of the special courts set up under the Atrocities Act in Gujarat — which due to lapses in investigation and prosecution, have led to the acquittals of the accused —have passed strictures against the negligence demonstrated by both the police and the public prosecutors and even summoned time-bound ‘action taken’ reports. Often policemen have even resorted to giving false evidence to protect the accused while prosecutors have attempted to mislead the courts by arguing that the provisions of the Atrocities Act are not mandatory.
 

Under section 4 of the Atrocities Act, "Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe wilfully neglects duties required to be performed by him under this Act, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year." In 95 per cent of the judgements studied by the CSJ, courts have passed strictures against errant police officials invoking provisions of section 4 under the Atrocities Act, but the government of Gujarat, instead of taking action against the erring officers, has honoured them with promotions.
 

Serious negligence on the part of the police
Rule 7(1) and (2) of the Atrocity Rules of 1995 framed under the Act clearly provides that the investigation of an offence under the Act cannot be carried out by an officer below the rank of DySp, who is further bound to submit his report directly to the state director general of police. Moreover, both the state home secretary and the state social welfare secretary with the director of prosecution are meant, every quarter, to review the investigations undertaken under the Act. Despite this clear provision under the law, in 95 per cent of the cases the accused are acquitted merely on the ground that the investigation was carried out by an officer below the rank (DySp) specified under the Act.
 

Courts have taken very serious note of this fact and have made critical observations for such criminal negligence in several judgements. For instance, in Patan district Special Atrocity Case No. 391/02, paragraph 17, page 10 of the judgement the court states, "If the investigation is not carried out by the competent officer authorised by Rule-7 of the Rules under the Atrocities Act, the case of the complainant can not be proved…. In such circumstances, the investigation of the offence against the accused stands vitiated with the benefit in the favour of accused. In these circumstances the charges under the Atrocities Act framed against the accused are not tenable."
 

Similarly, in Jamnagar district, Spl. Atrocity Case No. 45/2001, the judgement at page number 16 says, "The investigating officer, DySp Jamnagar Rural was in charge when the incident took place. It appears that in fact his designation was of CPI and merely because he was in charge, the investigation cannot be said to be legal. Otherwise, also, the appointment of the investigating officer must be made by the direct orders of the government….In these circumstances the investigation stands to be illegal. As long as the state government does not appoint any authority to carry out the investigation of the offence and if any other officer investigates the offence, such an investigation cannot be said to be legal.." The order states therefore: "The accused Mahobbatsinh alias Hakuba Gagubha Jadeja is hereby convicted for the offence punishable by section 323 of the Indian Penal code (punishment for the crime of voluntarily causing hurt) and section 135(1) of the BP Act. The said accused is hereby acquitted from the charges of offence punishable by section 3(1) (10) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act (the atrocity of "intentionally insults or intimidates with intent to humiliate a member of the SC or ST in any place within public view") and section 324, 504, 506(2) of the Indian Penal Code." The final order states, "Hence the accused was punished with 6 months simple imprisonment and fineand a further imprisonment for 15 days" but escapes the punishment under the Atrocities Act that could extend from six months to 5 years with fine and moreover be classified as a caste crime and not a simple crime.

There are several judgements related to serious offences under this Act, like rape, where the accused, though liable to be convicted, has been acquitted merely because the caste certificate was not placed on record before the court by the investigating officer i.e. the police.

Acquittal due to non-inclusion of caste certificate by the police
A pre-condition for the cognisance of an offence under the Atrocities Act is that the complainant must be a member of a Scheduled Caste or Scheduled Tribe and that the accused must be a member of an upper caste. While investigating the offence, a caste certificate issued to the complainant by a competent authority must be annexed with the complaint and produced by the police before court as supportive evidence. There are several judgements related to serious offences under this Act, like rape, where the accused, though liable to be convicted, has been acquitted merely because the caste certificate was not placed on record before the court by the investigating officer i.e. the police. In many such cases courts have passed severe strictures against the police for their deliberate and wilful negligence in not including a caste certificate thereby rendering the investigation of serious offences under this law handicapped and untenable.
 

Some observations made by the courts include a judgement of Amreli district, case of rape, Spl. Atrocity Case No. 46/03 , page 23, para 24: "The accused has been charged for the offence under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. To establish the offence, the primary responsibility to prove that the complainant-victim is the member of Scheduled Castes community rests with the prosecution. Though the charge sheet indicates that the victim is a member of Scheduled Castes and Scheduled Tribes, it is important to prove this fact. In the present case, the victim is a lady. The prosecution has examined her father, her mother and the investigating officer. However, at no stage the prosecution, by way of cogent evidence that the victim lady was a member of Scheduled Castes and/or Scheduled Tribes community, proves it… Under the provisions of section 3 and 3(1) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, it is incumbent on the part of prosecution to prove that the accused against whom the offence is alleged is not a member of Scheduled Castes or Scheduled Tribes. The prosecution produces no cogent and reliable evidence in this regard and therefore, in such circumstances, there is no other alternative except to acquit the accused of the charges under section 3(1) (11) (12) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (these are offences related to assault, use of force on a Dalit or Adivasi woman with intent to dishonour or outrage her modesty, being in a social/economic/political position to so exploit an SC or ST woman)…The accused Atul Devjibhai Chauhan is hereby held guilty and convicted for the offence punishable under sections 363 (punishment for kidnapping), 366 (kidnapping and forcing woman into marriage) 376 (punishment for rape) of the Indian Penal Code." Thus, the accused in the above case was convicted under the IPC but acquitted under the Atrocities Act due to police negligence.
 

Severe strictures against the police
The police have also been hauled up by the courts fo tampering with evidence in many cases under the Act. In these cases, courts have directed the government to take action against erring police officers for tampering with evidence and making false depositions on oath so as to save the upper caste accused. Apart from this, the courts have also directed the government to produce action taken reports against errant policemen within two months. To date, the government has not produced any such action taken report before the court. Instead of punishing the guilty officers, the government has honoured such officers with promotions!
 

Examples of such disregard of the Atrocities Act by the government of Gujarat include the order delivered in Mehsana district Spl. Atrocity Case No. 16/98, judgement dated January 1, 1999, para 10, wherein the judge states: "The behaviour of Shri Rathod and the method of investigation have been discussed. A copy of this judgement to be sent to the District Superintendent of Police, Mehsana district, with written direction that Shri Maluji Jituji Rathod, Police Sub Inspector, has not undertaken investigation seriously. Necessary enquiry to be made in this regard and its outcome to be reported to this court within two months." With this, the court forwarded a copy of the said judgement to the DSP, Mehsana, on January 8, 1999. By refusing to file an action taken report the Gujarat government has committed contempt of court.
 

In another judgement from the same district, Spl. Atrocity Case No. 924/2000, an order delivered in a bail application dated November 13, 2003, the court observed, "Now if we look at the complaint itself then accused abused him…by calling him "Dheda". In spite of this, the IO has not considered the provision of the Prevention of Atrocity on scheduled Castes/scheduled Tribes Act. This is a serious thing. It is an attempt to divert the investigation. A copy of this order be forwarded to DySp (SC/ST Cell) Mehsana for necessary action in the matter."
 

Similarly, the lower courts within Gujarat have passed serious remarks amounting to criticism against the police for criminal negligence in matters relating to the Atrocities Act. In Rajkot district, Spl. Atrocities Case No. 197/97 dated November 22, 1999, at para 89, page 38, the court states that "The Investigating Officer had gone to the village Umrali and had made enquiry with the witnesses and had made notes in this regard. The said notes were torn and destroyed (by him) and thus deprived the accused and this court from appreciating the important piece of evidence. This is very serious…. A very important piece of evidence has been torn, meaning thereby, it has been destroyed. This is a very serious act and speaks volumes for itself… The complainant Shri Girishbhai of village Bandra has stated the facts in detail in his complaint lodged in Taluka police station. However, the responsible police officer has not made any note regarding his complaint. No entry has been made. No explanation has been tendered in this regard….The important aspect is that all the three injured persons were admitted in the morning at 8.45 a.m. where they have been treated. The case of the prosecution is that the complaint of the complainant was received at 9.15 in the morning and thereafter he was sent to hospital. This fact speaks volumes of (police) negligence …in investigation."
 

In all the three abovementioned cases, theCouncil for Social Justice made written representations to the government demanding action taken reports and legal action against errant policemen under section 4 of the Atrocities Act. To date, in none of the cases has action been taken so far.

Another judgement documented in this extensive study relates to court strictures against the police for making a false statement to help the accused. A judgement delivered in Patan district, Spl. Atrocity Case No. 71/02, para 16, page 10 states, "It appears from the deposition made by the prosecution witness No. 9 in his cross-examination that the facts stated are either inadvertently erroneous or intentionally false statements have been made in order to help the accused. In the judgement rendered in Sessions Case No. 27/03, this court has noted that the police officers of this district are deliberately making false statements in cross-examination. This observation is endorsed by the aforesaid facts."

There are several judgements studied wherein the courts have passed severe strictures against the police and directed the government to take action against erring police officers for tampering with evidence, making false depositions on oath so as to save the upper caste accused and for showing gross negligence in carrying out investigations

Despite a demand made by the CSJ, supported by these judgements, that action be taken under section 4 of the Atrocities Act against these errant officials – including the DSP and other responsible police officers – no action has been taken even after several months.
 

Under rule 7 of the rules enacted under the Atrocities Act, not only is an officer of the rank of DySp required to investigate, which often does not happen (junior beat or police station officials are deputed, vitiating the rationale behind this provision), but the investigation has to be authorised by special orders/notification of the government. The rationale behind this rule is to ensure that persons of integrity, sensitivity and training handle offences under this Act.
 

This rule has been flouted in investigation after investigation, inviting severe strictures by the courts. In Jamnagar district, Spl. Atrocities Case No. 61/01, para 4 at page 26 of the order, the court details how neither the investigation by DySp Pavar or PSI Gadhvi were authorised by an order of the government to investigate the offence, concluding that, since … "No such order has been produced on record of the case. Probably these officers are not even aware that they are not authorised to carry out the investigation…Therefore, the entire investigation of the offence itself is illegal. Based on such illegal investigation, no accused can be linked with the offence or held guilty of offence."
 

Similarly, in Ahmedabad city, Spl. Atrocity Case No. 51/2000, paras 13 and 1 of the judgement at pages 12 and 15 respectively, the court has similarly held that not only has the DySp concerned not carried out the investigation but moreover that the investigation was not specifically notified to him by government order, thus ironically "the accused Ajmalbhai Velabhai Rabari is hereby acquitted and directed to be released….However the accused Ajmalbhai Velabhai Rabari is hereby held guilty under section 235(2) of Criminal Procedure Code for the offence punishable (under) sections 341, 452 and 504(2) of the Indian Penal Code." In the final order the accused was punished with "rigorous imprisonment for a period of 12 months for the offence under section 452 of the Indian Penal Code and further rigorous imprisonment for a period of six months for the offence under section 506(2) of the Indian Penal Code and further, payment of fine of Rs. 500 for the offence under section 341 of the Indian Penal Code. Upon failure to pay the fine, simple imprisonment for a period of 15 days is ordered."
 

Thereby, ironically, while this judgement holds the accused guilty of crimes under sections 341, IPC – punishment for wrongful restraint; section 452, IPC – house trespass after preparation for hurt, assault or wrongful restraint; section 504(2), IPC – intentional insult with intent to provoke breach of peace, but significantly acquits him of offences under section 3(1)(5) of the Atrocities Act which offences, if proved against him, would make him guilty of not merely preparing for and committing crimes of hurt, assault, wrongful restraint and intentional insult but doing so against a member of the SC or ST, sections of the Indian population who have been dealt systemic denials for centuries.
 

Those accused of serious offences like murder and rape, which may attract convictions under criminal law, are being acquitted by courts under the Atrocities Act on flimsy and technical grounds such as the fact that the investigation was carried out in violation of statutory provisions, i.e. was conducted by an officer below the rank of DySp or that the prosecution has not produced the caste certificates of victims. Shockingly, though the offence may otherwise be proved, it is treated as not established because of the absence of such technical provisions being met by the police.
 

In some judgements delivered, the courts have made critical observations on the negligence of the police. In Kheda district, Spl. Atrocity Case No. 39/01 dated May 7, 2004, para 32 at page 23, the court has observed, that while "the accused Khant Kanabhai, resident of Sompura Jilodi, Taluka Virpur is held for the offence under section 323 (punishment for voluntarily causing hurt) of the Indian Penal Code and under section 235(2) of the Code of Criminal Procedure, the accused is directed to undergo rigorous imprisonment for a period of one year and fine of Rs.1000 and upon failure to pay the fine further imprisonment for a period of three months and for the offence under section 504 of the Indian Penal Code, rigorous imprisonment for a period of one year and fine of Rs.1000 and upon failure to pay the fine further imprisonment for a period of three months… the accused is acquitted for the charges under section 3(1)(10) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act."
 

From the above judgement it is clearly established that though the offence under the Atrocities Act is supported by evidence, i.e. though the offence is proved, the court has no alternative but to acquit the accused merely because of negligence on the part of the police authority. Thus the provision of the Act is violated. This fact has been clearly noted by the court. With this judgement also the Council for Social Justice made a representation to the government demanding action against responsible officers under section 4 of the Act but to date the government has taken no action.
 

Serious negligence by public prosecutors

The Atrocities Act provides for appointment of special public prosecutors to try cases under the Atrocities Act but the often hostile role played by those appointed by state governments to prosecute cases under this law destroys the case. It has been found that not only do cases often not reach the stage of trial for several years but when the victim/complainant enters the witness box to depose, he does not know who the prosecutor is. The CSJ has studied several judgements in which the courts have passed severe strictures against deliberate attempts by the special public prosecutors to avoid implementing the special provisions under the Act thereby vitiating the prosecution case itself.
 

Decisions and guidelines issued by the higher judiciary, including the Supreme Court and various high courts, in cases of atrocity under the Atrocities Act, establish that the prosecution needs to prove that the complainant belongs to a Scheduled Caste or Scheduled Tribe and that the accused does not belong to a Scheduled Caste or Scheduled Tribe and that the incident involved is a direct result of caste discrimination resulting in caste-based crimes. All this needs to be established in the special courts by the special public prosecutors through a thorough examination of the accused. The PP is required to produce a caste certificate for the complainant in court, accompanied by the recognised list of Scheduled Castes or Scheduled Tribes, and point out to the court that the accused does not figure in the list of Scheduled Castes or Scheduled Tribes and thus prove that the accused belongs to the upper caste.
 

Normally, victim complainants hailing from the SCs or STs who approach the Court are from poor and illiterate sections of the rural population, unaided by the PP or the State. Their caste is established by the PP, as is the caste crime itself. An utter lack of commitment to this legislation and lack of political will by state governments to prosecute the atrocities committed under this Act have rendered this legislation meaningless. In a judgement delivered in Patan district, Spl. Atrocities Case No. 375/02, para 10 at page 5, the judges state, "It is held by the Supreme Court in the judgement reported in 2000-SCC-722 that in the cases of offence under Atrocities Act, merely because the victim belonged to the Scheduled Caste and the accused belonged to the class other than the Scheduled Caste, the provisions of the Act can not be made applicable. It must however be proved by the complainant that the victim belonged to the Scheduled Caste and that the incident took place because of the reason that the victim belonged to the Scheduled Caste. If anything is done by way of discrimination or unsociability against the people belonging to the Scheduled Caste, law prohibits it. In view of this provision, in the instant case, it does not appear that the alleged incident took place merely because the complainant belonged to the Scheduled Caste."
 

Incidentally, the Scheduled Caste Welfare department of the state government, created with the objective of providing social justice to Dalits and Adivasis, has glaring vacancies in key posts making the implementation of social justice measures even more difficult. There are over 300 vacancies in this state department, from the rank of district officer downwards in Gujarat alone.

Archived from Communalism Combat, March  2005 Year 11  No.106, Cover Story 2

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Descent and work-based discrimination continues to circumscribe Dalits’ access to and ownership of livelihood resources, occupational mobility and opportunities for socio-economic development, relegating them to among the poorest of the poor across the country. And while Dalits are becoming increasingly aware of and asserting their fundamental rights – to justice, non-discrimination and basic human dignity – a corresponding backlash is taking place in terms of the increasing number of caste-based atrocities perpetrated by the dominant castes.
 

Judgements Pronounced By Six Special Courts In Andhra Pradesh During 2002-02

Source: Study on Special courts in AP (Forthcoming), Sakshi

Most common alleged causes for atrocities:

The emerging trend is that increasingly atrocities against Dalits are related to land, water, wages and other livelihood issues. Most of the atrocities are committed when Dalits attempted to assert their right to,

• Legal remedies
• Access to resources (land, water, livelihood)
• Choice of occupation
• Participation in the cultural life of the community
• Vote
• Self-dignity
• Protest against victimisation of Dalits to satisfy superstitions beliefs of dominant castes (witchcraft, human sacrifice).

A detailed study undertaken by SAKSHI, Andhra Pradesh, reveals several grave issues related to the manner in which the judiciary itself looks at the whole issue of caste crimes and finally pronounces judgements under the Act.

If a Dalit victim is lucky enough to escape or overcome these hurdles, to be one of the few cases that make it to the courts —

 Offence-wise Judgements of High Courts on SC/ST (POA) Act 

i. Cases pending in lower courts

• Andhra Pradesh boasts of sessions courts in all districts entrusted with the speedy trial of atrocity cases falling under the SC/ST (POA) Act. And yet, the volume of atrocity cases does not match the judgement outcomes flowing from these courts of justice.
• By 2003 there were 365 cases pending before special courts of four AP districts. Given the increasing trend in the violations one can imagine the volume of cases pending before lower courts.

ii. Convictions in lower courts

• As per the study of Sakshi 287 cases were acquitted out of 297 cases in which judgements were pronounced in lower courts during 2002-04. There were convictions in only 4.7 per cent of the cases.
• The conviction rate was relatively much higher in the cases in which the trial was completed and judgement was pronounced in less than a year (8.7 %) and it declined with increases in the duration of the trial.

The reasons for acquittals are follows:

• Not abused by caste name at the time of offence
• Evidence not corroborated
• Victim did not identify the accused
• Offences committed not on the ground of SC/ST
• Investigation not done by competent authority
• Report not given by the victim
• Caste was not mentioned complaint
• Medical evidence not produced
• Victim died during the trial
• Victim did not belong to SC/ST.

iii. Convictions in high courts

The same trend appears across the country when viewing high court judgements on the SC/ST (POA) Act across the country:

• Of the 78 high court judgements Sakshi analysed, the major offences being that of rape, attack or caste abuse, 65.4 percent of cases saw judgements that went against Dalits. Particularly where the prescribed maximum punishment was for serious offences incurring over 10 years imprisonment, 75 percent of the cases were decided against Dalits.
• It is when one analyses the grounds for the judgements that judicial misinterpretation of the spirit of the SC/ST (POA) Act emerges. While no court has as yet upheld the fallacious argument that the Act is ultra vires or contravenes fundamental rights under the Constitution, five major grounds are utilised to justify judgements against Dalits :
• Not granting bail violates Article 21 of the Constitution: Judicial opinion as to the validity of sec. 18 SC/ST (POA) Act seems to be split, with seven cases in favour and nine against granting of bail. What is the key here is the legislative purpose for inclusion of such a provision, in recognition of the nature of caste-based atrocities which will often provoke retribution against Dalits where atrocity cases are filed. Hence, in no circumstances where a prima facie case exists should a person charged with offences under the Act be allowed out on bail. By ignoring this factor and granting bail in favour of the dominant caste accused, the courts are wittingly or unwittingly exposing Dalit victims to further threats, harassment or violence.
• Investigation not done by competent authority: Nine out of the 11 cases where appeals were filed citing technical fault in that the investigation of atrocities cases were not done by competent authorities, namely the DSP or higher ranking officer as per Rule 7 SC/ST (POA) Rules, ended in favour of the dominant caste accused being acquitted of the charges. Hence, prima facie cases of atrocities are being dismissed unpunished on the grounds of mere technicalities, which defeat the very purpose of the Act. While the prescription of DSP or higher ranking officer was stipulated to ensure proper and supposedly more fair investigation of atrocity cases, where by mistake or design a lower ranking officer investigates an atrocity case, it defeats the purpose of such protective legislation to allow the accused to escape punishment on a mere technicality. Moreover, it amounts to punishing the Dalit victim for a procedural error which is in fact the error of the government machinery.
• Special court has no jurisdiction to take cognisance of SC/ST cases: Again, it defeats the very purpose of the Act to grant the Special Courts no powers to directly take cognisance of SC/ST cases. The whole purpose of this provision is to provide for speedy trials of atrocity cases to bring justice to Dalit and Adivasi victims. However, by stating that all cases have to go through a committal process from a magistrate to the special courts, not only is the overburdened regular court system being stretched with this unnecessary responsibility, but the efficacy and pace of special courts in disposing of atrocity cases is slowed down. The fact that 12 out of 17 cases where this point was mooted resulted in the cases being referred to the magistrates for committal is evidence enough of unnecessary delays being imposed in the trial of atrocity cases.
• Crime not committed on the ground of being SC/ST: One of the greatest fallacies in interpreting the SC/ST (POA) Act lies in the over-emphasis on establishing that the atrocity took place on the ground that the victim was a SC/ST. What judges overlook in this process is that the legislature has already clarified that the term "atrocity" denotes an offence under the Indian Penal Code committed against SCs and STs by persons belonging to communities other than SCs or STs. The necessary mens rea is therefore established with the offence itself and the communities to which both victim and perpetrator respectively belong. It is not for the the court attempting to delve into the very mind of the accused and discern to what extent the atrocity was committed solely because the victim was a SC/ST.
• Appreciation of the SC/ST (POA) Act by lower courts: The most common ground for high court judgements was regarding appreciation of the Act by lower courts, with 27 cases decided on this ground, 20 or 74.1 percent of which resulted in judgements in favour of the dominant caste accused.

 Analysis of Grounds for High Court Judgements on SC/ST (POA) Act

Modification of Judgement means either an order for reinvestigation, a compromise or a reduction of sentence.
Source: Dalit Human Right Monitor 2000-03, Sakshi

Archived from Communalism Combat, March  2005 Year 11  No.106, Cover Story 3

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