SC refuses to stay amendments to SC/ST Act

What to know?

• The Supreme Court once again refused to stay amendments to the SC/ST Act that restored the no anticipatory bail provision and said all matters including the Centre’s review petition will be heard on February 19.
• A bench headed by Justice U U Lalit said the issue requires hearing in detail and it will be appropriate if all matters are heard on February 19.
• The top court had earlier refused to stay the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 which restored the provision that no anticipatory bail be granted to the accused.
• Parliament on August 9 last year had passed a bill to overturn the apex court order relating to certain safeguards against arrest under the SC and ST law.
• On March 20, 2018, the apex court had taken note of the rampant misuse of the stringent SC/ST Act against government servants and private individuals and said there would be no immediate arrest on any complaint filed under the law.
• The top court had earlier said that the new amendments to the SC/ST law passed by Parliament cannot be stayed and had sought the Centre’s response on pleas challenging the provisions.
• The please have sought declaration of the new amendments to the Schedule Castes and Schedules Tribes (Prevention of Atrocities) Act as ultra vires.
• The amendments rule out any provision for anticipatory bail for a person accused of atrocities against SC/STs, not with standing any court order.
• They provide that no preliminary enquiry will be required for registering a criminal case and an arrest under this law would not be subject to any approval.
• The court was hearing the please alleging that two Houses of Parliament had “arbitrarily” decided to amend the law and restored the previous provisions in such a manner so that an innocent cannot avail the right of anticipatory bail.

 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

• The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes. The Act is popularly known as the SC/ST Act, POA, the Prevention of Atrocities Act, or simply the Atrocities Act.
• It was enacted when the provisions of the existing laws (such as the Protection of Civil Rights Act 1955 and Indian Penal Code) were found to be inadequate to check these crimes (defined as ‘atrocities’ in the Act). Recognising the continuing gross indignities and offences against Scheduled Castes and Tribes, the Parliament passed the ‘Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act 1989.
• Thus objectives of the Act clearly emphasise the intention of the government to deliver justice to these communities through proactive efforts to enable them to live in society with dignity and self-esteem and without fear or violence or suppression from the dominant castes. The practice of untouchability, in its overt and covert form was made a cognizable and non compoundable offence, and strict punishment is provided for any such offence.
• The SCs and STs (Prevention of Atrocities) Act, 1989 with stringent provisions (which extends to whole of India except the State of Jammu & Kashmir) was enacted on 9 September 1989. Section 23(1) of the Act authorises the Central Government to frame rules for carrying out the purpose of the Act. Drawing power from this section, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules of 1995 were framed. The rules for the Act were notified on 31 March 1995.
• The purpose of the Act was to help the social inclusion of Dalits into Indian society, but the Act has failed to live up to its expectations admitted by the Union Minister for Home Affairs in parliament on 30 August 2010.
• A number of cases of misuse of this Act had been reported from different parts of the country as mentioned in the Supreme Court verdict of 20 March 2018. In this verdict, the Supreme Court of India banned immediate arrest of a person accused of insulting or injuring a Scheduled Caste/Scheduled Tribe member to protect innocents from arbitrary arrest.
• In August, 2018, the parliament of India passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018, to bypass the ruling of the Supreme Court of India laying down procedures for arrests under the Act.
• The bill inserts section 18A (1) (a) in the 1989 Act, that says a “preliminary enquiry shall not be required for registration of an FIR against any person.” The Bill also inserts Section 18A (1) (b), which says “the investigating officer shall not require approval for the arrest, if necessary, of any person against whom an accusation of having committed an offence under this Act has been made and no procedure, other than that provided under this Act or the Code, shall apply.”
• The act violates “basic principles of liberty and accountability” after the amendments. According to a plea filed in the Supreme Court, “the Supreme Court cannot remain a mute spectator to the abuse of law as we are living in a civilised society and there were many growing instances of misuse of this act.
• The new law could be used to harass citizens by arresting them on the basis of mere allegations. The amendment excludes Section 438 of CrPC, violates constitutional mandate under Articles 14 and 21.” The amendments rule out any provision for anticipatory bail for a person accused of atrocities against SC/STs, notwithstanding any court order.

Salient features

• The provisions of SC/ST Act and Rules can be divided into three different categories, covering a variety of issues related to atrocities against SC/ST people and their position in society.
• The first category contains provisions of criminal law. It establishes criminal liability for a number of specifically defined atrocities, and extends the scope of certain categories of penalizations given in the Indian Penal Code (IPC).
• The second category contains provisions for relief and compensation for victims of atrocities.
• The third category contains provisions that establish special authorities for the implementation and monitoring of the Act.

Defining atrocity

• The term ‘atrocity’ was not defined until this Act was passed by the Parliament in 1989.
• In legal parlance, the Act understands the term to mean an offence punishable under sections 3(1) and 3(2).
• In specific terms: Atrocity is “an expression commonly used to refer to crimes against Scheduled Castes (SCs) and Scheduled Tribes (STs) in India”.
• It “denotes the quality of being shockingly cruel and inhumane, whereas the term ‘crime’ relates to an act punishable by law”.
• It implies “any offence under the Indian Penal Code (IPC) committed against SCs by non-SC persons, or against STs by non-ST persons. Caste consideration as a motive is not necessary to make such an offence in case of atrocity”.
• It signifies “crimes which have ingredients of infliction of suffering in one form or the other that should be included for reporting”. This is based on the assumption that “where the victims of crime are members of Scheduled Castes and the offenders do not belong to Scheduled Castes caste considerations are really the root cause of the crime, even though caste considerations may not be the vivid and minimum motive for the crime”.
• The Act lists 22 offences relating to various patterns of behaviours inflicting criminal offences for shattering the self-respect and esteem of SCs and STs, denial of economic, democratic and social rights, discrimination, exploitation and abuse of the legal process, etc.
• Section 3 of the Act lists the criminal offences and the punishments. It contains:

1. 19 offences in their own right (Section 3(1) contains 15 subsections with an equal number of offences. Section 3(2) contains four subsections with offences)

2. two derived offences (sections 3(2)(vi) and 3(2)(vii)). The derived offences are based on the offences given in the SC/ST Act. They only come in the picture provided that another offence under the SC/ST Act has been committed.

3. one subsection that increases the punishment for certain offences under the IPC (Section 3(2)(v)).

• These protections can be broadly divided into protection from

1. social disabilities (denial of access to certain places and to use customary passage and to get water from any spring, reservoir or any other source).

2. personal atrocities (forceful drinking or eating of inedible or obnoxious substance, against stripping, outrage of modesty, sexual exploitation, injury or annoyance).

3. atrocities affecting properties (land, residential premises, existing properties).

4. malicious prosecution.

5. political disabilities.

6. economic exploitation.

• The common denominator of the offences is that criminal liability can only be established if the offence is committed by a person who is nota member of a Scheduled Caste or a Scheduled Tribe against a person who belongs to a Scheduled Caste or a Scheduled Tribe.

(Judiciary, Polity)(The hindu, wiki)

Pic courtesy:BTVi