Dilution of SC and ST (Prevention of Atrocities) Act??
TUSSLE BETWEEN HIGHEST COURT OF LAND
AND
GOVERNMENT OF INDIA
Who is considered as a Scheduled Caste and Scheduled Tribe?
As per the fetched report of Ministry of Personnel, Public Grievances and Pensions (PERSMIN) any person listed under lists of Scheduled Castes and Scheduled Tribes as per Article 341 and 342 of the Constitution of India will be entitled to belong to these communities. The Article 341 and 342 are read as:
ARTICLE 341 (1): The President [may with respect to any State [or Union Territory], and where it is a State after consultation with the Governor thereof,] by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State [or Union Territory, as the case may be].
(2): Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification under the said clause shall not be varied by any subsequent notification.
ARTICLE 342 (1): The President [may with respect to any State [or Union Territory], and where it is a State after consultation with the Governor thereof,] by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State [or Union Territory, as the case may be].
2): Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification under the said clause shall not be varied by any subsequent notification.
These communities are often decided on the basis of economic backwardness and social oppression so that their rights can be safeguarded as per the Constitution of India. To concretize this motive of safeguarding the rights of the oppressed communities, Government of India moved a step forward and enacted Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 when the Prime Minister of country was Mr. Vishwanath Pratap Singh
What is Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
Even after Independence, there were many incidents reported throughout the country about the physical, mental and social harassment of these communities enlisted under the above-mentioned lists, they were still treated as untouchables in some parts of India, these harassments were often violent in nature and also were done by the Public officials, though the culprits were tried under the sections of Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), still government enacted a separate act to fast-track resolution, tried under stringent provisions, setting up special courts, hiring of special prosecutors etc. which will further safeguard the vulnerable communities. The detailed list of punishments for offences of atrocities can be seen on the link inserted in the heading.
Whereas, Section 4 of this act reads as:
"Punishment for neglect of duties - Whoever, being a public servant but not being a member of a Scheduled Caste or Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year".
This provision is the reason for current unrest and debate in the country as since the date of its enactment public officials are apprehensive about the false complaints by their colleagues or sub-ordinates which will eventually land them in a hot soup and they could even lose their job. Things worsen when some people actually started filing false cases under this act against their superiors, colleagues etc. and even if they doesn't file they intimidate the officers of the non-members of SC and ST community that they will file the case, which also make the officers apprehensive. Where, at a large picture this provision was inserted to curb victimization of vulnerable communities by the public officials, on the other hand some of these false cases and intimidation were worry some.
What Supreme Court said in its judgement?
While hearing Criminal Appeal No. 416 of 2018, Dr. Subhash Kashinath Mahajan vs State of Maharashtra and Anr. the bench comprising Hon'ble Justice Adarsh Kumar Goel and Hon'ble Justice Uday Umesh Lalit came to a conclusion that some provisions of the Scheduled Castes and Scheduled (Prevention of Atrocities) Act 1989 are mis-used especially some of the public officers gets on receiving end wrongly due to those provisions, to this Supreme Court read:
"It was submitted that in the context of the Atrocities Act, in the absence of tangible material to support a version, to prevent the exercise of arbitrary power of arrest, a preliminary enquiry may be made mandatory. Reasons should be required to be recorded that information was credible and arrest was necessary. In the case of public servant, approval of disciplinary authority should be obtained and in other cases approval of Superintendent of Police should be necessary. While granting such permission, based on a preliminary enquiry, the authority granting permission should be satisfied about the credibility of the information and also about the need for arrest. If an arrest is effected, while granting remand, the Magistrate must pass a speaking order as to correctness or otherwise of the reasons for which arrest is effected. These requirements will enforce right of concerned citizens under Article 14 and 21 without in any manner affecting genuine objects of the Act".Prior to this judgement of Supreme Court of India, various High Courts viz. Madras High Court, Gujarat High Court and Bombay High Court has also observed the mis-use of the provisions under section 3 (1) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
What happened next?
On April 2, 2018; 12 days after this judgement, members reportedly belonging to SC and ST communities called for Nationwide Shut-Down or "Bharat Bandh", after this call, Ministry of Home Affairs along with the consultation of State Governments beefed up the security majorly where the population of SC and ST communities are large in no. such as Punjab, Himachal Pradesh, Jharkhand, Bihar, Odisha etc. even then incidents of violence were reported in various parts of India and few lives were also lost.
After this again Bharat Bandh was called on April 10, 2018 by the Anti-Reservation groups, while the violence was less as compared to earlier Bharat Bandh but still some loss was reported from Bihar and other regions.
LEGISLATURE vs JUDICIARY
Struck by the violence twice within a week, Centre launched a scathing on Judiciary on April 12, 2018 when they submitted a written note in Supreme Court.
According to The Hindu:
SC/ST Act: Your Judgement caused disharmony, great damage to the country, Centre tells Supreme Court
"The Confusion created by this judgement may have to be corrected by reviewing the judgement and recalling the directions issued by the court," - the centre submitted in a written note.
The Government also dismissed the reasoning given by the Supreme Court that it has the power of declare the law when none exists.
The Centre said that the Supreme Court is bound to uphold the written Constitution, which divides power among the Government, the Legislature and the Judiciary. Each of the three arms of governance has to remain within its own terrain. The judgement is nothing but judicial legislation. It said the Supreme Court, through its March 20 verdict, has encroached upon area reserved for the Parliament and laid down a law contrary to a statute passed by Parliament. "The entire judgement is vitiated," the government contended.
It said the court's guidelines like banning immediate arrest and ordering preliminary enquiry amounted to an amendment of the Atrocities Act and not just filling up of gaps.
Earlier, a bench of Justices A.K. Goel and U.U.Lalit refused to suspend their judgement, observing that the March 20 verdict was meant to protect innocents from arbitrary arrest and not an affront to Dalit rights.
"An innocent should not be punished. There should not be terror in the society. We do not want any member of the SC/ST to be deprived of his rights. We only want an innocent not to be punished," Justice Goel observed.
Justice Goel also asserted the fact that the judgement, in fact, fortified the Dalit Protection law.
MAY 3, 2018 -
The Attorney General to the Government of India Mr. K.K.Venugopal argued that the judgement passed by Supreme Court is like a judicial activism and also reasoned that "you cannot declare a law in this country when it contradicts the existing law"
He said in the judgement gives sanctioning power over arrest to ordinary government servants. These government officers can now decide whether their subordinates should be arrested or not on a complaint filed by Dalits. He also said that sanctioning powers lies with legislature and not the judiciary, with this provision, police officer can deny to register FIR on the grounds of preliminary enquiry.
To this the Justices clarified that, preliminary enquiry is not needful in every particular case and should be done in particular cases where investigating officer feels or finds any malafide intentions to the complainant. Further he added, the judgement is merely a filter against arrest of a person too readily and mechanically. With this he made clear that court's stance on the judgement would not change and further debate on this topic will be done later at the end of this month.
This case yet again manifested the Judiciary and Legislature divide. Where on one hand government is saying the act has been diluted by the court then on the other hand Court says it has been fortified not only for the public servants but also for the Dalit Community members too.
While Supreme Court also said that the violence occurred was not ignited by the Judgement of the court and the court cannot be blamed for it.
While all this was happening; opposition got the chance to circle Government on the Dalits issues and safeguarding their rights, they said that government has diluted the law meant for the Protection of Vulnerable communities against the atrocities of people from other communities.
We will have to wait for further stance of government over this judgement and how will Supreme Court react on next hearing.
JAI HIND !!
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