SC/ST (Prevention of Atrocities) Act: Recent SC Ruling and Implementation Issues

In December 2016, Supreme Court had directed the centre and state governments to strictly enforce the provisions of SC/ST (Prevention of atrocities) Law to attain the constitutional goal of equality for all citizens.

SC Observations and Ruling

The Supreme Court judgement had come on a petition filed by an NGO called National Campaign on Dalit Human Rights. The petition was that government had aggrieved the SCs and STs by non-implementation of the provisions of the act and sought directions from court to government {note that the writ here is of mandamus nature}  for setting up special officers, nodal officers and protection cell as required under the Act. Key points from the court’s observations and judgements are as follows:

• The indifferent attitude of the authorities concerned with the implementation of the act has prevented from achieving he laudable object of the law.
• Court directed the central and state governments to strictly enforce the provisions of the act.
• The court also directed the national commissions (of SCs and STs) to discharge their duties to protect the SCs and STs.
• The court requested the National Legal Services Authorityto formulate appropriate schemes to spread awareness and provide free legal aid to members of SCs and STs.

Questions for Examination

The important questions related to this update for your examinations are as follows:

1. Who are SCs and STs?
2. Why are the tribals in India referred to as ‘the Scheduled Tribes’? {GS Mains-2016}
3. What are the constitutional provisions for their protection? {GS Mains- 2016}
4. What are the salient features of the SCs/STs (Prevention of atrocities) Act, 1989.
5. What are the changes in this law made by recent amendment.
6. Do a critical analysis of the act and its implementation.

Who are SCs and STs?

SCs and STs have NOT been defined in the Indian Constitution. The power to list of these castes and tribes is vested in the President under article 341 and 342 of the constitution. Thus, those castes and tribes are scheduled, which are so notified by the president. If the list is related to a state, then also, the power is with president but listing can be done after consultation with the governor of the state. Once a presidential notification is out, any inclusion or exclusion in that list is done only by making a law in the parliament.

Why are the tribals in India referred to as ‘the Scheduled Tribes’? {GS Mains-2016}

Using the powers vested by Article 342 of the constitution, the President of India made an Order in 1950 which is called “Constitution (Scheduled Tribes) Order, 1950”. There are total 22 schedules appended to this order with list of the names of the tribes of the states. These tribes, whose names are included in the schedule of the Constitution (Scheduled Tribes) Order, 1950 are called Scheduled Tribes. Since most of the tribal groups of India were included in this list, they are called Scheduled Tribes.

What are the constitutional provisions for their protection? {GS Mains- 2016}

The constitutional provisions can be summarized as follows:

• Reservation of seats in Lok Sabha, State Legislative Assemblies, Gram Panchayats, Municipalities and other local bodies such as Bodoland Territorial Council (Only ST). {Note that there is no reservation in Rajya Sabha and MLCs for SCs and STs}
• Reservation in Government Jobs and Promotions as per Article 15(4) and 15(5) under the doctrine of reasonable classification and “positive discrimination”.
• Abolition of untouchability under article 17
• Direction to the state under DPSP article 46 for protection and promotion of their educational and economic interests.
• Provision of a Minister of Tribal Welfare {who is also in-charge of welfare of SCs and BCs} in Bihar, MP and Odisha under Article 164.
• Grants-in-aid to the states under article 275 for promotion and welfare of STs.
• Relaxation in qualifying marks in various examinations.
• Provisions of National Commission for SCs (Article 338) and National Commission of STs (Article 338-A).

What are the salient features of the SCs/STs (Prevention of atrocities) Act, 1989.

This is a comprehensive law [read here on wikipedia] which not only defines atrocities against SCs and STs but also make several rules, regulations etc. for proper protection of these vulnerable classes. The most salient features are as follows:

Offender and Victim

Under this law, offender is a person who does not belong to SCs and STs, and commits crimes against the members of SC and STs. A victim is a member of these communities.

Offenses

The law has defined a list of various offenses against the SCs and STs including – forcing to eat or drink an offensive / inedible substance; causing annoyance / injury by excreta or waste matter dumping in his premises or neighbourhood; parading naked or face / body painted; wrongfully depriving of cultivation of his / her land; forcing to do beggary or work as bonded labour; subjecting to false legal proceedings; deliberating insulting in public view; sexually assaulting a woman; depriving of right to clean drinking water; forcing to leave house or village; falsely implicating in criminal case; gives false evidence against; etc.

Cognizable Offense

The offences against the SCs and STs are cognizable. This implies that the police can arrest the offender without any warrant and start investigation without taking any court orders.

Punishments

The law has prescribed minimum punishment of 6 months and maximum punishment of five years with fine. The minimum and maximum punishment can go up also depending on type of offense and subsequent conviction.

Duty of Public Officials

Act has provision mentioning that public servant (non SC/ST) neglecting his duties related to SCs/STs will be punished with imprisonment for a term of 6 months to 1 year.

Special Courts

The act directs the states to constitute special courts for hearing cases on atrocities against scheduled caste and scheduled tribes. Each state government is required to, with the concurrence of the Chief Justice of the High Court, by notification in the official gazette, establish in each district a Court of Session to be a Special Court exclusively to try the offences under this Act.

Onus on Central Government to frame rules

The act authorizes the Central Government to frame rules for carrying out the purpose of the Act.

Rehabilitation

The acts speaks of various rehabilitation measures for the victims.

What are the changes in this law made by recent amendment.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 has made some changes into the parent law. These are as follows:

• It has added new offenses against the SCs and STs, including Garlanding SCs and STs with footwear (ii) Compelling to do manual scavenging or dispose carry animal or human carcasses. (iii) Abusing SCs/STs in public by caste name (iv) Disrespecting any deceased SCs/STs person held in high esteem or attempting to promote feelings of ill-will against SCs/STs (iv) Threatening or imposing economic and social boycott. (v) impending in voting activity.
• It has also added few other activities under the sexual exploitation of SC/ST women including – use of sexually loaded words and gestures, touching intentionally, dedicating an SC/ST women as a devadasi
• Preventing them of using common / public properties, temples etc.
• The amendment act has added duties of the public servants which include (1) to register FIR (2) read out the complaint of the victim before giving him a copy.
• The amendment has added a new chapter dealing with the rights of victims and witnesses. It mentions that it shall be the duty of the state to make arrangements for the protection of victims and their dependents and the witnesses. It also mentions that state should specify a scheme to ensure the implementation of rights of victims and witnesses.

Do a critical analysis of the act and its implementation.

We have already studied, how the SC has rebuked the governments for shoddy implementation. This act has many teeth but it seldom bites. It is a powerful and precise weapon but only on paper and has failed in implementation. It has failed at the lowest level of police and bureaucracy. In most cases, FIR is not registered easily due to bias of the upper caste policemen because the law has severe punishment and imprisonments.