On 20th November 2017, a bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit, while hearing the case Dr Subhash Kashinath Mahajan v State of Maharashtra, framed the following question for consideration: Whether there can be procedural safeguards so that provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 are not abused for extraneous considerations?
The facts of the case being heard by the bench are that certain adverse remarks were recorded against one BK Gaikwad by the principal of a college where Gaikwad was employed. Gaikwad had sought sanction for his prosecution under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 ("SC/ST Act") and related offences. Dr. Subhash Mahajan, while dealing the said matter, declined the sanction. Thereafter, Gaikwad filed another complaint against the petitioner under the SC/ST Act. The division bench of the Bombay High Court rejected the plea for the quashing of the said complaint. The high court held: "We do not think that we should thwart the enforcement or implementation of the Atrocities Act merely because there is a possibility of the law being abused. That way, every law or every provision is capable of being abused."
The division bench at the apex court is also considering the larger question as to whether any unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity and if such allegation is falsely made what is protection available against such abuse.
Any attempt to provide strict procedural safeguards against SC/ST Act will result in the dilution of the Act. In this piece, I will be arguing why the Supreme Court of India must not make any attempt to dilute the provisions of the SC/ST Act.
The constitutional aspiration of achievement of an egalitarian society based on liberty, equality, fraternity and dignity is reflected in the entire 'event' of the Constituent Assembly debates. This aspiration arose of the "historical struggles" and gave "shape to the new regime". The Assembly discussed and debated about caste-based discrimination and untouchability and finally came to the conclusion that "untouchability is abolished" and "its practice in any form is forbidden" and "punishable in accordance with law" (Article 17). It was a step by the constitution-makes to undo the historical injustice done to the untouchables. Justice DY Chandrachud puts it aptly in his judgment in Justice KS Puttaswamy v Union of India (2017): "The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere". Social justice was made apparent in the entire constitutional scheme. In the words of renowned constitutional expert HM Seervai: "Our founding fathers not only put Liberty and Equality in the Preamble to our Constitution but gave them practical effect in Article 17 which abolished 'Untouchability', and in Article 14 which provides that 'the State shall not deny to any person equality before the law and equal protections of laws in the territory of India'" (Constitutional Law of India p 434).
The members of the Assembly, however, did not define what constitutes untouchability. One of the possible interpretations, as suggested by Marc Galanter in the article in EPW, "Untouchability and the Law" (1969), could be that the meaning of untouchability is to be determined by reference, to those who have traditionally been considered "untouchables". The reality of daily struggles and experiences faced by the untouchables (the Scheduled Castes/Dalits) have been discussed by Sitaram Kumbhar in his work in Economic and Political Weekly (27 August 2016): "Despite modernisation of Indian economy, caste affects the productive lives of low caste groups and structurally limits their mobility in many areas of life".
Vision behind SC/ST Act
To fulfil the constitutional objective of eradicating the discriminatory practices against the Scheduled Castes and Scheduled Tribes embedded in the caste system, the Parliament initially passed the Untouchability (Offences) Act, 1955. The Act was renamed, in 1976, as the Protection of Civil Rights (PCR) Act, 1955. The PCR turned out to be ineffective to reduce the atrocities on Scheduled Castes due to low punishments ranging between 1 month and up to six months imprisonment. Consequently, the SC/ST Act, 1989 was passed by the Parliament. The Statement of Objects and Reasons of the SC/ST Act stated: "Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment… A special legislation to check and deter crimes against them committed by the non-schedule Castes and non-Scheduled tribes has, therefore, become necessary". The Act lists several "criminal offences relating to various patterns of behavior inflicting for shattering the self-respect and esteem of the persons belonging to SCs & STs, denial of economic, democratic and social rights, discrimination, exploitation and abuse of the legal process etc". (See Annual Report 2015-16, National Commission for Scheduled Castes). Thus, the provisions of the SC/ST are an extension of our constitutional scheme. The original SC/ST Act 1989 was later considered to be not stringent enough as many areas/offenses were undefined, as a result of which the Act was amended in 2016 to make it more effective in tackling the caste-based atrocities.
The Myth of Misuse of the SC/ST Act
Discrimination in India has various forms. Statistics reflect that there are very few SC/ST officers in top echelons. Any officer in government service belonging to a deprived and backward section of the community would demonstrate how he/she has to suffer insult and harassment on a day to day basis. A fair treatment expected from highly-placed officials is often not extended to them. Sometimes, the annual confidential records have been spoiled deliberately. There has not been a single Dalit Cabinet Secretary till date. However, these incidents are never a focus of redressal.
In a survey by the National Council of Applied Economic Research (NCAER), Delhi and the University of Maryland, it was found that one in four Indians practises untouchability. A total of 40,801 incidents of crime/atrocities against SCs were recorded for the year 2016. The 2017 report released by the National Crime Records Bureau (NCRB) states that the conviction rate under SC/ST Act, 1989 is mere 2.4%. The figure shows the poor implementation of the law. In its report titled "Hidden Apartheid: Caste Discrimination against India's 'Untouchables'", Human Rights Watch, after analysing various statistics, came to following finding:
"Dalits are frequently the victims of discriminatory treatment in the administration of justice. Prosecutors and judges fail to vigorously and faithfully pursue complaints brought by Dalits, which is evidenced by the high rate of acquittals in such cases. Dalit women suffer particularly as a result of the deficient administration of justice-rape cases are not prosecuted in good faith and Dalit women suffer both caste and gender discrimination in the courtrooms … The failure of police to register or properly register crimes against Dalits … is a key way in which Dalits' right to equal treatment before organs administering justice is compromised at the outset.
A study in Economic & Political Weekly (11 October 2014) titled "'Final Reports' under Sec-498A and the SC/ST Atrocities Act" indicates that sometimes cases, amounting to 50%, under the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not go to court and are closed by the police. The study also highlights the "caste bias among the investigation officers". The study concludes that:
"Occasionally, even the judiciary has expressed apprehensions and warned about the misuse of Section 498A and the SC/ST Act. The general discourse among the upper castes and men is that these laws are largely misused. However the reality is a little different… The prevailing discourse is that women and members of the SC/ST misuse Section 498A and the SC/ST Act, respectively. This discourse refuses to look at the possibility that men and members of the upper castes can misuse these laws by using women and SC/ST members as proxies. There is an urgent need to correct this misconception."
The interpretation of implementation of the SC/ST Act also requires taking into consideration the social reality of India. This view was endorsed in the decision, State of Karnataka v Appa Balu Ingale (1992), where it was held:
"Despite its abolition [untouchability] is being practised with impunity more in breach. More than 75% of the cases under the Act are ending in acquittal at all levels. Apathy and lack of proper perspectives even by the courts in tackling the naughty problem is obvious. For the first time after 42 years of the Constitution came into force, this first case has come up to this Court to consider the problem. The  Act is not a penal law simpliciter but bears behind it monstrous untouchability relentlessly practised for centuries dehumanising the Dalits, constitution's animation to have it eradicated and to assimilate 1/5th of Nation's population in the main stream of national life. Therefore, I feel that it would be imperative to broach the problem not merely from the perspectives of criminal jurisprudence, but more also from sociological and constitutional angulations."
Answering the Main Question Framed by the Bench
The report of the national commission to Review the Working of the Constitution (2002), headed by Justice MN Venkatachaliah, states: "The promise of social revolution has remained unredeemed. There are 270 million Schedule Castes and Schedule Tribes measures for whose welfare and uplift have not been implemented with sincerity". Sitaram Kumbhar has stated aptly in his work Everyday Dalit Experiences of Living and the Denials that: "India's vibrant democracy has received wide acclaims, but less recognition of the substantial disgust and fervour of the suppressive weight of state mechanism and primordial social structure against the so-called lower caste groups … Caste-related violence and exploitations are a reality. But the state's reluctance to acknowledge their endurance, and the assiduous efforts to silence them, shows the decadence of substantive human rights to lower castes, tribal, women and minority which is comparatively available to fellow humans in the liberal democracies."
The social and economic backwardness of the Dalits makes it very difficult for them to approach the legal system when they are discriminated against or are subjected to atrocities by the non-Dalits. One of the reasons for that oppression and violence is landlessness of Dalit community in the country. The majority of the Dalits are still landless. Such helplessness often makes the Dalits accept injustices and atrocities as their fate. The plight of Dalits can be understood from the following words:
"[S]eeking justice through the special laws is not an easy task, since it demands adherence to number of procedures on the part of the victims, accused, police, the special public prosecutor and others concerned at every stage of the case, which is often turn out to be very costly, tiresome and time-consuming, particularly for the victims. Invariably, it is during this time, the accused indulges in number of mischievous activities, including bribing the police, tampering the evidences, pursuing the victims for an out of court settlement of the case and threatening the victims and their witnesses etc. And if they have to pursue the case despite all these, it would be at cost of their means of sustenance, dignity, peaceful living, and sometimes their life itself."
In such a scenario, any attempt by the Supreme Court to make procedural changes/safeguards in the SC/ST Act would result in its dilution. Besides the poor implementation of the Act and ignorance of the part of the ruling establishments towards the cause of Dalits, the concern of the Supreme Court towards the protection of those who are accused of discriminating the Dalits would send a wrong signal and message to the downtrodden and backward sections of the society. The SC/ST Act is the best example of social justice legislation. Any tampering with the Act would cause a moral defeat for the apex court, which is expected to be upholder of constitutional values. It will have a negative impact on the Supreme Court's commitment to equality, dignity and social justice.
Moreover, the attempt by the Supreme Court to prevent the misuse of Section 498A, IPC by laying down certain directions in Rajesh Sharma v. State of UP (2017) had in effect diluted the provision. It had not gone well in the progressive women rights movement and was seen as "a step back for women's rights law". The decision in Rajesh is now pending for review before a 3-judge bench of the Supreme Court, led by the Chief Justice of India.
The bench must also take into consideration Section 4 of the SC/ST Act, which states that "the charges" of neglect of respective duties by a public officer "shall be booked on the recommendation of an administrative enquiry". Further, the cognizance of any dereliction of duty by a public servant shall be taken by the special court or the exclusive special court, which shall give direction for penal proceedings against such public servant. Therefore, the procedural safeguard for public officials already exists in the Act.
Thus, while the attempts are being made to make the SC/ST Act more stringent and to enact new social justice laws (such as the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016) so as to achieve an egalitarian social order, any regressive step by the Supreme Court would be defeat of the constitutional aspirations.
Anurag Bhaskar is an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow. He can be contacted at [email protected] and tweets at @anuragbhaskar_
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]