DEFENCES AVAILABLE UNDER OFFENCES IN THE SCHEDULED CASTES AND THE SCHEDULED TRIBES(PREVENTION OF ATROCITIES) ACT, 1989

By:- Harshvardhan

ABSTRACT

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Or More Popularly known as the SC ST ACT is one of the most powerful laws made for the protection of socially marginalised groups like Scheduled Castes and Scheduled Tribes. They have suffered centuries of discrimination and injustice and even after untouchability was abolished they continued to face atrocities. Seeking an end to this problem, The Government of India passed the SC ST Act in 1989. The main objectives of this act was to: a. Prevent the commission of offences of atrocities against the members of theScheduled Castes and the Scheduled Tribes by people not belonging to the Scheduled Castes and Scheduled Tribes. b. To Provide for the establishment of Special Courts and the Exclusive Special Courts under section 14(1) of The SC ST Act for the speedy trial of such offences so that the pace of trial is faster than normal criminal courts which are burdened with a backlog of cases. c. To Provide for the relief and rehabilitation of the victims of such offences. Only members of SC and ST can be covered under the “victim” which means any individual who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act and includes his relatives, legal guardian and legal heirs.

Keywords: Prevention of Atrocities Act, Wrongful Conviction, Defences, SC/ST Act

LEGAL FRAMEWORK FOR THE SCHEDULED CASTES AND SCHEDULED TRIBES

1. Article 17 of the Indian Constitution seeks to abolish ‘untouchability’ a. Untouchability (Offences) Act, 1955 was enacted b. The lacunas and weaknesses in the Untouchability (Offences) Act, 1955 lead to the passing of Protection of Civil Rights Act 1976 by the Parliament c. It was also observed that the existing provisions of the existing laws namely the Protection of Civil Rights Act and Indian Penal Code,1862 were inadequate and insufficient to control many types of atrocities committedon SC/ST. This lead to Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Rules, 1995. d. The Scheduled Castes and Tribes (Prevention of Atrocities) Act,1989 is known as POA, SC/ST Act, the Prevention of Atrocities Act, or the Atrocities Act.

2. The provisions of SC/ST Act can be divided into three categories:- a. Provisions of criminal law-

●Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA). ●Atrocities can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act.

●Defines various types of atrocities against SCs/STs and prescribes stringent punishments for the same.

●Enhanced minimum punishment for public servants.

●Punishment for neglect of duties by a public servant(Section 4)

●Cancellation of arms licenses in the areas identified where an atrocity may take place or has taken place and grant arms licenses to SCs and STs

●Denial of anticipatory bail (Section 18) provided in Section 438 of the CrPC ●Denial of probation to convict (Section 19). b. Provisions for relief and compensation for victims c. Provisions that establish special authorities for the implementation and monitoring of the Act. ●Creation of Special Courts and special public prosecutor

●Mandatory, periodic monitoring system at District, State and National level ●Identification of atrocity prone areas 3. NHRC report on the SC/ST Prevention of Atrocities Act–The National Human Rights Commission in it’s report stated that The indifference of society in general, the lopsided implementation of the SC/ST (Prevention of Atrocities) Act 1989 and the lack of political will in removing the historical injustices faced by this section of society has been banefulfor them.

OFFENCES UNDER THE ACT

The offences of atrocities are covered under Chapter II of SC ST Act. Section 3 of the act describes offences by individuals who are not public servants. These range from insulting and causing injury to Causing annoyance to victims. Section 4 of the act deals with offences by Public Servants not being a member of a Scheduled Caste or a Scheduled Tribe. Any public servant who wilfully neglects his duties required to be performed by him under this Act and the rules made thereunder shall be punishable with imprisonment for a term which may vary from 6 months to an year. The scope of offences in this act is very wide as it encompasses every possible act against the victims of the offences. However one clear feature is common to all offences i.e. they are all Cognizable offences and a police Officer cannot conduct any pre-investigation before registering the FIR otherwise he will be held liable for an omission under the Act. A Supreme Court verdict of 2018 in the case of Subhash Kashinath Mahajan vs. State of Maharashtra had made provision for approval from Superintendent of Police or Appointing Authority for offenders under the SC/ST Act. The Central Government removed this through amendments made to The SC/ST Act in 2018. Then in 2020, the Supreme Court upheld Central Government’s SC/ST Amendment Act and said that approval not needed for filing an FIR under the act. MISUSE OF THE ACT Like any powerful act, The SC ST act is also prone to severe misuse as has been witnessed in many cases like the case of Vishnu Tiwari v. State of Uttar Pradesh where the accused spent 20 years for a crime in jail he did not commit because the alleged victims belonged to the SC ST Act.The Misuses can be clearly documented using the figures from the NCRB which shows that the conviction rate under such cases is very low which indicate a large number of false cases. We will also discuss the pattern of false cases: a. It has been seen that the some alleged victims have lodged false cases against innocent individuals to blackmail them or extort them for some personal vendetta.Recently, Rajasthan police declared that over 40% of the cases filed in 2020 under The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 were found to be fake. b. There are also cases where Land dispute and commercial cases are sometimes converted into SC ST Act cases so that the other party can be pressurised to withdraw the original case or make a settlement. c. There are some criminal offences which are common to both the IPC and SC ST Act but are filed under the latter to enhance the pain and punishment for the alleged offender. These are cases where the accused did not knew the caste of the victim. But the monetary relief to be provided in this Act to victims makes it attractive for them to register cases under the SC/ST Act as public Sympathy is already behind the victims.

DEFENCES AVAILABLE UNDER OFFENCES 1. Lack of Knowledge of the Victim’s Caste/Social group: In a cosmopolitan society like our urban cities are becoming, the Accused can plead that he was no aware of the caste of the victim apart from maintaining no guilt over the commission of the offences. In our urban centres, it is difficult to gauge the caste of any person sitting besides us in a Metro, Train or a Cinema hall so it is imperative to raise this defence when it can be. 2. Using Children and Members of S.C.’s And S.T.’s as Witnesses: Using children and fellow members of the victim’s community are often the best way of protection in a trial. Children below 7 cannot be made an accused and child below 12 years are also afforded the same protection subject to exceptions. Also having S.C.’s And S.T.’s as Witnesses can be very beneficial since they cannot be made accused and both types of witnesses can give good testimony. 3. Proving Past Enmity: If the past enmity is proved by the accused with relation to the victim in a false case, then the prosecution case becomes weak. Past enmity is a very important factor as it guides the intention of the victim to proceed and seek unlawful gain from the accused. 4. Using specific defences for Offences mentioned in the Act: There are also some specific defences like under section 3(r), the Supreme court has held that all insults do not count as offences under the Act.The court held that offence under the Act cannot be established “unless there is an intention to humiliate” a member for the reason that the victim belongs to such caste.

WAY FORWARD

The anti-atrocities law was initially passed with the commendable purpose of protecting persons hailing from the SC and ST caste from any abuse or harassment over notions of caste supremacy. Over the years, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been misused extensively for vengeance, blackmail and personal vendetta. False cases are rampantly registered under the Act against the members of other communities to settle personal scores. In 2020, people in a Gothua village in the Firozabad district in Uttar Pradesh fled their village due to fake cases registered against them under the SC/ST Act. residents of village had sold their homes and moved to other places due to harassment of fake cases. Villagers have written on the outside walls and doors of their houses that they will be sold. The law needs a revamp and the kind of protections the Supreme court offered in Subhash Mahajan’s case.

References

Subhash Kashinath Mahajan vs. State of Maharashtra https://main.sci.gov.in/supremecourt/2018/31176/31176_2018_3_1501_20551_Judgement_10-Feb-2020.pdf

https://theprint.in/judiciary/supreme-court-upholds-modi-govts-sc-st-amendment-act-says-approval-not-needed-for-firs/362395/

https://www.tribuneindia.com/news/nation/after-spending-20-years-in-jail-up-man-found-wrongly-convicted-217340

https://www.thehindu.com/news/national/scst-atrocities-act-has-become-a-means-to-blackmail-citizens-public-servants-sc/article23303970.ece

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