The new guidelines of the apex court on SC/ST(Prevention of
Atrocities) Act, 1989, has led to protest by Dalit groups across the
country. The issue relates to alleged misuse of act to frame the
innocent. The act in consideration creates a mechanism for immediate arrest of accused, after an
FIR is lodged for any atrocity committed by a non-SC/ST on members from these communities. It also bars anticipatory bail for anyone accused
of such offenses. Going by the evidence of low-conviction rates(around
20%) according to National Crime Records Bureau data, SC concluded that
the misuse is rampant. Hence, it ruled that no arrest can be made
without the permission of appointing authority in case of public servant
and for private citizens, the senior superintendent of police in the
district should approve the arrest. It also ruled that bar from
anticipatory bail is not absolute and it can be given to those against
whom prima facie there is no evidence. Hence, SC has tried to strike a
balance between individual liberty and protection of oppressed.
It
is not the first time that misuse of law is cited as an argument for
amending its provisions. Last year, same question was raised regarding
the abuse of Section 498 of IPC relating to the dowry laws. Hence, the
current judgement raises several questions. Is the low convictions rate
sufficient to conclude the misuse of law? Is the provision of immediate
arrest against the basic doctrine of innocent until proven guilty? How
can better safeguards be developed such that the misuse of law is
prevented without diluting its spirit? And lastly, how far has the act
& its stringent provisions fared in terms of ameliorating the
situation of SCs/STs?
Several
people have raised objection to the conclusion of rampant misuse. They
have raised the issue of systemic biases. Poor investigation, weak
chargesheets, witness turning hostile and inadequate quality of
prosecutions according to them is the main reason for low conviction
rates. There are cases where police even deny to register an FIR, due to
external pressures or internal biases. Not all states have yet established
special courts envisaged under the act. Hence, more data is needed to sufficiently establish the case of misuse.
Others
argue that even if an alleged atrocity has indeed been committed, the
provision of immediate arrest is against the tenet of rule of law. An
arrest should be made if only there is enough reason to believe that avoiding the arrest will be detrimental to the investigation. The
counter argument is that most of such atrocities are committed in rural
areas in a highly stratified society. There is a risk of ostracization
of the victim, further atrocities being committed if a person holding a
dominant position is set free after an FIR. Moreover, the fear of
immediate arrest is the most important provision in act which provides a strong deterrent. It gives a sense of security among the
marginalized to go ahead and file an FIR. Hence, a law must also take
social reality into account for it be impactful.
While
such arguments do create a sense of need for such strong provisions
that the act contains, the fear of misuse remain unaddressed. If
not this, then how else can such a concern be addressed? One way can be
to classifying the atrocities according to the severity. For example: A
manager sabotaging the promotion of his junior based on caste
considerations may not be a suitable case for immediate arrest, but
garlanding a person with shoes for keeping a moustache or wearing a turban may
well be. Hence, the punishment must be proportional. A penalty on frivolous complaints may also be
considered provided that the malicious intent is proved beyond doubt.
There can be other better ideas as well.
Moreover,
the debate which the judgement has created should not be limited to its
misuse. A holistic review of how the act has fared so far is also
necessary. If not misuse, the lower conviction rate may be reflecting the poor enforcement of law. The pendency of cases is also very high.
However, the protests that followed show that the act has created a
sense of security in the community. Yet, the poor awareness of masses
especially in the rural areas about the existence of the act creates
hurdles in justice reaching their door steps. The act also contains
provisions regarding the rehabilitation of the victims as most of the
times the employer for the dominant caste is the harasser and the
marginalized have to choose between livelihood or self-respect. In such
cases immediate financial support from the state is necessary, so that an individual is
able to live with dignity.
Finally,
it is important that issues which have the potential affect the lives of one-fourth of
country's population are debated in the parliament. It allows for
voices of different sections to be heard via their representatives
before a decision is taken and insulates the judiciary from charge of
overreach.
