SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT 1989 Shristi Khandelwal BASICS OF LAW Mon, Oct 26, 2020, at ,03:12 PM INTRODUCTION ‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989’ which was enacted to prevent atrocities against Scheduled Castes and Scheduled Tribes brought a new vision to Indian Judiciary. the Act, not only deals with punishments for atrocities but also prescribes comprehensive measures for protection, welfare and rehabilitation of the victims of the atrocities. Scheduled Castes are those castes named in the Scheduled Castes order of the Government of India promulgated in August 1950. Hence, a person is considered to be a member of a Scheduled Caste, if he or she belongs to a caste which, under the constitution, has been declared to be a Scheduled Caste for the area, for which he or she is a resident. Scheduled Castes are those castes named in the Scheduled Castes order of the Government of India promulgated in August 1950. Hence, a person is considered to be a member of a Scheduled Caste, if he or she belongs to a caste which, under the constitution, has been declared to be a Scheduled Caste for the area, for which he or she is a resident. Scheduled caste is that caste with are named in scheduled caste order, taken up by Indian in 1950. Scheduled castes are ex- untouchables who continue to follow the Hindu faith. This term was first incorporated under the Government of India Act 1935, to safeguard the interests of those who suffer from caste discrimination. Criteria being- Occupy a lower position in Hindu social structure. Backward in education Have inadequate representation in government service and in the fields of trade commerce, industry And suffer from social and physical isolation Our Constitution defines SC in Article 366 (24) as- “Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution” And scheduled tribes in Article 366 (25) as- “Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution” Purpose of the Act: The Scheduled Castes and Scheduled Tribes Act, 1989 was enacted to prevent atrocities against SC’s\ST’s and to help in the social inclusion of Dalits into the society. The act also provides for punishment of offences committed against the backward classes in three broader means- It identifies what acts constitute atrocities The Act calls upon all the states to convert an existing sessions court in each district into a Special Court to try cases registered under the POA. The Act creates provisions for states to declare areas with high levels of caste violence to be atrocity-prone and to appoint qualified officers to monitor and maintain law and order. CONSTITUTIONAL PROVISIONS FOR PREVENTION OF ATROCITIES Article 17 which deals with the abolition of untouchability and states that- “Untouchability is abolished and its practice in any form is forbidden The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.” Article 46 which says that promote the educational and economic interests of SCs, STs, and other weaker sections of the society and to protect them from social injustice and exploitation Article 338 provides for the formulation of National Commission for Scheduled Castes which will monitor all matters relating to constitutional and other legal safeguards and inquire into specific complaints with respect to the deprivation of rights and safeguards. Article 338 A Provides for National Commission for Scheduled Tribes which does the same as NCSC for Scheduled tribes. NATURE OF PUNISHMENT OF OFFENCES- All offences listed in the Act are cognizable. The police can arrest the offender without a warrant and start an investigation into the case without taking any orders from the court. The act prescribes punishment as 6 months in most cases while maximum punishment as 5 years with fine and can also resort to life imprisonment and death sentence. CONSTITUTION OF SPECIAL COURTS The cat provides for constitution of special courts for hearing cases on atrocities against scheduled caste and scheduled tribes. For the purpose of providing for speedy trial, the State Government shall 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. The exclusive Special Courts shall try offences under this Act on a day-to-day basis. Also, The act further provides that for every Special Court, the State Government shall, by notification in the Official Gazette, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court. SC/ST PREVENTION OF ATROCITIES AMENDMENT ACT 2015 This act was passed to repeal SC and ST (Prevention of Atrocities) Ordinance, 2014 and to amend the parent act. The Scheduled Caste and Scheduled tribes (Prevention of Atrocities) Amendment Act received the assent of President on 31st December 2015. This act consists of 12 Sections and a schedule with gives following provisions- Substitutes the words “Special Courts” with “Special Courts and the Exclusive Special Courts” in the long title. Section 2 including definitions included new words- Dependent, Economic boycott, Exclusive Special Courts, Forest rights, Manual Scavenger, Public Servant, Schedule, Victim, witness. Amends provisions of punishment of offences of tribe atrocities. (Section 3) Amends provisions related to punishment for neglect of duties. (Section 4) In section 8 of the principal Act substitutes the words “any financial assistance to a person accused of” with the words “any financial assistance in relation to the offences committed by a person accused of”. Also, the addition of clause (c) to Section 8 as- “(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim unless the contrary is proved”. The removal of person likely to commit the offence for a period of two years amended to three years. (Section 10) Section 14 of the principal act which provides for constitution of “special Court” shall include “Exclusive Special Court” after the amendment. Also included Clause A to Section 14 with respect to appeals. Section 15 to include Exclusive Public Prosecutor instead of appointment of Special Public Prosecutor. A new chapter IV A named- “Rights of victims and witnesses” included. A new schedule inserted after Section 23 providing for relevant Sections of the Indian Penal Code along with their respective offences and punishments. CASE LAWS SUBHASH KASHINATH MAHAJAN V. THE STATE OF MAHARASHTRA, the Supreme Court reviewed the SC/ST Prevention of Atrocities Act and opined that the Act is being misused to persecute innocents and public servants for political and personal gains. The court provided guidelines for preventing such misuse. Preliminary enquiry at the level of DSP is required to verify the authenticity of the case before filing FIR. A person can be released on the anticipatory bill unless a prima facie case of crimes is made out. No FIR shall be registered against government servants without the approval of appointing authority. KARTAR SINGH CASE clarified that anticipatory bill is a statutory right and doesn’t include under Right to life. The court while upholding ideals of personal liberty and innocence until pronounced guilty, have ignored the socio-cultural reality of the caste system in India. In LALITA KUMARI VS GOVERNMENT OF UTTAR PRADESH, the Supreme Court directed that prompt registration of FIR is mandatory under Section 154 of the Cr.P.C. if the information discloses commission of a cognisable offence and no preliminary enquiry is permissible in such a situation. Mahajan judgement ignores this precedent. In D. RAMLINGA REDDY V. STATE OF AP, took the position that provisions of Rule 7 are mandatory and held that investigation under the SC/St Act has to be carried out by only an officer, not below the rank of DSP. An investigation carried out and charge sheet filed by an incompetent officer is liable to be quashed. In M. KATHIRESAM V. STATE OF TAMIL NADU held that investigation conducted by an officer other than a DSP is improper and bad in law. Proceedings based on such an investigation are required to be quashed.