By Adv. Aashit A. Kankariya
Analysis of the Atrocities Law and its Legal Implications
Since thousands of years in the Indian society, there are a section of people, who are facing atrocities on the basis of caste. After Independence 1947, our founding fathers of the constitution have given fundamental rights to each and every Indian wherein they also tried to curb out the issue of atrocities on the basis of caste, color, Religion etc.
Article 17 (which comes part 3: Fundamental Rights) of Indian Constitution has abolished the practice of untouchability in all forms to give effect to this Article, which lays down 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.
To curb out the issue of untouchability and discrimination on the basis of caste in society, the Indian Parliament enacted the Untouchability (Offences) Act, 1955 which was later renamed as The Protection of Civil Rights Act, 1955 and notified the Rules in 1977 to implement the Provisions of the Act. This law was insufficient on this issue So later, in 1989, the Parliament passed a special law i.e. the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act, 1989 which enabled the police authorities for taking specific measures to curb the atrocities & carry out the provisions of this Act, the Government of India
notified the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules in the year 1995.
There are specific provisions regarding Investigation, Bail, Inquiry, Trial which empower special powers to the police, state government, and courts to deal with it and differ from generalized proceedings under Criminal Law. A few special powers given to deal with this issue are:
1.INVESTIGATION OF ATROCITIES UNDER THE ‘ACT
The Police Officers have been entrusted with the noble duty to implement all the provisions of the enactments in the right spirit.
Investigating Officer:
According to Rule 7 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules, 1995, an offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police.
The investigating officer shall be appointed by the State Government in consultation with the D.G.P.
The Superintendent of Police, after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.
2. SPECIAL COURTS
Under Section 14 of SC & ST (POA) Act 1989, the State Government is, for the purpose of providing for speedy trial, empowered to constitute a court of session to be a special court for each district to try the offence under this Act. However, such notification shall be
(a) with the concurrence of the Chief Justice of the High Court, and (b) notified in the Official Gazette
The Court of Sessions (designated Court) is specified to conduct a trial and no other Court can conduct trial or entertain any other ancillary business such as Bail for the offence committed under the Act.
However, the trial is valid only when it is on the committal of the case by the Court of Magistrate having jurisdiction.
3. APPOINTMENT OF SPECIAL PUBLIC PROSECUTORS UNDER THE ACT
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 practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in the Court
4. STATE GOVERNMENT POWER TO IMPOSE COLLECTIVE FINE
The provision of Section 10-A of the Protection of Civil Rights Act 1955 (22 of 1955) shall so far as may be, apply for the purposes of imposition and realization of collective fine and for all other matters connected therewith under this Act.
5. PREVENTIVE ACTION TO BE TAKEN BY THE LAW AND ORDER MACHINERY TO PREVENT THE COMMISSION OF ‘ATROCITIES’
A District Magistrate or a Sub-Divisional Magistrate or any order Executive Magistrate or any Police Officer not below the rank of a Deputy Superintendent of Police may, on receiving information and after such inquiry as he may think necessary has reason to believe that a person or a group of persons no belonging to the Scheduled Castes or the Scheduled Tribes, residing in or frequenting any place within the local limits of his jurisdiction is likely to commit an offence or has threatened to commit any offence under this Act and is of the opinion that there is sufficient ground for proceeding, declare such an area to be an area prone to atrocities and take necessary action for keeping the peace and good behavior and maintenance of public order.
6. SECTION 360 OF THE CrPC, AND THE PROVISIONS OF THE PROBATION OF OFFENDERS ACT NOT TO APPLY TO PERSONS GUILTY OF AN OFFENCE UNDER THE ‘ACT
The provisions of Section 360 of the Code of Criminal Procedure and the provisions of the Probation of offenders Act, 1958 (20 of 1958) shall not apply to any person above the age of eighteen years who is found guilty of having committed a offence under this Act. Section 12 of Juvenile Justice (Care and Protection of Children) Act which specifically provides for grant of anticipatory bail to Juvenile, Overrides Section 18 of Atrocities Act.
7. SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE (REGARDING ANTICIPATORY BAIL) NOT TO APPLY TO PERSONS COMMITTING AN OFFENCE UNDER THE ‘ACT
Nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
Section 18 of the SC/ST (POA) Act, 1989 prohibits to give Anticipatory Bail to the Accused, granting Anticipatory Bail are expressing serious concern on misuse of the SC/ST (POA) Act, 1989.
In a decision on 20th March 2018, Expressing concern over rampant misuse of the SC/ST (Prevention of Atrocities) Act, the Supreme Court introduced the provision of anticipatory bail while also directing that there would be no automatic arrest on any complaint filed under the law
and a preliminary inquiry must be conducted by police within seven days before taking any action.
A bench of Justices A K Goel and UU Lalit introduced the provision of anticipatory bail despite Section 18 of the act denying pre-arrest bail. Such a protective provision was required to safeguard the interest and dignity of innocents and prevent the misuse of the act as an instrument to blackmail or wreak personal vengeance, the bench said.
However, on 10th February 2020 the Supreme Court of India upheld the constitutional validity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018 enacted to nullify the effects of the March 20, 2018 judgment of the court which had diluted the provisions of the Act.
A bench headed by Justice Arun Mishra said a preliminary inquiry is not essential before lodging an FIR under the act and the approval of senior police officials is not needed.
The Act also does not provide for anticipatory bail to the accused being charged with SC/ST Act. Courts can, however, quash FIRs in exceptional circumstances.
Justice S Ravindra Bhat has penned down a separate order concurring with Justice Arun Mishra and added a caveat that pre-arrest bail should be granted only in extraordinary situations where a denial of bail would mean miscarriage of justice.
It had also recalled order on the preliminary probe by the police before the arrest.
In the March 20, 2018 verdict, the two-judge Supreme Court bench had held that there will be no automatic arrest on a complaint filed under the Act had also introduced anticipatory bail provision under the Act. The Centre had filed a review petition before the Supreme Court asking to review its order passed on March 20, 2018.
The Supreme Court’s verdict came on a batch of PILs challenging the validity of the SC/ST Amendment Act of 2018, which was brought to nullify the effect of the court’s 2018 ruling, which had diluted the provisions of the stringent Act.
Conclusion
The recent judgment of the Hon’ble Supreme Court of India certainly protects the abuse and atrocities against the weaker sections of society. However, certain measures such as removal of the provision of section 438 of CrPC i.e Anticipatory Bail leaves room for abuse of the said Act wherein the General sections of society live in fear of frivolous complaints, arrests and trials which needs to be taken into account by the Legislature and the Judiciary in order to fulfill the true objective of the said Act in full and complete spirit.
-Adv. Aashit A. Kankariya
