This article has been written by Monalisa Nanda.
The tell-tale signs of something being amiss with a vision is when instead of it being sufficient in its own glory to enrapture masses, it needs the help of adornments to make it stand-apart while making use of layers of hypocritical virtue-signalling to cover up its sinister tracks. Similar is the case with the Prevention of Atrocities against SC/ST Act of 1989 which while trying to larp onto the fact that there exists a long history of oppression against the people belonging to scheduled castes and tribes, ends up in the territory of reverse-casteism, under the garb of social action.
To discuss the background of the contention, the aims and objectives of the Prevention of Atrocities against SC/ST Act needs to be looked into. The Act tries to define and address discriminatory and dehumanizing acts against the members of historically wronged SC/ST communities and tries to come up with solutions to mitigate the aforementioned practices. To sum it up, the main objective of the Act is to control and try to undo the damage done to those particular communities by the virtue of being on the receiving end of multitude of social stigmas over centuries.
The problem with the Act isn’t the vision itself, but the manner of drafting of the legislation and the misuse of the Act, thanks to such drafting. To check the misuse of this Act and control the influx of fake cases, on March 20th of 2018, a judgment by Justice (now retired) A.K. Goel diluted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, to grant anticipatory bail to accused persons and directed that the police should conduct a preliminary enquiry on whether complaint under the 1989 law is “frivolous or motivated” before registering a case. What followed was widespread protests around the country that had political backing in quite a few places and soon enough, all hell broke loose and the usage of violence in the protest was commonplace.
To control the damage done, the government had to come out with new amendments to the act that negated the effect of the verdict and with that, the provision of anticipatory bail was stuck off and the position of the act was restored back to what it originally was. Very recently, on 10th of February, 2020, the Supreme Court upheld the constitutional validity of the Act.
The problems with the act are manifold but the discussion shall be streamlined onto two main propositions. Firstly, there exists a jurisprudential question of what comes under the ambit of ‘constitutional validity’? Does examining the constitutional validity of an act only refer to checking whether the act upholds its legal value as mentioned under the constitution or does it also extend to conforming to the actual ideas enshrined in the constitution, as were viewed by the founding fathers of the state? Secondly, the way the legislation has been drafted, opens it to be debated upon in light of it violating the natural laws of equity and good conscience.
Talking about the jurisprudential colloquy, what needs to be introspected upon, in this scenario, is the definition of ‘Constitutional Validity’. A legal person would obviously swear by his knowledge of the law and shall claim that examining the constitutionality of any act would involve cross-examining the act with the constitution by tallying every clause of the act with the pre-existing provisions of law mentioned under the constitution. But then, the problem here is that the visions and ideas enshrined in the constitution aren’t being taken into account in the process of affirming constitutional validity.
A good jurist shall not look only at the body of the law and make lumpen decisions off of it, rather, he would try to interpret the true spirit of the law and understand the actual legislative intent enshrined in the law. Philosophers of law never viewed the discipline as a static, normative study of rules governing human behaviour, rather they have always treated it as an empirical journey into a living, breathing eco-system of human customs, behaviour patterns, aspirations and social pathology. To uphold the spirit of law, this is exactly how the constitutional validity of any act should be determined; the vision enshrined in the Indian constitution needs to be looked into, along with cross-examining the legalities.
What makes the consideration of the vision of the constitution so important in this scenario is the fact that the great men of honor who drafted the constitution, though advocated the judicious use of affirmative action for the upliftment of the historically wronged communities, what it didn’t advocate was the systematic violation of the being of the people belonging to general category for the fulfilment of this objective. The Indian Constitution follows the Aristotalian principles of equals being treated as equals and unequals being treated unequally for the sake of attaining true equity in society, but nowhere does it mention that the general classes shall be deprived of their rights in order to attain such equity. It would perhaps cause great pain to the drafters of the constitution to see an act like this being used as a tyrannical tool of oppression against people of particular castes under the garb of affirmative action.
The government in the amendments that it brought to nullify the 2018 verdict said, the SC-STs continue to face the same social stigma, poverty and humiliation to which they have been subjected for centuries. What is very apparent is that there is an assumption on the part of the government regarding the condition of the people belonging to these classes which hasn’t really been supported by any ground evidence. Again, what is appalling about the assumption is the fact that assuming someone’s social and economic standing solely on the basis of the caste they belong to, is dehumanizing and patronizing.
It is as if the act has become the devil that it wanted to annihilate, all along the way, in the sense that the communities which were earlier forced to remain impoverished and lead a lowly life, are now being assumed to be poor and stigmatized merely because they belong to a certain caste. What is more degrading for a person belonging to a scheduled caste community who broke out of the shackles of ostracization that his ancestors were historically bound by and wrote his own fate, than to be assumed poor by the virtue of his caste?
Secondly, the act needs to be discussed in the ambit of the natural laws. In the context of natural laws, no authority holds more value than that of Saint Thomas Aquinas. According to Aquinas, law is “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Each of these elements – reason, the common good, authority and promulgation – places significant limitations on what can rightly be “law”. Aquinas believed that man-made laws can be deemed laws only when they are in line with natural laws and any such law going against natural laws is nothing but a ‘perversion of law’.
In his works, he talks about how man-made laws need to qualify a certain threshold of morality in order for them to qualify as a ‘good law’ wherein, a ‘good law’ is that which follows the principles of good conscience and equity. The SC/ST act is one such law that clearly qualifies to be termed as a ‘tyrannical’ and ‘perverted’ law, not in the sense of the objectives that it wants to achieve but in the sense of it being used to incriminate innocent people. It is violative of the natural laws in the way that the law seems to be prejudiced towards the SC/STs in a way that harms the interest of other classes and thus, the aspect of ‘good conscience’ is nowhere to be seen in the law. Talking about equity, it has always been about empowering the disadvantaged classes in ways that help them to compare with the privileged and has never been about bringing down the standards of the privileged classes in order to match that of the downtrodden.
To sum things up in the best possible way, it isn’t the constitution that the SC/ST Act is violative of, rather, it’s the conscience of the constitution that the Act vehemently violates. Let not the Act, that was intended to act like God’s grace for the downtrodden be used as a cruel whip against the innocent, in the garb of social action because justice becomes tyranny when it is so lopsided and biased that it completely oversees the plight of the innocent.
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