This article is written by Rishabh Guha, 2nd year BBA LLB(Hons.) student at Symbiosis Law School, Pune.  

Historical background, evolution & other legislations

The classification of mankind exists since time immemorial, dating back to the Vedas. The Varna system stemmed from the Rigveda that was categorised based on profession (Brahmans, Kshatriyas, Vaishyas & Shudras). The evidence of this is primarily sourced from the ancient book of law Manusmriti. The first 3 groups are found to have parallels with Indo-European societies and Shudras are believed to be a creation of Brahmins. The Vedas did not have the concept of untouchability. This concept can be found in the post-Vedic literature, especially Manusmriti which mentions the term ‘outcastes’ and the fact that they should be ostracized.

The British, coming from a rigid class-based society themselves attempted to equate themselves with the Indian caste system. Their role in the caste system has however been controversial. It was their policy to divide and rule the country based on religion, caste, etc. The introduction of a separate electorate by them reveals the true intentions of the Britishers. The Poona Pact (1932) between Gandhi and Ambedkar had sown the seeds of divide and rule in this country, which led to the deterioration of the conditions of Dalits. The Zamindari System, introduced by Lord Cornwallis in 1793 caused severe socio-economic disparities in the society, affecting mostly the lower castes of the society.

The Untouchability (Offences) Act, 1955 (improvised version of Untouchability Order of 1950) abolished the practice of untouchability and prescribed punishments for those, practicing discrimination. This act was later amended with stronger provisions and renamed as Protection of Civil Rights Act, 1955 as the earlier version was not sufficiently stringent to have a cascading effect on other perpetrators.

The Protection of Civil Rights Act was the central legislation, before 1989. It formed the backbone for the current Act. Through this act, punishments like increased fines or prison time and the power to cancel the license of employment of the perpetrator were incorporated. Provisions such as lackadaisical work by public servants with respect to SCSTs, compelling to undertake menial jobs and propagating the practice of untouchability, the scope of which has been widened presently, find their roots from this act.

The National Forest Policy of 1988 protects the lands owned by Scheduled Tribes who cohabit and worship the forest ecosystem, for which such lands are protected as sacred groves. 

States like Jharkhand have the Chhotanagpur Tenancy Act (1908) and Santhal Pargana Tenancy Act (1949) which restricts transaction of SC/ST property to only between themselves. The Orissa Protection of Scheduled Castes and Scheduled Tribes (Interest in Trees) Act (1981) safeguards the ownership of timber and other trees, held by SCs and STs.

In the present context, Article 17 of the Indian Constitution abolishes untouchability. Other articles of the Constitution such as 15(3), 29A, 341, 342, and Directive Principles such as Article 46 have been enacted to protect and uphold the rights of SCSTs. Schedule 5 and Schedule 6 which gives special provisions to certain States (4 and 10 respectively), which has the maximum population of tribes, to be governed according to Tribal Advisory Councils or through traditional Gram Sabhas as per the Provisions of the Panchayats (Extension to Scheduled Areas) Act of 1996.

International law

Civil Rights in the United States were proposed to protect individuals’ rights from unjustified discrimination. To uphold equality and fair treatment, the Civil Rights Act of 1964 was enacted by Congress.

The 13th, 14th, and 15th Amendments in the United States Constitution are the landmark moments in the history of civil rights. The 13th Amendment banned involuntary slavery and the 15th Amendment prohibits any State to deny a citizen their right to vote on grounds of color, race, or previous involvement in slavery.

Objectives of the law

1. To improve the socio-economic conditions of Scheduled Castes and Scheduled Tribes.
2. To curb offences related to unjustified behavior against SCs and STs that eventually lead to a breakdown of their self-esteem.
3. To protect them from social disabilities like – denial of access to certain places, personal atrocities like – forceful eating/drinking of inedible food (as belittling as eating human waste), sexual exploitation, bodily/mental injuries, etc.
4. To prevent them from being maliciously prosecuted, economically exploited, and politically excluded.
5. To deliver justice through proactive efforts, allowing them a dignified life and eradicate suppression of the dominant upper castes.

Summary of the law

• The PoA Act of 1989 enlists 22 offences of human behavior towards the SCST community. Atrocities are defined as offences that deny socio-economic and political rights, perpetuating discrimination and abuse by a non-SCST individual. [Section 2]
• The Act prohibits social disabilities such as forceful eating/drinking of inedibles, sexual exploitation, forceful removal of clothes, forceful beggary, public humiliation, denial of use of public utilities, bonded labor, offences against their property, economic exploitation, and other related offences. [Section 3]
• Neglect of duties by a non-SCST public servant in furtherance of the objectives of the Act will lead to punishment. [Section 4]
• Presumption of offense in the case accused had knowledge of the victim/family or offense committed in the sequel to an existing dispute. [Section 8]
• Courts can instruct a person who is likely to cause an offense to remove himself from the limits of such area and failure to do so by the potential offender may result in his arrest. [Section 10 and 11]
• (Exclusive) Special Courts and (Exclusive) Special Public Prosecutors are appointed to ensure speedy and efficient delivery of justice, with cases to be disposed of within 2 months and trials to be heard daily. [Section 14 and 15]
• Provision for Appeals, against the order of (Executive) Special Courts on grounds of facts, law, and bail. [Section 14A]
• Rights of victims and witnesses should be upheld in the form of concealment of identity, protection from intimidation, socio-economic rehabilitation, providing immediate relief in cash or kind, etc. [Section 15A]
• Preliminary enquiry for registration of FIR or prior approval before an arrest is not needed. [Section 18A(1)]
• Offences under this Act are cognizable and non-bailable and anticipatory bail cannot be granted to the accused. [Section 18A(2)]
• Duties of the government to ensure effective implementation through provision for legal aid, expenses to victims and witnesses, setting up of committees to assist the Government, periodic survey with respect to the effectiveness of the act, and identification of areas with a potential where members are likely to face atrocities. [Section 21]

Amendments

The Act was amended twice – 2015 and 2018, which shows us that the original Act needed certain reforms to efficiently carry out the responsibilities it is tasked with. 

The Act is now applicable to the territories of Jammu and Kashmir too.

2015 Amendment

• This Amendment brought about swathing changes in the Act which was the need of the hour, to curb the increasing violence against the SCSTs.
• The provision for Exclusive Special Courts & such Prosecutors was inserted, as defined under Section 14, to enable expeditious resolving of cases.
• In Section 2, various definitions and their explanations were added such as dependents of victim, economic and social boycott of the victim, forest rights, manual scavenger, etc.
• Dumping of obnoxious substances in the premises of the victim without malicious intention can be held liable.
• Newer offences such as garlanding with footwear, abusing using caste names in public, compelling to perform manual scavenging, etc., have been added to the Act.
• Sexual assault or exploitation of an SCST woman is an offense now.
• Added presumption of victim’s tribal identity if accused knew the victim’s family.
• Preventing SCSTs from entering places of public access such as educational institutions, worship, or common property.
• Punishment for a non-SCST public servant who neglects their duties towards SCSTs.
• A chapter on the Rights of witnesses and victims has been added.
• Added certain IPC offenses that attract less than 10 years of jail time, to the Act which was limited to offences with the punishment of more than 10 years.

2018 Amendment

This Amendment added a new section – Section 18A which allowed the investigating officer to file an FIR relating to the commission of offence or arrest of a person, devoid of any preliminary enquiry or approval from any appropriate authority.

Critical Appraisal

If we see the Statement of Object & Reasons of the 1989 Act, we can observe that how the PCR Act and IPC were inadequate for sheltering the community from indignities. Its purpose was unclear as it merely addressed the consequences of untouchability (instead of the root cause of the problem) and thus this Act was legislated. The 2015 amendment encompassed newer offences, increased punishments, and rights of witnesses, to address the failure of the 1989 Act which can be traced to the Statement of Object & Reasons of 2015 wherein it was found that atrocities continued at an alarming level despite the restraining provisions of the 1989 Act, due to delays in the trial, procedural lacunae and overall an inadequate implementation – leading to low convictions. The Act allowed positive discrimination in favour of the community, with penalties more stringent than that of the IPC. For speedy dissemination of cases, the establishment of Special Courts is applaudable.

The 2018 amendment is a welcoming step into a further strengthening of provisions, primarily the denial of anticipatory bail to the accused. Now this provision can be interpreted as a double-edged sword however by looking at the NCRB data, it is safe to presume that more often than not, cases registered are largely genuine, and false cases are negligible. The 2018 Amendment Act faced petitions on grounds of violation of the Right to Equality and Personal Liberty, however, Court upheld the amendments as it observed a negligible decrease in atrocities against the community and that this Act is the bare minimum that the country owes to the community, who are subjected to generations of stigmatization.

The Act is powerful on paper however it has failed in its implementation. The primary hurdles arise when public servants fail in performing their duties. Data suggests that upper-caste policemen seldom register cases under this Act, to protect their fellow caste members. It has also been found that the officers themselves were sometimes unaware of the provisos of the Act. The delay in the delivery of justice is the root cause of the failure of the Act. Only 12 states have created separate Special Courts while the rest have converted their District Sessions Court, which already has a huge backlog of cases in itself. The delay between a case getting registered and sent to trial causes victims to lose interest, face threats or witnesses backing out. 

Judicial Response

Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018)

In this case, the J. Adarsh Goel led 2-judge bench delivered a widely criticized landmark judgment wherein the court held that it is necessary to have checked against blackmail. Unrestrained misuse of provisions under the Act is being done to fulfill vested interests and questionable motives against public officers. The Court laid down protection in the form of provisions for granting of anticipatory bail and to conduct a preliminary enquiry before a case is registered under the Act. The Court held that an FIR need not be registered immediately and should be done if there exists credible information and public servants cannot be arrested without appointing authority’s written permission.

This judgment diluted the stringent provisions laid down under the Act and was subsequently overruled by a J. Arun Mishra led 3-judge bench in Union of India v. State of Maharashtra (2019). This bench recognized the plight of SCSTs, that even in the present scenario they are struggling for equality and civil rights. This dilution would have led to the frustration of the very objective of the Act. With due regards to the doctrine of separation of powers, the 2018 guidelines encroached upon the Parliament’s duty to legislate. The Judiciary should restrict to an examination of constitutionality and issue guidelines only if there exist legislative lacunae.

Krishna v. State of Maharashtra (2019)

In this case, the Court held that despite the restriction imposed by Section 18 of the said Act, the Court can still grant anticipatory bail under Section 438 of IPC, by referring to the FIR when the ingredients under Section 3 of the Act does not match with the offenses registered in the FIR.

Prithvi Raj Chauhan v. Union of India (2020)

In this case, the constitutional validity of Section 18(A) of the said Act was challenged in this case, as this section nullifies the Subhash Kashinath judgment. The Court upheld the validity of the section and laid down that preliminary enquiry is only possible in certain conditions laid down in the Lalita Kumari judgment. The court held that anticipatory bail only is granted in exceptional cases, where prima facie cases cannot be made out under the Act.

Hitesh Verma v. State of Uttarakhand (2020)

In this case, the J. Nageswara Rao led 3-judge bench held that all insults hurled at a member of the SCST community cannot be deemed to be an offence under the Act unless there exists a malicious intention to humiliate a member from that community for the very reason that the victim belongs to that caste. The Court also held that since the humiliation occurred within four walls of the house, it does not satisfy the test of public view, under the Act.

In my opinion, this judgment is not too sound, as the interpretation of public view is problematic. It seems as if the reputation of individual matters only to strangers and not to relatives or friends. There exists no intelligible differentia under Article 14 between a place in and not in public view when the perpetrator has a malafide intention of defaming the victim. It must also be noted as due to such a strict interpretation, the very objective for which the law was enacted (to protect the victim from humiliation and inferiority complex and persistent threat to their existence) stands unachieved.

Pardeep Kumar v. State of Haryana (2020)

In this case, the accused uttered strong casteist slurs over a telephonic conversation with the victim. The court, in this case, held that a telephone call does not fall under the purview of the public gaze and therefore, in absence of such public view does not show the presence of mens rea to humiliate the victim.

Satarsetti Nirmala v. State of Telangana (2021)

In this case, the Court held that the power to take cognizance and monitor and control investigation of offence under SCST Act, which was earlier conferred upon the Magistrate (as per the procedure established in CrPC), that power is now vested in the Special Courts and Exclusive Special Courts established under Section 14 of the said Act.

Conclusion

The SCST community has faced the repercussions of upper-caste oppression for several centuries. The statute was enacted to prevent crimes against them to curb prejudices, caste-based violence, and primarily uphold equality. Although the act (on paper) provides for an efficient system to eliminate atrocities (especially after the 2015 amendment), efficient implementation is of primordial importance to achieve the desired changes. Instances of false allegations have also been observed (although less) for which, a strict system of checks-and-balances and redressal forums to identify legitimate injustice is the need of the hour. Nonetheless, the act is the backbone that aims to prevent not only violence against the marginalized communities but allow them to live a dignified life as good as any other upper-class citizen. As for implementation, it has been inadequate to date and the executive must ensure that the rules are properly implemented hereinafter.

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