A piece of landmark legislation meant to fulfil Ambedkar’s vision of Dalit empowerment has been put into cold storage . By V. VENKATESAN
AN ordinance conveys the sense of urgency that in its absence the legislative void it seeks to fill is likely to worsen the state of affairs for the beneficiaries of the legislation. Therefore, when an ordinance promulgated by an outgoing government is allowed to lapse by its successor without any controversy and without any serious step to replace it with a proper law at the earliest, it is bound to alienate such beneficiaries from the entire political class, ruling as well as opposition. Thus, when the United Progressive Alliance (UPA) government promulgated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, on March 4, 2014, on the eve of the general elections to the Lok Sabha, it was widely believed that its successor would replace the ordinance with proper legislation before it lapsed six months later.
Although the Bill meant to replace the ordinance enjoys all-party consensus, as revealed by the sixth report of the Parliamentary Standing Committee on social justice and empowerment submitted on December 19, 2014, it does not appear to be a priority for the Narendra Modi-led National Democratic Alliance (NDA) government. The UPA government delayed the legislation throughout its 10 years in office and woke up to its potential among SC/ST voters only towards the very end of the last session of Parliament.
The ordinance and the Bill introduced in the Lok Sabha on July 16, 2014, to replace it raised the hopes of the SCs and the STs, who had witnessed how the principal Act, enacted in 1989 after a long struggle by Dalit activists, was allowed to become ineffective because of the many deficiencies in it. Acquittals of accused at the trial or appeal stage in cases of atrocities against Dalits, from Kizhavenmani (Tamil Nadu, 1968) to Laxmanpur Bathe (Bihar, 1996), and the acquittal by the High Court in 2013 of all the accused who had been convicted by the trial court in as many as six cases in Bihar convinced those concerned with the Act’s implementation that it required drastic and urgent overhaul to make it really effective. The refusal of the Nagpur Bench of the Bombay High Court to apply the Act against the accused in the Khairlanji case (2010; “Gaps in the story”, Frontline, August 13, 2010) despite clear evidence, and the Patna High Court’s acquittal of all 23 convicts in the Bathani Tola case in April 2012 (“Back to Bathani Tola”, Frontline, June 29, 2012) further exposed the deficiencies in the Act. One such aberration in the principal Act is the non-requirement of special courts exclusively for the trial of atrocities. As P.S. Krishnan, former Secretary to the Government of India and a crusader for social justice for Dalits, has pointed out, the Act provides the subterfuge of “designating” the existing court of session in each district as a special court, which makes no difference. According to him, it is one of the major weaknesses of the principal Act as it holds up trials and encourages the committing of more atrocities against Dalits. Unless punishment follows crime with deterrent rapidity, it does not have the desired effect, as the delay in trial only facilitates the coercion of victims, survivors and witnesses, and leads to perversion of justice.
The ordinance and the Bill introduced to replace it have addressed this concern only partly. Section 14(1) of the principal Act has been substituted in the ordinance and the Amendment Bill as follows:
“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 an exclusive special court for one or more districts:
“Provided that in districts where less number of cases under this Act is recorded, the State government shall, with the concurrence of the Chief Justice of the High Court, by notification in the official gazette, specify for such districts, the court of session to be a special Court to try the offences under this Act:
“Provided further that the courts so established or specified shall have power to directly take cognisance of offences under this Act.”
The Standing Committee of Parliament welcomed this amendment as the Principal Act is silent on the cognisance by special courts. As a result, offences are taken into cognisance by the Magistrate Court and then remitted to a special court, which delays not only the commencement of the trial but also delivery of justice. At present, special courts do not have the power to take cognisance of the offence directly. However, there is a concern among activists that the amendment enables the exercise of discretion by the authorities to establish “an exclusive special court for one or more districts”, and specify the court of session to be a special court for some districts recording fewer cases. This, they say, has the inherent potential to have the same loophole that marred the effectiveness of the principal Act. Although the Amendment Bill requires the State governments “to establish adequate number of courts to ensure that cases under the Act are disposed of within a period of two months as far as possible”, there is considerable scepticism about the implementation of this provision.
Krishnan, who played an important role in the enactment of the principal Act and in the preparation of the Amendment Bill, had pressed for the inclusion of offences like murder, massacre, rape, gang rape, social boycott, economic boycott, and so on in the Act, but they were not.
Krishnan had also pleaded for the establishment of exclusive special courts, supported by exclusive public prosecutors and investigating officers in each district, and for the careful selection of judges, prosecutors and investigators on the basis of sensitivity to justice in the context of the acute vulnerability of SCs and STs. The Amendment Bill requires a State government to specify an “Exclusive Special Public Prosecutor” who has been in practice as an advocate for not less than seven years, for every exclusive special court, but it does not fulfil the demand for appointing exclusive investigating officers in each district. More important, the Amendment Bill provides for a separate chapter on the rights of victims and witnesses, which guarantees their protection, access to case documents, information on case status and right to relief, compensation and rehabilitation as well as rights during the trial, including the right to get legal assistance and help from NGOs.
Atrocities against women
The committee expressed its firm view that cases of atrocities against SC/ST women must be tried through special courts with women judges and women public prosecutors, preferably belonging to the SC/ST community. For this purpose, the committee suggested insertion of a proviso in Clause 8 of the Amendment Bill.
The SC and the ST (Prevention of Atrocities) [PoA] Act, 1989, which came into force on January 31, 1990, provides for the setting up of special courts for the trial of cases involving atrocities against SCs and STs, and for the relief and rehabilitation of victims. The Act was envisaged as the existing Protection of Civil Rights Act, 1976, and the provisions of the Indian Penal Code were found to be inadequate. The working of the Act has exposed several paradoxes. Although the provisions of the Act are considered a deterrent, atrocities against SCs and STs continue at a disturbing level. As per the data of the National Crime Records Bureau (NCRB), the number of cases registered under the PoA Act in conjunction with the IPC increased from 38,449 in 2010 to 46,114 in 2013. The pendency rate of such cases increased from 79.1 per cent in 2010 to 84.1 per cent in 2013.
High acquittal rates, low conviction rates and poor coordination between the enforcement authorities at the State and district levels have been identified as the worrying factors by the Parliamentary Standing Committee, chaired by the BJP member Ramesh Bais. According to the report, the majority of victims and witnesses face hurdles virtually at every stage of the legal process—from the registration of a case to the investigation and filing of the charge sheet.
Early passage of the Amendment Bill pending in Parliament, with the necessary changes as suggested by the Parliamentary Standing Committee and activists, will not only fill the current legislative void caused by the lapse of the ordinance but also protect the rights of the SCs and the STs in letter and spirit. Strengthening the 1989 Act is considered a firm renewal of the commitments made in 1950 to Dalits in our Constitution to ensure for them a life of dignity and protection by the state. The Act, for instance, does not cover the commonly committed atrocities, such as social and economic boycott, garlanding with footwear, physical harm on the allegation of practising witchcraft, and so on. As the Amendment Bill expands the number of offences mentioned in the principal Act, it has given reason for hope that no such offence will go unpunished. Besides, all relevant IPC offences attracting punishment for less than 10 years and committed against SCs and STs are brought as offences in the Act.
One distinguishing feature of the Act is its promise to punish officials for their “wilful negligence” of their duties for a term not less than six months but which may extend up to one year. But the principal Act does not define clearly what constitutes “wilful negligence” by public servants, and this has enabled enforcement officials to find loopholes to escape from the duties imposed on them. The proposed amendments spell out these duties, which include prompt registration of a case, investigation according to due process of law, filing of a charge sheet in court at the stipulated time, supplying relief materials to the victims, and providing them compensation and protective and pre-emptive measures until the judicial process. The amendments also expand the scope of presumption regarding the awareness of the accused about the caste or tribal identity of the victim, to ensure the application of the Act to try an offence. The amendments do not place the onus on the complainant or the prosecution to prove that the accused acted on the basis of caste or tribal identity. It is for the accused to disprove such an assumption.
All these are likely to bring about radical changes in the manner of implementation of the Act, even though changing the mindset of people suffering from historical prejudices will continue to be a challenge for society.