ATROCITIES BY - MISS. DIPIKA SATISH GUPTA
ATROCITIES
AUTHORED BY
- MISS. DIPIKA SATISH GUPTA
LL.M. 2ND
YEAR Sem-3, Roll No. 11
P.E.
SOCIETY’S, MODERN LAW COLLEGE
Acknowledgement
This Project has been Written in simple and lucid
manner for better understanding and Appreciation of the study. However, it
would have been not possible without the kind support and help of many
individuals and organizations. I would like to extend my sincere thanks to all
of them.
I am highly indebted to teachers, Assistant Professor
(Law) for his guidance and constant supervision as well as for providing
necessary information regarding the Project and also for his support in
completing this Project.
I would like to express my gratitude towards the
library staff for their kind cooperation and encouragement which helped in
completion of this Project.
Last but not the least, a sincere
word of appreciation to my family and friends and thanks to people who have
willingly helped me out with their abilities
CERTIFICATE
It is certified that undersigned has prepared his Long Term Paper for LLM
2nd year Semester-3 on the topic-
“ATROCITIES”
In partial fulfilment LLM 2nd
year course. The work is authentic and has not been submitted in partial
or fulfilment of any course or degree at this university or any other
university. The undersigned has prepared the Long Term Paper as prepared the term paper as per requisite
format and pattern advised by the organization. The work is up to mark for evaluation
for the standard of LLM course
Dipika Satish Gupta
SIGNATURE OF SUPERVISOR
ROLL NO. - 11
PROF. PRAJAKTA MAA
LLM 2nd Year Course
2023-2024
ASSOCIATE PROFESSOR
DEPARTMENT OF LAWS DEPARTMENT OF LAWS
PES’S MODERN LAW COLLEGE, PUNE PES’S MODERN LAW COLLEGE
LIST OF
CASES
1.
Sasi Kumar Vs The
Superintendent of Police, Villupuram and three others.
2.
Sanjay Singh another Vs
State of Chhattisgarh
3.
State of Madhya Pradesh V.
Ram Krisha Balothia
4.
Pankaj D. Suthar Vs. State
of Gujarath
5.
Rajat Kumar Bandyopadhyay Vs
State of West Bengal and others
6.
Ram Babu Vs. State of Madhya
Pradesh
7.
Gorige Pentaiah V. State of
Andhra Pradesh
CHAPTER 1
1.1
INTRODUCTION-
“Caste can not be abolished by inter
caste dinners or stray instances of inter caste marriages.
Caste is a
state of mind. It is a diseases of mind. The teachings of the Hindu religion
are the root cause of this disease. We practice casteism and we observe
Untouchability because we are enjoined to do so by the Hindu religion. A bitter
thing can not be made sweet. The taste of anything can be changed but poison
cannot be changed into nectar.” - Dr. B.R. Ambedkar Twenty years have passed
since the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 was brought by the Government of India. Although the Act aimed to provide protection
and eliminate atrocities against the members of the Scheduled Castes and
Scheduled Tribes, there has been no mitigation with annual average of Crimes
registered against Scheduled Castes and Scheduled Tribes. Despite the right to
non-discrimination on the basis of caste or race enshrined in Art. 15 of the
Constitution of India, discrimination against SCs/STs is pervasive.
Though
abolished and forbidden by the art. 17, the practice of ‘untouchaability’
persists due to its systematic character. Hence the Indian Parliament enacted
the Protection of Civil rights Act. Under this Act, untouchability, as a result
of religious and social disabilities, was made punishable.
But 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. For the effective implementation of the Act, the
government has set up different administrative agencies, right from State level
to district levels. They are the establishment of Vigilance and Monitoring
Committees, Special Courts, Special Public Prosecutors etc. Now, it is right
time to promote a progressive Act like ‘The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 by amending from some of the
provisions of the Act which is very essential for achieving its objects and
goals.
1.2 STATEMENT OF RESEARCH
PROBLEM
Under this Act, government
of state establishes special court, special officer for effective
implementation of the provisions under this Act in actual the Government
servant fails to perform duties under the Act. The low rate of conviction in
atrocity cases and the release of offenders from the cases causing terror among
the victims of atrocities. In order to protect the interests of the Scheduled
Castes and Scheduled Tribes and to prevent atrocities against them there is a
need tostudy the provisions of the Act and strengthen the provisions of the Act
for the effectiveimplementation of the Act. Now the statement of the research
problem is to find out the defects in the Atrocities (Prevention) Act, in
itself and in its implementation.
1.3 SIGNIFICANCE OF RESEARCH
Significance of this
research is to thoroughly understand the structures and procedure of the SCs
and STs (Prevention of Atrocities) Act 1989. It helps to find out the origin of
the caste system, various reforms which taken by reformers. Research signifies
the information of the necessity and important features of the Act and then
proceeds to explain the criminal justice and administrative systems with focus
on the roles and responsibilities of government officials, lawyers etc. It also
covers the gaps in the implementation of the Act and possible intervention in
criminal trials.
On these tentative
conclusions a detailed study has been made to draw proper conclusions and to
give clear picture in order to have a clear understanding on the real living
conditions of Scheduled Castes and Scheduled Tribes and about the atrocities
those are being committed against these people and to suggest measures to
prevent atrocities against these people with the ambit of the law.
1.4 STATEMENT OF HYPOTHESIS
There are certain lacunas in
the procedures regarding atrocity prevention Act. Due to this, in very few
cases, today, the culprits are acquitted. The Indian constitution have
introduced various safeguards &provided equal opportunities for the SCSTs
in various fields of life. In spite of all the protective measures taken by the
Government to protect the Scheduled Castes and Scheduled Tribes still
atrocities are being committed against the Scheduled Castes and Scheduled
Tribes.
1.5 RESEARCH QUESTIONS
1.
What are the necessities of Prevention of Atrocities Act,
1989?
2.
How judiciary interpreted the provisions of SCs & STs
(Prevention of Atrocities) Act, 1989?
3.
What is the history behind atrocities rights?
4.
How the criminal justice systems perform the procedures
provided by the Act?
5.
Whether the POA Act effectively protects the rights of
scheduled castes and scheduled tribes?
6.
Whether there is any lacuna in the Act which leads to
violation of victim’s rights provided by the Act itself?
1.6 OBJECTIVES OF RESEARCH
1.
One of the objectives of this research is to study &
understand the reasons behind the atrocities on Scheduled Castes &
Scheduled Tribes in India.
2.
Another aim is to find out & understand the preventive
measures taken in India, in order to prevent these atrocities.
3.
One another aim of the study is to find out whether the
preventive measures have become successful in preventing the atrocities or not.
If not, what are the reasons behind them?
4.
To suggest the remedies/better solutions for preventing the
atrocities & for handling the atrocity cases more efficiently.
5.
To study the procedural part regarding the atrocity
prevention.
6.
To find out ways to remove procedural lacunae in atrocity
prevention.
7.
To find out whether we have succeeded in bringing social
equality, liberty & fraternity.
1.7 SCOPE OF RESEARCH
- To find out the main
causes/reasons for the increasing atrocities against Scheduled castes and
Scheduled Tribes.
- To analyze and understand
the working of Exclusive Special Courts andDesignated
Special Courts.
This research concentrates
mainly on finding the procedural lacunas & suggesting the remedies. Social
causes are studied by many people.
1.8 Literature review
1.
ATROCITY ACT : Published by- Dalit Aadivasi Adhikari
Aandolan, Maharshtra State :- This book mainly talk about the provisions of the
act and the difficulties in the implementation on various stages.
2.
ENSURING EFFECTIVE IMPLEMENTATION OF SCHEDULED CASTES AND
SCHEDULED TRIBES 9PREVENTION OF ATROCITIES0 ACT 1989 AND RULES 1995 by Adv.
Rahul Singh : Published by- National Dalit Movement for Justice :- This book
mainly deals with the history and background of the POA Act as well as the gaps
in its proper implementation.
1.9 RESEARCH METHODOLOGY
The research methodology
used for the present research article is traditional Doctrinal research method
as well as Non-doctrinal research method. As most of the information can be
sought from the available literature and data collection by method of
questionnaire. For Non-doctrinal research the researchers collected information
from taking responses to the questionnaires to Advocates, Judges, NGOs, Police
Officers and the Victims.
CHAPTER 2
2.0 HISTORY
AND BACKGROUND OF ATROCITIES
According
the Rig Veda, the oldest of the four Vedas, the distinction of the four Varnas
dates back to the origins of the human race: According to Rig Veda, Samhita, X
90.12. “That is to say, at the time of creation, the Brahmin was born from
mouth of his the Purusha (the Primeval man), the Kshatriya from his arms, the
Vaishya from his thighs, and Shudra from feet. Nevertheless, in order to
analyze justly the origin of Untouchability, it becomes imperative to examine the
religious texts, travelers’ accounts, etc., of the ancient times.”
?
Dharamsutras:
The
Orthodox Brahmins refined the four-Varna system ideologically over a period of
times. However, from the very beginning, the four-Varna system was filled with
contradictions. Therefore, the Brahmins had to revise the basic principle to conform
to the realities of daily life, resulting unavoidably in quite loose
interpretations and relaxation of the rules. In the Dharam sutras, we can see
much difficulties incurred by the Brahmins in defining the status of Shudra.
Defining the duties of these four Varnas, Rig Veda mentions in Samhita XI.235.
That, they were to support themselves and their families with the small
compensations received for theservices that they rendered. In Buddhist
scriptures, people considered to be inferior to the Shudra are often referred
as Chandalas, Nesadas, and Pukkusas. According to Gautam Dharamsutra, a son
begotten by a Shudra and a woman of a superior caste is called a Patita
(outcaste). The son of a Brahmin by Shudra woman is called Nishada by
Buddhayana.[1]
? During
1000-1600 CE
The period
between 1000-1600CE witnessed a new era of protest against the practice of
Untouchability. The untouchables who were deliberately degraded by the Brahmin
forces had never accepted their position. At first their response to Untouchability
came to the force in the form of the Bhakti cult. The high castes, especially
the Brahmins had the monopoly over both the ways of salvation. The saints
belonging to the Bhakti Cult stood up against the Vedantic philosophy. They
believed in spiritual equality and Bhakti or devotion to God as one of the
means to achieve salvation. However, Chokhamela and Kanaka the untouchable
saints, were not allowed to enter the temple of Vithal at Pandharpur and the
temple krishan at Udippi respectively.
? During
18th century:
Similarly
in Bengal, the life a Ramakrishna Parmahamsa left an indelible mark. He used
expressions such as “the devotees” have no caste. His famous disciple, Swami
Vivekananda, established the Ramakrishna’s Mission in 1896. The mission translated
Ramakrishna’s teachings into action by devoted services to the poor regardless
of their caste or religion. In his views, “all members of society ought to have
equality of opportunity. For inequality is the bane of human nature, the curse
upon mankind, the root of all misery-this the source of all bondage, physical,
mental and spiritual.”
? In 19th
Century:
When in
19th Century the British established their rule over most of India, their
policy too was one of non-interference but there was a pressure on them to
change the social order in India. Some of their policies had an impact on the
social order. For example they established a nationwide legal system, which
resulted in the movement of disputes from caste and village tribunals to the
Government’s Courts, which [2]supported
the norm of equality before the law. Therefore, the British Law, in principle,
did not recognize the caste structure as far as criminal/commercial law was concerned.
? In 20th
century:
By the
early twentieth century, the communal quota began to be viewed as a step
towards equality. Though the state of Mysore inaugurated the first regime of
communal quota in 1918 the reservations were only for non-Brahmin ‘backward
castes’. Some relief was given by the 1919 reform. Of much greater importance
is the fact that the voice of some untouchable leaders began to be heard around
this time in political assemblies. The communal award of 1932 has to be see in
this context. It granted the demand of the In 1938, for the first time in
British India, government intervened to secure the opening of temples when the
Bombay and Madras legislatures passed temple entry Acts. Encouragement to the
education of the untouchables increased and measures were taken to secure for
them some posts in government service. Before independence, 27 Acts had been
enacted by various legislatures to give more legal rights to those had till
then experienced social and religious Disabilities.
2.1
Different names to denote ‘Untouchables’
The term
‘Harijan’ was adopted by Mahatma Gandhi in 1933 as the winning entry in a
national competition for a suitable name to replace the terms noted below.
Gandhi’s object was to invent a name which identified the relevant people
without fixing them with an inferior status – ‘Harijan’ is translatable as
‘People of God’. The word ‘Dalit’ is now fast supplanting the other generic
names for persons descended from the old Untouchable castes. This is a word in
the Marathi language of Western India, and is apparently derived from Sanskrit.
In an 1831 dictionary the word is defined as ‘ground’ or ‘broken or reduced to
pieces generally’ (Molesworth’s Marathi-English Dictionary 1831). It was
seemingly first used in the context of caste oppression by the great
nineteenth-century reformer Phule.
The second
category is a cluster of terms devised mainly in British bureaucratic
contexts-above all the Census – from late in the nineteenth century to the
1930s. These terms included ‘Outcastes’, ‘Depressed Castes’ and ‘Exterior
Castes’. The end point of this line of verbal/conceptual development is the
term ‘Scheduled Castes’, now the official identifier of what we are calling the
Untouchables. The so-called Schedule is a list of castes entitled to parliamentary
seats, public employment and special educational benefits. This Schedule was
originally promulgated by the British Government of India in 1936 but the term
‘Scheduled Castes’ only became widely used after Independence. A simply ritual
basis for Untouchability is rendered problematical by the lack of identity
between Untouchable status and employment in polluting occupations. Today, most
Untouchables do not perform the work that is the polluting mark of their caste.
So among Chamaras, the largest Untouchable caste in India, only a small
minority are employed in connection with their hereditary and polluting work
with skins and leather. Chamars are above all agricultural labourers. Some
important Untouchable Castes, including the Dusadhs of Bihar and the Mahars of
Maharashtra, traditionally performed work that was mostly non-polluting. The
Mahars had no specialized skills but were general village servants and
messengers, though they did sometimes collect the skins of fallen animals. And
the Dusadhs were field labourers and servants to individual high-caste
families. It is scarcely plausible that 150 million people are all descended
from people who were once employed in the comparatively small number of deeply
polluting occupations
2.2 Violence
and Atrocities against SCs and STs
The caste
system has produced numerous rules about untouchability that govern everyday
interactions between social groups in rural India. From not being allowed to
use certain wells and handpumps to being forced to eat separately, rules
regulate all aspects of life for Dalits and constantly reinforce their sense of
subordination. In what must surely be a perversion of religion, acts of brutal
inhumanity and profanity, such as forcing Dalits to eat excreta, rape and
lynching, are justified by upper castes who invoke the Hindu scriptures to seek
moral legitimacy. One of the reasons why Dalits are forced to suffer extreme
humiliation and violence is the traditional caste belief, that regards Dalits
as inauspicious. Not only their touch but even their shadow is treated as
polluting. It is believed that Dalits cause drought and diseases. Reportage of
violence done to Untouchables is a burning affair, as can be seen from the
reports of the Commissioner for Scheduled Castes and Scheduled Tribes. As the
Constitutional authority charged with measuring the progress of the Scheduled
Castes (Article 338), the Commissioner has been reporting on cases of violence
and Atrocities against Scheduled Castes and Scheduled Tribes. The complaints received
by the Commissioner of Scheduled Castes and Scheduled Tribes are going to be
registered under the category called ‘Cases of Atrocities and Harassment, a
nomenclature which seemed to fit mounting concern about violence done to
Scheduled Castes and Scheduled Tribes.
2.3 Reasons
for practices of untouchability and Atrocities
The
question, therefore, arises as to why this system prevails and what are the
difficulties in the way of government to end the system. A study conducted by
the National Commission for Scheduled Castes and Scheduled Tribes on
‘Atrocities on Scheduled Castes and Scheduled Tribes: Causes and remedies
pointed out various casual factors for Atrocities: land disputes; land
alienation; bonded labour; indebtedness; non-payment of minimum wages; caste
prejudice and practice of Untouchability; political factors on caste lines;
refusal to perform traditional work such as digging burial pits, arranging
cremations, removing carcasses of dead animals and beating drums, etc. The deep
root for such Atrocities is traceable to the caste system, which encompasses a
complete ordering of social groups on the basis of the so-called ritual purity.[3]
i.
Another difficulty is that 50 per cent of India’s
total population still lives in the villages. The villagers are not aware of
the changes that are taking place in social and political system in the cities.
They still live in the limited world of their own in which untouchables should
be kept of and not to be touched.
ii.
Illiteracy is then another cause. The people,
particularly those putting up in the rural areas are illiterate. They can’t
read wild criticism which has been advanced in retaining Untouchability by the
enlightened world. They are guided by half literate or rather little literate
people who interpret things in their own way and justly the retention of
Untouchability.
iii.
Religious mindedness of the people is still another
cause. Untouchability in India has made by Brahmin caste as a part of our
religious system. It has been argued out that those who touch, mix or live with
the untouchables will be offending Gods. Since vast majority in India believes
in religion therefore, they do not wish to annoy their God by mixing with the
untouchables. Superstitions have in no way been less contributing to the
retention of the system In this way Untouchability still continues. It
continues also because even 70 years after independence unfortunately the
untouchables have not advanced considerably to the extent in social, economic
and political life of the country on the one hand and educationally on the
other. In case they came up in these fields the problem will be considerably
solved. For this the Government will be course have to make serious efforts.
2.4
Ambedkar and Gandhiji on Untouchability
Both Gandhi
and Ambedkar addressed themselves to the problem of the removal of
Untouchability and the upliftment of the untouchables. Yet, they differed in
their approaches and strategies so much that one criticized the other bitterly.
Gandhiji believed that Untouchability was not an authentic part of Hinduism;
the sooner Hindu understood this, the sooner Untouchability would disappear. He
believed that Untouchability could be removed only when the majority Hindus
realize that it was a crime against God and man and are ashamed of it. Ambedkar
viewed Untouchability as an institutionalized expression of socio-religious
oppression and exploitation by the dominant elements. He traced the roots of
the problems in the structure of the Hindu Four-
Varna
system. He believed that the untouchable is a by-product of both the Varna
system and the caste system, hence there will be untouchables as long as there
are castes. At the end of his life, Ambedkar concluded that nothing can
emancipate the outcaste except the destruction of the system. This statement of
Dr. Ambedkar shows that he was very close to the views of Gandhi at this time.
Much of nationalist press eulogized this change in attitude of Dr. Ambedkar. It
clearly showed that time in his life, Dr. Ambedkar believed that the Scheduled
Castes could remain within the fold of Hinduism and hope to receive fair
treatment.
2.5 Untouchability
in India Since 1950
At the
transfer of power in 1950, it was widely accepted that discrimination on the
basis of caste would have no place in independent India. Consequently, the
Indian Constitution in its very preamble assures every citizen of social,
economic and political justice and equality of status and opportunity. Article
17 forbids the practice of Untouchability in any form. Among the fundamental rights,
Article 14 enunciates the right to equality; Article 15 prohibits
discrimination on grounds of religion, race, caste, sex or place of birth.
Article 25(2)(b) assures all classes and sections of Hindus access to Hindu
religious institutions of a public character. The Directive principles of State
Policy, which serve as guidelines for the State in making laws, contain
specific provisions, viz., Article 38, 39, 39A, which enjoin on the State, the
duty to ensure the creation of a just social order and Article 42, which asks
the State to promote with special care the educational and economic interests
of the weaker sections especially the Scheduled Castes.
2.6
Untouchability in Contemporary India
Ever since
India became independent, there have been a number of Amendments to the
Constitution of India to improve the socio-economic and political status of
India’s backward classes in addition to the Scheduled Castes and Scheduled
Tribes. In August 1989, V.P. Singh the then Prime Minister of India, announced
to implement the recommendations of Mandal Commission which was set up in 1978
and submitted its report in 1980. V.P. Singh’s decision led a wide-spread
protest, especially by the members of upper castes. However, after the
implementation of the Mandal Commission’s recommendations the incidents of
violence against
low caste
people have increased.
• Social
justice: Meaning of the term ‘Social Justice’:-The term ‘Social Justice’
may be defined as the right of the weak,
aged, destitute, poor, women, children and other under-privileged persons to
the protection of the State against the ruthless competition of life. It gives
the necessary adventitious aids to the under-privileged so that they may have
the equal opportunity with the more advanced sections of the society in the
race of life. According to former Chief Justice of India, K. Subba Rao, the
word ‘social justice’ has two-fold meaning. He said: “The expression ‘social
justice’ has a limited as well as a wider meaning. In its limited sense it
means the rectification of injustice in the personal relations of the people.
In its larger sense it seeks to remove the imbalances in the political, social
and economic life of the people. Social Justice is to be understood in the
latter sense. As the three activities are [4]inter
connected, there cannot be social justice even in its limited sense, unless the
society progreses in all directions. In short, social justice helps to bring
about a just society.”
In short,
it may be said that social justice means treating a human being as a human
being. It includes equality of treatment, equal opportunity for betterment and
equality of status.
? Measures
to Promote Social Justice:-
Indian
‘Constitution is a document vibrant with a social and economic ideology geared
to the goal of socio-economic justice. To lay down the foundation of this
document of social restructuring in 1947, there was no one better prepared for
the job of constitution-crafting than Dr. Babasaheb Ambedkar. With his vast
funds of knowledge of Constitutional Law and grassroot experience of country’s
complex socio-economic and political issues he set out his thinking about the
nation’s constitutional needs. As a consequence, the doctrine of Rule of Law,
Part III and IV of the Constitution, that is, Fundamental Rights and Directive
Principles of State Policy, an independent judiciary as an arm of social
revolution, the charter of equality, liberty and justice: Social, economic and
political to all, along with some constitutional safeguards to the downtrodden
groups (SCs, STs, OBCs, minorities and women) form the core of social
revolution. These constitutional convictions are as follows:
1. Articles
14,15,16 ensures equal protection of law, non-discrimination by the State on
grounds of religion, caste, sex or place of birth particularly in matters
relating to employment, absence of any disability or restriction among citizens
in the matter of access to public places or use of places of public resort.
Articles 15 and 16 commands the State to make special provisions through
reservation or otherwise in favour of Scheduled Castes, Tribes, women, children
as well as other backward classes of citizens.
2. Article 17
abolished Untouchability and made criminal prohibition of its practice in any
form.
3. Articles 23
and 24 prescribes prohibition against exploitation and of traffic in human
beings and forced labour.
4. Articles
25, 29 and 30 provides for equal entitlements of every person to freedom of
conscience and the right to freely profess, practice and propagate ones
religion, protection of interests of minorities and their right to establish
and administer educational institutions.
5. Articles 38
directs the State to secure a social order for the promotion of welfare of the
people by elimination of inequalities in status, facilities and opportunities
including social order founded on justice: social, economic and political.
6. Article 39
lays down the State policy towards securing adequate means of livelihood for
every citizen, equal pay for equal work to men and women and preventing concentration
of wealth to the common detriment.
7. Article 39A
assures equal justice under law and towards that end providing free legal aid
to the poor.
8. Article 45
directs the State to provide free and compulsory education to all children
within 10 years of the commencement of the Constitution.
9. Article 46
directs the State to promote educational and economic interests of Scheduled
Castes, Scheduled Tribes and other weaker sections and also commands the State
to protect them from social injustice and all forms of exploitation. Article
335 directs the State to maintain the claims of SCs and STs to services and
posts.
10. Along with
the policy of reservation of job quota and in educational institutions for the
Scheduled Castes and Scheduled Tribes, Articles 330, 332 and 334 provide
reservation of seats for Scheduled Castes and Scheduled Tribes in the House of
the People and in the Legislative Assemblies of the State.
11. Article 338
makes the provision for National Commission for the Scheduled Castes and
Scheduled Tribes to advise on the socio-economic development of the Scheduled
Castes and Scheduled Tribes and to evaluate their progress under the Union and
States.
12. Article 340
provides for the Commission to investigate the conditions of backward classes
and to make recommendations as to the steps that should be taken by the State.
Thus, along with the general constitutional guarantees, there are specific
safeguards for the downtrodden groups. These provisions speak for the State’s
commitment and conviction to create a just, humanitarian social order, an
egalitarian society premised on the constitutional spirit of liberty,
coequality, fraternity and justice.[5]
Chap no.3 THE SCHEDULED CASTES AND
SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT
3.0
Necessity and objective
The basic
objective and purpose of this more comprehensive and more punitive piece of
legislation was sharply enunciated when the Bill was introduced in the Lok
Sabha. Despite various measures to improve the Socio-Economic conditions of the
Scheduled Castes and Scheduled Tribes, they remain vulnerable. They have, in
several brutal incidents, been deprived of their life and property. Because of
the awareness created through spread of education, etc., when they assert their
rights and resists practices of Untouchability against them or demand statutory
minimum wages or refuses to do any bonded and forced labour, the vested
interests try to cow them down and terrorize them when the Scheduled Castes and
Scheduled Tribes try to preserve their self-respect or honour of their women,
they becomes irritants for the dominant and the mighty. “It is considered
necessary that not only the term ‘atrocity’ should be introduced to provide for
higher punishment for committing such atrocities. It is also proposed to enjoin
on the States and Union Territories to take specific preventive and punitive
measures to protect Scheduled castes and Scheduled Tribes from being victimized
and, where atrocities are committed to provide adequate relief and assistance
to rehabilitate them”. The objectives of the Act, therefore, very clearly
emphasis the intention of the Indian State to deliver justice to Scheduled
Caste and Scheduled Tribe Communities through affirmative action in order to
enable them to live in Society with dignity and self-esteem and without fear,
violence or Suppression from the dominant castes.
3.1Some
special features
When
compared with “Protection of Civil Rights, 1955” The Scheduled Castes and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 has some distinct
features. They are:
1. Nature of
offences: The ‘Act’ enlarges the area of criminal liability by identifying new
types of offences, thereby including several acts of omission and Commission
not covered under the Indian Penal Code or protection of Civil Rights Act.
Protects Scheduled Castes and Scheduled Tribes from various kinds of atrocities
relating to Social, disabilities, property, malicious persecution, political
rights and economic exploitation.
2. Victims and
perpetrators: This ‘Act’ for the first time categorically defines an atrocity
crime by sole reference to caste identification of the offender should be
non-Scheduled Caste on non- Scheduled Tribe member and the victim should be
Scheduled Caste or Scheduled Tribe member.
3. Investigation
Procedure under the Act: The ‘Act’ specifically ensures that investigation
offers are police officers not below the rank of Deputy Superintendent of
Police with experience and ability to investigates such cases. The ‘Act’
mandates the completion of police investigations within 30 days of occurrence
of the atrocity. Prohibits grant of anticipatory bail to persons accused of
offences under the Act.
4. Setting up
of Special Courts for the trail of ‘atrocity’ cases: The ‘Act’ makes
arrangements for setting up Special Courts and grants special powers to them to
ensure speedy trails of atrocity cases, and for Special Public Prosecutors to
conduct the cases.
5. Nature of
punishment: Impose exemplary punishment at a scale much higher than under the
IPC for atrocities on SCs/STs, except for the offence of rape. A public servant
accused under the Act also has been made liable to a higher minimum punishment,
and importantly, neglect of official duties has been deemed punishable.
6. Relief
& Rehabilitation Measures to the victims: Provides legally justiciable
rights to the victims of atrocities by way of a scale of graded financial
assistance and provision of relief and rehabilitation, apart from travel and
maintenance allowances for victims and witnesses during investigation and
trial, etc.
7. Setting up
of National & State level Monitoring Mechanisms: Setting up SC/ST
Protection Cell at the State Headquarters under the charge of
Director/Inspector General of Police for supervision of various actions taken
under the Act. Authorizing the National Commission for Scheduled Castes (NCSC)
& National Commission for Scheduled Tribes (NCST):
(a) to
investigate, monitor and evaluate the safeguards provided for SCs/STs;
(b) to inquire
into specific complaints by SCs/STs of rights violations;
(c) to
discharge such other functions in relation to the protection, welfare and
development and advancement of SCs/STs.
8. Preventive
Measures to be taken by: Implementing a range of preventive measures,
including: preparing a model contingency plain; identifying atrocity prone
areas; cancelling arms licences of potential offenders under the Act; granting
arms licences to SCs/STs as a means of self defence; setting up awareness camps
in atrocitiy prone areas to educate SCs/STs as a means of self defence; setting
up awareness camps in atrocitiy prone areas to educate SCs & STs about
their rights.
3.2
Definition of Atrocity and SCs and STs (Prevention of Atrocities) Act 1989-
The word
‘Atrocity’ is very vital concept in the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989, Section 2(1)(a) of the ‘Act’
defines the expression ‘atrocity’ which is as follows: “atrocity” means an
offence punishable under section 3. Meaning of the word ‘Atrocity’:- In
webster’s Third International Dictionary, one of the meaning ascribed to word
‘atrocity’ is “the quality of State of being atrocious”, while the word
‘atrocious’ has been ascribed, inter alia, the following meaning:
1. “marked by
or given to extreme wickedness;
2. marked by
or given to extreme brutality or cruelty;
3. Outrageous;
violating the bounds of common decency; uncivilized, barbaric;
4. extremely
painful, marked by intense distress;
5. of such a
kind as to fill the fright or dismay”.
If we
consider the meaning of these words while interpreting section 3 of the Act, we
would find that cash one of the acts contemplated by section 3 is atrocious and
they aim at punishing the persons who
are found guilty of the same.[6]
3.3 Definition
of Scheduled castes and Scheduled Tribes
Section
2(1)(c) defines that “Scheduled Castes and Scheduled Tribes” shall the meaning
assigned to them respectively under clause (24) and clause (25) of Article 366
of the constitution i.e., Article 366 clause (24) reads: In this constitution,
under the context otherwise requires, the following expression have the meaning
here by respectively assigned to them, that is to say: “Scheduled Castes” means
such castes, races or tribes or part of or groups within such casts, races or
tribes are deemed under Article 341 to be Scheduled Castes for the purpose of
this Constitution. Article 366 Clause (25) reads “Scheduled Tribe” 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
purpose of this Constitution. Hon’ble Supreme Court in Bhaiyalal Vs Harikishan
Singh1 held that an enquiry whether theappellant there belonged to the Dohar
Caste which was not recognized as a Scheduled Caste andhis declaration that he
belonged to the Chamar Caste which was a Scheduled Caste could not be permitted
because of the provisions contained in Article 341. Court can come to a finding
that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled
Caste is a case as notified under Article 366 (24). A notification is issued by
the President under Article 341, as a result of an elaborate enquiry. The
object of Article 341 is to prove protection to the members of Scheduled Castes
having regard to the economic and educational backwardness from which they
suffer. Thus Scheduled Castes and Scheduled Tribes are not a Caste within the
Ordinary meaning of caste.
3.4 Test to
Determine the offence of Atrocity
Sections
3(1)(i) to 3(1)(xv) explain about ‘atrocities. Following are the ‘atrocities’,
committed by a person who does not belong to Scheduled Caste and Scheduled
Tribe considered as punishable offences under Scheduled Castes and Scheduled
Tribes (prevention of Atrocities) Act 1989;[7]
1. Forcing a
member of Scheduled Castes and Scheduled Tribes to drink or eat obnoxious
substances or dumping waste in the premises or neighbourhood with intention to
cause insult or annoyance to him and forcibly removing clothes or parading
naked a member of Scheduled Caste and Scheduled Tribe.
2. Forcing or
compelling a Scheduled Caste and Scheduled Tribe to do beggar (forced labour)
or bonded labour, wrongful occupation or cultivation of land belonging to
Scheduled Castes and Scheduled Tribes, wrongful dispossession from land or
interference with the enjoyment of rights over any land, premises or water and
forcible causing of a Scheduled Caste and Scheduled Tribe to leave his house or
village.
3. Preventing
a Scheduled Caste and Scheduled Tribe person from voting or forcing him/her to
vote for a particular candidate or vote in a manner prohibited by law.
4. Instituting
a false suit or criminal proceeding against a Scheduled Caste and Scheduled
Tribe person.
5. Giving
false information to any public servant and thereby compelling him to use his
power to cause injury, harm or harassment to a Scheduled Caste and Scheduled Tribe
person.
6. Insulting
or intimidating a Scheduled Caste and Scheduled Tribe person in public with the
intention of humiliating that person.
7. Dishonoring
or outraging the modesty of any woman belonging to a Scheduled Caste and
Scheduled Tribe.
8. Polluting
the water of a spring or reservoir ordinarily used by members of Scheduled
Castes and Scheduled Tribes so as to make it unfit for use.
9. Using any
custodial or dominant position to sexually exploit a woman belonging to
Scheduled Castes and Scheduled Tribes.
10. Denying a
Scheduled Caste and Scheduled Tribe person a customary right of passage to
public resort or preventing him/her from using public places accessible to
others.
3.5 PUNISHMENTS
UNDER SCHEDULED CASTES AND SCHEDULED TRIBE (PREVENTION OF ATROCITIES) ACT, 1989
The Act
provides for the following punishments –
1) in respect
of offences u/s 3(1), the punishment may be an imprisonment for a term which
shall not be less than six months but which may extend to five years and with
fine,
2) in respect
of offences u/s 3(2), the punishment varies with the nature of the offences
that have been committed -
i.
for the offence u/s 3(2)(i), the punishment is life
imprisonment or death
ii.
offence u/s 3(2) (ii), the punishment is imprisonment
for a term not less than six months but which may extend to seven years or
upwards and with fine.[8]
The second
offence or any offence subsequent to the second offence, shall be punishable
with imprisonment for a term which shall not be less than one year but which
may extend to the punishment provided for that offence.
? By
invoking inherent powers u/s 482 Cr.P.C. the court is empowered to compound the
offence under the Civil Rights Act & the Atrocities Act
In Rupabahi
Bhalabhai Bharwad Vs. State of Gujarat and another the Gujarat High Court held
that Undoubtedly, it is true that Section 320 of the Code is silent on the
point of compromise so far as the offence under the Civil Rights Act and the
Atrocities Act are concerned, as there is no subsequent amendment made to that
effect. It is further equally true that both the Civil Rights Act and the
Atrocities Act have not made any express provisions for compounding of the
offences. It is under these circumstances that the question rise as to when the
“Law” is silent on the point of compromise, whether the “Justice” is also
required to maintain tight lips or something should be done by the court which
they ultimately bring about peace and harmony between the two classes of the
Society which is fundamental pre-requisite for the maintenance of the “Rule of Law”,
“Justice” and the overall happy and peaceful society. One can quite understand
that the grave and cold-blooded offences like murder, dacoity, rape,
child-lifting or any such type of grave offences are not rightly made
compoundable. One can as well also understand the cases where the Court feels
that composition of the offences arrived at between the parties is not genuine
and voluntary but has been brought about by some threats, inducements and
coercions, the Court would be justified in refusing the same. When the
aggrieved party approaches the Court praying for compounding of offences and
the Court is satisfied that the same was honest, genuine, true and voluntary,
and that the same will bring about harmony and peace in the area, setting at
naught the caste-hatred and conflicts arising therefrom, then there is indeed
no harm in accepting such compromise purshis. The courts of law aiming at
justice is also supposed to prevent the situation where the things flare- up
and the aggrieved person once again becoming victim of the alleged offence,
approach the Court for redressal of his grievances. If the prevention is better
than cure, such a compromise purshis is certainly more advisable and acceptable
than to refuse the same on the technical ground that there is no express
provision in the law for the same. Before accepting the composition, this Court
has consulted its judicial conscience whether the composition in question would
serve the individual and social interest or not, and after deeply pondering
over the same, it has reached the considered opinion that it will serve both
the purposes. Ordinarily, before accepting such compromise purshis, this Court
would have directed the learned APP to handover a copy of the same to the
Police Officer of the area concerned to find out a to whether the same was
voluntary, genuine and truthful or not, as has been thought advisable and done
by this Court in a reported decision in case of the State of Gujarat Vs. Rajput
Bhikaji Kaluji and Ors.
However, by
way of abundant caution and in order to rule out the possibility of the
aggrieved SC and ST complainant is brow-beaten or coerced to enter into the
compromise, it is desirable that such compromises should not be directly
accepted without the previous permission of the Court which in turn before
granting the same shall have to record satisfaction on the basis of directions
given in the case of the State of Gujarat Vs. Rajput Bhikaji Kaluji & Ors.
that the same was voluntary, true and genuine and not sham one. In fact a similar
question also did arise before the Madras High Court in case of Dhanraj Vs. The
State. In the said case, the question was whether the offences under Sections 6
and 7 of the Civil Rights Act were compoundable or not, wherein in para-4 it
has been observed as under: “. A doubt was raised that the offence under the
Protection of Civil Rights Act is not strictly compoundable one. I have
carefully considered this contention and heard the learned counsel for the
appellant as well as the learned Public Prosecutor. It is clear that the
Protection of Civil Rights Act, 1955 is a special Act and S. 16 of the same
lays down that it overrides other laws.”. The aforesaid observations of Madras
High Court are [9]required
to be whole-heartedly endorsed and in that view of the matter, though there is
no express provision is either of the aforesaid two act, viz., the Civil Rights
Act and the Atrocities Act, regarding composition of the offences, still
however, invoking inherent powers under section 482 of the Code, this Court
declares that the Court is definitely empowered to compound the offence under
the Civil Rights Act and the Atrocities Act; depending upon the facts and
circumstances of that particular case. Thus, once the cordial relations are
resorted between the parties and they have already started living peacefully
together, no better justice could ever be done then by seeing that
compromise is accepted and things are rehabilitated in the said manner.
3.6
JUDICIAL INTERPRETATIONS AND THE SCHEDULED CASTES AND SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT, 1989
The object
of the Act: The object of Act 33 of 89 is to prevent atrocities against members
of Scheduled Caste and Scheduled Tribe and this has to be taken into account
while interpreting the Act. Penal provisions are to be construed strictly
1. In Arumugum
Servai Vs State of Tamil Nadu , Honourable Supreme Court of India by Markandey
Katju and Gyan Sudha Misra JJ. Prounced that “Discrimination on the ground of
caste is illegal and punishable. Similarly, honour killing is barbaric and
illegal. In the modern age nobody’s feelings should be hurt. In particular in a
country like India with so much diversity as held by Bombay High Court in
Kailas Vs. State of Maharashtra. We must take care not to insult anyone’s
feelings on account of his caste, religion, tribe, language, etc. Only then can
we keep our country united and strong. In Swaran Singh & Ors. Vs. State
through Standing Counsel & Another , this Court observed: Today the word
‘Chamar’ is often used by people belonging to the so-called upper castes or
even by OBCs as a word of insult, abuse and derision. Calling a person
‘Chamar’today is nowadays an abusive language and is highly offensive. In fact,
the word ‘Chamar when used today is not normally used to denote a caste but to
intentionally insult and humiliate someone. It may be mentioned that when we
interpret section 3 (1)(x) of the Act we have to evident from the Statement of
Objects and reasons of the Act
2. To
constitute an offence under the ‘Act’ of 1989, Intention and knowledge for
commission of offence on part of accused, were essential ingredients. In M.L.
Ohri & Others Vs Kanti Devi, Justice Mahesh Grover, J of Punjab and Haryana
High Court held that to constitute an offence under section 3 (1)(x) of The Scheduled
Castes and Scheduled Tribes (prevention of Atrocities) Act, 1989, intention and
knowledge for commission of offence are essential ingredients. The complaint
against the petitioners has been initiated pursuant to the provision of Section
3(1)(x) of the Act which are reproduced herein for ready reference: “Section
3(1) (x) intentionally insults or intimidates with intent to humiliate a member
of a Scheduled Caste of a Scheduled Tribe in any place within public view,
Shall be punishable with imprisonment for a term which shall not be less than
six months but which may extend to five years and with fine.” A perusal of the
aforesaid provision of law makes it abundantly clear that intention and
knowledge to commit the aforesaid offence are essential ingredients of the
offence. The Court is not expected to act mechanically and summon an accused
and it necessarily has to apply its mind to the averments made in the complaint
and reconcile them with the provisions of law and if the averments made in the
complaint satisfy the essentials of law then necessarily summon the accused and
not otherwise. When there is no averment in complaint that complainant belonged
to Scheduled caste and that petitioners intentionally and knowing her to be a
member of Scheduled Caste utter the words attributed to them so as to insult
her. Thus, complaint liable to be quashed.
3. Under the
provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act 1989, “When evidence did not show that accused was not a member of Scheduled
Caste or that victim was intentionally insulted or intimidated by accused with
intent to humiliate, conviction under SC and ST Act could not be sustained. In
Ram Babu Vs. State of Madhya Pradesh , the Madhya Pradesh High Court held that,
when the basic ingredients of the offence are missing in the complaint and the
evidence that was produced by the prosecution, the conviction against the
appellant for offence under Section 3(1)(xi) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained.
Reliance in support of this view is placed on a judgment of the Hon’ble Supreme
Court in Gorige Pentaiah V. State of Andhra Pradesh9 . In view of the
foregoing, this appeal is allowed. The impugned judgment of conviction and
order on sentence passed by the trial court against the appellant is hereby set
aside. The appellant is acquitted of the charge under Section 3(1)(xi) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. To
constitute an offence under the ‘Act’ of 1989 a part from intention and
knowledge for commission of offence, the accused, had knowledge that
complainant belonged to Scheduled Caste or Scheduled Tribe. This point of Law
was held by Justice M.M.S. Bedi, of Punjab and Haryana High Court in Joginder
Singh Vs State of Haryana and other10 . That is there must be specific averment
in complaint that accused had knowledge that complainant belonged to Scheduled
Caste or Scheduled Tribe.
5. Asking a
member of Scheduled Caste Community whether he was suffering from depression or
had any problem because he is a Scheduled Caste, does not in any way amount to
either intentional insult or intimidation of a Scheduled Caste with an intent
to humiliate him and it does not constitute any offence. This was held by
Justice Ashim Kumar Roy of Calcutta High Court in Rajat Kumar Bandyopadhyay Vs
State of West Bengal and others. Merely calling a person as Idiot, nonsense
which have no [10]reference
to the community and from those words it cannot be inferred that the intention
or intimidation are with reference to the community to which the complaint
belongs
Chap No. 4. GAPS IN IMPLEMENTATION OF
STS &SCS (PREVENTION OF ATROCITIES) ACT 1989
This
chapter identifies the major problems or gaps at each and every stage of the
criminal trials of atrocity cases under this Act. These are interventions based
on the available remedies under SCs and Sts (Prevention of Atrocities) Act 1989
and Rules 1995and the Criminal Procedure Code. Hurdles exist at every stage of
the process to attain justice after atrocities take place, including at the
stage of registration of cases, intervention of cases, charges sheeting, and at
the trial stage. Tremendous pressure is placed on the victims not to lodge
their initial complaints of atrocities. They are often threatened and
intimidated not to speak about the incident. quite of ten police officials
refuse to write the complaint of the victims or register the FIR, or to
register cases under PoA Act. Even If the cases somehow registered under the
PoA Act, often police will not register the case under the proper sections of
the POA Act. Moreover, counter and false cases are increasingly registered
against the victims at the behest of the dominant castes, sometimes in
collusion with police officials. Police do not arrest the accused immediately.
Cases are not investigated in time. Inquiries are not made with all the victims
and witness during and after investigation. Most of the time, victims are not
provided with protection during and after investigation of atrocity cases. It
is also seen that the duration of investigation in counter cases is faster than
in PoA Act cases. At the time of filing the charge sheet, often the statements
are not corroborated with the contents of charge sheet. Sometimes, vital
information in deliberately left out the charge sheet in order to weaken the
case in favour of the accused. In addition to issues of the non appointment of
judges or SPPs, or the poor competency of SPPs, the lack of speedy trials
through special courts, delays in trials due to the accused, victims and
witnesses not appearing for trial, victims and witnesses turning hostile during
court proceedings due to fear or threats, arguments taking a substantial length
of time, the courts being over burdened with cases, lengthy investigations,
etc. all contribute to the denial of speedy justice to victims of atrocities.
4.0 Complaint
and Registration of FIR:
It is the
duty of the Officer in charge of Police Station to write the information
relating to atrocity offence and read over to the informant, and copy of report
given to be the informant free of cost. Gaps in the implementation is at the
stage of complaint, the complaint of the victims in only reduced to daily diary
entry by the police and is not registered as a FIR. Complaint of the victim is
not read over to him/her and explained as per Rule 5 PoA Rules. The complaint
of women victim is not recorded by a women constable for offence committed
under 326(A), 354, 354 A,B,C,D, 376 or 509 of IPC asper section 154 (1) of
Cr.P.C. FIR not registered under the PoA Act 1989 and registered only under
sections of IPC. Police officials not including necessary details in the FIR
(facts of case, figures, words/deleted the names of the accused list, their
details) as mentioned by the victims. Police officials not issuing free copy of
FIR to the victims as per Rule 5(2) PoA Rules and section 154 (2) Cr.P.C.
counter FIRs are registered by the police officials in connivance with the
accused persons against the victims and witnesses.
? Section
438 of the Code not to apply to Persons commiting an Offence under the ‘Act’
Nothing in Section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of having committed an
offence under this Act. Whether Section 18 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, unexceptionally bars grant of
anticipatory bail when the offence punishable under said Act is alleged in the
Complaint? In the Pankaj D. Suthar Vs. State of Gujarath12 case Gujarath High
Court held that Section 18 of Scheduled Castes (Prevention of Atrocities) Act,
1989 does not absolutely bar grant of anticipatory bail when the offence
punishable under said Act is alleged in the complaint. The court further
observed that the Supreme Court in the case of State of Madhya Pradesh V. Ram
Krisha Balothia13, has held that the offences which are enumerated under
Section 3(1) of the Act arise out of the practice of “Untouchability”. It is in
this context that certain special provisions have been made in the Act,
including Section 18. The exclusion of Section 438 of the Code of Criminal
Procedure in connection with offences under the said Act has to be viewed in
the context of the prevailing social conditions which give rise to such
offence, and the apprehension that perpetrators of such atrocities are likely
to threaten and intimidate their victims and prevent or obstruct them in the
prosecution of these offenders, if the offenders are allowed to avail of anticipatory
bail. Referring to the statement of objects and reasons the Court held that the
above statement graphically describes the social conditions which motivated the
said legislation. In these circumstances, if anticipatory bail is not made
available to persons who commit such offences, such a denial cannot be
considered as unreasonable or violative of Article 14, as these offences form a
distinct class by themselves and cannot be compared with other offences. Also
anticipatory bail cannot be granted as a matter of right. It is essentially a
statutory right conferred long after the coming into force of the Constitution.
It cannot be considered as a essential ingredient of Article 21 of the
Constitution. And its non-application to a certain special category of offences
cannot be considered as violative of Article 21 of the Constitution. The
offences enumerated under the present case are very different from those under
the Terrorists and Disruptive Activities (Prevention) Act, 1987. Finally in
another case on the same point of law the Chhattisgarh High Court in Sanjay
Singh another Vs State of Chhattisgarh14 held that before refusing to grant
anticipatory bail, the court is required to examine material collected by prosecution
to see if prima facie sufficientmaterial was there for commission of offence
under the Act. Prosecution found not have collected any material against
applicant to prima facie show that applicants had committed offence under
section 3(1)(x) of the Act. This is a fit case of grant anticipatory bail in
favour of applicants. Thus it is settled that when there is no prima facie
material to establish the commission of atrocity, anticipatory bail u/s 438 of
Cr. P.C. can be granted absolutely. Gap in implementation: Accused persons
applying for the anticipatory bail and courts giving bail in violation of
section 18 of PoA Act. Procecutors do not argue the bail petition in a proper
manner. Investigating officers does not oppose the bail petition of the
accused.
? At the
stage of Arrest of Accused:
Police
officials not arresting the accused as required under the law. Police informing
the accused
persons
before registering the case against them and informing them to apply for
anticipatory bail.
? At the
stage of medical examination:
Investigating
officers not informing the victims of their rights regarding medical
examination. Investigating officers not taking the victims for medical
examination in government hospital.
Medical examination of the victim of rape is not conducted or delayed for a
considerable time.
?
Investigation mechanisms:
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 D.G.P., 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. Any police officer not below the rank of
Dy.S.P has duty to visit immediately to the place of occurrence to assess the
extent of atrocity, loss of life, loss and damages to the property and submit a
report forthwith to the state Government.
Executive magistrate and the SP/DSP shall-
i.
Draw a list of victims, their family members and
dependents entitled for relief;
ii.
Prepare a detailed report of the extent of atrocity,
loss and damages to the property of the victims;
iii.
Order for intensive police patrolling in the area;
iv.
Take effective and necessary steps to provide
protection to the witnesses and other sympathizers of the victims;
v.
Provide immediate relief to the victims.
An offence
shall be investigated by a police officer not below the rank of a Dy.S.P. the
investigating officer shall be appointed by the State Government,
director-general of Police, Suprintendent 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. The investigating officer shall complete the investigation on
top priority within thirty days and submit the report to the Suprintendent of
police who in turn will immediately forward the report to the Director General
of Police of the state government. This point of law was discussed by Madras
High Court in A. Sasi Kumar Vs The Superintendent of Police, Villupuram and
three others15 held that “Investigation into offence under Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act has to be carried by Deputy
Superintendent of Police. The Court further held that it is evident from Rule 7
of the said Rules that the Inspector of Police has no powers and has no
jurisdiction to investigate the matter like this, which is one arising under
the On the same point the Andhra Pradesh High Court in D. Ramalinga Reddy D.
Babu Vs State of Andhra Pradesh16 held that under section 3 (1)(xi) of the
Scheduled castes and Scheduled Tribes (PoA) Act, 1989: “The learned Senior
Counsel appearing for the appellant submits that, since the prosecution was
initiated under the provisions of Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, the investigation should have been conducted by an officer
not below the rank of Deputy Superintendent of Police. These rules have been
framed by the Central Government in exercise of rule making power conferred
under section 23 of the Act. The Central Government has been authorized under
Section 23(1) of the Act to make rules for carrying out the purpose of the Act.
Since the purpose and objective sought to be attained by the Act is to minimize
the offences against Scheduled Castes and Scheduled Tribes therefore it
prescribes stringent sentences also. On the same point the Bombay High Court
(Nagpur Bench) in Uttamlal D. Yernev Vs State of Maharashtra1[11]
held that under section 23 of Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 and under Rule 07 of ‘Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Rules ‘investigation shall be done by Deputy
Superintendent of Police and this rule is a mandatory one. Therefore, only
those officers who are not below the rank of Deputy Superintendent of Police
and are specifically appointed by the State Government, or the Director General
of Police or Superintendent of Police are competent for the purpose of
investigating the cases under the Act. This order of appointment can either be
specific or general. Gaps in the implementation:
•
Spot inspection not done immediately and by the law
enforcement officials as per rule 6 of PoA Rules.
•
Investigation of atrocity cases is not being done by a
police officer of the rank of Deputy Suprintendent of Police or above.
•
Investigating of the case is not done on time as per
PoA Rules within 30 days. Investigation in the cases delayed without any
substantive reasons being given.
•
Investigations is closed on the ground that there are
not sufficient grounds to proceed with the investigation. Information of
completion of the investigation is not given to the victim.
•
Despite appointment of the Investigating Officers of
the rank of Dy.S.P., the statements of victims and witnesses are being
collected by the lower police officials or the Dy.S.P is not visiting the
victims for the investigation.
•
Investigating is being carried out sitting in the
dominant caste locality or by calling the victim to the police station.
Statements are being collected by the lower police officials but the charge
sheet is filed by competent authority. All the victims and witnesses are not
covered in the investigation.
•
Police officials are not entering all the details as
narrated by the victims and witnesses in their statements under 161 Cr.P.C.
Police officials are not recording the statements of witnesses under section
164 Cr.P.C before the nearest Judicial Magistrate.
•
Police officials trying to avoid the process of
Inquest after death of victim. Proper search and seizure of property related to
case is not made by the police. Victims and witnesses are threatened by the
accused and police to withdraw the acse and not provided protection during the
investigation.
•
At the stage of filing Charge sheet: Charge sheet is
not filed in 30 days as per Rule 7(2) PoA Rules. Delay in getting approval from
higher authority for the charge sheet. Deleting of sections of SC/ST PoA Act in
charge sheet.
4.1 Special
Courts for the Trial of atrocity cases
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 offense under this
Act. The Court of Sessions (designated Court) is specified to conduct a trial
and no other Court can conduct trial of the offence 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. On this point of law a single Judge of this
Court in Davinder Singh Sarpanch Vs. State of Punjab[12],
has taken the view that the Judicial Magistrate has no jurisdiction to
entertain the complaint under this Act whereas the Special Court constituted
under section 14 of the Act can entertain the complaint and take cognizance and
that it is not necessary that the case must be committed to the Special Court
by Magistrate as in other Sessions cases. This Court has held accordingly after
taking into consideration various provisions of the Act.
Now the rule
position is that a Special Court is not empowered to take cognizance of a
complaint without the case being committed to it. Gaps in the implementation
•
Before the start of trial the accused persons and
their relatives threatening the victimand witnesses for compromise or to
withdraw the case.
•
Police officials harrassing the victims and witnesses
in collusion with the accused persons to compromise or withdraw the case.
•
At the Stage of Framing of Charges
•
Charges are not framed under the PoA Act.
•
Charges are not framed under the proper sections of
the PoA Act.
•
Special Public Prosecutor not arguing properly at the
time of framing of charges so as ensure the relavant PoA Act sections are
included.
•
At the time of the framing of the charges, the
victims, witness and victims are being
•
threatened with physical violence.
•
At the Stage of Evidence (Prosecution and Defence)
•
Victims and witness are being threatened by the
accused persons during the time of giving evidence; witness not appearing in
court on the scheduled date due to fear, threats, etc. and no protection order
is given by the Special Court.
•
Absence of Investigating Police Officer during the
evidence stage of trial, thus delying the trial.
•
Despite the special provision in the case of rape
trials for In-Camera Proceedings, this provision is not taken by the Special
Courts.
•
Absence of accused on hearing date on the grounds of
sickness or being out of situation thus resulting in delay in trial.
•
Absence of defence advocate on the ground being
engaged in another court.
•
Advocate not prepared to cross-examine the witness or
to argue the case.
•
Trial adjourned due to tactics applied by the defence
lawyer such as alleging the non-receipt of documents, etc.
•
Long adjournments given in the cases by the Special
Court and day-to-day trial is not conducted as per section 309 Cr.P.C., which
delays the trial.
•
Correct procedure with regard to the examination of
the accused as per section 313 Cr.P.C is not followed.
•
Special Public Prosecutor is not interested in
recalling the important witness for further examination.
•
Local inspection is not done by the judges despite
provisions in the law for truthful
•
appreciation of the evidence.
•
At the Stage of Final Arguments
•
Special Public Prosecutor not filling written
arguments at the final stage of the case in order to strengthen the case
further.
At the
Stage of Judgment
•
No appeal form Special Public Prosecutor or the
District Magistrate/ Collector against
acquittal of the accused or acquittal under the PoA Act alone.
4.2 Appointment
of Special Public Prosecutors under this 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. The Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995, R.4(5)
provides for appointment of advocate of choice of victim of atrocity who is
also in opinion of District Magistrate an eminent senior advocate. Appointment
of senior advocate as Special Public Prosecutor for conducting trial at
instance of victim. In Satki Devi V. Tikam Singh on this point the Court held
that the State no doubt, is the prosecutor and the prosecution in all cases and
trial in all cases is to be conducted in the Court of Session by Public Prosecutor or Special Public
Prosecutor, as the case may be appointed by the Government but the SCs &
STs (Prevention of Atrocities) Act is a special statue which overrides any
other law for the time being in force, Plea was raised that, the District
Magistrate is empowered to appoint an advocate to plead the case of complainant
but he has no power to appoint Special Public Prosecutor, and that the power to
appoint Special Public Prosecutor under S. 15 of the Act vests in the State
Government which cannot be delegated. The Special Public Prosecutor appointed
under Section 15 of the Act vests in the State Government which cannot be
delegated. The Special Public Prosecutor appointed under Section 15 of the Act
alone can conduct the case. It is true that sub- rule (5) does not lay down any
qualification as to the minimum length of practice unlike S. 15 or sub-rule (1)
of Rule 4 but, apparently, framers of the rule did not want to put any
restriction on the choice of the victims of atrocity subject to the embargo
that the person should be an ‘eminent senior advocate’ – a term used in
sub-rule (1) of rule 4 as well. Thus, the advocate should be of the choice of
victim of atrocity and also in the opinion of the District
Magistrate/Sub-Divisional Magistrate, an eminent senior advocate. There is no
conflict between sub-rule (5) of Rule 4 and section 15 of the Act.
Gaps in the
implementation
At the
stage of Appointment of Advocate of own choice or assisting the PP ( at the
start of trial, before the framing of charges in the Special Court)
•
Special Public Prosecutor not presenting the
prosecution case properly.
•
SPP not asking questions to establish that the atrocity
was caste related.
•
SPP arguing that certain provisions of the PoA Act and
Rules requiring investigation by senior police officers were directions and not
mandatory, and pressuring the victim compromise the case.
•
SPP colluding with the defence lawyer to spoil the
case.
•
SPP appointed to handle atrocity cases having very
poor competence and experience.
•
Certain important witness not being examined at the
time of trial by the SPP.
SPPs not
briefing or preparing victims and witnesses to deal with the court trial
process.
4.3 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.
In Parambir
Singh Gill Vs. Malkiat Kaur[13],
the Punjab and Haryana High Court accepted the compromise deal between the
parties and the Court further held that the object of the Act is to provide for
prevention and punitive measures to protect the members of Scheduled Castes and
Scheduled Tribes from being victimized and where atrocities are committed, to
provide adequate relief and assistance to rehabilitate them. Besides, it is a
measure to preserve their self respect and honour. The fact that the matter has
been compromised does assuage the feelings of the members of the Scheduled
Castes and provides for protection of their self respect and honour. The
compromise indeed is a measure to provide adequate relief and assistance to
members of the Scheduled Castes for their rehabilitation and to live with
dignity.
4.4 Travelling
Allowance, Daily allowance, Maintenance expenses and Transport Facilities to
the Victims of Atrocity, his Dependent and Witness:
i.
Every victim of atrocity or his/her dependent and
witnesses shall be paid to and for rail fare by second class in
express/mail/passenger train or actual bus or taxi fare from his/her place of
residence or actual bus or taxi fare from his/her place or residence or place
of stay to the place of investigation or hearing of trial of an offence under
the Act.
ii.
The district Magistrate or the Sub-Divisional
magistrate or any other Executive Magistrate shall make necessary arrangements
for providing transport facilities or reimbursement of full payment thereof to
the victims of atrocity and witnesses for visiting the investigation officer,
Superintendent of Police/Deputy Superintendent of Police, District magistrate
or any other Executive Magistrate.
iii.
Every women witness, the victim of atrocity or her
dependent being a woman or a minor, a person more than sixty years of agenda
person having 40 percent or more disability shall be entitled to be accompanied
by an attendant of her/his choice. The attendant shall also be paid traveling
and maintenance expenses as applicable to the witness or the victim of atrocity
when called upon during hearing, investigation and trail of an offence under
the Act.
iv.
The witness, the victim of atrocity or his/her
dependent and the attendant shall be paid daily maintenance expenses for the
days he/she is away from the place of his/her residence or stay during
investigation, hearing and trial of an offence, at such rates but not less than
the minimum wages, as may be fixed by the State Government for the agricultural
labourers.
v.
In addition to daily maintenance expenses the witness,
the victim of atrocity (or his/her dependent) and the attendant shall also be
paid diet expenses at such as may be fixed by the State Government from time to
time.
vi.
The payment of traveling allowance, daily allowance,
maintenance expenses and
vii.
reimbursement of transport facilities shall be made
immediately or nor later than three days by the District Magistrate or the
Sub-Divisional magistrate or any other Executive Magistrate to the victims,
their dependents/attendant and witnesses for the days they visit the
investigating officer or in-charge police station or hospital authorities or
Superintendent of Police, Deputy Superintendent of Police or District
Magistrate or any other officer concerned or the Special Court.
viii.
When an offence has been committed under Section 3 of
the Act, the District Magistrate or the Sub-Divisional Magistrate or any other
Executive Magistrate shall reimburse the payment of medicines; special medical
consultation, blood transfusion, replacement of essential clothing, meals and
fruits provided to the victim(s) of atrocity.
ix.
Gaps in the implementation
•
Victims of atrocities are not paid compensation as per
Rule 12 PoA Rules.
•
Even if paid compensation, the appropriate amount as
per the PoA is Rules is not paid to the victims.
•
Compensation is not paid at all the stages of the case
as per the Rules.
•
Report on the relief and rehabilitation provided to
the victims is not submitted by the Investigating officer to the Special court.
•
In case of murder, rape, gang rape, etc. the victims
and their dependents are not provided employment, agricultural land, etc. as
per PoA Rules.
•
The children of the victims of atrocities are not
provided with support for their education and maintainance as per the
provisions of the PoA Rules.
•
Special Courts not exercising their rights and
invoking their powers to provide
·
compensation under section 357 Cr.P.C at the time of
imposing a sentence on the accused convicted of an atrocity.
•
Victim of atrocity or her/his dependents and witnesses
are not being paid the travelling allowance during the investigation and trial.
•
Victim of atrocity or her/his dependents and witnesses
are not being paid the daily
·
maintainance expenses during their visits for the
investigation and trial.
•
Victim of atrocity or her/her dependents and witnesses
are not being paid diet expenses in addition to daily maintenance expenses.
•
The travelling expenses/ maintainance expenses and
diet expenses that are paid are
·
inadequate.
•
Attendant who accompanies women witness, victim or her
dependent ( who is a woman or minor, or a person more than 60 years of age or a
person having 40% disability) is not paid expenses.
•
Travelling expenses/ maintainance expenses and diet
expenses are not paid within three days of incurrence of the expenses as per
the PoA Rules. In this chapter, an attempt was made to explain about very
important aspects of Act i.e., investigation and trial of atrocity cases,
constitution of Special Courts, their powers and procedural aspects, and
lacunas in the implementation of the provisions.
Chap no. 5 DATA
COLLECTION AND ANALYSIS
5.1 DATA
ANALYSIS-
1. Advocates and Judges:-
The researchers had provided
questionnaires to various advocates and eminent judges for this research. We
received 52 responses for the same. While analyzing these responses we came
across various opinions which are very crucial for this research.
The intention of the
researchers was to conduct a field study. We collected the responses of these
respondents as they are the carriers of justice and come across these cases on
a daily basis.Also advocates are the intermediaries between the accused and the
victims and thus their role is very important in any dispute or offence.
2. NGOs :-
The researchers had provided
questionnaires to police officers for this research. We have received 5
responses for the same. The intention of the researchers was to conduct a field
study.We collected the responses of these respondents as they act for the
victims benefit. These NGOs help the victims of atrocities in various manners
like filling of suit, their education, etc. Thus, they act as the spokesperson
of the Scheduled Castes and Tribes.
After going through all the responses we found that:
a) Yes, the
provisions of existing law is sufficient to protect the Scheduled Castes and
Tribes against caste-wise abuse but there are still some loopholes in it and
its proper implementation;
b) The Police
officers many a times avoid to register the offences under the SC/ST
[Prevention of Atrocities] Act;
c) Most of the
times police officers do not invoke correct and appropriate sections in the
FIR;
d) Yes, there
are more than 75% of compromises which may be a result of the threatening of
the victims by the accused and his relatives or even by police officials;
e) Yes, the
accused is granted anticipatory bail in violation of Section18 of the POA Act;
f) Yes, the
victim is not always informed about his right regarding medical examination;
g) The
compensation paid is not sufficient and appropriate according to POA Rules;
h) Yes, the
victims of atrocities are provided legal aid but still it is sometimes
insufficient.
3. Police Officers :-
The researchers had provided
questionnaires to police officers for this research. They have received 4
responses for the same.According to them everything is going in accordance with
law. The intention of the researchers was to conduct a field study.They
collected responses from these respondents as they are the first persons
approached by the victims in case of any offence. They are the protectors of
the Law and should take necessary primary steps in accordance with the law.
After going through all the
responses we found that:
a) They denied
that they do not register the offence under POA Act and invoke wrong sections
while registering an FIR;
b) According
to them many a times compromise takes place between the two parties and thus,
they do not rush to register an FIR;
c) They agreed
that medical examination is provided to the victims whenever it is needed;
d) According
to them many a times there are instances of verbal abuse only against the
SC/STs;
e) They claim
that the accused does not get the benefits of anticipatory bail ;
f) They even
have witnessed misuse of the POA Act bu the SC/STs.
4. Victims:-
The researchers had provided
questionnaires to the actual victims for this research. They received 19
responses for the same. While analyzing these responses they came across the
real condition of the victims.
The intention of the
researchers was to conduct field study. Researchers provided the questionnaires
to these respondents as they are the main subjects of the study.
After going through all the
responses we found that:
a) Yes, delay
is caused at the primary stage of filling of FIR by the Police Officer.
b) Many a
times instead of FIR just a note in Station Daily Diary is made by the Police.
c) If FIR is
recorded then, many a times its free copy is not given to the victim.
d) Most of the
times there is a delay in the investigation process.
e) A very few
times accused is arrested instantly.
f) The victim
is threatened to change his statement.
g) No police
protection is provided immediately after applying for it.
h) The amount
of travel expenses and daily allowances is insufficient for the victims.
Chap
no. 6 CONCLUSION AND SUGGESTIONS
In view of the above
findings, the study forwards the following conclusions and suggestions for the
growing problem of custodial violence.
a) The
Scheduled Castes and Tribes [Prevention of Atrocities] Act,1989 and Rules are
sufficient to protect the Scheduled Castes and Tribes against caste-wise abuse
and discrimination but there exists some loopholes in its proper
implementation;
b) Many a
times the offences of atrocities remain unregistered due to various reasons
such as - denial or delay by the police officials, lack of knowledge of the
victims, lack of proper mechanism, threatening and exploitation by the
offender, etc.;
c) The
registered FIRs lack various material facts such as proper correct sections,
giving a copy to victim etc.;
d) The Police
Protection is not provided within accurate time and as a result the victims are
threatened and forced to change their statements, withdraw their case or make a
compromise;
e) The victims
are not informed about their right to get medically examined;
f) There is no
immediate action against the accused and many a times he derives the benefits
of anticipatory bail which is violative of the POA Act;
g) The
procedure of investigation is carried in a very slow pace;
h) Even though
Legal aid and daily expenses and travel expenses are given to the victim they
are not in accordance with POA Rules and are insufficient for the victims and
the dependents;
i) Additional
District Court and Sessions Court are sometimes designated as Special Courts
under POA Act and thus due to heavy workload on these Courts the cases are
disposed on time;
j) Aside from
all these there are some instances of misuse of the POA Act by the SC/STs and
thus some provision must be made even to avoid such misuse.
k) Cases of
atrocities against SC/STs must be dealt with in a fixed period of time as well
as there should be a fixed time limit for the investigation of the offence and
filling of chargesheet;
l) Strict
action should be taken against the police officials who do not register an FIR
and try to induce by various means the victim to withdraw the complaint;
m) Such action
should also be taken against the accused who tries to threaten the victims and
the witnesses or lure them with money;
n) Security to
the victim and witness shall be compulsorily provided;
o) Medical
examination of the Victim must be done compulsorily;
p) Adequate
legal aid, travel expenses and daily expenses must be paid to the victims
timely;
q) Anticipatory
bail of the accused must be provided only when it is utmost important for the
accused by the Courts;
r) And more of
all the SC/ST members me educated about their rights and the offences of atroci
CHAPTER 7
CONCLUSION
AND SUGGESTIONS
Judiciary is an independent organ that acts as the protector
of the Constitution. Judicial review is an important feature in India as it
keeps the actions of legislature and executive in check. Without judicial
review, no organ of the government could function properly. Constitution is the
supreme law of the land and the judiciary being the protector of the same shall
make sure that no other organs go against it.
CHAPTER 8 BIBILOGRAPHY
1. 2010 (1)
Crimes 626 (Punjab & Haryana)
2. (1997) 3
Rec Cri R 575
3. 1999 (2) Crimes 343
4.
2006 CRI. L.J. (NOC) 353 (Bom.)
5.
1998 (3) Crimes 279
7.https://pib.gov.in/
[1] https://in.search.yahoo.com/
[2] https://in.search.yahoo.com/
[3] https://in.search.yahoo.com/
[4]
https://pib.gov.in/Pressreleaseshare.aspx?PRID=1781362
[5]
https://pib.gov.in/Pressreleaseshare.aspx?PRID=1781362
[6]
https://pib.gov.in/Pressreleaseshare.aspx?PRID=1781362
[7] (1965) 2 SCR 877: (AIR 1965 SC
1557). 156
[8] 1997) 3 Rec Cri R 575
[9] 1998 (3) Crimes 279
[10] 1998 (3) Crimes 279
[11] 1998 (3) Crimes 279
[12] 2010 (1) Crimes 626 (Punjab &
Haryana)
[13] 2010 (1) Crimes 626