The constitutional validity of SC/ST Amendment Act, 2018.

Author- Ms. Nellie Bimla Emmanuel, Faculty of Thakur Ramnarayan College of Law

INTRODUCTION:

“Caste is not a physical object like a wall of bricks or a line of barbed wire which prevents the Hindus from co-mingling and which has, therefore, to be pulled down. Caste is a notion; it is a state of the mind” – Dr. B. R. Ambedkar.

India is committed to the welfare, protection, upliftment, and security of the vulnerable sections of society and has been keen to make an effort to abolish caste-based discrimination for the social exhilaration of these sections. The Constitution of India[1] states that the President of India in Article 341[2] specifies the caste, race, or tribes for the purposes of The Constitution and these sections will be deemed to be The Scheduled Castes and in Article 342[3] the specified sections will be The Scheduled Tribes. Equality of opportunity and status has been guaranteed to all the citizens under The Constitution of India and no individual can be discriminated against based on the grounds of caste, race, sex, or place of birth. The strategy of the State is to ensure justice and equality and to provide necessary resources for the economic, social, and educational advancement of the society.

LEGISLATION ENACTED FOR THE PROTECTION OF RIGHTS OF SCHEDULED CASTES AND SCHEDULED TRIBES:

The two major legislations enacted for the protection of the Scheduled castes and Scheduled tribes (further referred to as SC and ST respectively) are the Protection of Civil Rights Act, 1955 and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (further referred to as the principal Act).

The principal Act was enacted to abolish the hate crimes, atrocities and caste-based discrimination among the various sections of society and to bring a sense of equity among all. The Act contained the provisions for the constitution of Special Courts for the offences committed in pursuance of the SC/ST sections of society. The Act helped in the social inclusion of the Dalits but it failed to live up to the expectations and the reasons for its enactment. It came into force on the 30th day of January 1990. It aimed at preventing the crimes against the SC/ST community and provided for punishment against the offences. The Comprehensive Rules were notified in 1995 which provided for rehabilitation and relief. It extends to the whole of India.

CASTE BIAS

The principal Act aimed at protecting the people falling under the SC/ST communities by punishing the offenders but even though such a stringent and protective law was enacted the investigation and the relief that should be received by the people was exceptionally delayed and injustice has suffered at the hands of the people. In Asharfi V. State of Uttar Pradesh[4], where a Dalit woman was raped, the Supreme Court held that the evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste and that the sections of the Act can be pressed into service only if it is proved that the rape has been committed because the victim belonged to the Scheduled Caste community.

The Kerala High Court in another case  Stephen Joseph v. State of Kerala, which was a case of rape of a Scheduled Tribe minor girl, held that for attracting the provisions of the Act, the offence should have been committed with racial prejudice. The Court held that there was nothing on record to show that the crime was committed by the accused solely due to the girl’s Scheduled Tribe status and held that the provisions of the Act could not be applied.

In the case  Ramdas and the Others V. State of Maharashtra[5], a minor girl belonging to the SC community was raped. The court stated that the mere fact that the victim happened to be a girl belonging to SC would not attract the provisions of the Act.

Article 15 of The Constitution of India in reference to the principal Act expresses that it is a fundamental right of each and every citizen to not be discriminated on the grounds of religion, race, caste, sex, place of birth but the provisions of the act are not being followed and complied with.

In Pardeep Kumar v. the State of Haryana[6], the Punjab and Haryana High Court refused to include the provisions under the Act where the usage of caste-based remarks was made over a mobile phone call.

It can be clearly asserted that the ground under such cases that should be proved is that the offence was committed as a result of discrimination among caste which is nearly impossible to ascertain. Even when the crimes are against women resulting in sexual assaults, severe injustice is suffered.

The crimes against caste discrimination have been increasing on a daily basis. In 2019, according to the reports of the National Crime Record Bureau (NCRB)[7], the cases reported against the atrocities committed were about 45,935 cases. The report also mentioned a 7.3% increase in crimes against Dalits. Crimes are committed against a Dalit every 15 minutes and only a few are reported which clearly shows that even after the enactment for the cause, the cases have not seen a reduction.

THE VALIDITY OF THE ACT

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 consists of the provisions of Section 18A of the principal Act relating to the preliminary inquiry which states in cases of atrocities against the SC/ST sections of society, the inquiry would not be a must for the arrest of the accused as well as no prior approval is obligatory for appointment of authorities of Senior police officers for filing FIRs in the cases of crimes and atrocities against the SC/ST.

On the 20^th day of March 2018 in the case of Dr Subhash Kashinath Mahajan v. The State of Maharashtra & Anr.[8] (2018) 6 SCC 454, the Hon’ble Supreme Court held that there was no absolute bar against the grant of anticipatory bail in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 if no prima facie case is made out or when on judicial scrutiny the complaint is found to be prima facie mala fide.

While dealing with a review petition on the 1st day of October 2019, the Apex court educed that it was wrong on the part of the March 2018 judgment to treat the SC/ST members of the society as “a liar or crook”. It iterated that it was wrongful and was against the “basic human dignity”. The March 2018 judgment had diluted the provisions of the principal Act which was passed for the protection of the SC/ST community. The government had enacted The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 for the benefit of the SC/ST community and they still face the same humiliation, poverty and social stigma as they faced centuries ago.

In the October 1^st, 2019 petition, The Supreme Court had evoked that the Dr Subhash Mahajan case (Supra) had diluted the provisions of arrest under the principal Act. The Justices Arun Mishra, M R Shah and B R Gavai said that the struggle of the SC/ST community people for equality is still not over and they still face untouchability, abuse and are socially outcast. The Apex Court said that even if The Constitution provides for the safety of the SC/ST people under Article 15, they still face discrimination and social abuse. The Court further iterated that the misuse of the provisions is not due to the caste system but due to human failure.

In the case Prathvi Raj Chauhan v. Union of India & Ors.[9], The Supreme Court held that The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 is constitutionally valid. The case also stated that the provisions of the principal Act were being misrepresented and the amendment is irrational, unjust, arbitrary and in violation of Article 21 of the Constitution of India. While passing the judgment, the Justices Arun Mishra, Vineet Saran and S. Ravindra held that this judgment will not dilute the provisions of the statute. The government also argued that this enactment is the least protection that could be given to the SC/ST sections of society who are denied their civil and basic rights for generations. Anticipatory bail cannot be filed in cases of atrocities against the SC/ST community, a preliminary inquiry is not a must in such cases and the investigating officer shall not require any approval for arresting the offenders under the said Act.

CONCLUSION

More than seventy years have passed since the legislators have enacted legislation for safeguarding the SC/ST community from the offences committed against them and even after the application of stringent laws, the crime rate is increasing at an exorbitant level. Dr B. R. Ambedkar once said and the researcher quotes, “Caste has killed public spirit. Caste has destroyed the sense of public charity.  Caste has made public opinion impossible. Virtue has become caste-ridden, and morality has become caste-bound”. It is important to understand how essential it is to eradicate caste discrimination because it hampers the dignity and self-esteem of an individual. The Constitution states and we should accept and believe that we are equals irrespective of what caste we belong to.                    

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[1] The Constitution of India, 1950

[2] INDIA CONST. art 341, cl. 1.

[3] INDIA CONST. art 342, cl. 1.

[4] Asharfi v. State of Uttar Pradesh, Cr. Appeal no. 1182 of (2015) (India)

[5] Ramdas and others. v. State of Maharashtra Appeal (Crl.) 1156-1158 of 2015 (India)

[6] Pardeep Kumar v. State of Haryana CRM-M-4810 OF 2021 (India)

[7] National Crime Record Bureau (NHRC)

[8] Dr Subhash Kashinath Mahajan v. The State of Maharashtra & Anr. (2018) 6 SCC 454 (India)

[9] Prathvi Raj Chauhan v. Union of India & Ors. WP [C] No. 1015 of 2018 (India)