SC/ST (POA) Act more unused than misused
Sankar Sen
IPS (retd) and Senior Fellow, Institute of Social Sciences
The Supreme Court’s decision to issue guidelines to check the abuse of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 has unleashed tension and violence in different parts of the country. The Act of 1989 containing some stringent provisions against the offenders provided a powerful legal weapon to the victims to fight for redress of atrocities perpetrated on them. It marked an improvement over the mild Civil Rights Act, 1955, which concentrated on humiliations and other abuse on the lower castes. A two-member Bench of the Supreme Court has now found that the provisions of the Act are misused and issued guidelines to prevent such misuse.
However, a study of the implementation of the Act shows that the Act remains more unused than misused. The offences under the Act are cognisable and the police can arrest the offender without warrant and start investigation. Unfortunately, not many cases are registered under the Act and very few offenders brought to book. This brings us to the nub of a wider problem. A disturbing aspect of the criminal justice system is that there is massive suppressing of crime. Police are reluctant to register cases, particularly if the complainants are poor and downtrodden, in order to show that crime is under control. This applies to cases under the Indian Penal Code and also under Special Acts. On a conservative estimate, cognisable crimes registered are less than one-fourth of the incidence of crimes. Dalits and people from marginalised groups suffer the most. A large number of cases, some very genuine and serious, are not registered. This is because police efficiency is judged by statistics. Political masters also want to keep the crime figures low so that they can claim that the crime situation in the state remains under firm control. Only the poor and the voiceless suffer.
The apex court has now laid down that under the Act, before a public servant is arrested, approval of the appointing authority necessary. In the event of a non-public servant, it has to be sanctioned by a senior superintendent of police. The court has also prescribed that a preliminary enquiry should be conducted before an FIR is registered to check whether it falls under the parameters of the POA and whether it is false and motivated. The court held that the Act cannot be used to wreak personal vengeance. It also held that anticipatory bail may be allowed if the accused proves that the complaint is mala fide. The apex court’s judgment, though unexceptionable in principle, misses touch with the reality. It is also influenced by phobia of misuse.
The Act is poorly implemented and often fails to provide any relief to the complainants due to many factors, including caste bias. It gets a very low priority in the scheme of law enforcement by the police. First, the number of cases registered under the Act by the police is low when compared to the actual incidence of crimes perpetrated against the Dalits. NCRB data of figures against SC/ST (POA) Act in its 2017 Annual Report reveal that while in 2014 the number of cases was 40,401, in 2015 it dipped marginally by 4.3 per cent to 38,670 and in 2016 increased to 40,801. Many cases involve assault on women with intent to outrage their modesty followed by cases of rape. Crimes committed against the Scheduled Castes far outnumber crimes against the Scheduled Tribes. Second, the rate of conviction under the POA is abysmal. Out of 30,111 cases tried under the POA in 1998, 5.4 per cent cases resulted in conviction. This rate compares unfavourably with the conviction rate of nearly 40 per cent in regard to cases tried under the IPC. Poor investigation, shoddy prosecution and unconscionable judicial delay are the main causes. As the cases drag on, poor Dalit complainants are often intimidated, and gained over. The case becomes too weak for consideration.
Comprehensive regulations were notified in 1995 to provide relief and rehabilitation for the victims, but very little actually happened on the ground. According to rule 7(a), investigation of offence committed under the SC/ST Act cannot be investigated by an officer below the rank of deputy superintendent of police. This creates a practical problem because few senior police officers of the rank of DSP and above are available in the districts. Various high courts have held that non-compliance of the above rule vitiates the trial, resulting in setting aside of the order of conviction.
A centrally sponsored scheme was introduced for the implementation of the provision of the Act. Under the scheme, assistance will be provided to the state governments to strengthen the enforcement machinery and provide relief and rehabilitation to the affected persons. A report on the Prevention of the Atrocities against the Scheduled Castes prepared by the National Human Rights Commission shows that West Bengal does not register any case under the Act as a matter of policy since it refuses to acknowledge that atrocities against the Scheduled Castes are committed due to caste factor. Some other states like Assam are also not registering cases under the Act, though no such official ground is advanced. Funds allotted by the Central government for the implementation of the Act remain unspent. The NHRC report further mentions that even in respect of such a non-contentious matter as payment of compensation to the Dalit victims according to their entitlements, "the subtle bias as well as lack of sensitivity operates at the highest level, both bureaucratic and political." Amendment in the Act, 2016, provided for the establishment of exclusive special courts with special public prosecutors to try offences under the Act with a view to speeding up disposal of cases. Very few states have set up exclusive special courts. Normal sessions courts turned into special courts have not served the cause of speedy justice.
In sum, the operation of the Act is poor and flawed. A powerful instrument has become blunted and now the riders enjoined by the Supreme Court will make it a dead letter. Parliament noted that when Dalits assert their rights, vested interests try to cow them down and terrorise them. Has the SC looked at this reality? The SC has now refused to review its judgment. To tide over the situation, the government could either think of an ordinance or a new enactment.
