FAIZAN MUSTAFA | 5 APRIL, 2018
2016 Photograph of Dalit youth being stripped and beaten in Rajasthan
Forget about 66 per cent increase in crimes against Dalits in last ten years or rapes of Dalit women doubled or a crime being committed against Dalits every 15 minutes. Let us just see what happened in the last one week:
- A Dalit boy was killed on Friday for buying and riding a horse in Gujrat demonstrating our hatred and prejudices against Dalits.
- A Dalit couple from Kasganj,U.P. has been denied permission by the Allahabad High Court to have their marriage procession pass through a locality of Thakurs as district officials told the court that it may lead to law and order problem. In last three decades or so no such procession was ever allowed.
- Houses of current BJP legislator (Rajkumari Jatav from Hinduan and a former Congress MLA(Bharosi Lal Jatav) in Rajasthan were put on fire for their participation in the Bharat bandh against the apex court judgment of March 20, 2018.
If houses of influential public figures are not safe, should we have any doubt about the need of stringent SC/ST law?
Just like racism, untouchability is based on ‘descent’. Former Prime Minister Manmohan Singh was candid enough to equate it with apartheid.
Surprisingly the Supreme Court did not fully appreciate nature of crimes against Dalits and got carried away by the so called abuse of law thesis. NCRB data itself says that charge sheet was filed in as many 78% cases which means argument of false cases being filed out of ‘vengeance’ is flawed because chargesheet is indeed filed after investigations by the police. The assertion by the court during review hearing on April 4,2018 that it is not against the SC/ST Act, it has not diluted its provisions and its primary concern was merely to protect the innocent were equally frustrating for those who experience caste prejudices on a daily basis.
SC/ST Act passed by the Rajiv Gandhi government dealt with some harsh and painful realities of our social life. Strangely Supreme Court did not understand special nature of crimes against Dalits. Within days of Supreme Court judgment, Bombay High Court has said that an abuse of Dalit will be an offence under the SC/ST Act only when it is committed in public galore and an abuse in the presence of two witnesses will not be enough. Under law of defamation statement is considered published even if one person heard, read or saw it, but caste slur and insult will no more be an offence in Maharastra under SC/ST Act if such a humiliating statement was made in the presence of only two persons who are coming forward to testify.
Are we really going to rewrite our Constitution and law and take away rights from Dalits? Statements like those by the Prime Minister that no government has given as much respect to BR Ambedkar as the current government are not going to help, as the ground realities are entirely different.
Let us understand the mischief which SC/ST Act addressed and the peculiar nature of crimes under this Act. The Act does not deal with ordinary crimes of murder, theft, robbery, assault, kidnapping etc.
Do we prevent non-Dalits from wearing footwear, new clothes or prevent them from riding bicycle or motor-bike?
Do we prevent non-Dalits from taking out wedding procession or mounting a horse during such wedding procession?
Do we put inedible or obnoxious substance into the mouths of non-Dalit citizens? Do we dump in the premises or neighbourhood of non-Dalits excreta, sewage, carcasses, obnoxious substances etc.?
Do we garland with footwear or parade naked or semi-naked non-Dalits?
Do we forcibly remove clothes, tonsure head, remove moustaches of non-Dalits?
Do we obstruct performance of official duties by a non-Dalit Panchayat official?
Do we corrupt or foul water or any source of water used by non-Dalits?
Do we stop or obstruct non-Dalits from entering places of worship?
If the answers to the above questions is in the negative, then denial of anticipatory bail to those accused of these offences is based on sound reasoning. Anticipatory bail is indeed an exception even under ordinary crimes and that’s why it can be given only by a Sessions Court or High Court and that too with a number of conditions.
Due to the special nature of these crimes, monetary compensation has been provided under the Act. During review proceedings, Supreme Court had said that its order will not in no way adversely affect giving of compensation. It would really mean that while the police is not yet sure of the veracity of these allegations which are being investigated, monetary compensation out of the taxpayer’s money may be given to the complainant. This is a contradiction in terms as it means get your compensation but the liberty of the accused who will invariably be non-Dalit will not be curtailed.
Similarly like several other special laws, presumption of innocence to some extent has been reversed under Section 8 of the SC/ST Act. Similarly special courts are to be set up to try these special crimes. It is sad to note that only 11 states have established these courts. But now even an FIR cannot be registered without inquiry, and an accused can get anticipatory bail. Even in ordinary crimes, FIRs cannot be refused. Supreme Court itself has, in a number of cases, laid down that FIR has to be registered promptly. Section 4 of the SC/ST Act clearly makes it mandatory to act on the information of the commission of any crime under the SC/ST Act.
In the Subhashchandra Mahajan judgment of March 20, 2018 the court appeared a little uncomfortable about the provisions of the SC/STAct when it said that the legislature never intended use of SC/ST Act as an instrument to blackmail or wreak vengeance. Law should not result in caste hatred. The court did not appreciate that the SC/ST Act had to be enacted in response to caste hatred which is the single most important factor of divisions in our society.
Yes, no law is to be abused. But if somebody files a false criminal case, remedy in the form of malicious prosecution is already there. If someone gives false information to a public servant and public servant’s action in pursuance of such information leads to an injury to any other person, the informant can be punished with six months’ imprisonment under Section 181 of the Indian Penal Code. Thus a false FIR under the SC/ST Act is already a criminal offence. Moreover anyone who gives false evidence is punishable with three years’ imprisonment under Section 193 of the Indian penal code.
Even on the relatively rare occasion in which a case of caste atrocities under SC/ST Act reaches court, the most likely outcome is acquittal due to caste bias at every stage of the investigation and trial. It is really ironical that in our system criminals who perpetuate caste based atrocities due are acquitted, and then because of these very acquittals we want to dilute the provisions of the SC/ST Act.
We have low conviction rates in terror crimes as well. False terror prosecutions too have destroyed hundreds of innocent lives but will we similarly dilute stringent provisions of those laws as well. If we are really committed tothe first principles of criminal law, we must protect all accused not just people who allegedly committed crimes against Dalits.
The decline in the conviction rate for crimes against Dalits has created an impression that this may be driven by the filing of false cases. But here again data from NCRB does not seem to support this contention. In fact, the share of false cases under PoA has declined over time (2009-2015). The conviction rate too has improved from 23.8 in 2013 to 28.8 in 2014.
The sudden drop in conviction rates after new government came to power is to be studied. Is it not a fact admitted even by the Dharmveer Commission that police in India is organised to enforce ‘policy’ rather than ‘law’? Is it not a fact that even British knew about our police and thus while enacting Indian Evidence Act, 1872 had to lay down in Section 25 that a confession made to police will not be admissible in evidence? A change of government does bring in a change in the attitude of police. The witnesses turn hostile.
The whole nation is witness to how 46 witnesses in the infamous Shorabuddin case have turned hostile in the last five months. In U.P., such a change is clearly reflected in the attitude of police when Mayawati takes over as Chief Minister or goes out of power. In any case conviction rate of hate crimes under SC/ST Act with that of ordinary crimes is neither rational nor reasonable, and as noted above these crimes have entirely different motivation and consequences.
Parliament keeping in view the special nature of crimes against Dalits excluded anticipatory bail under SC/ST Act. The constitutionality of this exclusion was upheld by the Supreme Court in the Kartar Singh case. A two judge bench was bound by this judgment of five judge bench. In any case since another two judge bench on March 24,2017 has specifically considered Section 18 of SC/St Act which excludes anticipatory bail and upheld its validity and even rejected grant of anticipatory bail by the High Court, the bench of Justice Goel and Justice Lalit should have ideally referred the matter to the Chief Justice of India for the constitution of larger bench if in their opinion last year’s judgment was per incuriam.
SC/ST Act is not the only law which excludes anticipatory bail. There are many such laws. In fact anticipatory bail provision was a new addition to our criminal justice system. It was for the first time introduced in 1973. There is no fundamental right to anticipatory bail. It must be remembered that regular bail can still be given to an accused after arrest under SC/ST Act. It was merely a statutory right which was legitimately excluded in crimes against Dalits. Moreover a number of states including Uttar Pradesh do not have anticipatory bail for any crime.
The effect of Supreme Court’s controversial judgment is that in U.P, while ordinary accused for crimes under Indian Penal Code or other laws cannot get anticipatory bail but accused under SC/ST law will be able to get bail. If this is not dilution, what it is?
Judiciary is not a law maker. It should only interpret law. Here the court tried to cross the lakshman rekha and issued guidelines which are clearly legislative in nature. Similarly Public Servants already have a protection under Section 22 of SC/ST Act for all their actions taken in ‘good faith’. Moreover Section 197 of Code of Criminal Procedure mandates that prior sanction of government is necessary before proceeding against a Public Servant. The additional protection in the controversial judgment of no arrest without approval of appointing authority is indeed unnecessary.
The reality is even today any assertion of rights by Dalits leads to backlash from the higher castes resulting in mass kilings, gang rapes and putting of Dalit houses on fire. Parliament in enacting SC/ST Act clearly noted it and said that when Dalits assert their rights by filing cases, ‘they are cowed down and terrorised’.
The government was at the receiving end at the review as Justice Goel rightly said that it had itself admitted that the law was being abused. The justification that government was not a party to the case will not really help either as the Attorney General was issued a notice and ASG did appear on behalf of the government.
The latest judgment if not recalled will indeed give a psychological blow to the Dalits who will no more be able to muster courage to file cases against powerful Public Servants, political leaders and persons belonging to influential Higher Castes in the villages dominated by them. Abuse of law by a few elitist Dalits should not be a ground to dilute the law enacted to deal with special crimes under a special law.
In such a pathetic situation, let us not protect the perpetrators of caste crimes. Let the court accept the government’s review petition. Let a larger bench resolve the conflict between the March 24,2017 judgment and the March 20,2018 judgment.
(Faizan Mustafa is an academic administrator and public intellectual who specialises in constitutional law. He is founder Vice-Chancellor of National Law University Orissa.He is former dean and registrar of Aligarh Muslim University.)