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Challenges and Misuse of the SC/ST (Prevention of Atrocities) Act, 1989 & Section 41 CrPC Notifications

The SC/ST Act, or the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was legislated to counteract the longstanding injustices and prejudice experienced by underprivileged communities in India. Despite its honourable objectives, the Act has faced criticism and revealed various shortcomings throughout the years.

Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, stipulates that 'Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with the intention to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any public place shall be punishable with imprisonment for not less than six months but not more than five years and with a fine.

In its judgment in Arumugam Servai v. State of Tamil Nadu on April 19, 2011, the Supreme Court held that any word uttered with the intent to insult a member of a Scheduled Caste constitutes an offense under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989.

Misuse & Shortcomings of SC/ST (Prevention of Atrocities) Act, 1989:

There have been cases of SC/ST abuse that have raised questions about its effectiveness and fairness. Opponents of the Act argue that the stringent provisions and wide scope of the law make it vulnerable to misuse. They claim that false allegations under the Act lead to innocent people, especially from non-Scheduled Castes/Scheduled Tribes, facing unjust legal cases, social ostracism and harassment. On the other hand, there have also been cases where the law has been used in disputes not related to caste discrimination, raising concerns about misuse for personal gain or political expediency.

The Act includes stringent provisions to combat atrocities against SC/ST communities, such as warrantless arrests, non-bailable offenses, the denial of anticipatory bail, and the presumption of guilt. While these provisions aim to ensure prompt justice for victims of caste-based violence, they have also been exploited to file false cases, resulting in unwarranted arrests and harassment.

The Act has come under criticism for its inability to effectively tackle the underlying factors contributing to caste-based discrimination and violence. Despite existing legal frameworks, incidents of caste-based discrimination and violence persist throughout the country. Critics argue that the Act's emphasis on punishments fails to adequately address the social and economic inequalities that perpetuate caste-based discrimination.

SC/ST Act's effectiveness in rehabilitating and empowering SC/ST communities is limited. Despite provisions for special courts and exclusive prosecutors, the conviction rate under the Act remains low. Victims of caste-based violence lack comprehensive rehabilitation and support mechanisms, hindering their pursuit of justice and recovery. Implementation of the SC/ST Act has faced administrative and judicial hurdles, leading to prolonged legal proceedings and delayed justice for victims. Instances of apathy or bias by law enforcement and judicial authorities have further obstructed the administration of justice under the Act.

To counter this, opponents of the Act are pushing for strict review of complaints, protecting the rights of the accused, and imposing penalties for false claims. They also stress on the need to raise awareness about the provisions of the Act and ensure that they are implemented fairly and impartially by law enforcement bodies and judicial bodies. Balancing the aim of the Act with safeguarding the rights of marginalized communities requires a nuanced approach that includes legal reforms and policy interventions, as well as community engagement to ensure social harmony and justice.

If you have been falsely accused under the SC/ST Act, you can seek legal recourse through writ petitions to high courts or the Supreme Court, citing a violation of Article 21 rights. Following the Kaushal Kishor v. State of UP (2016) case, Articles 19 and 21 can now be invoked against private individuals as well. You may also consider filing a counter-complaint against the accuser and explore the possibility of anticipatory bail, which has been granted in some recent cases despite no explicit provision in the Act. Furthermore, you can utilize defamation provisions in the Indian Penal Code to address defamation resulting from false accusations.

Caste Prejudice Still Exists:

Despite legal prohibitions, caste-based discrimination remains prevalent in certain regions of India, where upper caste individuals still engage in violence and harassment against members of Scheduled Castes (SC) and Scheduled Tribes (ST) communities, leveraging power imbalances and ingrained social hierarchies. Caste-based abuse manifests in various forms, ranging from verbal insults to physical assault, sexual violence, and denial of fundamental rights and opportunities. SC/ST individuals still face in some areas systemic discrimination in education, employment, and resource access due to their caste affiliation.

The intersectionality of caste with other social identities, such as gender and religion, amplifies vulnerabilities and intensifies experiences of marginalization. Enforcement of the SC/ST (Prevention of Atrocities) Act, 1989 remains challenging, with underreporting and inadequate investigation of abuse cases. Entrenched caste prejudices, social norms, and institutional biases perpetuate caste-based discrimination, hindering the realization of true equality and social justice.

In specific Indian villages, grooms belonging to the SC/ST community reportedly encounter limitations on horse riding during their wedding procession to the bride's residence. In one particular case, even an IPS officer needed to request help from the local police station to ride a horse during his marriage ceremony.

Inter-caste marriage is still taboo in many rural areas. In some areas, people belonging to SC/ST community are not allowed to worship in the local temples. You can rarely witness a pujari or priest in any temple belonging to the SC/ST community. In some areas upper caste people don't allow or invite the SC/ST community members to eat or drink water in their homes; neither do they eat anything or drink water provided from the homes of people belonging to SC/ST community.

During my visit to a SC/ST community member's residence in Purulia district of West Bengal for an inquiry, accompanied by a subordinate officer from the Brahmin caste, we were offered tea. I accepted the beverage, while my colleague declined to partake. While visiting an acquaintance's home in a village in Muzaffarpur district of Bihar, member of the barber community, with my junior officer belonging to Bhumihar community, we were invited to share a meal during lunchtime. I accepted the food, but my subordinate chose to only consume the yogurt and avoided the food. Further, it's common to find only individuals from the SC/ST community involved in tasks like cleaning drains and garbage vats.

Combating caste-based abuse requires comprehensive measures targeting both structural inequalities and societal attitudes. These measures include stringent enforcement of anti-discrimination laws, public awareness campaigns, empowerment initiatives for SC/ST communities, social upliftment, and fostering inter-caste dialogue to break down caste hierarchies and create a more inclusive society.

Notice Under Section 41-A CrPC in SC/ST (Prevention of Atrocities) Act, 1989:

Section 41-A of the Criminal Procedure Code pertains to the notice of attendance before a police officer. This provision enables the police to serve a notice to an individual against whom a plausible complaint has been lodged or substantial information suggests they have committed a cognizable offense. The notice instructs the person to present themselves before the police officer for further inquiry, rather than being immediately apprehended.

The summoned individual is obligated to adhere to the notice, and if they do, they will not be arrested unless the police officer has documented reasons to validate their arrest. Conversely, if the person fails to abide by the notice, the police officer may arrest them for the offense specified in the notice, provided that any orders issued by a competent court are followed (Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, Hyderabad)

Some lawyers argue that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a special law that overrides Section 41-A of the Criminal Procedure Code (CrPC). Therefore, issuing Section 41-A CrPC notices to accused individuals under the SC/ST (Prevention of Atrocities) Act, 1989 violates Section 18 of the Act, which prohibits pre-arrest bail. Furthermore, issuing Section 41-A CrPC notices without arresting the accused is tantamount to granting anticipatory bail, which is not permitted under Section 18 of the SC/ST (Prevention of Atrocities) Act 1989.

In the context of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 the applicability of Section 41-A of the CrPC has been examined. It has been noted that when the offense under the SC/ST Act carries a punishment of imprisonment for less than seven years or up to seven years, with or without a fine, Section 41-A CrPC becomes applicable (Paruchuri Ramakoteswara Rao v. Additional Director General of Police).

The applicability of Section 41-A of the Code of Criminal Procedure (Cr.P.C.) does not include witnesses. This provision is solely applicable to individuals against whom a justifiable complaint has been filed or for whom there is plausible information indicating the commission of a cognizable offense (Paruchuri Ramakoteswara Rao v. Addl. Director General of Police).

In instances where offenses fall under the SC/ST Act, the court must ascertain the validity of the alleged offense. When considering an application for anticipatory bail under Section 438 of the CrPC, the court must assess whether a preliminary case has been established based on the First Information Report (FIR) or complaint petition. In cases involving severe atrocities or caste-based attacks, the prohibition under Section 18 of the SC/ST Act applies, precluding the entertainment of anticipatory bail applications (Sajjo Son of Anamul v. State of Bihar).

Section 41-A CrPC empowers the police to serve a notice to an individual when a reasonable complaint or credible information suggests they have committed a cognizable offense. This provision applies to cases where the offense under the SC/ST Act carries a sentence of less than seven years' imprisonment or up to seven years. The court must assess the applicability of the SC/ST Act based on the FIR or complaint petition, and in some instances, Section 18 of the SC/ST Act may prohibit the grant of anticipatory bail [Y. S. Jagan Mohan Reddy v. Central Bureau of Investigation, Hyderabad].

The Supreme Court emphasized that police officers must exercise caution when applying stringent laws such as the SC/ST (Prevention of Atrocities) Act. The bench, comprising Justices Dinesh Maheshwari and Ahsanuddin Amanullah, stated that officers must be convinced that the provisions they intend to enforce prima facie apply to the specific case, as reported by Live Law on 11 May, 2023.

The Supreme Court observed that the conviction for the offence punishable under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 cannot be sustained if the act of outraging the modesty of a woman was not committed on the ground of caste, as reported in the LiveLaw on 30 January, 2024.

The SC/ST (Prevention of Atrocities) Act has been crucial in highlighting caste-based discrimination and violence in India; however, it has limitations that necessitate comprehensive reforms. The Act's potential for misuse, limited ability to address root causes, and challenges in implementation and interpretation underscore the need for reforms to protect and empower SC/ST communities. Any reforms must balance preventing misuse with protecting the rights and dignity of marginalized communities.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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