SC/ST Act: More symbolic than effective
PROBLEMS EXIST The law meant to protect Dalits is at the centre of a politicallegal controversy, but the ground reality will not change until fundamental problems are addressed
NEW DELHI: Girijesh Dinkar has fought cases in the Jaipur district and sessions court for years, but she was stunned by what took place on April 2. Hundreds of her fellow scheduled caste (SC) and scheduled tribe (ST) lawyers marched around the narrow lanes of the court, chanting their slogans. “Supreme Court order wapis lo, jab tak chand suraj rahega, baba tera naam rahega (Take back the Supreme Court order; till the sun and moon exist, so will your name Baba (BR Ambedkar).”
The provocation for the protest was an order passed by the Supreme Court on March 20, banning automatic arrests and registration of criminal cases under the SC/ST (Prevention of Atrocities) Act, 1989, a legislation meant to protect the marginalised communities from abuse and discrimination. The apex court order unleashed anger across the country that culminated in a Bharat Bandh on April 2 as tens of thousands of Dalits —officers, professionals, doctors and lawyers — took to the streets. “The protests showed the country that we Dalits won’t tolerate everything,” Dinkar said. “It is good that the protests happened.”
The protests shook the government, as Dalit parliamentarians, even those from the ruling Bharatiya Janata Party (BJP), called for action.
The Centre filed a review petition in the SC and on Wednesday approved a bill to be tabled in Parliament to effectively reverse the court’s judgment.
But the fight against centuries-old prejudice, often with very poor results, hangs in the balance no matter what happens with the law. In 2016, the last year for which data is available, the National Crime Records Bureau (NCRB) recorded the national rate of conviction under the SC/ST Act stood around 16%, plummeting to around 3% for states such as Karnataka. This rate has consistently slipped since 2010, an HT analysis reported in April. Why, then, has the act come to represent Dalit assertion? The answer, says Rahul Singh, a Delhi-based lawyer with the National Campaign on Dalit Human Rights (NCDHR), lies in the symbolic power of the law. “The act represents a shift in power and that is why it is so important to SC/ST, even if its implementation is flawed. This is why upper castes hate it so much and why Dalits find it so empowering.”
FALSE CASES
The problems with the act can be summed up in a single provision of the law, section 3.1 (X), which says insult or humiliation of a SC/ST person in public view is punishable with jail between six months and five years. In the experience of activists and academics, this is one of the most-frequently invoked sections in the law, even, in cases involving more serious crimes such as murder or rape.
A study done in 2015 by the Tata Institute of Social Sciences (TISS) in Rajasthan, which reported the highest rate of crime against SC/STS that year, showed more than 77% of police final reports only mention this section, and another national report by the NCDHR showed this section was being applied even in rape and murder cases — and that it was by far the section used most often. And most of these cases never reached the court, or resulted in acquittal.
“The police didn’t know anything about the SC/ST Act and would often not file an FIR if derogatory words (needed to prove ‘humiliation’ under the section) was not mentioned by the victim,” said Manjula Pradeep, an academic and activist from Gujarat.
Why does this happen? A string of recent studies list three factors: Public perception of the law based on incorrect interpretations of police procedure, oldfashioned logistical challenges; the most important, attitudes and prejudices.
The first can be explained by examining what a “false case” under the law is. The National Crime Records Bureau (NCRB) recorded more than 5,000 “false cases” in 2016, a statistic the top court mentioned in March to conclude the law was being misused.
In a 2014 paper published in the Economic and Political Weekly, TISS professor Sthabir Khora explained cases are labelled as “false” by police, not courts, after a probe is shut and a final report is written. That a case is false is the police’s opinion and therefore cannot be the final word — in fact, a complainant can go to court and get a case reopened after it has been declared false.
Khora, who studied final reports filed under the SC/ST Act and section 498A of the Indian Penal Code popularly known as the anti-dowry law, found an overwhelming number of final reports under the SC/ST Act labelled as “false” while the same under the anti-dowry code as “mistake of fact” or “galatfahmi”.
In subsequent interviews, station house officers revealed they closed reports as “galatfahmi” to shield women from further prosecution, which is permissible if the case is labelled false.
No such consideration appeared to be at play in the SC/ST cases. Moreover, the Rajasthan study found the rate of final reports in SC/ST act consistently 20 percentage points higher than that under the IPC. More than 50% of complainants in the Rajasthan study didn’t even know their cases were declared “false”.
“If a case is labelled false, the police can charge those who filed the complaint to prevent future iterations of the same. But only in 10% of the cases, police recommends action. Does it not prove police bias in labelling false cases?” he asked.
Another problem is the challenge of special courts and police stations.
The government was mandated to set up exclusive special courts, but several states have just designated usual sessions court as SC/ST courts.
Fourteen states have set up exclusive courts in 44% of the districts, according to the 2016 report of the Union social justice ministry.
The lack of exclusive courts adds to the pendency of cases that stood at 129,000 at the end of 2016, according to the latest round of the NCRB data.
The NCDHR study found many cases ran for more than a decade.
At the Jaipur exclusive special court, the special public prosecutor Anil Singh Solanki said the oldest case was pending since 2008 and that the court didn’t transact much business between 2013 and 2015 due to lack of a judge.
The Jaipur court, housed in a room the size of the average living room in a twobedroom apartment, hears not just cases under the SC/ST act but also under other special laws, such as the Protection of Children From Sexual Offences (Pocso) act. This is a norm not just in Rajasthan but across several states. For example, the trial of self-styled godman Asaram was conducted in an SC/ST court because the case was lodged under Pocso.
Inadequate infrastructure of police compounds the problem.
An ongoing study by the Commonwealth Human Rights Initiative (CHRI) found a 37% shortfall in personnel in special police stations in Madhya Pradesh, set up to deal with caste crimes. Its survey found only around 16% of the staff in these stations were scheduled castes.
BATTLING BIASES
The third, and possibly most important, are prevailing prejudices against the Act in particular and SC/ST complainants in general. Two studies done by the Union social justice ministry, one in 2005 and the other in 2015, found many judges thought the law is being misused and therefore were lukewarm about conviction, and favoured reduction of charges.
In fact, the 2005 study by the Union social justice ministry said 85.7% of NON-SC/ST judges, who form the majority of judges in the country, thought some sections of the law are not serious and don’t deserve heavy punishment.
The same situation exists with the police. “Upper-caste prejudice among police makes them anyway think such cases are fake, so they never do much. They think only untouchability is a castebased crime, not murder or rape. The little-educated Dalit victims are intimidated,” added Dinkar, who herself fights cases under the SC/ST law.
Moreover, Pradeep addded, invoking wrong sections also weakens a case. For example, it becomes almost impossible to prove intent, and that the crime occurred in a “public space”, mandatory under Section 3.1 (X) because no one comes forward to say they witnessed the crime.
“We found a stark difference in the perception of the law between non-sc and SC staff. Personnel belonging to SC communities tended to be more sympathetic to the volume and types of complaints whereas the perception that the act is being misused was predominant among non-sc staff,” said Devyani Srivastava, a senior programme officer at the CHRI.
In addition, many government prosecutors believe cases of murder and rape are not caste-mediated, and only land disputes and physical violence are. The special public prosecutor of Jaipur, Anil Singh Solanki, told me that Dalits are used as shields in cases of rivalry among upper castes.
“And for greed of the compensation, many will file cases of rape,” he added.
Experts say this is a self-fulfilling cycle. Ramudu Sreepati, an associate professor at the Centre for Study of Social Exclusion and Inclusive Policy at the University of Hyderabad, said police bias ensures complaints are not taken seriously and, hence, lighter sections are invoked. Singh added inadequate police staffing ensured shoddy investigation that often resulted in a final report calling the case “false” and in courts, cases stretched for years as witnesses recant and pressure builds on the complainant to withdraw.
So, when the case finally collapses, it strengthens the popular narrative that the law is misused and births a new cycle. “Laws meant for the poor are usually sloppily drafted but this act was an exception with its careful wording. But the law has been destroyed by executive, police and judiciary,” added Sreepati.
Thus, in the absence of fundamental changes, the act is likely to remain hobbled by implementation, and function more as a symbolic source for strength for SC/ST communities.