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Including The SC/ST Act In The Ninth Schedule Is Futile Without A Judicial Scrutiny

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Maybe one day, governments will try to do the hard thing rather than play to the galleries.

I am quite happy with the present government’s stand on a number of issues. However, it is the abnormal concessions that exasperate. Dealing with public pressure gives you varied scenarios. For example – not bowing to public pressure might be a sign of a strong government that shall not be bullied due to the ills of populism, or, just someone who won’t listen respectively. The Bharatiya Janata Party (BJP) Government displayed both when it listened to the concerns of small businesses by easing the compliance requirements for filing GST returns, but, still seems to fall on deaf ears regarding rolling back excise duty on petroleum products or to bring it within the ambit of GST, despite enjoying unanimous majority, on the GST Council.

The recent news that the President will promulgate an ordinance to put the Scheduled Caste & Scheduled Tribes (Prevention Against Atrocities) Act, 1989 into the Ninth Schedule is an example that falls into the latter category. The SC/ST Act was ‘diluted’, as some repeatedly claim, by the Supreme Court by removing the denial of anticipatory bail and removing automatic arrests of the accused on the single complaint of the victim.

Bad Idea or Good Strategy?

The SC/ST Act of 1989 is re-packaged legislation. The Act’s proverbial ancestor was the Untouchability Offences Act 1955, which was later seen to be lacking, and subsequently in 1976 became the Protection of Civil Rights (PCR) Act. Again the deficiency of law and order reforms were not addressed but rather, in this Act of 1989 – automatic arrests, denial of anticipatory bail (Section 18) and denial of probation (Section 19). In 2015, the Act was amended, based on the 2014 UPA Ordinance in March 2014, where the presumption of guilt by association (Section 8) was added.

The Ninth Schedule is a very convenient tool created by the Legislature. In the first-ever amendment to the Constitution, this schedule was made to bypass Article 13 which says – any law in violation of the Fundamental Rights shall be struck down. Any law put in the Ninth schedule can violate fundamental rights because it escapes judicial scrutiny by the courts. It was originally invented for land acquisition laws; it now includes laws on reservation (Tamil Nadu’s 69% reservation policy even though the ceiling set by the Supreme Court is 50%) and laws on monopolies. All was well for the Legislature until a historic judgement in 2007 in the IR Coehlo Case pronounced all laws in the Ninth schedule, inserted after 23rd April 1973, i.e. the famous Kesavananda Bharati judgement will be open to judicial scrutiny.

Even before arguing on the merits of whether or not, there was a dilution, one thing is clear – even if the Central Government places the SC/ST Act in the Ninth Schedule, it shall not be given any blank cheque. There will still be judicial scrutiny and I do not think the Supreme Court will go back on its judgement, especially after, the Government’s review petition also failed.

The Centre has a bad idea if it intends to introduce an ordinance to put the SC/ST Act in the Ninth Schedule. Although, it might play as a good strategy, since the Centre will be perceived to be, fighting for the ‘rights’ of the marginalised communities. I do not doubt more qualified bureaucrats than I have told them the same, but, in terms of politics, this might play out exceptionally well, even if the Act gets struck down later. As the Centre is seen doing something, even though, it was to have no substantive effect anyway.

Can The Act Be Misused?

Yes. But the more important question is – is it?

According to the National Crime Records Bureau (NCRB) in 2016, 5,347 cases were found to be false for SCs and 912 were false for STs. Secondly, the high number of acquittals in the number of cases completed is staggering. According to the judgement, which takes its numbers from the Ministry of Social Justice, out of 15,638 cases decided by the courts, 11,024 cases resulted in acquittal or discharge, and 495 cases were withdrawn in 2015. The misuse of this law is apparent.

Now the argument might be that they are being coerced to withdraw those cases. Perhaps, the victim is being dissuaded in some way. The point then is, is it possible, that the victim may be the one doing the threatening? Is it possible that the victim’s image is not the poor, hapless rustic villager who has been a subject of brutalisation by a malicious upper caste person? The victim, as evidenced by the staggering amount of false cases, might be using this law to subjugate the accused himself. The personification of an SC/ST must not be a certain way. We do them and the law a disservice if we do. There are economically well-to-do SCs and STs, who, have the same power under this law as those who fit the ‘traditional’ image of an SC/ST.

Thirdly, similar to the judgement, I think it is absolutely ridiculous to take away a person’s liberty, which is guaranteed under Article 21 (right to life and personal liberty). Section 18 of the SC/ST Act says that Section 438 of the Code of Criminal Procedure 1973 will not apply. Section 438 grants anticipatory bail, i.e. when a person thinks he might be arrested, he can apply for bail. You are prohibiting the accused to be treated equally against accused in other cases. Can the SC/ST Act continue despite denying them equal protection of laws (Article 14)? I do admit that where unequals and equals are treated differently, Article 14 goes out of the window. But that must be based on a reasonable criteria. Is it reasonable to expect that SC/STs will always be right 100% of the time? Is it not true that presumption of innocence is present in the Indian criminal procedure? That there must be a fair, just and reasonable procedure before someone’s liberty under Article 21 is taken away? That a unilateral claim cannot take superiority over a Fundamental Right? That a one-sided complaint can make someone, without being heard, go to prison?

There are several laws where Section 438 is not applicable, but, even if there is no case prima facie, can you still deny them anticipatory bail? When so many false cases have come out, it might mean that it is time to recognise a defect in the Act.

Another claim is that since cases are increasing, this judgement impacts on the successful resolution of those cases. That somehow, this judgement is hindering the completion of these cases. When the Act was ‘undiluted’, the conviction rate was 25.7% for SCs and 20.8% for STs in 2016. The Act wasn’t doing much to be ‘diluted’ from. In India, the number of cases increasing does not imply the number of incidents has increased since our country is grossly famous for our under-reportage of cases, similar to rape incidents. It might mean that more people are actually coming forward to register cases. It might not. The problem is why are there under-reporting of cases? Addressing that might start to answer some problems.

Real Solutions

Much like the death penalty for rapists not being a good deterrent, these provisions are not the solution. Before jumping to the last stage of a criminal procedure – conviction, the whole procedure must be improved to give confidence to the genuine victims of atrocities to come forward and file cases.

Firstly, sanctioning the vacancies in the police. We have about 5.3 lakh vacancies in all state police forces. Ensuring that there is an adequate number of law enforcement to properly investigate cases is necessary. This is where the states must lead from the front.

Secondly, investment in forensic units is a must, and here, funds from the Centre will be of utmost use. In serious crimes such as rapes, forensic evidence, up to a maximum of 72 hours must be collected. Investment in forensic units and for trained people to operate them is necessary for heinous crimes. I hope that the Central Government leads from the front on this as this comes under police modernisation.

Thirdly, moving away from law and order reforms, to bring different communities closer, an emphasis on welfare especially in education is prudent. To bring a more uniform society which is on the same level, educationally, bridges certain differences borne out of one’s birth. Increased literacy also brings about an ability to recognise one’s rights and to move away from the backward ills of caste.

Fourthly, digitisation of land records. This is because according to the Government a major cause for atrocities is land disputes. Digitisation improves access to records and clarity in terms of ownership of land.

Of course, the most important change is changing mindsets. This is not done through laws but reforming society as a whole, and to that, I am afraid, it is less about policy and more about sociological factors which play in.

This is not some ‘privilege’ talking or an inability to relate to the people who are subjected to the atrocities. This is an analysis of a persistent policy problem that will not go away no matter the amount of times it is repackaged. This judgment has recognised that jailing people on the words of the victim goes against a fair, just and reasonable process. I do acknowledge incidents such as Una. However, the right way to deal with that is not this. The corrective measures must be focused on are not easy, unlike putting this Act in the Ninth Schedule.

I do understand that Article 17 is why the law was brought on, but, it must not forget the existence of its colleagues, i.e. Article 14, Article 21 and even Article 32 (right to constitutional remedy). The law must be a means to an end, rather than an end itself to fight the horrible systemic threats to SCs and STs. It is not by targeting non-SCs/STs but via a long process of social change. I am happy that this judgement has ensured that an extreme one-sided approach does not bode well for India.

India will benefit if governments can start addressing the hard things.

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