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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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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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