Prevention of Atrocities Act, 1986

Parliament enacted legislation to prevent discrimination and atrocities against the Scheduled Castes and the Scheduled Tribes. In State of Karnataka v. Appa Balu Ingale,[1] Justice Ramaswamy noted that Parliament enacted the stringent provisions of the Prevention of Atrocities Act, 1989 when “the mandate of Article 17 was being breached with impunity, and commission of atrocities on Dalits and Tribes continued unabated”.

The Court in State of Madhya Pradesh v. Ram Krishna Balothia[2] held that the offences under PoA Act “constitute a separate class and cannot be compared with offences under the Penal Code”. These offences are “committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude”, and “prevent them from leading a life of dignity and self-respect”.

The Court quoted the Statement of Objects and Reasons of the Act to highlight that “when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them” if they are on anticipatory bail. For this reason, the Court dismissed a challenge to Section 18 of the PoA Act, which debarred the opportunity to seek anticipatory bail in respect of offences committed under the Act.

In Safai Karamchari Andolan v. Union of India,[3] the Court noted that “the practice of manual scavenging has to be brought to a close”. Making a “member of a Scheduled Caste or a Scheduled Tribe to do manual scavenging or employing or permitting the employment of such member for such purpose” is a criminal offence under the PoA Act. The Court took a step further, and held that “entering sewer lines without safety gears should be made a crime even in emergency situations”.

The Court declared that for a death in sewer lines, “compensation of Rs. 10 lakhs should be given to the family of the deceased”. It was emphasized that “Persons released from manual scavenging should not have to cross hurdles to receive” compensation or rehabilitation “due under the law”.

The Court showed a deep concern about non-implementation of the PoA Act in National Campaign on Dalit Human Rights v. Union of India.[4] It remarked that “there has been a failure on the part of the authorities concerned in complying with the provisions” of the PoA Act. Calling out the “indifferent attitude of the authorities”, the Court directed the State and the Union governments to strictly do their role in implementing the Act.

These rulings emphasized that the PoA Act is a significant legislative measure designed to protect the fundamental rights and freedoms of the Scheduled Castes and Scheduled Tribes, ensuring their dignity and safety against discrimination and violence.

Subhash Mahajan Case

However, the subsequent judgment in Subhash Kashinath Mahajan v. State of Maharashtra[5] marked a departure from this protective stance. Dealing with a criminal appeal, the judgment in Subhash Mahajan expressed a “concern that working of the Atrocities [PoA] Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values”.

It held that there is “no absolute bar against grant of anticipatory bail” by the concerned court “in cases under the Atrocities [PoA] Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide”. The Court issued the following guidelines:

“(iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention;

(iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated;

(v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.”

The directions in Subhash Mahajan were later recalled in the review petition in Union of India v. State of Maharashtra.[6] In doing so, the Court noted that the Scheduled Castes and the Scheduled Tribes “are still making the struggle for equality and for exercising civil rights in various areas of the country”. It remarked that there is “no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class”. Instead, “members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one”.

The Court further declared that treating the Scheduled Castes and the Scheduled Tribes as “prone to lodge false reports under the Scheduled Castes and Scheduled Tribes Act for taking revenge” or monetary gain, especially when they themselves are victims of such offenses, contradicts fundamental principles of human equality.

The review judgment also observed that guidelines issued in Subhash Mahajan “may delay the investigation of cases”. The judgment termed the directions as “discriminatory”, as “it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position”, compared to complaints lodged by members of upper castes, where no such preliminary investigation is required. The Court also found the directions to be “without statutory basis”, as they are in conflict with PoA Act, and amounts to “encroaching on a field which is reserved for the legislature”.

The Court however clarified that “if prima facie case has not been made out attracting the provisions” of PoA Act, “the bar created under section 18 on the grant of anticipatory bail is not attracted”.

Before the review judgment was delivered, Parliament amended the PoA Act, undoing the effect of the guidelines issued in Subhash Mahajan. The amendment was unsuccessfully challenged in Prathvi Raj Chauhan v. Union of India.[7]

The hurdles faced by the Scheduled Castes and the Scheduled Tribes were highlighted by Supreme Court in Hariram Bhambhi v. Satyanarayan.[8] The Court cancelled the bail of an accused on the ground that the statutory requirement of Section 15A[9] of PoA Act was not fulfilled in the case. Authoring the judgment, Justice DY Chandrachud noted:

“Scheduled Castes and Scheduled Tribes specifically suffer on account of procedural lapses in the criminal justice system. They face insurmountable hurdles in accessing justice from the stage of filing the complaint to the conclusion of the trial. Due to the fear of retribution from members of upper caste groups, ignorance or police apathy, many victims do not register complaints in the first place. If victims or their relatives muster up the courage to approach the police, the police officials are reluctant to register complaints or do not record allegations accurately.

Eventually, if the case does get registered, the victims and witnesses are vulnerable to intimidation, violence and social and economic boycott. Further, many perpetrators of caste based atrocities get away scot-free due to shoddy investigations and the negligence of prosecuting advocates.

This results in low conviction rates under the SC/ST Act giving rise to the erroneous perception that cases registered under the Act are false and that it is being misused. On the contrary, the reality is that many acquittals are a result of improper investigation and prosecution of crime, leading to insufficient evidence. This is evident from the low percentage of cases attracting the application of the provisions of the Penal Code relating to false complaints as compared to the rate of acquittals.”

The Court observed that the provisions of the PoA Act, in particular Section 15A, “enable a member of the marginalized caste to effectively pursue a case and counteract the effects of defective investigations”.

In Patan Jamal Vali v. State of Andhra Pradesh,[10] Supreme Court expanded the scope of jurisprudence relating to Section 3(2)(v) of the PoA Act. The case dealt with the offence of rape of a woman from the Scheduled Caste community, who was blind by birth. Prior to the amendment in 2016, Section 3(2)(v) provided,

“Whoever not being a member of a Scheduled Caste or Scheduled Tribe … commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine”.

The Court observed that in such cases, “an intersectional lens enables us to view oppression as a sum of disadvantage resulting from multiple marginalized identities.” It was held that “A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence.”

The Court observed: “To deny the protection of Section 3 (2) (v) on the premise that the crime was not committed against an SC & ST person solely on the ground of their caste identity is to deny how social inequalities function in a cumulative fashion. It is to render the experiences of the most marginalized invisible. It is to grant impunity to perpetrators who on account of their privileged social status feel entitled to commit atrocities against socially vulnerable communities.” and economically.

The Court’s Ruling for the Protection of Scheduled Castes and Tribes

In Dr. Balram Singh v. Union of India,[11] while dealing with the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013, the Court directed the Union government to take “appropriate measures” and “issue directions, to all statutory bodies, including corporations, railways, cantonments, as well as agencies under its control, to ensure that manual sewer cleaning is completely eradicated in a phased manner”.

The Court also instructed that guidelines and directions should be issued to prevent the need for individuals to enter sewers, even when sewer cleaning work is outsourced or carried out by contractors or agencies.

The Court held that “where minimum protective gear and cleaning devices are not provided to hazardous workers, the employment of hazardous workers amounts to forced labour”, prohibited under the Constitution. Hence, the Court held that “the provisions for protective gear and cleaning devices are not mere statutory rights or rules, but are entitlements” guaranteed under the Constitution.

On a number of occasions, Supreme Court has expressed concern about the non-implementation of the PoA Act and the legislation prohibiting manual scavenging. The Court has also expressed concern about the false implication of people from nomadic/denotified tribes in criminal cases. In NALSA, the Court noted that the colonial-era Criminal Tribes Act “deemed the entire community of Hijras as innately ‘criminal’”.

In Ankush Maruti Shinde v. State of Maharashtra,[12] the High Court confirmed the conviction and death penalty of six accused for the offence of rape and murder. Their appeal was previously dismissed by Supreme Court. However, in a review petition, the Court restored the appeal and acquitted all the accused, finding that they were falsely implicated. Taking account of the fact that the accused belonged to nomadic tribes, the Court noted that “there was no fair investigation and fair trial” and the “serious lapse on the part of the investigating agency”.

As five of the accused spent 16 years in jail on false implication and all “were facing the hanging sword of death penalty”, the Court granted them monetary compensation for violating their rights under Article 21.

In a recent decision in Amanatullah Khan v. The Commissioner of Police, Delhi,[13] the petitioner sought “quashing of opening/approval of the History Sheet declaring him as bad character and consequential entries in the Surveillance Register being exercised” by the respondents. The Court reiterated that “History Sheet is only an internal police document and it shall not be brought in public domain”. Further, it emphasized that “extra care and precaution”, needs to be observed “by a police officer while ensuring that the identity of a minor child is not disclosed as per the law”.

It directed that Delhi Police “shall periodically audit/review the contents of the History Sheets and will ensure confidentiality and a leeway to delete the names of such persons/juveniles/children who are, in the course of investigation, found innocent and are entitled to be expunged from the category of “relations and connections’” in a History Sheet”. The crucial aspect of the above decision is that the Court exercised its suo motu powers to give directions to the police in other states to not act arbitrarily against the marginalized communities.

It noted: “Having partially addressed the grievance of the appellant, we now, in exercise of our suo motu powers, propose to expand the scope of these proceedings so that the police authorities in other States and Union Territories may also consider the desirability of ensuring that no mechanical entries in History Sheet are made of innocent individuals, simply because they happen to hail from the socially, economically and educationally disadvantaged backgrounds, along with those belonging to Backward Communities, Scheduled Castes & Scheduled Tribes.

While we are not sure about the degree of their authenticity, but there are some studies available in the public domain that reveal a pattern of an unfair, prejudicial and atrocious mind-set. It is alleged that the Police Diaries are maintained selectively of individuals belonging to Vimukta Jatis, based solely on caste-bias, a somewhat similar manner as happened in colonial times… We must bear in mind that these pre conceived notions often render them ‘invisible victims’ due to prevailing stereotypes associated with their communities, which may often impede their right to live a life with self-respect.”

The Court expected that the State governments “take necessary preventive measures to safeguard such communities from being subjected to inexcusable targeting or prejudicial treatment”. It directed all the States/Union territories to revisit their policies to adopt a “periodic audit mechanism overseen by a senior police officer” to scrutinize the entries made in history sheets. It was noted that “[t]hrough the effective implementation of audits, we can secure the elimination of such deprecated practicesand kindle the legitimate hope that the right to live with human dignity” will be protected.

The Court has also warned the police on misusing the power to arrest. In Arnesh Kumar v. State of Bihar,[14] a three-judge Bench adverted to the misapplication of the provision for arrest by the police. It was noted:

“Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Code of Criminal Procedure. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public.

The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

In Mallada K. Sri Ram v. State of Telangana,[15] the Court, speaking through one of us (Justice DY Chandrachud), highlighted the constitutional mandate to prevent arbitrary exercise of prevention detention:

“the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority.”

The exercise of the power to arrest or detain may become reflective of a colonial mind-set, if not exercised with caution. The misuse of the power of arrest not just violates rights, but it can prejudice generations of innocent citizens, especially marginalized communities such as the Denotified Tribes. Arrests can create a stigma of criminality if not done diligently. Innocent people, if arrested on the grounds of stereotypes and mere suspicion, may face barriers in securing employment and earning a dignified livelihood. Entering the mainstream becomes impossible when those who have suffered incarceration find themselves unable to secure livelihoods, housing, and the necessities of life.

Discrimination against the Scheduled Castes, Scheduled Tribes, and Denotified Tribes has continued in a systemic manner. Remedying systemic discrimination requires concrete multi-faceted efforts by all institutions. In discharge of their role, courts have to ensure that while there should be proper implementation of the protective legislation such as the PoA Act, there should not be unfair targeting of members from marginalized castes under various colonial-era or modern laws.

Reference

Sukanya Shantha v Union of India (2024)


[1] AIR 1993 SC 1126

[2] 1995 INSC 99

[3] 2014 (11) SCC 224

[4] AIR 2017 SC 132

[5] 2018 INSC 248

[6] 2019 INSC 1102

[7] (2020) 4 SCC 727

[8] 2021 INSC 701

[9] Section 15A(5) of the Act provides: “A victim or his dependent shall be entitled to be heard at any proceeding

under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected

Proceedings or arguments and file written submission on conviction, acquittal or sentencing.”

[10]  2021 INSC 272

[11] 2023 INSC 950

[12] 2019 INSC 305

[13] 2024 INSC 383

[14] 2014 INSC 463

[15] 2022 INSC 386