SCs & STs (PoA) ACT 1989,

AMENDMENT ORDINANCE, 2014

THE SCs & STs (PoA) ACT: A HISTORICAL SKETCH!!

HOW IT CAME INTO EXISTENCE!

The Parliament found the PCR Act 1955 and the normal provisions of the Indian Penal Code inadequate to deter such heinous crimes. Hence, it passed The SCs and STs (PoA) Act, 1989and Rules 1995; ensuring heavy penalties on dominant caste perpetrators of atrocities and onpublic servants who willfully neglect their duties to implement the Act. This was implemented in furtherance of the constitutional promises contained in Art 21 (Right to Life), Art 17(Abolition of ‘untouchability’), and Art 46 (mandating the State to protect SCs and STs formal forms of exploitation and social injustice).

Over the years SCs and STs (Prevention of Atrocities) Act, 1989 is widely acknowledged as landmark legislation in the journey to end injustice, violence and atrocities against SCs and STs. The basic objective and purpose of this more comprehensive and more punitive piece of legislation was sharply enunciated when the Bill was introduced in the Lok Sabha:

The existing laws like the PCR Act 1955 and the normal provisions of the IPC have been found to be inadequate to check and deter crimes against them committed by non-SCs and non-STs… It is considered necessary that not only the term ‘atrocity’ should be defined; but also stringent measures should be introduced to provide for higher punishment. It is also proposed to enjoin on the States and UTs to take specific preventive and punitive measures…to provide adequate relief and assistance to rehabilitate them.”1

REASONS FOR PROPOSED AMENDMENTS TO POA ACT?

IDENTIFYING KEY AREAS OF CONCERNS!! LACUNAE IN THE POA ACT!!!

Over the past 23 years since it came into effect, this Act has served as a precious tool for Dalits and Adivasis to assert their rights to dignity, equality, life and security in all matters related to their social status and livelihood concerns. Despite the deterrence assured by the Act, legal justice remains out of reach for a majority of victims largely because of poor implementation of the Act. Victims confront hurdles at every stage of the legal process – from registration, investigation and charge sheeting, to the trial stage. The conviction rates under the Act remained low:

v   Certain forms of atrocities, though well documented, not covered by the Act.

v  Several offences under the IPC committed frequently against SCs and STs by non SCs and non STs, on the ground that the victim was SC or ST not covered in the Act.

v  Public accountability provisions under the Act not outlined in greater detail.

v   Implementation of the Act suffered from the following problems:

§ Procedural hurdles such as non-registration of cases.

§ Procedural delays - in investigation, arrests and filing charge-sheets

§ Delays in trial and low conviction rate

§ Procedural delays in providing relief and rehabilitation to victims, and inadequate

v  rates of compensation

PROCESS OF DEVELOPING AMENDMENTS!

In the light of field experiences and efforts during the past many years, National Coalition for strengthening PoA Act, initiated by National Dalit Movement for Justice comprised of many alit organizations, Dalit activists and experts reviewed the performance of the Central and State governments in implementing the Act and realizing its objectives during the past 24 years and worked closely with National Advisory Council (NAC) and the outcome of all the review and recommendations of NAC was, set of amendments proposed by Ministry of Social Justice to the parliament in the form of Bill on 12.12.2013 to amend the Act and make it strong and effective. But even after introduction of the Bill of amendments in the Parliament, same was not taken as an agenda for discussion and passing in the last parliamentary session of the present government. Therefore, once again the Coalition members found it appropriate to put their energies and efforts and met many Parliamentarians, including ministers and major political parties with a demand for passing of the amendments in the parliament.

The final outcome of all these efforts of relentless work done by the Coalition was the introduction of Ordinance to amend the PoA Act. The same has been notified in The Gazette of India (Registered NO. DL-(N)04/0007/2003-14), Extraordinary Part- II, Section-I, published by Ministry of Law and Justice (Legislative Department) on the 4thMarch, 2014.

KEY FEATURES OF THE ORDINANCE!

§  Addition of following new category of offences to the existing punishable offences. In addition to the existing offences listed in the Act, following new offences added. To cite a few: tonsuring of head, moustache, or similar acts which are derogatory to the dignity of Dalits and Adivasis; garlanding with chappals; denying access to irrigation facilities or forest rights ; dispose or carry human or animal carcasses, or to dig graves; using or permitting manual scavenging; dedicating Dalit women as devadasi; abusing in caste name; perpetrating witchcraft atrocities; imposing social or economic boycott; preventing Dalit and Adivasi candidates filing of nomination to contest elections; hurting the modesty of Dalit/Adivasi woman by removing her garments; defiling objects sacred to SCs and STs; touching a women or uses words, acts or gestures of a sexual nature against women.

§  Addition of IPC offences committed against Dalits or Adivasis as punishable offences under the POA Act. Presently, only those offences listed in IPC as attracting punishment of 10 years or more and committed on Dalits/ Adivasis are accepted as offences falling under the POA Act. A number of commonly committed offences (hurt, grievous hurt, intimidation, kidnapping etc.) are excluded from the Act. This provides loopholes for the perpetrators of crime to escape from being punished for these commonly committed crimes. Therefore a Schedule of list of IPC offences is provided in the amended act.

§  Establishment of Exclusive Special Courts and Special Public Prosecutors to exclusively try the offences falling under the POA Act to enable speedy and expeditious disposal of cases. Presently, Special Courts and Public Prosecutors also deal with other cases besides atrocity cases. Consequently, cases are kept pending for long time. Thus victims are denied justice or speedy justice. Establishment of an Exclusive Special Court for one or more districts and Exclusive Public Prosecutor is proposed;

§  Power of Exclusive Courts to take cognizance of offence and completion of trial in 2 months. Courts so established or specified shall have power to directly take cognizance of offences under this Act and the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.

§  Addition of chapter on the ‘Rights of Victims and Witnesses’. As of now, the Act recognizes a few rights of the victims and witnesses. This is insufficient. Therefore many other essential rights are covered so as to impose duty and responsibility upon the State for making arrangements for the protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.

§  Defining clearly the term ‘willful negligence’ of public servants at all levels, starting from the registration of complaint, and covering aspects of dereliction of duty under this Act. Section 4 of the present Act does not clearly define what constitutes ‘willful negligence’ of public servants. Hence, ‘willful negligence’ is defined by listing specific transgressions of law: for example, police officers not putting downaccurately in writing the victim’s complaint; not reading out to the victims what has been recorded prior to getting their signature; not registering FIR under the Act; not registering it under appropriate sections of the Act; etc.

§  Addition of presumption to the offences –If the accused was acquainted with the victim or his family, the court will presume thatthe accused was aware of the caste or tribal identity of the victim unless proved otherwise.

HOW THE ORDINANCE WILL BENEFIT THE COMMUNITY?

The amendments proposed in the Parliament seeks to benefit several issues which in past remained difficult for majority of the victims and the witnesses, such as non-registration of cases; delays in investigation, arrests and delayed filing of charge-sheets; and delays in trial.

It will also benefit the Dalit victims now to register their complaints with newer forms of atrocities, known to be occurring in recent years, which were not covered by the Act, including some of the IPC offences committed frequently. In the proposed amendments public accountability provisions are outlined in greater detail and public servants if harassing the victims and witnesses can be penalized in the same special courts through administrative recommendations. Specifically the amendments will benefit in completion of the trial with Exclusive Special Courts and Exclusive Public Prosecutors with in a period of 2 months on day to day basis. Overall the amendments will benefit in improving conviction rate and low acquittal rate under the PoA Act.