Evolution of POA Act 1989 and its Provisions In modern times, atrocities against the Scheduled Castes can be traced back to the 19th century in parts of India when the systemic practice of ‘untouchability’ began to be challenged by the ‘Untouchables’ ! Committee which toured "ritish India in the 19#$s to re%iew the working of the &o%ernment of India !ct 1919 noted that many atrocities were being committed during those days against the ‘Untouchables’, but were going unnoticed and unpunished because witness would not come forward to gi%e e%idence 'he post(Independence era was marked by fre)uent instances of atrocities springing up across the country !trocities continued to rise with ferocity and in all such cases, the Indian State at both the national and state le%els a%oided addressing basic contradictions, %ulnerabilities and causati%e factors* the treatment was mainly symptomatic and palliati%e instead of the re)uired radical solutions Indian +arliament enacted the Untouchability ffences !ct 19--, which underwent amendment and renaming in 19./ to become the +rotection of Ci%il 0ights +C02 !ct Under this !ct, ‘untouchability’ as a result of religious and social disabilities was made punishable 3owe%er, due to legal loopholes, the le%els of punishments being less puniti%e as compared to those of the I+C, and the law and order machinery being neither professionally trained nor socially inclined to implement such social legislation, legislation, a more comprehensi%e and more puniti%e !ct was re)uired to protect SCs and S's from %iolence committed by other communities Under continued pressure from mass mo%ements and 4eft +arties, finally took up this issue 'his ga%e rise to the SC5S' +o!2 !ct 1969 'he Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 was enacted by the +arliament of India !ct 77 of 19692, to p re%ent atrocities against scheduled castes and scheduled tribes tribes 'he !ct is popularly known as +!, the SC5S' !ct, the +re%ention of !trocities !ct, or simply the !trocities !ct Article 17 of ndian Constitution seeks to abolish 8untouchability8 and its practice in any form is forbidden !ntouchabilit" (Offences) Act 19## was enacted 3owe%er, lacunae and loopholes impelled the go%ernment to proect a maor o%erhaul of this legal instrument :rom 19./ onwards the !ct was re%amped as the +rotection of Ci%il 0ights !ct Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act$, 1989% 'his !ct, with stringent pro%isions which e;tends to whole of India e;cept the State of
asmhir2 was enacted on 9 September 1969 Section #712 of the !ct authorises the Central &o%ernment to frame rules for carrying out the purpose of the !ct ?rawing power from this section, the Scheduled Castes and the Scheduled 'ribes +re%ention of !trocities2 Rules !trocities2 Rules of of 199- were framed 'he rules for the !ct were notified on 71 @arch 199- 'his it self shows the sincerity of the go%ernment
Salient &oints' 'he pro%isions of SC5S' !ct and 0ules can be di%ided into three different categories, co%ering a %ariety of issues related to atrocities against SC5S' people and their position in society •
•
•
'he first category contains pro%isions of criminal law It establishes criminal liability for a number of specifically defined atrocities, and e;tends the scope of certain categories of penaliAations gi%en in the Indian +enal Code I+C2 'he second category contains pro%isions for relief and compensation for %ictims of atrocities 'he third category contains pro%isions that establish special authorities for the implementation and monitoring of the !ct
The salient features of the Act are: 1 Creation of new types of offences not in the Indian +enal Code I+C2 or in the +rotection of Ci%il 0ights !ct 19-- +C0!2 # Commission of offences only by specified persons atrocities can be committed only by non(SCs and non(S's on members of the SC or S' communities Crimes among SCs and S's or between S's and SCs do not come under the pur%iew of this !ct2 7 ?efines %arious types of atrocities against SCs5S's Section 712i to ;% and 7#2i to %ii2 B +rescribes stringent punishment for such atrocities Section 712i to ;% and 7#2i to %ii2 - nhanced punishment for some offences Section 7#2i to %ii, -2 / nhanced minimum punishment for public ser%ants Section 7#2%ii2 . +unishment for neglect of duties by a public ser%antSection B2 6 !ttachment and forfeiture of property Section .2 9 ;ternment of potential offenders Section 1$12, 1$72, 1$722 1$ Creation of Special Courts Section 1B2 11 !ppointment of Special +ublic +rosecutors Section 1-2 1# mpowers the go%ernment to impose collecti%e fines Section 1/2 17 Cancellation of arms licences in the areas identified where an atrocity may take place or has taken place 0ule 7iii2 and seiAe all illegal fire arms 0ule 7i%2 1B &rant arms licences to SCs and S's 0ule 7%2 1- ?enial of anticipatory bail Section 162 1/ ?enial of probation to con%ict Section 192 1. +ro%ides compensation, relief and rehabilitation for %ictims of atrocities or their legal heirs Section 1.72, #1#2iii, 0ule 11, 1#B22 16 Identification of atrocity prone areas Section 1.12, #1#2%ii, 0ule 7122 19 Setting up deterrents to a%oid committing of atrocities on the SCs amongst others 0ule 7i to 7;i2
Soe i&ortant sections' 1 Section B76 of the Court of Criminal +rocedure anticipatory bail2 do not apply to the persons committing an offence under the !ct refer section 16 # :or the purpose of pro%iding speedy trial and )uick disposal of the cases filed under the pro%isions of the !ct, special Courts are established in each district refer Sec1B2 7 :or e%ery special Court established under the !ct, a special public prosecutor need to be appointed and the said special public prosecutor shall be an !d%ocate who has been in practice as an ad%ocate for not less than . years refer Sec1-2 B 'he State &o%ernment by notification may appoint any officer conferring the powers e;ercisable by a police officer in each district or part thereof for the pre%ention of the commission of offences specified under the !ct 0efer Sec9 - 'he special Court is empowered to pass an order directing any person who is likely to commit an offence under chapter(# of the !ct in any area included in schedule areas or in tribal areas to remo%e himself beyond the limits of such area for a period not e;ceeding two years and when the said persons fails to remo%e himself, the special Court may cause him to be arrested refer Sec 1$ to 172 / 'he ?istrict @agistrate or a Sub ?i%isional @agistrate or an ;ecuti%e @agistrate or any police officer not below the rank of ?S+ may take steps to pre%ent commission of offences upon the persons belonging to Scheduled Castes and Scheduled 'ribes refer Sec1.2 . 'he pro%isions of Sec7/$ Cr+C and the pro%isions of the probation of offenders !ct shall not apply to any persons abo%e the age of 16 years who is found guilty of ha%ing committed an offence under the !ct refer Sec192 6 +resumption when financial assistance is gi%en to the accused or where the offence was committed in pursuance of e;isting disputes regarding 4and or any other matter is pro%ided under Section 6 of the !ct 9 +unishments for offences of atrocities are gi%en under sec7 of the !ct
1$ Can e;ercise powers as conferred under Sec#7 of the !ct the Scheduled Castes and Scheduled 'ribes +re%ention of !trocities2 0ules 199- were formulated 11 'he rules deals with the liability of the State &o%ernment to take precautionary and +re%enti%e measures and also in respect of pro%isions of prosecution and monitoring the progress of cases filed under !ct 1# !lso setting up of Scheduled Castes and Scheduled 'ribes protection Cell is pro%ided 17 0esponsibility is fi;ed upon the State &o%ernment to make necessary pro%isions in its annual budget for pro%iding relief and rehabilitation to the %ictims of atrocities 1B !nne;ure(I of the rules deals with the )uantum of amount that will be gi%en as relief to the persons upon whom atrocities were committed
onitorin* echanis' 'ogether with the rules, it pro%ides a framework for monitoring the state response to the atrocities against Scheduled Castes and Scheduled 'ribes !ccording to the !ct and 0ules, there are to be monthly reports from the ?istrict @agistrates2, )uarterly re%iew meetings at the district le%el by the ?istrict @onitoring and Digilance Committee ?D@C2 and half yearly re%iews by a #- member State @onitoring and Digilance Committee SD@C2 the chaired by the Chief @inister 'he performance of e%ery Special +ublic +rosecutor S++2 will also ha%e to be re%iewed by the ?irector of +ublic +rosecutions ?++2 e%ery )uarter !nnual reports ha%e to be sent to the central go%ernment by 71 @arch e%ery year Setting up a mandatory, periodic monitoring system at different le%els Section #1#2%2E • • •
?istrict le%el 0ule 7;i, B#2, BB2, 1.2 State le%el 6;i, 1B, 1/, 162 Fational le%el Section #1#2, #172, #1B22
+efinin* atrocit" 'he term 8atrocity8 was not defined until this !ct was passed by the +arliament in 1969 In legal parlance, the !ct understands the term to mean an offence punishable under sections 712 and 7#2 In specific termsE
1 !trocity is Gan e;pression commonly used to refer to crimes against Scheduled Castes SCs2 and Scheduled 'ribes S's2 in IndiaH # It Gdenotes the )uality of being shockingly cruel and inhumane, whereas the term 8crime8 relates to an act punishable by lawH 7 It implies Gany offence under the Indian +enal Code I+C2 committed against SCs by non(SC persons, or against S's by non(S' persons Caste consideration as a moti%e is not necessary to make such an offence in case of atrocityH B It signifies Gcrimes which ha%e ingredients of infliction of suffering in one form or the other that should be included for reportingH 'his is based on the assumption that Gwhere the %ictims of crime are members of Scheduled Castes and the offenders do not belong to Scheduled Castes caste considerations are really the root cause of the crime, e%en though caste considerations may not be the %i%id and minimum moti%e for the crimeH 'he !ct lists ## offences relating to %arious patterns of beha%iours inflicting criminal offences for shattering the self(respect and esteem of SCs and S's, denial of economic, democratic and social rights, discrimination, e;ploitation and abuse of the legal process, etc Section 7 of the !ct lists the criminal offences and the punishments It containsE •
•
•
19 offences in their own right Section 712 contains 1- subsections with an e)ual number of offences Section 7#2 contains four subsections with offences2 two deri%ed offences sections 7#2%i2 and 7#2%ii22 'he deri%ed offences are based on the offences gi%en in the SC5S' !ct 'hey only come in the picture pro%ided that another offence under the SC5S' !ct has been committed one subsection that increases the punishment for certain o ffences under the I+C Section 7#2%22
'hese protections can be broadly di%ided into protection from •
•
• • • •
social disabilities denial of access to certain places and to use customary passage and to get water from any spring, reser%oir or any other source2 personal atrocities forceful drinking or eating of inedible or obno;ious substance, against stripping, outrage of modesty, se;ual e;ploitation, inury or annoyance2 atrocities affecting properties land, residential premises, e;isting p roperties2 malicious prosecution political disabilities economic e;ploitation
'he common denominator of the offences is that criminal liability can only be established if the offence is committed by a person who is not a member of a Scheduled Caste or a Scheduled 'ribe against a person who belongs to a Scheduled Caste or a Scheduled 'ribe
S&ecial Courts
:or speedy trial, Section 1B of the !ct pro%ides for a Court of Session to be a Special Court to try offences under this !ct in each district 0ule 17i2 mandates that the udge in a special court be sensiti%e with right aptitude a nd understanding of the problems of the SCs and S's Special Courts established under Section 1B of the !ct are re)uired to follow the committal procedure under Cr+C Such an interpretation pre%ents the speedy trial en%isaged under the !ct 'he absence of ade)uate special courts has resulted in slow disposal of atrocity cases and a huge backlog 3owe%er, that is seldom the case @ost states ha%e declared a court as a 8special court8 'he hitch is that they are designated courts as opposed to e;clusi%e special courts2 and so ha%e to hear many other cases too Conse)uently, at any time about 6$ of the cases are pending Jdefeating the %ery purpose of ha%ing special courts in the first place
nvesti*ation !ccording to 0ule .12 in%estigation of an offence committed under the SC5S' !ct cannot be in%estigated by an officer not below the rank of ?eputy Superintendent of +olice ?S+2 Darious 3igh Courts ha%e %itiated the trail based on the abo%e rule and ha%e improperly set aside the order of con%iction
Co&ensation !trocities often take place when persons belonging to the SC community do not fulfill their 8caste functions8 by doing ritually prescribed 8unclean8 work or break the caste boundaries such as sitting in the bus or wearing a turbanJoften the preser%e of the dominant castes !trocities are often a form of 8collecti%e8 punishment for daring to ha%e e%en some semblance of non(dependence which is termed as 8prosperous8, and the atrocity is to bring them back into the situation of total dependence and ser%itude 'he state therefore has the duty to help the community back on its feet 'he go%ernment has prescribed a schedule for compensationunder 0ule 1#B22 as !nne;ure 1 entitled Forms for 0elief !mount 'his is periodically updated 'he recent amendment is #7 ?ecember #$11
Causes and factors for atrocities' ! study conducted by the Fational Commission for SCs and S's in 199$ on !trocities on Scheduled Castes and Scheduled 'ribesE Causes and 0emedies pointed out %arious causal factors for atrocities' land disputes; land alienation; bonded labour; indebtedness; non payment of minimum wages; caste prejudice and practice of untouchability; political factions on caste lines; refusal to perform traditional works such as digging burial pits, arranging cremations, removing carcasses of dead animals and beating drums; etc
! committee under the Chairmanship of the @inister of Social
:irstly, the high rate of ac)uittal*
#
Secondly, the high rate of pendency of cases and %ery low rate of disposal*
7 'hirdly, inade)uate use of the pre%enti%e pro%isions of the !ct, while the puniti%e pro%isions are in%oked and :I0 is registered, pre%enti%e pro%isions are rarely in%oked* B :ourthly, that the committees and other mechanisms pro%ided in the !ct ha%e %irtually not been put to use* - 'he !ct itself may not be deterrent* perhaps it is not being as deterrent as we thought it could be
Prevention' !s 8police8 and 8public order8 are state subects, primary responsibility for pre%ention of atrocities and maintenance of law and order rests with the State &o%ernments Such responsi%e go%ernment is essential for pre%ention of atrocities likely to be inflicted upon SCs and S's by unscrupulous non(SC5S' elements Section #112 and #2 of SC5S' +!2 !ct, 1969 stipulate that the State &o%ernment shall take all such measures as may be necessary for its effecti%e implementation 3owe%er despite the !ct and 0ules, the situation has not changed much
-ehabilitation !ccording to the preamble of the SC5S' !ct, it is an !ct to prevent the commission of offences of atrocities against SC5S's, to pro%ide for Special Courts for the trial of such offences and for the relief and rehabilitation of the %ictims of such offences
nclude .e/ Offences and aend soe definitions' F!C in its recommendations to the @oS< in Chapter # on new offences ffences of !trocities2 in the !ct, a2 ?efine and include as offences some new, emerging and systemic forms of atrocities against ?alits and 'ribals b2 !mend some e;isting definitions to reflect present reality and re(draft some sections to remo%e elements which thwart the implementation of the !ct c2 ?efine some offenses with strict liability, thus diluting mens rea for such offences d2 "ring within the pur%iew of the !ct rele%ant I+C ffences that attract penalties of less than 1$ years
e2 ;pand the scope of presumption in Section 62 as to whether perpetrator had knowledge of the SC5S'2 identity of the %ictim, while committing the offence f2 Strengthen State accountability by clearly d efining ‘wilful negligence’ by public ser%ants in Section B2 and empowering the ?edicated Special Court to take cogniAance of such willful negligence The following new offences are recommended by !A" i bstructing the use of common property resources* ii Causing physical harm or death on the allegation of practicing witchcraft* iii Imposing social or economic boycott* i% +re%enting entry to any place of public worship* % !betment
+alits in other reli*ions not covered 'his !ct is applicable only for those communities that are in the go%ernment Schedule Caste or Schedule 'ribe lists 'hose who suffer from caste based discrimination C"?2 but are left out of the go%ernment listJthe ?alits Jmainly those who profess Christianity or Islam, but e%en others who are not on the list due to mis(classification2 do not come under its pur%iew 'his makes ?alits who ha%e e;ercised their freedom of religion more %ulnerable if they or their ancestors chang ed their religion2 or subect to administrati%e whims and fancies if they profess to be 3indu, S ikh or "uddhist2
i*ration Under constitutional pro%isions, a caste or tribe is notified with reference to a State or Union territory 3ence a person born in state5U' gets certificate of SC5S' if his5her father belongs to specified caste5tribe in that state as SC5S' n migration to another state, they lose their SC5S' status for affirmati%e actions, ie benefit of admission in educational institutes, reser%ation in go%ernment employment etc but the protection accorded under this Act stays nce a person is notified as SC5S' in any state5U', they are protected under the SCs and S's +re%ention of !trocities2 !ct, 1969 throughout the country, irrespecti%e of whether the particular caste or tribe is notified in the state5U' where the offence is committed
0e*al aid 4egal aid is a%ailable for all %ictims regardless of financial status :or all others legal aid depends on the financial status
