Rhetoric to reasoned debate

The SC order on Atrocities Act calls for a dispassionate discussion. At stake is not just the question of justice for victims of caste atrocities, but also the issue of due process and the rule of law.

Written by Abhinav Kumar | New Delhi | Updated: April 7, 2018 1:00:28 am
 The Court is accused of creating provisions in criminal law that go beyond the letter and spirit of the law and might even subvert the original intention of the law. (Illustration by Manali Ghosh)

The last few days have been traumatic for the idea of India. Television screens have been filled with images of violent mobs on the rampage, scenes of wanton destruction of public and private property, and accounts of terrified citizens stranded in the midst of violence. The provocation was a recent judgment by a two-judge bench of the Supreme Court in S K Mahajan vs State of Maharashtra that placed certain obligations on investigating agencies and the courts before taking action against the accused in cases registered under the SC/ST (Prevention of Atrocities) Act 1989.

The SC judgment relied on the report of an amicus curiae. The bare facts of the case are as follows. In 2006, an employee, from a Scheduled Caste, with the technical education department of the government of Maharashtra, was given an adverse entry by his superior officers. He filed a criminal complaint under the Atrocities Act against the two officers. The investigating officer requested for prosecution sanction against the two accused in December 2010, which was denied by the director of technical education in January 2011. The complainant then filed an FIR under the Act against the director in March 2016 for denying sanction that was beyond his authority. The director approached the High Court in May 2017 for anticipatory bail and for quashing the FIR but did not get relief. He then approached the Supreme Court in 2017, and in March 2018, the apex court delivered the order that has led to this huge outburst of public anger and lawlessness.

Predictably, parties of all hues have sensed an opportunity in this violent expression of public sentiment and the blame game has begun. However, there is a need to move away from the angry rhetoric and have a serious debate on this issue. At stake is not just the important question of justice for victims of caste atrocities, but also equally important questions of due process and the rule of law.

Taking the view that a public servant, even if he erroneously exceeded his authority in denying sanction, cannot be treated as having acted with criminal mala fide, the order quashed the criminal proceedings against the director. The Court further held that there is no blanket ban on anticipatory bail under this Act. It directed that for the arrest of those accused under the Act who are public servants, approval of the appointing authority is required, and for all other accused, the approval of the SSP. Finally, the Court added the provision of a preliminary inquiry to be conducted by a deputy superintendent of police before registration of an offence under this Act.

The judgment has been criticised on various grounds. The legal argument is of judicial overreach. The Court is accused of creating provisions in criminal law that go beyond the letter and spirit of the law and might even subvert the original intention of the law. Others claim that there is no data to show that Atrocities Act has been seriously abused and therefore the Court is tilting at windmills. It is also argued that despite the enactment of this law, there has been no significant improvement in the discrimination faced by Dalits and Adivasis. Therefore, any dilution of its provisions represents a betrayal of our constitutional commitment to ending caste discrimination. Faced with public anger, the government has filed a review petition, which is pending before the Court. Whatever its final outcome, this case raises important questions that deserve to be discussed and debated in a reasonable manner.

As a police officer, my own anecdotal experience of atrocities cases is that this Act has not made a serious dent in curbing caste atrocities and discrimination. However, I do not believe that the data with the NCRB is either comprehensive or accurate enough to draw a clear cut conclusion about the efficacy of specific provisions of the Act. The Act has definitely created a sense of empowerment amongst sections of SC/STs and has upset the established social order in our villages. I have also seen instances where rival parties both upper castes, have used a proxy SC/ST complainant to settle scores. In all fairness, its impact has been a mixed bag. And like all other criminal acts, this Act too is prone to abuse, both by complainants and investigating authorities.

However, the particular case itself raises interesting questions. With regard to the impact of the order on public servants, bear in mind that the complainant was aggrieved by an adverse entry in his annual appraisal. Is an administrative grievance sufficient grounds to seek a remedy under criminal law? If we concede this principle, then the havoc it will unleash upon our administrative systems, that are all creaking anyway, will be immense. No general category or OBC supervisor would be able to record an adverse opinion of an SC/ST subordinate without fear of a criminal complaint. This is not to say that caste bias does not exist in our administrative systems. However, its remedy must be first through administrative means, then civil courts, and the provisions of criminal law must be invoked only as the last resort. Had the director granted sanction in this case, which both sides agree was not his to grant or deny, would he face criminal liability? It is hard to fault the logic of the Court on this limited point.

Other parts of the SC order also need to be examined dispassionately. Has the Court placed curbs on arrest only in cases involving the Atrocities Act, or is it part of a broader trend? The fact is the Court has been coming down against the power of arrest and in favour of more generous bail provisions across the spectrum of general and special acts in criminal law. If we believe that the power of arrest is subject to grave abuse, can we seriously claim that in cases under the Atrocities Act, this abuse doesn’t exist, or that if it does, it is comparatively negligible? With regard to the provision of a preliminary inquiry, the Court has formalised a practice which already existed on the ground, a practice it has held as essential in other areas of criminal law.

The SC order also points to a serious malady in our criminal justice system. Why are acts passed with the noblest of intentions, to prevent caste atrocities, to protect women from rape and dowry, to prevent drug trafficking, so prone to abuse? The fact is we have very weak laws to prevent the filing of false and frivolous criminal complaints. Similarly, the punishment for perjury in our laws is equally light and negligible. Given that there are few adverse consequences of lying before the police, and before the courts, even the most well meaning laws can and will be subjected to abuse. These deficiencies in criminal law need to be addressed. Given the resource constraints and behavioural deficiencies of the investigating agencies, with the exception of terrorism, one is generally sceptical of the effectiveness of draconian acts.

Before making up our mind about diluting or strengthening the Atrocities Act, we need better data about the nature and number of cases, the types of accused and their motives, the length of incarceration and time taken to grant bail, about convictions, and also acquittals that are often based on informal compromise. Much needs to be done to end caste atrocities. But as the criminal justice system moves generally towards a more liberal attitude towards arrest and bail, it is unfair to expect that the Atrocities Act will be ring-fenced from these trends. Shrill political rhetoric and inflamed passions and violence based on uncompromising victimhood are not going to provide any answers. Democratic debate and informed discussion are the only way out.

The writer is a serving police officer. Views are personal.

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