LAWS RELATED TO SC & ST

Dear friends, In this notes I’ve tried to summarize the laws related to SC’s & ST’s, safeguards provided to them by our constitution, the origin and development of the SC ST Act, offences which amount to “atrocities” under this act, Punishment for those offences and the relief provided to the victims. You may be able to understand how and why the arrest is important and what impact could be there if the ban is not removed if you learn the offences mentioned in the section 3 of this Act. Please let me know your views and comments on this notes.

Definition of Scheduled Castes & Scheduled Tribes

Scheduled Castes and Scheduled Tribes are well defined under the article 366 (24) and 341 as under:

Article 366(24) in the Constitution of India

(24) Scheduled Caste means such cases, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution;

341. Scheduled Castes

(1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause ( 1 ) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Safeguards to Scheduled Casts and Scheduled Tribes in the Constitution of India

v Social Safeguard

The Preamble of the Constitution of India itself talks about the equal status of the citizens of India. The constitution provides a sovereign, socialist, secular, democratic republic where every citizen is equal.

Article 14 talks about right to equality before law, according to this article every person is equal in the eyes of law, it emphasizes on prohibition of discrimination on grounds of race, religion, caste, gender, or place of birth, etc.

Article 17 abolishes the practice of untouchability. According to the provision of this article “enforcement of any disability arising out of untouchability” is a punishable offence in accordance with law.

Article 23 prohibits human trafficking, beggar and other similar forms of forced labor and provides that any contravention of this provision shall be a punishable offence. Although this article is not specifically articulated for the SCs and STs but because majority of bonded labor is from SCs so it holds significance for them.

Article 25 (2) (b): provides that Hindu religious institutions of a public character shall be opened to all classes and sections of Hindu.

v Economic Safeguard

Article 46 states “The State shall promote with special care the educational and economic interests of the weaker section of the people and in particular of the Schedule Castes and Schedule Tribes, and shall protect them from social injustice and all forms of exploitation”.

v Educational & Cultural Safeguard

v Article 15(4): the State to make special provisions for the advancement of any socially & educationally backward class of the citizens and for SCs. This article enabled the State to reserve seats for SCs in educational institutions.

v Article 335: Allows relaxation in qualifying marks for admission in educational institutes or promotions for SCs/STs.

v Political Safeguard

Article 243D: Reservation of seats for the SC and the ST in every Panchayat. Article 243T: Reservation of seats for the SC and STs in every Municipality. Article 330: Reservation of seats for the SC and ST in the House of the People. Article 332: Reservation of seats for the Scheduled SC and ST in the Legislative Assemblies of the States. Article 334: Reservation of seats and the special representation to cease after forty years, though in 95th amendment it has been extended up to 2020.

v Service Safeguard

Article 16(4): This clause allows the state to reserve vacancies in public service for any backward classes of the state that are not adequately represented in the public services. Article 16 (4A): Allows the state to implement reservation in the matter of promotion for SCs and STs. Article 16(4B): This allows the state to consider unfilled vacancies reserved for backward classes as a separate class of vacancies not subject to a limit of 50% reservation.

v Other Safeguards

Article 164: Appoint special minister for tribal welfare in the states of MP, Bihar, and Orissa. Article 275: Allows special grant in aids to states for tribal welfare. Article 338/338A/339: Establishes a National Commission of SCs and STs. Article 339 allows the central govt. to direct states to implement and execute plans for the betterment of SC/STs. Article 340: Allows the president to appoint a commission to investigate the condition of socially and economically backward classes and table the report in the parliament.

Source- Internet, indiankanoon.org and other Law Websites

SC and the ST (Prevention of Atrocities) Act, 1989

Origin and Development

The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well. This act lay down that whatever is open to general public (or Hindus) should be open to the members of the scheduled castes. No shopkeeper can refuse to sell them; no person may refuse to render any service to any person on the ground of untouchability. The act made provision for imprisonment and fine.

However, the law was found to be inadequate to check and deter crimes against them committed by non-SCs and non-STs. It was considered necessary that not only the term 'atrocity' should be defined, but also stringent measures should be introduced to provide for higher punishment for committing such atrocities. Therefore a more comprehensive and punitive piece of legislation called “The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989” was enacted. The act was further amended to ensure more stringent provisions for prevention of atrocities against Scheduled castes and Scheduled Tribes in 2015 and enforced w.e.f January 26, 2016.

Meaning / Definition of “Atrocity”

Atrocity is an offence, punishable under Section 3 of the Act.

Offences of Atrocities

Section 3- “Punishment for Offences Atrocities”: (1) “Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(a) puts any inedible or obnoxious substance into the mouth of a member of a Scheduled Caste or a Scheduled Tribe or forces such member to drink or eat such inedible or obnoxious substance;

(b) dumps excreta, sewage, carcasses or any other obnoxious substance in premises, or at the entrance of the premises, occupied by a member of a Scheduled Caste or a Scheduled Tribe;

(c) With intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe, dumps excreta, waste matter, carcasses or any other obnoxious substance in his neighborhood;

(d) Garlands with footwear or parades naked or semi-naked a member of a Scheduled Caste or a Scheduled Tribe;

(e) forcibly commits on a member of a Scheduled Caste or a Scheduled Tribe any act, such as removing clothes from the person, forcible tonsuring of head, removing moustaches, painting face or body or any other similar act, which is derogatory to human dignity;

(x) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;

(denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any other section thereof have a right to use or access to;

(za) obstructs or prevents a member of a Scheduled Caste or a Scheduled Tribe in any manner with regard to—

(A) using common property resources of an area, or burial or cremation ground equally with others or using any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, any public conveyance, any road, or passage;

(B) mounting or riding bicycles or motor cycles or wearing footwear or new clothes in public places or taking out wedding procession, or mounting a horse or any other vehicle during wedding processions;

(C) entering any place of worship which is open to the public or other persons professing the same religion or taking part in, or taking out, any religious, social or cultural processions including jatras;

(D) entering any educational institution, hospital, dispensary, primary health centre, shop or place of public entertainment or any other public place; or using any utensils or articles meant for public use in any place open to the public;

(E) practicing any profession or the carrying on of any occupation, trade or business or employment in any job which other members of the public, or any section thereof, have a right to use or have access to;

(zb) causes physical harm or mental agony of a member of a Scheduled Caste or a Scheduled Tribe on the allegation of practicing witchcraft or being a witch;

(k) performs, or promotes dedicating a Scheduled Caste or a Scheduled Tribe woman to a deity, idol, object of worship, temple, or other religious institution as a devadasi or any other similar practice or permits aforementioned acts;

(w) (i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient‘s consent; (ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.

(h) makes a member of a Scheduled Caste or a Scheduled Tribe to do ―beggar or other forms of forced or bonded labor other than any compulsory service for public purposes imposed by the Government;

(i) compels a member of a Scheduled Caste or a Scheduled Tribe to dispose or carry human or animal carcasses, or to dig graves;

(j) makes a member of a Scheduled Caste or a Scheduled Tribe to do manual scavenging or employs or permits the employment of such member for such purpose;

(f) wrongfully occupies or cultivates any land, owned by, or in the possession of or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe, or gets such land transferred;

(g) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom. Explanation.––For the purposes of clause (f) and this clause, the expression ―wrongfully includes—

(A) against the person‘s will;

(B) without the person‘s consent;

(C) with the person‘s consent, where such consent has been obtained by putting the person, or any other person in whom the person is interested in fear of death or of hurt; or

(D) fabricating records of such land;

(l) forces or intimidates or prevents a member of a Scheduled Caste or a Scheduled Tribe—

(A) not to vote or to vote for a particular candidate or to vote in a manner other than that provided by law;

(B) not to file a nomination as a candidate or to withdraw such nomination; or

(C) not to propose or second the nomination of a member of a Scheduled Caste or a Scheduled Tribe as a candidate in any election;

(m) forces or intimidates or obstructs a member of a Scheduled Caste or a Scheduled Tribe, who is a member or a Chairperson or a holder of any other office of a Panchayat under Part IX of the Constitution or a Municipality under Part IXA of the Constitution, from performing their normal duties and functions;

(n) after the poll, causes hurt or grievous hurt or assault or imposes or threatens to impose social or economic boycott upon a member of a Scheduled Caste or a Scheduled Tribe or prevents from availing benefits of any public service which is due to him;

(o) commits any offence under this Act against a member of a Scheduled Caste or a Scheduled Tribe for having voted or not having voted for a particular candidate or for having voted in a manner provided by law;

(p) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;

(q) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;

(z) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence: Provided that nothing contained in this clause shall apply to any action taken in discharge of a public duty;

(zc) imposes or threatens a social or economic boycott of any person or a family or a group belonging to a Scheduled Caste or a Scheduled Tribe:

(2)(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe;

(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(v) by words either written or spoken or by any other means disrespects any late person held in high esteem by members of the Scheduled Castes or the Scheduled Tribes;

(u) by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes..

(t) destroys, damages or defiles any object generally known to be held sacred or in high esteem by members of the Scheduled Castes or the Scheduled Tribes. Explanation.––For the purposes of this clause, the expression ―object means and includes statue, photograph and portrait; “

Section 3(1) identifies offence with a minimum sentence of 6 months imprisonment which may extend to five years and fine.

Section 3 (2) identifies serious offences like fabricating false evidence and causing execution of an innocent SC/ST etc., where the punishments are seven years or life imprisonment or death. The offences can be committed only by persons who neither are SCs nor STs.

Section 4 – Punishment for neglect of duty.

Any public servant who is not an SC or ST, willfully neglecting duties under this Act shall be punishable with a minimum sentence of six months extending to one year. If the public servant is an SC or an ST and he plots with the slayers by willful neglect, he/she cannot be punished. Removal of persons likely to commit offences for a maximum period of two years under this Act may be done by experiment orders of special court. Section7 provides for forfeiture of property used by the captive in favor of the state. The property can be attached during the trial and later on conviction surrendered.

Provisions of Anticipatory Bail under S.438 of Criminal Procedure Code 1973 shall not relate to any case involving the arrest of any person under this Act as laid down in Section18. The constitutional validity of this section was challenged vis a vis Article 21. It was held that S.18 was a procedure established by law and therefore not violative of Article 21. Mumbai High Court has granted anticipatory bail on the ground that there was no prima facie case under the Act made out in the complaint. Section 360 of the Code and Probation of Offenders Act 1958 shall not apply to cases where the guilty person under this Act is above eighteen years old. 47PAA shall override other laws & customs & usages.Customs etc. justifying or enabling practices declared offences cannot be pleaded as defenses.

Source- Ministry of Social Justice

New Developments

Exclusive Special Court for Speedy Justice and appointment of Exclusive Special Public Prosecutors to try the office under this Act.

Enhanced Relief Amount

The standard for relief amount has also been justified including enhancement of the relief amount for certain offences. Relief amount in case of certain offences are

• Rs 85,000 to the victim in case of offences like avoiding from voting, filing nomination, Forcing, obstructing a holder of office of Panchayat or Municipality from performing duties etc.
• Rs 5,00,000 to the victim in case of rape and Rs 8,25,000 in case of gang rape
• Rs 8,25,000 in case of murder
• Rs 1,00,000 in case of deception or threatening a social or economic boycott
• Rs 1,00,000 in case of preventing a SC/ST entering any place of worship which is open to the public etc

A new chapter on the ‘Rights of Victims and Witnesses’ has also been added to the act. 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 has been clearly defined.

Presumption to the offences has been added to the act, i.e., If the accused was acquainted with the victim or his family, the court will presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.

Source- The Economic Times