The Supreme Court held that the Bombay High Court was at fault for granting anticipatory bail in contravention to the express statutory prohibition contained in Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. While the judgment reinforces the purpose of the statute, there is arguably more to the law than what meets the eye.
The primary constitutive elements of offences, such as abusing, intentional insults and intimidation, are their commission in any place within “public view”. While the Act itself does not define the term, “public view”, its contours have been delineated by the courts. As was held by the Delhi High Court in Daya Bhatnagar & Ors versus State, “public view” does not necessarily imply large crowds of reasonably like-minded people. It includes hearing, knowledge or accessibility of a group of people who are ‘not private’ and are as good as ‘strangers to the complainant’.
Often the abusing of a member of the SC/ST community occurs in private settings such as homes and residences. Additionally, offences may also occur in places that are devoid of any public view, such as offices, farms, shops. Hurling casteist slurs by upper-caste neighbours inside the complainant’s flat is, thus, not an offence under the Act primarily because the flat lacks independent and non-private witnesses and, thereby, lacks public view. Similarly, acts of intimidation and insults by an upper-caste senior or colleague against his SC/ST junior inside the former’s cabin may also not be an offence under the Act as the witnesses (if there are any) may be professionally related to the victim and thus may not be independent enough to constitute public view. Interestingly, offence is also not made out where casteist slurs are directed at the victim over a phone call.
Offences under the PoA are cognisable and fall under the purview of Section 18A. But filing a first information report is not easy. The police are extremely apprehensive of invoking provisions of PoA since the rules require the investigating officer to conclude the investigation and file the chargesheet within 60 days. The police thus resort to means of persuasion and settlements and prefer invoking the general provisions of the Bharatiya Nyaya Sanhita rather than those of PoA. The upper caste-police nexus, collusion with perpetrators of atrocities, failure to file chargesheets, technical errors in the chargesheet and so on are some other procedural predicaments.
One of the three aims of the Act is to establish special courts and exclusive special courts. However, as per reports of the ministry of social justice and empowerment, Arunachal Pradesh, Manipur, Nagaland still do not have a single special court for the purposes of the Act. The number of special courts have actually decreased from 171 in 2009 to 157 in 2018. Furthermore, only 14 states have exclusive special courts.
Rule 8 of the PoA requires state governments to set up SC/ST protection cells. These have not been set up in Arunachal Pradesh, Manipur, Nagaland; only Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh and Kerala have special police stations for registration of complaints of offences against SC/STs.
Rule 16 of the PoA requires each state to set up a 25-member high-powered vigilance and monitoring committee that shall meet at least twice in a calendar year to review the implementation of the PoA and its correlated issues. But RTI applications in Maharashtra and Rajasthan revealed serious lapses in this regard. Furthermore, data relating to both State and District Vigilance Committees (constituted under Rule 17) showed that a majority of states and Union territories did not convene a single committee meeting in 2016, 2017, or 2018. PoA is more than just a legislation; it is an ethnographic account of the lives of SC/ST communities. The need for legislative intervention and institutional reforms remains urgent.