INDIA: Non-implementation of the Scheduled Castes & Scheduled Tribes (PoA) Act, 1989
- Lucknow, Uttar Pradesh, India: On 25 March 2007, Awadkesh Kumar, 24, was hit by gunshots fired by dominant caste members in his community after trying to mediate and settle a dispute between them and some Dalits who were verbally attacked and called degrading names. Four arrests were made, but the accused were released on bail. The court case is still pending.
The year 2009 marks the 20th anniversary of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which was passed in 1989 in India. The SC & ST (PoA) Act 1989 is the only Act which aims to
eliminate atrocities that are occurring against members of the SCs and STs while at the same time providing protection, compensation and rehabilitation to victims. However, its implementation remains weak and the conviction rates are shockingly low. The 20th anniversary is therefore a historic opportunity to review and amend the Act to make it more effective and accountable. Hence, a national-level process has started in India to propose amendments and improve its enforcement under the name of The National Coalition for the Strengthening of the PoA Act.
What is the SC & ST (Prevention of Atrocities) Act?
Article 17 of the Constitution of India abolishes the age-old phenomenon of “untouchability”. The Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 & Rules, 1995 was specifically enacted to prevent and to protect SC/STs from atrocities committed against them by non-SCs/STs because the normal provisions of the existing laws like the Protection of Civil Rights Act 1955 and the Indian Penal Code were found inadequate to prevent and eliminate the gross offences against SC & STs.
The provisions of SC/ST PoA Act & Rules can be divided into three different categories. The first category establishes criminal liability for a number of specifically defined atrocities, and extends the scope of certain categories of penalizations given in the Indian Penal Code (IPC). The second category contains provisions for relief and compensation for victims of atrocities. The third category contains provisions that establish special authorities for the implementation and monitoring of the Act. The common denominator of criminal offences is that criminal liability can only be established if the offence is committed by a person other than a member of SC/ST against a person who belongs to the SC/ST group.
Non-implementation of Scheduled Castes/Scheduled Tribes PoA Act
Despite the comprehensive provisions in the legislation, the implementation of the Act remains weak and inadequate. This was recognized by the Indian Prime Minister Manmohan Singh in a speech delivered on 7 September 2009, when he said that “it is shocking that the conviction rate for cases of atrocities against SC/STs is less than 30% against the average of 42% for all cognizable offences under the IPC” (see references to relevant statements by the Prime Minister below).
The National Human Rights Commission and the SC/ST Commission in India have made similar observations about the non-implementation and strong recommendations on the enforcement of the SC/ST Act, such as the Report on Prevention of Atrocities against Scheduled Castes authored by Shri K B Saxena which was submitted to the Prime Minister and State Chief Ministers in 2004. However, this has had little impact, if any, on the functioning of the state apparatus and the rule of law in India.
The actual numbers on non-conviction rates are far more worrying. As per the National Human Rights Commission Report on Atrocities against Scheduled Castes (2002), the progress of investigation of cases by the police analyzed from the governmental data indicated the following:
- The number of charge-sheeted cases was 53.04%
- 22.54% of cases were closed after investigation
- 24.42% of cases were pending at the police at the end of the year
- 30,350 cases registered during 2000 and as many as 8336 cases were closed after investigation without any trial
- 9,027 cases were still pending investigation
- Of 143,505 cases in Courts in the year 2000, 132,268 cases were pending, 9996 were acquitted and 1241 ended in conviction
Review of SC/ST PoA Act, 1989 & Rules, 1995
The 20th anniversary of the SC/ST Act in 2009 presents a historic opportunity to work for enhanced implementation of the SC/ST Act and to critically review its performance in realization of its objectives and provisions. A list of observations and proposals for amendments have been made by a number of civil society organisations and concerned individuals, The National Coalition for Strengthening PoA Act, to make the Act more binding and effective.
Reasons why the SC/ST Act is not effectively implemented include:
Intent/motive: One of the greatest fallacies in reading the SC/ST (POA) Act 1989 lies in the overemphasis on establishing that the atrocity took place on the ground that the victim was SC/ST. This continues right from the registration of the complaint by the police and continues up to the judiciary at the time of judgement. The interpretation of words such as “Intent”, “Intention”, “on the ground” and also the words like “public view” and “public place” dilute the enforcement of the Act at various levels by enforcement authorities and judiciary.
New types of offences: New forms of ‘untouchability’ and nature of atrocities are not clearly specified in the Act, which provides loopholes for perpetrators and police officials and results in non-registration of cases under the SC/ST (POA) Act 1989. Such offences include refusal of wages or contract wages by dominant caste landlords, counter cases being filed against Dalit victims of atrocities as a backlash against Dalits who have started to file cases of atrocities, social and economic boycotts imposed on SC/STs, voluntarily causing simple hurt and grievous hurt, Ransacking of house hold items and destruction of movable and immovable property, discrimination or harassment or insult or denying or limiting access to opportunities in any educational institutions, etc.
Non-effective measures to realize right to speedy trial: The SC/ST Act makes provisions for establishing Special Courts to ensure a speedy trial. However, it has been found that Special Courts are not setup in 133 districts/divisions out of 612 districts in India. Moreover, the existing designated courts are already overburdened with the cases other than SC/ST Cases; hence the cases under the Act are not given priority. Finally, the Act establishes Special Public Prosecutors to examine cases, however key witnesses are not involved at the time of trial, there is no briefing to victims and witnesses by the Public Prosecutors, they are overburdened and have little sense of duty and efficiency in handling SC/ST(POA) Act 1989 cases.
Nature of "willful" negligence and its scope in the Act: One of the major lacunas in the Act is that Section 4 does not clearly define “willful negligence”. The experience of survivors, activists and organizations reveal that the police and administration adopt different ways to neglect their duties and diluting the sprit of the Act at every stage of the case registration. It has therefore been proposed to delete the word “willful” in Section 4 and insert other criteria such as non-registration of cases, non-investigation and filing of charge sheet within stipulated period; not providing relief, compensation and rehabilitation and; non-implementation of other protective and preventive provisions or rules defined under the Act as negligence.
Statements by Indian Prime Minister Mr. Manmohan Singh
In an inauguration speech at the State Welfare Ministers’ Conference in New Delhi on 7 September 2009, Indian Prime Minister Manmohan Singh said: “It is shocking that the conviction rate for cases of atrocities against SC/STs is less than 30% against the average of 42% for all cognizable offences under the IPC. The State Governments therefore need to give more attention to this important issue. Meetings of State and district Vigilance and Monitoring Committees should be held more regularly. Court cases should be pursued diligently and on priority basis.” Link to speech
At the 10th Inter-State Council Meeting in New Delhi on 9 December 2006, Mr. Singh remarked, “In the recent past, we have witnessed disturbing incidents and reports of atrocities against SCs and STs in some places. […] I believe that the time is ripe for a serious introspection and a comprehensive review of our existing approaches, existing strategies and existing measures which are in place so that we are effective in controlling such incidents and are able to generate a greater sense of security and hope among our weaker sections”. Link to speech
UN treaty bodies
Click here to read the UN treaty body recommendations on the non-implementation of the SC/ST (PoA) Act, 1989 in India (CERD 2007, CESCR 2008, CEDAW 2007).
Recommendation
The Scheduled Castes and Scheduled Tribes (PoA) Act 1989 should be amended and effectively implemented to fight impunity, low conviction rates and non-registration of atrocities against SC & STs – in follow-up to the statement made by Prime Minister Singh, and on the basis of recommendations made by the National Human Rights Commission, the SC/ST Commission, UN treaty bodies, and with the constructive involvement of civil society.
More information:
> Link to the SC/ST (PoA) Act 1989
> NCDHR report on the SC/ST (PoA) Act
> NCDHR Position Paper for the Amendments of the SC/ST (PoA) Act
> Report from the National Consultation on 20 YEARS OF SC & ST PREVENTION OF ATROCITIES ACT 1989
