Recent debate on landmark anti-caste legislation in India
| DOI | 10.1177/1358229118814467 |
| Date | 01 March 2019 |
| Author | Ayan Guha |
| Published date | 01 March 2019 |
| Subject Matter | Case Commentary |
Case Commentary
Recent debate on
landmark anti-caste
legislation in India
Ayan Guha
Abstract
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was
enacted to prevent atrocities against the Scheduled Castes (SCs) and Scheduled Tribes
(STs). It prescribed penalties that are more stringent than the corresponding offences
under the Indian Penal Code and other laws. Despite flaws in implementation, this Act
has provided the SCs and STs with some sense of security. But it is often alleged that this
law is frequently misused. A recent Supreme Court order has attempted to introduce
some procedural safeguards to curb the misuse of this Act. But many, particularly the
Dalit groups, believe that in doing so the Supreme Court has ended up diluting this
landmark legislation. In this context, this article analyses the recent judicial pro-
nouncement and presents the arguments for and against it.
Keywords
Caste, atrocities, legislation, Dalit, discrimination
Introduction
In India, the lower castes groups, being the victims of the practice of untouchability, have
faced not only socio-economic discrimination and exclusion but also violence. Similar to
hate crimes in other parts of the world, these groups are still experiencing atrocities
School of Law, Hamdard Institute of Legal Studies and Research, Jamia Hamdard University, New
Delhi, India
Corresponding author:
Ayan Guha, Hamdard In stitute of Legal Stud ies and Research (HILS R), School of Law, Jami a
Hamdard, New Delhi 110062, India.
Emails: mailgooho@gmail.com; ayanguha@jamiahamdard.ac.in
International Journalof
Discrimination and theLaw
2019, Vol. 19(1) 48–63
ªThe Author(s) 2018
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DOI: 10.1177/1358229118814467
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owing to their low caste/untouchable identity. The Indian Constitution designated the
untouchable groups as Schedule d Castes (SCs), and they were mad e entitled to the
benefits of affirmative action. Most importantly, Article 17 of the Constitution banned
the practice of untouchability in any form. Still the necessity of some strong legislative
measures was felt to protect the lower castes from violence and atrocities. The Untouch-
ability (Offences) Act, 1955 was the first step taken in this direction. It was later
amended and rechristened as the Protection of Civil Rights Act, 1976. But it did not
prove much effective. As a result, a strong legislation known as the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted. This Act for the first
time clearly defined term ‘atrocity’ and prescribed stringent punishments for committing
those acts that fall under the definition of atrocity. Most importantly, as an effective
deterrent to atrocities against the SCs and Scheduled Tribes (STs), those accused under
the Act were denied the right to seek anticipatory bail. Neglect of duty on the part of
government officials in implementing or monitoring the Act was also made a crime. The
provisions of this Act can broadly be divided into three parts: the first establishes
criminal liability for a number of acts which are considered to be atrocities on the SCs
and STs; the second prescribes relief and compensation for victims of atrocities; and the
third consists of provisions which establish special authorities for the implementation
and monitoring of this Act such as special courts. Although the implementation of this
Act has allegedly remained very tardy, it has often been alleged that the provisions of this
Act are frequently misused. Therefore, time and again d emands have been made to
modify certain provisions of this Act to reduce the scope of abuse. This issue has recently
cropped up in a big way after a recent Supreme Court verdict which led to nationwide
debate on this legislative measure. This article intends to throw light on this debate.
Subhash Kashinath Mahajan v. State of Maharashtra: Facts
of the case
In 2006, Bhaskar Karbhari Gaikwad, an SC employee of the technical education depart-
ment of the government of Maharashtra, filed a criminal complaint under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act against his two superior
officers. They had made adverse comments about his performance in his annual confi-
dential report. According to the complaint of Gaikward, the adverse comments were
made by his superior officers because of his lower caste identity and not because of his
performance. The investigating officer requested for a prosecution sanction against the
two accused in December 2010, but it was denied by the Director of technical education,
Subhash Kashinath Mahajan in January 2011. Gaikwad then filed a First Information
Report (FIR) under the Scheduled Castes and Scheduled Tribes (Prevention of Atroci-
ties) Act against Mahajan in March 2016 for denying sanction. The Director approached
the High Court in May 2017 for anticipatory bail, but his plea was quashed by the High
Court. He then approached the Supreme Court in 2017, and in March 2018, the apex
court delivered an order quashing criminal proceedings against Mahajan. The main
points of the Supreme Court order are as follows:
Guha 49
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