Indian women from the 'Dalit' caste shout slogans during a Dalit Dignity Rally in December 2013. Photo: AFP / Raveendran

A two-judge Supreme Court bench ruled on Tuesday that the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, created to prosecute and punish abuses against India’s oppressed classes, has been contorted into a tool to persecute innocents for political and personal gains.

The court set a number of guidelines in its judgement. It ruled that individuals can be arrested only after police conduct a preliminary inquiry (not exceeding seven days) into any complaint, that bail should be granted unless a prima facie case of crimes or atrocities is made out, and that, in the case of public servants, arrests can be carried out only with prior sanction of a magistrate.

The ruling was criticized by civil liberties activists and lawyers who claim the court has diluted the much-needed PoA Act without substantiating its claims with reliable statistical evidence. They say the ruling will strengthen the impunity of perpetrators of caste-based atrocities.

The primary criticism of the judgment was that the court did not back up its conclusion that the PoA Act had been misused. The court relied only on some High Court rulings, which were mostly anecdotal and rhetorical, to claim there had been an alarming rise in the number of false cases brought under the law.

More strikingly, the judges drew a correlation that many saw as false between the number of acquittals and false cases. The court noted that according to data released by the government’s National Crime Research Bureau (NCRB) for 2016, 5,347 cases were found to be false. What the court omitted to mention was that 40,801 cases of crimes against members of oppressed classes, who are also known as Dalits, were registered that year. There is widespread under-reporting of such cases.

The court also referred to data released by the Ministry of Social Justice and Empowerment showing that of the 15,638 cases decided by the courts in 2015, 11,024 resulted in acquittals or discharges. Another 495 cases were withdrawn and only 4,119 cases resulted in convictions.

“The judges seem to be oblivious to the fact that merely because there were a high number of acquittals, it doesn’t mean that a majority of the cases were false. There are instances galore of the investigation being shoddy and prosecution very weak or half-hearted,” said Colin Gonsalves, a senior advocate in the Supreme Court who has fought many cases against caste-based atrocities and crimes.

Strengthening impunity?

Gonsalves also pointed out that the PoA Act is a “complete code in itself, and it specifically excludes the provision of anticipatory bail. How could the court import something which is not provided in the main statute?”

Dr. V. A. Ramesh Nathan, the General Secretary of the National Commission for Dalit Human Rights, told Asia Times that the judgment was based on the original 1989 law, and not the amended version passed in 2015.

The new stipulation for prior sanction before prosecuting a public servant “will further increase the impunity enjoyed by the public servants as the inquiring authority will be the people from their own department who will never recommend the arrest of the public servant who committed the offense under the Act,” he said. “This is another loophole making way for the public servant to escape or evade the law.”

Echoing Gonsalves, he added that “Section 18 of the PoA Act specifically excluded the provision for anticipatory bail, and by allowing an accused to seek bail even before the investigation commences, the court has laid the path for many trials to be derailed.”

Dr. Anand Teltumbde, a Dalit rights activist and a member of the Committee for Protection of Democratic Rights, told Asia Times that he was “not surprised at all as the judgment coheres well with the ethos of the state, which is not to allow the victims of caste-based atrocities to seek justice and redress.”

He added: “The misuse of the PoA Act is the bogey that was raised right from the date the act was brought into force, and this was done by powerful upper-caste groups and lobbies which wanted to protect their own hegemony. When the conviction rate is just a little above 20%, and when every day two Dalits are murdered and over five Dalit women are raped in India, the court (has) dealt a severe blow to justice by diluting the law.”

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