The day when rainbow flag unfurled, we boasted hugely of the human rights in democracy. Fundamental rights were surely reinstated in a particular community. Democracy and its procedure of law emerged victorious. It is hailed as ginormous victory for mankind. A community got secured from the prosecution. The Consensual unnatural sexual act got the clean chit. The Victorian era law got wiped away. We as a progressive democratic country need more such examples.
Otiose it is not to say that we are governed by the tenets of Constitution which provides the basic law for arrest and detention. No person shall be deprived of the personal life and liberty except for procedures established by law. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an act of Parliament of India enacted to prevent atrocities against SC and ST.
It has been the unfortunate facet of our past, when the people from particular communities were not even treated like human beings. They were oppressed and sidelined. The intention of legislation was to prevent the atrocities against the SC/ST. Section 3 of the act provides 22 averments which shall be considered as an offence. Section 18 of the act bars the application of Section 438 of The CRPC 1973. It clearly means that the person apprehensive about his arrest for any non bailable offense is barred from filing his application for anticipatory bail.
Frivolous cases were filed against the innocent people. Expressing the concern over rampant misuse of the SC/ST ACT, the Apex Court intervened to provide safeguards to innocent people. The provision of anticipatory bail was introduced despite the sayings of Section 18. Court also brought in the safeguard which said there would be no automatic arrest and police must conduct a preliminary enquiry within seven days before taking action.
Huge furore and indignation resulted among the SC/ST community. Torching of vehicles and various deaths were inevitable. It was again the case of inciting the violence through concealing facts and spreading the words perfected for desired consequences. Generally it happens in protests that protestors are unaware of their motto. If crime is committed under the atrocities act no where it was proposed by the Apex Court to make it a bailable offence, only safeguards were placed in. And aren’t they concomitant of human life? Audi alteram partem do play crucial role in today’s scenario where everyone possess inherent right of being heard.
But the whole polity which revolves around regional, religional and caste politics again succumbed to the pressure and did Shah Bano. The Parliament unanimously approved the amendment on August 9, it ruled out anticipatory bail for a person accused of atrocities against SC/STs. The legislation also provided that no preliminary enquiry would be required for registering a criminal case and arrest would not be subject to any approval. Many esteemed parliamentarians including Mallikarjun Kharge pressed for keeping the amended portion in Schedule 9 of the Constitution of India to prevent its scrutiny in any court. Government eyeing the 2019 polls has played the card. It is a DEBACLE OR GENIUS, time will confirm. Audacity can be the cause of ignominy. Imperious and impetuous decisions are the cause of humiliations. Few years back India was Shining. Overconfidence led to debacle.
Two PILs have challenged the amendment in the Supreme Court. A bench of Justice AK Sikri and Ashok Bhushan agreed to hear the PIL and issued notice to the Centre to justify validity of the amendment.
Basic concept of Jurisprudence that hundred culprits may let go free but no innocent should be punished.
Dr Ashish Tanwar
Faculty of Law (Campus law Centre), Delhi University.