New Delhi: As the Dalit principal and in-charge of the government-run Baluba Kanya Vidyalaya in Gujarat’s Porbandar, Arunaben Maru, 42, was tasked by the state’s vigilance commission to probe if a husband and wife clerk duo had gained employment using forged caste certificates.
Maru alleged that this soon descended into constant harassment, with the two — Darshanaben Shah, 37, and her husband, Jagatjay Bhatt, 43 — allegedly targetting her so-called lower caste status with slurs and threatening her if she released the truth about their certificates.
Maru then filed an FIR on 7 April under provisions of the stringent Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Amendments to the law in 2018 mandate that no anticipatory bail should be granted to accused in the case.
But while a Porbandar court stuck to mandate of the law, the Gujarat High Court June 10 granted both accused anticipatory bail. It also ruled that if no case is made out at the first sight or where “judicial scrutiny” of the complaint is found to be faulty on the face of it, then there would be no “absolute bar against grant of anticipatory bail in cases under the Atrocity Act”.
Maru approached the Supreme Court on 19 July against the Gujarat HC verdict.
Hers is among a number of petitions in the apex court that have accused high courts across the country of diluting stringent clauses of the SC/ST Act that the Modi government had restored in 2018.
The government had brought in an amendment bill in 2018 after the Supreme Court on 20 March that year had watered down some of the law’s provisions, including that public servants cannot be arrested immediately after a complaint is filed against them under the legislation.
The government’s bill overrode the provision but a number of petitions now accuse various high courts in the country of not adhering to the legislation.
Slew of petitions
In October 2018, Dashrathbhai, 41, was embroiled in a brawl in Ahmedabad and was assaulted and suffered some injuries. He lodged an FIR against Mansukh under provisions of the IPC and the SC/ST Act on the grounds of being at the receiving end of casteist abuse
The accused, however, secured anticipatory bail in the Gujarat High Court in May this year, which also expressed “doubts” if the offence fell under the Atrocity Act. The court also relied on an affidavit by Dashrathbhai to rule that the matter was “amicably sorted” between the parties.
If that wasn’t enough, the Bombay High Court has explicitly ruled that the SC-ST Amendment Act is not a “bar” for courts to grant anticipatory bail, going against the very grain of the legislation.
The court was ruling in a 2018 case in which Aniket, 22, a resident of Parbhani, was accused of torturing Kamlesh Sukhdeo Sable, 18, for being an “Adivasi” and thereby using casteist slurs to humiliate him.
The high court ruled in March this year that “incriminating circumstances” to show that “intentional insult” or “intimidation with intent to humiliate” was absent in the case and hence granted bail preventing Aniket from being arrested. A lower court had refused anticipatory bail.
The case has now reached the Supreme Court, alleging dilution of the SC/ST Act.
According to a lawyer appearing in the Maru case, a number of high courts are granting anticipatory bail to accused under the law. “High courts are now granting anticipatory bails left, right and centre in cases of SC-ST (POA) Act,” said the lawyer, Siddharth Seem.
Authorities need to act, say activists amid allegations of bias
Experts are of the view that it is the duty of enforcement agencies to implement the Act and of the state to defend victims in such cases.
“In such cases, the public prosecutor should defend the petitioners so that the case of atrocity can be proven without a doubt,” said P.S. Krishnan, a constitutional expert and a former secretary to the Centre who was instrumental in drafting the SC-ST Act, 1989.
“The recent case of Payal Tadvi (the doctor who committed suicide) can be shown to the courts to highlight the repercussions of casteist slurs,” he added.
Krishnan also pointed out that the “menace of granting anticipatory bails” needed to be stopped but “negligence in implementing the Act was the root cause of this disease”.
“Rules as per the Act also state that the state vigilance and monitoring committee chaired by the chief minister will oversee the proper implementation of the Act,” Krishnan told ThePrint. “There is also a district committee to take stock of cases under the atrocity act but these are non-operational and do not function.”
Other experts believe that such instances of anticipatory bails are the result of inherent “caste bias” in the higher judiciary.
“Judges have a caste bias and they often feel that the Act is being misused,” said Ramesh Nathan of the National Campaign on Dalit Human Rights. “They treat cases in a way like it is the right of the accused to get anticipatory bail in cases under the SC/ST Atrocity Act,” Nathan added.
“They don’t want to prevent violence against Dalits and Adivasis of this country. One 2014 study establishes that caste bias is rampant within courtrooms to such an extent that witnesses were made to stand, among others.”
A controversial law
The Modi government had controversially amended the SC/ST Atrocity Act after the Supreme Court had on 20 March 2018 diluted provisions of the law and said public servants cannot be arrested immediately after a complaint is filed against them.
Intense protests left at least 11 people dead and hundreds were detained during the demonstrations against the Supreme Court order in April 2018. After this, the Centre moved the court to seek a review of this order and Parliament passed an amendment bill in August to reverse the verdict.
The amendments said no preliminary inquiry will be needed to file a criminal case and an arrest under this law would not be subject to any approval.
The bill inserted Section 18A (1) (a) in the 1989 Act, which says a “preliminary inquiry shall not be required for registration of an FIR against any person.” It also inserted Section 18A (1) (b), which says “the investigating officer shall not require approval for the arrest, if necessary, of any person against whom an accusation of having committed an offence under this Act has been made and no procedure, other than that provided under this Act or the Code, shall apply”.