New Delhi: Pravesh Shukla, the man seen urinating on a member of the tribal community in Madhya Pradesh’s Sidhi district in a viral video, faces an extremely tough FIR.
Apart from IPC sections, the FIR invokes sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the equally tough preventive detention law, the National Security Act (NSA).
The victim, Dashmat Rawat, has urged the state to release Shukla, but the two laws do not allow his release in a routine manner. Both the SC/ST Act and the NSA have stringent release conditions, which can only be determined by a court.
The SC/ST Act prioritises social justice, seeking to protect the rights of the communities, and preventing and responding to atrocities against them. The NSA permits the preventive detention of those who are considered threats to public order or national security in an effort to uphold law and order and protect national security.
The NSA is applied when an individual is seen as creating disaffection in society or a nation, and disturbing peace and harmony.
SC/ST Act
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was introduced in 1989. The spirit of the Act is found in Article 15 of the Constitution, which prohibits discrimination based on caste, and Article 17, which abolishes untouchability.
The Act’s objective is to defend marginalised communities against injustice and atrocities, and support the integration of Dalits into society. The Act offers protection against personal atrocities such as forced consumption of inedible substances, sexual exploitation, and injury, as well as denial of economic, democratic, and social rights, s discrimination, abuse of the legal system, and other forms of exploitation.
It also seeks to protect the communities against being denied access to certain places.
Before the SC/ST Act came into effect, the Untouchability (Offences) Act (UOA) was enacted in 1955, placing the burden of proof on the accused. However, the UOA failed to address caste-based discrimination prevalent in society and was, hence, amended in 1976 and rechristened Protection of Civil Rights (PCR) Act, 1955.
The law, however, still failed to define the scope of caste-based crimes adequately.
Consequently, on the back of constant pressure from activists and political representatives demanding a comprehensive legal framework to define various forms of economic, social, physical, verbal, religious and other structural violence inflicted upon SCs and STs, the government enacted the SC/ST (Prevention of Atrocities) Act in 1989. Rules under the law were formulated in 1995.
The Act originally defined 22 atrocities — ranging from contaminating water to violence — with specific punitive actions prescribed for each crime. In 2015, the number of recognised offences under the Act increased to 47.
Anyone who commits one of these offences against a member of the SC or ST communities — and does not themselves belong to these groups — is considered an offender.
Section 14 of the SC/ST Act designates a court of session as a special court to try offences under the law in each district.
All offences listed in this Act are cognisable — this means the police can detain an offender without a warrant and commence investigation without court authorisation.
Offences covered under the Act are non-bailable, which means those arrested can seek bail only from court, and police have no jurisdiction to release the accused on their own.
Public employees who wilfully or knowingly fail to discharge their obligations under the Act are liable to be punished, according to Section 4 of the Act.
A minimum sentence under the Act can vary from six months to a year. The maximum penalty can range from five to seven years, as stated in Section 3 of the Act.
Courts have taken a strict view on the implementation of the law. On 20 May, the Supreme Court said the use of foul or abusive language against a member of the SC/ST community would not be sufficient to slap a case under the law, adding that the remarks have to be casteist in nature for prosecution.
An SC/ST Act case can be quashed if the nature of offence drawn out in the FIR is civil.
According to the Supreme Court, the SCs and STs continue to suffer different atrocities at the hands of upper castes regardless of the implementation of certain measures.
It cannot be overstated, the court said, that because members of the SC/ST belong to the weakest section of society, they are more vulnerable to coercive activities and should therefore be given a higher level of protection. The accused party is not eligible for remedy — for example, bail — if the courts find even the slightest indication of coercion or force.
In contrast to the SC/ST Act , where you can file a bail application before a court of session to get bail, the National Security Act is a preventive detention law.
NSA
A person detained under the NSA cannot seek bail from a criminal court.
Within three weeks of detention, a 3-member advisory board — members are people eligible for appointment as high court judges — is presented with the reasons for the detention.
The person in custody is permitted to appeal to the advisory board, but they are not permitted to have legal representation during the trial.
The government must cancel the detention order and release the person if the advisory board determines there is insufficient justification for the imprisonment.
The NSA empowers the federal or state governments to detain a person in order to stop them from acting in any way that would be detrimental to India’s security, its relations with other nations, the maintenance of public order, or the maintenance of supplies and services that are vital to the community, and to stop the person from taking part in any form of action that could endanger national security.
The authorities can also imprison a person seen to pose this threat. Detention can last for up to 12 months, which can be extended if the government acquires fresh evidence against the detainee.
The preventive detention law dates back to the colonial era.
In the erstwhile Bengal presidency in 1818, the East India Company passed Bengal Regulation III. Under this law, anyone could be detained for mere “criminal intent”.
Later, the British government passed the Rowlatt Act of 1919, allowing a suspect’s custody without trial.
After Independence, the government came up with the Preventive Detention Act, 1950.
It is said the NSA is identical to this law in terms of its use to detain a citizen. Detention under the 1950 law could be, among others, on the ground of national defence, maintaining peace and public order, and international relations.
On 31 December 1969, the Preventive Detention Act ended. In 1971, a new detention law was established by the Indira Gandhi-led Congress government.
Called the Maintenance of Internal Security Act (MISA), the law offered similar authority for detention as under the Preventive Detention Act.
MISA was overturned in 1977 when the Janata Party came to power. But in 1980, when Indira Gandhi returned to power, she brought in the National Security Act, 1980.
The Parliament passed the NSA on 23 September 1980.
In 2020, the then Union Minister of State for Home G. Kishan Reddy, in a written reply to a question in the Rajya Sabha, cited National Crime Records Bureau (NCRB) data to state that Madhya Pradesh was the state that detained the most individuals under the NSA, followed by Uttar Pradesh.
In 2017 and 2018, according to NCRB data, police detained up to 1,198 people under the NSA nationwide. Data has yet to be provided after 2019.