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Mainstream, VOL LVIII No 43, New Delhi, October 10, 2020

Requirement of An Independent Constitutional Body | Chittarvu Raghu

Saturday 10 October 2020

by Chittarvu Raghu

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted with the main objective to protect marginalised communities viz. schedule castes and tribes against discrimination and atrocities. Sec.3 of the said Act enunciates the nature of various acts committed against a scheduled caste or a scheduled tribe to constitute an offence punishable under the said Act. The said provision stipulates that any act which is derogatory to human dignity constitute an offence under the said Act. The Hon’ble Supreme Court also in Nandini Sundar case observed that the constitution itself, no uncertain terms, demands that the state shall strive, incessantly and consistently, to promote fraternity among all citizens such that dignity of every citizen is protected, nourished and promoted.

The conduct of the police in Hathras case cremating the victim who belongs to scheduled caste allegedly without the consent of the family members constitutes an offence under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Hathras incident and the subsequent events leading to the cremation of the victim by the police in the dead of night without the consent of the family as alleged raises a question as to whether the State has responded to the said incident as required. The said incident shows that the atrocities committed against the Dalit girl is in two parts (1) attack made on her by the accused who allegedly belongs to upper class and (2) the conduct of police in cremating the body allegedly without the consent of family members. In so far as former is concerned a crime is registered and the same would be pursued to its logical conclusion which is also dependent on the later part. The conduct of the police raises a suspicion that they are trying to protect the accused. She was allegedly attacked on 14th September, 2020, and succumbed to injuries on 29th September. A statement has been made by the police that the post mortem report does not disclose any evidence of rape. Obviously, since the post-mortem was conducted after a lapse of more than eight days of the alleged incident there is a possibility of the evidence of rape getting erased. There is a dying declaration made by the victim that she was subjected to rape which is admissible in evidence.

Now the issue is as to whether the State can remain as a silent spectator without responding against the conduct of police in cremating her body without the alleged consent of the family members which also constitutes an atrocity under the Act, 1989.

The response of the State in the present scenario is only at the mercy of the politicians who are running the government. There is no ‘body’ constituted under the constitution which in such circumstances can take cognizance of the conduct of the erring officials involved in the alleged crime and take necessary action against them without the interference of the government. Article 338 of the Constitution though contemplates constitution of National Commission for Scheduled castes and Article 338A of constitution constitutes commission for scheduled tribes, they are only recommendatory bodies. The constitution only confers power upon them to prepare reports and the President shall cause all such reports to be laid before each house of parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the union and the reasons for the non-acceptance, if any, of any of such recommendations. Obviously the President will be acting on the aid and advise of the ministers. Therefore the commission cannot take action against the persons who are involved directly or indirectly in the entire episode. The implementation of the recommendations of the commission is within the domain of the political system. Therefore there is no other constitutional provision or a created body which comes to the rescue of the victim when the government does not respond in a proper manner. There has to be a mechanism provided by the constitution to respond to such a situation.

The Hon’ble Supreme Court while deciding the review petition of Dr Subhash Kasinath has observed that the prevailing conditions in various areas of the country show that the SC / ST’s still making struggle for equality and for exercising civil rights in various areas of the country. The members of the scheduled castes and scheduled tribes have been suffering ignominy and abuse and they have been outcast socially for centuries. It was also observed that every person have the right to live with dignity and the right to die with dignity.

In fact the Hon’ble Supreme Court while upholding the constitutional validity of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has observed that, all the three — Liberty, Equality and Fraternity, are intimately linked. The right to equality, sans liberty or fraternity, would be chimerical — as the concept presently known would be reduced to equality among equals, in every manner a mere husk of the grand vision of the Constitution. Likewise, liberty without equality or fraternity can well result in the perpetuation of existing inequalities and worse, result in license to indulge in society’s basest practices. It is fraternity, poignantly embedded through the provisions of Part III, which assures true equality, where the state treats all alike, assures the benefits of growth and prosperity to all, with equal liberties to all, and what is more, which guarantees that every citizen treats every other citizen alike.

Obviously the State actors at the higher level due to political interference would not respond as the situation mandates. There has to be an independent body which can spring into operation to take necessary action against the erring officials. Therefore Article 338 & 338A of the Constitution has to be amended conferring powers upon the commission to take necessary action directly as against the State actors who involve in such illegal acts. Unless such a suitable amendment is made incorporating such powers, justice cannot be done to the victims and there cannot be any effective implementation of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.

(Author: Chittarvu Raghu is Advocate, High Court’s of A.P. & T.S. | email: craghuadvocate[at]gmail.com)

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