Tribal Village in Odisha

The SC/ST (Prevention of Atrocities) Act is popularly known as the SC/ST Act or the Prevention of Atrocities Act. It was enacted in 1989 and the rules for the Act were notified in 1995 and amendments in 2013 and 2014. According to the Act, protection is provided from social disabilities such as denial of access to certain places and to use customary passage, personal atrocities like forceful drinking or eating of inedible food, sexual exploitation, injury etc, atrocities affecting properties, malicious prosecution, political disabilities and economic exploitation.

For speedy trial, the Act provides for a Court of Session to be a Special Court to try offences under this Act in each district.

The prime objective of the Act is to prevent the commission of offences of atrocities against the members of Scheduled Castes and Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences.

Supreme Courts’ Order:

In March 2018, the Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs the State of Maharashtra and Another held that:

1. A preliminary enquiry must be conducted before the FIR was to be registered to check if the case fell within the parameters of the Act, and whether it was frivolous or motivated.

2. In view of acknowledged abuse of law of arrest in cases under the Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the magistrate for permitting further detention.

3. There can be no arrest of a person without following fair procedure and that it must not be abused as there exist a sacrosanct fundamental right of life and personal liberty guaranteed under Article 21.

After Verdict:

There were protests against the said judgment all over the country by Dalit activists claiming the act to be diluted. The activists claimed that the judgment adversely affects the very objective of the Act of preventing commission of atrocities against members of SC and ST and being severely detrimental especially in heinous offences like sexual exploitation of SC/ST women including rape, gangrape, acid attacks and murder etc.

The Amendment Act:

The Parliament passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018, which received President’s assent on 17th August. The main provisions of this act are:

1. The Amendment leads to the insertion of Section 18A in the new Act. According to it, a preliminary inquiry shall not be required for the registration of a FIR against any person.

2, Further, the Investigating Officer will not require approval of any authority for the arrest of the accused.

3. Moreover, the provisions of Section 438 of the Code of Criminal Procedure, which deals with anticipatory bail, shall not apply to a case under this Act, notwithstanding any judgment or order of any Court.

Identification and Classification of Scheduled Castes and Scheduled Tribes:

Under article 341(1) of the Constitution of india, the President of India, after consultation with the Governor, may specify, “the castes, races, tribes or parts of groups within castes or races, which shall be deemed to be Scheduled Castes”. Accordingly, the President has notified the Scheduled Castes in the ‘Constitution (Scheduled Castes) Order-1950’ and the ‘Scheduled Castes and Scheduled Tribes List (Modification) Order-1956.But, under article 341(2) of the Constitution of India, the Parliament of India by law can include or exclude the above-mentioned groups from the list of the Scheduled Castes/Scheduled Tribes.

Part 3 of the Presidential order of 1950 states that “no person who professes a religion different from the Hindu [the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste.” This means that any person who is not a Hindu, Buddhist or a Sikh, will not be entitled to reservation on the basis of being a Scheduled Caste.

Other Constitutional Provisions relating to SC/STs

1. Reservation of Seats for SC/STs in:
a) Lok Sabha (Article 330)
b) State Assemblies (Article 332)
c) Gram Sabha and Panchayat (Article 243 D)
d) Municipalities (Article 243T)

2. Article 15(4) – special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

3. Article 46 – for the education and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and protecting them from social injustice and all forms of social exploitation.

4. Article 164 (1) – Minister of Tribal Welfare in the states of Bihar, Madhya Pradesh and Orissa.

5. Article 275 provides for grants-in-aid to the states for promoting the welfare of scheduled tribes.

6. Article 338 – National Commission for SCs.

7. Article 338A – National Commission for STs.

Context: On 17th August 2018, the President assented the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018, which seeks to overturn a Supreme Court order in the case of Dr. Subhash Kashinath Mahajan Vs the State of Maharashtra and Another, which had amended the SC/ST (Prevention of Atrocities) Act, 1989 and had diluted the provisions of the Act.

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