The recent Supreme Court judgment in Dr. Subash Kashinath Mahajan v. State of Maharashtra and Anr., is a classic testimony to how vulnerable sections of society, including women, are branded as disgruntled and vengeful when they try to set the law in motion.
The Hon’ble Supreme Court judges Justice A.K. Goel and Justice U.U Lalit issued guidelines to prevent “misuse” of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (SC/ST Act) and made it mandatory to seek prior sanction in writing from the appointing authority if the accused is a public servant, and from the senior superintendent of police of the district if the accused is not a public servant. The court also said there was no absolute bar against granting of anticipatory bail under the Act if there was no prima facie case against the accused. Apart from various judgments, the court relied extensively on the 2002 Law Commission report and National Crime Records Bureau (NCRB) data, which is the only nationally available database regarding statistics on crimes across the country.
Before jumping to any conclusion, it is important to note a few things. It is the same bench of the Supreme Court that passed Rajesh Sharma v. State of Uttar Pradesh judgment, which practically marked the demise of IPC section 498A. This section has been diluted so much by the Supreme Court by issuing guidelines after guidelines through various judgements, that there isn’t anything left for battered and abused women to seek under a provision of the Indian Penal Code, for which for feminist activists and lawyers fought for years, finally leading to the criminalisation of domestic violence.
Interestingly, there as well, the Supreme Court relied heavily on the argument of “misuse” put forward by men’s rights activists who conveniently based their case on NCRB data. It is an established fact that low conviction rate does not mean the law is being misused. Inadequate investigation, the benefit of doubt given to the accused, or bias against women accessing the law are primary reasons behind the high acquittal rate in IPC 498A cases. Further, it is also proved that the data collation methodology of NCRB is replete with flaws that has led to the demonisation of women trying to use IPC 498A and the Dowry Prohibition Act. These women are branded as liars and disgruntled housewives sending poor, innocent husbands and in-laws to prison for personal vendetta.
A recent study demonstrated how some men’s rights activists are using false data to amplify the idea of arbitrary arrest, when in reality almost 70% of the accused were out on anticipatory bail. The Supreme Court has accepted the argument of “misuse” time and again without exploring the systemic reasons that result in low conviction. The court has never raised any question about the veracity or the methodology of data collected by NCRB under misleading headings, which has led to the present situation of manipulation of the discourse on “use and misuse” by powerful stakeholders in the criminal justice system.
Similarly, in the recent judgment on the SC/ST Act, the Supreme Court said there was gross misuse of the law by vested interests, which has resulted in arbitrary arrests. While the court is again basing its contention on low conviction rate, it is important to note that 77% of cases were charge-sheeted in 2016, while the conviction rate was only 15.4% under the SC/ST Act. The rate of charge-sheeting is high even in IPC 498A cases, but the conviction rate is low. There as well, the number of arrests are shown as arbitrarily high, but most of the accused are walking out freely by availing anticipatory bail.
Atrocities against SCs have gone up by 5.5%, ST has gone up by 4.7% from 2015 to 2016, and rapes against Dalit women have doubled in the past decade. Similarly, over 40% in 2005-06 (National Family Health Survey-3) and 30% in 2015-16 (National Family Health Survey-4) of married women in India have faced varied forms of domestic violence, but this increase is not reflected in NCRB data.
The point is that there is an increase in the rate of atrocities committed against these vulnerable sections of the society, however the same is not reflected in official statistics accurately, such as by the NCRB. The NCRB data has heading such as ‘False cases’, ‘Mistake of Law or Fact’ etc., but these headings are not enough to arrive at the conclusion that a particular provision of law is being misused, as these do not provide a compelling picture of how and where the law is being misused.
The NCRB data on total number of cases reported for a particular year and the number of arrests and persons out on bail under the SC/ST Act in that year does not match, and leads to confusion. Moving forward, the court has not tried to understand why the charge-sheeting rate is high but the cases are not ending with conviction? There are no studies being commissioned by the state or the apex court to understand the reasons behind “misuse”. NCRB data does not talk about the systemic problems that plague the investigation at the police station level, and trial before a court of law.
The judges do not seem to be interested in raising questions such as why witnesses are turning hostile, the patriarchal and casteist attitude of police persons, political pressure and manipulations faced by these communities, and the burden of carrying one’s caste throughout one’s life and the humiliation attached to it, as these are the relevant questions to be explored before concluding that the SC/ST Act perpetuates casteism, which is nothing but a farcical argument that mirrors the skewed understanding of how caste operates in India.
Social welfare legislations like the SC/ST Act, the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, were enacted for the primary reason of protecting SCs and STs who have been subjected to humiliating atrocities by upper caste perpetrators for centuries together. Similarly, IPC section 498A, Dowry Prohibition Act, and Protection of Women from Domestic Violence Act, were enacted to protect women from all forms of cruelty within a domestic set-up. Not surprisingly, the number of cases registered under all these provisions of laws is increasing every year, but the conviction rate has remained dismal.
Various high courts, including the Supreme Court, have diluted the letter and spirit of these laws without any consideration or understanding of the socio-economic vulnerabilities of these sections of citizens. By doing so, the Supreme Court has started the process of bulldozing the ideals of social justice and empowerment as enshrined in the Constitution of India.
Bindu N. Doddahatti is an Advocate with the Alternative Law Forum, Bangalore.