The Atrocities Act 1989

Section 3(2) contains the graver forms, including giving false evidence leading to conviction for a capital offence, mischief by fire on a building ordinarily used as a place of worship or dwelling, and offences under the Penal Code punishable with imprisonment of ten years or more committed against a member of these communities on the ground of that membership.

Section 4. Punishment for neglect of duties by a public servant not being a member of a Scheduled Caste or Scheduled Tribe, with imprisonment of not less than six months extending to one year.

Section 4 is the provision the 1955 Act lacked entirely. It makes the failure of an official to perform his duty under the Act itself an offence, which is a direct answer to the enforcement problem.

Sections 5 to 9. Enhanced punishment on a subsequent conviction; application of certain provisions of the Penal Code; forfeiture of property; a presumption as to offences where the accused was acquainted with the victim or their family; and the conferment of powers on officers.

Chapter III, sections 10 to 13, externment. Removal of a person likely to commit an offence from a Scheduled Area or a tribal area; the procedure on failure to remove himself; the taking of measurements and photographs; and the penalty for non-compliance.

Chapter IV, sections 14 and 15. A Special Court and an Exclusive Special Court for the trial of offences, and a Special Public Prosecutor and Exclusive Public Prosecutor. Section 14A, inserted in 2018, provides for appeals from any judgment, sentence or order of a Special Court to the High Court, and for appeal against an order granting or refusing bail.

Chapter IVA, section 15A, inserted in 2018, the rights of victims and witnesses. A duty on the State to make arrangements for their protection, and rights to be heard, to be given a copy of the report, to reasonable, accurate and timely notice of proceedings, and to be given a fair and speedy trial, ordinarily to be completed within two months from the filing of the charge sheet.

Section 16. The State Government's power to impose a collective fine on the inhabitants of an area.

Section 17. Preventive action by the law and order machinery, including declaring an area to be atrocity prone.

Section 18. Section 438 of the Code of Criminal Procedure, anticipatory bail, shall not apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act.

Section 18A, inserted in 2018. For the purposes of the Act, preliminary enquiry shall not be required for registration of a first information report against any person; the investigating officer shall not require approval for the arrest, if necessary, of any person; and no procedure other than that provided under the Act or the Code shall apply. The section further provides that the provisions of section 438 of the Code shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any court.

Sections 19 to 23. Section 360 of the Code and the Probation of Offenders Act not to apply to a person over eighteen guilty of an offence under the Act; the Act to override other laws; the duty of Government to ensure effective implementation, including legal aid, travelling and maintenance expenses for victims and witnesses, economic and social rehabilitation, and the appointment of officers; protection of action taken in good faith; and the power to make rules, under which the Rules of 1995 were made.

The sequence of 2018 to 2020

Facts. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454, decided 20 March 2018 by Goel and Lalit JJ. The appellant, a public servant, sought quashing of proceedings under the Act, and the Court used the occasion to consider what it described as the acknowledged abuse of the law of arrest in cases under it.

Held. The Court issued prospective directions: that section 18 does not bar anticipatory bail where no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide; that the arrest of a public servant may be made only after approval of the appointing authority and of a non-public servant only after approval by the Senior Superintendent of Police, for recorded reasons to be scrutinised by the Magistrate before further detention; that a preliminary enquiry may be conducted by the Deputy Superintendent of Police to find out whether the allegations make out a case under the Act and are not frivolous or motivated; and that violation of the last two directions would be actionable by disciplinary action and by contempt.

What happened next. There were widespread protests. Parliament passed the Amendment Act of 2018, inserting section 18A, which removes the preliminary enquiry, removes the approval requirement for arrest, and provides that section 438 shall not apply notwithstanding any judgment or order of any court. It came into force on 20 August 2018, five months after the judgment.

Facts. Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727, decided 10 February 2020 by Arun Mishra, Vineet Saran and S. Ravindra Bhat JJ. The petitioners challenged section 18A.

Held. The provisions were upheld. The Court held section 18A valid, while recording that anticipatory bail is not entirely excluded in a case where no prima facie case is made out or where the complaint is found on a judicial scrutiny of the allegations to be frivolous or motivated. Bhat J added a concurring opinion on fraternity and on the acknowledgment of the otherness of each person's identity.

Why the sequence matters for this paper. A court read safeguards into a social statute on a finding of misuse; a legislature removed them within five months; and the court then upheld the removal while preserving a narrow judicial discretion. It is the sharpest available illustration of the relationship between the two branches on social legislation, and it can be used to answer MU's questions on law as an instrument of change as well as its questions on caste.

A worked example

A member of a Scheduled Caste is prevented from taking his marriage procession along a village road and is insulted in the presence of others.

The offences. Section 3(1) covers intentional insult or intimidation with intent to humiliate a member of these communities in any place within public view, and it also covers the denial of customary rights of passage and causing a person to leave their village.

Registration. Section 18A: no preliminary enquiry is required for registration of the first information report.

Arrest. Section 18A: no approval is required, and section 18 with section 18A excludes anticipatory bail, subject to the narrow judicial scrutiny preserved in Prathvi Raj Chauhan.

Trial. A Special Court under section 14, ordinarily to be completed within two months of the charge sheet under section 15A(11); appeal to the High Court under section 14A.

And relief. Section 21 obliges the Government to provide legal aid, travelling and maintenance expenses and economic and social rehabilitation, and the Rules of 1995 prescribe the scale of relief.

What this does NOT mean

It does not mean the Act of 1955 is spent. The two operate together: disabilities under the 1955 Act, atrocities under the 1989 Act.

It does not mean conviction rates are high. They are not, and the honest answer says so: the Act's design addresses registration, procedure and relief far more successfully than it addresses conviction.

And it does not mean anticipatory bail is wholly unavailable. Prathvi Raj Chauhan preserved the position that where no prima facie case is made out, or where the complaint appears frivolous or motivated on a judicial scrutiny of the allegations, the bar does not operate.

Quick revision

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, Act 33 of 1989, TWENTY-THREE sections. Section 2 definitions, atrocity meaning an offence under section 3. Section 3 the offences, six months to five years, with graver forms in section 3(2). Section 4 punishment for neglect of duties by a public servant. Sections 10 to 13 externment. Section 14 Special Courts, section 14A appeals, section 15 Special Public Prosecutors, section 15A rights of victims and witnesses with a two-month trial norm. Section 16 collective fine, section 17 preventive action. Section 18 no anticipatory bail; section 18A, 2018, no preliminary enquiry, no approval for arrest, section 438 excluded notwithstanding any judgment. Sections 19 to 23. Mahajan 2018 read in safeguards; section 18A removed them; Prathvi Raj Chauhan 2020 upheld section 18A while preserving a narrow judicial scrutiny.

Test yourself

1. Why was the Act of 1989 needed when the Act of 1955 existed? Because the 1955 Act reached disabilities, refusal of entry, service or admission, and not violence; its offences were petty and summarily triable; and prosecutions failed, which Parliament had itself recorded by inserting section 15A into it in 1976.

2. What does section 4 do, and why is it significant? It makes it an offence, punishable with six months to one year, for a public servant who is not a member of the Scheduled Castes or Scheduled Tribes to neglect his duties under the Act. It is significant because it turns the enforcement failure itself into an offence, which the Act of 1955 never did.

3. Set out the Mahajan directions. That section 18 does not bar anticipatory bail where no prima facie case is made out or the complaint is prima facie mala fide; that arrest of a public servant requires the appointing authority's approval and of a non-public servant the Senior Superintendent's, for recorded reasons scrutinised by the Magistrate; and that a preliminary enquiry may be conducted by a Deputy Superintendent to check that the allegations make out a case and are not frivolous or motivated.

4. What does section 18A provide, and when was it inserted? That no preliminary enquiry is required to register a first information report, that the investigating officer requires no approval for an arrest, that no procedure other than that in the Act or the Code applies, and that section 438 of the Code shall not apply notwithstanding any judgment, order or direction of any court. It was inserted by the Amendment Act of 2018 with effect from 20 August 2018.

5. What did Prathvi Raj Chauhan decide? That section 18A is valid, while recording that anticipatory bail is not entirely excluded in a case where no prima facie case is made out or where on a judicial scrutiny of the allegations the complaint is found to be frivolous or motivated.