The Notion of Atrocities

A word with a statutory definition that says almost nothing, and the four ideas the definition carries.

In the wording a student can write in an exam: section 2(1)(a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 provides that "atrocity" means an offence punishable under section 3; section 2(1)(c) provides that Scheduled Castes and Scheduled Tribes have the meanings assigned by clauses (24) and (25) of article 366 of the Constitution, which in turn point to the Presidential Orders under articles 341 and 342; section 2(1)(bc) defines economic boycott; section 2(1)(eb) defines social boycott; and the Preamble states the purposes of the Act as to prevent the commission of offences of atrocities, to provide for Special Courts and Exclusive Special Courts for the trial of such offences, and for the relief and rehabilitation of the victims.

Why the definition is circular, and why that is deliberate

An atrocity is an offence under section 3, and section 3 is the list of atrocities. The definition tells you nothing about the character of the conduct, and that is intentional. Parliament did not want a court asking whether a particular act was grave enough to be an atrocity, or humiliating enough, or motivated enough. It wanted a closed list, so that the only question at trial is whether the facts fall within one of the enumerated clauses.

Compare the 1955 Act, where every offence turns on the open-ended words "on the ground of untouchability", and the difficulty of proving them is the reason that Act failed. The circular definition is the drafting answer to that failure.

The four ideas the Act carries

One: status, not practice. Section 3 does not ask why the accused acted. It asks who the victim is, and, since Act 1 of 2016 amended section 3(2)(v), whether the accused knew it. The chapter on why a second Act was needed sets that out; here the point is that the word "atrocity" is the name for an offence defined by the identity of the victim.

Two: an asymmetric offence. Section 3(1) and 3(2) both open with the words "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe". The Act therefore cannot be used by one member of a Scheduled Caste against another, and cannot be used at all against a member of those communities. That asymmetry is deliberate and it is the answer to the objection that the Act is not neutral: it is not meant to be neutral, because it addresses a graded system in which the disability runs in one direction.

Three: the harm is to a community. The Preamble's purposes and the machinery show it. There is a collective fine on the inhabitants of an area under section 16. There is a power under section 17 to declare an area prone to atrocities. There is a power under section 10 to remove a person from a Scheduled or tribal area for up to three years. None of those is a remedy against an individual for an individual harm.