Court questions legality of special law to protect SC/ST

Additional Sessions Judge Kamini Lau questioned the legality of Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act and sought a re-look into it while sentencing 15 people, convicted on September 24 for their alleged involvement in the April, 2010, killings of a 70-year-old dalit and his physically challenged teenaged daughter.

"The SC/ST (POA) Act, 1989 is one such legislation whose provisions create a distinction on the ground of caste in matters of imposition of sentence in case of certain offences, thereby creating an anomalous situation," said ASJ Lau.

She added ".....where on the one hand, it (the Act) provides a stringent punishment for imprisonment for life in case the victim of atrocity is member of SC/ ST and the violator is not a member of SC/ST but would let go a violator who is a member of the SC/ST (irrespective of whether the victim is a member of the SC/ ST or not)".

The court said, similarly, in a case where the victim is not a dalit or tribal member, the punishment to the offender for the same offence would be under the general Indian Penal Code which provides for judicial discretion in imposing sentence which could be lesser than that provided under the SC/ST Act.

"Why this distinction when the crime committed is the same and the victim suffers as much?," the judge said.

ASJ Lau argued "any distinction in implementation of penal provisions on the basis of religion, race, caste, sex or place of birth weakens the secular democratic fabric, leading to polarisation and resulting in division of the country."

While seeking a re-look into the legality of the SC/ST (POA) Act, ASJ Lau directed that a copy of her order be sent to the office the Rajya Sabha general secretary, saying the legislation came into existence two decades ago and its efficacy needs to be evaluated in the country's changing socio-economic scenario.

"This legislation in my view requires a re-look and an effective debate. Atrocity is the wrong of the grossest kind and all atrocities are a crime against humanity," ASJ Lau said.

The court said the Act deals with atrocities but restricts its operation to the particular groups based upon caste.

It said instances of powerful members of a clan committing atrocities against less fortunate members of the same clan/caste/ community are not rare.

"Atrocities which deal with crimes against humanity should not be, in my view, restricted to particular caste or groups," the judge said.

The court also counselled "interactive political process" to prevent caste-based violence.

"Community and caste-based violence can be prevented by inclusive and interactive political process to subdue the poisoning of fanaticism of divisive and communal thinking," ASJ Lau said.

"Caste distinctions are often exploited by those wanting to cultivate discontent and instigate violence and the only effective safeguard is the bonds developed by national democracies and the vigour of the democratic politics in generating tolerant values," the judge said referring to Nobel Prize winner Amartya Sen's celebrated work "Idea of Justice."

The court also questioned the provisions of section 4 of the SC/ST Act which differs while dealing with the offence of negligence in duties by a public servant.

"The provision of the Act on one hand lets go a member of the SC/ST, who commits the same crime, of non-performance or neglect his duties in relation to provisions of the Act but punishes a person who is not a member of the SC/ST. Why so? Is it not palpable discrimination?," it said.

"It is this what has made me ponder if it was not time that the 'Atrocities Act' be made caste neutral with a provision for uniform punishment for all violators, irrespective of caste distinctions," the judge said.