The judgement of the Supreme Court that led to the “dilution” of the Prevention of Atrocities Act has triggered a debate regarding the tussle between personal liberty and social justice. This article takes a look at this discourse.

The recent judgement by the two-member bench of the Supreme Court in the Subhash Kashninath Mahajan Vs. The State of Maharashtra case brought an amendment in the SC/ST Prevention of Atrocities (PoA) Act, 1989 and protests across the country leading to the death of nine people and several injured. The judgement excluded the PoA Act from exclusion of granting anticipatory bail to the accused after the lodging of FIRs and also made it compulsory for a public servant to have a written permission from the employer and for a non-public servant to get a written permission from the Senior Superintendent of the Police before any arrest can be made. It also allowed for a “preliminary enquiry” before an FIR could be lodged to find out if the accusation was “frivolous” or “motivated”.

The judgement is based largely on the National Crime Records Bureau (NCRB) data which contrary to popular opinion do not reflect the misuse of the PoA Act, but the non-implementation of it. The NCRB data revealed that the conviction rate for cases filed under the Act was 15.4 percent. However, the judgement failed to note that in the same year, 40,801 cases of crimes against Dalits were registered (this ignoring the large measure of such crimes that go unreported).

The Indian Express featured a report on the same that had mentioned a senior official at the Director General of Police, who claimed, under the condition of anonymity, that the figures under the PoA for 2016 were around five to six percent, which has also been an average observed in the last couple of years. So, the claims that the Act has been misused seem to be unfounded. This is what the figures say. However, the judgement itself is largely on the basis of an acute sense of oblivion of the socio-economic reality of the country. As growing cases of violence against Dalits show, caste-biased forces are active not just in the public arena but also in the highest echelons of justice. P.S. Krishnan, the original author of the 1989 Act and renowned civil servant, points out the repercussions that come with any assertion of constitutional rights that SCs/STs take, such as massacres, mass arson, witness tampering, intimidation, physical and verbal abuse, assault etc. “These facts are so well-known and notorious that the Supreme Court will be required to take judicial note of it,” he writes in an open letter. As the premier law-enforcing institution in the country, the judgements of the Supreme Court need to be reflective of such a reality. The original 1989 Act, enacted under the Rajiv Gandhi government, was in response to the rampant atrocities faced by the SCs and STs. In such a sense, the 1989 heeds the caste-biased nexus between the law-bureaucracy-and the executive of the country while the 2018 judgement ignores it.

The recent judgement also stems from a desire to correct a so-called “misuse” of law, a claim (as already seen) that cannot be backed by facts and hence, has underpinnings of a desire for vengeance. Such an approach by the judiciary is unlikely to solve anything. While the judgement quoted the ideals of personal liberty and freedom of the individual as being central to its decision, it fails to see the rights of the individual in the context of a larger, community-based macrocosm. While this overemphasis on the individual might not necessarily be undesirable, acts like the PoA are part of the state policy of positive affirmation and hence, need to be seen in Dalit or Adivasi existing in a vicious web of hostile forces that begin from the local upper-caste politician to the unhelpful police force, such a decision is bound to be a catalyst for further alienation.

Noted Italian thinker, Antonio Gramsci’s ideas on the manufacture of consent through the cultural hegemony of the bourgeoisie, which lead to the exploitation of the already marginalised, find a place here. Gramscian ideas have inspired social movements that rely on explicit strategies to counter the knowledge and cultural systems created by the dominant classes, which propagate a preponderant notion of what is legitimate and what is normal. The opposition to the Supreme Court judgement seems to arise from such a desire, and very rightly so.

 

Feature Image Credits: The Indian Express

Sara Sohail
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