The state has allowed police officers below the rank of deputy SP to investigate cases of atrocities.
The Maharashtra law and judiciary department’s January 10 decision to allow police inspectors (PIs) and assistant police inspectors (APIs) to investigate cases filed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, went viral on social media drawing sharp reactions and criticism from some rights activists and lawyers.
As per rule no. 7 of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, an offence committed under the Act shall be investigated by a police officer “not below the rank of a deputy superintendent of police (Dy SP)”.
When a delegation of Congress leaders, including school education minister Varsha Gaikwad, met state home minister Dilip Walse Patil on January 19 seeking rollback of the decision, he assured them such cases would only be probed by Dy SPs and assistant commissioners of police.
Though the state government has not provided the reason for the decision, communicated to the director general of police, a senior state police officer told The Indian Express that cases have piled up due to the limited number of senior officers. A section of Dalits activists and lawyers have, however, denounced the decision terming it unfavourable to Dalits and Adivasis.
“State government has no power to dilute the letter and spirit of a central (sic) law which is to prevent atrocities against the SC ST (sic) communities. Rules under the Act, (Rule 7 included) were passed by the Central Government with the approval of both Houses of the Parliament,” tweeted Disha Wadekar, an advocate in the Supreme Court.
State government has no power to dilute the letter and spirit of a central law which is to prevent atrocities against the SC ST communities. Rules under the Act, (Rule 7 included) were passed by the Central Government with the approval of both Houses of the Parliament. ~3
— disha wadekar (@WadekarDisha) January 15, 2022
Some of the activities believe that the decision will make SC/ST communities vulnerable to the rampant corruption and biases prevalent among lower-rank officers, who can easily succumb to the pressure tactics of dominant caste groups.
The fear of police impunity amongst social activists is not unfounded as cops have often resorted to machinations to dilute the intensity of the crime committed by siding with dominant caste groups.
For example, the situation in Bihar did not improve even after the delegation of investigative powers to lower-rank officers under the Act in 2008. Out of 49,008 court cases in 2008, only 12 accused were convicted, which was worse than the conviction of 175 out of 7,417 cases in 2007.
According to advocate Pratibha, who has been monitoring the implementation of the Act and is a fellow at Manuski, a non-profit Pune-based organisation, “why doesn’t the state government create facilities for appointment of a separate police unit for dealing with offences committed under the Act when it provides for exclusive special courts, exclusive special public prosecutors and even special police officers”?
Appreciating the state government’s “concern about the delay in the investigations”, Pratibha said, “Mere expansion of the powers would not help. The purpose of the Act is to provide police officers or authorised officers with a strong sense of justice and the ability to understand the implications of caste-based crimes and to make justice delivery expeditious, sturdy, specialised and focussed.” Over time, states have adopted different models to ensure proper investigation. “For example, Chhattisgarh appointed special police stations (SC/ST Welfare Police Stations) specifically to investigate cases of atrocities”.
However, the argument that the state government’s decision is illegal is misleading and based on an incorrect understanding of the Act. The states are, in fact, authorised under Section 9 of the Act to confer the powers of arrest, investigation and prosecution to any officer they deem fit.
The Bihar government’s decision was held valid by the Supreme Court in the State of Bihar and Others, etc. Vs. Anil Kumar and Others, etc in 2017. “As against the national character of the rule-making power vested with the Central Government under Section 23 of the ‘SC/ST Act’, the delegated power contemplated under Section 9 of the ‘SC/ST Act’ is state-specific. The power exercised by a state keeps in mind the circumstances prevailing in the concerned state. The legitimacy and validity of the exercise of the instant delegated power (vested in a state government), has, therefore, to be determined with reference to the peculiar facts and circumstances prevailing in an individual state,” the court had observed.
The apex court also held that powers under Section 9 “could be exercised irrespective of the provisions of the parent ‘SC/ST Act’ itself. In case, the state government found the same as necessary and expedient for effective implementation of the provisions of the ‘SC/ST Act’, it had the right and the responsibility to vest the power of arrest, investigation and prosecution in additional personnel”.
Pune-based lawyer Ambadas Bansode, who has years of experience in cases of caste atrocities, has condemned activists debating the legality of the Maharashtra government’s decision.
“It is disheartening to see such an incorrect understanding of law among legally educated and experienced minds. The states are given power under Section 9 of the Act to make changes in the administrative structure of an investigation. Thereby, there is no question of the notification being illegal,” Bansode, who is also the state chief adviser of Campaign Advocating Rights of Victims of Atrocities (CARVA), a network of organisations working for the implementation of the Act across Maharashtra, said.
“Let’s not lose track by engaging in baseless dispositions, and understand the implications, whether favourable or unfavourable, such change may introduce in the manner and fairness of investigations under the Act,” Bansode added.
Some activists also feel that delegation of investigative powers to lower-rank officers might provide more room for negotiation to victims in getting justice with higher-rank officers not accessible. Besides, victims get intimidated by the position of senior officers, such activists argue.
It is pertinent to emphasise that the Act was formulated keeping in mind the challenges faced by victims from historically marginalised communities in accessing the criminal justice system. The Act, which intends to eradicate the inherent discrimination against the SCs and STs, is a potent tool for addressing serious atrocities and social disabilities.
Any attempt, therefore, towards amending the Act should be validated with informed reasoning and intent underlying the spirit of the legislation. Besides, the government and civil society groups should collaborate to understand the gaps in effective implementation of the Act.
Most importantly, an active engagement with the survivors of such atrocities and inclusion of their experiences in policy formulation is necessary if the government has the political will for reforming the historic legislation. Any changes excluding the experience of the aggrieved communities will either be lip service or an attempt to dilute the law with the latter apprehension being the bigger concern.
Abhilasha is a lawyer associated with Youth for Human Rights Documentation, a Delhi-based network of lawyers, activists and researchers. Sangharsh is a researcher at Manuski and the state convenor of Campaign Advocating Rights of Victims of Atrocities. The views are personal.
