Indian Constitution

Provisions of SC/ST Atricities act

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Provisions of SC/ST Atricities act,

The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to prevent atrocities against scheduled castes and scheduled tribes. The Act is popularly known as POA, the SC/ST Act, the Prevention of Atrocities Act, or simply the Atrocities Act.

Article 17 of Indian Constitution seeks to abolish ‘untouchability’ and to forbid all such practices. It is basically a “statement of principle” that needs to be made operational with the ostensible objective to remove humiliation and multifaceted harassments meted to the Dalits and to ensure their fundamental and socio-economic, political, and cultural rights.

Objectives of the act

The basic objective and purpose of this more comprehensive and more punitive piece of legislation was sharply enunciated when the Bill was introduced in the Lok Sabha:

“Despite various measures to improve the socio-economic conditions of the SCs and STs, they remain vulnerable… They have, in several brutal incidents, been deprived of their life and property… Because of the awareness created… through spread of education, etc., when they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the SCs and STs try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty… Under the circumstances, the existing laws like the Protection of Civil Rights Act 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check and deter crimes against them committed by non-SCs and non-STs… It is considered necessary that not only the term ‘atrocity’ should be defined, but also stringent measures should be introduced to provide for higher punishment for committing such atrocities. It is also proposed to enjoin on the States and Union Territories to take specific preventive and punitive measures to protect SCs and STs from being victimized and, where atrocities are committed, to provide adequate relief and assistance to rehabilitate them”.

The objectives of the Act, therefore, very clearly emphasise the intention of the Indian state to deliver justice to SC/ST communities through affirmative action in order to enable them to live in society with dignity and self-esteem and without fear, violence or suppression from the dominant castes.

The salient features of the Act are:

  • Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
  • Commission of offences only by specified persons (atrocities can be committed only by non-SCs and non-STs on members of the SC or ST communities. Crimes among SCs and STs or between STs and SCs do not come under the purview of this Act).
  • Defines various types of atrocities against SCs/STs.
  • Prescribes stringent punishment for such atrocities.
  • Enhanced punishment for some offences.
  • Enhanced minimum punishment for public servants.
  • Punishment for neglect of duties by a public servant.
  • Attachment and forfeiture of property.
  • Externment of potential offenders.
  • Creation of Special Courts.
  • Appointment of Special Public Prosecutors.
  • Empowers the government to impose collective fines
  • Cancellation of arms licences in the areas identified where an atrocity may take place or has taken place (Rule 3iii) and seize all illegal fire arms (Rule 3iv).
  • Grant arms licences to SCs and STs.

Defining ‘atrocity’

  • Atrocity is “an expression commonly used to refer to crimes against Scheduled Castes (SCs) and Scheduled Tribes (STs) in India”.
  • It “denotes the quality of being shockingly cruel and inhumane, whereas the term ‘crime’ relates to an act punishable by law”.
  • It implies “any offence under the Indian Penal Code (IPC) committed against SCs by non-SC persons, or against STs by non-ST persons. Caste consideration as a motive is not necessary to make such an offence in case of atrocity”.
  • It signifies “crimes which have ingredients of infliction of suffering in one form or the other that should be included for reporting”. This is based on the assumption that “where the victims of crime are members of Scheduled Castes and the offenders do not belong to Scheduled Castes caste considerations are really the root cause of the crime, even though caste considerations may not be the vivid and minimum motive for the crime”.

The Act lists 22 offences relating to various patterns of behaviours inflicting criminal offences for shattering the self-respect and esteem of SCs and STs, denial of economic, democratic and social rights, discrimination, exploitation and abuse of the legal process, etc.

Section 3 of the Act lists the criminal offences and the punishments. It contains:

  • 19 offences in their own right (Section 3(1) contains 15 subsections with an equal number of offences. Section 3(2) contains four subsections with offences).
  • two derived offences (sections 3(2)(vi) and 3(2)(vii)). The derived offences are based on the offences given in the SC/ST Act. They only come in the picture provided that another offence under the SC/ST Act has been committed.
  • one subsection that increases the punishment for certain offences under the IPC (Section 3(2)(v)).

These protections can be broadly divided into protection from:

  • social disabilities (denial of access to certain places and to use customary passage and to get water from any spring, reservoir or any other source).
  • personal atrocities (forceful drinking or eating of inedible or obnoxious substance, against stripping, outrage of modesty, sexual exploitation, injury or annoyance). atrocities affecting properties (land, residential premises, existing properties).
  • malicious prosecution.
  • political disabilities. economic exploitation

Reasonable restrictions on fundamental rights and right to property

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Reasonable restrictions on fundamental rights and right to property

Fundamental Rights are the basic rights of the people and the charter of rights contained in Part III of Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, religious and cultural freedom and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.

Though the Constitution of India guarantees all these Fundamental rights for the citizen, yet there are some limitation and exceptions of these rights also. A citizen can not enjoy Fundamental Rights absolutely or at will.

Reasonable’ means that which is in accordance with reason, and which is associated with logic and not arbitrariness. It implies intelligent care and deliberation that which reason dictates. The expression “reasonable restriction” signifies that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.

Within some Constitutional limitation citizen can enjoy their Rights. The Constitution of India imposes some reasonable restrictions upon enjoyment of these Rights so, that public order, morality and health remain intact . The Constitution always aims at restoration of collective interest along with individual interest .For example, right to religion is subject to restrictions imposed by the state in the interest of public order, morality and health so, that the freedom of religion may not be abused to committee crimes or anti-social activities . Similarly Rights guaranteed by article-19 does not mean absolute liberty . Absolute individual rights can not be guaranteed by any modern state . There fore our Constitution also empowered the state to impose reasonable restrictions as may be necessary in the larger interest of the community . our Constitution always attempts “ to strike a balance between individual liberty and social control .” and to establish a welfare state where collective interest got prominence over individual interest .Freedom of speech and expression (Art.19-1-A) is also subject to reasonable restrictions imposed by the state relating to defamation, contempt of court, decency or morality, security of the state, friendly relations with foreign states , incitement to an offence, public order, maintenance of the sovereignty and integrity of India . Freedom of assembly (Art.19-1-B) is also subject to reasonable restrictions imposed by the state that the assembly must be peaceful and without arms in the interest of public order. Freedom of press which is included in the wider freedom of expression is also subject to reasonable limitations and the state can impose restriction upon freedom of press in the larger interest of the state or for the prevention of contempt of court, defamation or incitement to an offence.

Right to property

Property, as a legal and social institution, has different forms in different cultures and legal systems. However, only a definition of Constitutional property is common in all democratic countries. Since state exercises eminent domain power against private property, it is pertinent to discuss the concept of private property in brief. The institution of private property has been a controversial issue with conflicting views, one completely denying the right to own private property and the other supports the holding of the private property. However, the right to property is a natural and inherent right of an individual.

After independence, no Fundamental right has caused so much trouble and has given so much of litigation between the government and citizens as the property right. The reason is that the central and state governments have enacted massive hysteron of laws to regulate property rights. First, the government undertook to reconstruct the agrarian economy, interalia, by trying to confer right to property on tillers, abolition of zamindaris, giving security of tenure to tenants, fixing a ceiling limit on personal holding of agricultural land and redistributing the surplus land among the landless. Secondly, in the area of urban property, measures have been taken to provide housing to the people, clearance of slums and planning, control rents, acquire property and impose a ceiling on urban land ownership etc., Thirdly, government has undertaken to regulate private enterprises and nationalization of some commercial undertakings. These various legislative measures have been undertaken to effectuate accepted goal of establishing a socialistic pattern of society. Hence Articles 31 and 19(1)(f)  were repealed. Historical evolution and demise of repealed Articles 31 and 19(1)(f) are still relevant for the understanding of constitutional developments of property right. Since the commencement of the Constitution fundamental right conferred by Article 31 and Article 19(1)(f) has been modified by six times by the constitutional amendments. The first amendment added two explanatory Articles 31-A & 31-B to the Constitution; the fourth amendment amended clause (2) of Article 31, added clause (2A) to the same Article, inserted new provisions in Article 31-A and enlarged the ninth schedule; the seventeenth amendment further elaborated the definition of ‘estate’ in clause (2) of Article 31-A; and the twenty fifth amendment amended Article 31(2), added clause (2-B) and added a new Article 31-C. In the forty second amendment Article 31-C was substituted by the words “ the principles specified in clause (b) or clause (c) of the Article 39” for the words “all or any of the principles laid down in part IV of the Constitution”.

finally forty fourth amendment repealed the entire Article 31 and Article 19(1)(f) & inserted Article 300A.

Ninth Schedule – A Protective Umbrella

Article 31-B, does not by itself give any fundamental right. The Acts and regulations placed under ninth schedule shall not be deemed to be void or ever to have become void on the ground of its inconsistency with any fundamental right. In Kameshwar Singh 80 case, the Supreme Court said that no Act brought under the ninth schedule could be invalidated on the ground of violation of any fundamental rights.

With the introduction of the above amendment, it became very easy for the Government to acquire property and to carryout different agrarian reforms. Firstly the acquisition laws under the fear of being challenged were inserted in the ninth schedule by the constitutional amendments and thereby the concerned laws were made immune from challenge against any of the fundamental rights guaranteed under part III of the Constitution.

So for now right to property in india is a statutory right under the article 300A of Indian constitution.

 

Public Interest Litigation

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“Public interest Litigation”,is a litigation filed in a court of law, for the protection of “Public Interest” , such as pollution, Terrorism, Road safety, constructional hazards etc. Article 32 of the Indian Constitution contains the tool which directly joins the public with the judiciary. Public Interest Litigation is not mentioned in any constitution or a law of the land. It has been interpreted by judges to consider the intent of public at large.

The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society – the poor and the marginalized sections of the society. Prior to 1980s the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non-affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.

Revolution in the PIL movement was brought by the Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India. In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” where executed in action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups can now approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.

National and state SC/ST commission

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National and state SC/ST commission

National SC commission

National Commission for Scheduled Castes (NCSC) is an Indian constitutional body established with a view to provide safeguards against the exploitation of Scheduled Castes to promote and protect their social, educational, economic and cultural interests, special provisions were made in the Constitution.

 

Functions

  • To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards.
  • To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes.
  • To participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State.
  • To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards.
  • To make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes.
  • To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

 

 

National ST commission

The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. By this amendment, the erstwhile National Commission for Scheduled Castes and Scheduled Tribes was replaced by two separate Commissions namely-

  • the National Commission for Scheduled Castes (NCSC),
  • (ii) the National Commission for Scheduled Tribes (NCST) w.e.f. 19 February, 2004.

Powers of the Commission

For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to:

  • Summon and enforce attendance of any person and examine on oath.
  • Discovery & production of any documents.
  • Receive evidence on affidavits.
  • Requisition any public record or copy thereof from any court or office.
  • Issue Commissions for examination of witnesses and documents.
  • And Any matter which President, by rule, may determine.

Functions of the Commission

  • To investigate & Monitor matters relating to Safeguards provided for STs under the Constitution or under other laws or under Govt. Order, to evaluate the working of such Safeguards.
  • To inquire into specific complaints relating to Rights & Safeguards of STs.
  • To participate and advise in the Planning Process relating to Socio-economic development of STs, and to evaluate the progress of their development under the Union and any State.
  • To submit report to the President annually and at such other times as the Commission may  deem  fit, upon/ working of Safeguards, Measures required for effective implementation of Programmers/ Schemes relating to Welfare and Socio-economic development of STs.
  • To discharge such other functions in relation to STs as the President may, subject to the provisions of any law made by Parliament, by rule specify.
  • The Commission would also discharge the following other functions in relation to the protection, welfare and development & advancement of the Scheduled Tribes, namely:
  • Measures that need to be taken over conferring ownership rights in respect of minor forest produce to the Scheduled Tribes living in forest areas.
  • Measures to be taken to safeguard rights to the Tribal Communities over mineral resources, water resources etc. as per law.
  • Measures to be taken for the development of tribals and to work for move viable livelihood strategies.
  • Measures to be taken to improve the efficacy of relief and rehabilitation measures for tribal groups displaced by development projects.
  • Measures to be taken to prevent alienation of tribal people from land and to effectively rehabilitate such people in whose case alienation has already taken place.
  • Measures to be taken to elicit maximum cooperation and involvement of Tribal Communities for protecting forests and undertaking social afforestation.

State level SC/ST commission

Different states has founded SC/ST commissions to address the issues related to both the casts.

Role of State level commission:

  • The study the existing state of various provisions in the Constitutions and by the State Government for the Scheduled Castes and Tribes and suggest measures to fulfill the same.
  • To investigate various grievances raised by members from Scheduled Castes and Tribes.
  • To participate in the process of creation of schemes related to the economic upliftment of Scheduled Castes and Tribes and provide advice to the State Government regarding the same.
  • To take a review of matters registered under the Scheduled Castes / Tribes Atrocities Act 1989 and Protection of Civil Rights Act 1955.
  • To take review of the financial assistance to be given to the affected persons under the above mentioned acts. To accept and investigate grievances of SC/ST employees related to service.
  • To take a review of policies related to Scheduled Castes / Tribes. To provide advice to the State Government for rolling out beneficial schemes for Scheduled Castes and Tribes.