http://www.deccanherald.com/content/201557/court-questions-legality-special-law.html
Court questions legality of special law to protect SC/ST
New Delhi, Oct 31, (PTI) :
A Delhi court today questioned the legal validity of a special law
enacted to protect Dalit and tribal communities saying it
discriminates among offenders on the basis of caste.
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.
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