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P.S. Krishnan: ‘The ASG misinterpreted the SC-ST (Prevention of Atrocities) Act’

On 20 March 2018, the Supreme Court passed a judgment that contained directives to prevent the alleged abuse of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The apex court was ruling  on an appeal against a Bombay High Court judgment on a case filed by a storekeeper in the Government College of Pharmacy, in Karad, Maharashtra. The storekeeper had filed the case citing the provisions of the SC and ST (Prevention of Atrocities) Act against the principal of the college for making unwarranted adverse remarks about him in the Confidential Annual Report. The Supreme Court judgment prompted former secretary P.S. Krishnan to write to Thawar Chand Gehlot, union minister of social justice and empowerment. Given below is the text of the letter and the accompanying annexure. – Editor

P.S. Krishnan

 

Dear Hon’ble Minister Shri Thawar Chand Gehlot ji,

1. The Supreme Court’s judgment of 20 March 2018 in the appeal of Subhash Kashinath Mahajan, the then director of technical education, Maharashtra, is one of the recent developments which have caused distress among SCs and STs as it will make it more difficult to protect them from atrocities. Apart from specific directions, certain observations made by the Court have added to the distress of SCs and STs. As a person associated with the efforts for social justice for SCs and STs over the last seven decades and as the non-political prime mover of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) (POA) Act 1989 and the POA Amendment Act 2015, I share the dismay.

2. The reason why this has happened appears to be, from a reading of newspaper reports, the failure of the Additional Solicitor General (ASG), representing the Centre, to place the background and relevant facts pertaining to the Act holistically before the Supreme Court.

3. According to reports, he has also made certain gratuitous admissions and misinterpretations of the Government’s stand, as I shall show below.

4. The Government needs to urgently move the Supreme Court, requesting that a larger Bench of the Court revisit the above judgment, rescind the directions and expunge certain observations therein. In the petition/appeal, the Government must present a holistic picture, such as the socio-historical background of the Act, the extreme vulnerability of the SCs and STs and the importance of not diluting any of the provisions of the Act. Any delay in taking action by the Government as suggested herein will result in adverse conclusion being drawn by the SCs and STs, linking with the piling up of huge Post-Matric Scholarship arrears and the ill-conceived order of the UGC dated 5 March 2018 with the approval of the Ministry of Human Resource Development which the Government, following widespread criticism, my letters from October 2017 onwards and, more than all else, your own strong letter to that Ministry, is now seeking to reverse and apparently intending to file a review petition in the Supreme Court.

5. While preparing the petition to the Supreme Court, I advise the Government to immediately issue a statement, making it clear that it shares the distress of the SCs and STs on the judgment, expressing its intent to quickly move the Supreme Court as above and clarifying that it does not agree with the reported gratuitous admission and misinterpretation of the ASG in the court, and assuring that the protection of the SCs and STs is a paramount goal of the Government. This will assuage the feelings of SCs and STs and remove suspicions which have found public expression that the Government, through weak pleadings in the case before the Supreme Court, colluded in bringing about the present situation.

6. I enclose herewith in Annexure*, for your consideration, some of the important points which need to be covered in the Government’s petition/appeal to a large Bench of the Supreme Court.  I shall furnish further points as necessary as you progress.

7. I also suggest that the POA Act 1989 and the POA Amendment Act 2015 may be included in the Ninth Schedule so that it may get some protection in the matter of judicial review.

8. I would also request, for your consideration, that the Government of India should become a Party in all State appeals pending in the Supreme Court against High Court acquittals in cases like Tsunduru of Andhra Pradesh and six cases of Bihar, including Laxmanpur Bathe and Bathani Tola, referred to in the Annexure.

9. The case from which the present judgment of the Supreme Court dated 20 March 2018 has arisen pertains to adverse remarks in the Annual Confidential Report (ACR) of an SC employee, Shri Bhaskar Gaikwad, employed as storekeeper in the College of Pharmacy, Karad, made by a Professor and the Principal of that college. I shall write about this case to you separately.

10. The newspaper reports of 22 March 2018 show that MPs and Ministers cutting across party lines are disturbed by the judgment and observations of the Supreme Court. One newspaper has reported that the BJP’s Dalit MPs have met you and want the Government to file a Review Petition against the Supreme Court’s order. Many people working for the SCs and STs are similarly upset. In order to facilitate them in their future efforts in this matter and to secure their informed cooperation for the measures that the Government may undertake as suggested by me herein, I am circulating this letter to them.

                                                                                                                                               

Yours sincerely,

P. S. Krishnan

 

Thawar Chand Gehlot, the union minister of social justice and empowerment

 

*ANNEXURE

Some of the important points that need to be covered in the Government’s petition/appeal to a larger Bench of the Supreme Court

Kizhavenmani atrocity, Tamil Nadu, in 1958, where 44 SCs were burnt to death in a confined building. There is no doubt about the factum of massacre. The reason was SC Agricultural labourers seeking a little rise in their very low wages. What was sought was much lower than the existing statutory minimum wages.  The High Court acquitted all the accused.

Karamchedu, Andhra Pradesh, 1984 – 5 SCs massacred. Trial court convicted many of the accused. The High Court acquitted all.  The Supreme Court upheld the trial court judgment – a clear example that acquittals do not mean false cases.

Tsunduru, Andhra Pradesh, 1991 – 8 SCs massacred. Trial court convicted (2007). High Court acquitted (2014). The Supreme Court admitted SLP of surviving victims and survivors of victims.  Government’s petition in the Supreme Court pending – the Supreme Court directed serving of notice to other parties and because the report of serving of notice is not received, the case is not yet posted for consideration of admission of the SLP. This is an example of how delay is a basic feature of our system and every additional layer of procedure, as directed in the Supreme Court’s judgment of 3 March 2018, will add to this delay. There is no mechanism anywhere in our system to ensure prompt service and report so that the case can move forward.

Six cases of Bihar, including Bathani Tola (1996) and Laxmanpur Bathe (1997) –  In most of these, the trial court convicted the accused. In all of them, the High Court acquitted the accused.  Appeals are pending in the Supreme Court.

Observations of the Supreme Court

The destruction of this pernicious system will require the elimination of the wide gaps between the SCs and STs, at the bottom end, and the Socially Advanced Classes (SACs), ie, the non-SC, non-ST, non-SEdBC castes (NSCTBCs) at the other end, in every parameter of development, welfare and life – economic, occupational, education at all levels, health-and-nutrition-related, housing-and-residential facilities related, and this will require comprehensive measures of Social Justice and their sustained, uninterrupted and undiluted implementation, till the inequality is eliminated and the objective of the destruction of caste system and casteism is laid.  The POA Act 1989 and the POA Amendment Act 2015 are part of this package of comprehensive measures.

  1.     legislation for Special Component Plan for Scheduled Castes (SCs) and Tribal sub-Plan (TsP) and SC and ST Development authorities
  2.     national campaign in all States for grant of lands to all rural SC families and landless ST families with pattas/ownership documents and peaceful possession, and
  3.      other measures, which I have mentioned in my e-letter to Minister for Social Justice & Empowerment dated 20 March 2018 (which I have furnished earlier also)

and take steps to see that the State Chief Ministers do what is prescribed by the POA Amendment Act 2015, and if on this basis it is able tell the Supreme Court that it has taken measures with regard to these fundamentals.

This observation and phrases like “rampant misuse” are drastic, not backed by evidence and facts.

The Government must explain and show that the largest number of atrocities and cases of atrocities pertain to the SCs trying to get possession of lands, legally allotted to them; when others try to capture SC and ST lands; honour of SC and ST women; and resistance to various types of inhuman humiliations and discriminations, a number of which have been listed in the Act as offences; and so on. In recent times, there have also been a number of cases of killings of SC spouses in inter-caste marriages between adult SC and non-SC youth out of their free choice, of seeking to destroy the stirrings in the younger generation against the caste system that the Supreme Court judgment rightly deplores.

The complaints against judicial officers, as observed in the judgment, has not been heard of.

These are also drastic observations, not backed by evidence and facts.  The use of the work “blackmail” for personal vengeance and deterring public servant from performing their bonafide duties, etc in connection with this Act, are neither correct nor fair.

The problems faced by the SCs and STs vis-à-vis many public servants is that they fail to perform their bonafide duties, particularly in relation to SCs and STs.

An example of  the impression conveyed by this observation regarding “blackmail” is the blaring heading “No More Blackmail under SC/ST Act” in the Pioneer dated 21 March 2018.

        Large numbers of SCs and STs do not have the fundamental right to life in the literal sense. Right to Life included Right to Life with Dignity. There is a rampant denial of dignity to SCs and STs throughout the country.  This is the continuance of centuries of history, including decades of Independence.

        The larger Bench of the Court may be requested to take a balanced view in this regard, instead of a one-sided view.

  1. denied due place for the SCs and STs in all fields, relegated them to the level of slaves, serfs, agricultural labourers, bonded labour, manual scavengers and other labour (which largely continues even today), and
  2. secured a monopoly for members of a few upper castes in positions of importance, high status and power in every field without exception.

As an example, it may be pointed out that there is not a single judge of the SCs and STs in the Supreme Court, nor a single Chief Justice belonging to the SCs and STs in any of the High Courts.

The Act is one of the package of comprehensive measures required to eliminate casteism, the caste system and the imbalances in society produced by it and continuing till today.

      The SCs and STs thirst for fraternity and integration more than any other class.  It is the upper classes who are trying to keep them away by denying them the freedom to take water from  common sources, denying freedom for their children to sit equally in the classrooms and for mid-day meals, denying them the right to use common cremation/burial grounds and denying them equal and dignified access to various  places of public resort, apart from imposing on them labourhood, unequal education, social and economic boycott and massacres, mass-arson, etc.

To imply that check on the POA Act is a way to promote fraternity is a very limited view of the historical and present role of the caste system and casteism.

        The Supreme Court’s judgment of 20 March 2018 pertains to government servants, which is not typical of the bulk of the cases of atrocities and cases under the POA Act.  From such an atypical case to reach a conclusion affecting the large number of victims of atrocities on issues related to land, resistance to “Untouchability”, women’s honour, bonded labour, etc is not in keeping with the principles of jurisprudence.


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