Article 338 and 338A of the Constitution have to be amended, conferring powers upon the commission to take action against State offenders
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted with the objective of protecting marginalised communities against discrimination and atrocities by the upper castes and the rich and privileged. Section three of the Act enunciates the nature of various actions against a SC/ST person to constitute an offence punishable under it.
The provision stipulates that any act, which is derogatory to human dignity, constitutes an offence under the Prevention of Atrocities Act, 1989. The Supreme Court, too, in the Nandini Sundar case, observed that the Constitution itself, in no uncertain terms, demands that the State shall strive incessantly and consistently to promote fraternity among all citizens such that the dignity of every person is protected, nourished and promoted. The conduct of the police in cremating the Dalit gang-rape victim from Hathras, allegedly without the consent of the family members, constitutes an offence under the Prevention of Atrocities Act, 1989.
The Hathras gang-rape and the subsequent events leading to the cremation of the victim by the police in the dead of night raises the question whether the State had responded to the incident as required?
The incident shows that the atrocities committed against the Dalit girl were two-fold. First, the gang-rape of the victim by the accused, who allegedly belong to the upper caste and second, the conduct of the police in cremating the body after sunset, allegedly without the consent of family members.
The conduct of the police raises a suspicion that officials were trying to protect the accused. She was allegedly attacked on September 14 and succumbed to her injuries on September 29. A statement has been made by the police that the post-mortem report does not disclose any evidence of rape. Obviously since the post-mortem was conducted after a lapse of more than eight days of the alleged incident, there is a big possibility of the evidence of rape getting erased. However, there is a dying declaration made by the victim that she was subjected to gang-rape, which is admissible in evidence.
Now the issue is whether the State can remain a silent spectator without responding against the alleged conduct of the police in cremating her body without the consent of the family members, which also constitutes an atrocity under the Prevention of Atrocities Act, 1989.
The response of the State in the present scenario is only at the mercy of the politicians who are running the Government. There is no “body” constituted under the Constitution, which in such circumstances can take cognisance of the conduct of the erring officials involved in the alleged crime and take necessary action against them without the interference of the Government.
Though Article 338 of the Constitution contemplates the setting up of the National Commission for SCs and Article 338A of the Constitution constitutes a commission for STs, they are only recommendatory bodies. The Constitution only confers power upon them to prepare reports and the President shall cause all such reports to be laid before each House of Parliament, along with a memorandum, explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of such
suggestions.
Obviously the President will be acting on the aid and advice of the Ministers. Therefore, the commission cannot take action against the people, who are involved directly or indirectly in the entire episode. The implementation of the recommendations of the commission is within the domain of the political system. Therefore, there is no other Constitutional provision or a created body, which comes to the rescue of the victim when the Government does not respond in a proper manner.
There has to be a mechanism provided by the Constitution to respond to such a situation. The apex court, while deciding the review petition of Dr Subhash Kashinath, observed that the prevailing conditions in various areas of the country show that the SCs/ STs are still struggling for equality and for exercising civil rights. They have been suffering ignominy and abuse and they have been outcast socially for centuries. It was also observed that every person has the right to live with dignity and the right to die with dignity, too.
In fact, the Supreme Court, while upholding the constitutional validity of the Prevention of Atrocities Act, 1989, observed that all the three ideas, liberty, equality and fraternity, are intimately linked. The right to equality sans liberty or fraternity would be chimerical, as the concept known at present would be reduced to equality among equals, in every manner a mere husk of the grand vision of the Constitution.
Likewise, liberty without equality or fraternity can well result in the perpetuation of existing inequalities and worse, result in licence to indulge in society’s basest practices. It is fraternity, poignantly embedded through the provisions of Part III, which assures true equality, where the State treats all alike, promises the benefits of growth and prosperity to all, with equal liberties to all, and what is more, guarantees that every person treats every other citizen of the country in a like manner.
Obviously, the State actors at the higher level due to political interference would not respond as the situation mandates. There has to be an independent body which can spring into operation to take necessary action against erring State officials. Therefore, Article 338 and 338A of the Constitution have to be amended, conferring powers upon the commission to take necessary action directly against the State or non-State actors who indulge in illegal acts. Unless such a suitable amendment is made incorporating such powers, justice cannot be done to victims and there cannot be any effective implementation of the Prevention of Atrocities Act, 1989.
(The writer is Advocate, at the Andhra Pradesh and Telangana High Courts)