SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

Prevention of Atrocities Act, 1989 (Amendments 2018) and the misuse of

caste system under Article 14

-----------------------------------------------------------------------------------

Submitted by

Gauri Sharma

Division – C, PRN- 18010324050, 2019-20

------------------------------------------------------------------------------------

SYMBIOSIS LAW SCHOOL, HYDERABAD,Telangna

In

October, 2019

Under the Guidance of

Mr.Amish Abdullah

1
 CERTIFICATE

The project entitled “Prevention of Atrocities Act, 1989 (Amendments 2018) and the misuse
of caste system under Article 14” submitted to the Symbiosis Law School, Hyderabad for
Constitutional Law – II as part of Internal Assessment is based on my original work carried
out under the guidance of Mr Amish Abdullah from 14th September, 2019 to 4th October,
2019

The Research work has not been submitted elsewhere for award of any degree.

The matter taken from other sources and incorporated in the research paper has been duly
acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Gauri Sharma

B.B.A. LLB

2
 ACKNOWLEDGEMENTS

I would like to express my sincere gratitude and indebtedness to Mr Amish Abdullah for his
enlightening lectures on Constitutional Law- II. I would also like to express my sincere
gratitude to our teaching staff for guiding me the path towards gaining knowledge.

I would like to thank the Library Staff of Symbiosis Law School, Hyderabad as well for their
co-operation.

I would also like to thank my batch mates and seniors who inspired, helped and guided me in
making this project. I am grateful to some of my seniors/friends namely, KratviKawadia,
MolshreeTotla and Drishti Jain for their incredible guidance and support.

GAURI SHARMA

B.B.A. LLB

3
 INDEX

1. Introduction……………………………………………………..05

2. Research Objectives…………………………………………….06

3. Research Questions……………………………………………..06

4. Research Methodology………………………………………….07

5. Review of Literature…………………………………………….07

6. Analysis……………………………………………………….....08

7. Conclusion and Suggestions…………………………………….13

8. References……………………………………………………….16

4
Introduction:

Caste system prevails in our country since the ancient time. People of lower
caste specifically who comes under scheduled caste and scheduled tribes
have to face various types of atrocities . To name a few, they are forced to
act as bonded labour, not allowed to go to schools, not allowed to caste
their vote , insulted to humiliate them, their women are sexually exploited ,
denied to take water from wells , asked to leave their house or village , their
houses are put to fire , forced to drink or eat any inedibles or obnoxious
substances , excretes / waste matter is dumped in their locality , forced to
remove their clothes and forced to parade them naked with black paint on
their face or body, derogatory remarks are passed on them and so on.

Thus to meet out with these atrocities and to improve their living
conditions ,Government of India has provided free education to their
children, giving them scholarships. Seats of their children are reserved not
only in higher education but also in jobs and in their promotion.

Reservation in India has always been a highly debatable topic to uplift the people of
Scheduled Castes and Scheduled Tribes from atrocities and inhuman behaviour of people of
upper castes towards them. It came due to the evil caste system that was practiced by the
people of our country since the early times. To protect SC ‘s and ST’s, the system of their
reservation was first started in 1902 by Chatrapati Sahuji Maharaj, Emperor of Kolhapur,
Maharashtra that favoured 50% of seats for backward people for state services to eradicate
poverty. This system was implemented, as in earlier times people of lower castes were not
allowed to get education, with no proper employment facilities and therefore, they engaged
themselves as bonded labourers of landlords . But the more prominent practice of
Reservations came into the picture during British regime and it continued with provisions of
22.5 % reservations for SCs, STs. Even after independence of our country from British
regime , various measures are taken by the Government of India to protect these peoples from
the atrocities and to uplift them from poverty.The Government has appointed different

5
committees such as Kalekar Committee and Mandal Commissions to analyse the condition
of such people. It was then continued by Congress Govt. led by Dr Manmohan Singh
government by reserving 22.5% of seats to SC’s and ST’s ( 7.5 % to ST’s and 15 % to SC’s)
and 27 % to Other Backward Castes ( OBC ) in the prestigious educational institutions of
India like AIIMS, IITs, NITs and other central institutions of higher education . Not only this,
the government also provided them with the reservation in government jobs and also made
the provisions to get secured promotions under it.

Considering the current position, where the caste based reservation system still prevails and
various acts that are passed for their benefit such as Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Bill, 2018. They also get special status under Article
14 of the Constitution and safeguards under various other fundamental rights guaranteed
under India Constitution that shall be discussed with wider aspect in the following research
paper.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989 was passed
and then again Amendment Bill was passed in 2018 .The bill was basically amended to fight
against the abuse for the exploitation that people of lower castes face or still suffer. In 2018,
this was a debatable topic as the Supreme Court of India passed the judgment in case of
Subash Kashinath Mahajahn v. State of Maharashtra that led to toning down of Section 18
of such Act. The court made the provision of prohibiting the police for registering FIR
without any preliminary enquiry and for making the arrest of the person with written
permission of the appointing authority if he is a public person and with the approval of
senior superintendent of police if he is a non – public servant.

After this judgement was passed, people of reserved category revolted this judgement and
formed groups and came on streets to protest against it.. People believed that it destroyed the
very essence of this Act. Analysing this and linking it with Article 14, people have misused
the benefits that are available to them. They form a part of reasonable classification but now
when India is developing, people don’t need such classification. Such as in the SC’s ST’s
Act, cases were found of misusing the power of this Act and filing complaint with wrong
intention. Initially, the reservations were important but now these people have developed
their own capabilities and strengths. Thus, instead of caste based system, they should be
marked on their strengths as this system make people care free that they don’t need to work
hard to achieve something. Therefore, the caste system should be abolished and rather to

6
support reservation, the government and the legislature should make provisions to provide
free aid in various respects such as education. etc.

Research Objectives:

1. To ascertain the need of reservations and its development in India from earlier times.

2. To ascertain the provisions that are incorporated in the post and prior in Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018.

3. To ascertain the applicability of Article 14 and its ambit to form a reasonable classification
to the people.

4. To ascertain the current position of caste based reservation system and its validity in
modern India.

Research Questions:

1. Whether the amendment and the judgement made by the Parliament in 2018 is justifiable
or not?

2. Whether the caste system and culture is misused under the ambit of Article14?

3. India being a developing country, still requires the system of reservation or not ?

3.Whether such reservations should prevail further ?

4. Whether such remedies (acts and rights) should still be present in law ?

Research Methodology:

The research methodology used in the research paper is qualitative and the mode of collection
of data is secondary source in nature i.e. the data previously gathered and is accessible to
other users for further research. The sources that are used includes online websites, research
7
papers, books based on Constitutional Law, Reports published by renowned authorities,
newspapers, legal databases that helps us to give interpretation on various cases, etc.

Review of Literature:

There is a lot of literature available on the above research topic. The review of literature helps
us to provide a basis for the research that helps us to the publication and research done on
various topics so far. There are number of studies that are conducted to ascertain Dalit
Movements but in most of the cases, it is limited to the ascertainment of socio – economic
condition of the Scheduled Caste, Schedule Tribes and Other Backward Classes. The
researcher has tried to gather various literatures from various research journals, abstracts,
books and various conferences.

A per Dr. B.R. Ambedkar ,“India is caught between two sides of pincers, the one side of
which is progressive pressure of population and the other is limited availability of land in
relation to its’ need. The result is that at the end of each decade, we are left with negative
balance of population, production and a constant squeezing of standard of living and
poverty.The population pressure is giving rise to an army of landless and dispersed families
as well. Nothing can open possibilities of making agriculture profitable except a serious drive
in favour of Industrialization”.1

Prof. AmartyaSen too believe that the concept of equality and justice have changed over
time. A drastic change can be seen which has been shifted from economic to social equality.2

Since education is the only way to tackle and make people realise that system of reservation
is unreasonable, the report of Ernst and Young in 2012 have analysed and examined the
situation of education in India. It has highlighted the challenges faced by the government to
implement such plans and suggested that the Government should join hands with private
participation to provide aid for education under the ambit of Right to Education Act.

Therefore, the literature on this topic is very wide as different political leaders have their own
views and interpretations on the caste system that prevail in India.

Analysis:
1
Baba SahebAmbedkar, writings and Speeches Vol 1, (1989)
2
1997

8
The reservations in India were introduced in Indian Constitution by our forefathers, so, as to
help the people who were deprived from various facilities and opportunities. Historically if
we consider the practice of untouchability and the evil caste system, it was a necessity that
was required at that time. But with the introduction of the politics, the politicians have always
played tactics in front of the people just to secure votes in the name of showcasing aid to the
people of lower castes. According to the various facts and sources, it is believed that the
Constitution makers never inclined themselves to insert such provisions, instead they just had
a soft corer for such class but now it is time to elevate the situations, it was observed that
these were the people who were deprived and belonged to the lower caste, so the makers
didn’t have any option and they created a caste based reservation system. As the time
evolved and the failure of government and people’s mind-set caused hindrance in the
abolishment of the caste system.

It is mentioned in the Indian Constitution that the State shall not deny equality of law and
equal protection of law.3 The main theory that this particular Article includes is as follows:

 The equal protection of law is guaranteed by Article 14 does not mean that all laws
must be in general character. It does not mean that all laws have universal application.
The varying needs of different classes of persons require separate treatment.4
 Article 14 forbids class legislation but it does not forbid reasonable legislation. The
classification must not be arbitrary, artificial or evasive but must be based on some
real and substantial distinction bearing just and reasonable relation to the object sougt
to be achieved by the legislation.5
 The classification must be founded on intelligible differentia which distinguishes
persons or things that are grouped together from others who are left out of the group
and such differentia must be in relation to the object sought to be achieved by the
Act.6
Considering these basic guidelines and interpretations by various Courts across India,
a reasonable classification to safeguard peoples’ interest is justified but that must be
limited to an extent. The articles from 14 to 18 of Indian Constitution embodies right
to equality to an Indian Citizen. Therefore, the government may provide safeguards to
any person such as Trans genders or Hijras or people belonging to the lower castes.

3
Article 14 of Indian Constitiution
4
ChiranjitLal V. Union of India AIR 1951 SC 41
5
R.K Garg v. Union of India AIR 1981 SC 2138
6
K. Thimmappa v. Chairma, Central Board of Directors, SBI AIR 201 SC 467

9
 such as Schedule Castes, Schedule Tribes and Other Backward Classes. Article 15
and Article 16 of the Indian Constitution also comes into the picture which includes
the provisions of reservations in matters of public employment .The further analysis
will be specifically dealing with the provisions inserted under law act passed by the
parliament- Prevention of Atrocities Acts and its latest development.
As discussed above, the ambit of Article 14 is wide enough to include various aspects
that allow the legislature to pass various laws to safeguard people from various
wrongs but what if these provisions which are made by the legislature are been
misused to great extent? Should these still be validated even after such misuse?

Considering about various Acts passed by the parliament, one such act includes Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018 and Bill
of 1989.

The Act was passed by the Parliament on September 11,1989. The main objective of
the government behind this Act was to bring justice to the community belonging to
the SC’s, ST’s caste so that they are able to live in the society in a dignified manner
with self-esteem. The main motto of this Act is to help Dalits who face social
inclusion. This particular Act came up as a strong safeguard against those castes and
tribes that were exploited and abused from a very long time.
The offences under this Act deals with various acts where a person may be punished
for which is mentioned under Chapter II of this Act- Offences under the Act. Some of
the offences that may be committed by a person are as follows:
 He puts any inedible or obnoxious substance into the mouth of a member of a
Scheduled Caste or a Scheduled Tribe or forces such member to drink or eat
such inedible or obnoxious substance.
 Dumps excreta, sewage, carcasses or any other obnoxious substance in
premises, or at theentrance of the premises, occupied by a member of a
Scheduled Caste or a Scheduled Tribe
 Intentionally insults or intimidates with intent to humiliate a member of a
Scheduled Caste or a Scheduled Tribe in any place within public view abuses
any member of a Scheduled Caste or a Scheduled Tribe by caste name in any
place within public view destroys, damages or defiles any object generally

10
 known to be held sacred or in high esteem by members of the Scheduled
Castes or the Scheduled Tribes.7
Other list of offences are inserted under the same Section, i.e. , Section 3 of
this Act.
However, many cases of misuse of this Act were found in the year 2018 by the court
as it was observed that the Section 18 of Atrocities Act, which ignored Section 438 of
Crpc8 violates Article 14 and Article 21 of the Indian Constitution.
Section 18 was as follows9:
Section 438 of the Code not to apply to persons committing an offence under the
Act- Nothing in Section 438 of the Code shall apply in relation in any case involving
the arrest of any person on an accusation of having committed an offence under this
Act.
This particular section caused controversy as the constitutional validity of this section
was challenged in the Supreme Court as in case of Dr.Subash Kashinath Vs. The State
of Maharashtra and Others.. The main issue that came before the Supreme Court in
terms of a Special Leave petition was that whether any unilateral allegation of mala
fide can be ground to prosecute officers who dealt with the matter in official capacity
and if such allegation is falsely made, what is the protection available to him against
such abuse.

The court was of the view that it has seen the misuse of such safeguards and it
believes that the arrest should not be mechanical. According to the law to arrest of a
person should include reasonable grounds of belief of a person’s complicity and also
the effects of such arrest should also be considered as decided in the cases, Joginder
Kumar Vs State of U.P10, M.C. Abraham Vs State of Maharashtra11, D.
Venkatasubramaniam versus M. K. Mohan Krishnamachari12 , Arnesh Kumar versus
State of Bihar 13and Rini Johar & Ors.versus State of M.P. &Ors14

7
Section3 of the Prevention of Atrocities Act,1869
8
Sec. 438 of The Code of Criminal Procedure-Direction for the grant of bail to person apprehending arrest.
9
Section 18 of the Prevention of Atrocities Act
10
6 (1994) 4 SCC 260
11
(2003) 2 SCC 649
12
2009) 10 SCC 488
13
(2014) 8 SCC 273
14
10 (2016) 11 SCC 703

11
 The learned amicus submitted that various offences under this Act depends upon the
way of the interpretation of the complainant and which may not be true. A court
cannot destroy the presumption of innocence and there may not be a tangible material
present at such times. The unilateral version of filing a complaint is completely
against the fundamental rights guaranteed under Indian Constitution. It was further
contended that this section violates the rights under Article 14 and Article 21 and this
must be held ultra vires to the Indian Constitution.

In Gurbaksh Sinh Sibbiaetc Vs State of Pujab ,15it was observed that if the Court has
power to grant anticipatory bail in heinous crimes such as murder, rape, dacoity,
robbery, NDPS, sedition etc. which includes serious punishment for a longer period of
time, taking away of such powers against the offences committed is violative and
discriminatory of Article 14 under Indian Constitution.

In Nikesh Tarachand Shah versus Union of India and Anr16, the constitutional
validity of Section 45 of the Money Laundering Act, 2002 was challenged. The
fetters on bail were implemented even when no other offence had such use of fetters
for punishment. The court held that this provision was discriminatory and was against
the principle of just and fair, reasonable procedure.
As discussed that the provisions of the Act was misused in a malafide manner,
safeguards must be provided by the Court of law to grant constitutional guarantee
under Article 14 and 21 must be given. The Standing Committee on Social Justice and
Empowerment in the year 2014-15 on The Prevention of Atrocities Amendment Act,
2014 rejected the views of the Ministry that believed that there should be no provision
to provide safeguard against malafide and false complaint. To safeguard such
interests, a preliminary enquiry should definitely come into existence before arrest
and these factors may be considered while a preliminary enquiry:
 Considering the time and date of such incidence
 Ascertaining whether there was a pre –existing dispute between the parties.\
 Nature and Gravity of the issue
 Recording of proceedings may be recorded to avoid biasness and non-
transparency of allegations.
15
(1980) 2 SCC 565
16
(2017) 13 Scale 609, 2017 SCC OnLine SC 1355

12
 The Honourable Supreme Court gave its judgement on March 20, 2018 and
opined that in the provisions of Atrocities Act, to prevent the mode of arbitrary
powers of arrest, an enquiry should be made mandatory and necessary reasons
should be recorded for such an arrest. There should not be any bar kept on grant of
anticipatory bail under Atrocities Act . In cases where a person is a public servant
,an approval by his disciplinary authority should be taken for the arrest and where
a person is non- public servant, the approval of the Superintendent of Police will
be required. While granting the permission, the authority granting such permission
should be satisfied with the credibility of the information and the facts and arrest.
The Magistrate must pass an order to ascertain the reasons of an arrest with its due
correctness. Also, to avoid any false charges, a preliminary enquiry must be
conducted by the Deputy of Superintendent of Police to ascertain whether the act
falls under the ambit of the Prevention of Atrocities Act and such allegations must
not be frivolous and motivated. Any violations against the above mentioned
guidelines will be considered as contempt and disciplinary actions must be taken
against it.

The court found that this was a case of clear abused and quashed down Section 18 of
Prevention of Atrocities Act, 1089, bringing amendment and passing it in 2018.
But after various protests and the violent nature of the Dalits, within that year, the
Modi government decided to overturn the decision of the Supreme Court and bring
out with the earlier provisions back that was inserted in the bill. The government also
promised to make more stringent laws for the Dalits to safeguard their interests. So,
the government set aside the judgment of the Supreme Court by:
 No approval of a senior official is required during the time of the arrest.
 There will be no application of Section438 of the Code of Criminal Procedure.
 There will be no preliminary enquiry conducted at the time of lodging of a
FIR.

Later a petition was filed which challenged the validity of the provision of the anticipatory
bail but the Supreme Court rejected such plea that was held in February, 2019. Currently
looking into the status of this Bill, a plea by Central Government is filed to review the
decision of 2018 by a three Judge bench in the Supreme Court.

13
Thus, the efforts of the Supreme Court were all in vain as the judgement passed by the
Supreme Court were set aside by the Parliament despite the provision under Section 18 of the
Prevention of Atrocities Act being violative of Article 14 and Article 21 of the Indian
Constituon.

Conclusions and Suggestions:

India being a diverse country consisting of various castes, religions and consisting of various
provisions that are established under law for the lower caste people to provide aid to them are
now being greatly misused. Earlier where the untouchability prevailed in India, such aid
became necessary to elevate their social as well as economic status to improve the standard of
living. But due to the introduction of dirty politics, where the main objective of every
political party is to come into power, instead of actually helping the people, these political
parties consider the people belonging to the lower caste as a medium to achieve their votes
because the larger section of Indian population is composed with people belonging to such
castes (SC’s , ST’s and OBC’s) who are living in poverty. The government continued to
provide such aids even after realising that such aid is not at all required as they will not
benefit them at all.

Such aids provided by the government are in the form of the safeguards provided under
Article 14, 15 or 16 under the Indian Constitution and other various Acts that are passed by
the legislature. These provisions create a mind-set amongst these lower caste people that they
are obliged to receive such facilities by birth.

If we consider the provisions of the Act that is discussed above that is the Prevention of the
Atrocities Act and its Amendment in 2018, we found that people who form reasonable class
under the provisions enacted under Article 14 now misuse such provisions to a greater extent.
Complaints were found in the light of the above provision as people having any ill will
against one could file false complaint that may make a person arrest without the grant of
anticipatory bail application. These led to achieving with malafied motive of such people
who were protected under the ambit of this Act. The Apex Court correctly made the
judgement as it was clearly visible that Section 18 of this Act clearly violated the
fundamental rights under Article 14 and Article 21 of the Indian Constitution. But sadly, due
to huge protests across India, the government overturned such decision of the Honourable
Supreme Court. The parliament has right to make laws for the country but they fail in

14
realising the need of the hour that is the need of abolishing the caste system. The political
parties have always understood such things with the game of politics and just a medium to
achieve votes. If the government is really capable to understand such provisions, instead of
overturning such decision, the government should have made stringent actions against such
Dalit who were protesting against it as it caused harm to others. It is always observed that a
law is made by the parliament, interpretations and decisions are laid by the courts and the
decisions are overturned when people protest against it on a larger basis. The government is
left with no option but to reverse back such things and that is the saddest part of the
functioning of such government system.

Taking care of the other circumstances, the caste based reservation system has always led to
protests all over the country. Considering the situations and the incidents in the State of
Haryana where officials were shot dead, the Jaats who comes under the purview of SC’s,ST’s
and OBC’s came on roads and burnt houses, cars ,caused injuries to various people. This all
happened when the government denied the job reservations to them. Analysing this
situation, the caste based system in India has become unreasonable and developed people
more violent. Considering other situation, that is the reservation systems developed in terms
of colleges and its reservation on seats. Such reservation created hue and cry so it may also be
considered as unreasonable. It creates a very serious impact on the minds of the people as
students of reserved caste at a very tender age believe that they don’t need to do any hard
work and they can secure good places even with obtaining lower marks as the cut off
prescribed for these people is very low than the cut off prescribed for students of general
category. The impact of such situation will be that these people will have little knowledge in
their field. Even if they reach the highest positions in their field, they lack basic capabilities
that must be required in respective fields be it in Science, Technology, Medicine, Education,
Law etc. Other concern that is observed are that these people, irrespective of being from a
well off family duly take advantages of such provisions even when it is not required.

Considering these aspects, the reservation in India should be abolished as considering the
current situation in India, where the people are become more vigilant and literate and where
India is trying its best to touch the heights, the system of reservation shall be banned as it
creates an imbalance in the society. If the government wants to help such people, it should
provide them free educational aid, as it will be the best way to prosper their future. As by the
means of education, they can only understand the importance of it in the coming new world.

15
rather than such system. The reservation must be done on the basis of the various economic
strata existing in the society if any.

As far as it is about the provisions inserted under law, the safeguards must only be provided
on the basis of gender. As India now being a developing country, the problem of gender
discrimination still prevails. More provisions must be inserted to provide aid to women,
trans-genders and children. Therefore, in the coming future , there is no doubt that such
system will definitely be abolished by the judiciary but it is truly the duty of the government
to consider it and understand that India can only develop when it is free from such system.

16
References:

Websites:

1. https://en.wikipedia.org/wiki/Scheduled_Caste_and_Scheduled_Tribe_(Preventio
n_of_Atrocities)_Act,_1989
2. https://indiankanoon.org/doc/108728085/
3. https://www.hindustantimes.com/india-news/what-is-the-controversy-over-the-sc-
st-act/story-KUUQGqQDYgmBsCqFDSzsaP.html
4. https://www.thehindubusinessline.com/news/national/supreme-court-refers-to-3-
judge-bench-centres-review-plea-of-2018-scst-act-judgement/article29406808.ece
5. https://m.economictimes.com/news/politics-and-nation/cant-stay-provisions-of-
sc/st-amendment-act-as-it-is-legislation-now-supreme-
court/articleshow/65722310.cms
6. sci.gov.in
7. https://www.quora.com/Should-reservation-system-be-removed-from-India
8. www.indianyouth.net
9. https://www.indiatoday.in
10. https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-
once-again-refuses-to-stay-amendments-to-sc/st-act/articleshow/67751583.cms
11. https://m.economictimes.com/news/politics-and-nation/supreme-court-once-again-
refuses-to-stay-amendments-to-sc/st-act/articleshow/67751583.cms
12. https://m.economictimes.com/news/politics-and-nation/supreme-court-once-again-
refuses-to-stay-amendments-to-sc/st-act/articleshow/67751583.cms
13. https://m.economictimes.com/news/politics-and-nation/supreme-court-refers-to-3-
judge-bench-centres-review-plea-of-2018-sc/st-act-
judgement/articleshow/71107749.cms
14. https://www.refworld.org/docid/3ae6b52a1c.html
15. https://shodhganga.inflibnet.ac.in/bitstream/10603/145202/11/11_chapter
%202.pdf

17
Books:

Constitutional Law of India – J.N. PANDEY

Indian Constitution – M.P. JAIN

Leal Databases:

SSC Online

Manupatras

18