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DAILY NEWS ANALYSIS

  • 04 November, 2021

  • 7 Min Read

Misuse of Laws in India

Misuse of laws in India

Context: This topic is important for UPSE GS Paper2.

The rising misuse of laws in India such as section 498A, section304B, and SC/ST Act can be addressed by making our executive especially the police competent enough to identify its potential abuse.

Section 498A- Husband or relative of husband of a woman subjecting her to cruelty.

Section 304B -Dowry deaths

Scheduled Castes (SCs) and Scheduled Tribes (STs) (Prevention of Atrocities) Act, 1989

Constitutional Provisions-

  • Article 17 of the constitution abolished the practice of untouchability.
  • In line with the constitutional provisions under article 17 and Articles 14, 15, the Untouchability (Offenses) Act, 1955 was passed in parliament.
  • In 1976, the act was renamed as Protection of the Civil Rights act.
  • But due to the ineffectiveness of previous acts, the ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989’ was enacted.

SC/ST Act, 1989-

Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989, also known as the SC/ST Act, was enacted to protect the marginalized communities against discrimination and atrocities.

The salient features of the Act are-

  1. Creation of new types of offenses not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act 1955 (PCRA).
  2. Commission of offenses 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).
  3. Defines various types of atrocities against SCs/STs (Section 3(1)i to xv and 3(2)i to vii).
  4. Prescribes stringent punishment for such atrocities (Section 3(1)i to xv and 3(2)i to vii).
  5. Enhanced punishment for some offenses (Section 3(2)i to vii, 5).
  6. The enhanced minimum punishment for public servants (Section 3(2)vii).
  7. Punishment for neglect of duties by a public servant(Section 4).
  8. Attachment and forfeiture of property (Section 7).
  9. Internment of potential offenders (Section 10(1), 10(3), 10(3)).
  10. Creation of Special Courts (Section 14).
  11. Appointment of Special Public Prosecutors (Section 15).
  12. Empowers the government to impose collective fines (Section 16).
  13. Cancellation of arms licenses in the areas identified where an atrocity may take place or has taken place (Rule 3iii) and seize all illegal firearms (Rule 3iv).
  14. Grant arms licenses to SCs and STs (Rule 3v).
  15. Denial of anticipatory bail (Section 18).
  16. Denial of probation to convict (Section 19).
  17. Provides compensation, relief, and rehabilitation for victims of atrocities or their legal heirs (Section 17(3), 21(2)iii, Rule 11, 12(4)).
  18. Identification of atrocity-prone areas (Section 17(1), 21(2)vii, Rule 3(1)).
  19. Setting up deterrents to avoid committing atrocities on the SCs amongst others (Rule 3i to 3xi).
  20. Setting up a mandatory, periodic monitoring system at different levels (Section 21(2)v):
    1. District level (Rule 3xi, 4(2), 4(4), 17).
    2. State-level (8xi, 14, 16, 18).
    3. National level (Section 21(2), 21(3), 21(4)).

Salient Features of the Amendment Act, 2018

  1. It added Section 18A to the original Act.
  2. It delineates specific crimes against Scheduled Castes and Scheduled Tribes as atrocities and describes strategies and prescribes punishments to counter these acts.
  3. It identifies what acts constitute “atrocities” and all offenses listed in the Act are cognizable. The police can arrest the offender without a warrant and start an investigation into the case without taking any orders from the court.
  4. The Act calls upon all the states to convert an existing sessions court in each district into a Special Court to try cases registered under it and provides for the appointment of Public Prosecutors/Special Public Prosecutors for conducting cases in special courts.
  5. It creates provisions for states to declare areas with high levels of caste violence to be “atrocity-prone” and to appoint qualified officers to monitor and maintain law and order.
  6. It provides for the punishment for wilful neglect of duties by non-SC/ST public servants.
  7. It is implemented by the State Governments and Union Territory Administrations, which are provided due to central assistance.

Section 18A states that

  • For the Prevention of Atrocities Act, the preliminary enquiry shall not be required for registration of a First Information Report against any person.
  • The provision of section 438 (pre-arrest bail) of the Code of Criminal Procedure (CrPC) shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any Court.

TH EDITORIAL-On dealing with false criminal cases

Investigating officers should ensure that no innocent individuals have to suffer rigorous punishment under the law.

  • It is often alleged that false cases of cruelty are registered by the police at the behest of the estranged wife under Section 498A of the Indian Penal Code (IPC), and many innocent relatives of the husband are roped in overzealously.
  • This Section, along with Section 304B on dowry deaths, was brought in to check the menace of increasing dowry deaths and the cruelty meted out to married women by their in-laws in 1983. But its misuse has outraged many since then.
  • Similarly, allegations are leveled sometimes for the misuse of certain provisions of the Scheduled Castes (SCs) and Scheduled Tribes (STs) (Prevention of Atrocities) Act, 1989.
  • This special law was enacted to remove the discrimination faced by the SC and ST communities, who remain vulnerable and are sometimes denied their civil rights. But it is alleged that, at times, cases are registered to settle personal scores.

Judgment modified

  • Realising the misuse of Section 498A, the Supreme Court in Rajesh Sharma vs State of Uttar Pradesh (2017) issued certain guidelines, including the formation of district Family Welfare Committees (FWCs), restraint on arrest till the complaint was examined by the committee, the disposal of the proceedings by a senior judicial officer in case of a settlement between the parties, etc.
  • However, in 2018, the Supreme Court in Social Action Forum for Manav Adhikar vs Union of India modified the same judgment, stating that most of the directions had the potential to enter into the legislative field, which was not permissible.
  • It was held that the constitution of the extrajudicial FWCs was contrary to the procedure prescribed under the Code of Criminal Procedure (CrPC).
  • Similarly, the Supreme Court in Subhash Kashinath Mahajan vs State of Maharashtra (2018), taking cognisance of the abuse of the process of the courts with regard to certain provisions of the SCs and STs (Prevention of Atrocities) Act, issued certain guidelines, including the holding of a mandatory preliminary inquiry to avoid false implication of an innocent individual, the approval of the appointing authority before the arrest of a public servant, etc.
  • However, in 2019, the Supreme Court in Union of India vs State of Maharashtra and Ors. overruled the above judgment and held that the guidelines were opposed to the protective discrimination given to members of SC and ST communities as envisaged under the Constitution. Lodging a false report, the court said, “is due to the human failing and not due to the caste factor”.

Genuineness of allegations

  • These judgments indicate that the courts cannot lay additional guidelines when the existing law is unambiguous and only legislature can modify such law in its wisdom.
  • This also means that the onus is on the police to ensure that once the law is set into action, no undue advantage of the special law is taken by the complainant.
  • The investigating officer must not jump to conclusions as soon as a First Information Report (FIR) is registered. Some investigation must be done to confirm the genuineness of a complaint before an arrest takes place.
  • It is a settled law that no arrest can be made in a routine manner on a mere allegation. The arrest must be necessary and justified. Mere authority to arrest is not sufficient.
  • The Supreme Court, in its landmark judgment in Arnesh Kumar vs State of Bihar (2014), asked the police to satisfy themselves on the necessity of an arrest under the parameters laid down in Section 41 of the CrPC.
  • Police officers, in fact, are duty-bound to ensure that the principles set by the Supreme Court in its various judgments are implemented by the investigating officers.
  • Further, the judicial magistrate is also required to peruse the report furnished by the police officer and satisfy themselves before authorising further detention.
  • Though there are legal remedies available against those lodging false reports, the general perception, however, is that the remedial measures are not only insufficient but also ineffective.
  • The first remedial measure is to initiate criminal action against the person who gives false information to the police or levels specific criminal charges against a person.
  • The police, after completing the investigation, may initiate action under Section 182 or 211 of the IPC respectively.
  • However, both these offenses are non-cognisable and a magistrate’s nod is necessary for initiating further legal action.
  • The court, on its own, in certain cases directs the police to take action under these Sections if, on the completion of the trial, it is found that the allegations were completely false.
  • Second, the complaint may be filed before a judicial magistrate having jurisdiction, who, after an inquiry, can take appropriate action against a person who filed a false case with the police.
  • Third, the complainant may approach a High Court for anticipatory bail and for quashing the FIR.
  • The Supreme Court recently held that even in non-compoundable cases that are not so serious or private in nature, the High Court, using its inherent powers under Section 482 of the CrPC, may quash the judicial proceedings even after a conviction, in case a genuine compromise is reached between the warring parties.
  • The Law Commission, in its 243rd report in 2012, had suggested making Section 498A compoundable with the permission of the court, but it was not accepted by the Government.
  • Fourth, in addition to the above, damages may be claimed under the law of tort for malicious prosecution and causing injuries.

What data show

  • As per data compiled by the National Crime Records Bureau (NCRB) in the report Crime in India 2020, about 5% of the cases under Section 498A were found to be false. About 9.4% were either non-cognisable or civil in nature or with insufficient evidence in the end.
  • Similarly, about 12% of the cases under the SCs and STs (Prevention of Atrocities) Act were found to be false by the police, and about 7% were either non-cognisable or civil in nature or with insufficient evidence in the end.
  • Further, out of the 17,765 cases under Section 498A decided by the courts, 3,425 cases ended with a conviction.
  • Out of the 8,138 cases under the SCs and STs (Prevention of Atrocities) Act decided by the courts, 3,588 cases ended with a conviction.
  • Although there are varied reasons for acquittal, including a delay in lodging the FIR, witnesses turning hostile, the compromise between the parties, lack of proper presentation by the prosecution and an appreciation of the evidence by the court, etc., the problem arises when a court concludes that a case is false.

Way Forward

  • The onus of arriving at the truthfulness of a case lies primarily with the investigating officer, it is their duty to investigate the case thoroughly and collect all the facts and circumstances fearlessly.
  • This would ensure that false cases are closed in time and no innocent individuals have to suffer the rigors of the law.

Source: The Hindu


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