The 'acknowledged abuse' of the Atrocities Act stands on a somewhat flimsy factual footing

The Supreme Court's judgment in Subhash Kashinath Mahajan versus State of Maharashtra has caused much consternation across the country among Dalits and Adivasis. And rightly so. The court vastly overreaches its limited mandate in the case (whether the appellant deserved anticipatory bail), cherry-picks data and uses some dubious reasoning to effectively gut the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act). Its "directions", whether intended or not, make it virtually impossible for any complaint to be registered against those who have committed an atrocity against Dalits. These directions create procedure unheard of in law to protect the privileged and afflict the afflicted. They call for an extrajudicial trial before the actual trial, even before a complaint is registered and acted upon!

The "acknowledged abuse" of the Atrocities Act stands on a somewhat flimsy factual footing. The court does not cite studies or any serious data to show that the Atrocities Act is more abused than any other law. Only the latest NCRB report is cited in this context by the amicus curiae with data showing that 75 percent of the cases resulted in acquittal or withdrawal of charges. The court nowhere establishes how this amounts to abuse or anything even requiring some sort of special treatment for this law. Its sole anxiety seems to be to prevent arrests from taking place under this law and to ensure that even after the anticipatory bail ban has been upheld as valid and constitutional, it is diluted beyond recognition.

The court's doublespeak on the matter of atrocities is breathtaking. On the one hand, no effort is made to find out the impact of the law in improving the lives of Dalits or Adivasis, whether it has actually reduced the number of atrocities, whether more atrocities are being brought to light and prosecuted and whether oppressed classes feel safe and secure as a result of the law. On the other, it is assumed that it is the law itself that is not promoting constitutional values of fraternity and integration of the society, and therefore needs to be given an interpretation as such. It's quite obvious where the court's sympathies lie.

This is not the first time the Supreme Court or even this particular bench has chosen an entirely unrelated case to try and push its own notions of criminal justice onto a wider population in this arbitrary manner. Recall that the same bench tried to gut Section 498-A of the IPC in a similar manner imposing ridiculous procedures to allegedly deter "false complaints" but in effect ensure no one would ever be prosecuted for an offence under Section 498-A. The "directions" are presently being reconsidered by another bench of the Supreme Court.

The discourse around Section 498-A IPC and the Atrocities Act would make you think that these are the only two misused laws in the whole country. You'd think no one uses Section 420 of the IPC to settle essentially civil claims or kidnapping charges aren’t used to break up inter-caste and inter-religious marriages. No one, as far as I know, has called for the abolition of the offence of cheating or kidnapping or demanded that courts impose special obligations on those seeking to complain to the police about such offences. Why does Section 498-A IPC and the Atrocities Act merit such judicial attention?

The answer isn't too far to seek — they directly impact for the first time those who believed that due to their position in society put them beyond the reach of law: Privileged upper caste men. Who constitutes the bulk of the upper judiciary and provide a patient ear to the grievances of these being called into account by these laws? Privileged upper caste men.

It's no secret that the higher judiciary is utterly unrepresentative of the larger diversity of India. Writing in the 1960s, American scholar George H Gadbois found that the average judge of the Supreme Court of India was an upper caste male who had come from a privileged background and had had family connections in the legal field. Writing of Supreme Court judges up to 1989 (prior to the coming into effect of the "collegium" system of appointment), Gadbois had no reason to change his assessment. If he were to study the judges of the Supreme Court of India appointed since 1989, he would arrive at the same conclusion.

Less than 15 percent of India’s Supreme Court and high court judges are women as of date. According to the latest available figures, less than five percent of them were Dalits.

When the appointment process is almost entirely in the hands judges of the Supreme Court and the high courts, the blame for this state of affairs lies squarely with the judiciary. The situation is a bit better in the subordinate judiciary thanks to state sanctioned reservations in posts. However, thanks to an unstated glass ceiling, only a small number of district court judges make it to the high courts, and are rarely given terms long enough to influence future appointment processes.

Why does diversity matter? It is now beyond dispute that diversity in decision making does lead to better outcomes. It allows for multiple viewpoints on a matter being examined, not just in a theoretical and abstract manner, but based on lived experiences and realities.

But why does it matter so much when it comes to constitutional courts? Interpreting the Constitution is not so much the matter of parsing the words in it, but in articulating a coherent vision of the kind of society it intended to create. Apart from limiting state power in necessary circumstances, the Indian Constitution is also a charter for radical social reform, aiming to bring about equality in a deeply divided and hierarchical society. For it to be captured by the most privileged sections of society in this manner is a fundamental betrayal of the Constitution itself.