Column | SC/ST Act: When Protection Becomes A Question Of Equal Enforcement

The death of 20-year-old Sahil Wakode, a second-year student at the Indian Institute of Technology (IIT) Bombay, has once again brought caste atrocities into public debate. Wakode’s parents have alleged that their son was subjected to caste-based discrimination and harassment. The Mumbai Police has registered an FIR under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST), 1989.

The SC/ST Act cannot be understood as another penal statute; it was enacted in 1989 against a social reality in which caste could determine access to land, employment, dignity and even effective access to the institutions of the State.

Parliament considered the existing criminal laws inadequate to address the specific nature and persistence of atrocities against the SCs/STs. The Act, therefore, did more than create new offences; it recognised that the same act may carry a different social and legal significance when committed within a structure of caste domination.

The legislation was substantially strengthened in 2015, followed by the insertion of Section 18A in 2018.

The Law’s Stringent Procedural Safeguards

The procedural structure of the Act is deliberate to protect the castes from atrocities. Section 18A provides that a preliminary inquiry is not required before registration of an FIR and that the investigating officer does not require prior approval for arrest where the arrest is considered necessary under the Act. Anticipatory bail is also ordinarily barred by Section 18.

These are significant departures from the ordinary criminal procedure. They reflect Parliament’s judgement that procedural safeguards, which appear neutral in the abstract, can become barriers to justice when the person seeking protection occupies the weaker position in an entrenched social hierarchy. The Supreme Court has upheld this legislative approach.

But there is a constitutional turmoil here that deserves greater attention. The more uncomfortable question, however, is not only whether the SC/ST Act is misused, but whether it is invoked with equal seriousness.

A recent incident in Delhi involving Swatantra Bhardwaj illustrates this. An FIR was initially registered over the alleged assault of the father of a Dalit student protester, but provisions of the SC/ST Act were added nearly 10 weeks after the incident, and Bhardwaj was subsequently arrested.

In bail proceedings, the court noted that the allegation of a caste-based insult did not appear in the original complaint and surfaced substantially later, while making clear that the delay did not by itself establish that the allegation was false.

Political Visibility And Access To The Law

The recent FIR against Rahul Gandhi in Uttarakhand makes the picture more complicated. Gandhi was booked under the SC/ST Act following a complaint over his remarks concerning a reported purification ritual at the venue of a rally addressed by Mallikarjun Kharge.

The case makes it impossible to sustain the sweeping proposition that political prominence necessarily places an accused beyond the reach of the Act. The more relevant question is whether an ordinary complainant, without political visibility or institutional access, can expect the same responsiveness from the State.

The constitutional promise is not merely that the law will exist, but that access to the law will not depend upon one’s ability to generate attention around a complaint.

It is this selective invocation that can turn a law intended as a shield into an instrument of suppression. Where the police invoke the Act swiftly and stringently in some cases, but hesitate to recognise the same statutory ingredients when the person complained against carries influence, the law ceases to operate as an equal guarantee and begins to depend upon who is on either side of the complaint.

In such circumstances, the Act can become vulnerable to misuse not merely by complainants, but by the police themselves, whether through premature invocation, selective application or the threat of its stringent consequences.

The danger is therefore two-fold: a law created to protect the vulnerable may be withheld when protection is most needed, while its coercive force may be deployed disproportionately where the accused has little ability to resist it.

The legitimacy of the Act ultimately depends on eliminating both forms of selectivity.

The Constitutional Test Of Equal Justice

The consequences of this selectivity extend beyond FIR. For a vulnerable complainant, delay or reluctance in invoking the Act can mean that the protection Parliament intended never arrives when it is most needed.

The equality of criminal procedure, therefore, does not necessarily produce equality in its operation. The question is whether access to the protection of the Act and exposure to its coercive force, depends upon one’s social or political ability to make the State listen.

If the allegations in the IIT Bombay case are ultimately established, the fact that they arise within an elite educational institution cannot make caste discrimination any less serious. But a law designed to correct historical inequality cannot itself be administered selectively without reproducing a different form of inequality.

The concern, therefore, is that selective enforcement can produce two opposite failures at once: the law may be invoked too readily against those with little ability to resist it, and too reluctantly where the complainant lacks the power to insist upon its invocation.

The constitutional challenge is therefore one of equal access to criminal justice. The SC/ST Act was born from the recognition that equality on paper means little when social power determines whose complaint is heard. Its promise will remain incomplete if political visibility, institutional influence or public pressure determines how seriously that complaint is treated.

The Act must be stringent enough to confront caste-based atrocities, but its invocation must be equally serious whether the accused is powerful or powerless. The strength of the law should not be measured only by how severely it acts once invoked, but by whether the State is equally willing to invoke it when the law is needed.

(The author is an advocate practising before the Supreme Court of India)

(Views expressed are personal)