POA is a special legislation enacted with the following major purposes.
a) Definition of atrocities
b) Prevention of atrocities against the scheduled communities
c) Constitution of special courts for trial of such offences
d) Providing relief and rehabilitation of victims of such atrocities.
The recognition of punishment for offences and the rights of victims provided under POA is what makes it ‘distinct’ from the general criminal law framework.
A common question is why this Act should be invoked for all crimes against the scheduled communities. When officials are willing to register the case under IPC sections should we insist on adding the PoA sections as well?
Criminal law is set into motion when an FIR is registered. The dilution of PoA starts at this stage. Many a time the police will register a case, oftentimes reluctantly. However, they damage/dilute the case right at the FIR stage by invoking only the IPC sections, and deliberately omitting the POA sections. This is wrong for the following reasons. When invoked, POA
a) b) c) d)
Therefore not invoking the appropriate sections hides the scale and intensity of the caste-based atrocities, a particular form of hate crimes, thereby diluting the distinctness of the POA.
This Act can be invoked only under two conditions. The crime must be
a) Defined as a crime in Section 3 of the Act.
b) Committed on a person from the scheduled community by a non-scheduled community.
Both conditions must be fulfilled for a case to be filed under it. Even if the crime is mentioned, but is committed by persons from the scheduled castes or tribes on each other (including crimes by scheduled castes on scheduled tribes and vice versa), they will only be registered under IPC and not under this Act.
Unless an act is classified as a crime, it is not a crime. Until 1989, many of the crimes were not punishable because they were not classified as crimes, and therefore the quantum of punishment was not linked to it. Hence, if an act is not defined as a crime in Section 3 of POA then it is not an atrocity.
For the first time, POA defined certain offences committed against the scheduled communities as crimes. A new category of offences were included through the 2016 Amendment Act after a push from the civil society groups in the preceding years.
The victims, informants, or witnesses can make a complaint to the investigating officer against any kind of intimidation, coercion or inducement or violence or threats of violence. The investigating officer shall register an FIR and take necessary action [Section 15A(9)]. An application against harassment can also be made by the victims before the special court which shall take immediate action and pass appropriate orders.
POA provides for mandatory registration of FIR. There is no requirement for a preliminary inquiry before registering the FIR according to Section 18A of POA. It is the responsibility of the superintendent of police to ensure that the FIR is registered [Rule 12(2)].
Section 438 of CrPC which provides for anticipatory bail is non-applicable to atrocity cases committed under POA Section 18. However, the aforementioned rule is subject to exceptions. The accused can avail the benefit of section 438 of CrPC when a prima facie case is not made out under POA.
60 days from registering the FIR [Rule 7(2)].
The Act provides for quality and speedy investigation. The Investigating Officer (IO) must complete the investigation on top priority and the officer-in-charge of the concerned police station shall file the charge sheet within 60 days from the date of filing of FIR [Rule 7(2)]. Any delay in investigation or filing of chargesheet must be explained in writing by the IO [Rule 7(2A)].
Yes. The survivors, their dependents, accompaniers, witnesses, are entitled to daily travel and maintenance expenses during the investigation from the place of their residence even if they move to another place of residence after the atrocity. It is the right of the victim, dependent, informant, and witnesses and the duty of the state to provide them relocation [Section 15A(6)(d)].
Depends. Within 24 hours for immediate relief to six months for complete socio-economic rehabilitation.
The Act provides compensation for the victims of atrocities depending on the section of the Act invoked. The compensation can be in cash and/or rehabilitation. This compensation is disbursed at different stages in the criminal justice process – typically 25% at the time of filing the FIR, 50% at the time of filing the charge sheet, and 25% at the end of the trial, plus minimum pension of Rs.5000 + DA per month, government jobs or agricultural land for dependents, and education up to graduation for children. (There are slight variations – for instance its 50% on receipt of post mortem report in case of murder, another 50% on chargesheeting). The amounts for offenses vary depending on the section invoked, and is detailed in Rule 12(4) schedule 1. The relief amount ranges from Rs 85,000 to Rs 825,000.
For certain offences such as murder, death, massacre, rape, gang rape, permanent incapacitation and dacoity, the victims are also entitled to pension, employment, agricultural land, educational expenses for children, provision of utensils, rice etc. for a period of three months, construction of brick or stone masonary house (within 6 months). The timeframe is in the contingency plan (Rule 15) and ranges from 24 hours to six months (maximum) by which time the entire socio-economic rehabilitation should be complete.
The compensation is in addition to other relief given by the government, and is the minimum. For major crimes, additional relief will also be sanctioned by the Ambedkar Foundation.
In addition to compensation, the victims, dependants, and attendants are entitled to diet expenses, travelling allowances, maintenance expenses (TAME), during investigation, inquiry, and trial [Rule 11]. These expenses must be paid or reimbursed immediately, and in any case not later than three days [Rule 11(6)] by the district magistrate, sub divisional magistrate, or any executive magistrate.
It is the responsibility of the District Magistrate/ Sub-Divisional Magistrate/ Executive Magistrate to provide relief in cash or in kind within 7 days from the date of atrocity. They need to send a report of the relief given to the judge of the special court [Rule 12(7)].
POA provides for several monitoring mechanisms at the state, dstrict, and sub-divisional levels such as the State Vigilance and Monitoring Committee (SVMC) [Rule 16], District Vigilance and Monitoring Committee (DVMC) [Rule 17], Sub-divisional Vigilance and Monitoring Committee (SdVMC) [Rule 17A] and the Scheduled Castes and Scheduled Tribes Protection Cell. There are specific officials such as the state nodal officer, special officer, (exclusive) special public prosecutors, with specific duties and functions assigned to them under the Act.
Yes, the timeframes in this Act are very precise, because protection, compensation, and socio-economic rehabilitation are firmly linked to the state of investigation and trial. 50% of the compensation is tied to the filing of chargesheet. So delay in filing the charge sheet results in delay in compensation, thereby delaying socio-economic rehabilitation.
The investigation should be completed and the chargesheet filed within 60 days of filing the FIR (Rule 7(2)), if not a written explanation should be given [Rule 7(2A)].
The trial should be conducted on a daily basis, and completed within 60 days of filing the charge sheet [Section 14(2)]. If there is an adjournment beyond the next day, the reason should be given in writing [Section 14(3)].
The Act does not just say ‘the district collector will send a monthly report’. It is much more specific: ‘on the 20th of the month…’ [Rule 4(4)]. The director of the protection cell should consolidate all these district reports and send it to the nodal officer on or before the 20th of the month [Rule 8(1)(xi)].
Similarly, it is specific that the SVMC meetings and the performance review of the SPPs shall be held in the months of January and July. The DVMC and SdVMC meetings are held quarterly.
In any atrocity prone area, or when caste violence is suspected, the government is duty bound to ‘seize all illegal fire-arms and prohibit any illegal manufacture of firearms’ [Rule 3 (iv)] and to ‘provide arms license to the members of scheduled castes and scheduled tribes’ to ensure their safety [Rule 3(v)].
To prevent atrocities against the scheduled communities, the Act provides for externment of potential offenders. The special court may order a person who is likely to commit an atrocity in the scheduled areas or tribal areas or in atrocity prone areas to remove himself beyond the limits of such an area and not to return for a certain period not exceeding three years as may be specified in the order [Sections 10 and 11]. The court passes the order based on a complaint from the aggrieved parties (victim, witnesses, or their dependents) or the police (normally the deputy superintendent of police, DSP).
POA provides for a strong victim and witness protection mechanism compared to the general Indian criminal law framework. Chapter IV-A (Section 15A), inserted via the Amendment Act 2016, provides for the rights of victims and witnesses. If any of these are not done, then the officials concerned can be prosecuted for dereliction of duty under Section 4 of the Act (Specifically under Section 4(2)(g)).
It is the duty of the state government to provide protection to the victims, informants, witnesses, and their dependents, against any kind of intimidation, coercion, inducement, or violence or threats of violence [Section 15A(1)]. The state should inform the concerned special court about the protection so provided, and the court should periodically review the protection being offered and pass appropriate orders [Section 15A(7)].
Since it is the duty and responsibility of the state to make arrangements for protection, any victim or witness turning hostile shall immediately result in a case under Section 4(2)(g) against the investigating officer specifically and all officers concerned with the case for not providing protection under Section 15A(6)a. So it is important that the victim, witnesses, informants, and their dependents immediately file for protection under Section 15A(6)(a) along with filing the FIR.
All proceedings relating to offences under this Act shall be video recorded [Section 15A(10)]. The duties of the state to ensure implementation of the rights and entitlements of victims and witnesses in accessing justice [Section 15A(11)] are elaborated in the contingency plan (CP) drawn up as per directions in Rule 15(1).
In addition to immediate relief, maintenance, and protection, the state must also provide victims, witnesses, informants, and their dependants (and in some cases associated organisations or individuals too):
- Information about their rights at the time of making complaints and registering the FIR [S15A(11))(g)]
- Protection from intimidation and harassment [Section 15A(11))(h)]
- Information on the status of investigation and charge sheet and a copy of the charge sheet free of cost [Section 15A(11))(i)].
- Necessary precautions at the time of medical examination [Section 15A(11))(j)].
- Information regarding the relief amount [Section 15A(11))(k)].
- Information in advance about the dates and place of investigation and trial; [Section 15A(11))(l)].
- Adequate briefing on the case and preparation for trial and to provide the legal aid for the said purpose [Section 15A(11))(m)].
- Execute their rights at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights [Section 15A(11))(n)].
It is the duty of the state government to ensure effective implementation of the Act [Sections 21 and 15A]. This Act makes it explicit that the well-being of the scheduled communities is the responsibility of the highest political, civil, legal, and police officials.
The state government is obliged to ensure that a) officers having ‘right aptitude and understanding of the problem of the SCs and STs’ are appointed in atrocity prone areas and b) members from SCs and STs are adequately represented in the administrative and in the police force at all levels [Rule 13].
At the state level it (through the SVMC) includes the Chief Minister, Ministers of Home, Finance, Adi-Dravidar Welfare, all elected members of Parliament and State Legislative Assembly/Council belonging to the scheduled communities, Chief Secretary, Home Secretary, Principal Secretary Adi-Dravidar Welfare, Director or Deputy Director of National Commission for Scheduled Castes, the Director or Deputy Director of the National Commission for Scheduled Tribes, Director of Public Prosecutions, Director General of Police, and the head of the SCs and STs Protection Cell.
At the district level, it similarly has the highest district level officials (district collector, superintendent of police, in charge of prosecutions). The district collector plays a very important role in preventing atrocities against the scheduled communities, bringing the perpetrators to justice, providing relief to the victims and supervising the officials involved in the implementation of the Act. When an atrocity takes place, both the district collector (the highest civilian authority in the district) and the superintendent of police (the highest police official in the district) must do a spot visit [Rule 12(1)] within 24 hours (Tamil Nadu Model Contingency Plan, TNCP), conduct a preliminary investigation and provide relief and protection, and the SP must ensure that the FIR is filed [Rule 12(2)]. It is rare, anywhere in the world, that the two highest officials have official responsibility and accountability at this scale for individual crimes.
The district magistrate (collector) and the special officer [Rule 10] play a very important role in preventing atrocities, bringing the perpetrators to justice, providing relief to the victims and supervising the officials involved in the implementation of the Act. In Tamil Nadu, all district collectors are designated as special officers by G.O. (Ms) Adi Dravidar and Tribal Welfare (PA) Department dated 10 August 2006 and Government Letter No. 9685/PA2/2015-9, dated 6 March 2017.
The rights of victims, informants, witnesses, and their dependents are listed in Section 15A of the Act.
- Be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim‘s age or gender or educational disadvantage or poverty [Section 15A(2)]
- Reasonable, accurate, and timely notice of any court proceeding including any bail proceeding [Section 15A(3)].
- Apply to the Special Court to summon parties for production of any documents or material, witnesses or examine the persons present [Section 15A(4)].
- Be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing [Section 15A(5)].
- Apart from the initial FIR, complaints of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, must be recorded by the investigating officer or the station house officer, and a photocopy shall be immediately given to them free of cost [Section 15A(9)].
The victim, dependent, informant, and witnesses should be provided [Section 15A(6)].
(a) Complete protection to secure the ends of justice;
(b) Travelling and maintenance expenses during investigation, inquiry and trial;
(c) Social-economic rehabilitation during investigation, inquiry and trial; and
Consistent with the right to privacy, the victim, dependent, informant, or witness can have their names and addresses concealed in orders or judgments or in any records of the case accessible to the public [Section 15A(8)(a) and Section 15A(8)(b)]
Victims and their dependents have a right to take assistance from the non government organisations, social workers or advocates [Section 15A(12)].
If any of these are not done, then the officials concerned can be prosecuted for dereliction of duty under Section 4 of the Act (Specifically under Section 4(2)(g)).
Section 4 of the Act (Specifically under Section 4(2)(g)).
Rights of victims and witnesses (S15A)
Right to protection
For victims, their dependants and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence
State, special courts and exclusive special courts (S15A(7), S15A(8))
The victim, dependent, informant, and witnesses should be provided complete protection to secure the ends of justice
Right to respect and dignity
Be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim‘s age or gender or educational disadvantage or poverty
All concerned officers
Right to be informed
Reasonable, accurate, and timely notice of any court proceeding including any bail proceeding
Special public prosecutor or state government
Information regarding their rights
Officer recording complaint, FIR
Information regarding the relief amount
Special courts or exclusive special courts
Advance information of the dates and place of investigation and trial
Special public prosecutor or state government
Briefing on the case and preparation for trial and legal aid
Special public prosecutor or state government
Right to apply to summon
Apply to the Special Court to summon parties for production of any documents or material, witnesses or examine the persons present
Special courts or exclusive special courts
Right to be heard
Be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing
Special courts or exclusive special courts
Right to relief and rehabilitation
Travelling and maintenance expenses during investigation, inquiry and trial; (immediate, or at the latest within 3 days, Rule 11)
Special courts or exclusive special courts S15A(6), Rule 12(7)
Diet expenses (this is in addition to the maintenance expenses and travel reimbursement)
Social-economic rehabilitation during investigation, inquiry and trial ; (Varies from immediate to 24 hours to 6 months; See Annex 1, Schedule Rule 12(4) and contingency plan)
Right to get FIR and charge sheet
Provide a copy of the recorded First Information Report free of cost
Investigating officer or station house officer (SHO)
Provide a copy of the charge sheet free of cost
Right to privacy
S15A(8)(a) and S15A(8)(b)
Conceal names and addresses: The victim, dependent, informant, or witness can have their names and addresses concealed in orders or judgments or in any records of the case accessible to the public .
Right to assistance
Right to get assistance: Victims and their dependents have a right to assistance from the non government organisations, social workers or advocates.
Right to advocate of their choice, paid for by the state government
District magistrate or sub divisional magistrate
The Act had a formal role for civil society organisations right from the beginning, in spreading awareness about the Act [Rule 3(ix)] and in monitoring at the district level, by being mandatory members of the DVMC [Rule 17(2)]. In the Amendment Act 2016, this was enlarged to include the right of the survivors to get the assistance of NGOs, social workers or advocates [Section 15A (12)].
The expansion of the role of NGOs encompasses all the stages of the investigation and trial, and the right to be informed of the progress of the case, and relief provided. The state must also promote and assist the NGO in executing its rights [Section 15A(11)(n)].
It is the duty of the state to provide associated organisations (NGOs) or associated individuals (DAHRDs):
- Status of investigation and charge sheet and to provide a copy of the charge sheet at free of cost [Section 15A(11)(i)].
- Information regarding the relief amount [Section 15A(11)(k)].
- Information in advance about the dates and place of investigation and trial [Section 15A(11)(l)].
- Adequate briefing on the case and preparation for trial and to provide the legal aid for the said purpose [Section 15A(11)(m)].
- Execute the rights at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights [Section 15A(11)(n)].
The Act brings together functionally and administratively all three branches of the government – the executive, judiciary, and the civil service. Normally, each is semi-autonomous. Given the gravity of the atrocities, this Act has a nodal officer (of principal secretary rank – in Tamil Nadu, an Additional Chief Secretary rank officer) who is from the scheduled communities, to coordinate the implementation. All reports – from the police, to the directorate of prosecutions, and finance – are to this nodal officer. This is the bureaucratic equivalent to heading an empowered group of ministers (EGOM).