The Supreme Court is assessing the constitutional validity of Parliament’s 2018 Amendment to the Prevention of Atrocities Act. The Court asks whether the amendment violates the principles of the presumption of innocence and fair and just procedure. The matter was partially heard in early 2019. On 25 September, the Court directed that the hearings be resumed once the judgment in the connected review petitions is pronounced.
The petitioners have challenged the constitutional validity of the Section 18A of the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, introduced by the 2018 Amendment to the Act. The Court will assess whether Section 18A violates the fundamental rights to equality, life and liberty guaranteed by Articles 14 and 21 of the Constitution.
Further, the Court will examine if the Amendment violates the principle of judicial review, a basic feature of the Constitution. The Amendment directly undid a Supreme Court order.
In 2018, Parliament introduced Section 18A to overturn safeguards introduced by the Supreme Court in its Kashinath Mahajan judgment. Section 18A undoes all three of the following safeguards introduced by the judgment:
The safeguards from the Kashinath Mahajan judgment were intended to prevent people from abusing the SC/ST (Prevention of Atrocities) Act, 1989. They were a response to the allegedly rising number of false charges being filed using the Act. The safeguards aimed to ensure that people accused under the Prevention of Atrocities Act are not presumed guilty and denied due process.
Immediately after the judgment was delivered, Parliament moved to undo it. The judgment caused violent protests. Dalit and Adivasi groups organised massive rallies that unfortunately resulted in several deaths. Fearing the fall out, the State pushed through the 2018 Amendment. The outcry was so severe that Parliament did not even wait for the Supreme Court to hear a review petition challenging the judgment.
On 7 September 2018, a Supreme Court Bench comprising Justices AK Sikri and Ashok Bhushan issued a notice to the Centre to file their response to this petition. On 29 October 2018, the Central Government filed an affidavit stating that the Parliament is competent to bring about the amendment to the Act. The Affidavit further records that high rates on acquittals in cases filed under the SC/ST (Prevention of Atrocities) Act cannot be the basis for the assumption that a majority of the cases filed under it are false.
On 24 January 2019, the Court clubbed the petitions challenging the 2018 Amendment with the review petitions challenging Kashinath Mahajan. It is unusual for writ petitions to be heard together with review petitions, as review petitions have a much narrower scope.
On 1 May 2019, the Court reserved judgment in the review petition, with the rest of the oral arguments in the writ petition deferred to a later date. Then on 13 September 2019, in an unexpected move, Justices Arun Mishra and UU Lalit referred the review petition to a three judge bench, comprising Justices Mishra, Shah and Gavai, citing the 'importance of the matter'. Soon after, the writ petition was tagged with the review petition.
On 1 October 2019, the Court recalled its directions in Kashinath Mahajan, in effect endorsing the 2018 Amendment and rejecting the prayers in the writ petitions. In a brief hearing on 3 October 2019, the Court reserved the judgment in the writ petitions, noting that the issues raised in them have been answered in the judgment in the review petition.
1) Is the absolute bar on grant of anticipatory bail for the accused arbitrary and unjust, violating Article 14 of the Constitution?
2) Does the bar on anticipatory bail infringe the personal liberty of an individual who has been booked under the Act without any ground?
3) Does the power of automatic arrest violate the safeguards under sections 41 and 41A of the Criminal Procedure Code, 1908? Does it violates the protection of reasonable procedure under Article 21 of the Constitution?