Background and Issues

 

In 2018, an amendment was brought to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act), inserting Section 18A. The Amendment states that 

  • An enquiry is not necessary before registration of an FIR against any person 

  • The investigating officer does not need an approval of arrest from a person, if necessary, against whom an accusation of having committed an offence under the Atrocities Act has been made. 

  • Section 438 of the Criminal Procedure Code, 1973 shall not apply to a case under this Act.

 

The petitioners challenge the validity of this amendment on the grounds that it violated fundamental rights under Articles 14, 19 and 21 of the Constitution of India, 1950

 

What does the petitioner seek?

The petitioner prayed for the Court to-

  1.  Declare the new provisions added to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 as violative of Articles 14, 19 & 21 of Constitution of India, 1950.

  2. Stay the new provisions of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 during the pendency of the writ petition


 

Grounds

 

Amendment is arbitrary; takes away right to anticipatory bail under Article 21

The petitioner referred to Pankaj D. Suthar v. State Of Gujarat where the Gujarat High Court discussed whether section 18 of the Atrocities Act excluded anticipatory bail. The High Court had held that it is difficult to rule out the possibility of false accusations. Relying on this, the petitioner argues that an absolute bar on anticipatory bail cannot be imposed under the Act. 

 

The petitioner notes that taking away one’s right to anticipatory bail affects the ability of public servants from discharging their duties. Finally, the petitioner contends that the Amendment applies to only one group of people and therefore perpetuates case discrimination, and is violative of Article 21. 

 

Procedural requirements of an arrest are bypassed by the Amendment 

The petitioner states that under Section 41(1)(b) of the Criminal Procedure Code, 1973, an arrest can only be made if there is ‘credible’ information, ‘reason to believe’ that the offence had been committed, and that arrest was necessary. The petitioner argues that the Amendment bypasses these safeguards, and allows for the abuse of police power.

 

Further, they contend that Article 21 and the right to liberty of the accused is threatened by the Amendment. The petitioners argue that the interpretation of ‘reason to believe’ under Section 26 of the Indian Penal Code, 1860 does not allow for arrest without the criteria under Section 41(1)(b) of the Criminal Procedure Code.

 

Low conviction rate signifies abuse of law; No existing safeguards against misuse

The petitioners argue that the arrest rate for crimes under the Atrocities Act (based on the National Crime Records Bureau), does not translate to convictions. The Law Commission Report from 2002 is referred to, with regards to the Commission’s criticism of the arbitrary arrests made by the police. The petitioners argue that this signifies misuse and arbitrary implementation of the Atrocities Act.

 

Based on this, the petitioners contend that the Atrocities Act requires amendments that hold frivolous complainants accountable. Further, since there is no existing safeguard against false complaints, anticipatory bail is vital.