Judgment in Plain English

The Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (‘PoA Act’) was enacted to prevent crimes against Scheduled Castes (SCs) and Scheduled Tribes (STs). In March 2018, the Supreme Court in Kashinath Mahajan held that the PoA Act was being misused and introduced safeguards to prevent this. The judgment was followed by months of protest by various SC/ST groups. Then in August, Parliament in-effect reversed the judgment by passing the SC/ST (PoA) Amendment Act, 2018. The 2018 Amendment introduced Section 18A to the PoA Act, which undid the safeguards introduced in Kashinath Mahajan:

• No preliminary inquiry shall be required to register an FIR against any person accused under the PoA Act
• The investigating officer does not require the approval of neither the appointing authority nor the Superintendent of Police to arrest any person accused under the Act
• There is a bar on granting anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 to any person accused under the Act

 

Several individuals and organizations filed writ petitions challenging the 2018 Amendment. Their primary argument was that the safeguards introduced in Kashinath Mahajan are necessary because the PoA Act is being widely misused. They contended that imposing an absolute bar on the grant of anticipatory bail violates the fundamental right to personal liberty of accused persons under Article 21. They sought for the Court to strike down Section 18A.

 

2018 Amendment Upheld

On February 10th 2020, a three-judge Bench of the Supreme Court upheld Parliament’s 2018 Amendment to the PoA Act. Writing the majority opinion on behalf of himself and Justice Vineet Saran, Justice Arun Mishra held that the Kashinath Mahajan directions placed an undue burden on SC/STs persons who had suffered a caste-based atrocity. Further, he held that the directions entailed judicial law-making, a power reserved for the legislature. Finally, he observed that the directions were impractical. For example, he questioned how an appointing authority would be appropriately placed to grant permission for the arrest of a public official.

 

In addition, Justice Mishra clarified some of the narrow exceptions that exist to the 2018 Amendment. With regards preliminary inquiries, he stated they are only permissible under the narrow circumstances specified by the Constitution Bench in Lalita Kumari. With regards anticipatory bail, he explained that while there is a general bar on granting an accused under the PoA Act anticipatory bail, this will not apply if the complaint fails to make out a prima facie case for the applicability of the PoA Act provisions against the accused.

 

Writing a separate concurring opinion, Justice S. Ravindra Bhat added a caveat to Justice Mishra’s observations on anticipatory bail. Justice Bhat specified that anticipatory bail could only be granted in ‘very exceptional cases’. While he agreed with Justice Mishra that anticipatory bail can be granted if there exists no prima facie offence, he observed that this must be applied very sparingly. He warned that ‘a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament‘.

 

Justice Bhat also stressed that the Act has been underused. He noted that the National Crime Records Bureau only recorded 40,801 PoA cases in 2016. He suggested that the primary issue is not that the Act is being misused (as advanced by the petitioners), but rather that it is being grossly under used. He concluded that additional safeguards would only further dissuade victims from approaching the Police.

 

Echoing the review of Kashinath Mahajan

Both opinions relied heavily on the Court’s judgment in the review petitions challenging Kashinath Mahajan, delivered in October 2019. In-effect, the Kashinath Mahajan judgment had already upheld the 2018 Amendment.  The judgment recalled the directions issued in Kashinath Mahajan on three grounds:

1. The directions were issued under Court’s extraordinary powers under Article 142, which is to be exercised only when there is a legislative vacuum or lack of clarity in the existing provisions of a legislation. The Court in Subhash Kashinath Mahajan was not confronted with either of these scenarios
2. Directions introduced new fetters on registration of FIRs and making arrests under the Act. Such fetters were even more onerous than those found under the general law – Code of Criminal Procedure, 1973. This amounted to the unequal treatment of the members of the Scheduled Caste and Scheduled Tribe communities
3. Most of the directions were impractical

As Parliament’s 2018 Amendment was designed to undo Kashinath Mahajan, the Court by reversing Kashinath Mahajan, was in-effect upholding the 2018 Amendment.

 

Observations on constitutional fraternity

In his concurring opinion, Justice S.R. Bhat observed that the PoA Act was introduced, in part, to actuate the constitutional ideal of fraternity. He said that fraternity, read with equality and liberty, offers ‘a promise of oneness of and for, all people, regardless of caste gender, place of birth, religion and other divisions‘. Relying on Raghunathrao Ganpatrao ([1993] 1 SCR 480), he stressed that fraternity is essential in a nation ‘like ours with so many disruptive forces of regionalism, communalism and linguism‘.

 

His motivation for offering these observations on fraternity appeared to be that, according to him, ‘the articulation of fraternity as a constitutional value, has lamentably been largely undeveloped‘. He said that while fraternity occupies a crucial role in the scheme of Indian constitutional democracy, the concept has been jurisprudentially underdeveloped. He noted that, by contrast, there has been much recognition of equality and liberty as central to the scheme articulated in Part III of the Constitution.

 

He sought to frame the SC/ST (PoA) Act, 1989 within the framework of fraternity. He showed that the Act seeks to ‘make real’ the constitutional provisions of Articles 15 and 17. He observed that these Articles aim to achieve ‘the ideal of fraternity‘, referring to the Constituent Assembly debates. He concluded that fraternity promises to address, and ideally solve, problems arising out of a highly segmented society.