Introduction
On October 1, 2019, the Supreme Court recalled its directions in a March 20, 2018 verdict that had diluted provisions of arrest under the SCs and STs (Preventions of Atrocities Act, 1989). This was done after the Centre’s Plea serving a review of the judgement. The 2018) verdict allowed anticipatory bail to persons accused of committing atrocities to people belonging to SCs and STs, because the verdict reasoned that the anti-atrocity law had become an instrument of blackmailing. The verdict was a dilution of the SC and ST (Prevention of Atrocities) Act, 1989, and had directed a preliminary police enquiry before registering a case to ensure that a complaint under the law is not ‘frivolus or motivated’, as there were instances of SC/ST people lodging false complaints, leading to the arrest of innocent persons.
Subhash Koshinath Mahajan Case In 2011, two non-SC officers had made an adverse entry on the integrity of a Dalit employee of Technical Education in Maharashtra. Its director, mahajan, denied sanction for prosecution. The denial was challenged on the ground that the state government was the competent authority and not the director. The SC held that safeguards against blackmail are necessary as ‘by way of rampant misuse, complaints are largely being filed against public servants/ judicial officers/ quasi-judicial officers with oblique motives for the satisfaction of vested interests’.
Petitions against the Amendment
This amendment (dilution of the act) led to widespread protests and forced the Union government to amend the act to nullify the effect of the said verdict. Several petitions were filed challenging the Act. Several people died and property worth crores was destroyed during the protests. However, the SC refused to stay the implementation of the amendments. Later on, the Supreme Court agreed to review its ruling. So, a two-judge bench consisting of Justice U.U. Lalit, who was part of the earlier bench, reviewed its decision, only to refer it to a larger bench. Therefore, a three-judge bench, comprising Justice Arun Mishra, M.R. Shah, and B.R. Gavai heard the review petition, filed by the government.
The Centre argued that the amendments were necessary as SCs and STs would continue to face the same social stigma, poverty, and humiliation, they had been subjected to for centuries. There has been no decrease in the atrocities despite the law, and 195 special courts across 14 states to exclusively try Prevention of Atrocities (PoA) cases.
Data from National Crime Records Bureau
As per the National Crime Records Bureau, there is no decrease in the crimes against SC/ST members, like cases registered in 2014 under the PoA were 47,124; in 2015, 44,839; and in 2016, 47,338. In 2014, 28.8 per cent of the cases were convicted, 71.2 per cent acquittals, and 85.3 per cent cases were in pending. In 2015, 25.8 per cent of cases were convicted; 74.2 per cent were acquittals; and 87.3 per cent were pending. Then in 2016, 24.9 per cent were convicted; 75.1 per cent were acquittals; and 89.3 per cent were pending.
A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average. There was a 66 per cent growth in crimes against SCs between 2007 and 2017.
Understanding the SC/ST Cases
The SC issued a notice to the Centre on a plea challenging the validity of mandatory capital punishment to a SC/ST member, convicted of false and fabricated evidence by the accused, under 3(2)(i) of the SC and ST (PoA) Act. Advocate Rishi Malhotra, who filed the plea, said that the provision is ‘manifestly arbitrary, disproportionate, excessive, unreasonable, unjust, unfair, harsh, unusual, and cruel’. The provision prescribes life imprisonment and fine for an accused belonging to the non-SC/ST community. Terming the law ultra vires of the Constitution and against the fundamental tenets of constitutional laws, the petitioner requested the court to strike down the provision related to mandatory death sentence, citing various sections, amended by the court earlier like Section 27(3) of the Arms Act, which was declared void.
Dilutory Amendments 2018
(i) Anticipatory Bail The original act provided that anticipatory bail, under Section 438 of CPC, 1973, would not be available to an accused keeping in view the special nature of crimes against Dalits in Section 18 of the Act, because anticipatory bail is a statutory right, not a fundamental right.
This provision was diluted in the March 20, 2018 judgement, laying down safeguards, including provisions for anticipatory bail and a ‘preliminary enquiry’ before registering a case.
(ii) FIR Justice Goel, in his 2018 verdict, ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary enquiry by an SSP. An arrest can only be made if there is ‘credible’ information and the police officer has ‘reason to believe’ that an offence was made.
(iii) Permission The court said in 2018 that arrest is not necessary, even after an enquiry, and that no public servant is to be arrested without the written permission of the appointing authority. In case of other citizens, written permission of the SSP of the district was made necessary.
(iv) Interpretation of Atrocities Another provision which was diluted was regarding the interpretation of atrocities. Justice Goel observed that interpretation of atrocities act should promote constitutional values of fraternity and integration of society for which ‘check on false implication of innocent citizens on caste lines may be required’.
Conclusion
The Supreme Court’s order, recalling the earlier verdict, may not appear very significant, yet it is more than a mere academic exercise. It has fortified the legislative measure of the law. It underscores that special laws for the protection of SCs and STs flow from social realities, the discrimination they still face, and the circumstances that present them from mustering coverage to register an FIR.
The directions for getting an authority’s sanctions for arrest or holding a preliminary enquiry for this class of cases alone are extra-statutory and amount to the judiciary engaging in legislation. The review reminds us that Supreme Court’s power is to uphold justice and not to give directives to existing laws or to supplement them. Thus, the field, reserved for Parliament and encroached upon by the apex court, has been regained.
From the present situation, four important points emerge:
(i) Judicial self-correction or overreach is possible.
(ii) The rightful intent of the law is restored.
(iii) Only this law or any other is not enough to remove the debilities that flow from the caste system. For this, larger social transformation is needed along with changes in the dynamics of power.
(iv) Neither the dilution of the law nor its undoing offers any means of preventing misuse of the law.
The review is a timely reminder that the top court’s power to pass any order required to uphold justice cannot be used to give directions contrary to existing laws or to supplant them together.