An uproar from sizeable sections of civil society had ensued after a perceived watering down of the stringent Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.The statute itself was enacted to safeguard the rights of oppressed communities and to protect them from discrimination, as guaranteed under Article 15 of the Constitution of India. Section 18 of the Act barred the grant of anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC) to persons accused of atrocities. An exhaustive list of 22 different offences which are punishable is contained in Section 3(1) and (2) of the Act. It includes filing false, malicious and vexatious cases or fabricating evidence against members of the community.
The source of the protests was the quashing of a case of alleged abuse of the stringent provisions of the Act, where the Supreme Court in Dr Subhash Kashinath Mahajan Vs state of Maharashtra (2018) had issued 4 directions, which were to be followed prospectively. It ruled that there was “no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out, or where on judicial scrutiny, the complaint is found to be prima facie mala fide.” The court made it clear that “arrest of a public servant can only be after approval of the appointing authority, and of a non-public servant, after approval by the senior superintendent of police” and added that “to avoid false implication of an innocent, a preliminary enquiry may be conducted by the deputy superintendent of police concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.” The apex court had warned of “disciplinary action
” as well as “contempt” for violation of its last two directions.
To ostensibly nullify the decision of the apex court in Subhash Kashinath Mahajan, an amendment was enacted through Section 18A of the SCST Act. The amendment has three new provisions. A preliminary enquiry shall be required for registration of a FIR against any person. The investigating officer shall not require approval for arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made. Significantly, the bar on anticipatory bail has been reinforced. “notwithstanding any judgment or order or direction of any court.”
These amendments have been upheld by the Supreme Court in Prathvi Raj Chauhan Vs Union of India (2020) overturning the decision in Subhash Kashinath Mahajan.
The Court rightly referred to the National Commission for Scheduled Castes Annual Report 2015-16, which had recommended “prompt registration” of FIRs as “the SC victims have to resort to seeking directions from courts for registration of FIRs under Section 156(3) of the CrPC.”
The Attorney General had reportedly submitted that as per the National Crime Records Bureau, the percentage of false cases under the SCST Act is only about 9 per cent which is less than other crimes like forgery which stood at 11.5 per cent. The court also noted that in SCST cases, “eyewitnesses do not come up to speak in their favour. They hardly muster the courage to speak against the upper castes, that is why provisions have been made by way of amendment for the protection of witnesses and rehabilitation of victims.” It further lamented that “the members of the scheduled castes and scheduled tribes are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached them, by and large, they remain unequal and a vulnerable section of society.”
A bare reading of the SCST Act will reveal that offences under it are cognisable. After the Supreme Court's landmark decision in Lalita Kumari Vs state of Uttar Pradesh (2013), registration of an FIR under Section 154 CrPC for cognisable offences is mandatory.
As for the bar on anticipatory bail, the Supreme Court in the latest Prathvi Raj Chauhan case concurred with the ruling in Vilas Pandurang Pawar Vs state of Maharashtra (2012) that “when an offence is registered against a person under the provisions of the SCST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. The provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.”
The court in Prathvi Raj Chauhan also drilled holes in the decision of Subhash Mahajan on the issue of prior approval for arrest of public servants. “Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged; it is encroaching on a field which is reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the courts.” It further reasoned that “often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval.”
As for the approval of the senior superintendent of police for the arrest of non public servants, the court was not inclined to show any leniency, using the same rationale. It “would be discriminatory and against the protective discrimination envisaged under the Act. When there is no provision for anticipatory bail, obviously arrest has to be made.”
That said, the inherent powers of high courts under Section 482 CrPC to quash malicious cases, can always be invoked by an innocent person.
Constitutional guarantees, especially to vulnerable sections, when bolstered by special enactments, must never be diluted. The Supreme Court has, with relevant riders, rightly stopped a legislation from being defanged.
(The writer is an advocate at the Madras high court, columnist & author)...