PM Modi's Shah Bano moment will haunt India

The High Court rejected the petition for quashing of proceedings; but on appeal to the Supreme Court Dr Mahajan finally succeeded.

Shah Bano Begum, married to Mohammed Ahmed Khan, a lawyer by profession in the year 1932, a mother of five children, was thrown out of the marital home by her husband in 1975. Being a destitute, she moved a magistrate’s court under Section 125 of the Code of Criminal Procedure for maintenance from her husband; that, like any other provision of a criminal law, is a secular one applicable to all citizens irrespective of the religion of victims - neglected parents, wives or children - legitimate or otherwise. Its purpose is to save society from deprived persons turning lawbreakers, and its duration is temporary.

The magistrate ordered the payment of in the words of late Chief Justice Y.V. Chandrachud “a princely sum of Rs 25 a month”. On Shah Bano’s appeal, the high court enhanced the amount to Rs 130 or so per month.

The husband appealed to the Supreme Court contending among others that the the law permitting maintenance to the neglected wife was against Islam. A five-judge Supreme Court bench rejected the contention in the famous Shah Bano case of 1985.

Muslims as a class were reportedly dissatisfied with the decision, or so it was perceived. The Central government, then headed by Prime Minister Rajiv Gandhi, readily accepted the advice to nullify the court’s judgment through legislation and the Muslim Women (Protection of Rights on Divorce) Act was enacted. In that law, the word “protection” could have been substituted by “deprivation” to bring out the true effect that it had.

The Opposition parties, and the BJP in particular, shouted against the appeasement of Muslims by disrespecting the verdict of the highest court of the land.

The Shah Bano case has not died down it has haunted India time and again whenever the issue of neutralising a court verdict to pacify a religious group arose. Now Prime Minister Narendra Modi has successfully flattered Rajiv Gandhi to perfection by imitating him and creating his own version of Shah Bano through the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018.

At this stage, it is necessary to go back in history to 1989, when a general election was not too far away and a new politically-targeted law with the title “SC and ST (Prevention of Atrocities) Act” was passed by Parliament. The expression “atrocities” was defined to include as many as 19 activities and many more derivatives all carrying a minimum sentence of imprisonment of six months, extendable up to five years.

The burden was on the accused to prove his innocence.

Anticipatory bail was ruled out and the offence made cognisable the police could arrest the accused on the receipt of information or complaint. This law has several other stringent provisions against the accused; and a member of a Scheduled Caste or Scheduled Tribe could not be an accused under it.

An insult to the national flag or national anthem is of lesser consequence. The defined atrocities include several truly atrocious acts, like forcibly making one eat dirt, as reportedly prevalent in some parts of India, and also included in it is “abusing a member of SC and ST by his caste name” and virtually any other action, like making an adverse report in the annual confidential report by a senior officer against his subordinates, who happen to be members of the protected class. The constitutional validity of this law was upheld by the Supreme Court.

The case of Dr Kashinath Mahajan, decided by the Supreme Court on March 20, 2018, is of immediate relevance. An employee of a government-run pharmacy college in Karad belonging to the SC/ST community, on receiving adverse remarks in his annual confidential report, decided to prosecute the author of the ACR, who was not a SC/ST, and lodged an FIR in January 2006.

The complainant sought sanction to prosecute his boss under Section 197 0f the CrPC from Dr Mahajan, the acting head of the department, who refused sanction. So a criminal complaint was filed against Dr Mahajan too, alleging that by his action refusing sanction he had committed an offence under the Atrocities Act.

Dr Mahajan moved the Bombay High Court to quash the proceedings on the ground, among others, that an act done in his official capacity cannot amount to an offence.

The High Court rejected the petition for quashing of proceedings; but on appeal to the Supreme Court Dr Mahajan finally succeeded.

In the course of the judgment, a two-member bench headed by Justice A.K. Goel directed reading into the law some safety measures like a time-bound review of the complaint by a superior police officer before directing arrest of the accused and allowing anticipatory bail in cases of apparent false complaints. The immediate pleasure of seeing a targeted accused being arrested was thus denied or delayed to a complainant. Justice Goel soon afterwards retired, and the government appointed him chairman of the National Green Tribunal, which post was lying vacant for a few months, and a retired judge of the Supreme Court is eminently qualified to fill it.

Ram Vilas Paswan, a coalition partner of the BJP-led National Democratic Alliance (NDA) and a minister in the Narendra Modi government, and more pertinently a once powerful SC/ST leader, protested against the judgment and also against the new appointment of Justice Goel. Recalling Justice Goel from the Green Tribunal is not easy, and may be for that reason Mr Paswan has kept the issue in reserve for the next time. To the demand to neutralise the ruling, the Narendra Modi government has yielded — the law as amended post-haste has come into force on August 17. This could well be called Mr Modi’s Shah Bano moment! Mr Paswan’s importance in his community has surely received a boost — equally guaranteed is Mr Modi’s slip among the rest of India. The Shah Bano law helped only the Muslim ego, but didn’t harm others. On the other hand, the atrocities law has armed a section of the population to selectively attack the rest with impunity.

The recorded facts noted in Dr Mahajan’s case show that year after year thousands of false complaints are filed under this law, exposing many innocent families to unjustified arrests and inconvenience and thus helping to polarise society even further. Mr Modi’s projected numerical gain due to the surrender to Mr Paswan is bound to be less even if BSP supremo Mayawati is added to the placated lot. The attenuation introduced by the Supreme Court would have helped that law to last with no loss to the SC/ST.

The writer is a senior advocate of the Supreme Court and a former additional solicitor-general of India. He can be reached at

( Source : Deccan Chronicle. )
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