Protest in Jaipur in April 2018, following the SC’s March directions. (Express photo by Rohit Jain Paras) Protest in Jaipur in April 2018, following the SC’s March directions. (Express photo by Rohit Jain Paras)

On Tuesday, the Supreme Court recalled its directions in a March 20, 2018 verdict that had effectively diluted provisions of arrest under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. This was following a plea by the Centre seeking a review of that judgment.

What is review of a judgment?

‘Review’ of a Supreme Court judgment is done by the same Bench. ‘Overruling’ means that the law laid down in one case is overruled in another case. When a higher court on appeal alters the judgment of a lower court, it is called ‘reversal.’

Generally, a review is heard in the judge’s chamber, but may be heard in open court in important cases — as in the Sabarimala and Rafale cases, in which no order has been pronounced yet. In the SC/ST case, a Bench of Justice Adarsh Goel and Justice U U Lalit had admitted a review of the March 20, 2018 judgment in Subhash Kashinath Mahajan vs State of Maharashtra. After Justice Goel retired, a new Bench was constituted that eventually referred the matter to a three-judge Bench headed by Justice Arun Mishra (who authored the 51-page review judgment on Tuesday) and included Justice M R Shah and Justice B R Gavai.

Why was the SC/ST Act enacted?

Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi government enacted the Act in 1989 in furtherance of the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15) in the Constitution. In accepting the review, Justice Mishra relied on the Statement of Objects & Reasons of the Bill that stated that “despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property”.

What was the Subhash Kashinath Mahajan case about?

Mahajan was Director of Technical Education in Maharashtra. Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers. The denial was challenged on the ground that the state government and not the director was the competent authority. The Supreme Court held that safeguards against blackmail are necessary as “by way of rampant misuse, complaints are largely being filed against public servant/ judicial officer/ quasi- judicial officer with oblique motive for the satisfaction of vested interests”.

In what manner had the 2018 judgment diluted provisions for arrest?

ANTICIPATORY BAIL: Keeping in view the special nature of crimes against Dalits in Section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the Criminal Procedure Code of 1973 will not be available to an accused under the Act. The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973. It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail. A few state amendments to Section 438 exclude anticipatory bail. In the March 20, 2018 judgment, the Supreme Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act. On Tuesday, the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

FIR: Justice Goel had observed that “liberty of one cannot be sacrificed to protect another”, and added that the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”. He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP. An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.

In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts. He rejected the need of an SSP’s approval for arrest.

Section 4 of the SC/ST Act casts a specific duty on public servants to record an FIR as per information given. Non-registration of FIR is punishable. Section 22 protects public servants for actions taken in ‘good faith’, for which no legal proceedings can be initiated against them.

PERMISSION: In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority. The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district. On Tuesday, Justice Mishra said the decision on arrest is to be taken by the investigating authority, not the appointing authority.

Were other provisions diluted?

Justice Goel had observed that “interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require ‘check on false implication of innocent citizens on caste lines’.” Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred. The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

How frequently do SCs/STs face atrocities?

A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average. Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs. Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

On Tuesday, Justice Mishra quoted the Subramanian Swamy judgment (2014) in which the court had held that where statutory provisions are unambiguous, the court cannot read these down. The court accepted that Dalits have suffered for long and negated the basis of last year’s judgment in which the court had commented on false cases under the Act.

Were similar guidelines not issued by the SC in other cases?

The Supreme Court can lay down guidelines only in cases of legislative gaps. For instance, it laid down guidelines on sexual harassment, khap panchayats, lynching etc. But where the field is occupied by parliamentary legislation, the judiciary is bound by the text of law. It can, however, examine constitutionality of such a law. The review order observed that the March 2018 guidelines encroached upon the field reserved for Parliament, and therefore recalled these directions.

Faizan Mustafa is a well-known expert in constitutional law

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