By: Shreya Kohli
Citation: AIR 2018 SC 1498
The present case is one of the Landmark cases of this century and deals with the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘The Atrocities Act’). The case talks about how the law which was made to protect SC’s and ST’s from any sort of Caste Discrimination is misused by filing some frivolous complaints and by taking advantage of the loopholes in the statutes. The Apex court issued various directions regarding some of the provisions of the Act invoking its extraordinary Powers under Article 142 of the Constitution.[i] But whether the court was authorised to issue such directions? Were they constitutionally valid? Were they practical? Let us try to find out the answers to the above-mentioned questions.
FACTS OF THE CASE
The appellant in the present case was a Director of Technical Education in the State of Maharashtra. The original Complainant was an employee of the department and is a Scheduled Caste. His Non-SC seniors, namely Dr. Satish Bhise and Dr. Kishor Burade made derogatory remarks and some adverse entries in his annual confidential report claiming that he is not a man of good character. The complainant then lodged an FIR with Karad Police Station against the said two officers under the Atrocities Act on 4th January 2006. The concerned Investigating Officer applied for sanction under Section 197 Cr.P.C. against them to the Director of Technical Education on 21st December 2010. The sanction was refused by the appellant on 20th January 2011. The complainant then lodged the present FIR against the appellant stating that the Director of Technical Education was not competent to grant/refuse sanction as the above two persons are Class-I officers and only the State Government could grant sanction. The appellant filed an application in the High Court regarding the quashing of this FIR, but the same was rejected.
The court in the present case has primarily dealt with the two main issues:
- Whether any unilateral allegation of mala fide intention can be ground to prosecute officers who dealt with the matter in an official capacity and if such an allegation is falsely made, then what is the protection/remedy available against such abuse? The court further said that if the allegation is to be acted upon, the proceedings can result in arrest or prosecution of the person and have serious consequences on his right to liberty even on a false complaint which may not be intended by law meant for the protection of a bona fide victim.
- Whether this will be just and fair procedure under Article 21of the Constitution of India or there can be procedural safeguards so that provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not abused for superfluous considerations.
The court in the present case acknowledged that some of the provisions of the Atrocities Act like the non-applicability of Section 438 of Cr.P.C[ii] (Section 18 of The SC/ST Act) and the strict provision of arrest on the filing of an FIR is a clear abuse of the law and is an infringement to the personal life and liberty of a person and therefore must be set aside. After analysing the arguments from both the sides, the Apex Court issued the following guidelines/directions concerning the arrest of Public Servants in case of prosecution under the Atrocities Act:
- It was held that there is no bar against the grant of Anticipatory Bail in the cases related to the SC/ST Act if no prima facie case is made out or the complaint is found to be mala-fide.
- Justice Goel believed that “liberty of one cannot be sacrificed to protect another”, and added that the “Atrocities Act cannot be converted into a charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”. On the same belief, the Court held that in case of arrest of a public servant under the Atrocities Act, there is a mandatory requirement of approval of the appointing authority, and in case of a non-public servant, the approval of an SSP (Superintendent of Police) is required. The reasons for granting such approval must be recorded in writing by the granting authorities.
- Such recorded reasons must be scrutinized by the Magistrate for permitting further detention
- A preliminary inquiry must be carried out before the registration of FIRs under the Act by D.S.P. level officers of police to ascertain whether the allegations are frivolous or motivated
Invoking its extraordinary powers under Article 142 of the Constitution of India[iii], the Court in the present case has highlighted how procedural safeguards must not lead to an infringement of the rights, personal life, and liberty of a person and as a Guardian/ Protector of Fundamental Rights of citizens, have issued the above-mentioned guidelines to protect an individual’s liberty. However, the question that needs be an address here is, whether the court has the power to issue such directions?
The answer is NO. The court can only lay down guidelines in the case where there is an absence of a provision/ a vacuum of legislative statutes is there. For example, as in the case of Vishakha v State of Uttar Rajasthan[iv], due to the non-existence of provision/s related to the issue involved, the court had to invoke its extraordinary power and had to issue guidelines relating to Sexual Harassment at Workplace for women. However, the present case is not one of such cases. Despite the presence of Parliamentary legislation, the Judiciary has overreached its extraordinary powers in the present case. In the case of Supreme Court Bar Association v Union of India[v], held that the powers conferred under Article 142 of the Constitution can only be used to do ‘complete justice’ and must supplement the existing law rather than supplanting it. Hence, the present case is an example of encroachment by the Judiciary upon the field reserved for the Parliament and dilution of the basic principle of Separation of Power.
In the current case, it can also be said that to secure equality among all, the court mistakenly perpetuated inequality among SC’s/ST’s and non-SC’s/ST’s. Newly drafted guidelines relating to the arrest and pre-arrest bail further made the whole process burdensome and placed new fetters on registering FIR’s and making an arrest under the Atrocities Act. In addition to that, by issuing the guideline relating to the need for a preliminary inquiry before registration of an FIR, the court has portrayed a presumption of false reporting/ misuse of the law by the members of the SC/ST community. There may be certain cases that may be false and can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a case, Section 482 of Cr.P.C is already present as a safeguard. Hence, it was an absolute needless direction in the current case.
AMENDMENTS IN THE SC/ST ACT POST THE 2018 JUDGMENT
In August 2018, after the aforesaid judgment, a new section was added in the Act by the SC and ST (Prevention of Atrocities) Amendment Act, 2018. Section 18A was inserted to overrule the Kashinath Judgment, which states;
- (a) that there is no requirement of a preliminary inquiry for registration of a First Information Report against any person; or
(b) there is no requirement of approval for the arrest to the investigating officer, if necessary, of any person,
against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
- The provisions of Section 438 of the Code of Criminal Procedure shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.
In February 2020, the constitutional validity of the newly added provisions was challenged before the Apex Court in the case of Prathvi Raj Chauhan v Union of India & Ors. (supra). The court held the provision to be valid and within the constitutional boundaries.
- Constitutional Law of India by H.M. Seervai
- https://indianexpress.com/article/explained/supreme-court-sc-st-judgment-in-review-6046051/- by Faizan Mustafa
[i] Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
[ii] Direction for grant of bail to person apprehending arrest
[iv] (1997) 6 SCC 241, AIR 1997 SC. 3011
[v] ANR  INSC 225