Denial of Bail Summarily under SC/ST Prevention of Atrocities Act, 1989 – Unconstitutional

Below is link for the full case history:
http://supremecourtofindia.nic.in/supremecourt/2017/22086/22086_2017_Judgement_20-Mar-2018.pdf

20^th March 2018 was historic in annals of highest judiciary because Supreme Court Judges  A.K.Goel and U.U.Lalit issued directions to prevent the misuse of provisions of SC/ST (Prevention of Atrocities) Act 1989.

These two learned Supreme Court judges in their recent 89 page judgment of Subhash Kashinath Mahajan case (click the heading to know full details about the case) had ruled as under:

1  The underprivileged need to be protected against any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons.

    The court noted harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution and that the SC must enforce such a guarantee.   

    It is mandatory for the police to conduct a preliminary investigation, not exceeding a week, to arrive at a decision whether an FIR deserves to be registered under the parameters of the Atrocities Act. Even if an FIR is lodged, the accused will not be arrested automatically. 

    Section 18 of the Act does not give an absolute bar against granting anticipatory bail and a person is entitled to get a pre-arrest bail if it can be prima facie shown that allegations are false, fabricated and motivated. 

     Liberty of one citizen cannot be placed at the whim of another. Law has to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law.

The Court further observed as under:

Innocent citizens are termed as accused, which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. 

We have already noted the working of the Act in the last three decades. It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes. It may be noticed that by way of rampant misuse, complaints are largely being filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests.

The Atrocities Act should promote constitutional values of fraternity and integration of the society. This can be achieved only if there are checks on false implications of innocent citizens on caste lines. It is necessary to express concern that working of the Atrocities Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values. Irrespective of caste or religion, the Constitution guarantees equality in its preamble as well as other provisions.

It is being pointed out that in the year 2016, 5347 cases pertaining to SC and 912 pertaining to ST were found to be false and in the year 2015, out of total cases of 15638, 11024 cases resulted in acquittal or discharge, 495 were withdrawn and only 4119 resulted in conviction. (Reference: Annual Report 2016-2017 published by the Department of Social Justice & Empowerment, Ministry of Social Justice and Empowerment, Government of India).

In view of such high incidence of false cases under SC/ST Atrocities Act, a question was also raised in Parliament as to what punishment should be given against such false cases. The reply given was that awarding punishment to members of SCs and STs for false implication would be against the spirit of the Act. A press statement dated 19th March, 2015 was issued by the Central Government to the effect that in case of false cases, relevant Sections of IPC can be invoked. It was submitted that no guideline should be laid down by this Court which may be legislative in nature.

But, the sixth report dated 19^th December 2014 of the Standing Committee of Social Justice and Empowerment (2014-15) on the SC and ST (Prevention of Atrocities) Amendment Bill, 2014 had rejected the stand of the Ministry to the effect that there was no need to provide for action against false or malafide implication under the atrocities act. This was objected to by the committee and had observed that the POA Act, being a special law, should be wholesome to the extent that it must contain an inbuilt provision for securing justice for those too who falsely implicated with mala fide under it. More so, when the law makers have shown such perspicacity in addressing such issues/misgivings when they inserted 18 clause 14 (Punishment for false or malicious complaint and false evidence) in ‘The Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Further, if a person is accused having committed murder, dacoity, rape, etc., he can pray for anticipatory bail under Section-438 of the Cr.P.C. on the ground that he is innocent and has been falsely involved, but if a person alleged to have committed an offence under the Atrocities Act, cannot pray for an anticipatory bail because of the bar of Section-18 of the Act, and he would get arrested. This is the reason for the authorities to guard against any misuse of the Provisions of the Atrocities Act.

In the instant case, Supreme Court Judges were duly assisted by Mr. Amrendra Sharan, learned senior counsel as amicus and he had fully concurred with the views of the judges. 

It is quite relevant to quote Learned amicus: Section 18 of the Atrocities Act, which excludes Section 438 Cr.P.C., violates constitutional mandate under Articles 14 and 21 and is ultra vires the Constitution.

The basic questions in such circumstances therefore are: Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent? 

The very same fundamental question arises in the facts and circumstances of this case also, viz., 'whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?' The answer to this question is undoubtedly and obviously 'No'.

If mere accusations are treated as sufficient, it may unfairly damage the personal and professional reputation of a citizen. There is a need to balance the societal interest and peace on the one hand and the protection of rights of victims of such false allegations on the other.

It is also a fact that former UP Chief Minister Mayawati, under the so-called Harijan Act, had extended generous financial rewards to anybody lodging a complaint against the upper castes under the SC/ST Atrocities Act during her tenure in office and the amount between Rs.10,000 and Rs.15,000 was paid for complaints of minor nature and for major complaints like rape of Dalit women by upper caste members, the reward was around Rs.1 lac.

Such incentives had encouraged not only genuine victims but, there being no safeguard even against a false case being registered only to get the monetary incentive, such false cases were filed without any remedy to the affected person and the dalits lodging complaints got immediate monetary benefits.

The under mentioned learned judges’ observations are to be written in golden:

Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute. Power to declare law carries with it, within the limits of duty, to make law when none exists .

Article 21 affords protection not only against the executive action but also against the legislation which deprives a person of his life and personal liberty unless the law for deprivation is reasonable, just and fair. and it was held that the concept of reasonableness runs like a golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. 

The procedure for depriving a person of his life and personal liberty must be eminently just, reasonable and fair and if challenged before the Court it is for the Court to determine whether such procedure is reasonable, just and fair and if the Court finds that it is not so, the Court will strike down the same.

This Court noted the 3 rd Report of the National Police Commission to the effect that power of arrest was one of the chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arrest could be unjustified only in grave offences to inspire the confidence of the victim, to check the accused from committing further crime and to prevent him from absconding.

The judges observed that there is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court. If a person is able to show that, prima facie, he has not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, we do not see any justification for applying Section 18 in such cases.

Access to justice being a fundamental right, grain has to be separated from the chaff, by an independent mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law.

But, politics rather than justice is going to have an upper hand and in view of SC/ST lobbies, the Modi Government is all set to file a review plea in the court – nullifying the historic judgement – which has given justice to all. While giving protection and strength to the SC/STs, other castes should not be put to suffer by false cases from those SC/STs. 

As the present judgement was fair and neutral and genuine, the present review petition seems to be politically oriented without any justification there for.

Let us wait for the details of the review petition and its outcome and E-Touch prefers to reserve its comments.

Quote of Ambedkar: Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.