Recent developments in SC/ST anti-atrocities law

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The Supreme Court on October 1st 2019 recalled its previous verdict of March 2018 which had diluted the provisions of arrest under the SC/ST Act, 1989, restoring automatic arrest in such cases.

A three- judge bench of Justices Arun Mishra, MR Shah, and BR Gavai recalled Supreme Court’s previous verdict by a two-judge bench issuing directions regarding SC/ST Act. The Court had held that there will be no automatic arrest on a complaint filed under the SC/ST Act.

Directions regarding arrest process were also issued, in which it was stated that arrest of public servants can only be made after approval of the appointing authority and of a non-public servant after approval by the Senior Superintendent of Police.

Centre had filed a review petition against it stating that the court shouldn’t have ventured to issue directions as it was in the domain of the legislature.

The Court said it would clarify on the two aspects – one related to anticipatory bail for complaint lodged under the Act and the other regarding provision of conducting preliminary enquiry by the police before making any arrest under the law.

It observed that there cannot be an absolute bar on either grant of anticipatory bail or holding of preliminary enquiry under the Act.

  • Issue regarding Anticipatory Bail:

The previous judgment removed bar on granting anticipatory bail to accused and added a provision under which arrest of public servants can only be made after approval of the appointing authority and of a non-public servant after the approval of the SSP.

However, in latest judgment, the Supreme Court’s larger bench recalled the previous verdict and said that the directions in the older verdict may delay the investigation of cases under the Act.

  • Issue regarding FIR and Preliminary Enquiry:

In the previous judgment, it was directed that the police should conduct a preliminary enquiry in order to ensure that the complaint is not frivolous.

In the recent judgment with regard to the direction of a preliminary enquiry before registering the FIR, the Court said that in case a cognizable offence is made out, the FIR has to be out rightly registered, and no preliminary enquiry has to be conducted.

The March 2018 judgment by SC “diluting” the act

In March 2018, the Supreme Court, in the case Subhash Kashinath Mahajan v State of Maharashtra, had diluted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 and banned immediate arrest of a person accused of insulting or injuring a SC/ST member to protect innocents from arbitrary arrest.

In this judgment, Justices A.K. Goel and U.U. Lalit had issued directions to grant anticipatory bail to accused persons and directed that the police should conduct a preliminary enquiry to find out if prima facie, a case can be made under the law and to ensure that the complaint lodged under the Act is not frivolous or motivated.

Following this verdict, thousands of Dalits had taken to the streets in over a dozen cities to protest against the Supreme Court ruling, stating that Dalits were living in a threatening condition and the verdict would increase the crimes against them.

Several died in the protests and crores worth of property was destroyed. Following which the Center proposed a bill to amend SC/ST Act to counter the judgment, the bill was passed by the parliament. By this Amendment, a new Section 18A was inserted which restored the bar on anticipatory bail and nullified the requirement of preliminary enquiry.

Concept of anticipatory bail in brief

Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’ which implies that an individual can make a request to get bail in anticipation of being named or accused of having committed a non-bailable offence.

Considering the nature of crimes against Dalits and their condition, Parliament had laid down in Section 18 of the Act 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.

Reasoning behind the 2018 judgment

A number of frivolous and fraudulent cases under the Act have been reported from different parts of the country. Justice Goel also reasoned that the law was being misused.

Justices Goel and Lalit also stated that SC/ST Act has become an instrument of ‘blackmailing’ of citizens and public servants. The Supreme Court held that some safeguards against such 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” of political and personal reasons.

Reasoning behind recent judgment revoking the 2018 judgment

In the recent judgment of SC on the Center’s review petition, the Supreme Court stated that the reason behind the lodging of false criminal complaints is human failing and not caste.

The Supreme Court condemned its earlier judgment stating that it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.” Justice Mishra, who wrote the verdict, observed that Caste of a person cannot be a cause for lodging a false report.

Members of the Scheduled Castes and Scheduled Tribes, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment stated.

A three-judge bench also contended that the struggles of SC/ST communities are still not over in the country as they continue to face untouchability, abuse and are still treated as outcasts.

Conclusion: Way forward

It is necessary that people are made aware and educated about such issues including both, discrimination against SC/ST and fraudulent complaints made against people.

The SC bench also said, “We are compelled to observe that SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country.” Therefore, it is necessary to balance the rights of SC/ST and people who are fraudulently accused along with reforms in criminal justice system.

-This article is brought to you in collaboration with Shambhavi Tripathi from Panjab University, Chandigarh.

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