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SC, ST Act- A tool to protect the vulnerable or a weapon to wield vengeance?

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted with the laudable purpose of protecting persons hailing from the SC, ST community from any abuse or harassment. But over the years there has been a rampant misuse of the Act for extraneous reasons such as to wreck vengeance, blackmail, settle scores and personal vendetta.

As per data compiled by the National Crime Records Bureau (NCRB) in the year 2016, 5347 cases were found to be false cases out of the investigated SC cases and 912 were found to be false cases out of ST cases. It was pointed out that in the year 2015, out of 15638 cases decided by the courts, 11024 cases resulted in acquittal or discharge, 495 cases were withdrawn and 4119 cases resulted in conviction.

Striking Features of the Act
Section 18 is a stand out and largely mooted provision of this Act as it denies/excludes application of section 438 CrPC (pertaining to anticipatory bail) to persons committing an offence under the provisions of this Act. The constitutional validity of section 18 of the Act was tested on the touch stone of Right to Life and Right to Equality in the case of State of M.P. Vs. Ram Krishna Balothia[1] and Manju Devi Vs. Onkarjit Singh Ahluwalia[2].

The Court however on both the occasions upheld the constitutionality of the said section on the pretext that persons from the SC, ST community are vulnerable, denied number of civil rights, subjected to humiliation and harassment and further that there was increase in commission of atrocities against members of SC and ST. Thus, it was concluded that the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. But the Court in both the cases also held that anticipatory bail shall be granted if no primafacie case is made out.

The Apex Court once again treaded the path of examining the contours of section 18 of the Act in the case of Dr. Subhash Kashinath Mahajan Vs The State of Maharashtra[3]. To appreciate the findings with a proper perspective one needs to understand the intensity of the facts and circumstances on which the case was mounted. In this case the second respondent/complainant was employed as a Store Keeper in the Government College of Pharmacy, Karad.

He was later posted at Government Distance Education Institute, Pune. His superiors Doctor Satish Bhise and Doctor Kishor Burade, made an adverse entry in his annual confidential report as his integrity and character were not good. In retaliation he lodged an FIR with Karad Police Station against the said two officers under the Atrocities Act in the year 2006. Subsequently in the year 2010, the concerned Investigating Officer had applied for sanction to prosecute the two officers under Section 197 Cr.P.C. to the Director of Technical Education who is the appellant in the instant case.

The sanction was refused by the appellant pursuant to which the respondent/complainant lodged another FIR in the year 2016 against the appellant under sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as also Sections 182, 192, 193, 203 and 219 read with 34 of the Indian Penal Code, 1860 (IPC). Therefore, the appellant had approached the Supreme Court seeking to quash the complaint foisted against him as the High Court had earlier refused to grant him the relief he had sought for.

The Court had observed that protection of the innocent is as important as punishing the guilty. Referring to section 18, the Court opined that a refusal of anticipatory bail based on a mere accusation will result in grave damage to personal and professional reputation of an individual.

The Court made a specific distinction with respect to ‘exclusion of anticipatory bail' was meant to protect victims against perpetrators of crime and that the provision cannot be read to be applicable to those who are falsely implicated for extraneous reasons. Therefore the Court ruled that the ‘exclusion' has to be applied to genuine cases and not to false ones.

The Court proceeded to issue a slew of guidelines which are as follows:
  1. Proceedings in the present case are clear abuse of process of court and are quashed.
     
  2. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the Senior Superintendent of Police (S.S.P) which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
     
  3. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar and Dr. N.T. Desai and clarify the judgments of this Court in Balothia and Manju Devi;
     
  4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
     
  5. Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

The Ripple effect
Therefore this judgment made it unequivocally clear that there cannot be automatic arrest for an offence under the SC, ST Act without prior sanctions. These guidelines were perceived to have diluted the provisions of the enactment and shaken the very objective of the mechanism to prevent the offences of atrocities.

This judgment triggered violence and protests across the Nation and the guidelines created a furore amidst the SC, ST community. Voices of dissent started swelling louder, the SC, ST community condemned the opinions expressed in the Judgement and there were violent killings too which prompted the ruling dispensation to file a review.

The Court admitted the review petition but refused to grant stay. The Court further observed that the Judgement only provides for a filter and those who are protesting have not probably read the Judgement in toto and are being misled by some vested interests.

During the pendency of the review petition the Parliament brought about an amendment to the Act by way of section 18-A.

This newly inserted section clearly nullified the essence of the Judgement in Dr. Subhash Kashinath Mahajan Vs The State of Maharashtra and the same was also challenged in Prathvi Raj Chauhan Vs. Union of India & Ors.,[4] and the Court ultimately upheld the validity of the 2018 amendment.

In the mean while one of the Judges in the Bench hearing the review petition retired, hence the matter was referred to a new bench and thereafter was referred to a larger bench comprising of Justices Arun Mishra, MR.Shah and BR.Gavai. The specially constituted larger bench recalled the order passed in the year 2018 by holding that the SC & ST's are still striving hard to strike a balance with the rest of the society hence such stringent protections are essential for preventing further subjugation.

The Court also observed that the Courts should refrain from entering into the domain or spheres exclusively carved out for the legislature. The Bench also held that, ‘what legislature cannot do legitimately, cannot be done by the interpretative process by the courts'.

Need for a Revamp
The Apex Court in review rightly observed that the guideline:
(ii) which requires the prior sanction of the appointing authority to proceed against the public servant is absurd on the ground that when investigation is not complete the authority would have no tangible material on hand to determine whether the individual should be arrested or not. Also an appointing authority will not be in a position to sanction arrest for an offence committed outside the realm of the discharge of his official duty.

As per guideline (iii) which stipulates further Judicial scrutiny for deciding detention was held to be a nullity as guideline (ii) was disapproved. The requirement for a preliminary inquiry to be held by Deputy Superintendent of Police as per guideline (iv) was held to be impermissible as neither the SC, ST Act nor CrPC envisages such a requirement. Therefore the directions were held to be impermissible, impractical and were recalled by a quorum of 3 Judges.

On the other hand there was no finding with respect to the unchecked abuse and misuse of the Act. The Court merely said that other castes misuse the provision of law too and that it cannot be just confined to one particular community. The further observation that the reason for false complaints cannot be attributed to the caste of an individual but has occurred only due to human failing's only reinstates and reinvigorates the larger opinion that misuse and abuse of the Act of 1989 does exist.

There is no doubt that the interest of SC, STs should be protected, but the Judiciary and the Legislature must also be vigilant about circumstances in which protection under the Act is predominantly sought for. The Act definitely needs to provide for a provision to deal with errand people who misuse the social legislation which was purported to protect them.

The Gujarat High Court in Dhiren Prafulbhai Shah Vs. State of Gujarat[5] observed that various complaints are filed immediately after elections, be it Panchayat, Municipal or Corporation, alleging offences under the Atrocities Act. It was found that in most cases F.I.R.s/Complaints were filed only to settle scores with their opponents after defeat in the elections. The Bombay High Court in Sharad Vs. State of Maharashtra[6] opined that a serious relook of the provisions of the Act is needed.

The Court observed that there is rampant misuse of the provisions of Section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, with complaints being largely filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests.

Parting Remarks:
Even in the most abhorrent and heinous crimes such as rape, murder, dacoity, sedition etc., Courts are not barred from granting anticipatory bail. Therefore, preventing the Courts from exercising the power to grant AB under a social legislation such as the SC, ST Act reeks of arbitrariness and irrationality.

Theoretically it is possible to say that an application under Section 438 of the Code may be rejected by the Court because of express restrictions in Section 18, 18A of the Act but the very same Court can grant bail under the provisions of Section 437 of the Code, immediately after the arrest.

There seems to be no logical rationale behind this provision of putting a fetter on grant of anticipatory bail as there is no such prohibition in any way for grant of regular bail. It is, therefore, all the more necessary and important that the express exclusion under Section 18, 18A of the Act is limited to genuine cases and inapplicable in cases where no prima facie case is made out.

One should also not forget the infamous case of Justice CS.Karnan wherein he made scurrilous and contumacious remarks against sitting Judges of the Supreme Court and High Court under the pretext of him being targeted for being a Dalit. He was later prosecuted and was also sentenced under the Contempt of Courts Act, 1971 by the Supreme Court for failing to comply with the orders of the Supreme Court inspite of several opportunities being given to him.

Thus this Act has been used on several occasions both by the powerful and the powerless to shield themselves from adverse actions. There is a widely conceived notion that people tend to trumpet their underprivileged position to their advantage in order to wriggle out from legal consequences and complexities.

It is unfortunate that in such eventualities an innocent person ends up facing the wrath of this enactment for no folly of his. It is of course the bounden duty of the legislature to protect the interest of the downtrodden but in the same breath there has to be effective provisions in place to ensure that misuse or abuse of this Act is curbed. After all according to the golden line that runs through criminal jurisprudence ‘everyman is innocent until proven guilty'.

End-Notes:
  1. (1995) 3 SCC 221
  2. (2017) 13 SCC 439
  3. (2018) 6 SCC 454
  4. 2020 SCC Online SC 159
  5. (2016) SCC Online Guj 2076
  6. (2015) 4 Bom CR(Crl) 545

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