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SPECIAL ARTICLE

Misuse of the Prevention of Atrocities Act


Scrutinising the Mahajan Judgment, 2018

Nitish Nawsagaray

I
The Supreme Court in Subhash Kashinath Mahajan v n a recent judgment of the Supreme Court in Subhash
State of Maharashtra (2018) has toned down the Kashinath Mahajan v State of Maharashtra and Another
(2018) (henceforth Mahajan case), Section 18 of the Sched-
effectiveness of the Scheduled Castes and the
uled Castes (SCs) and the Scheduled Tribes (STs) (Prevention
Scheduled Tribes (Prevention of Atrocities) Act, 1989 of Atrocities) Act, 1989 (PoA Act) has been toned down. Along-
based on incorrect facts and faulty logic. The Court has side, the police has been prohibited from registering a first in-
made the filing of first information reports and arrest of formation report (FIR) without preliminary inquiry and mak-
ing an arrest sans the written permission of the appointing
the accused impossible in cases of caste atrocities while
authority if the accused is a public servant, and senior superin-
simultaneously providing no remedy to members of the tendent of police (SSP) in the case of non-public servants. The
SCs/STs against caste discrimination and violence. judgment is loaded with prejudice and incorrect interpretation
The Supreme Court judgment may unwittingly turn out of facts. This paper scrutinises the judgment in the Mahajan
case and seeks to analyse the reasons and justifications given
to be a licence for upper-caste culprits to violate the
by the Court to tone down the PoA Act.
law with impunity.
The PoA Act Perpetuates Casteism?
The Court, in its verdict, started with a serious concern,
it is necessary to express concern that (the) working of the PoA Act should
not result in perpetuating casteism which can have an adverse impact on
integration of the society and the constitutional values. (Subhash Kashi-
nath Mahajan v State of Maharashtra and Another 2018: para 42)

To support its argument, the Court relied upon the famous


speech of B R Ambedkar in the Constituent Assembly on
25 November 1949 wherein he had said that castes are anti-
national because they bring about separation in social life,
and generate jealousy and antipathy between castes. It is to
be noted that the context in which Ambedkar made this
statement is different from the issue at hand. Ambedkar,
all through his life, argued that “castes are anti-national”
and thus, need to be annihilated. In his seminal essay “Castes
in India: Their Mechanism, Genesis and Development” in
1916, Ambedkar propounded that “caste in the singular num-
ber is an unreality. Castes exist only in the plural number.
There is no such thing as a caste: there are always castes”
(emphasis added). Thus, he essentially advocated a pro-
gramme for the annihilation of the totality of castes, that is,
the entire caste system.
Caste is also not only notional, but is a fundamental social
reality. Violence against the SCs and the STs is but a brutal mani-
festation of this reality. The challenge before an egalitarian
constitution is to eradicate the graded inequality of the caste-
ridden social order, and establish equality and fraternity. In the
same speech on 25 November 1949, Ambedkar cautioned the
Nitish Nawsagaray (nitish.nawsagaray@ilslaw.in) teaches at the Indian Constituent Assembly of the social and economic inequality
Law Society’s Law College, Pune.
prevailing in Indian society, and demanded the immediate
36 JUNE 2, 2018 vol lIiI no 22 EPW Economic & Political Weekly
SPECIAL ARTICLE

eradication of the same. The learned judges, however, seemed whether the Court began with a prejudiced perception of the
to have missed this warning altogether. functioning of the PoA Act in the first place.
The PoA Act was implemented as a furtherance of the dic-
tates of Articles 14, 17 and 21 of the Constitution. During the Examining Claim of Misuse
19th and 20th centuries, social transformation was brought The Court in the Mahajan case mentioned that
about by the sweep of law. Criminal law sought to curb devi-
It has been judicially acknowledged that there are instances of abuse
ance through deterrence. Thus, the fear of criminal law is used of the Act by vested interests against political opponents in Panchayat,
effectively to ensure change in social attitudes. Article 17 of Municipal or other elections, to settle private civil disputes arising
the Constitution abolished untouchability and made its prac- out of property, monetary disputes, employment disputes and senior-
tice illegal. Parliament enacted the Untouchability (Offences) ity disputes. It may be noticed that by way of rampant misuse with
oblique motive for satisfaction of vested interests. (Subhash Kashinath
Act in 1955 to punish the practice of untouchability. Later on,
Mahajan v State of Maharashtra and Another 2018: para 66)
this was amended to the Protection of Civil Rights Act, 1976
and then to the PoA Act, 1989. The statement of object of the The Court relied upon two high court decisions in Dhiren
PoA Act states that the inadequacy of pre-existing legislations Prafulbhai Shah v State of Gujarat (2016), and Sharad v State of
in protecting the life and property of the SCs and STs paved the Maharashtra (2015) to substantiate the “judicial acknowledge-
way for the latest law. ment” of instances of abuse of the PoA Act.
A demand for justice by the SCs and STs is not an assertion of Thereafter, the lawyer for the intervenor in the Mahajan
caste, neither is it tantamount to the practice of casteism. case relied upon a few more high court judgments to reflect on
Rather, it is a claim for equality made by the most underprivi- the judicial acknowledgement of abuse of the PoA Act. She sub-
leged strata of society. A claim against caste humiliation and mitted that the act is prone to misuse on account of monetary
caste violence is not an act of perpetuating casteism. incentives being offered for merely lodging a case under Rule
The learned judges also quoted the judgment of Indra Sawhney 12(4). She further relied upon the National Crime Records Bu-
v Union of India (1992). The judgment referred to Article 16(2) reau (NCRB) data of 2016, citing that a total of 5,347 and 912
of the Constitution which prohibits discrimination on the cases were found to be false out of the investigated cases
basis of caste and states that “the progress of India has been involving SC and ST complainants, respectively. In 2015, out of
from casteism to egalitarianism—from feudalism to freedom” the 15,638 cases decided, 495 cases (3.16%) were withdrawn
(Sawhney 1992: 339). whereas 4,119 cases (26.34%) resulted in conviction.
The Supreme Court further observed in the Indra Sawhney On the other hand, senior council C U Singh appearing on
case that, behalf of another intervention application against the appel-
The caste system which has been put in the grave by the framers of lant, submitted that where the law is clear, no guidelines
the Constitution is trying to raise its ugly head in various forms. Caste should be issued by the Court. He further mentioned that the
poses a serious threat to the secularism and as a consequence to the in- statement of object and reasons from the Scheduled Castes
tegrity of the country. (Indra Sawhney v Union of India 1992: para 340)
and Scheduled Tribes (Prevention of Atrocities) Amendment
These two observations of the constitutional bench are Bill, 2013, where it was stated that there are procedural hurdles
quoted in the Mahajan judgment without any accompanying such as non-registration of cases, procedural delays in investi-
comment. However, these observations in no way establish gation, arrests and filing of charge sheets, delays in trials and
that the working of the PoA Act results in perpetuating low conviction rates on account of which, the deterrent provi-
casteism. sions notwithstanding, atrocities against SCs/STs have contin-
The Court in the Mahajan case further quoted the report ued unabated, necessitating the amendments passed in 2016.
of the National Commission to Review the Working of the The Court selectively relied upon the NCRB statistics cited by
Constitution (2002) and stated that one of the failures in the the intervenor, completely ignoring the counterarguments
working of the Constitution was that direct elections contin- made by Singh. The Court failed to recognise the increase in
ued to be fought on caste lines. But, this quote too does not atrocities against SCs and STs in 2016. The number of cases
support the proposition that the implementation of the PoA Act registered under the PoA Act in 2016 for atrocities against the
results in perpetuating casteism. Yet, the Court jumps to the SCs was 40,801 (as compared to 38,670 in 2015) and 6,568
conclusion that cases of atrocities against STs (as compared to 6,276 cases in
the interpretation of the Atrocities Act should promote constitutional 2015). This implies an increase in reported crimes of 5.5% for
values of fraternity and integration of society. This may require a check SCs and 4.7% for STs in a period of a year.
on the false implication of innocent citizens on caste lines. (Subhash In 2016, the courts conducted trials in 1,44,979 cases of
Kashinath Mahajan v State of Maharashtra and Another 2018: para 47)
atrocities against SCs and 23,408 cases against STs. A majority
There is no logical connection between the authorities cited of the cases were pending from the previous year. In cases of
by the Court and the conclusion at which it has arrived: the need offence against SCs, trials have been completed in only 14,615
“to check the false implication of innocent citizens along caste cases. Of these, the courts convicted the accused in 3,753 cas-
lines.” Thus, it is pertinent to examine the data and authorities es, resulting in a conviction rate of 25.7 in 2016. Similarly, of
relied upon by the Court to arrive at the conclusion that the the 23,408 cases of atrocities against STs, only 2,895 trials were
PoA Act has been misused. If not, it needs to be scrutinised completed with a conviction rate of 20.8%. In comparison, the
Economic & Political Weekly EPW JUNE 2, 2018 vol lIiI no 22 37
SPECIAL ARTICLE

conviction rate for all crimes under the Indian Penal Code A petition was filed by the National Campaign on Dalit Human
(IPC) in 2016 was 46.8%. Rights (NCDHR) seeking direction from the Court for the gov-
It must also be noted that the police investigated cases pend- ernment with regards non-implementation of the PoA Act. The
ing from previous years and filed charge sheets in 78% of the Supreme Court has observed that,
cases of atrocities against SCs and 81% of the cases relating to We have carefully examined the material on record and we are of the
STs. Analysing the same NCRB data, at the end of 2016, 89.6% of opinion that there has been a failure on the part of the authorities
cases for SCs and 87.1% of cases for STs remained pending for concerned in complying with the provisions of the Act and the Rules.
trial. The apex court, instead of recognising the low conviction The laudable object with which the Act had been made is defeated
by the indifferent attitude of the authorities ... The abundant material on
rate under the act, made its observation on the basis of a small
record proves that the authorities concerned are guilty of not enforc-
number of cases, 5,347 for SCs and 912 for STs, which were ing the provisions of the Act. The travails of the members of the Sched-
found to be false after the investigation. The Court overlooked uled Castes and the Scheduled Tribes continue unabated. We are satis-
the need to investigate the increase in atrocities and the inci- fied that the Central Government and State Governments should be
dence of low conviction rates in cases of violence against SCs directed to strictly enforce the provisions of the Act and we do so. The
National Commissions are also directed to discharge their duties to
and STs. The low conviction rate is a reflection on how cases
protect the Scheduled Castes and Scheduled Tribes.
are registered and pursued in the PoA Act.
The Court, hearing an appeal against the Bombay High In the NCDHR case, the Court was of the view that the PoA
Court judgment, ignored the fact that in 2017, the Maharashtra Act is not implemented in letter and spirit, a far cry from the
police had informed the government that there was no sub- assertion of misuse in the Mahajan case.
stance to claim the widespread misuse of the PoA Act (Rajput
2017). The judgment also does not look into the reasons of Grant of Anticipatory Bail
acquittal of the accused under the act. Despite the constitu- The Mahajan judgment makes it mandatory for the judge/
tional guarantee of equality before law to all persons in India, magistrate to grant anticipatory bail in cases registered under
the reality for SCs and STs who suffer atrocities is often that the PoA Act. However, Section 18 of the same act1 expressly
of delayed or denied justice. They face hurdles at every stage exempts the operation of Section 438 of the Code of Criminal
in the criminal justice system—from the registration of cases, Procedure (CrPC) that allows for anticipatory bail. In the State
to investigation, charge sheet and during court trials too. of Madhya Pradesh v Ram Krishna Balothia (1995) case, the
Tremendous pressure is placed on the victims to not lodge Supreme Court held that Section 18 of the PoA Act does not vio-
complaints against atrocities. late Articles 14 and 21 of the Constitution. It further observed
Quite often, police officials refuse to register the initial com- that the exclusion of Section 438 of the CrPC from the PoA Act
plaint or the FIR or invoke provisions of the PoA Act in the FIR. had to be viewed in the context of the prevailing social condi-
Moreover, counter-cases and false cases are filed by perpetra- tions, and the resultant apprehension that perpetrators of such
tors in collusion with police officials. Further, the police do not atrocities are likely to threaten and intimidate victims and pre-
arrest the accused immediately, investigate cases in time, in- vent or obstruct the prosecution of offenders, if they are granted
terview or cross-examine all the victims/witnesses during in- anticipatory bail. Clarifying the Balothia judgment, the Supreme
vestigation, and fail to provide adequate protection to victims Court in the Mahajan case observed that
and their families during and after the investigation. It is also Ram Krishna Balothia may need to be revisited in view of judgments
seen that the time taken to complete police investigation in the of this court, particularly Maneka Gandhi (Maneka Gandhi v Union of
counter-cases is much faster than in the PoA cases. India, 1978), we consider it unnecessary to refer the matter to the larger
At the time of filing the charge sheet, often statements/testi- Bench as the judgment can be clarified in the light of law laid down by
this Court. Exclusion of anticipatory bail has been justified only to pro-
monies of victims and witnesses are not corroborated with the
tect victims of perpetrators of crime. It cannot be read as being appli-
contents of the charge sheet. Sometimes, vital information is cable to those who are falsely implicated for extraneous reasons and
deliberately left out of the charge sheet in order to weaken the have not committed the offence on prima face independent scrutiny.
case and favour the accused. In addition, the issues of non- (Subhash Kashinath Mahajan v State of Maharashtra and Another
establishment of or fast-tracking of cases through special 2018: para 51)
courts, non-appointment or poor capacity of special public In spite of the express provision of Section 18 prohibiting
prosecutors, delays in trials due to the accused, victims, and/or anticipatory bail in the PoA Act, the Court in Mahajan has gone
witnesses not appearing in court, victims and witnesses turn- ahead and unravelled the same. To support its argument the
ing hostile due to fear or threats, arguments taking a substan- Court cited provisions of the Terrorist and Disruptive Activities
tive length of time, courts being overburdened with cases, (Prevention) Act, 1985 (TADA Act); Unlawful Activities (Pre-
lengthy investigations, etc, all contribute to the deprivation of vention) Act, 1967; Maharashtra Control of Organised Crime
justice. Finally, there are hardly any cases where public serv- Act (MCOCA), 1999, and Narcotic Drugs and Psychotropic Sub-
ants have been convicted under Section 4 of the PoA Act for stances Act, 1985. Under the TADA Act, Section 17(4) prohibits
wilful neglect of duty. the application of Section 438 of the CrPC. The subsequent pro-
The Court also failed to take judicial acknowledgement of a vision Section 17(5) puts restriction on a person accused of an
Supreme Court judgment by a larger bench in the National offence punishable under the TADA Act from being released on
Campaign on Dalit Human Rights v Union of India (2017). bail and one of the conditions was:
38 JUNE 2, 2018 vol lIiI no 22 EPW Economic & Political Weekly
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Where the public prosecutor opposes the application of grant of bail, the The Court cited Vilas Pandurang Pawar v State of Maharashtra
court had to be satisfied that there were reasonable grounds for believ- (2012) and Shakuntla Devi v Baljinder Singh (2014) to argue
ing that the accused was not guilty of such offence and that he was not
that there is no absolute bar to grant anticipatory bail if no
likely to commit any such offence while on bail. (Subhash Kashinath
Mahajan v State of Maharashtra and Another 2018: para 52) prima facie case is made out, inspite of the validity of Section
18 of the PoA Act being upheld. In the Pawar case, it was held
The Court further observed that in special legislations like by the Supreme Court that,
TADA Act, MCOCA and others, the impact of release of persons The scope of Section 18 of the SC/ST Act read with Section 438 of the
on bail was considered by the legislature not only at the stage Code is such that it creates a specific bar in the grant of anticipatory
of grant of anticipatory bail, but even post-arrest at the stage of bail. When an offence is registered against a person under the provi-
sions of the SC/ST Act, no Court shall entertain application for antici-
grant of regular bail. Thus, the Court in the Mahajan case tried
patory bail, unless it prima facie finds that such an offence is not made
to identify an ambiguity vis-à-vis anticipatory and regular bail out. Moreover, while considering the application for bail, scope for
in the PoA Act to allow for the provision of anticipatory bail. appreciation of evidence and other material on record is limited. Court
The judgment reads, is not expected to indulge in critical analysis of the evidence on record.
When a provision has been enacted in the Special Act to protect the per-
[t]he restriction in Section 18 is only at the stage of consideration of
sons who belong to the Scheduled Castes and the Scheduled Tribes
matter for anticipatory bail and no such restriction is available while
and a bar has been imposed in granting bail under Section 438 of the Code,
the matter is to be considered for grant of regular bail. Theoretically,
the provision in the Special Act cannot be easily brushed aside by elabo-
it is possible to say that an application under Section 438 of the Code
rate discussion on the evidence. (Vilas Pandurang Pawar v State of
may be rejected by the Court because of express restrictions in Section
Maharashtra 2012: para 10; emphasis added)
18 of the Act but the very same court can grant bail under the provi-
sions of Section 437 of the Code, immediately after the arrest. There In the Shakuntla Devi case, the Supreme Court upholds the
seems to be no logical rationale behind this situation of putting a fetter Pawar judgment:
on grant of anticipatory bail whereas there is no such prohibition in
any way for grant of regular bail. It is, therefore, all the more neces- We find that Section 18 of the Scheduled Castes and Scheduled Tribes
sary and important that the express exclusion under Section 18 of the (Prevention of Atrocities) Act, 1984 provides that nothing in Section
Act is limited to genuine cases and inapplicable where no prima facie 438 of the Criminal Procedure Code shall apply in relation to any case
case is made out. (Subhash Kashinath Mahajan v State of Maharashtra involving the arrest of any person on an accusation of having commit-
and Another 2018: para 52) ted an offence under this Act. This Court has also held in Vilas Pan-
durang Pawar & Anr v State of Maharashtra & Ors, that Section 18 of
However, going by this logic, if regular bail provisions are the Act creates a specific bar to the grant of anticipatory bail to a per-
made more stringent, the provision for denial of anticipatory son against whom any offence is registered under the provisions of the
bail in the statute is justified. This seems a bizarre logic. The aforesaid Act and, therefore no Court shall entertain an application
reason for denial of anticipatory bail in atrocity cases is justi- for anticipatory bail unless it, prima facie, finds that an offence under
the Act is not made out. (Shakuntla Devi v Baljinder Singh 2014: para 4)
fied because the legislation stands on a different footing as
compared to other criminal laws. The Supreme Court in the The emphasis in the Shakuntla Devi case is on the point that a
Balothia case while upholding the constitutional validity of court shall not entertain an application for anticipatory bail
Section 18 of the PoA Act justified the rejection of anticipatory unless it prima facie finds that an offence under the act is not
bail in atrocity cases, observing made out. In this case, anticipatory bail was granted by the high
It was submitted before us that while Section 438 is available for graver court, but no valid reasons were given by the court to justify
offences under the Penal Code, it is not available for even “minor of- the grant of anticipatory bail. Thus, the Court decided that
fences” under the said Act. This grievance also cannot be justified. The
offences which are enumerated under Section 3 are offences which, The High Court has not given any finding in the impugned order
to say the least, denigrate members of Scheduled Castes and Sched- that an offence under the aforesaid Act is not made out against the
uled Tribes in the eyes of society, and prevent them from leading a respondent and has granted anticipatory bail, which is contrary to
life of dignity and self-respect. Such offences are committed to hu- the provisions of Section 18 of the aforesaid Act as well as the afore-
miliate and subjugate members of Scheduled Castes and Scheduled said decision of this Court in Vilas Panduranga Pawar & Anr Case.
Tribes with a view to keeping them in a state of servitude. These of- (Shakuntla Devi v Baljinder Singh 2014: para 5)
fences constitute a separate class and cannot be compared with of-
fences under the Penal Code. (State of Madhya Pradesh v Ram Krishna In Manju Devi v Onkarjit Singh Ahluwalia (2017: para 15), the
Balothia 1995: para 10) Supreme Court observed that
Another point to be taken into consideration is that the Though the Constitution of India abolishes “untouchability” but in
amendments to the PoA Act came into force in 2016. Section view of the social attitudes which lead to the commission of such
15(A) was added to the act, providing that a victim shall have offences against Scheduled Castes and Scheduled Tribes, there is
justification for an apprehension that if the benefit of anticipatory bail
the right to be heard in respect of bail, discharge, release,
is made available to the persons who are alleged to have committed
parole, conviction, and sentence to the accused, and many such offences, there is every likelihood of their misusing their liberty
other provisions. Thus, it could be said that the amended legis- while on anticipatory bail to terrorize their victims and to prevent a
lation provided a double check on regular bail to the accused proper investigation. It is in this context that Section 18 has been in-
by allowing victims the right to be heard before granting bail corporated in the SC/ST Act. The offences which are enumerated un-
der Section 3 of the SC/ST Act are offences which, to say the least,
to the accused. However, going by the logic of the Court in the
denigrate members of Scheduled Castes and Scheduled Tribes in the
Mahajan case, because Section 15(A) of the PoA Act makes eyes of society and prevent them from leading a life of dignity and self-
grant of regular bail difficult, the denial of anticipatory bail respect. Such offences are committed to humiliate and subjugate mem-
under Section 18 is not justified. bers of Scheduled Castes and Scheduled Tribes with a view to keeping

Economic & Political Weekly EPW JUNE 2, 2018 vol lIiI no 22 39


SPECIAL ARTICLE
them in a state of servitude. These offences constitute a separate class provision means a construction which fulfils the legislative
and cannot be compared with offences under the Penal Code. purpose of the act. While constructing the provisions of the act,
The Court further held that, its natural, plain and grammatical meaning is to be looked
for. In constructing a provision, first the ordinary meaning of
In view of the above discussion and in the light of the specific aver-
ments in the complaint made by the complainant, we are of the con-
the words of the statute must be examined. If the plain and
sidered opinion that Section 18 of the SC/ST Act creates a bar for invok- grammatical meaning leads to two or more constructions,
ing Section 438 of the Code and the High Court has committed grave that is, if it leads to ambiguity, only then does the question of
error in granting anticipatory bail to the Respondents. Accordingly, purpose of statute come into play. Even so, purposive con-
the order dated 03.12.2014, passed by the High Court, is set aside.
struction should be within limits, and not be extended to such
(para 21)
a level that it crosses the line between construction and legis-
The Supreme Court, relying on the Pawar case, did clearly lation. The Court in the Mahajan case interpreted Section 18
rule out that Section 18 creates a bar for invoking Section 438 purposively despite any scope of ambiguity therein. There
of the CrPC. The reason for creating such a bar is also discussed was no mischief to be remedied. The purpose read by the
by the Court. Considering the special case of SCs and STs vis-à- Court in the Mahajan case is foreign to the purpose, aims and
vis the upper castes in the Indian social order, the Court ob- objectives of the PoA Act.
served that if anticipatory bail is granted then the accused can
misuse his liberty to terrorise the victims and prevent proper Arrest and False Implication
investigation. The Court issued directions on the filing of FIRs under the PoA
However, the Court in Mahajan has decided that, Act and on procedures of making arrests in cases of atrocities
It is thus patent that in cases under the Atrocities Act, exclusion of against SCs and STs. Before the Court could decide the issue, it
right of anticipatory bail is applicable only if the case is shown to be commenced with the premise that
bona fide and that prima facie it falls under the Atrocities Act and not
otherwise. Section 18 does not apply where there is no prima facie case the said Act should not be converted into a character for exploitation or
or to cases of patent false implication or when the allegation is moti- oppression by any unscrupulous persons or by police for extraneous rea-
vated for extraneous reasons. We approve the view of the Gujarat High sons against other citizens as has been found on several occasions in deci-
Court in Pankaj D Suthar (supra) and N T Desai (supra). We clarify the sions referred to above … Law should not result in caste hatred. (Subhash
Judgments in Balothia (supra) and Manju Devi (supra) to this effect. Kashinath Mahajan v State of Maharashtra and Another 2018: para 75)
(Subhash Kashinath Mahajan v State of Maharashtra and Another 2018:
para 74; emphasis added) In the light of the data cited by the lawyers, judgments of vari-
The formula arrived at in the Mahajan case is that, anticipatory ous high courts, observations of the standing committee of
bail can be granted (i) if no prima facie case is made out, (ii) it is Parliament, and the judgment of the Supreme Court in Lalitha
a case of patent false implication, or (iii) if the allegation is moti- Kumari v State of Uttar Pradesh (2014), the Court concluded
vated for extraneous reasons. A case of patent false implication We are of the view that cases under the Atrocities Act also fall in
and allegations motivated for extraneous reasons are new exceptional category where preliminary inquiry must be held. Such
inquiry must be time-bound and should not exceed seven days in view
grounds added by the Court for granting anticipatory bail in of directions of Lalitha Kumari. (Subhash Kashinath Mahajan v State of
atrocity cases. The Court approved the views of the high court Maharashtra and Another 2018: para 79)
and clarified its own judgments in the Balothia and Manju Devi In the concluding paragraph, the Court expressly directed that,
cases. If the Court was of the opinion that the Balothia and Manju
To avoid false implication of an innocent, a preliminary enquiry may be
Devi cases were wrongly decided, it could have recommended conducted by the DSP (Deputy Superintendent of Police) concerned to
the judgments to be reviewed by a larger bench of the Supreme find out whether the allegations make out a case under the Atrocities
Court. But, instead of referring to a larger bench, the judges Act and that the allegations are not frivolous or motivated. (Subhash
decided to clarify those decisions and, in the course of doing Kashinath Mahajan v State of Maharashtra and Another 2018: para 84[iv])
so, completely opposed their essence. It is submitted that the In the Lalitha Kumari case (2014: para 120.6), the Supreme
Mahajan case is decided per incuriam because the Balothia Court gave directions that in certain types of cases, such as
and Manju Devi judgments were not followed. The Court has matrimonial/family disputes, commercial offences, medical
also failed to explain what it means by “a case of patent false negligence, corruption and cases with abnormal and unexplained
implication and allegations motivated for extraneous reasons.” delays in initiating criminal prosecution, preliminary inquiry
What if the allegations are true but the court is of the opin- should be conducted before filing the FIR. The reason for insti-
ion that it is motivated for extraneous reasons. The court while tuting such inquiry was the change in genesis and novelty of
granting anticipatory bail is not supposed to indulge in a criti- crimes with the passage of time (Lalitha Kumari 2014: para
cal analysis of the evidence on record. How then would the 115). Now the question is, whether cases of caste atrocities do
court decide extraneous reasons? fall in the exceptional category as those mentioned in the Lalitha
It is a well-settled principle of law that when a statutory pro- Kumari case, such that the need for a preliminary inquiry prior
vision is clear and not ambiguous, the court should not interpret to filing FIR rises. The offence of committing an atrocity, as
it in such a manner that it loses its original meaning. But, in listed in Section 3 of the PoA Act, includes some of the worst
the Mahajan case, instead of literal interpretation of the law, forms of violence inflicted by upper castes against members of
the Court preferred purposive interpretation of the PoA Act the SCs and the STs. Far from preliminary inquiries, once reported,
(Mahajan 2018: para 56). The purposive construction of a such cases require immediate action from the state.
40 JUNE 2, 2018 vol lIiI no 22 EPW Economic & Political Weekly
SPECIAL ARTICLE

The principal object of the FIR from the point of view of the by the S S P which may be granted in appropriate cases if considered
informant is to set the criminal law machinery in motion (see necessary for reasons recorded. Such reasons must be scrutinized
by the Magistrate for permitting further detention. (Subhash Kashinath
Hasib v State of Bihar 1972). As per Section 154 of the CrPC and
Mahajan v State of Maharashtra and Another 2018: para 81[iii])
also Rule 5 of the Scheduled Castes and Scheduled Tribes (Pre-
vention of Atrocities) Rules, 1995, the police cannot refuse This means that if an FIR is registered solely under the PoA Act,
to register any complaint/information received at the police then a preliminary inquiry is mandatory and arrests approved by a
station. If the police fail to do so, Rule 5(3)—if any person is higher authority than the investigating officer. But, if the FIR includes
aggrieved by a refusal on part of the officer in-charge of police provisions of other criminal laws, for example the IPC, then
station to record the information, she may send by post the arrests could be made without following the above procedure.
substance of such information in writing to the superintendent Under the CrPC, wide powers have been conferred on the
of police concerned—is provided as a remedy in such a situa- police for making arrests without warrant under the circum-
tion. Yet, despite such legislative safeguards, it is the day-to-day stances mentioned in Section 41. The word “may” in Section
experience of the SCs and the STs that their FIRs are routinely 41(1) suggests that a police officer has discretion in making
rejected and left unregistered in police stations (NHRC 2002: arrests without warrant, whereas Clause (1)(a) expands the
113–14). The common experience all over India is that the police scope of this discretion in respect of cognisable offences. How-
officer in-charge does not register the FIR unless the deputy ever, these powers are not without limitations. The require-
superintendent of police (DSP) permits/directs the officer to do ments of reasonability and credibility tend to prevent the
so. Even if it is registered, the offences are not registered under misuse of such power. What is reasonable complaint or suspi-
proper sections of the PoA Act. Taking note of this phenome- cion or what is credible information must depend upon the
non, Parliament in 2016 defined the duties of public servants2 facts and circumstances in each case.
and the punishments for violation of the same, which includes Arrest may be necessary for the purpose of securing the
imprisonment up to one year. attendance of the accused at the time of trial, but it may also
This delay in registration of FIRs is used by the accused to become necessary as a preventive or precautionary measure in
pressurise the victims to take back their complaint and if not, respect of a person intending to commit a cognisable offence,
to file false cases against the complainants. The upper castes or a habitual offender or an ex-convict (see Sections 151 and
exploit every rung of the criminal justice system, either to sup- 110 of the CrPC). Though all the offences under the PoA Act are
press their crimes or to further harass SCs and STs. The direction cognisable in the Mahajan case, the Court takes away the dis-
of the Court in the Mahajan case to not register an FIR until a cretion of the police officer to arrest in atrocity cases. Even if
preliminary inquiry by a senior officer, essentially legalises the the police officer is reasonably convinced and has credible in-
hitherto rampant delay in registering FIRs. The Court’s re- formation of the commission of offence, they cannot arrest the
mark—“law should not result in caste hatred”—betrays com- accused without the permission of the specified higher
plete ignorance of the reality of caste in India and in one stroke authority. The Court further directs that any violation of its
makes out all atrocity complaints to be fraudulent. The state- directions with regard to the filing of FIRs and the arrests of
ment “law should not result in caste hatred” then should apply accused would be punishable by way of disciplinary action as
to all laws and not only the PoA Act. What about the phenome- well as contempt of court (Subhash Kashinath Mahajan v State of
non of filing robbery cases against Dalits and Adivasis to sup- Maharashtra and Another 2018: para 83[v]). The Court, in a
press atrocity complaints (Justice Punnaiah Commission 2001: sense, has made the filing of FIRs and arrest of accused impos-
145)? Will the Court add a similar filter to all the cases where sible in atrocity cases. The Court provides no remedy to the
there is allegation of misuse of law? members of SCs and STs, whose complaints will most likely be
As regards arrests in atrocity cases, the Court directed as follows, declared “frivolous” or “motivated” at the end of the preliminary
Accordingly, we direct that in absence of any other independent offence enquiry by the DSP and result in non-registration of FIRs. Can
calling for arrest, in respect of offences under the Atrocities Act, no arrest the aggrieved then invoke Section 190 of the CrPC?3 The Court
may be effected, if an Accused person is a public servant, without written is silent on this. Even if it is possible, this whole process makes
permission of the appointing authority and if such a person is not a public
access to justice much more difficult for a member of the SCs/STs.
servant, without written permission of the Senior Superintendent of Po-
lice of the District. Such permissions must be granted for recorded reasons Let us take a hypothetical case. A member of the SC/ST is
which must be served on the person to be arrested and to the concerned publicly humiliated by his superior officer at the workplace. If
court. As and when a person arrested is produced before the Magistrate, they attempt to register an FIR at a police station, the officer
the Magistrate must apply his mind to the reasons recorded and further in-charge would request the DSP to conduct a preliminary
detention should be allowed only if the reasons recorded are found to be
valid. To avoid false implication, before FIR is registered, preliminary en- inquiry. The DSP, for reasons known to him, refuses to give
quiry may be made whether the case falls in the parameters of the Atroci- permission. In such a case, the complainant is left with no
ties Act and is not frivolous or motivated. (Subhash Kashinath Mahajan v choice but to live with the humiliation, which may pave the
State of Maharashtra and Another 2018: para 81; emphasis added) way for further harassment. Similarly, if a land belonging to a
In the concluding paragraph, the Court passed the following order: member of an ST is wrongfully occupied and cultivated by a
In view of acknowledged abuse of law of arrest in cases under the
non-SC/ST member, what remedy does he have if the DSP re-
Atrocities Act, arrest of a public servant can only be after approval of fuses to even register an FIR? Registration of FIRs is a basic
the appointing authority and of a non-public servant after approval right of every citizen to claim justice. However, the Mahajan
Economic & Political Weekly EPW JUNE 2, 2018 vol lIiI no 22 41
SPECIAL ARTICLE

judgment has rendered this right of the SCs and the STs to be India. In fact, most Indians may not even have heard of
held ransom to the mercy of senior police officers. If the senior these places.
police officer is hand in glove with the perpetrators of the crime,
he will never permit the registration of FIR. Even in case of arrests, Conclusions
a prior permission of the appointing authority for a public At many places in the Mahajan judgment, there is no logical
servant and of the superintendent of police for non-public connection between the authorities cited by the Court and the
servants makes the arrest of the culprits impossible in a caste- conclusion of misuse of the PoA Act. The Court made its argument
ridden society. If the culprit is not arrested, or he is set free on with a prejudiced perception of the functioning of the act. It has
bail, or after the conviction he is given the benefit of Probation failed to recognise the overall non-implementation of the PoA
of Offenders Act, 1958, it results in boosting the courage/im- Act and the reasons for low conviction and high acquittals there-
punity of upper castes in general and perpetrators in particu- in. As regards grant of anticipatory bail, if the Court was of the
lar in committing further crimes against SCs and STs. opinion that the Balothia and Manju Devi cases were wrongly
Going by the figures provided by the NCRB (2016), every day decided, it could have recommended these to be reviewed by a
four Dalit women are raped, two Dalits are murdered, two larger bench of the Supreme Court. Instead, the judges decided
Dalit houses are burnt, and 11 Dalits are beaten up. This is a the issue by completely deviating from of the original, unam-
gross understatement; conservatively speaking, hardly one in biguous meaning of the earlier rulings. Thus, the Mahajan case is
50 crimes gets registered in India. This is the plight of a people per incuriam. The Court has made the filing of FIRs and arrest
whose number—201 million—exceeds the entire population of the accused impossible in PoA Act cases while simultane-
of Eastern Europe (Teltumbde 2008). Yet, their condition is ously providing no remedy to members of the SCs and the STs,
worse than that of any social minority in any country. We, perhaps, instead rendering their complaints “frivolous” or “motivated.”
have the most egalitarian Constitution, but the regime that op- Laws and legal processes are never self-executing; they de-
erates it has sustained a society that is the most inegalitarian. pend on human agency and institutions. In India, the ruling
To name a few violent crimes against Dalits in post-independence classes and castes have always flaunted the existence of an
India: Kilvenmani (44 Dalits burnt alive in Tamil Nadu, 1968), egalitarian Constitution and a plethora of laws, which appear
Belchi (14 Dalits burnt alive in Bihar, 1977), Karamchedu (six flawless, sincere, and earnest on paper. The complicity on the
Dalits murdered, three Dalit women raped and many more part of state agencies along with socially powerful groups in a
wounded in Andhra Pradesh, 1984), Chunduru (nine Dalits poor implementation of the PoA Act, both in letter and spirit,
massacred and dumped in a canal in Andhra Pradesh, 1991), has exacerbated the vulnerability of the SCs and the STs to com-
Melavalavu (an elected Dalit panchayat leader and five Dalits munal violence. The Supreme Court judgment may turn out to
murdered in Tamil Nadu, 1997), Kambalapalli (six Dalits burnt be a licence for upper-caste culprits to violate the law with im-
alive in Karnataka, 2000), Jhajjar (five Dalits lynched near a punity from now on. Relying on incorrect facts and faulty
police station in Haryana in 2003), Khairlanji (four members premises of the misuse of the PoA Act, the Court has made the
of a Dalit family brutally murdered by villagers in Maharash- SCs and the STs of India more vulnerable. It would be appropri-
tra, 2006), Sunpedh (two Dalit toddlers were burnt alive in ate for the Supreme Court to undo the wrongs caused to these
Ballabhgarh, Haryana, 2015), and many more. The incidents sections in the interest of justice and in furtherance of the con-
listed here may not figure in any history of post-independence stitutional values of fraternity, equality and justice.

Notes 25 November, http://mls.org.in/books/HB- Justice and Company Affairs, Government of


1 Section 18 of the PoA Act reads thus: “Section 2667%20CPA%20Speaches%20(Eng).pdf. India, http://legalaffairs.gov.in/ncrwc-report.
438 of the Code not to apply to persons com- Dhiren Prafulbhai Shah v State of Gujarat (2016): NHRC (2002): “Report on Prevention of Atrocities
mitting an offence under the Act. Nothing in Cri L J 2217. Against SCs and STs,” National Human Rights
Section 438 of the Code shall apply in relation Hasib v State of Bihar (1972): 4 SCC 773. Commission, Government of India, New Delhi,
to any case involving the arrest of any person Indra Sawhney v Union of India (1992): Supp (3) http://nhrc.nic.in/Documents/Publications/
on an accusation of having committed an SCC 217. reportKBSaxena.pdf.
offence under this Act.” Justice Punnaiah Commission (2001): “Report of Rajput, Rashmi (2017): “No Evidence That Most
2 See Sections 4(1) and 4(2) of the Scheduled Enquiry into Practice of Untouchability against Complaints under SC, ST Atrocities Act Were
Castes and Scheduled Tribes (Prevention of SCs and STs,” Government of Andhra Pradesh. Fake: Police Tells Maha Govt,” Indian Express,
Atrocities) Amendment Act, 2015. Kanai Lal Sur v Paramnidhi Sadhukan AIR (1957): 26 June, http://indianexpress.com/article/in-
3 Section 190 of the CrPC empowers the magis- SC 907. dia/no-evidence-that-most-complaints-under-
trate to take cognisance of any offence upon Lalitha Kumari v State of Uttar Pradesh (2014): 2 SCC 1. sc-st-atrocities-act-were-fake-police-tells-ma-
receiving a complaint of facts which consti- ha-govt-4721987/.
Maneka Gandhi v Union of India (1978): AIR 597.
tutes an offence. Shakuntla Devi v Baljinder Singh (2014): 15 SCC 521.
Manju Devi v Onkarjit Singh Ahluwalia (2017): 13
SCC 439. Sharad v State of Maharashtra (2015): (4) Bom CR
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