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Is the Supreme Court order on SC/ST Act really as evil as it is being made out?

If media reports are to be believed, the death toll in the recent Caste Riots are anywhere between 14 to 18 across the nation. The members of the SC and ST communities enforced a Bharat Bandh, which was a partial success. The central government has filed a review petition in the Supreme Court and the national political parties are unified in the opposition to this judgement.

The honourable Supreme Court on 20th march gave an order in the criminal appeal number 416b of 2018, Dr. Subhash Kashinath Mahajan v State of Maharashtra against an order passed by the Mumbai High Court. The matter pertains an offence under section 3 of the SC/ST (Prevention of Atrocities) Act 1989. The primary point of contention in this petition turned out to be the application of section 18 of the said act. It says,

Section 438 of the (Criminal Procedure) Code not to apply to persons committing an offence under the Act.—>

Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

Section 438 deals with anticipatory bail. Thus, if a person a person is accused of an offence under the act, they cannot seek anticipatory bail.

The court has paid heed to one of the most crucial aspects of the provision. The frivolous nature of complaints lodged under said provision,

66. 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.

The court further said that,

68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion.

The court has said that the act was made with the intention of safeguarding the interests of the SC and ST community and not to be abused in order to deprive innocents of their righto to life and liberty as per Article 21. Only by due process of law can this be permitted, “It is difficult to hold that the legislature wanted exclusion of judicial function of going into correctness or otherwise of the allegation in a criminal case before liberty of a person is taken away”

The court concluded that the only change necessary is stopping the misuse of the act to stop the public servants from performing their duties, “… no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, 86 without written permission of the Senior Superintendent of Police of the District”.

The court as a conclusion has given following directions,

  • i) Proceedings in the present case are clear abuse of process of court and are quashed.
  • ii) 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
  • iii) 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 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.
  • iv) 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.

One of the biggest concerns of the court was the promotion of casteism that occurs due to the frivolous use of the act, Justice Goel, who has authored the judgement has said as much, “No legislation can promote the disparity of any kind, specially not on the ground of the caste. This court has a duty to guarantee that”. A law passed by the legislature cannot be the instrument of communal differences. If it does, it is necessary for the courts to intervene.

It is not the only logical failure in the application this act. The section 18 only prohibits anticipatory bail and not a ban on bai by the court post arrest. An accused person can always get bail later on. Thus, for the people who are raising the argument that weakens the law, it really does not. Simply denying them the right to apply for anticipatory bail only seems illogical as it is up to the court to apply their good judgement and grant or refuse bail to the accused.

It is also not as if the directions given by the court will result in no arrests, only the frivolous cases will be filtered. The authorities have to complete the preliminary enquiry within 7 days. At the end of which the arrest can be made as per the findings. According to the report by National Crime Records Bureau (NCRB), a total of 40,774 cases were registered under the SC/ST (Prevention of Atrocities) Act and other sections of law over alleged crimes against SCs and STs in 2016.

Of these, chargesheets were filed in 78.3% cases, and the conviction rate was 25.8%, he said in reply to a written question.

As many as 6,564 cases were registered over alleged crimes against the Scheduled Tribes in 2016, in which chargesheets were filed in 81.3% cases where the conviction rate was 20.8%. These directions will only result in better numerical projections such as this.

And to think that all those riots, all those deaths could have been avoided if only someone would have read the whole 89-page order carefully. It is true that law is the medicine of the body politic, but no medicine can work if the patient simply refuses to take it. The order is really not as evil as it is being made out. All that is needed is to separate the political intent from the problem. A problem that is as frivolous and unfortunate as the problem this order seeks to fix.