Supreme Court on Monday upheld the constitutional validity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018 enacted to nullify the effects of the March 20, 2018 judgment of the court which had diluted the provisions of the Act. A bench headed by Justice Arun Mishra said a preliminary inquiry is not essential before lodging an FIR under the Act and the approval of senior police officials is not needed. The Act also does not provide for anticipatory bail to the accused being charged with SC/ST Act. Courts can, however, quash FIRs in exceptional circumstances.
The petitioners have questioned the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as well as section 18A Section 438 of the 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 offense under this Act.” “Section 18A. (i) For the purpose of this Act,-
- preliminary inquiry shall be required for registration of a First Information Report against any person; or
- the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offense under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.
- The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”
The National Commission for Scheduled Castes Annual Report 2015-16, has recommended for prompt registration of FIRs thus: “The Commission has noted with concern that instances of procedural lapses are frequent while dealing atrocity cases by both police and civil administration. There are delays in the judicial process of the cases. The Commission, therefore, identified lacunae commonly noticed during police investigation, as also preventive/curable actions the civil administration can take. NCSC recommends the correct and timely application of the SC/ST (PoA) Amendment Act, 2015. The statistics considered by the Court in the judgment under review indicate that 9 to 10 percent cases under the Act were found to be false. The percentage of false cases concerning other general crimes such as forgery is comparable, namely 11.51 percent and for kidnapping and abduction, it is 8.85 percent as per NCRB data for the year 2016. The same can be taken care of by the Courts under Section 482, and in case no prima facie case is made out, the Court can always consider grant of anticipatory bail and power of quashing in appropriate cases. For the low conviction rate, he submitted that the same is the reflection of the failure of the criminal justice system and not an abuse of law. The witnesses seldom come to support down-trodden class, biased mindset continues, and they are pressurized in several manners, and the complainant also hardly muster the courage.
As to prevailing conditions in various areas of the country, to observe that SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached to them, by and large, they remain unequal and vulnerable section of the society. The classes of Scheduled Castes and Scheduled Tribes have been suffering ignominy and abuse, and they have been outcast socially for the centuries. The efforts for their upliftment should have been percolated down to eradicate their sufferings. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963 SC 1295, this Court has observed that the right to life is not merely an animal’s existence. Under Article 21, the right to life includes the right to live with dignity. Basic human dignity implies that all the persons are treated as equal humans in all respects and not treated as untouchable, downtrodden, and object for exploitation. It also implies that they are not meant to be born for serving the elite class based upon the caste. The caste discrimination had been deep-rooted, so the consistent effort is on to remove it, but still, we have to achieve the real goal. No doubt we have succeeded partially due to individual and collective efforts. The question can also be examined from another angle. The knowledge or experience of a police officer of human rights violation represents only one facet of human rights violation and its protection, namely, arising out of crime. Human rights violations are of various forms which besides police brutality are — gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits, etc. A police officer can claim to have experience of only one facet. That is not the requirement of the section.
There is a right to live with dignity and also the right to die with dignity. For violation of human rights under Article 21 grant of compensation is one of the concomitants which has found statutory expression in the provisions of compensation, to be paid in case an offense is committed under the provisions of the Act of 1989. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property
The legislature has to attempt such incumbents to be protected under Article 15(4), to deal with them with more rigorous provisions as compared to provisions of general law available to the others would create inequality which is not permissible/envisaged constitutionally. It would be an action to negate mandatory constitutional provisions not supported by the constitutional scheme; rather, it would be against the mandated constitutional protection. It is not open to the legislature to put members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position vis-à-vis others and in particular to so-called upper castes/general category. Thus, they cannot be discriminated against more so when we have a peep into the background perspective. What legislature cannot do legitimately, cannot be done by the interpretative process by the courts.
ORDER OF THE COURT
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 1015 OF 2018
PRATHVI RAJ CHAUHAN …PETITIONER(S)
UNION OF INDIA & OTHERS …RESPONDENT(S)
WITH WRIT PETITION (C) No. 1016 OF 2018
The judgment of Mishra, J has recounted much of the discussion and reiterated the reasoning which led to the recall and review of the decision in Subhash Kashinath Mahajan (supra); I respectfully adopt them. I would only add that any interference with the provisions of the Act, particularly with respect to the amendments precluding preliminary inquiry, or provisions that remove the bar against the arrest of public servants accused of offenses punishable under the Act, would not be a positive step. The various reports, recommendations, and official data, including those released by the National Crime Records Bureau, paint a dismal picture. The figures reflected were that for 2014, instances of crimes recorded were 40401; for 2015, the crime instances recorded were 38670 and for 2016, the registered crime incidents were 40801. According to one analysis of the said 2016 report, 422,799 crimes against scheduled caste communities’ members and 81,332 crimes against scheduled tribe communities’ members were reported between 2006 and 2016. It is important to reiterate and emphasize that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalization of scheduled caste and scheduled tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, referred to in the Preamble, and statutes like the Act, have been framed. These underline the social – rather collective resolve – of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of her or his dreams. The question which each of us has to address, in everyday life, is can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy that is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of the fraternity) to a ritualistic formality, a tacit acknowledgment, of the “otherness” of each one’s identity.
………………………………….J. [S. RAVINDRA BHAT]
New Delhi, February 10, 2020.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje