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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [C] NO. 1015 OF 2018

PRATHVI RAJ CHAUHAN ….PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. ….RESPONDENTS

WITH

WRIT PETITION [C] NO. 1016 OF 2018

J U D G M E N T

ARUN MISHRA, J.

1.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, are reproduced hereunder:

“18. 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 offence under this Act.”

“Section 18A. (1) For the purposes of this Act,-

(a) preliminary enquiry shall not be required for registration of a First

Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if

necessary, of any person, against whom an accusation of having

committed an offence under this Act has been made, and no procedure

other than that provided under this Act or the Code shall apply.

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(2) 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.”

2.It is submitted that section 18A has been enacted to nullify the

judgment of this Court in Dr. Subhash Kashinath Mahajan v. The State

of   Maharashtra   &   Anr.,   (2018)   6   SCC   454,   in   which   following

directions were issued:

“83. Our conclusions are as follows:

(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.

We approve the view taken and approach of the Gujarat High Court in

Pankaj D. Suthar (supra) and Dr. N.T. Desai (supra) and clarify the

judgments of this Court in Balothia (supra) and Manju Devi (supra);

(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 scrutinised 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.

(v) Any violation of directions (iii) and (iv) will be actionable by way

of disciplinary action as well as contempt.

The above directions are prospective.”

3.It has been submitted that this Court has noted in Dr. Subhash

Kashinath  (supra) that the provisions of the Act of 1989 are being

misused as such the amendment is arbitrary, unjust, irrational and

violative of Article 21 of the Constitution of India. There could not have

been any curtailment of the right to obtain anticipatory bail under

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section   438   Cr.PC.   Prior   scrutiny   and   proper   investigation   are

necessary. Most of the safeguards have been provided under the Act of

1989 to prevent undue harassment. This Court has struck down the

provision of section 66A of the Information Technology Act on the

ground of violation of fundamental rights; on the same  anvil, the

provisions of section 18A of the Act of 1989 deserve to be struck down.

4.It is not disputed at the Bar that the provisions in section 18A in

the Act of 1989 had been enacted because of the judgment passed by

this Court in Dr. Subhash Kashinath's case (supra), mainly because of

direction Nos (iii) to (v) contained in para 83. The Union of India had

filed review petitions, and the same have been allowed, and direction

Nos (iii) to (v) have been recalled. Thus, in view of the judgment passed

in the review petitions, the matter is rendered of academic importance

as we had restored the position as prevailed by various judgments that

were in vogue before the matter of Dr. Subhash Kashinath (supra) was

decided. We are not burdening the decision as facts and reasons have

been assigned in detail while deciding review petitions on 1.10.2019

and only certain clarifications are required in view of the provisions

carved out in section 18A.  There can be protective discrimination, not

reverse   one.   We   have   dealt   with   various   questions   in   the   review

petitions while deciding the same as under:

“36.In the light of the discussion mentioned above of legal principles,

we advert to directions issued in paragraph 83. Direction Nos. (iii) and

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(iv) and consequential direction No. (v) are sought to be

reviewed/recalled. Directions contain the following aspects: -

1.That arrest of a public servant can only be after approval of the

appointing authority.

2.The arrest of a non-public servant after approval by the Senior

Superintendent of Police (SSP).

3. The arrest may be in an appropriate case if considered necessary for

reasons to be recorded;

4.Reasons for arrest must be scrutinised by the Magistrate for

permitting further detention;

5.Preliminary enquiry to be conducted by the Dy. S.P. level officers

to find out whether the allegations make out a case and that the

allegations are not frivolous or motivated.

6. Any violation of the directions mentioned above will be actionable by

way of disciplinary action as well as contempt.

37.Before we dilate upon the aforesaid directions, it is necessary to

take note of certain aspects. It cannot be disputed that as the members of

the Scheduled Castes and Scheduled Tribes have suffered for long; the

protective discrimination has been envisaged under Article 15 of the

Constitution of India and the provisions of the Act of 1989 to make them

equals.

38.All the offences under the Atrocities Act are cognizable. The

impugned directions put the riders on the right to arrest. An accused

cannot be arrested in atrocities cases without the concurrence of the

higher Authorities or appointing authority as the case may be. As per the

existing provisions, the appointing authority has no power to grant or

withhold sanction to arrest concerning a public servant.

39.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 SC/ST (PoA) Amendment Act, 2015 and Amendment

Rules of 2016 as well as the following for improvement:

“8.6.1 Registration of FIRs - The Commission has observed that

the police often resort to preliminary investigation upon receiving a

complaint in writing before lodging the actual FIRs. As a result, the

SC victims have to resort to seeking directions from courts for

registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme Court

has also on more than one occasion emphasized about registration

of FIR first. This Commission again reemphasizes that the State /

UT Governments should enforce prompt registration of FIRs.”

(emphasis supplied)

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40.The learned Attorney General pointed out that 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 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 pressurised in

several manners, and the complainant also hardly muster the courage.

41.As to prevailing conditions in various areas of the country, 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.

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.

42.Though, Article 17 of the Constitution prohibits untouchability,

whether untouchability has vanished? We have to find the answer to all

these pertinent questions in the present prevailing social scenario in

different parts of the country. The clear answer is that untouchability

though intended to be abolished, has not vanished in the last 70 years. We

are still experimenting with ‘tryst with destiny.' The plight of

untouchables is that they are still denied various civil rights; the

condition is worse in the villages, remote areas where fruits of

development have not percolated down. They cannot enjoy equal civil

rights. So far, we have not been able to provide the modern methods of

scavenging to Harijans due to lack of resources and proper planning and

apathy. Whether he can shake hand with a person of higher class on

equal footing? Whether we have been able to reach that level of psyche

and human dignity and able to remove discrimination based upon caste?

Whether false guise of cleanliness can rescue the situation, how such

condition prevails and have not vanished, are we not responsible? The

answer can only be found by soul searching. However, one thing is sure

that we have not been able to eradicate untouchability in a real sense as

envisaged and we have not been able to provide down-trodden class the

fundamental civil rights and amenities, frugal comforts of life which

make life worth living. More so, for Tribals who are at some places still

kept in isolation as we have not been able to provide them even basic

amenities, education and frugal comforts of life in spite of spending a

considerable amount for the protection, how long this would continue.

Whether they have to remain in the status quo and to entertain civilized

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society? Whether under the guise of protection of the culture, they are

deprived of fruits of development, and they face a violation of traditional

rights?

43.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 human in all respects and not treated as an 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.

44.The enjoyment of quality life by the people is the essence of

guaranteed right under Article 21 of the Constitution, as observed in

Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with

human dignity is included in the right to life as observed in Francis

Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC

746, Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gender

injustice, pollution, environmental degradation, malnutrition, social

ostracism of Dalits are instances of human rights violations as observed

by this Court in People’s Union for Civil Liberties v. Union of India,

(2005) 2 SCC 436:

"34. 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." (emphasis supplied)

45.There is right to live with dignity and also 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 offence 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. Therefore, it has been

held to be an essential element of the right to life of a citizen under

Article 21 as observed by this Court in Umesh Kumar v. State of Andhra

Pradesh, (2013) 10 SCC 591, Kishore Samrite v. State of Uttar Pradesh,

(2013) 2 SCC 398 and Subramanian Swamy v. Union of India, (2016) 7

SCC 221. The provisions of the Act of 1989 are, in essence, concomitants

covering various facets of Article 21 of the Constitution of India.

46.They do labour, bonded or forced, in agricultural fields, which is

not abrogated in spite of efforts. In certain areas, women are not treated

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with dignity and honour and are sexually abused in various forms. We

see sewer workers dying in due to poisonous gases in chambers. They

are like death traps. We have not been able to provide the masks and

oxygen cylinders for entering in sewer chambers, we cannot leave them

to die like this and avoid tortious liability concerned with

officials/machinery, and they are still discriminated within the society in

the matter of enjoying their civil rights and cannot live with human

dignity.

47.The Constitution of India provides equality before the law under

the provisions contained in Article 14. Article 15(4) of the Constitution

carves out an exception for making any special provision for the

advancement of any socially and educationally backward classes of

citizens or SCs. and STs. Further protection is conferred under Article

15(5) concerning their admission to educational institutions, including

private educational institutions, whether aided or unaided by the State,

other than the minority educational institutions. Historically

disadvantageous groups must be given special protection and help so that

they can be uplifted from their poverty and low social status as observed

in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC 793. The

legislature has to attempt such incumbents 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.

48.The particular law, i.e., Act of 1989, has been enacted and has also

been amended in 2016 to make its provisions more effective. Special

prosecutors are to be provided for speedy trial of cases. The incentives

are also provided for rehabilitation of victims, protection of witnesses

and matters connected therewith.

49.There is no presumption that the members of the Scheduled Castes

and Scheduled Tribes may misuse the provisions of law as a class and it

is not resorted to by the members of the upper Castes or the members of

the elite class. For lodging a false report, it cannot be said that the caste

of a person is the cause. It is due to the human failing and not due to the

caste factor. Caste is not attributable to such an act. On the other hand,

members of the Scheduled Castes and Scheduled Tribes due to

backwardness hardly muster the courage to lodge even a first information

report, much less, a false one. In case it is found to be

false/unsubstantiated, it may be due to the faulty investigation or for

other various reasons including human failings irrespective of caste

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factor. There may be certain cases which may be false that can be a

ground for interference by the Court, but the law cannot be changed due

to such misuse. In such a situation, it can be taken care in proceeding

under section 482 of the Cr.PC.

50.The data of National Crime Records Bureau, Ministry of Home

Affairs, has been pointed out on behalf of Union of India which indicates

that more than 47,000 cases were registered in the year 2016 under the

Act of 1989. The number is alarming, and it cannot be said that it is due

to the outcome of the misuse of the provisions of the Act.

51.As a matter of fact, members of the Scheduled Castes and

Scheduled Tribes have suffered for long, hence, if we cannot provide

them protective discrimination beneficial to them, we cannot place them

at all at a disadvantageous position that may be causing injury to them by

widening inequality and against the very spirit of our Constitution. It

would be against the basic human dignity to treat all of them as a liar or

as a crook person and cannot look at every complaint by such

complainant with a doubt. Eyewitnesses do not come up to speak in their

favour. They hardly muster the courage to speak against upper caste, that

is why provisions have been made by way of amendment for the

protection of witnesses and rehabilitation of victims. All humans are

equal including in their frailings. To treat SCs. and STs. as persons who

are prone to lodge false reports under the provisions of the Scheduled

Castes and Scheduled Tribes Act for taking revenge or otherwise as

monetary benefits made available to them in the case of their being

subjected to such offence, would be against fundamental human equality.

It cannot be presumed that a person of such class would inflict injury

upon himself and would lodge a false report only to secure monetary

benefits or to take revenge. If presumed so, it would mean adding insult

to injury, merely by the fact that person may misuse provisions cannot be

a ground to treat class with doubt. It is due to human failings, not due to

the caste factor. The monetary benefits are provided in the cases of an

acid attack, sexual harassment of SC/ST women, rape, murder, etc. In

such cases, FIR is required to be registered promptly.

52.It is an unfortunate state of affairs that the caste system still

prevails in the country and people remain in slums, more particularly,

under skyscrapers, and they serve the inhabitants of such buildings.

53.To treat such incumbents with a rider that a report lodged by an

SCs/STs category, would be registered only after a preliminary

investigation by Dy. S.P., whereas under Cr.PC a complaint lodged

relating to cognizable offence has to be registered forthwith. It would

mean a report by upper-caste has to be registered immediately and arrest

can be made forthwith, whereas, in case of an offence under the Act of

1989, it would be conditioned one. It would be opposed to the protective

discrimination meted out to the members of the Scheduled Castes and

Scheduled Tribes as envisaged under the Constitution in Articles 15, 17

and 21 and would tantamount to treating them as unequal, somewhat

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supportive action as per the mandate of Constitution is required to make

them equals. It does not prima facie appear permissible to look them

down in any manner. It would also be contrary to the procedure

prescribed under the Cr.PC and contrary to the law laid down by this

Court in Lalita Kumari (supra).

54.The guidelines in (iii) and (iv) appear to have been issued in view

of the provisions contained in Section 18 of the Act of 1989; whereas

adequate safeguards have been provided by a purposive interpretation by

this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221.

The consistent view of this Court that if prima facie case has not been

made out attracting the provisions of SC/ST Act of 1989, in that case, the

bar created under section 18 on the grant of anticipatory bail is not

attracted. Thus, misuse of the provisions of the Act is intended to be

taken care of by the decision above. In Kartar Singh (supra), a

Constitution Bench of this Court has laid down that taking away the said

right of anticipatory bail would not amount to a violation of Article 21 of

the Constitution of India. Thus, prima facie it appears that in the case of

misuse of provisions, adequate safeguards are provided in the decision

mentioned above.

55.That apart directions (iii) and (iv) issued may delay the

investigation of cases. As per the amendment made in the Rules in the

year 2016, a charge sheet has to be filed to enable timely commencement

of the prosecution. The directions issued are likely to delay the timely

scheme framed under the Act/Rules.

In re: sanction of the appointing authority :

56.Concerning public servants, the provisions contained in Section

197, Cr.PC provide protection by prohibiting cognizance of the offence

without the sanction of the appointing authority and the provision cannot

be applied at the stage of the arrest. That would run against the spirit of

Section 197, Cr.PC. Section 41, Cr.PC authorises every police officer to

carry out an arrest in case of a cognizable offence and the very definition

of a cognizable offence in terms of Section 2(c) of Cr.PC is one for which

police officer may arrest without warrant.

57.In case any person apprehends that he may be arrested, harassed

and implicated falsely, he can approach the High Court for quashing the

FIR under Section 482 as observed in State of Orissa v. Debendra Nath

Padhi, (2005) 1 SCC 568.

58.While issuing guidelines mentioned above approval of appointing

authority has been made imperative for the arrest of a public servant

under the provisions of the Act in case, he is an accused of having

committed an offence under the Act of 1989. Permission of the

appointing authority to arrest a public servant is not at all statutorily

envisaged; it is encroaching on a field which is reserved for the

legislature. The direction amounts to a mandate having legislative colour

which is a field not earmarked for the Courts.

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59.The direction is discriminatory and would cause several legal

complications. On what basis the appointing authority would grant

permission to arrest a public servant? When the investigation is not

complete, how it can determine whether public servant is to be arrested

or not? Whether it would be appropriate for appointing authority to look

into case diary in a case where its sanction for prosecution may not be

required in an offence which has not happened in the discharge of official

duty. Approaching appointing authority for approval of arrest of a public

servant in every case under the Act of 1989 is likely to consume

sufficient time. The appointing authority is not supposed to know the

ground realities of the offence that has been committed, and arrest

sometimes becomes necessary forthwith to ensure further progress of the

investigation itself. Often the investigation cannot be completed without

the arrest. There may not be any material before the appointing authority

for deciding the question of approval. To decide whether a public servant

should be arrested or not is not a function of appointing authority, it is

wholly extra-statutory. In case appointing authority holds that a public

servant is not to be arrested and declines approval, what would happen,

as there is no provision for grant of anticipatory bail. It would

tantamount to take away functions of Court. To decide whether an

accused is entitled to bail under Section 438 in case no prima facie case

is made out or under Section 439 is the function of the Court. The

direction of appointing authority not to arrest may create conflict with the

provisions of Act of 1989 and is without statutory basis.

60.By the guidelines issued, the anomalous situation may crop up in

several cases. In case the appointing authority forms a view that as there

is no prima facie case the incumbent is not to be arrested, several

complications may arise. For the arrest of an offender, maybe a public

servant, it is not the provision of the general law of Cr.PC that permission

of the appointing authority is necessary. No such statutory protection

provided to a public servant in the matter of arrest under the IPC and the

Cr.PC as such it would be discriminatory to impose such rider in the

cases under the Act of 1989. Only in the case of discharge of official

duties, some offence appears to have been committed, in that case,

sanction to prosecute may be required and not otherwise. In case the act

is outside the purview of the official discharge of duty, no such sanction

is required.

61.The appointing authority cannot sit over an FIR in case of

cognizable, non-bailable offense and investigation made by the Police

Officer; this function cannot be conferred upon the appointing authority

as it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, this

rider cannot be imposed in respect of the cases under the Act of 1989,

may be that provisions of the Act are sometimes misused, exercise of

power of approval of arrest by appointing authority is wholly

impermissible, impractical besides it encroaches upon the field reserved

for the legislature and is repugnant to the provisions of general law as no

such rider is envisaged under the general law.

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62.Assuming it is permissible to obtain the permission of appointing

authority to arrest accused, would be further worsening the position of

the members of the Scheduled Castes and Scheduled Tribes. If they are

not to be given special protection, they are not to be further put in a

disadvantageous position. The implementation of the condition may

discourage and desist them even to approach the Police and would cast a

shadow of doubt on all members of the Scheduled Castes and Scheduled

Tribes which cannot be said to be constitutionally envisaged. Other

castes can misuse the provisions of law; also, it cannot be said that

misuse of law takes place by the provisions of Act of 1989. In case the

direction is permitted to prevail, days are not far away when writ petition

may have to be filed to direct the appointing authority to consider

whether accused can be arrested or not and as to the reasons recorded by

the appointing authority to permit or deny the arrest. It is not the function

of the appointing authority to intermeddle with a criminal investigation.

If at the threshold, approval of appointing authority is made necessary for

arrest, the very purpose of the Act is likely to be frustrated. Various

complications may arise. Investigation cannot be completed within the

specified time, nor trial can be completed as envisaged. Act of 1989

delay would be adding to the further plight of the downtrodden class.

In ref: approval of arrest by the SSP in the case of a non-public

servant:

63.Inter alia for the reasons as mentioned earlier, we are of the

considered opinion that requiring the approval of SSP before an arrest is

not warranted in such a case as that would be discriminatory and against

the protective discrimination envisaged under the Act. Apart from that,

no such guidelines can prevail, which are legislative. When there is no

provision for anticipatory bail, obviously arrest has to be made. Without

doubting bona fides of any officer, it cannot be left at the sweet discretion

of the incumbent howsoever high. The approval would mean that it can

also be ordered that the person is not to be arrested then how the

investigation can be completed when the arrest of an incumbent, is

necessary, is not understandable. For an arrest of accused such a

condition of approval of SSP could not have been made a sine qua non, it

may delay the matter in the cases under the Act of 1989.

Requiring the Magistrate to scrutinise the reasons for permitting

further detention:

64.As per guidelines issued by this Court, the public servant can be

arrested after approval by appointing authority and that of a non-public

servant after the approval of SSP. The reasons so recorded have to be

considered by the Magistrate for permitting further detention. In case of

approval has not been granted, this exercise has not been undertaken.

When the offence is registered under the Act of 1989, the law should take

its course no additional fetter sare called for on arrest whether in case of

a public servant or non-public servant. Even otherwise, as we have not

approved the approval of arrest by appointing authority/S.S.P., the

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direction to record reasons and scrutiny by Magistrate consequently

stands nullified.

65.The direction has also been issued that the Dy. S.P. should conduct

a preliminary inquiry to find out whether allegations make out a case

under the Atrocities Act, and that the allegations are not frivolous or

motivated. In case a cognisable offence is made out, the FIR has to be

outrightly registered, and no preliminary inquiry has to be made as held

in Lalita Kumari (supra) by a Constitution Bench. There is no such

provision in the Code of Criminal Procedure for preliminary inquiry or

under the SC/ST Act, as such direction is impermissible. Moreover, it is

ordered to be conducted by the person of the rank of Dy. S.P. The number

of Dy. S.P. as per stand of Union of India required for such an exercise of

preliminary inquiry is not available. The direction would mean that even

if a complaint made out a cognizable offence, an FIR would not be

registered until the preliminary inquiry is held. In case a preliminary

inquiry concludes that allegations are false or motivated, FIR is not to be

registered in such a case how a final report has to be filed in the Court.

The direction (iv) cannot survive for the other reasons as it puts the

members of the Scheduled Castes and Scheduled Tribes in a

disadvantageous position in the matter of procedure vis-a-vis to the

complaints lodged by members of upper caste, for later no such

preliminary investigation is necessary, in that view of matter it should not

be necessary to hold preliminary inquiry for registering an offence under

the Atrocities Act of 1989.

66.The creation of a casteless society is the ultimate aim. We

conclude with a pious hope that a day would come, as expected by the

framers of the Constitution, when we do not require any such legislation

like Act of 1989, and there is no need to provide for any reservation to

SCs/STs/OBCs, and only one class of human exist equal in all respects

and no caste system or class of SCs/STs or OBCs exist, all citizens are

emancipated and become equal as per Constitutional goal.

67.We do not doubt that directions encroach upon the field reserved

for the legislature and against the concept of protective discrimination in

favour of down-trodden classes under Article 15(4) of the Constitution

and also impermissible within the parameters laid down by this Court for

exercise of powers under Article 142 of Constitution of India.

Resultantly, we are of the considered opinion that direction Nos.(iii) and

(iv) issued by this Court deserve to be and are hereby recalled and

consequently we hold that direction No. (v), also vanishes. The review

petition is allowed to the extent mentioned above.”

5.In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3

SCC 221, this Court has upheld the validity of section 18 of the Act of

1989. This Court has observed:

13

“6. It is undoubtedly true that Section 438 of the Code of Criminal

Procedure, which is available to an accused in respect of offences

under the Penal Code, is not available in respect of offences under the

said Act. But can this be considered as violative of Article 14? The

offences enumerated under the said Act fall into a separate and special

class. Article 17 of the Constitution expressly deals with abolition of

‘untouchability' and forbids its practice in any form. It also provides

that enforcement of any disability arising out of ‘untouchability' shall

be an offence punishable in accordance with law. The offences,

therefore, which are enumerated under Section 3(1), arise out of the

practice of ‘untouchability.' It is in this context that certain special

provisions have been made in the said Act, including the impugned

provision under Section 18, which is before us. The exclusion of

Section 438 of the Code of Criminal Procedure in connection with

offences under the said Act has to be viewed in the context of the

prevailing social conditions which give rise to such offences, and the

apprehension that perpetrators of such atrocities are likely to threaten

and intimidate their victims and prevent or obstruct them in the

prosecution of these offenders, if the offenders are allowed to avail of

anticipatory bail. In this connection, we may refer to the Statement of

Objects and Reasons accompanying the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was

introduced in Parliament. It sets out the circumstances surrounding the

enactment of the said Act and points to the evil which the statute

sought to remedy. In the Statement of Objects and Reasons, it is

stated:

"Despite various measures to improve the socio-economic

conditions of the Scheduled Castes and the Scheduled Tribes,

they remain vulnerable. They are denied number of civil rights.

They are subjected to various offences, indignities, humiliations,

and harassment. They have, in several brutal incidents, been

deprived of their life and property. Serious crimes are committed

against them for various historical, social, and economic

reasons.

2. … When they assert their rights and resist practices of

untouchability against them or demand statutory minimum wages or

refuse to do any bonded and forced labour, the vested interests try to

cow them down and terrorise them. When the Scheduled Castes and

the Scheduled Tribes try to preserve their self-respect or honour of

their women, they become irritants for the dominant and the mighty.

Occupation and cultivation of even the Government allotted land by

the Scheduled Castes and Scheduled Tribes is resented, and more

often, these people become victims of attacks by the vested interests.

Of late, there has been an increase in the disturbing trend of

commission of certain atrocities like making the Scheduled Caste

persons eat inedible substances like human excreta and attacks on and

mass killings of helpless Scheduled Castes and Scheduled Tribes and

rape of women belonging to the Scheduled Castes and the Scheduled

14

Tribes…. A special legislation to check and deter crimes against them

committed by non-Scheduled Castes and non-Scheduled Tribes has,

therefore, become necessary."

The above statement graphically describes the social conditions which

motivated the said legislation. It is pointed out in the above Statement

of Objects and Reasons that when members of the Scheduled Castes

and Scheduled Tribes assert their rights and demand statutory

protection, vested interests try to cow them down and terrorise them.

In these circumstances, if anticipatory bail is not made available to

persons who commit such offences, such a denial cannot be

considered as unreasonable or violative of Article 14, as these offences

form a distinct class by themselves and cannot be compared with other

offences.

7. We have next to examine whether Section 18 of the said Act

violates, in any manner, Article 21 of the Constitution, which protects

the life and personal liberty of every person in this country. Article 21

enshrines the right to live with human dignity, a precious right to

which every human being is entitled; those who have been, for

centuries, denied this right, more so. We find it difficult to accept the

contention that Section 438 of the Code of Criminal Procedure is an

integral part of Article 21. In the first place, there was no provision

similar to Section 438 in the old Criminal Procedure Code. The Law

Commission in its 41st Report recommended introduction of a

provision for grant of anticipatory bail. It observed:

“We agree that this would be a useful advantage. Though we

must add that it is in very exceptional cases that such power

should be exercised.” In the light of this recommendation,

Section 438 was incorporated, for the first time, in the Criminal

Procedure Code of 1973. Looking to the cautious

recommendation of the Law Commission, the power to grant

anticipatory bail is conferred only on a Court of Session or the

High Court. Also, anticipatory bail cannot be granted as a matter

of right. It is essentially a statutory right conferred long after the

coming into force of the Constitution. It cannot be considered as

an essential ingredient of Article 21 of the Constitution. And its

non-application to a certain special category of offences cannot

be considered as violative of Article 21.

9. Of course, the offences enumerated under the present case are very

different from those under the Terrorists and Disruptive Activities

(Prevention) Act, 1987. However, looking to the historical background

relating to the practice of ‘untouchability’ and the social attitudes

which lead to the commission of such offences against Scheduled

Castes and Scheduled Tribes, there is justification for an apprehension

that if the benefit of anticipatory bail is made available to the persons

who are alleged to have committed such offences, there is every

likelihood of their misusing their liberty while on anticipatory bail to

terrorise their victims and to prevent a proper investigation. It is in this

15

context that Section 18 has been incorporated in the said Act. It cannot

be considered as in any manner violative of Article 21.

10. It was submitted before us that while Section 438 is available for

graver offences under the Penal Code, it is not available for even

“minor offences” under the said Act. This grievance also cannot be

justified. The offences which are enumerated under Section 3 are

offences which, to say the least, denigrate members of Scheduled

Castes and Scheduled Tribes in the eyes of society and prevent them

from leading a life of dignity and self-respect. Such offences are

committed to humiliate and subjugate members of Scheduled Castes

and Scheduled Tribes with a view to keeping them in a state of

servitude. These offences constitute a separate class and cannot be

compared with offences under the Penal Code.

11. A similar view of Section 18 of the said Act has been taken by the

Full Bench of the Rajasthan High Court in the case of Jai Singh v.

Union of India, AIR 1993 Raj 177, and we respectfully agree with its

findings.”

6.This   Court   in  Vilas   Pandurang   Pawar   and   Anr.   v.   State   of

Maharashtra and Ors., (2012) 8 SCC 795, has observed thus:

“10. The scope of Section 18 of the SC/ST Act read with Section 438

of the Code is such that it creates a specific bar in the grant of

anticipatory bail. When an offence is registered against a person under

the provisions of the SC/ST Act, no court shall entertain an application

for anticipatory bail, unless it prima facie finds that such an offence is

not made out. Moreover, while considering the application for bail,

scope for appreciation of evidence and other material on record is

limited. The court 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 persons who belong to the Scheduled Castes and the

Scheduled Tribes and a bar has been imposed in granting bail under

Section 438 of the Code, the provision in the Special Act cannot be

easily brushed aside by elaborate discussion on the evidence.”

7.This Court in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC

521, has observed thus:

“4. The High Court has not given any finding in the impugned order

that an offence under the aforesaid Act is not made out against the

respondent and has granted anticipatory bail, which is contrary to the

provisions of Section 18 of the aforesaid Act as well as the aforesaid

decision of this Court in Vilas Pandurang Pawar case, (2012) 8 SCC

795. Hence, without going into the merits of the allegations made

16

against the respondent, we set aside the impugned order of the High

Court granting bail to the respondent.”

8.Concerning the provisions contained in section 18A, suffice it to

observe that with respect to preliminary inquiry for registration of FIR,

we have already recalled the general directions (iii) and (iv) issued in

Dr.   Subhash   Kashinath’s   case   (supra).   A   preliminary   inquiry   is

permissible only in the circumstances as per the law laid down by a

Constitution Bench of this Court in  Lalita Kumari v. Government of

U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed

by this Court in the review petitions on 1.10.2019 and the amended

provisions of section 18A have to be interpreted accordingly. 

9.The section 18A(i) was inserted owing to the decision of this

Court in Dr. Subhash Kashinath (supra), which made it necessary to

obtain the approval of the appointing authority concerning a public

servant and the SSP in the case of arrest of accused persons. This

Court has also recalled that direction on Review Petition (Crl.) No.228

of 2018 decided on 1.10.2019. Thus, the provisions which have been

made   in   section   18A   are   rendered   of   academic   use   as   they   were

enacted to take care of mandate issued in  Dr. Subhash Kashinath

(supra) which no more prevails. The provisions were already in section

18 of the Act with respect to anticipatory bail.

17

10.Concerning the applicability of provisions of section 438 Cr.PC, it

shall not apply to the cases under Act of 1989.   However, if the

complaint does not make out a prima facie case for applicability of the

provisions of the Act of 1989, the bar created by section 18 and 18A(2)

shall not apply.   We have clarified this aspect while deciding the

review petitions. 

11.The   court   can,   in   exceptional   cases,   exercise   power   under

section   482   Cr.PC   for   quashing   the   cases   to   prevent   misuse   of

provisions on settled parameters, as already observed while deciding

the review petitions. The legal position is clear, and no argument to

the contrary has been raised.

12.The challenge to the provisions has been rendered academic. In

view of the aforesaid clarifications, we dispose of the petitions.   

…………………………J.

(Arun Mishra)

………………….……..J.

(Vineet Saran)

New Delhi;

February 10, 2020.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) No. 1015 OF 2018

PRATHVI RAJ CHAUHAN ...PETITIONER(S)

VERSUS

UNION OF INDIA & OTHERS ...RESPONDENT(S)

WITH

WRIT PETITION (C) No. 1016 OF 2018

J U D G M E N T

S. RAVINDRA BHAT, J.

1.I am in agreement with the judgment proposed by Justice Arun Mishra as

well as its conclusions that the challenge to the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) (Amendment) Act, 2018 must fail, with the

qualifications proposed in the judgment with respect to the inherent power of the

court in granting anticipatory bail in cases where prima facie an offence is not

made out. I would however, supplement the judgment with my opinion.

2

2.The Constitution of India is described variously as a charter of governance

of the republic, as a delineation of the powers of the state in its various

manifestations vis-à-vis inalienable liberties and a document delimiting the rights

and responsibilities of the Union and its constituent states. It is more: it is also a

pact between people, about the relationships that they guarantee to each other

(apart from the guarantee of liberties vis-à-vis the state) in what was a society

riven1 along caste and sectarian divisions. That is why the preambular assurance

that the republic would be one which guarantees to its people liberties, dignity,

equality of status and opportunity and fraternity.

3

3.It is this idea of India, - a promise of oneness of and for, all people,

regardless of caste, gender, place of birth, religion and other divisions that Part III

articulates in four salient provisions: Article 15, Article 17, Article 23 and Article

24. The idea of fraternity occupying as crucial a place in the scheme of our nation’s

consciousness and polity, is one of the lesser explored areas in the constitutional

discourse of this court. The fraternity assured by the Preamble is not merely a

declaration of a ritual handshake or cordiality between communities that are

diverse and have occupied different spaces: it is far more. This idea finds

articulation in Article 15.

1

That provision, perhaps even more than Article 14,

fleshes out the concept of equality by prohibiting discrimination and

discriminatory practices peculiar to Indian society. At the center of this idea, is that

all people, regardless of caste backgrounds, should have access to certain

amenities, services and goods so necessary for every individual. Article 15 is an

important guarantee against discrimination. What is immediately noticeable is that

whereas Article 15 (1) enjoins the State (with all its various manifestations, per

Article 12) not to discriminate on the proscribed grounds (religion, race, caste, sex

(i.e. gender), place of birth or any of them), Article 15 (2) is a wider injunction: it

prohibits discrimination or subjection to any disability of anyone on the grounds of

1 The relevant parts of Article 15 are extracted below:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth

(1) The State shall not discriminate against any citizen on grounds only of religion,

race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or

any of them, be subject to any disability, liability, restriction or condition with regard to

(a)access to shops, public restaurants, hotels and places of public entertainment; or

(b)the use of wells, tanks, bathing ghats, roads and places of public resort

maintained wholly or partly out of State funds or dedicated to the use of the general

public…”

(3) Nothing in this article shall prevent the State from making any special provision

for women and children”

4

religion, caste, race, sex or place of birth in regard to access to shops, places of

public entertainment, or public restaurants (Article 15 (2) (a)). Article 15(2)(b)

proscribes the subjection of anyone to any disability on the proscribed grounds (i.e.

discrimination on grounds of religion, caste, race, sex or place of birth) with regard

to “the use of wells, tanks, bathing ghats, roads and places of public resort

maintained wholly or partly out of State funds or dedicated to the use of the

general public..”

4.The making of this provision- and others, in my view, is impelled by the

trinity of the preambular vision that the Constitution makers gave to this country.

Paeans have been sung about the importance of liberty as a constitutional value: its

manifest articulation in the (original) seven “lamps” -i.e. freedoms under Article 19

of the Constitution; the other rights to religion, those of religious denominations,

etc. Likewise, the centrality of equality as an important constitutional provision has

been emphasized, and its many dimensions have been commented upon. However,

the articulation of fraternity as a constitutional value, has lamentably been largely

undeveloped. In my opinion, all the three - Liberty, Equality and Fraternity, are

intimately linked. The right to equality, sans liberty or fraternity, would be

chimerical - as the concept presently known would be reduced to equality among

equals, in every manner- a mere husk of the grand vision of the Constitution.

Likewise, liberty without equality or fraternity, can well result in the perpetuation

of existing inequalities and worse, result in license to indulge in society’s basest

practices. It is fraternity, poignantly embedded through the provisions of Part III,

which assures true equality, where the state treats all alike, assures the benefits of

growth and prosperity to all, with equal liberties to all, and what is more, which

guarantees that every citizen treats every other citizen alike.

5

5.When the framers of the Constitution began their daunting task, they had

before them a formidable duty and a stupendous opportunity: of forging a nation,

out of several splintered sovereign states and city states, with the blueprint of an

idea of India. What they envisioned was a common charter of governance and

equally a charter for the people. The placement of the concept of fraternity, in this

context was neither an accident, nor an idealized emulation of the western notion

of fraternity, which finds vision in the French and American constitutions and

charters of independence. It was a unique and poignant reminder of a society riven

with acute inequalities: more specifically, the practice of caste discrimination in its

virulent form, where the essential humanity of a large mass of people was denied

by society- i.e. untouchability.

6.The resolve to rid society of these millennial practices, consigning a large

segment of humanity to the eternal bondage of the most menial avocations creating

inflexible social barriers, was criticized by many sages and saints. Kabir, the great

saint poet, for instance, in his composition, remarked:

“If thou thinkest the maker distinguished castes:

Birth is according to these penalties for deeds.

Born a Sudra, you die a Sudra;

It is only in this world of illusion that you assume the

sacred thread.

If birth from a Brahmin makes you a Brahmin,

Why did you not come by another way?

If birth from a Turk makes you a Turk,

Why were you not circumcised in the womb?

…

Saith Kabir, renounce family, caste, religion, and nation,

6

And live as one.”

7.There were several others who spoke, protested, or spoke against the

pernicious grip of social inequity due to caste oppression of the weakest and

vulnerable segments of society. Guru Nanak, for instance, stated

2

“Caste and dynastic pride are

condemnable notions,

the one master shelters all existence.

Anyone arrogating superiority to himself

halt be disillusioned. Saith Nanak:

superiority shall be determined by God”

The Guru Granth Saheb also states that

“All creatures are noble, none low,

One sole maker has all vessels fashioned;

In all three worlds is manifest the same

light…”

2 Guru Granth Saheb p.83

7

8.The preamble to the Constitution did not originally contain the

expression “fraternity”; it was inserted later by the Drafting Committee

under the chairmanship of Dr. Ambedkar. While submitting the draft

Constitution, he stated, on 21 February, 1948, that the Drafting Committee

had added a clause about fraternity in the Preamble even though it was not

part of the Objectives Resolution because it felt that “the need for fraternal

concord and goodwill in India was never greater than now, and that this

particular aim of the new Constitution should be emphasized by special

mention in the Preamble”

3

. Pandit Thakur Das Bhargava expressed a “sense

of gratitude to Dr. Ambedkar for having added the word “fraternity” to the

Preamble”. Acharya Kripalani also emphasized on this understanding, in his

speech on 17 October, 1949:

“Again, I come to the great doctrine of fraternity, which is allied

with democracy. It means that we are all sons of the same God, as

the religious would say, but as the mystic would say, there is one

life pulsating through all of us, or as the Bible says, “We are one

of another”. There can be no fraternity without this.”

9.This court too, has recognized and stressed upon the need to recognize

fraternity as one of the beacons which light up the entire Constitution.

Justice Thommen, in Indira Sawhney v Union of India

4

said this:

3 B. Shiva Rao: Framing of India’s Constitution Vol III, page 510 (1968)

4 1992 Supp (3) SCR 454

8

“The makers of the Constitution were fully conscious of the

unfortunate position of the Scheduled Castes and Scheduled

Tribes. To them equality, liberty and fraternity are but a dream;

an ideal guaranteed by the law, but far too distant to reach; far

too illusory to touch. These backward people and others in like

positions of helplessness are the favoured children of the

Constitution. It is for them that ameliorative and remedial

measures are adopted to achieve the end of equality. To permit

those who are not intended to be so specially protected to compete

for reservation is to dilute the protection and defeat the very

constitutional aim.”

10.In Raghunathrao Ganpatrao v. Union of India

5

this court held:

“In our considered opinion this argument is misconceived and has

no relevance to the facts of the present case. One of the objectives

of the Preamble of our Constitution is 'fraternity assuring the

dignity of the individual and the unity and integrity of the nation.'

It will be relevant to cite the explanation given by Dr. Ambedkar

for the word 'fraternity' explaining that 'fraternity means a sense

of common brotherhood of all Indians.' In a country like ours with

so many disruptive forces of regionalism, communalism and

linguism, it is necessary to emphasise and re-emphasise that the

unity and integrity of India can be preserved only by a spirit of

brotherhood. India has one common citizenship and every citizen

should feel that he is Indian first irrespective of other basis. In

this view, any measure at bringing about equality should be

welcome.”

11.In a similar vein, the court in Nandini Sundar v. State of Chhatisgarh

6

again

commented on this aspect and said that “t(T)he Constitution itself, in no uncertain

terms, demands that the State shall strive, incessantly and consistently, to promote

fraternity amongst all citizens such that dignity of every citizen is protected,

nourished and promoted.

5 1993 (1) SCR 480

6 2011 (7) SCC 457

9

12.It was to achieve this ideal of fraternity, that the three provisions- Articles 15,

17 and 24 were engrafted. Though Article 17 proscribes the practice of

untouchability and pernicious practices associated with it, the Constitution

expected Parliament and the legislatures to enact effective measures to root it out,

as well as all other direct and indirect, (but virulent nevertheless) forms of caste

discrimination. Therefore, in my opinion, fraternity is as important a facet of the

promise of our freedoms as personal liberty and equality is. The first attempt by

Parliament to achieve that end was the enactment of the Untouchability (Offences)

Act, 1955. The Act contained a significant provision that where any of the

forbidden practices “is committed in relation to a member of a Scheduled Caste”

the Court shall presume, unless the contrary is proved, that such act was committed

on the ground of “Untouchability”. This implied that the burden of proof lies on

the accused and not on the prosecution. The Protection of Civil Rights Act, 1955,

followed. This too made provision for prescribing “punishment for the preaching

and practice of - "Untouchability" for the enforcement of any disability arising

therefrom”. The enforcement of social practices associated with untouchability and

disabilities was outlawed and made the subject matter of penalties. After nearly 35

years’ experience, it was felt that the 1955 Act (which was amended in 1976) did

not provide sufficient deterrence to social practices, which continued unabated and

in a widespread manner, treating members of the scheduled caste and tribe

communities in the most discriminatory manner, in most instances, stigmatizing

them in public places, virtually denying them the essential humanity which all

members of Society are entitled to.

10

13. It was to address this gulf between the rights which the Constitution

guaranteed to all people, particularly those who continued to remain victims of

ostracism and discrimination, that the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereafter “the Act”) was enacted. Rules under

the Act were framed in 1995 to prevent the commission of atrocities against

members of Schedules Castes and Tribes, to provide for special courts for the trial

of such offences and for the relief and rehabilitation of the victims of such offences

and for matters connected therewith or incidental thereto. The Statement of Objects

and Reasons appended to the Bill, when moved in the Parliament, observed that

despite various measures to improve the socio-economic conditions of Scheduled

Castes and Scheduled Tribes, they remained vulnerable. They are denied a number

of civil rights and are subjected to various offences, indignities, humiliation and

harassment. They have been, in several brutal instances, deprived of their life and

property. Serious atrocities were committed against them for various historical,

social and economic reasons. The Act, for the first time, puts down the contours of

‘atrocity’ so as to cover the multiple ways through which members of scheduled

castes and scheduled tribes have been for centuries humiliated, brutally oppressed,

degraded, denied their economic and social rights and relegated to perform the

most menial jobs.

11

14.The Report on the Prevention of Atrocities against Scheduled Castes

7

vividly

described that despite enacting stringent penal measures, atrocities against

scheduled caste and scheduled tribe communities continued; even law enforcement

mechanisms had shown a lackadaisical approach in the investigation and

prosecution of such offences. The report observed that in rural areas, various forms

of discrimination and practices stigmatizing members of these communities

continued. Parliament too enacted an amendment to the Act in 2015, strengthening

its provisions in the light of the instances of socially reprehensive practices that

members of scheduled caste and scheduled tribe communities were subjected to. In

this background, this court observed in the decision in National Campaign on

Dalit Human Rights v. Union of India

8

that:

7 Published by the National Human Rights Commission (accessed at

https://nhrc.nic.in/publications/other-publicationss on 15 December, 2019 at 08:27 hrs)

8 (2017) 2 SCC 432

12

“The ever-increasing number of cases is also an indication to

show that there is a total failure on the part of the authorities in

complying with the provisions of the Act and the Rules. Placing

reliance on the NHRC Report and other reports, the Petitioners

sought a mandamus from this Court for effective implementation

of the Act and the Rules.

12. We have carefully examined the material on record and we are

of the opinion that there has been a failure on the part of the

concerned authorities in complying with the provisions of the Act

and Rules. The laudable object with which the Act had been made

is defeated by the indifferent attitude of the authorities. It is true

that the State Governments are responsible for carrying out the

provisions of the Act as contended by the counsel for the Union of

India. At the same time, the Central Government has an important

role to play in ensuring the compliance of the provisions of the

Act. Section 21(4) of the Act provides for a report on the measures

taken by the Central Government and State Governments for the

effective implementation of the Act to be placed before the

Parliament every year. The constitutional goal of equality for all

the citizens of this country can be achieved only when the rights

of the Scheduled Castes and Scheduled Tribes are protected. The

abundant material on record proves that the authorities

concerned are guilty of not enforcing the provisions of the Act.

The travails of the members of the Scheduled Castes and the

Scheduled Tribes continue unabated. We are satisfied that the

Central Government and State Governments should be directed to

strictly enforce the provisions of the Act and we do so.”

13

15.In Subhash Kashinath Mahajan v. State of Maharashtra & Ors

9

, a two

judge bench of this court held that the exclusion of anticipatory bail

provisions of the Code of Criminal Procedure (by Section 18 of the Act) did

not constitute an absolute bar for the grant of bail, where it was discernable

to the court that the allegations about atrocities or violation of the provisions

of the Act were false. It was also held, more crucially, that public servants

could be arrested only after approval by the appointing authority (of such

public servant) and in other cases, after approval by the Senior

Superintendent of Police. It was also directed that cases under the Act could

be registered only after a preliminary enquiry into the complaint. These

directions were seen to be contrary to the spirit of the Act and received

considerable comment in the public domain; the Union of India too moved

this court for their review. In the review proceedings, a three judge bench of

this court, in Union of India v. State of Maharastra

10

recalled and overruled

those directions.

9 2018 (4) SCC 454

10 2019 (13) SCALE 280

14

16.In the meanwhile, Parliament enacted the amendment of 2018

11

(by

Act No. 27 of 2019), which is the subject matter of challenge in these

proceedings. The clear intention of Parliament was to undo the effect of this

court’s declaration in Subhash Kashinath Mahajan (supra). The provisions

of the amendment expressly override the directions in Subhash Kashinath

Mahajan, that a preliminary inquiry within seven days by the Deputy

Superintendent of Police concerned, to find out whether the allegations make

out a case under the Act, and that arrest in appropriate cases may be made

only after approval by the Senior Superintendent of Police. The

Parliamentary intent was to allay the concern that this would delay

registration of First Information Report (FIR) and would impede strict

enforcement of the provision of the Act.

11 The operative part of the amendment, a brief one, reads as follows:

" 2. After section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989, the following section shall be inserted, namely:—

“18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for

registration of a First Information Report against any person; or (b) the investigating officer

shall not require approval for the arrest, if necessary, of any person, against whom an

accusation of having committed an offence under this Act has been made and no procedure

other than that provided under this Act or the Code shall apply.

(2) 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.".

15

17.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 enquiry, or

provisions which remove the bar against arrest of public servants accused of

offences 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

12

, 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

13

, 422,799 crimes against scheduled caste communities’ members and

81,332 crimes against scheduled tribe communities’ members were reported

between 2006 and 2016.

12 http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf containing statistics

relating to crime against members of scheduled caste and scheduled tribe populations

13 Indiaspend https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-by-

746-746/

16

18.These facts, in my opinion ought to be kept in mind by courts which

have to try and deal with offences under the Act. It is important to keep

oneself reminded that while sometimes (perhaps mostly in urban areas) false

accusations are made, those are not necessarily reflective of the prevailing

and wide spread social prejudices against members of these oppressed

classes. Significantly, the amendment of 2016, in the expanded definition of

‘atrocity’, also lists pernicious practices (under Section 3) including forcing

the eating of inedible matter, dumping of excreta near the homes or in the

neighbourhood of members of such communities and several other forms of

humiliation, which members of such scheduled caste communities are

subjected to. All these considerations far outweigh the petitioners’ concern

that innocent individuals would be subjected to what are described as

arbitrary processes of investigation and legal proceedings, without adequate

safeguards. The right to a trial with all attendant safeguards are available to

those accused of committing offences under the Act; they remain unchanged

by the enactment of the amendment.

17

19.As far as the provision of Section 18A and anticipatory bail is

concerned, the judgment of Mishra, J, has stated that in cases where no

prima facie materials exist warranting arrest in a complaint, the court has the

inherent power to direct a pre-arrest bail.

20.I would only add a caveat with the observation and emphasize that

while considering any application seeking pre-arrest bail, the High Court has

to balance the two interests: i.e. that the power is not so used as to convert

the jurisdiction into that under Section 438 of the Criminal Procedure Code,

but that it is used sparingly and such orders made in very exceptional cases

where no prima facie offence is made out as shown in the FIR, and further

also that if such orders are not made in those classes of cases, the result

would inevitably be a miscarriage of justice or abuse of process of law. I

consider such stringent terms, otherwise contrary to the philosophy of bail,

absolutely essential, because a liberal use of the power to grant pre-arrest

bail would defeat the intention of Parliament.

18

21.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, or

bandhutva (बनध

धतव

) 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 which 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 fraternity) to a ritualistic

formality, a tacit acknowledgment, of the “otherness” of each one’s identity.

22.I am of the opinion that in the light of and subject to the above

observations, the petitions have to be and are, accordingly disposed of.

........................................J.

[S. RAVINDRA BHAT]

New Delhi,

February 10, 2020.