The Supreme Court in Subhash Kashinath Mahajan v State of Maharashtra (2018) has toned down the effectiveness of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 based on incorrect facts and faulty logic. The Court has made the filing of first information reports and arrest of the accused impossible in cases of caste atrocities while simultaneously providing no remedy to members of the SCs/STs against caste discrimination and violence. The Supreme Court judgment may unwittingly turn out to be a licence for upper-caste culprits to violate the law with impunity.
In a recent judgment of the Supreme Court in Subhash Kashinath Mahajan v State of Maharashtra and Another (2018) (henceforth Mahajan case), Section 18 of the Scheduled Castes (SCs) and the Scheduled Tribes (STs) (Prevention of Atrocities) Act, 1989 (PoA Act) has been toned down. Alongside, the police has been prohibited from registering a first information report (FIR) without preliminary inquiry and making an arrest sans the written permission of the appointing authority if the accused is a public servant, and senior superintendent of police (SSP) in the case of non-public servants. The judgment is loaded with prejudice and incorrect interpretation of facts. This paper scrutinises the judgment in the Mahajan case and seeks to analyse the reasons and justifications given by the Court to tone down the PoA Act.
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 Kashinath 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 number 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 programme 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 manifestation 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 Constituent Assembly of the social and economic inequality prevailing in Indian society, and demanded the immediate eradication of the same. The learned judges, however, seemed to have missed this warning altogether.
The PoA Act was implemented as a furtherance of the dictates of Articles 14, 17 and 21 of the Constitution. During the 19th and 20th centuries, social transformation was brought about by the sweep of law. Criminal law sought to curb deviance through deterrence. Thus, the fear of criminal law is used effectively to ensure change in social attitudes. Article 17 of the Constitution abolished untouchability and made its practice illegal. Parliament enacted the Untouchability (Offences) Act in 1955 to punish the practice of untouchability. Later on, this was amended to the Protection of Civil Rights Act, 1976 and then to the PoA Act, 1989. The statement of object of the PoA Act states that the inadequacy of pre-existing legislations in protecting the life and property of the SCs and STs paved the way for the latest law.
A demand for justice by the SCs and STs is not an assertion of caste, neither is it tantamount to the practice of casteism. Rather, it is a claim for equality made by the most underprivileged strata of society. A claim against caste humiliation and caste violence is not an act of perpetuating casteism.
The learned judges also quoted the judgment of Indra Sawhney v Union of India (1992). The judgment referred to Article 16(2) of the Constitution which prohibits discrimination on the basis of caste and states that “the progress of India has been from casteism to egalitarianism—from feudalism to freedom” (Sawhney 1992: 339).
The Supreme Court further observed in the Indra Sawhney case that,
The caste system which has been put in the grave by the framers of the Constitution is trying to raise its ugly head in various forms. Caste poses a serious threat to the secularism and as a consequence to the integrity of the country. (Indra Sawhney v Union of India 1992: para 340)
These two observations of the constitutional bench are quoted in the Mahajan judgment without any accompanying comment. However, these observations in no way establish that the working of the PoA Act results in perpetuating casteism.
The Court in the Mahajan case further quoted the report of the National Commission to Review the Working of the Constitution (2002) and stated that one of the failures in the working of the Constitution was that direct elections continued to be fought on caste lines. But, this quote too does not support the proposition that the implementation of the PoA Act results in perpetuating casteism. Yet, the Court jumps to the conclusion that
the interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of society. This may require a check on the false implication of innocent citizens on caste lines. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 47)
There is no logical connection between the authorities cited by the Court and the conclusion at which it has arrived: the need “to check the false implication of innocent citizens along caste lines.” Thus, it is pertinent to examine the data and authorities relied upon by the Court to arrive at the conclusion that the PoA Act has been misused. If not, it needs to be scrutinised whether the Court began with a prejudiced perception of the functioning of the PoA Act in the first place.
Examining Claim of Misuse
The Court in the Mahajan case mentioned that
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. It may be noticed that by way of rampant misuse with oblique motive for satisfaction of vested interests. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 66)
The Court relied upon two high court decisions in Dhiren Prafulbhai Shah v State of Gujarat (2016), and Sharad v State of Maharashtra (2015) to substantiate the “judicial acknowledgement” of instances of abuse of the PoA Act.
Thereafter, the lawyer for the intervenor in the Mahajan case relied upon a few more high court judgments to reflect on the judicial acknowledgement of abuse of the PoA Act. She submitted that the act is prone to misuse on account of monetary incentives being offered for merely lodging a case under Rule 12(4). She further relied upon the National Crime Records Bureau (NCRB) data of 2016, citing that a total of 5,347 and 912 cases were found to be false out of the investigated cases involving SC and ST complainants, respectively. In 2015, out of the 15,638 cases decided, 495 cases (3.16%) were withdrawn whereas 4,119 cases (26.34%) resulted in conviction.
On the other hand, senior council C U Singh appearing on behalf of another intervention application against the appellant, submitted that where the law is clear, no guidelines should be issued by the Court. He further mentioned that the statement of object and reasons from the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2013, where it was stated that there are procedural hurdles such as non-registration of cases, procedural delays in investigation, arrests and filing of charge sheets, delays in trials and low conviction rates on account of which, the deterrent provisions notwithstanding, atrocities against SCs/STs have continued unabated, necessitating the amendments passed in 2016.
The Court selectively relied upon the NCRB statistics cited by the intervenor, completely ignoring the counterarguments made by Singh. The Court failed to recognise the increase in atrocities against SCs and STs in 2016. The number of cases registered under the PoA Act in 2016 for atrocities against the SCs was 40,801 (as compared to 38,670 in 2015) and 6,568 cases of atrocities against STs (as compared to 6,276 cases in 2015). This implies an increase in reported crimes of 5.5% for SCs and 4.7% for STs in a period of a year.
In 2016, the courts conducted trials in 1,44,979 cases of atrocities against SCs and 23,408 cases against STs. A majority of the cases were pending from the previous year. In cases of offence against SCs, trials have been completed in only 14,615 cases. Of these, the courts convicted the accused in 3,753 cases, resulting in a conviction rate of 25.7 in 2016. Similarly, of the 23,408 cases of atrocities against STs, only 2,895 trials were completed with a conviction rate of 20.8%. In comparison, the conviction rate for all crimes under the Indian Penal Code (IPC) in 2016 was 46.8%.
It must also be noted that the police investigated cases pending from previous years and filed charge sheets in 78% of the cases of atrocities against SCs and 81% of the cases relating to STs. Analysing the same NCRB data, at the end of 2016, 89.6% of cases for SCs and 87.1% of cases for STs remained pending for trial. The apex court, instead of recognising the low conviction rate under the act, made its observation on the basis of a small number of cases, 5,347 for SCs and 912 for STs, which were found to be false after the investigation. The Court overlooked the need to investigate the increase in atrocities and the incidence of low conviction rates in cases of violence against SCs and STs. The low conviction rate is a reflection on how cases are registered and pursued in the PoA Act.
The Court, hearing an appeal against the Bombay High Court judgment, ignored the fact that in 2017, the Maharashtra police had informed the government that there was no substance to claim the widespread misuse of the PoA Act (Rajput 2017). The judgment also does not look into the reasons of acquittal of the accused under the act. Despite the constitutional guarantee of equality before law to all persons in India, the reality for SCs and STs who suffer atrocities is often that of delayed or denied justice. They face hurdles at every stage in the criminal justice system—from the registration of cases, to investigation, charge sheet and during court trials too. Tremendous pressure is placed on the victims to not lodge complaints against atrocities.
Quite often, police officials refuse to register the initial complaint or the FIR or invoke provisions of the PoA Act in the FIR. Moreover, counter-cases and false cases are filed by perpetrators in collusion with police officials. Further, the police do not arrest the accused immediately, investigate cases in time, interview or cross-examine all the victims/witnesses during investigation, and fail to provide adequate protection to victims and their families during and after the investigation. It is also seen that the time taken to complete police investigation in the counter-cases is much faster than in the PoA cases.
At the time of filing the charge sheet, often statements/testimonies of victims and witnesses are not corroborated with the contents of the charge sheet. Sometimes, vital information is deliberately left out of the charge sheet in order to weaken the case and favour the accused. In addition, the issues of non-establishment of or fast-tracking of cases through special courts, non-appointment or poor capacity of special public prosecutors, delays in trials due to the accused, victims, and/or witnesses not appearing in court, victims and witnesses turning hostile due to fear or threats, arguments taking a substantive length of time, courts being overburdened with cases, lengthy investigations, etc, all contribute to the deprivation of justice. Finally, there are hardly any cases where public servants have been convicted under Section 4 of the PoA Act for wilful neglect of duty.
The Court also failed to take judicial acknowledgement of a Supreme Court judgment by a larger bench in the National Campaign on Dalit Human Rights v Union of India (2017). A petition was filed by the National Campaign on Dalit Human Rights (NCDHR) seeking direction from the Court for the government with regards non-implementation of the PoA Act. The Supreme Court has observed that,
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 authorities concerned in complying with the provisions of the Act and the Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities … 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. The National Commissions are also directed to discharge their duties to protect the Scheduled Castes and Scheduled Tribes.
In the NCDHR case, the Court was of the view that the PoA Act is not implemented in letter and spirit, a far cry from the assertion of misuse in the Mahajan case.
Grant of Anticipatory Bail
The Mahajan judgment makes it mandatory for the judge/magistrate to grant anticipatory bail in cases registered under the PoA Act. However, Section 18 of the same act1 expressly exempts the operation of Section 438 of the Code of Criminal Procedure (CrPC) that allows for anticipatory bail. In the State of Madhya Pradesh v Ram Krishna Balothia (1995) case,the Supreme Court held that Section 18 of the PoA Act does not violate Articles 14 and 21 of the Constitution. It further observed that the exclusion of Section 438 of the CrPC from the PoA Act had to be viewed in the context of the prevailing social conditions, and the resultant apprehension that perpetrators of such atrocities are likely to threaten and intimidate victims and prevent or obstruct the prosecution of offenders, if they are granted anticipatory bail. Clarifying the Balothia judgment, the Supreme Court in the Mahajan case observed that
Ram Krishna Balothia may need to be revisited in view of judgments of this court, particularly Maneka Gandhi (Maneka Gandhi v Union of India, 1978), we consider it unnecessary to refer the matter to the larger 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 protect victims of perpetrators of crime. It cannot be read as being applicable to those who are falsely implicated for extraneous reasons and have not committed the offence on prima face independent scrutiny. (Subhash Kashinath Mahajan vState of Maharashtra and Another 2018: para 51)
In spite of the express provision of Section 18 prohibiting anticipatory bail in the PoA Act, the Court in Mahajan has gone ahead and unravelled the same. To support its argument the Court cited provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA Act); Unlawful Activities (Prevention) Act, 1967; Maharashtra Control of Organised Crime Act (MCOCA), 1999, and Narcotic Drugs and Psychotropic Substances Act, 1985. Under the TADA Act, Section 17(4) prohibits the application of Section 438 of the CrPC. The subsequent provision Section 17(5) puts restriction on a person accused of an offence punishable under the TADA Act from being released on bail and one of the conditions was:
Where the public prosecutor opposes the application of grant of bail, the court had to be satisfied that there were reasonable grounds for believing that the accused was not guilty of such offence and that he was not likely to commit any such offence while on bail. (Subhash Kashinath Mahajan vState of Maharashtra and Another 2018: para 52)
The Court further observed that in special legislations like TADA Act, MCOCA and others, the impact of release of persons on bail was considered by the legislature not only at the stage of grant of anticipatory bail, but even post-arrest at the stage of grant of regular bail. Thus, the Court in the Mahajan case tried to identify an ambiguity vis-à-vis anticipatory and regular bail in the PoA Act to allow for the provision of anticipatory bail. The judgment reads,
[t]he restriction in Section 18 is only at the stage of consideration of matter for anticipatory bail and no such restriction is available while the matter is to be considered for grant of regular bail. Theoretically, it is possible to say that an application under Section 438 of the Code may be rejected by the Court because of express restrictions in Section 18 of the Act but the very same court can grant bail under the provisions of Section 437 of the Code, immediately after the arrest. There seems to be no logical rationale behind this situation of putting a fetter 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 necessary and important that the express exclusion under Section 18 of the Act is limited to genuine cases and inapplicable where no prima facie case is made out. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 52)
However, going by this logic, if regular bail provisions are made more stringent, the provision for denial of anticipatory bail in the statute is justified. This seems a bizarre logic. The reason for denial of anticipatory bail in atrocity cases is justified because the legislation stands on a different footing as compared to other criminal laws. The Supreme Court in the Balothia case while upholding the constitutional validity of Section 18 of the PoA Act justified the rejection of anticipatory bail in atrocity cases, observing
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. (State of Madhya Pradesh v Ram Krishna Balothia 1995: para 10)
Another point to be taken into consideration is that the amendments to the PoA Act came into force in 2016. Section 15(A) was added to the act, providing that a victim shall have the right to be heard in respect of bail, discharge, release, parole, conviction, and sentence to the accused, and many other provisions. Thus, it could be said that the amended legislation provided a double check on regular bail to the accused by allowing victims the right to be heard before granting bail to the accused. However, going by the logic of the Court in the Mahajan case, because Section 15(A) of the PoA Act makes grant of regular bail difficult, the denial of anticipatory bail under Section 18 is not justified.
The Court cited Vilas Pandurang Pawar v State of Maharashtra (2012) and Shakuntla Devi v Baljinder Singh (2014) to argue that there is no absolute bar to grant anticipatory bail if no 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 by the Supreme Court that,
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 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. 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. (Vilas Pandurang Pawar v State of Maharashtra 2012: para 10; emphasis added)
In the Shakuntla Devi case, the Supreme Court upholds the Pawar judgment:
We find that Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1984 provides that nothing in Section 438 of the Criminal Procedure 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. This Court has also held in Vilas Pandurang Pawar & Anr v State of Maharashtra & Ors, that Section 18 of the Act creates a specific bar to the grant of anticipatory bail to a person against whom any offence is registered under the provisions of the aforesaid Act and, therefore no Court shall entertain an application 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)
The emphasis in the Shakuntla Devi case is on the point that a court shall not entertain an application for anticipatory bail unless it prima facie finds that an offence under the act is not made out. In this case, anticipatory bail was granted by the high court, but no valid reasons were given by the court to justify the grant of anticipatory bail. Thus, the Court decided that
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 Panduranga Pawar & Anr Case. (Shakuntla Devi v Baljinder Singh 2014: para 5)
In Manju Devi v Onkarjit Singh Ahluwalia (2017: para 15), the Supreme Court observed that
Though the Constitution of India abolishes “untouchability” but in view of 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 terrorize their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the SC/ST Act. The offences which are enumerated under Section 3 of the SC/ST Act 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.
The Court further held that,
In view of the above discussion and in the light of the specific averments in the complaint made by the complainant, we are of the considered opinion that Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code and the High Court has committed grave error in granting anticipatory bail to the Respondents. Accordingly, the order dated 03.12.2014, passed by the High Court, is set aside. (para 21)
The Supreme Court, relying on the Pawar case, did clearly rule out that Section 18 creates a bar for invoking Section 438 of the CrPC. The reason for creating such a bar is also discussed by the Court. Considering the special case of SCs and STs vis-à-vis the upper castes in the Indian social order, the Court observed that if anticipatory bail is granted then the accused can misuse his liberty to terrorise the victims and prevent proper investigation.
However, the Court in Mahajan has decided that,
It is thus patent that in cases under the Atrocities Act, exclusion of right of anticipatory bail is applicable only if the case is shown to be 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 or to cases of patent false implication or when the allegation is motivated for extraneous reasons. We approve the view of the Gujarat High Court in Pankaj D Suthar (supra) and N T Desai (supra). We clarify the Judgments in Balothia (supra) and Manju Devi (supra) to this effect. (Subhash Kashinath Mahajan vState of Maharashtra and Another 2018: para 74; emphasis added)
The formula arrived at in the Mahajan case is that, anticipatory bail can be granted (i) if no prima facie case is made out, (ii) it is a case of patent false implication, or (iii) if the allegation is motivated for extraneous reasons. A case of patent false implication and allegations motivated for extraneous reasons are new grounds added by the Court for granting anticipatory bail in atrocity cases. The Court approved the views of the high court and clarified its own judgments in the Balothia and Manju Devi cases. If the Court was of the opinion that the Balothia and Manju Devi cases were wrongly decided, it could have recommended the judgments to be reviewed by a larger bench of the Supreme Court. But, instead of referring to a larger bench, the judges decided to clarify those decisions and, in the course of doing so, completely opposed their essence. It is submitted that the Mahajan case is decided per incuriam because the Balothia and Manju Devi judgments were not followed. The Court has also failed to explain what it means by “a case of patent false implication and allegations motivated for extraneous reasons.”
What if the allegations are true but the court is of the opinion that it is motivated for extraneous reasons. The court while granting anticipatory bail is not supposed to indulge in a critical analysis of the evidence on record. How then would the court decide extraneous reasons?
It is a well-settled principle of law that when a statutory provision is clear and not ambiguous, the court should not interpret it in such a manner that it loses its original meaning. But, in the Mahajan case, instead of literal interpretation of the law, the Court preferred purposive interpretation of the PoA Act (Mahajan 2018: para 56). The purposive construction of a provision means a construction which fulfils the legislative purpose of the act. While constructing the provisions of the act, its natural, plain and grammatical meaning is to be looked for. In constructing a provision, first the ordinary meaning of the words of the statute must be examined. If the plain and grammatical meaning leads to two or more constructions, that is, if it leads to ambiguity, only then does the question of purpose of statute come into play. Even so, purposive construction should be within limits, and not be extended to such a level that it crosses the line between construction and legislation. The Court in the Mahajan case interpreted Section 18 purposively despite any scope of ambiguity therein. There was no mischief to be remedied. The purpose read by the Court in the Mahajan case is foreign to the purpose, aims and objectives of the PoA Act.
Arrest and False Implication
The Court issued directions on the filing of FIRs under the PoA Act and on procedures of making arrests in cases of atrocities against SCs and STs. Before the Court could decide the issue, it commenced with the premise that
the said Act should not be converted into a character for exploitation or oppression by any unscrupulous persons or by police for extraneous reasons against other citizens as has been found on several occasions in decisions referred to above … Law should not result in caste hatred. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 75)
In the light of the data cited by the lawyers, judgments of various high courts, observations of the standing committee of Parliament, and the judgment of the Supreme Court in Lalitha
Kumari v State of Uttar Pradesh (2014), the Court concluded
We are of the view that cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held. Such inquiry must be time-bound and should not exceed seven days in view of directions of Lalitha Kumari. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 79)
In the concluding paragraph, the Court expressly directed that,
To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP (Deputy Superintendent of Police) concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 84[iv])
In the Lalitha Kumari case (2014: para 120.6), the Supreme Court gave directions that in certain types of cases, such as matrimonial/family disputes, commercial offences, medical negligence, corruption and cases with abnormal and unexplained delays in initiating criminal prosecution, preliminary inquiry should be conducted before filing the FIR. The reason for instituting such inquiry was the change in genesis and novelty of crimes with the passage of time (Lalitha Kumari 2014: para 115). Now the question is, whether cases of caste atrocities do fall in the exceptional category as those mentioned in the Lalitha Kumari case, such that the need for a preliminary inquiry prior to filing FIR rises. The offence of committing an atrocity, as listed in Section 3 of the PoA Act, includes some of the worst forms of violence inflicted by upper castes against members of the SCs and the STs. Far from preliminary inquiries, once reported, such cases require immediate action from the state.
The principal object of the FIR from the point of view of the informant is to set the criminal law machinery in motion (see Hasib v State of Bihar 1972). As per Section 154 of the CrPC and also Rule 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, the police cannot refuse to register any complaint/information received at the police station. If the police fail to do so, Rule 5(3)—if any person is aggrieved by a refusal on part of the officer in-charge of police station to record the information, she may send by post the substance of such information in writing to the superintendent of police concerned—is provided as a remedy in such a situation. Yet, despite such legislative safeguards, it is the day-to-day experience of the SCs and the STs that their FIRs are routinely rejected and left unregistered in police stations (NHRC 2002: 113–14). The common experience all over India is that the police officer in-charge does not register the FIR unless the deputy superintendent of police (DSP) permits/directs the officer to do so. Even if it is registered, the offences are not registered under proper sections of the PoA Act. Taking note of this phenomenon, Parliament in 2016 defined the duties of public servants2 and the punishments for violation of the same, which includes imprisonment up to one year.
This delay in registration of FIRs is used by the accused to pressurise the victims to take back their complaint and if not, to file false cases against the complainants. The upper castes exploit every rung of the criminal justice system, either to suppress their crimes or to further harass SCs and STs. The direction of the Court in the Mahajan case to not register an FIR until a preliminary inquiry by a senior officer, essentially legalises the hitherto rampant delay in registering FIRs. The Court’s remark—“law should not result in caste hatred”—betrays complete ignorance of the reality of caste in India and in one stroke makes out all atrocity complaints to be fraudulent. The statement “law should not result in caste hatred” then should apply to all laws and not only the PoA Act. What about the phenomenon of filing robbery cases against Dalits and Adivasis to suppress atrocity complaints (Justice Punnaiah Commission 2001: 145)? Will the Court add a similar filter to all the cases where there is allegation of misuse of law?
As regards arrests in atrocity cases, the Court directed as follows,
Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, 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, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated.(Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 81; emphasis added)
In the concluding paragraph, the Court passed the following order:
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. (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 81[iii])
This means that if an FIR is registered solely under the PoA Act, then a preliminary inquiry is mandatory and arrests approved by a higher authority than the investigating officer. But, if the FIR includes provisions of other criminal laws, for example the IPC, then arrests could be made without following the above procedure.
Under the CrPC, wide powers have been conferred on the police for making arrests without warrant under the circumstances mentioned in Section 41. The word “may” in Section 41(1) suggests that a police officer has discretion in making arrests without warrant, whereas Clause (1)(a) expands the scope of this discretion in respect of cognisable offences. However, these powers are not without limitations. The requirements of reasonability and credibility tend to prevent the misuse of such power. What is reasonable complaint or suspicion or what is credible information must depend upon the facts and circumstances in each case.
Arrest may be necessary for the purpose of securing the attendance of the accused at the time of trial, but it may also become necessary as a preventive or precautionary measure in respect of a person intending to commit a cognisable offence, or a habitual offender or an ex-convict (see Sections 151 and 110 of the CrPC). Though all the offences under the PoA Act are cognisable in the Mahajan case, the Court takes away the discretion of the police officer to arrest in atrocity cases. Even if the police officer is reasonably convinced and has credible information of the commission of offence, they cannot arrest the accused without the permission of the specified higher authority. The Court further directs that any violation of its directions with regard to the filing of FIRs and the arrests of accused would be punishable by way of disciplinary action as well as contempt of court (Subhash Kashinath Mahajan v State of Maharashtra and Another 2018: para 83[v]). The Court, in a sense, has made the filing of FIRs and arrest of accused impossible in atrocity cases. The Court provides no remedy to the members of SCs and STs, whose complaints will most likely be declared “frivolous” or “motivated” at the end of the preliminary enquiry by the DSP and result in non-registration of FIRs. Can the aggrieved then invoke Section 190 of the CrPC?3 The Court is silent on this. Even if it is possible, this whole process makes access to justice much more difficult for a member of the SCs/STs.
Let us take a hypothetical case. A member of the SC/ST is publicly humiliated by his superior officer at the workplace. If they attempt to register an FIR at a police station, the officer in-charge would request the DSP to conduct a preliminary inquiry. The DSP, for reasons known to him, refuses to give permission. In such a case, the complainant is left with no choice but to live with the humiliation, which may pave the way for further harassment. Similarly, if a land belonging to a member of an ST is wrongfully occupied and cultivated by a non-SC/ST member, what remedy does he have if the DSP refuses to even register an FIR? Registration of FIRs is a basic right of every citizen to claim justice. However, the Mahajan judgment has rendered this right of the SCs and the STs to be held ransom to the mercy of senior police officers. If the senior 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, a prior permission of the appointing authority for a public servant and of the superintendent of police for non-public servants makes the arrest of the culprits impossible in a caste-ridden society. If the culprit is not arrested, or he is set free on bail, or after the conviction he is given the benefit of Probation of Offenders Act, 1958, it results in boosting the courage/impunity of upper castes in general and perpetrators in particular in committing further crimes against SCs and STs.
Going by the figures provided by the NCRB (2016), every day four Dalit women are raped, two Dalits are murdered, two Dalit houses are burnt, and 11 Dalits are beaten up. This is a gross understatement; conservatively speaking, hardly one in 50 crimes gets registered in India. This is the plight of a people whose number—201 million—exceeds the entire population of Eastern Europe (Teltumbde 2008). Yet, their condition is worse than that of any social minority in any country. We, perhaps, have the most egalitarian Constitution, but the regime that operates it has sustained a society that is the most inegalitarian. To name a few violent crimes against Dalits in post-independence India: Kilvenmani (44 Dalits burnt alive in Tamil Nadu, 1968), Belchi (14 Dalits burnt alive in Bihar, 1977), Karamchedu (six Dalits murdered, three Dalit women raped and many more wounded in Andhra Pradesh, 1984), Chunduru (nine Dalits massacred and dumped in a canal in Andhra Pradesh, 1991), Melavalavu (an elected Dalit panchayat leader and five Dalits murdered in Tamil Nadu, 1997), Kambalapalli (six Dalits burnt alive in Karnataka, 2000), Jhajjar (five Dalits lynched near a police station in Haryana in 2003), Khairlanji (four members of a Dalit family brutally murdered by villagers in Maharashtra, 2006), Sunpedh (two Dalit toddlers were burnt alive in Ballabhgarh, Haryana, 2015), and many more. The incidents listed here may not figure in any history of post-independence India. In fact, most Indians may not even have heard of these places.
At many places in the Mahajan judgment, there is no logical connection between the authorities cited by the Court and the conclusion of misuse of the PoA Act. The Court made its argument with a prejudiced perception of the functioning of the act. It has failed to recognise the overall non-implementation of the PoA Act and the reasons for low conviction and high acquittals therein. As regards grant of anticipatory bail, if the Court was of the opinion that the Balothia and Manju Devi cases were wrongly decided, it could have recommended these to be reviewed by a larger bench of the Supreme Court. Instead, the judges decided the issue by completely deviating from of the original, unambiguous meaning of the earlier rulings. Thus, the Mahajan case is per incuriam. The Court has made the filing of FIRs and arrest of the accused impossible in PoA Act cases while simultaneously providing no remedy to members of the SCs and the STs, instead rendering their complaints “frivolous” or “motivated.”
Laws and legal processes are never self-executing; they depend on human agency and institutions. In India, the ruling classes and castes have always flaunted the existence of an egalitarian Constitution and a plethora of laws, which appear flawless, sincere, and earnest on paper. The complicity on the part of state agencies along with socially powerful groups in a poor implementation of the PoA Act, both in letter and spirit, has exacerbated the vulnerability of the SCs and the STs to communal violence. The Supreme Court judgment may turn out to be a licence for upper-caste culprits to violate the law with impunity from now on. Relying on incorrect facts and faulty premises of the misuse of the PoA Act, the Court has made the SCs and the STs of India more vulnerable. It would be appropriate for the Supreme Court to undo the wrongs caused to these sections in the interest of justice and in furtherance of the constitutional values of fraternity, equality and justice.
1 Section 18 of the PoA Act reads thus: “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.”
2 See Sections 4(1) and 4(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.
3 Section 190 of the CrPC empowers the magistrate to take cognisance of any offence upon receiving a complaint of facts which constitutes an offence.
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Shakuntla Devi v Baljinder Singh (2014): 15 SCC 521.
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Teltumbde, Anand (2008): Khairlanji: A Strange and Bitter Crop, New Delhi: Navayana.
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Nitish Nawsagaray (firstname.lastname@example.org) teaches at the Indian Law Society’s Law College, Pune.