Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Supreme Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra reported as [2018] 4 SCR 877, while dealing with the 1989 Act issued guidelines inter alia viz.- (iii) in view of acknowledged abuse of law of arrest under the 1989 Act, arrest of public servant can only be after approval of the appointing authority and in case of non-public servant after approval by the S.S.P; (iv) preliminary inquiry by Dy.S.P to find out whether allegations make out a case under the 1989 Act and that the same are not frivolous/motivated – Review of – Held: As the members of the Scheduled Castes and Scheduled Tribes have suffered for long; protective discrimination has been envisaged u/Art.15 and the 1989 Act to make them equals – Offences under the 1989 Act are cognizable – Impugned directions put riders on the right to arrest – It is not open to the legislature to put members of SCs and STs in disadvantageous position vis-à-vis others and in particular to socalled upper castes/general category –What legislature cannot do legitimately, cannot be done by the interpretative process by the courts – For lodging false report, the caste of person is not the cause – It is due to the human failing and not due to the caste factor – There may be certain false cases and that can be ground for interference by the Court u/s.482, CrPC, but the law cannot be changed due to such misuse –More than 47,000 cases were registered in 2016 under the 1989 Act –Number is alarming, and it cannot be said that it is due to the misuse of the Act – To say that report lodged by an SC/ST would be registered only after preliminary investigation by Dy. S.P, whereas under Cr.PC a complaint lodged relating to cognizable offence has to be registered forthwith, would mean that report by upper-caste has to be registered immediately and arrest be made forthwith and thus, would be opposed to the protective discrimination meted out to the members of the SCs and STs as envisaged u/Arts.15, 17 & 21– Guidelines (iii), (iv) appear to have been issued in view of the provisions of s.18, 1989 Act, whereas adequate safeguards have been provided by purposive interpretation by Supreme Court in State of M.P. v. R.K. Balothia [1995] 1 SCR 897 – Permission of the appointing authority to arrest public servant is not at all statutorily envisaged and amounts to mandate having legislative colour which is a field not earmarked for the Courts – 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– Further, in case of non-public servant requiring the approval of SSP for the arrest of accused could not have been made sine qua non, as it may delay the matter – As the approval of arrest by appointing authority/S.S.P. have not been approved, the direction to record reasons and scrutiny by Magistrate consequently stands nullified – Direction nos.(iii),
(iv) issued by Supreme Court recalled – Consequently, direction no.(v) also vanishes –Constitution of India– Arts.15, 17, 21 and
142 – Code of Criminal Procedure, 1973 –ss. 2(c), 41, 197, 438 & 482– Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 – r.7(2) – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Rules, 2016. Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 –s.18 – Held: Provision of s.18 cannot be said to be violative of Art.21 – Constitution of India – Art.21. Constitution of India – Art.142 – Exercise of powers under – Impugned guidelines/directions issued by the Supreme Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra reported as [2018]
4 SCR 877, inter alia directing that under the 1989 Act, arrest of public servant can only be after approval of the appointing authority; in case of non-public servant after approval by the S.S.P and also for a preliminary inquiry by Dy.S.P to find out whether allegations make out a case under the Act and that the same are not frivolous/motivated – Held: Directions encroach upon the field reserved for the legislature and are against the concept of protective discrimination in favour of down-trodden classes u/Art.15(4) and also impermissible within the parameters laid down by Supreme Court for exercise of powers u/Art.142 – Impugned directions recalled – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Judicial Review – Scope of and issuance of guidelines – Discussed.
Allowing the review petitions, the Court
HELD: 1.1 The provision of Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be said to be violative of Article 21. 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. All the offences under the Atrocities Act are cognizable. The impugned directions put the riders on the right to arrest. As per the existing provisions, the appointing authority has no power to grant or withhold sanction to arrest concerning a public servant. 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 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.[Paras 19, 37, 38 and 41] [1150B; 1167-B-C; 1168-D-E]
1.2 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. The provisions of the Act of 1989 are, in essence, concomitants covering various facets of Article 21 of the Constitution of India. 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. 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. What legislature cannot do legitimately, cannot be done by the interpretative process by the courts. 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.[Paras 45, 47 & 48] [1170-C-E, G; 1171-A-E]
1.3 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 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. 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. 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. 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. 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. 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 supportive action as per the mandate of Constitution is required to make them equals. 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. 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. The consistent view of Supreme 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, a Constitution Bench of this Court 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. 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. [Paras 49-55] [1171-F-G; 1172-A-C, E-H; 1173-A-G] In re: sanction of the appointing authority:
1.5 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. 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. 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. The direction is discriminatory and would cause several legal complications.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. [Paras 56-59] [1173-H; 1174-A-E; 1175-A-B]
1.6 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, may be 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. 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. 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. [Paras 60-62] [1175-C-F; 1176-C]
In ref: approval of arrest by the SSP in the case of a nonpublic servant:
1.7 Inter alia for the reasons as mentioned earlier, 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. 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. [Para 63] [1176-D-F]
Requiring the Magistrate to scrutinise the reasons for permitting further detention:
1.8 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. Even otherwise, the approval of arrest by appointing authority/S.S.P. has not been approved, the direction to record reasons and scrutiny by Magistrate consequently stands nullified. 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 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 (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. 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, direction Nos.(iii) and (iv) issued by this Court are recalled and consequently it is held that direction No.(v), also vanishes. [Paras 64-66] [1176-GH; 1177-A-F, H; 1178-A-B]
Lalita Kumari v. Government of U.P. (2014) 2 SCC 1: [2013] 14 SCR 713 ; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375 ; Bachan Singh v. the State of Punjab (1980) 2 SCC 684 ; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC
1 : [2007] 1 SCR 706; Bhim Singh v. Union of India (2010) 5 SCC 53 ; State of T.N v. State of Kerala (2014)
12 SCC 696 : [2014] 12 SCR 875 ; Khadak Singh v. State of Himachal Pradesh AIR 1963 SC 1295 :
[1964] SCR 332 ; Olga Tellis v. Bombay Corporation AIR 1986 SC 180 : [1985] 2 Suppl. SCR 51 – followed. National Campaign on Dalit Human Rights & Ors v. Union of India & Ors. (2017) 2 SCC 432 : [2016] 9 SCR 122 ; State of M.P. v. Ram Krishna Balothia (1995) 3 SCC 221 : [1995] 1 SCR 897; Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390 : [2014] 9 SCR 283 ; Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors. 1(989) 2 Suppl. SCC 364 : [1989] 3 SCR 19 ; Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.
(2007) 1 SCC 408 : [2006] 9 Suppl. SCR 73; Divisional Manager, Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 : [2007] 12 SCR 1084 ; Kuchchh Jal Sankat Nivaran Samili & Ors. v. State of Gujarat & Anr. (2013) 12 SCC 226 ; Hinch Lal Tiwari v. Kamla Devi (2001) 6 SC 496 : [2001] 1 Suppl.SCR 23 ; Francis Coralie Mullin v. Union Territory Delhi, Administrator AIR 1981 SC 746 : [1981] 2 SCR 516 ; People’s Union for Civil Liberties v. Union of India (2005) 2 SCC
436 : [2005] 1 SCR 494; Umesh Kumar v. State of Andhra Pradesh (2013) 10 SCC 591 : [2013] 14 SCR 213; Kishore Samrite v. State of Uttar Pradesh (2013)
2 SCC 398 : [2012] 9 SCR 733 ; Subramanian Swamy v. Union of India (2016) 7 SCC 221 : [2016] 3 SCR
865 ; Kailas & Ors. v. State of Maharashtra (2011) 1 SCC 793 : [2011] 1 SCR 94 ; State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 : [2004] 6 Suppl. SCR 460 – relied on.
State of Haryana & Ors. v. Bhajan Lal & Ors. (1992) 1 Suppl. SCC 335 : [1990] 3 Suppl. SCR 259; Supreme Court Bar Association v. Union of India (1998) 4 SCC
409 : [1998] 2 SCR 795 ; Prem Chand Garg v. Excise Commr. AIR 1963 SC 996 : [1963] Suppl. SCR 885; E.S.P. Rajaram v. Union of India (2001) 2 SCC 186: [2001] 1 SCR 203; A.R. Antulay v. R.S. Nayak (1988)
2 SCC 602 ; Bonkya v. State of Maharashtra (1995) 6 SCC 447:[1995] 4 Suppl. SCR 89; M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 : [2000] 1 Suppl. SCR
389 ; State of Punjab v. Rajesh Syal (2002) 8 SCC 158 : [2002] 3 Suppl. SCR 124; Textile Labour Association v. Official Liquidator (2004) 9 SCC 741 : [2004] 3 SCR 1161 ; Laxmidas Morarji v. Behrose Darab Madan (2009) 10 SCC 425 : [2009] 14 SCR 777; Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [2010] 2 SCR
414 ; A.B. Bhaskara Rao v. CBI (2011) 10 SCC 259 : [2011] 12 SCR 718 ; State of Punjab v. Rafiq Masih (2014) 8 SCC 883 : [2014] 8 SCR 228; Vishakha v. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; S.C. Chandra v. State of Jharkhand (2007)
8 SCC 279 : [2007] 9 SCR130 ; Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454 : [2018] 4 SCR 877 – referred to.
Stock v. Frank Jones (Tipton), 1978 (1) WLR 231 – referred to.
Salmond on Jurisprudence, 12 th Edition; Sweet & Maxwell – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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