Explained: SC/ST judgment, in review(Mains Paper 2 : Laws, Institutions & Bodies Constituted For The Vulnerable Sections )

The Supreme Court has recalled its directions in a March 20, 2018 verdict that had effectively diluted provisions of arrest under the SC & ST (Prevention of Atrocities) Act, 1989.
This was following a plea by the Centre seeking a review of that judgment.
The court accepted that Dalits have suffered for long and negated the basis of last year’s judgment in which the court had commented on false cases under the Act.

Review of a judgment

‘Review’ of a Supreme Court judgment is done by the same Bench.
‘Overruling’ means that the law laid down in one case is overruled in another case.
When a higher court on appeal alters the judgment of a lower court, it is called ‘reversal.’
Generally, a review is heard in the judge’s chamber, but may be heard in open court in important cases — as in the Sabarimala and Rafale cases, in which no order has been pronounced yet.

Why was the SC/ST Act enacted?

Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

Why reviewed now?

The review stated that despite various measures to improve the socio-economic conditions of the SCs and STs, 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.

Human failings not Caste

The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
Caste of a person cannot be a cause for lodging a false report, the verdict observed.
Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

The Subhash Kashinath Mahajan case

Mahajan was Director of Technical Education in Maharashtra.
Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
The denial was challenged on the ground that the state government and not the director was the competent authority.
The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

ANTICIPATORY BAIL

In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

FIR

The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
He rejected the need of an SSP’s approval for arrest.

PERMISSION

In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

Were other provisions diluted?

The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
This may require ‘check on false implication of innocent citizens on caste lines’.
Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

How frequently do SCs/STs face atrocities?

A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

Were similar guidelines not issued by the SC in other cases?

The Supreme Court can lay down guidelines only in cases of legislative gaps.
For instance, it laid down guidelines on sexual harassment, khap panchayats, lynching etc.
But where the field is occupied by parliamentary legislation, the judiciary is bound by the text of law.
It can, however, examine constitutionality of such a law.
The review order observed that the March 2018 guidelines encroached upon the field reserved for Parliament, and therefore recalled these directions