SC: Officials Can't Be Arrested Under SC/ST Act Without Nod

Let me begin at the very beginning by registering my immense satisfaction to note that now finally while insulating the government servants from the indiscriminate and gross abuse of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the Supreme Court finally on March 20 decided to step on the gas and take the bold decision in the landmark case of Dr Subhash Kashinath Mahajan v The State of Maharashtra and another by ruling that government servants cannot be arrested without prior sanction of a competent authority. It is not hidden from anyone as to how much this Act has been notoriously misused to settle scores. This alone explains why Supreme Court decided to speak up after nearly 30 years of it being enacted into a law!

More to the point, twenty eight years after the enactment of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, the Supreme Court on March 20 tweaked the law to protect innocent people from the sweep of its draconian provisions which denied anticipatory bail to an accused and led to automatic arrest. This will certainly go a long way in checking blatant blackmail and gross misuse to settle scores under the SC/ST Act. This also is the crying need of the hour.

To be sure, from now on, it has been made mandatory by the Apex Court that the arrest of any citizen under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, will require a written approval from a police officer of the rank of Senior Superintendent of Police (equivalent to Additional Commissioner of Police) who will record reasons why an arrest is necessary. It has also been stipulated that where a public servant is involved, the approval must come from the appointing authority. Even at the stage of registration of a case, it will be open to police to conduct a preliminary enquiry (by a DSP rank officer) and not proceed in cases where allegations are found to be frivolous or motivated.

Further, as an additional safeguard to check the blatant abuse of the provisions of the SC/ST Act, the two Judge Bench of the Apex Court comprising of Justice Adarsh K Goel and Justice UU Lalit noted that when an accused is arrested and produced before a Magistrate, the concerned court can apply its mind to ascertain if a prima facie case under the Act is made out. Based on its conclusions, further remand or detention of the accused can be refused. Section 18 of the 1989 SC/ST Act did not allow an accused to get anticipatory bail.

Needless to say, Section 18 was misused in most of the cases to ensure that the accused did not get anticipatory bail even when the case was not very serious. The Apex Court certainly took the right step by stepping in to remove this bar by interpreting that the provision will not apply to such cases where no case is made out or allegations are patently false or motivated. This was considered necessary to prevent and effectively check the frequent blackmail of public servants from vested interests in discharging their official functions and common citizens too were faced with threat of jail and surrender of civil rights.

It goes without saying that the anti-atrocities law which was enacted primarily to ensure the protection of Scheduled Castes and Scheduled Tribes from any kind of casteist slurs and discrimination has itself emerged as an instrument to 'blackmail' innocent citizens and public servants. This had become a matter of grave concern for all right minded people in our country! It remained in the news more for its being misused than being used in the correct spirit.

This is exactly what the Supreme Court observed also in its landmark 89-page judgment. The Bench of Apex Court said that the past three decades have seen complaints who belong to the marginalised sections of society - use the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 to exact 'vengeance' and satisfy vested interests. It was very rightly observed by the Supreme Court Bench comprising of Justices AK Goel and UU Lalit that, 'Innocent citizens are termed accused, which is not intended by the legislature. The Legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance or to deter public servants from performing their bona fide duties.'

Going forward, the Bench of Apex Court also pulled back no punches on how this Act was being used maliciously when it stated in no uncertain terms that, 'Instead of blurring caste lines, the Act has been misused to file complaints to promote caste hatred. The current working of Atrocities Act may even 'perpetuate casteism' if it is not brought in line and the court needs to intervene to check the 'false implication of innocent citizens on caste lines'.' Can this nation allow casteism to be perpetuated? Can this false implication of innocent citizens on caste lines be allowed to go unchecked and unabated?

Going a step forward, the Bench further went on to add that, 'The Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by the police for extraneous reasons against other citizens. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This court must enforce such a guarantee. Law should not result in caste hatred.' Absolutely right! It also minced no words in pointing out that, 'The 1989 Act penalises casteist insults and even denies anticipatory bail to the suspected offenders. The law is therefore used to rob a person of his personal liberty merely on the unilateral word of the complainant'.

To put things in perspective, Justice AK Goel wrote that anticipatory bail should be allowed if the accused is able to prima facie prove that the complaint against him is malafide. The court referred to how public administration has been threatened by the abuse of this Act. Public servants find it difficult to give adverse remarks against employees for fear that they may be charged under the Act. This is really reprehensible and cannot be justified under any circumstances! Law is meant to be used and not misused or be abused!

This alone explains why the Supreme Court decided to step in and check the abuse of this SC/ST Act from being abused! Issuing a slew of guidelines to protect public servants and private employees from arbitrary arrests under the Atrocities Act, the Supreme Court directed that public servants can only be arrested with the written permission of their appointing authority. In the case of private employees, the SSP concerned should allow it. Besides this precaution, a preliminary inquiry should be conducted before the FIR is registered to check whether the case falls within the parameters of the Atrocities Act and if it is frivolous or motivated.

It needs no rocket scientist to conclude that what prompted the court to think on these extreme lines was the glaring misuse of law over the decades. The Bench of Justices AK Goel and UU Lalit relied on data supplied by the National Crime Records Bureau (NCRB) to draw its conclusion. In 2015, out of the total complaints investigated by police under the Act, closure reports were filed in almost 16 percent cases. As if this was not enough, out of the total cases handled by courts under the Act in the same year, more than 75 percent cases ended up in acquittal, withdrawal or compounding of cases.

What is even more disconcerting to note is that even the crime in India - 2016 statistics compiled by the NCRB drew similar results. In 2016 alone, under the Act, 5,347 cases were found to be false against the Scheduled Castes and 912 against Scheduled Tribes. The annual Report 2016-17 of the Department of Social Justice and Empowerment, the Government of India compiled figures to show that in year 2015, a total of 15,638 cases under the Act were decided by courts across the country of which a whooping 11,024 cases resulted in acquittal or discharge and only 4,119 cases resulted in conviction. Can there be a bigger proof than this of the blatant and brutal abuse of this SC/ST Act as a weapon to harm those whom they like, when they like, where they like and as they like?

Taking serious note of the above reports, the Bench observed 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.' The court noted yet another trend that a large number of complaints were directed against public servants, judicial or quasi-judicial officers with an 'oblique motive' of vested interests. This yet is another clear pointer of how this Act meant to safeguard Scheduled Castes and Scheduled Tribes has instead become a 'weapon of attack' used primarily against public servants, judicial or quasi judicial officers!

Truth be told, the Bench minced no words in stating most unambiguously that, 'The underprivileged need to be protected against any atrocities to give effect to the constitutional ideals. At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for any extraneous reasons against other citizens. Any harassment of an innocent citizen, irrespective of caste or religion is against the guarantee of the Constitution. This court must enforce this guarantee. Law should not result in caste hatred.' Who can deny or dispute this? None!

It is noteworthy that the court was aware that it cannot legislate and respected the legislative wisdom behind creating such an legislation. Even Parliament had debated the misuse of this Act in 2015 but left it to the affected citizens to invoke suitable remedy under the IPC once the charge is proved false. But in a paradigm shift, the court viewed the case from the standpoint of personal liberty of citizens under Article 21, which the court is bound to adjudicate upon. While perpetrators should not go scot free, the Bench added that no law can mandate arrest of an innocent by limiting even his pre-arrest bail.

It must be brought out here that the Bench was hearing a petition filed by Subhash Kashinath Mahajan who was the Director of Technical Education, Maharashtra against a Bombay High Court order. The High Court had rejected Mahajan's plea challenging an FIR against him for denying sanction to prosecute an official of the department, who had made adverse remarks in the ACR of an employee. The Bench quashed the case saying the proceedings were a 'clear abuse of process of court'. It also noted the 'abuse' of the law in the nearly three decades of its operation.

Simply put, the Bench said that, 'This court is not expected to adopt a passive or negative role and remain a by stander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights...Role of this court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute.'

Be it noted, while justifying its decision to allow anticipatory bail where there was no prima facie case, the Bench said that, 'Unless exclusion of anticipatory bail is limited to genuine cases...there will be no protection available to innocent citizens. Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution.' While appearing for the Centre, Additional Solicitor General Maninder Singh had said that anticipatory bail could be allowed if no prima facie case was made out.

Going ahead, the Bench reiterated that, 'We are satisfied in the light of statistics already referred to as well as cited decisions and observations of the standing committee of Parliament, that there is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law, which is against the constitutional guarantee and law of arrest laid down by this court.' What the Bench has said is absolutely right! Law must be used and not misused!

In plain words, the Bench said that the working of the Act 'should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values'. It also ruled that, 'Secularism is a basic feature of the Constitution. Irrespective of caste or religion, the Constitution guarantees equality in its preamble as well as other provisions including Articles 14-16. The Constitution envisages a cohesive, unified and casteless society. We are thus of the view that interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. We are thus of the view that interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require a check on false implication of innocent citizens on caste lines.' Gopal Sankaranarayanan who is an advocate of Supreme Court rightly said that the judgment should be encouraged to check the misuse of law.

Before winding up, it must be revealed here that the Apex Court clarified that in doing so, it was not 'diluting the efficacy of Section 18 of SC/ST Act in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention.' In other words, Section 18 will continue to apply where the case is genuine and not false! In essence, it is a landmark judgment which while inserting safeguards to check the abuse of the SC/ST Act has also left no room of doubt to clarify that it will continue to apply in genuine cases! One cannot ask for more! It has sent the right message that laws are meant to be used and not abused! To ensure this, it has also rightly laid down that there must be certain adequate safeguards which must be always rigorously followed to check abuse of law!

 

Sanjeev Sirohi 
on 03 April 2018
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