SC Says Protests Misled, Declines To Stay Its Order

To begin with, it is no wonder that the Supreme Court on April 3 refused to put in abeyance its landmark judgment titled Dr Subhash Kashinath Mahajan v The State of Maharashtra and another which was delivered on March 20 banning automatic arrests without prior permissions for offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, saying its March 20 order only meant to safeguard innocent people without affecting the rights of the marginalised communities. It is most shameful and shocking that political parties just for gaining maximum political mileage used this landmark ruling to send a wrong message that the rights of the Scheduled Castes and the Scheduled Tribes were now going to end and they would not get any reservation benefit also. Nothing can be further from the truth!

To put things in perspective, the Apex Court, however, said it would consider the arguments against its judgment from all parties involved at the next hearing that will be scheduled sometime after 10 days. The Bench of Justices AK Goel and UU Lalit was hearing a review petition field by the National Democratic Alliance (NDA) government a day after nine people were killed in violent protests in several parts of the country, prompting leaders of all major political parties to call for an urgent need to reconsider what they described as a 'dilution' of the act by the court. On Tuesday, the court asked for written submissions from all parties involved and refused intervention by others who were not party to the case that originated in Maharashtra.

Simply put, the Apex Court made it absolutely clear about its landmark judgment just mentioned above that -

1. The people who are agitating over the Supreme Court order may not have read the judgment properly.

2. The Dalit protesters must have been misled by people with vested interests.

3. The court has not diluted any provision of the SC/ST Act but only safeguarded the interests of the innocents.

4. Only offences mentioned in the SC/ST Act are the subject matter of the judgment and other cognizable offences under IPC would not require inquiry before an FIR.

Needless to say, Justice AK Goel who authored the verdict very rightly observed that, 'An innocent should not be punished. There should not be terror in society. We do not want any member of the SC/ST to be deprived of his rights. We only want an innocent not to be punished. He also rightly said that, 'The judgment, in fact, fortifies the Dalit protection law - the Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act of 1989. Absolutely right! Where is the doubt in it? Only those political parties who have vested political interests to fulfill have spread absolutely false rumours about the landmark judgment which are nothing but a web of lies and a figment of fake imagination!

Not stopping here, Justice Goel also rightly observed while addressing Attorney General KK Venugopal that, 'Our judgment implements what is said in the Constitution. We are conscious of the rights of the underprivileged and place them at the highest pedestal…but at the same time, an innocent person cannot be falsely implicated and arrested without proper verification. We have not stopped the implementation of the Act. Does the Act mandate the arrest of innocent persons? Our judgment is not against the Act.' He called the judgment a ‘balance' between Dalit rights and right of an innocent against arrest in a false case. There can be no denying or disputing it! Only they will question this judgment who either don't understand plain English or who want to give it a political colour to it as has been given actually to serve their vested and narrow political interests! The court's amicus curiae and senior advocate Amarendra Sharan indicated that vested interests were fuelling the protests! Is there any doubt on this? Certainly not!

No doubt, the landmark judgment directs a 'preliminary enquiry' to be conducted on whether a complaint filed by a Scheduled Caste/Scheduled Tribe member is frivolous or not. An FIR would be registered only after the probe officer, Deputy Superintendent of Police, authenticates the complaint of castiest slur or crime. So what is wrong in it? What else has been done other than just inserting a credible safeguard? Why so much of brouhaha and hullabaloo over it?

Truth be told, when KK Venugopal said that such an enquiry would delay the grant of compensation to victims under the Act, Justice Goel said that grant of money from the public exchequer should be preceded by verification against false claims. This ‘preliminary inquiry' serves that purpose. At one point, Justice Goel asked Venugopal how even the Attorney-General could function if made a victim of a false complaint. Absolutely right!

On the aspect of misuse of the Act, amicus curiae Amarendra Sharan said that the Centre cannot deny misuse of the Act as in the earlier round, it be produced a Parliamentary Standing Committee report showing how the law was being misused leading to issuance of advisories to States and UTs. Even the Bench told the A-G that abuse may not be by SC/ST members but may be by police or some vested interests. The Bench said, 'There should not be any terror in society against cases taken up under this Act. In cases where there is verifiable material or a grievous offence of against SC/ST, preliminary enquiry may not be necessary but where verification is not possible, an individual's liberty cannot be curtailed without enquiry and our order provides an outer limit of one week for such enquiry. We are not against Act but an innocent should not be punished.' It is most tragic that inspite of such clear instructions from the Supreme Court Bench, it has been misinterpreted wrongly and all types of rumours spread without even studying the judgment properly!

As it turned out, Rajnath Singh who is Union Home Minister made it clear that rumours on account of the SC/ST Act were completely false and baseless. It was also pointed out that SC/ST Act, 1989 was amended recently to include new offences and to ensure speedy justice to victims. The amended law had come into effect from January 26, 2016. Still how can any sane person raise question marks over sincerity of the Centre on this all-important issue?

Truly speaking, Venugopal said the people protected under the Act have faced tremendous deprivation over centuries and the judgment encroached on legislative terrain. Justice Goel rightly felt that this was a 'diversionary tactic' and replied that, 'But we are concerned with Article 21 (personal liberty), protection from arbitrary arrest.' Right!

On the face of it, Venugopal said that personal liberty is subject to 'procedure established by law' and the law here is the 1989 Act, which has no provision for a preliminary enquiry. Justice Goel countered that the law should be reasonable then, and not call for immediate arrest. Venugopal challenged the logic by submitting that the danger of arbitrary arrest was spread across the penal law spectrum, and so, the mandate of a preliminary enquiry should not be confined to a complaint filed by a Dalit under the 1989 Act, but extended to all penal statutes.

Come to think of it, Venugopal, however, did not challenge the court's decision to allow accused persons to apply for anticipatory bail, though this formed a major chunk of the government's review petition filed on April 2. The 1989 law, in fact, prohibits anticipatory bail, saying an accused on bail may use his liberty to terrorise his victims. The Centre had, incidentally, in its review petition, argued that the denial of anticipatory bail was the very ‘backbone' of the 1989 law.

Noting that there was no requirement to stay its direction for preliminary enquiry, Justice Goel said registration of an FIR was not necessary to grant compensation to victims under the 1989 Act. Further, the Bench said, the preliminary enquiry was no bar to the registration of FIR for other allied offences under the Indian Penal Code. The Bench agreed to list the case for further hearing after all parties have filed their written submissions and rejoinders in the case.

Bluntly put, the registering of false cases under this SC/ST Act is ostensible from the cold figures which one can read that chargesheets were filed in 78.3% cases and the conviction rate was 25.8%. As many as 6,564 cases were registered over alleged crimes against the Scheduled Tribes in 2016 in which chargesheets were filed in 81.3% cases where the conviction rate was just 20.8%! This itself speaks the real story!

To say the least, Amarendra Sharan who is amicus curiae in the case said the March 20 judgment was based on the government's views about abuse of the 1989 law. Sharan submitted that, 'It was the government which gave the data, made the submissions and now they are challenging the judgment.' In open court, Justice Goel pointed out that it was the government which brought on record the Sixth Report of the Standing Committee on Social Justice and Empowerment (2014-15) on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014. The report had rejected the stand of the Ministry that there was no need to act against false or malafide implications under the Atrocities Act.

It must be brought out here that the judgment recorded Additional Solicitor General Maninder Singh's submissions for the Centre. Besides acknowledging abuse of the 1989 Act, the Centre agreed that Section 18 of the Act should be read down to allow anticipatory bail. The section forbids anticipatory bail. On the contrary, we saw how in the review petition, the Centre supported the ban on anticipatory bail and said it was not in violation of the fundamental right to personal liberty.

It must also be brought out here that similarly, the judgment quoted the Centre reeling out statistics supporting the abuse of the Act. For instance, the government said that in 2015, the government said that in 2015, the police filed closure reports for 15-16% of cases filed under the Act and over 75% cases resulted in acquittal or withdrawal. In its review petition, the Centre did flip-flop which the Apex Court rightly questioned. This time, it cited figures from2016 to show how weakly the Act was implemented. It said that of the 47,338 cases registered across the country, only 24.9% ended in conviction and 89.3% were pending.

It has to be said with deep regret that such an unseemly controversy has been created over such a landmark judgment that its pain will be felt in the hearts of all right minded persons for a long time to come! The Apex Court in its judgment had very rightly said that its directions only stopped the police from abusing their power of arrest. It rightly held that, 'Abuse is not by the SC/ST members but by the police because there is no forum such as the court to ascertain the veracity of the allegations. What we have done is provided a filter.' Sharan very rightly argued against the stay of the judgment by telling the Bench that a patent error, and not law and order could be the only ground to review an order.' He is absolutely right!


Sanjeev Sirohi 
on 13 April 2018
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