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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [C] NO. 1015 OF 2018

PRATHVI RAJ CHAUHAN ….PETITIONER(S)

VERSUS UNION OF INDIA & ORS. ….RESPONDENTS

WITH

WRIT PETITION [C] NO. 1016 OF 2018

J U D G M E N T

ARUN MISHRA, J.

1. The petitioners have questioned the provisions inserted by way

of  carving out section 18A of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as

well as section 18A, are reproduced hereunder:

“18. 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.” “Section 18A.  (i) For the purpose of this Act,-

(a)  preliminary  enquiry shall  be required for  registration  of  a  First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary,  of  any  person,  against  whom  an  accusation  of  having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.

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(ii) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”

2. It is submitted that section 18A has been enacted to nullify the

judgment of this Court in Dr. Subhash Kashinath Mahajan v. The State

of Maharashtra & Anr., (2018) 6 SCC 454, in which following

directions were issued:

“83. Our conclusions are as follows: (i) Proceedings in the present case are clear abuse of process of court and are quashed. (ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); (iii) 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 scrutinised by the Magistrate for permitting further detention. (iv) To avoid false implication of an innocent, a preliminary enquiry may  be  conducted  by  the  DSP concerned  to  find  out  whether  the allegations  make  out  a  case  under  the  Atrocities  Act  and  that  the allegations are not frivolous or motivated. (v) Any violation of directions (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.  The above directions are prospective.”

3. It has been submitted that this Court has noted in Dr. Subhash

Kashinath  (supra) that the provisions of the Act  of  1989 are being

misused as such the amendment is arbitrary, unjust, irrational and

violative of Article 21 of the Constitution of India. There could not have

been any curtailment of the right  to obtain anticipatory bail  under

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section 438 Cr.PC. Prior scrutiny and proper investigation are

necessary. Most of the safeguards have been provided under the Act of

1989 to prevent undue harassment. This Court has struck down the

provision  of section 66A of the Information  Technology  Act  on  the

ground of violation of fundamental rights; on the same anvil, the

provisions of section 18A of the Act of 1989 deserve to be struck down.

4. It is not disputed at the Bar that the provisions in section 18A in

the Act of 1989 had been enacted because of the judgment passed by

this Court in Dr. Subhash Kashinath's case (supra), mainly because of

direction Nos (iii) to (v) contained in para 83. The Union of India had

filed review petitions, and the same have been allowed, and direction

Nos (iii) to (v) have been recalled. Thus, in view of the judgment passed

in the review petitions, the matter is rendered of academic importance

as we had restored the position as prevailed by various judgments that

were in vogue before the matter of Dr. Subhash Kashinath (supra) was

decided. We are not burdening the decision as facts and reasons have

been assigned in detail while deciding review petitions on 1.10.2019

and only certain clarifications are required in view of the provisions

carved out in section 18A.  There can be protective discrimination, not

reverse one. We have dealt with various questions in the review

petitions while deciding the same as under:

“36. In the light of the discussion mentioned above of legal principles, we advert to directions issued in paragraph 83.  Direction Nos. (iii) and

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(iv)  and  consequential  direction  No.  (v)  are  sought  to  be reviewed/recalled. Directions contain the following aspects: -

1. That arrest of a public servant can only be after approval of the appointing authority. 2. The arrest  of  a  non-public  servant  after  approval  by  the  Senior Superintendent of Police (SSP).  3. The arrest may be in an appropriate case if considered necessary for reasons to be recorded; 4. Reasons  for  arrest  must  be  scrutinised  by  the  Magistrate  for permitting further detention; 5. Preliminary enquiry to be conducted by the Dy. S.P. level officers to  find  out  whether  the  allegations  make  out  a  case  and  that  the allegations are not frivolous or motivated. 6. Any violation of the directions mentioned above will be actionable by way of disciplinary action as well as contempt.  

37. Before we dilate upon the aforesaid directions, it  is necessary to take note of certain aspects. It cannot be disputed that 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.  

38. All  the  offences  under  the  Atrocities  Act  are  cognizable.   The impugned directions put the riders on the right to arrest.   An accused cannot  be  arrested  in  atrocities  cases  without  the  concurrence  of  the higher Authorities or appointing authority as the case may be.  As per the existing provisions,  the appointing authority has no power to grant or withhold sanction to arrest concerning a public servant.

39. The  National  Commission  for  Scheduled  Castes  Annual  Report 2015-16, has recommended for prompt registration of FIRs thus: "The Commission has noted with concern that instances of procedural lapses are frequent while dealing atrocity cases by both police and civil administration. There are delays in the judicial process of the cases.  The Commission,  therefore,  identified  lacunae  commonly  noticed  during police  investigation,  as  also  preventive/curable  actions  the  civil administration  can  take.  NCSC  recommends  the  correct  and  timely application  of  SC/ST (PoA)  Amendment  Act,  2015  and  Amendment Rules of 2016 as well as the following for improvement:

“8.6.1 Registration of FIRs - The Commission has observed that the police often resort to preliminary investigation upon receiving a complaint in writing before lodging the actual FIRs. As a result, the SC victims  have  to  resort  to  seeking  directions  from courts  for registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme Court has also on more than one occasion emphasized about registration of FIR first. This Commission again reemphasizes that the State / UT Governments should enforce prompt registration of FIRs.”

(emphasis supplied)

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40. The  learned  Attorney  General  pointed  out  that  the  statistics considered by the Court in the judgment under review indicate that 9 to 10 percent cases under the Act were found to be false.  The percentage of false  cases  concerning  other  general  crimes  such  as  forgery  is comparable, namely 11.51 percent and for kidnapping and abduction, it is 8.85 percent as per NCRB data for the year 2016.  The same can be taken care of by the Courts under Section 482, and in case no prima facie case is made out, the Court can always consider grant of anticipatory bail and power of quashing in appropriate cases.  For the low conviction rate, he submitted that same is the reflection of the failure of the criminal justice system and not an abuse of law.  The witnesses seldom come to support down-trodden class, biased mindset continues, and they are pressurised in several manners, and the complainant also hardly muster the courage.

41. As to prevailing conditions in various areas of the country, we are compelled  to  observe  that  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  various  parts  of  the  country.   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.  The efforts for their upliftment should have been percolated down to eradicate their sufferings.

42. Though,  Article  17  of  the  Constitution  prohibits  untouchability, whether untouchability has vanished? We have to find the answer to all these  pertinent  questions  in  the  present  prevailing  social  scenario  in different parts of the country.   The clear answer is that untouchability though intended to be abolished, has not vanished in the last 70 years. We are  still  experimenting  with  ‘tryst  with  destiny.'  The  plight  of untouchables  is  that  they  are  still  denied  various  civil  rights;  the condition  is  worse  in  the  villages,  remote  areas  where  fruits  of development have not percolated down. They cannot enjoy equal civil rights. So far, we have not been able to provide the modern methods of scavenging to Harijans due to lack of resources and proper planning and apathy.  Whether he can shake hand with a person of higher class on equal footing?  Whether we have been able to reach that level of psyche and human dignity and able to remove discrimination based upon caste? Whether  false  guise of cleanliness  can rescue the situation,  how such condition prevails and have not vanished, are we not responsible? The answer can only be found by soul searching. However, one thing is sure that we have not been able to eradicate untouchability in a real sense as envisaged and we have not been able to provide down-trodden class the fundamental  civil  rights  and  amenities,  frugal  comforts  of  life  which make life worth living. More so, for Tribals who are at some places still kept in isolation as we have not been able to provide them even basic amenities, education and frugal comforts of life in spite of spending a considerable amount for the protection, how long this would continue. Whether they have to remain in the status quo and to entertain civilized

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society?  Whether under the guise of protection of the culture, they are deprived of fruits of development, and they face a violation of traditional rights?

43. In  Khadak Singh vs.  State  of  Himachal  Pradesh, AIR 1963 SC 1295,  this  Court  has  observed  that  the  right  to  life  is  not  merely  an animal's existence. Under Article 21, the right to life includes the right to live with dignity. Basic human dignity implies that all the persons are treated as equal human in all respects and not treated as an untouchable, downtrodden, and object for exploitation.  It also implies that they are not meant to be born for serving the elite class based upon the caste. The caste discrimination had been deep-rooted, so the consistent effort is on to remove it, but still, we have to achieve the real goal.  No doubt we have succeeded partially due to individual and collective efforts.  

44. The  enjoyment  of  quality  life  by  the  people  is  the  essence  of guaranteed  right  under  Article  21  of  the  Constitution,  as  observed  in Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with human dignity  is  included in the  right  to  life  as  observed in  Francis Coralie  Mullin  v.  Union Territory Delhi,  Administrator,  AIR 1981 SC 746,  Olga  Tellis  v.  Bombay  Corporation,  AIR  1986  SC  180.  Gender injustice,  pollution,  environmental  degradation,  malnutrition,  social ostracism of Dalits are instances of human rights violations as observed by this  Court in  People’s Union for Civil  Liberties v.  Union of  India, (2005) 2 SCC 436:

"34. The question can also be examined from another angle. The knowledge  or  experience  of  a  police  officer  of  human  rights violation represents only one facet of human rights violation and its  protection,  namely,  arising  out  of  crime.  Human  rights violations are of various forms which besides police brutality are —  gender  injustice,  pollution,  environmental  degradation, malnutrition, social ostracism of Dalits, etc. A police officer can claim  to  have  experience  of  only  one  facet.  That  is  not  the requirement of the section."                           (emphasis supplied)

45. 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 as observed by this Court in Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, Kishore Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian Swamy v. Union of India, (2016) 7 SCC 221. The provisions of the Act of 1989 are, in essence, concomitants covering various facets of Article 21 of the Constitution of India. 46. They do labour, bonded or forced, in agricultural fields, which is not abrogated in spite of efforts. In certain areas, women are not treated

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with dignity and honour and are sexually abused in various forms. We see sewer workers dying in due to poisonous gases in chambers.  They are like death traps.  We have not been able to provide the masks and oxygen cylinders for entering in sewer chambers, we cannot leave them to  die  like  this  and  avoid  tortious  liability  concerned  with officials/machinery, and they are still discriminated within the society in the  matter  of  enjoying  their  civil  rights  and  cannot  live  with  human dignity.

47. 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 as observed in  Kailas  &  Ors.  v.  State  of  Maharashtra,  2011  (1)  SCC  793.  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 more so  when  we  have  a  peep  into  the  background  perspective.  What legislature cannot do legitimately, cannot be done by the interpretative process by the courts.  

48. 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.

49. 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

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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.

50. 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.

51. As  a  matter  of  fact,  members  of  the  Scheduled  Castes  and Scheduled Tribes  have suffered for long, hence,  if  we cannot  provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality  and against  the very  spirit  of  our  Constitution.  It would be against the basic human dignity to treat all of them as a liar or as  a  crook  person  and  cannot  look  at  every  complaint  by  such complainant with a doubt. Eyewitnesses do not come up to speak in their favour. They hardly muster the courage to speak against upper caste, that is  why  provisions  have  been  made  by  way  of  amendment  for  the protection  of  witnesses  and  rehabilitation  of  victims.  All  humans  are equal including in their frailings.  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. It cannot be presumed that a person of such class would inflict injury upon himself  and would lodge a false report  only to secure monetary benefits or to take revenge. If presumed so, it would mean adding insult to injury, merely by the fact that person may misuse provisions cannot be a ground to treat class with doubt. It is due to human failings, not due to the caste factor. 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.

52. 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.

53. 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

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supportive action as per the mandate of Constitution is required to make them equals.  It  does not  prima facie appear permissible  to  look them down  in  any  manner.  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 (supra).

54. 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, (1995) 3 SCC 221. The consistent view of this 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 (supra),  a Constitution Bench of this Court has 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.  

55. 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.

In re: sanction of the appointing authority :

56. 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.

57. 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, (2005) 1 SCC 568.

58. While issuing guidelines mentioned above approval of appointing authority  has  been made imperative  for  the arrest  of  a  public  servant under  the  provisions  of  the  Act  in  case,  he  is  an  accused  of  having committed  an  offence  under  the  Act  of  1989.  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.

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59. The  direction  is  discriminatory  and  would  cause  several  legal complications.  On  what  basis  the  appointing  authority  would  grant permission  to  arrest  a  public  servant?  When  the  investigation  is  not complete, how it can determine whether public servant is to be arrested or not? Whether it would be appropriate for appointing authority to look into case diary in a case where its sanction for prosecution may not be required in an offence which has not happened in the discharge of official duty. Approaching appointing authority for approval of arrest of a public servant  in  every  case  under  the  Act  of  1989  is  likely  to  consume sufficient  time.  The appointing authority  is  not  supposed to  know the ground  realities  of  the  offence  that  has  been  committed,  and  arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself.  Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of appointing authority, it is wholly extra-statutory. In case appointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as  there  is  no  provision  for  grant  of  anticipatory  bail.   It  would tantamount  to  take  away  functions  of  Court.  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.

60. 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, maybe 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.  

61. 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, may be that provisions of the Act are sometimes misused, exercise of power  of  approval  of  arrest  by  appointing  authority  is  wholly impermissible, impractical besides it encroaches upon the field reserved for the legislature and is repugnant to the provisions of general law as no such rider is envisaged under the general law.

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62. Assuming it is permissible to obtain the permission of appointing authority to arrest accused, would be further worsening the position of the members of the Scheduled Castes and Scheduled Tribes. If they are not  to be given special  protection,  they are not  to be further  put in  a disadvantageous  position.  The  implementation  of  the  condition  may discourage and desist them even to approach the Police and would cast a shadow of doubt on all members of the Scheduled Castes and Scheduled Tribes  which  cannot  be  said  to  be  constitutionally  envisaged.  Other castes  can  misuse  the  provisions  of  law;  also,  it  cannot  be  said  that misuse of law takes place by the provisions of Act of 1989. In case the direction is permitted to prevail, days are not far away when writ petition may  have  to  be  filed  to  direct  the  appointing  authority  to  consider whether accused can be arrested or not and as to the reasons recorded by the appointing authority to permit or deny the arrest. 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. Investigation cannot be completed within the specified  time,  nor  trial  can  be  completed  as  envisaged.  Act  of  1989 delay would be adding to the further plight of the downtrodden class.

In ref:  approval  of  arrest  by the  SSP in the case of  a  non-public servant:

63. Inter  alia for  the  reasons  as  mentioned  earlier,  we  are  of  the considered opinion that 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. The approval would mean that it can also  be  ordered  that  the  person  is  not  to  be  arrested  then  how  the investigation  can  be  completed  when  the  arrest  of  an  incumbent,  is necessary,  is  not  understandable.  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.

Requiring  the  Magistrate  to  scrutinise  the  reasons  for permitting further detention:  

64. As per guidelines issued by this Court, the public servant can be arrested after approval by appointing authority and that of a non-public servant after the approval of SSP. 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 no additional fetter sare called for on arrest whether in case of a public servant or non-public servant.  Even otherwise, as we have not approved  the  approval  of  arrest  by  appointing  authority/S.S.P.,  the

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direction  to  record  reasons  and  scrutiny  by  Magistrate  consequently stands nullified.

65. The direction has also been issued that the Dy. S.P. should conduct a preliminary inquiry to find out whether allegations make out a case under  the  Atrocities  Act,  and that  the  allegations  are  not  frivolous  or motivated. 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  (supra)  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 would mean that even if  a  complaint  made  out  a  cognizable  offence,  an  FIR would  not  be registered  until  the  preliminary  inquiry  is  held.  In  case  a  preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered in such a case how a final report has to be filed in the Court. 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.

66. The  creation  of  a  casteless  society  is  the  ultimate  aim.   We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like Act of 1989, and there is no need to provide for any reservation to SCs/STs/OBCs, and only one class of human exist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equal as per Constitutional goal.

67. We do not doubt that 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, we are of the considered opinion that direction Nos.(iii) and (iv)  issued  by  this  Court  deserve  to  be  and  are  hereby  recalled  and consequently we hold that direction No. (v), also vanishes. The review petition is allowed to the extent mentioned above.”

5. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3

SCC 221, this Court has upheld the validity of section 18 of the Act of

1989. This Court has observed:

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“6. It is undoubtedly true that Section 438 of the Code of Criminal Procedure,  which  is  available  to  an  accused in  respect  of  offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of ‘untouchability' and forbids its practice in any form. It also provides that enforcement of any disability arising out of ‘untouchability' shall be  an  offence  punishable  in  accordance  with  law.  The  offences, therefore, which are enumerated under Section 3(1), arise out of the practice of  ‘untouchability.'  It  is  in  this  context  that  certain special provisions have been made in the said Act, including the impugned provision  under  Section  18,  which  is  before  us.  The  exclusion  of Section 438 of the Code of Criminal Procedure in connection with offences under the said Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and  intimidate  their  victims  and  prevent  or  obstruct  them  in  the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection, we may refer to the Statement of Objects  and  Reasons  accompanying  the  Scheduled  Castes  and Scheduled Tribes (Prevention of Atrocities) Bill,  1989, when it was introduced in Parliament. It sets out the circumstances surrounding the enactment  of  the  said  Act  and points  to  the  evil  which  the  statute sought  to  remedy.  In  the  Statement  of  Objects  and  Reasons,  it  is stated:  

"Despite  various  measures  to  improve  the  socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, 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. Serious crimes are committed against  them  for  various  historical,  social,  and  economic reasons.

2.  …  When  they  assert  their  rights  and  resist  practices  of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their  self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the  Scheduled  Castes  and  Scheduled  Tribes  is  resented,  and  more often, these people become victims of attacks by the vested interests. Of  late,  there  has  been  an  increase  in  the  disturbing  trend  of commission  of  certain  atrocities  like  making  the  Scheduled  Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled

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Tribes…. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary." The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled Castes and  Scheduled  Tribes  assert  their  rights  and  demand  statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons  who  commit  such  offences,  such  a  denial  cannot  be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences.

7.  We  have  next  to  examine  whether  Section  18  of  the  said  Act violates, in any manner, Article 21 of the Constitution, which protects the life and personal liberty of every person in this country. Article 21 enshrines  the  right  to  live  with  human dignity,  a  precious  right  to which  every  human  being  is  entitled;  those  who  have  been,  for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission  in  its  41st  Report  recommended  introduction  of  a provision for grant of anticipatory bail. It observed:  

“We agree that this would be a useful advantage. Though we must  add that  it  is  in  very exceptional cases that such power should  be  exercised.”  In  the  light  of  this  recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure  Code  of  1973.  Looking  to  the  cautious recommendation of  the Law Commission,  the power to  grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.

9. Of course, the offences enumerated under the present case are very different  from  those  under  the  Terrorists  and  Disruptive  Activities (Prevention) Act, 1987. However, looking to the historical background relating  to  the  practice  of  ‘untouchability’ and  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 terrorise their victims and to prevent a proper investigation. It is in this

15

context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21.

10. 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.

11. A similar view of Section 18 of the said Act has been taken by the Full Bench of the Rajasthan High Court in the case of Jai Singh v. Union of India, AIR 1993 Raj 177, and we respectfully agree with its findings.”

6. This Court in  Vilas Pandurang Pawar and Anr. v. State of

Maharashtra and Ors., (2012) 8 SCC 795, has observed thus:

“10. 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 an 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. The 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.”

7. This Court in  Shakuntla Devi v. Baljinder Singh,  (2014) 15 SCC

521, has observed thus:

“4. 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 Pandurang Pawar case, (2012) 8 SCC 795.  Hence,  without  going into  the  merits  of  the  allegations  made

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against the respondent, we set aside the impugned order of the High Court granting bail to the respondent.”

8. Concerning the provisions contained in section 18A, suffice it to

observe that with respect to preliminary inquiry for registration of FIR,

we have already recalled the general directions (iii) and (iv) issued in

Dr. Subhash Kashinath’s case (supra). A preliminary inquiry is

permissible only in the circumstances as per the law laid down by a

Constitution Bench of this Court in  Lalita Kumari v.  Government of

U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed

by this Court in the review petitions on 1.10.2019 and the amended

provisions of section 18A have to be interpreted accordingly.  

9. The  section 18A(i)  was inserted  owing to the  decision  of this

Court in  Dr. Subhash Kashinath  (supra), which made it necessary to

obtain the approval of the appointing authority concerning a public

servant and the SSP in the case of arrest of accused persons. This

Court has also recalled that direction on Review Petition (Crl.) No.228

of 2018 decided on 1.10.2019. Thus, the provisions which have been

made in section 18A are rendered of academic use as they were

enacted  to take  care  of  mandate issued  in  Dr.  Subhash Kashinath

(supra) which no more prevails. The provisions were already in section

18 of the Act with respect to anticipatory bail.

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10. Concerning the applicability of provisions of section 438 Cr.PC, it

shall not apply to the cases  under  Act of 1989.  However, if the

complaint does not make out a prima facie case for applicability of the

provisions of the Act of 1989, the bar created by section 18 and 18A (i)

shall  not apply.  We  have clarified this aspect  while  deciding the

review petitions.  

11. The court can, in exceptional cases, exercise power under

section 482 Cr.PC for quashing the cases to prevent misuse of

provisions on settled parameters, as already observed while deciding

the review petitions. The legal position is clear, and no argument to

the contrary has been raised.

 12. The challenge to the provisions has been rendered academic. In

view of the aforesaid clarifications, we dispose of the petitions.    

…………………………J. (Arun Mishra)

………………….……..J. (Vineet Saran)

New Delhi; February 10, 2020.

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION WRIT PETITION (C)  No. 1015 OF 2018

PRATHVI RAJ CHAUHAN           ...PETITIONER(S)

VERSUS

UNION OF INDIA & OTHERS   ...RESPONDENT(S)

WITH

WRIT PETITION (C)  No. 1016 OF 2018

           J U D G M E N T

S. RAVINDRA BHAT, J.

1. I am in agreement with the judgment proposed by Justice Arun Mishra as well as

its  conclusions  that  the  challenge  to  the  Scheduled  Castes  and  Scheduled  Tribes

(Prevention of  Atrocities)  (Amendment)  Act,  2018 must  fail,  with  the  qualifications

proposed in the judgment with respect to the inherent power of the court in granting

anticipatory  bail  in  cases  where  prima facie an  offence  is  not  made  out.  I  would

however, supplement the judgment with my opinion.

2. The Constitution of India is described variously as a charter of governance of the

republic, as a delineation of the powers of the state in its various manifestations vis-à-vis

inalienable  liberties  and a  document  delimiting the rights  and responsibilities  of  the

Union and its constituent states. It is more: it is also a pact between people, about the

relationships that they guarantee to each other (apart from the guarantee of liberties vis-

à-vis the state) in what was a society riven1 along caste and sectarian divisions. That is

why the preambular assurance that the republic would be one which guarantees to its

people liberties, dignity, equality of status and opportunity and fraternity.

3. It is this idea of India, - a promise of oneness of and for, all people, regardless of

caste, gender, place of birth, religion and other divisions that Part III articulates in four

salient provisions: Article 15, Article 17, Article 23 and Article 24. The idea of fraternity

occupying as crucial a place in the scheme of our nation’s consciousness and polity, is

one  of  the  lesser  explored  areas  in  the  constitutional  discourse  of  this  court.  The

fraternity assured by the Preamble is not merely a declaration of a ritual handshake or

cordiality between communities that are diverse and have occupied different spaces: it is

far more. This idea finds articulation in Article 15.1 That provision, perhaps even more

than Article 14, fleshes out the concept of equality by prohibiting discrimination and

discriminatory practices peculiar to Indian society. At the center of this idea, is that all

people,  regardless  of  caste  backgrounds,  should  have  access  to  certain  amenities,

services  and  goods  so  necessary  for  every  individual.  Article  15  is  an  important

guarantee against discrimination. What is immediately noticeable is that whereas Article

15  (1)  enjoins  the  State (with  all  its  various  manifestations,  per Article  12)  not  to

discriminate on the proscribed grounds (religion, race, caste, sex (i.e. gender), place of

birth or any of them), Article 15 (2) is a wider injunction: it prohibits discrimination or

subjection to any disability of anyone on the grounds of religion, caste, race, sex or place

of birth in regard to access to shops, places of public entertainment, or public restaurants

1  The relevant parts of Article 15 are extracted below: “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,  place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be  subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly  

out of State funds or dedicated to the use of the general public…” (3) Nothing in this article shall prevent the State from making any special provision for women and  

children”

(Article 15 (2) (a)). Article 15(2)(b) proscribes the subjection of anyone to any disability

on the proscribed grounds (i.e. discrimination on grounds of religion, caste, race, sex or

place of birth) with regard to “the use of wells, tanks, bathing ghats, roads and places of

public resort maintained wholly or partly out of State funds or dedicated to the use of

the general public..”

4. The making of this provision- and others, in my view, is impelled by the trinity of

the preambular vision that the Constitution makers gave to this country. Paeans have

been  sung  about  the  importance  of  liberty  as  a  constitutional  value:  its  manifest

articulation  in  the  (original)  seven  “lamps”  -i.e.  freedoms  under  Article  19  of  the

Constitution; the other rights to religion, those of religious denominations, etc. Likewise,

the centrality of equality as an important constitutional provision has been emphasized,

and  its  many  dimensions  have  been  commented  upon.  However,  the  articulation  of

fraternity as a constitutional  value,  has lamentably been largely undeveloped.  In my

opinion, all the three - Liberty, Equality and Fraternity, are intimately linked. The right

to equality,  sans liberty or fraternity, would be chimerical - as the concept presently

known would be reduced to equality among equals, in every manner- a mere husk of the

grand vision of the Constitution.  Likewise,  liberty without equality or fraternity,  can

well result  in the perpetuation of existing inequalities and worse, result  in license to

indulge in society’s basest practices. It is fraternity, poignantly embedded through the

provisions of Part III, which assures true equality, where the state treats all alike, assures

the benefits of growth and prosperity to all, with equal liberties to all, and what is more,

which guarantees that every citizen treats every other citizen alike.

5. When the framers of the Constitution began their daunting task, they had before

them a formidable duty and a stupendous opportunity: of forging a nation, out of several

splintered sovereign states and city states, with the blueprint of an idea of India. What

they envisioned was a  common charter  of  governance and equally a  charter  for  the

people.  The  placement  of  the  concept  of  fraternity,  in  this  context  was  neither  an

accident,  nor an idealized emulation of  the western notion of  fraternity,  which finds

vision in the French and American constitutions and charters of independence. It was a

unique  and  poignant  reminder  of  a  society  riven  with  acute  inequalities:  more

specifically, the practice of caste discrimination in its virulent form, where the essential

humanity of a large mass of people was denied by society- i.e. untouchability.

6. The resolve to rid society of these millennial practices, consigning a large segment

of humanity to the eternal bondage of the most menial avocations creating inflexible

social barriers, was criticized by many sages and saints. Kabir, the great saint poet, for

instance, in his composition, remarked:

“If thou thinkest the maker distinguished castes:  Birth is according to these penalties for deeds.  Born a Sudra, you die a Sudra;  It is only in this world of illusion that you assume the sacred thread.  If birth from a Brahmin makes you a Brahmin,  Why did you not come by another way?  If birth from a Turk makes you a Turk,  Why were you not circumcised in the womb?  … Saith Kabir, renounce family, caste, religion, and nation,  And live as one.”   

7. There were several others who spoke, protested, or spoke against the pernicious  

grip of social inequity due to caste oppression of the weakest and vulnerable segments of

society. Guru Nanak, for instance, stated2

“Caste and dynastic pride are condemnable notions,  the one master shelters all existence.  Anyone arrogating superiority to himself halt be disillusioned. Saith  Nanak:  

2  Guru Granth Saheb p.83

superiority shall be determined by God”

The Guru Granth Saheb also states that

“All creatures are noble, none low,  One sole maker has all vessels fashioned;  In all three worlds is manifest the same light…”

8. The  preamble  to  the  Constitution  did  not  originally  contain  the  expression

“fraternity”; it was inserted later by the Drafting Committee under the chairmanship of

Dr. Ambedkar. While submitting the draft Constitution, he stated, on 21 February, 1948,

that the Drafting Committee had added a clause about  fraternity in the Preamble even

though it was not part of the Objectives Resolution because it felt that “the need for

fraternal  concord and goodwill  in  India was never  greater  than now,  and that  this

particular aim of the new Constitution should be emphasized by special mention in the

Preamble”3. Pandit  Thakur  Das  Bhargava  expressed  a  “sense  of  gratitude  to  Dr.

Ambedkar for having added the word “fraternity” to the Preamble”. Acharya Kripalani

also emphasized on this understanding, in his speech on 17 October, 1949:

“Again, I come to the great doctrine of fraternity, which is allied with democracy. It means that we are all sons of the same God, as the religious would say, but as the mystic would say, there is one life pulsating through all of us, or as the Bible says, “We are one of another”. There can be no fraternity without this.”

9. This court too, has recognized and stressed upon the need to recognize fraternity  

as one of the beacons which light up the entire Constitution. Justice Thommen, in Indira

Sawhney v Union of India4 said this:

“The  makers  of  the  Constitution  were  fully  conscious  of  the unfortunate  position  of  the  Scheduled  Castes  and  Scheduled Tribes. To them equality, liberty and fraternity are but a dream;

3   B. Shiva Rao: Framing of India’s Constitution  Vol III, page 510 (1968)

4  1992 Supp (3) SCR 454

an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch. These backward people and others in like positions  of  helplessness  are  the  favoured  children  of  the Constitution.  It  is  for  them  that  ameliorative  and  remedial measures are adopted to achieve the end of equality. To permit those  who  are  not  intended  to  be  so  specially  protected  to compete for reservation is to dilute the protection and defeat the very constitutional aim.”

10. In Raghunathrao Ganpatrao v. Union of India5 this court held:

“In our considered opinion this argument is misconceived and has no relevance  to  the facts  of  the present  case.  One of  the objectives  of  the  Preamble  of  our  Constitution  is  'fraternity assuring the dignity of the individual and the unity and integrity of the nation.' It will be relevant to cite the explanation given by Dr. Ambedkar for the word 'fraternity' explaining that 'fraternity means  a  sense  of  common  brotherhood  of  all  Indians.'  In  a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasise and re- emphasise that the unity and integrity of India can be preserved only  by  a  spirit  of  brotherhood.  India  has  one  common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome.”

11. In  a  similar  vein,  the  court  in  Nandini  Sundar v.  State  of  Chhatisgarh6 again

commented  on  this  aspect  and said  that  “t(T)he  Constitution  itself,  in  no  uncertain

terms,  demands  that  the  State  shall  strive,  incessantly  and  consistently,  to  promote

fraternity amongst all citizens such that dignity of every citizen is protected,   nourished

and promoted.”

12. It was to achieve this ideal of fraternity, that the three provisions- Articles 15, 17

and 24 were engrafted. Though Article 17 proscribes the practice of untouchability and

pernicious practices associated with it,  the Constitution expected Parliament  and the

5  1993 (1) SCR 480

6  2011 (7) SCC 457

legislatures to enact effective measures to root it out,  as well as all other direct and

indirect,  (but  virulent  nevertheless)  forms  of  caste  discrimination.  Therefore,  in  my

opinion, fraternity is as important a facet of the promise of our freedoms as personal

liberty and equality  is.  The first  attempt  by Parliament  to  achieve that  end was the

enactment of the Untouchability (Offences) Act, 1955. The Act contained a significant

provision  that  where  any  of  the  forbidden  practices  “is  committed  in  relation  to  a

member of a Scheduled Caste” the Court shall presume, unless the contrary is proved,

that such act was committed on the ground of “Untouchability”. This implied that the

burden of proof lies on the accused and not on the prosecution. The Protection of  Civil

Rights Act, 1955, followed. This too made provision for prescribing “punishment for the

preaching  and  practice  of  -  "Untouchability"  for  the  enforcement  of  any  disability

arising therefrom”. The enforcement of social practices associated with untouchability

and disabilities was outlawed and made the subject matter of penalties. After nearly 35

years’ experience, it was felt that the 1955 Act (which was amended in 1976) did not

provide sufficient  deterrence  to  social  practices,  which continued unabated and in  a

widespread manner, treating members of the scheduled caste and tribe communities in

the most discriminatory manner, in most instances, stigmatizing them in public places,

virtually denying them the essential humanity which all members of Society are entitled

to.

13.  It was to address this gulf between the rights which the Constitution guaranteed

to  all  people,  particularly  those  who  continued  to  remain  victims  of  ostracism  and

discrimination,  that  the  Scheduled  Castes  and  Scheduled  Tribes  (Prevention  of

Atrocities)  Act,  1989  (hereafter  “the  Act”)  was  enacted.  Rules  under  the  Act  were

framed in 1995 to prevent the commission of atrocities against members of Schedules

Castes and Tribes, to provide for special courts for the trial of such offences and for the

relief  and  rehabilitation  of  the  victims  of  such  offences  and  for  matters  connected

therewith or incidental thereto. The Statement of Objects and Reasons appended to the

Bill, when moved in the Parliament, observed that despite various measures to improve

the  socio-economic  conditions  of  Scheduled  Castes  and  Scheduled  Tribes,  they

remained vulnerable.  They are  denied a  number  of  civil  rights  and are  subjected  to

various offences, indignities, humiliation and harassment. They have been, in several

brutal instances, deprived of their life and property. Serious atrocities were committed

against them for various historical, social and economic reasons. The Act, for the first

time, puts  down the contours of  ‘atrocity’ so as to cover the multiple ways through

which  members  of  scheduled  castes  and  scheduled  tribes  have  been  for  centuries

humiliated, brutally oppressed, degraded, denied their economic and social rights and

relegated to perform the most menial jobs.

14. The  Report  on  the  Prevention  of  Atrocities  against  Scheduled  Castes7 vividly

described that  despite enacting stringent penal  measures,  atrocities against  scheduled

caste and scheduled tribe communities continued; even law enforcement mechanisms

had  shown  a  lackadaisical  approach  in  the  investigation  and  prosecution  of  such

offences. The report observed that in rural areas, various forms of discrimination and

practices stigmatizing members of these communities continued.  Parliament too enacted

an  amendment  to  the  Act  in  2015,  strengthening  its  provisions  in  the  light  of  the

instances  of  socially  reprehensive  practices  that  members  of  scheduled  caste  and

scheduled tribe communities were subjected to. In this background, this court observed

in the decision in National Campaign on Dalit Human Rights v. Union of India8 that:

“The ever-increasing number of  cases  is  also  an indication to show that there is a total failure on the part of the authorities in complying with the provisions of the Act and the Rules. Placing

7  Published  by  the  National  Human  Rights  Commission  (accessed  at https://nhrc.nic.in/publications/other-publicationss on 15 December, 2019 at 08:27 hrs)

8  (2017) 2 SCC 432

reliance on the NHRC Report and other reports, the Petitioners sought a mandamus from this Court for effective implementation of the Act and the Rules. 12. 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 concerned authorities in complying with the provisions of the Act and Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act as contended by the counsel for the Union of India.  At  the  same  time,  the  Central  Government  has  an important  role  to  play  in  ensuring  the  compliance  of  the provisions  of  the  Act.  Section  21(4)  of  the  Act  provides  for  a report  on  the  measures  taken  by  the  Central  Government  and State Governments for the effective implementation of the Act to be placed before the Parliament  every year.  The constitutional goal of equality for all the citizens of this country can be achieved only  when  the  rights  of  the  Scheduled  Castes  and  Scheduled Tribes are protected. 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.”

15. In  Subhash Kashinath  Mahajan v.  State  of  Maharashtra & Ors9,  a  two judge

bench of this court held that the exclusion of anticipatory bail provisions of the Code of

Criminal Procedure (by Section 18 of the Act) did not constitute an absolute bar for the

grant of bail, where it was discernable to the court that the allegations about atrocities or

violation of the provisions of the Act were false. It was also held, more crucially, that

public servants could be arrested only after approval by the appointing authority (of such

public servant) and in other cases, after approval by the Senior Superintendent of Police.

It was also directed that cases under the Act could be registered only after a preliminary

enquiry into the complaint. These directions were seen to be contrary to the spirit of the

9  2018 (4) SCC 454

Act and received considerable comment in the public domain; the Union of India too

moved this court for their review. In the review proceedings, a three judge bench of this

court, in Union of India v. State of Maharastra10 recalled and overruled those directions.

16. In the meanwhile, Parliament enacted the amendment of 201811 (by Act No. 27 of

2019), which is the subject matter of challenge in these proceedings. The clear intention

of Parliament was to undo the effect of this court’s declaration in  Subhash Kashinath

Mahajan (supra). The provisions of the amendment expressly override the directions in

Subhash  Kashinath  Mahajan,  that  a  preliminary  inquiry  within  seven  days  by  the

Deputy Superintendent of Police concerned, to find out whether the allegations make out

a  case  under  the  Act,  and  that  arrest  in  appropriate  cases  may  be  made  only  after

approval by the Senior Superintendent of Police. The Parliamentary intent was to allay

the concern that  this  would delay registration of  First  Information Report  (FIR) and

would impede strict enforcement of the provision of the Act.

17. The judgment of Mishra, J has recounted much of the discussion and reiterated the

reasoning which led to  the recall  and review of  the decision in Subhash Kashinath

Mahajan (supra); I respectfully adopt them. I would only add that any interference with

the  provisions  of  the  Act,  particularly  with  respect  to  the  amendments  precluding

preliminary enquiry, or provisions which remove the bar against arrest of public servants

10  2019 (13) SCALE 280

11  The operative part of the amendment, a brief one, reads as follows: " 2. After section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)  Act, 1989, the following section shall be inserted, namely:—  “18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be required for  registration of a First Information Report against any person; or (b) the investigating officer shall  not require approval for the arrest, if necessary, of any person, against whom an accusation of  having committed an offence under this Act has been made and no procedure other than that  provided under this Act or the Code shall apply.  (2)  The  provisions  of  section  438  of  the  Code  shall  not  apply  to  a  case  under  this  Act, notwithstanding any judgment or order or direction of any Court.".

accused of offences punishable under the Act, would not be a positive step. The various

reports,  recommendations and official  data,  including those released by the National

Crime Records Bureau12, paint a dismal picture. The figures reflected were that for 2014,

instances of crimes recorded were 40401; for 2015, the crime instances recorded were

38670  and  for  2016,  the  registered  crime  incidents  were  40801.  According  to  one

analysis of the said 2016 report13, 422,799 crimes against scheduled caste communities’

members  and  81,332  crimes  against  scheduled  tribe  communities’  members  were

reported between 2006 and 2016.

18. These facts, in my opinion ought to be kept in mind by courts which have to try

and deal with offences under the Act. It is important to keep oneself reminded that while

sometimes (perhaps mostly in urban areas) false accusations are made, those are not

necessarily  reflective  of  the  prevailing  and  wide  spread  social  prejudices  against

members  of  these  oppressed  classes.  Significantly,  the  amendment  of  2016,  in  the

expanded  definition  of  ‘atrocity’,  also  lists  pernicious  practices  (under  Section  3)

including forcing the eating of inedible matter, dumping of excreta near the homes or in

the  neighbourhood  of  members  of  such  communities  and  several  other  forms  of

humiliation, which members of such scheduled caste communities are subjected to. All

these  considerations  far  outweigh  the  petitioners’ concern  that  innocent  individuals

would be subjected to what are described as arbitrary processes of investigation and

legal proceedings, without adequate safeguards. The right to a trial with all attendant

safeguards are available to those accused of committing offences under the Act; they

remain unchanged by the enactment of the amendment.

12  http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf containing  statistics relating to crime against members of scheduled caste and scheduled tribe populations

13  Indiaspend https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-by-746-746/

19. As far as the provision of Section 18A and anticipatory bail  is concerned, the

judgment of Mishra, J,  has stated that in cases where no  prima facie materials exist

warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest

bail.

20. I  would  only  add  a  caveat  with  the  observation  and  emphasize  that  while

considering any application seeking pre-arrest bail, the High Court has to balance the

two interests: i.e. that the power is not so used as to convert the jurisdiction into that

under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such

orders made in very exceptional cases where no  prima facie offence is made out as

shown in the FIR, and further also that if such orders are not made in those classes of

cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I

consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely

essential, because a liberal use of the power to grant pre-arrest bail would defeat the

intention of Parliament.

21. It is important to reiterate and emphasize that unless provisions of the Act are

enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream

and ideal of a casteless society will remain only a dream, a mirage. The marginalization

of scheduled caste  and scheduled tribe communities  is  an enduring exclusion and is

based almost solely on caste identities.  It is to address problems of a segmented society,

that express provisions of the Constitution which give effect to the idea of fraternity, or

bandhutva (बनधधतव) referred to in the Preamble, and statutes like the Act,  have been

framed.  These  underline  the  social  –  rather  collective  resolve  –  of  ensuring that  all

humans are treated as humans, that their innate genius is allowed outlets through equal

opportunities  and each of  them is  fearless  in  the  pursuit  of  her  or  his  dreams.  The

question which each of us has to address, in everyday life, is can the prevailing situation

of  exclusion based on caste  identity  be  allowed to  persist  in  a  democracy which is

committed to equality and the rule of law? If so, till when? And, most importantly, what

each one of us can do to foster this feeling of fraternity amongst all sections of the

community without reducing the concept (of fraternity) to a ritualistic formality, a tacit

acknowledgment, of the “otherness” of each one’s identity.

22. I am of the opinion that in the light of and subject to the above observations, the  

petitions have to be and are, accordingly disposed of.

........................................J.                                                                            [S. RAVINDRA BHAT]

New Delhi, February 10, 2020.