[RP(c) No.228/2018 in WP(c) No.416/2018, decided on 01.10.2019]
The Supreme Court allowed Centre’s petition seeking review of Dr Subhash Kashinath Mahajan v State of Maharashtra, decided on March 20, 2018. The Supreme Court said that the power conferred upon it by virtue of Article 142 of the Indian Constitution cannot be instrumentalised to issue directions against the statute. The bench in the present case comprised of Justices Arun Mishra, M.R. Shah and B.R. Gavai. The Centre had filed a review petition for March 20 judgment as it had nearly diluted the provisions of arrest under the SC/ST Act. In the present case, the court observed that to safeguard the marginalised communities from the abuses and mistreatment, the protective nature of the Act was essential. It stated that the two-judges bench should not have overstepped its duties by framing the guidelines. As by doing this, they interfered with the duties of the legislature. The court stated:
“We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden 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”.
In Dr Subhash Kashinath Mahajan case, the top court had held that a public servant should be arrested after the approval of the appointing authority. In case of a non-public servant the arrest should take place after the approval of the SSP. It also held that a preliminary enquiry must be conducted by the DSP to check whether the allegations constitute an offence under the SC/ST Act. The bench of Justices A.K. Goel and U.U. Lalit stated that these guidelines were issued “in view of the acknowledged abuse of law of arrest in cases under the Atrocities Act”.
The three-judge bench made the following observation while withdrawing these conditions:
“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. 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”.
The bench reserved its orders on the review on September 18. The review was referred to a three-judge bench by a bench of Justices Arun Mishra and U.U. Lalit on September 13. The entire verdict delivered on March 20, 2018 was “problematic” and should be reviewed by the court, said K.K. Venugopal, the Attorney General of India. To neutralise the effects of the March 20 judgment, the Centre passed the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2018. This, in essence, made the review of the said judgment by the Centre pointless. The two-judge bench in March 20 judgment felt that the said Act was being misused. Therefore, it said that the bar against anticipatory bail in the legislation was not absolute. The court said that the anticipatory bail can be granted if no prima facie case is made out or when on judicial scrutiny the complaint is found to be mala fide on the face of it.
The judgment led to a huge uproar amongst the Dalit groups. They organised huge protests against the said judgment. Consequently, the Parliament came up with a Bill to amend the SC/ST Act to nullify the effect of the Supreme Court’s verdict. The Bill was passed by the Parliament in monsoon session of 2018. It reinstated the absolute bar against the anticipatory bail.
The new amendment does away with the requirement of conducting a preliminary inquiry. It has also put an end to the need of obtaining an approval before making an arrest. Section 18A was inserted in the Act of 1989 through the amendment to effect these changes. It also brought in the disputed change of restoring the absolute ban on grant of anticipatory bail. The Amendment expressly overrides any “judgment or order or direction of any court” in as much as it contains a non obstante clause to that effect. The Amendment Bill declares that no procedure apart from that given in the SC/ST Atrocities Act and CrPC shall apply to cases under the Atrocities Act.
Afterwards, the Amendment Act was challenged before the Supreme Court. The apex court refused to put a stay on its operation.