Saunak Rajguru

| @ | August 8,2018

On August 6, 2018, the Lok Sabha passed the Bill, tabled by the Union Government, to amend the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 in the Lok Sabha during the ongoing session of the Parliamentary proceedings. The Amendment Bill intends to undo the directions issued by the Supreme Court on March 20 of this year imposing procedural safeguards with respect to the arrest of a person leveled of a charge under the SC/ST Atrocities Act.

The Bill intends to lay out that preliminary enquiry shall not be required for registration of a FIR against any person; or the Investigating Officer shall not require approval for the arrest

The Bill intends to lay out that preliminary enquiry shall not be required for registration of a FIR against any person; or the Investigating Officer shall not require approval for the arrest, if necessary, of any person; against whom an accusation has been made.

Background and objective of the Atrocities Act

On September 11, 1989, the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act came into force having the object and purpose to prevent the commission of offences of atrocities against the members of the Schedule Castes and Schedule Tribes

On September 11, 1989, the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act came into force having the object and purpose to prevent the commission of offences of atrocities against the members of the Schedule Castes and Schedule Tribes. The Act aimed at addressing the injustices embedded in the Indian caste system. Enacted in the backdrop of the Government’s obligation as enshrined under Article 46 of the Constitution, i.e., to promote with special care, the education and economic interests of the weaker sections of the society, particularly Schedule Castes and Schedule Tribes, it aspired to be a materialisation of social justice principles avowed in the Constitution.

Supreme Court’s unwarranted verdict

In an order dated March 20, 2018, the Bench laid down a few “procedural safeguards” so that provisions of SC/ST Act, 1989 are “not abused” for extraneous considerations

Recently, the growing instances of the “abuse” of the law of arrest in cases under the SC/ST Act were raised before the Apex Court. The matter came up before a two-judge Bench of Justices AK Goel and UU Lalit. In an order dated March 20, 2018, the Bench laid down a few “procedural safeguards” so that provisions of SC/ST Act, 1989 are “not abused” for extraneous considerations.

Citing “rampant misuse” of the SC/ST Act, the Bench ordered that on an information received about the commission of an offence solely falling under the square and ambit of the SC/ST Act, a preliminary inquiry may first be conducted so as to ascertain the veracity and genuineness of the allegations before registering an FIR to such effect. It was also laid down that the arrest of a public servant can only be after an approval of appointing authority and of a non-public servant after the approval of the Senior Superintendent of Police, which is to be granted in appropriate cases. To compound this, it was furthermore added that any violation of the afore-mentioned directions will be actionable by way of disciplinary action as well as contempt.

 Centre’s stand on the issue

The Union of India, though was not a formal party in the aforementioned case, the Court had nevertheless sought the assistance of the Attorney General, KK Venugopal, who had maintained the stand requesting the Court not to alter the provisions of the prevailing Act. As a matter of consequence of the judgment, the Ministry of Social Justice and Empowerment, the nodal agency with respect to implementation of the SC/ST Act, condemned the directions issued terming it to be a “dilution” of the provisions of the SC/ST Act.

The Ministry of Social Justice and Empowerment, the nodal agency with respect to implementation of the SC/ST Act, condemned the directions issued terming it to be a “dilution” of the provisions of the SC/ST Act.

The Centre maintains that the SC/ST Act was aimed to protect the socially marginalised and the issued directions by the Supreme Court has the potential to reduce the deterrent impact of the Act and thereby expose the Dalits and tribals to more vulnerable situations. While requesting the Court to stay the order, KK Venugopal, the Attorney General of India, submitted: “The insensivity of the Court towards social justice cause and judicial dilution of a stringent protective social justice legislation by resorting to judicial excess in total disregard to the legislative intent has been committed in passing of the directions.” He also argued that the directions can be issued when there is a lacuna or ambiguity in the existing law and that the Court should not tread a path which is against the declared purpose and object of an Act.

Outcome and impact of SC verdict

Bhaskar Gaikwad, the original complainant in the case, sought a “recall and review” of the judgment which is pending for due consideration of the Apex Court, a petition to that effect was submitted by senior advocate Indira Jaising

Despite Centre’s reservations, the Court refused to stay the Order. There was a widespread protest in the country among the SC/ST community. Representations were made by leaders of the ruling government before the Prime Minister, and the Opposition leaders knocked the doors of the President to effectuate a Review Petition to be filed against the said Order on the ground that the Court was creating a de-novo presumption that cases falling under the SC/ST Act are bogus.

Bhaskar Gaikwad, the original complainant in the case, sought a “recall and review” of the judgment which is pending for due consideration of the Apex Court, a petition to that effect was submitted by senior advocate Indira Jaising. A review petition was also filed by the Centre wherein it was contended that the aforesaid judgment rendered by the Apex Court is a clear case of judicial amendment to the SC/ST Act and that the judgment has affected the morale and confidence of the people belonging to the SC/ST category. It was brought on record that the decision led to commotion, confusion, anger and sense of disharmony. The same is pending before the Apex Court.

Offences of atrocities increased after SC verdict

The Attorney General, KK Venugopal, had himself produced a list of events of atrocities against the Scheduled Castes and Scheduled Tribes since the date of the pronouncement of the judgment. He submitted before the Court a list of news paper reports outlining atrocities against SC/ST citizens. He, inter alia, brought on record the incidents like, gang-rape of a physically challenged SC women in Andhra Pradesh, social exclusion of a Gujarat based teen, vandalising of statues of Ambedkar in Madhya Pradesh and Uttar Pradesh, killing of a Dalit youth during the Phagwara clashes in Punjab, forceful abortion of a raped Dalit minor in Uttar Pradesh etc. to name only a few.

Object and reasons for Amendment Bill

The Union Minister of Social Justice and Empowerment, Thaawar Chand Gehlot, in the Statement of Objects and Reasons annexed with the amending provision has stressed on the intent of the Legislature to avoid commission of offences of atrocities against the Dalits. It is also mentioned that the power to take a decision with respect to arrest of an individual as conferred by the provision of the Code of Criminal Procedure, 1973 cannot be taken away from the Investigating Officers.

Legal analysis

Justification for the amending provisions

The only reasoning given was that there seems to be a lot of fake allegations. However, such conclusion was not based on any accurate statistical data

Putting it legally, what seems to justify the Centre’s stand is threefold in nature. Firstly, no explicit reason was adduced by the Apex Court in its judgment as to why the cases involving charges under the SC/ST Act are of such nature to attribute them “exceptional” category. The only reasoning given was that there seems to be a lot of fake allegations. However, such conclusion was not based on any accurate statistical data. Therefore, the requirement of making a preliminary inquiry before registering an FIR might have unwarranted far reaching consequences.

Secondly, allowing of benefit of anticipatory bail provisions in such cases, goes against the legislated provision of Section 18 of the SC/ST Act, which envisages that “nothing in Section 438 Cr.P.C. shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act”. It may be pointed out here that the Apex Court has on a prior occasion upheld the constitutionality of Section 18 of the SC/ST Act [in Ram Krishna Balothia’s case, (1995) 3 SCC 221]. The reasoning adduced therein was that “if anticipatory bail is granted, in the context of prevailing social conditions, it is likely that perpetrators would intimidate the victims and prevent or obstruct them in the prosecution of these offenders”. It may be pointed out that the social conditions have still not addressed the concern raised by the Court in the Balothia case and thus the Court at most could have referred the issue to a larger bench for their due consideration.

For a Dalit, securing proper non-delayed investigation and successful prosecution is almost improbable which might result from intimidation of the victim and witnesses. The requirement of prior sanction would thus worsen the problem of delay in prosecution and hostility of witnesses

Thirdly, the sanction of arrest mandated by the judgment, would pose greater threats to the SC/ST community. It is undisputed that for a Dalit, securing proper non-delayed investigation and successful prosecution is almost improbable which might result from intimidation of the victim and witnesses. The requirement of prior sanction would thus worsen the problem of delay in prosecution and hostility of witnesses.

 Impact of the Amendment Bill on the pending Review Petition

It has been settled through various judicial pronouncements that the Court cannot step into the shoes of the Legislature. It is also a position of law that the Court can make law by virtue of powers conferred by the Constitution. However, this comes with a rider that it can issue directions having the nature of enforceable law only so as to fill the vacuum created by the Legislature or wherein there is any ambiguity in the legal provision. The constitutional recognition of the doctrine of separation of powers makes it indispensible that the separation of the powers must be ensured. In the light of such settled legal jurisprudence, the Courts will cease legal competence to further entertain the review petition pending before it once the Bill is passed by Parliament.

Does Parliament have power to alter the basis of judgment with retrospective effect?

For the foregoing reasons and keeping in mind the intent of the Legislature, the present Amendment Bill, if passed by the Parliament, should have retrospective application instead being prospective in nature

It may be on this context pointed out that the Parliament has the power, jurisdiction and is within its limits to bring amendments so as to cure defects in a judgment. On several occasions, the Apex Court has observed that the Parliament can’t declare a judgment invalid, but it can remove the basis of a judgment with retrospective effect. Moreover, it is a settled legal position that procedural laws can have retrospective effect. For the foregoing reasons and keeping in mind the intent of the Legislature, the present Amendment Bill, if passed by the Parliament, should have retrospective application instead being prospective in nature.

 

Read the full text of the Atrocities Act Amendment Bill.

Read the list of atrocities since March 20, 2018 submitted by Attorney General Venugopal to Court.

Also READ: Government tables Atrocities Act Amendment Bill in Lok Sabha, after Supreme Court diluted its provisions in March

 

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