By Yogita and Mitali Kshatriya
“Whether a torch which is lighted to dispel the darkness, can be permitted to set on fire the innocent surroundings?”
-Gujarat High Court in Pankaj D. Suthar v State of Gujarat, [1] while analysing the question of grant of Anticipatory Bail in SC/ST (Prevention of Atrocities) Act cases.
INTRODUCTION
On March 20, 2018, the Supreme Court in its judgment in the case of Subhash Kashinath Mahajan v State of Maharashtra, provided three procedural safeguards in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter ‘Act/ SC/ST Act/ Atrocities Act’). Those safeguards were – the provision of anticipatory bail, the requirement of conducting a preliminary inquiry before registration of First Information Report (hereinafter ‘F.I.R.) and the need of taking an approval before the arrest.[2] However, the said judgment became controversial and led to widespread protests by the SC/ST community. When objections were raised against the above judgment and the three procedural safeguards, the Supreme Court while reaffirming its above-mentioned judgment said, “What we have done is provided a filter”. [3] To nullify the effect of the judgment, the Parliament passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 (hereinafter ‘Amendment’) which reads that preliminary inquiry shall not be conducted before registration of an F.I.R., approval shall not be required for the arrest and there shall be no anticipatory bail notwithstanding any judgment, order or direction of any Court. [4]
Once again, the whole issue came to the public eye when on 26th March 2019, the apex court said that it would begin hearing the batch of review petitions of its judgment and writ petitions in relation to the recently amended Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act from April 30, 2019. [5]
In this article, we will try to examine the three provisions of the Amendment vis a vis anticipatory bail, preliminary inquiry and approval.
ANALYSING THE PROVISION OF ANTICIPATORY BAIL (§18A(2))
In the Amendment, after §18 of the Act which reads as “Nothing in §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 [6]”, §18A(2) has been added which affirms §18 notwithstanding any judgment or order or direction of any Court [7]. It seems that both the sections (18 and 18A(2)) are in violation of human rights and fundamental rights. Also, the stage at which the restriction is put i.e. whether the restriction on the grant of bail has been put at the pre-arrest stage or the post-arrest stage or at both the stages, and its side by side comparison with other laws consisting similar restriction gives a clear picture as to whether the restriction is fair or not. Further, on analysing §18A(2), it has been found that the ‘notwithstanding’ clause is not sustainable.
VIOLATION OF HUMAN RIGHTS AND FUNDAMENTAL RIGHTS
One of the basic principles of criminal jurisprudence is the presumption of innocence until proven guilty.[8] However, this is not the case with the present Act and Amendment; under this several arrests have been made solely on the basis of a unilateral version of the complaint without any tangible proof. In other words, it means that just because the first informant belongs to the SC/ST community the complaint gets registered, even though the ingredients comprising that offence are not present. [9] Moreover, §438 of the Cr.P.C. (i.e. of anticipatory bail) is a procedural provision which is concerned with the personal liberty of an individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail [10]. But the denial of anticipatory bail puts the tag of guilty on the person even without his/her trial.
18A (2) also violates fundamental rights. When any legislation which is focused on punishing social atrocities is passed, a balance has to be maintained between the societal interests and peace on the one hand and the protection of the rights of victims accused of false allegations on the other hand[11]. This balance may be achieved by the Doctrine of Proportionality which is well known for advancing the objectives of articles 14 and 21. Under this principle, a proper balance is maintained between the adverse effects which the law may have on the rights of persons, keeping in mind the purpose which it intended to serve [12]. Here the adverse effect is on personal liberty, which is a precious fundamental right and should be curtailed only when it becomes imperative [13]. The denial of bail amounts to deprivation of personal liberty [14]. In the Maneka Gandhi case [15], the court held that article 21 accords protection not only against executive action but also against the legislation which deprives a person of his life and personal liberty without just, fair and reasonable procedure. So, when individuals are arrested under §18 of the Act solely on the basis of a one-sided version of the complaint, their right to personal liberty is adversely affected without just, fair or reasonable procedure. It is true that in State of M.P. vs. Ramkrishna Balothia [16], the Supreme Court had upheld the validity of §18 of the Act. But here it is important to note that the Balothia judgment was in ignorance of the Constitution Bench judgment in Gurbaksh Singh Sibbia vs. State of Punjab [17]. In the Sibbia case, the court observed that the exclusion of court’s jurisdiction, even where the court is satisfied that arrest of a person was not called for, has no nexus with the object of the Atrocities Act. Also in the Balothia case, the court checked only the vires of §18. §18 is intra vires but it should exclude anticipatory bail only when the allegations are not malicious and some case is being made out otherwise it might be termed as deprivation of personal liberty of an individual without just, fair or reasonable procedure. Besides, applying the precedent set in Maneka Gandhi case and Sibbia case to the Balothia case, it can be said that §18 should not be read as being applicable to those who are falsely implicated for extraneous reasons and do not seem to have committed the offence prima facie on independent scrutiny.
Arrest also has an impact on an individual as it causes irreparable loss to a person’s reputation and brings in humiliation for him and his family [17]. The arrest of a person even in cases where prima facie it is apparent that the allegations are malicious is gross injustice and violation of his right to reputation. Besides, the argument that there are relevant sections in I.P.C which provide remedy for malicious prosecution (See [18]) cannot be upheld as these remedies come into effect after an arrest has been made or trial has been conducted i.e. after the person has been humiliated and his reputation along with his family’s reputation has undergone severe scrutiny. Further, if a Court is not debarred from granting anticipatory bail even in most heinous offences including murder, rape, dacoity, robbery, NDPS, sedition etc., which are punishable with longer periods and to a great extent are of a similar nature, taking away such power in respect of offences under the Act is discriminatory and violative of Article 14 [19]. The court in this view has clearly said that no procedural technicality can stand in the way of enforcement of one’s fundamental rights [20].
STAGE OF RESTRICTION
On comparing the provisions of this Act with other enactments, an interesting situation emerges. For instance, in acts such as Terrorist and Disruptive Activities (Prevention) Act, Unlawful Activities (Prevention) Act, Maharashtra Control of Organised Crime Act and Terrorist Affected Areas (Special Courts) Act, a restriction has been placed not only on the grant of anticipatory bail (§17(4), 43D(4), 21(3) and 15(4) respectively) [21] but also on the grant of regular bail as well. The provision for regular bail in these acts provides that where the Public Prosecutor opposes the application for grant of bail, the court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any such offence while on bail (§17(5), 43D(5), 21(4) and 15(5) respectively)[22] .Thus, the impact of the release of a person accused of having committed the concerned offences under these special enactments was dealt with by the Legislature not only at the stage of consideration of the matter for anticipatory bail but even after the arrest, at the stage of grant of regular bail as well. On the other hand, the provisions of the Act are diametrically opposite as the restriction in §18 is only at the stage of consideration of the matter for anticipatory bail whereas no such restriction is available while the matter is to be considered for grant of regular bail. Theoretically, it is possible to say that an application under §438 of the Code may be rejected by the Court because of express restrictions in §18 of the Act but the very same court can grant bail under the provisions of §437 of the Code, immediately after the arrest. Therefore, there is no logical rationale behind putting a fetter on the grant of anticipatory bail where there is no such prohibition mentioned for grant of regular bail. Furthermore, the nature of the above-mentioned acts is altogether different from the SC/ST Act. The above-mentioned acts are directly or indirectly related to terrorism while the SC/ST Act is social legislation under which a person can be deprived of his liberty only according to a due process of law i.e. just and fair law. It is, therefore, all the more necessary and important that the express exclusion under §18 of the Act should be limited to genuine cases and should be inapplicable where no prima facie case is made out.
THE ‘NOTWITHSTANDING’ CLAUSE
“The day is not far off when every judgment can be annulled.”[23]
18A(2) of the Act removes the provision of §438 (anticipatory bail) notwithstanding any judgment or order or direction of any Court. This type of ‘Notwithstanding’ clause is a non-obstante clause usually found in validating legislation where the intention of the legislature is to validate some action which would otherwise be invalid or might have been declared invalid by the court.
The Supreme Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality [24] had laid down that the validity of a validating law depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the court had found in the existing law and makes adequate provisions in the validating law. Further, it had also stated that a court’s decision must always bind unless the conditions on which the judgment is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Regarding the amendment, there is no doubt that the Parliament is competent to pass amendments to SC/ST act, but the legislature had passed the amendment without removing the basis of the Supreme Court’s decision of liberalisation of §18 of the Act. The decision was primarily based on two conditions – the misuse of the Act, and the absence of the procedural safeguards – both of which have not been fundamentally altered or changed so that the impugned judgment could not have been given. Hence, in the light of all the above arguments, there is no doubt that the Parliament has overturned the judgment of the Supreme Court which the Parliament cannot do.
ANALYSING §18A (1) OF THE ACT
18A(1)(a) of the Act/Amendment has ruled out any possibility of conducting a preliminary inquiry before the registration of an F.I.R. The power of the police to register an F.I.R. comes from §154 of the Cr.P.C. which deems it necessary to register a First Information Report when information about the commission of a cognizable offence is disclosed [25]. However, if by the information provided, no such disclosure of cognizable offence is made, the police officer can conduct a preliminary inquiry before the registration of an F.I.R. [26]. This inquiry does not delve into the veracity of the information provided but only ascertains as to whether a cognizable offence has been committed or not.
The rationale behind preliminary inquiry was discussed at length in the case of Jacob Mathew v State of Punjab.[27]. In this case, the Supreme Court while emphasizing on the need for a proper investigation and a preliminary inquiry prior to registration of a case against the doctors charged with such offences, held “We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; there is a need for protecting doctors from frivolous or unjust prosecutions…”
Hence, it can be deduced that the very basis of preliminary inquiry is to safeguard the accused from false and frivolous allegations, and from the ignominy of being embroiled in a legal proceeding. This concept of preliminary inquiry was furthered by the Supreme Court in the case of Lalita Kumari vs. State of Uttar Pradesh. [28] In this, the apex court gave a list of cases wherein preliminary inquiry can be conducted with a note that the list is not exhaustive and will keep evolving with time. The list includes the following matters:-
- Matrimonial disputes/family disputes
- Commercial offences
- Medical negligence cases
- Corruption cases
- Cases where there is abnormal delay/laches in initiating criminal prosecution
The Supreme Court in the present case too has included the Atrocities act in the above-mentioned list wherein preliminary inquiry can be held. This step should be seen positively, as it focuses on strengthening a penal law with procedural safeguard in order to protect innocents and avoid the presumption of guilt on part of the accused. As per the NCRB data of 2015[29] the total conviction rate under the Prevention of Atrocities Act was 27.2% for scheduled caste and 19.8% for scheduled tribes, as compared to a national average conviction rate of 46.9% of crimes under the Indian Penal Code [30]. Although not all cases resulting in acquittal or withdrawal shall be termed as cases of false allegations but the huge gap between the number of cases filed and the number of people convicted clearly points to a certain misuse of the penal provisions in question.
The misuse of the provisions of the Atrocities act has been pointed out in various judgments of several High Courts and the Supreme Court. For instance, the courts have observed the misuse of the Act against the people of other communities [31] when numerous complaints are filed under the Act, right after elections, with the motive of settling the score with their opponents after losing the election. In some other instances, the act has been misused in matters concerning property disputes. [32]. In Sharad vs. State of Maharashtra [33], the Court opined that a relook at the provisions of the Act is seriously needed. It also took into cognizance that there have been cases of rampant misuse of the act against public servants/ quasi-judicial/ judicial officers. Moreover, the Act is also prone to misuse on account of monetary incentive being available for merely lodging a case under the Act. [34]
There are concerns that the introduction of preliminary inquiry would only delay the process of registration of F.I.Rs. However, this argument is not sustainable as any preliminary inquiry is to be completed within a time period of fifteen days. [35] Also, in cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure is supplied to the first informant forthwith and not later than a week. It discloses reasons in brief for closing the complaint and not proceeding further [36].
Coming to the approval, §18A(1)(b) [37] of the Act states “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…”. This means that there is no need for taking approval before arresting the offender if the offence is committed under the Act. However, before inserting this provision the Parliament should have kept in mind that at many times the police act overzealously and arrest the person even if the complaint doesn’t fulfil the criteria of §41(1) of Cr.P.C. §41(1) provides ‘reasonable complaint’, ‘credible information’ or ‘reasonable suspicion’ as grounds for arresting a person accused of cognizable offence without warrant. In Arnesh Kumar vs. State of Bihar [38], the Supreme Court brought into notice that whenever the police receive a piece of information regarding the commission of a crime, it mechanically reproduces in the case diary all or most reasons contained in §41(1) [39]. In order to prevent this, the Court had provided for mandatory approval and other safeguards keeping in view that ‘power of arrest is one of the lucrative sources of corruption [40]’. Hence, the requirement of approval, in this case, should be seen as a necessity to protect the innocent rather than instigating chaos amongst them.
CONCLUSION
After a deep analysis of all the three parts of the Amendment i.e. preliminary inquiry, approval and anticipatory bail, it is concluded that these provisions should be restored as per the judgment. Also, one thing which should be kept in mind is that these procedural safeguards do not interfere with the rights of the SC/ST people nor are they in any way an attempt to dilute the provisions of the Act; the safeguards only put a check on the discretionary power of the police. Moreover, a person should be given the benefit of the presumption of innocence until proven guilty, hence, his personal liberty and reputation should not be snatched merely on the basis of a one-sided version of the complaint. Therefore, before arresting a person, the complaint should be properly scrutinized and if prima facie it turns out to be malafide, then the person should have access to anticipatory bail.
(The co-authors are currently students at Dr. Ram Manohar Lohiya National Law University.)
[1] Pankaj D Suthar v State of Gujarat (1992) 1 GLR 405.
[2] Dr Subhash Kashinath Mahajan v State of Maharashtra (2018) 6 SCC 454.
[4] The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment act 2018. http://socialjustice.nic.in/writereaddata/UploadFile/PoA_Act_2018636706385256863314.pdf.
[6] The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1989, s 18. https://www.vakilno1.com/bareacts/schedulecstpt1989/schedulecstpt.html
[7] The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment act 2018, s 18A(2). http://socialjustice.nic.in/writereaddata/UploadFile/PoA_Act_2018636706385256863314.pdf
[8] International Covenant on Civil and Political Rights 1966, art 14(2); https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf; Universal Declaration of Human Rights 1948, art. 11(1).
[9] Lahu v State of Maharashtra civil appeal no. 194 of 2019 Bombay HC.
[10] Dr Subhash Kashinath Mahajan v State of Maharashtra (2018) 6 SCC 454, para 26.
[11] Sharad v State of Maharashtra 2015(4) BomCR(Crl) 545.
[12] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
[13] Joginder Kumar v State of UP (1994) 4 SCC 260.
[14] Gurbaksh Singh Sibbia v State of Punjab (1980) 2 SCC 565.
[15] Maneka Gandhi v Union of India AIR 1978 SC 597.
[16] State of M P v Ram Krishna Balothia (1995) 3 SCC 221.
[17] Gurbaksh (note 14).
[18] Sharad (note 11).
[19] India Penal Code 1860, s 191(false evidence) <https://indiankanoon.org/doc/677888/>; Indian Penal Code 1860, s 192 (fabricating false evidence) <https://indiankanoon.org/doc/1905297/>;IndianPenalCode1860, s 211 (false charge of offence made with intent to injure) <https://indiankanoon.org/doc/172919/>;Indian Penal Code 1860,s 420 (cheating) <https://indiankanoon.org/doc/1436241/>;Indian Penal Code 1860, s 499 (Defamation) <https://indiankanoon.org/doc/1041742/>;Indian Penal Code 1860, s 503 (criminal intimidation) <https://indiankanoon.org/doc/878688/.>
[20] Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161, para 13.
[21] ibid.
[22] Terrorist and Disruptive Activities (Prevention) Act 1985, s 17(4) http://theindianlawyer.in/statutesnbareacts/acts/t14.html#_Toc39467517; Unlawful Activities (Prevention) Act 1967, s 43D(4) https://indiankanoon.org/doc/96524627/; Maharashtra Control of Organised Crime Act 1999, s 21(3) http://www.nia.gov.in/writereaddata/Portal/LawReference/25_1_Maharashtra_Control_of_Organised_Crime_Act__1999__MCOCA__-_Maharashtra_Act_no_30__of_1999.pdf; The Terrorist Affected Areas (Special Courts) Act 1984, s 15(4) http://legislative.gov.in/sites/default/files/A1984-61.pdf.
[23] Terrorist and Disruptive Activities (Prevention) Act 1985, s 17(5) http://theindianlawyer.in/statutesnbareacts/acts/t14.html#_Toc39467517;Unlawful Activities (Prevention) Act 1967, s 43D(5) https://indiankanoon.org/doc/96524627/; Maharashtra Control of Organised Crime Act 1999, s 21(4) http://www.nia.gov.in/writereaddata/Portal/LawReference/25_1_Maharashtra_Control_of_Organised_Crime_Act__1999__MCOCA__-_Maharashtra_Act_no_30__of_1999.pdf; The Terrorist Affected Areas (Special Courts) Act 1984, s 15(5) http://legislative.gov.in/sites/default/files/A1984-61.pdf .
[24] Union of India v Nareshkumar Badrikumar Jagna 2018 SCC OnLine SC 2573.
[25] Shri Prithvi Cotton Mills Ltd v Broach Borough Municipality (1969) 2 SCC 283.
[26] The Code of Criminal Procedure 1973, s 154.https://indiankanoon.org/doc/1980578/.
[27] ML Singhal, Sohoni’s Code of Criminal Procedure Code vol 2 (LexisNexis 2005).
[28] Jacob Mathew v State of Punjab (225) 6 SCC 1.
[29] Lalita Kumari v State of UP (2014) 2 SCC 1.
[30] NCRB Crime in India 2015, Table 7.4 and Table 7.10. http://ncrb.gov.in/,
[31] NCRB Crime in India 2015, Table 4.5.http://ncrb.gov.in/.
[32] Jones v State 2004 SCC OnLine Mad 922.
[33] Dhiren Prafulbhai Shah v State of Gujarat 2016 CriLJ 2217.
[34] Sharad v State of Maharashtra 2015(4) BomCR(Crl) 545.
[35] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules 1995, rule 12(4). https://www.hrw.org/reports/1999/india/India994-18.htm.
[37] ibid.
[38] The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018, s. 18A(1)(b). http://socialjustice.nic.in/writereaddata/UploadFile/PoA_Act_2018636706385256863314.pdf.
[39] Arnesh Kumar v State of Bihar (2014) 8 SCC 273.
[40] The Code of Criminal Procedure 1973, s 41(1). https://indiankanoon.org/doc/1899251/
[41] Arnesh (note 39).
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