Monday, April 16, 2018

SC/ST Atrocities judgment, a different perspective

It is not unusual that the decisions of the Supreme Court are counter-majoritarian in that they hold views against what are popular or what could pander to mass sentiments. The recent conflagration is a symptom of how we are slowly allowing populism to judge the quality of judgments and give no heed to the legal underpinnings justifying the conclusions in the judgment. The recent one in Dr. Subhash Kashinath Mahajan v The State of Maharashtra in Crl App No 416 of 2018 dt 20th March 2018 that has sent the country in to a frenzy, even if not popular, is driven through sound legal principles and not very easy to dislodge. It has examined the protection sought by a person claiming to be innocent but against whom proceedings were initiated under the SC/ST (Prevention of Atrocities) Act. The focus was therefore required to examine within the framework of law the manner of how the Atrocities Act could be enforced punishing the persons guilty with the vigour that the Act expounds without at the same time inflicting hardships to innocent persons against whom the complaints are prima facie mala fide and prevent the Act from being "converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons".

Reiterating established legal precedents
The judgment reiterates sound principles of law already laid down: (i) The earlier decision of the Supreme Court in State of MP v Balothia (1995) upholding provisions of SC/St Act, making inapplicable s 438 CrPC that would enable the accused the benefit of anticipatory bill; (ii) Consequently, it said that "the exclusion of s 438 CrPC applies when a prima facie case of the commission of offence under the Atrocities Act is made" (para 60);  (iii)The law should be so enforced that it "should not result in caste hatred." The judgement quotes Dr.B.R.Ambedkar in his famous speech on 25th November 1949, on conclusion of deliberations of the Constitution Assembly underscoring that "castes are anti national and they generate jealousy and antipathy between caste and caste." The judgment therefore exhorts that "the interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society.  They may require check on false implications of innocent citizens on caste lines." (para 47) In doing so, the Court emphatically stated that "we are not diluting the efficacy of section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention". (para 68)

Protecting the innocent as a necessary corollary to provision denying anticipatory bail
After setting out that the perpetrators of atrocities should not be granted anticipatory bail so that they many not terrorise the victims, the Court proceeded to state, "Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime. The facts that gave place to this law itself provides an outstanding illustration of how an innocent person could be browbeaten and blackmailed against doing public duty. A storekeeper in a Government College of Pharmacy was appraised in the Annual Confidential Report to the effect that "his integrity and character was not good." This was the basis for a complaint for offence under SC/St Act against his superior officers in 2006. The Investigating Officer sought for sanction before the Director of Technical Education (Appointing Authority), in 2010 and the latter refused sanction in 2011. The act of refusal was stated in a complaint in 2016 as an act of atrocity under the Act. The Director approached the High Court under s 482 CrPC to quash the complaint and when it was dismissed, he approached the Supreme Court. The case was an outstanding illustration of a mala fide registration of a complaint because, by no stretch of imagination, a sanctioning authority, who is but a gatekeeper, by denying sanction could be stated to have committed an offence under the Atrocities Act. The complaint and the original complainant and its registration by police were patently illegal and a flagrant violation of the Act. Even if the refusal of sanction was wrong or the exercise of such authority was by a  person who was not competent to pass such an order, as contended by the complainant, the remedy was to challenge the order before an appropriate forum and not make it as a ground for a fresh complaint under the Act.

Registration of complaint and arrest, when justified
The Court therefore examined the case law on the subject and stated with reference to earlier decisions that (i) a judicious scrutiny is to be undertaken even before registration of a complaint if the ingredients of an offence exist even on the express averments in the complaint; (ii) Even if a complaint is registered, it is not necessary to order arrest; (iii) If such arrest is undertaken and the accused is a public servant, permission of the appointing authority shall be taken and if he is not a public servant, the permission shall be taken from the SSP, being a check not against registration of a complaint but against arrest without adequate reasons. The Court was "reiterating a well established principle of law that protection of innocent against the abuse of law was part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest." It said that constitutional guarantees of fundamental rights to all its citizens and a fortiori, an innocent person must be protected against blackmail and wreaking of vengeance.

Salient features of Atrocities law untouched by judgment
It is essential to know that the most potent provisions of the SC/ST Act are the exhaustive enumeration of various acts that constitute atrocities under section 3 and the stringent punishment to the perpetrator of the offence.  The Supreme Court has not touched upon the provisions. Equally important are the provisions for causing removal of certain persons likely to  commit any offence and presumption of abetment of the offence if financial trail from  the accused is sourced to any person or of commission of offence when there exists any present dispute with any person who is a part of the group, which remain untouched. Inapplicability of anticipatory bail provisions is but one of key provisions but it is trite law that even the absence of the provision for anticipatory bail does not take away the power to grant interim bail in suitable cases. The SC has enumerated several earlier decisions of the Supreme Court that recognise this power and particularly in the context of non-availability of anticipatory bail provision in the State of UP.

What went wrong?
The Supreme Court as the sentinel of fundamental rights of all its citizens has placed procedural safeguards for innocent persons only and has not disempowered anyway a valuable right to any member of SC/ST to use the rigours of the act against the perpetrator of any atrocity in the matter of registration of complaints and secure conviction. However, the travails of the Dalit brethren to caste based discrimination and atrocities have not stopped. There are countless rapes on dalit women. There are several social practices that assign to the dalits a lowly living. While the empowerment is pronounced in urban areas thanks to reservations in public employment, the lot of dalits in villages have not improved significantly. There are reports of lynching and indignities heaped on dalits every day even for mere suspicions of involvement in minor offences. In such an environment, the timing of the judgment was just not all right. Our courts take a long time to bring culprits  to book against whom complaints are made. Acquittal rates are high not because the complaints are false but because the prosecuting agency is corrupt and inept. Pre-trial arrest is the only satisfaction to the dalit victim that some instant justice is done. The decision of the Supreme Court, even if it could be supported in Courts as legally well founded, will find no takers outside court.

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