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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