Above: Members of the Dalit community protesting against the Supreme Court’s order diluting the SC/ST Act last year/Photo: UNI

In a bid to correct a wrong, a three-judge bench recalls an earlier order diluting the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

By Venkatasubramanian

Judicial activism is a useful label to describe decisions taken by judges when they encroach on what is understood as the domain of the legislature and the executive. A certain degree of judicial activism is expected as public interest demands that the judiciary steps in to fill perceived gaps in law or executive actions. However, judicial activism becomes judicial overreach when there is no public interest to fill imagined gaps in legislative or executive policy.

The opposite of judicial activism is judicial restraint when judges refuse to fill in these perceived gaps in deference to the doctrine of separation of powers. Judicial restraint may, however, be interpreted as abdication of judicial responsibility if public interest demands at least limited judicial intervention to correct a perceived injustice.

On October 1, a three-judge bench of the Supreme Court espoused the virtues of judicial restraint while recalling an order passed by a two-judge bench last year, which had widely come under attack for its judicial overreach. On March 20 last year, Justice Adarsh Kumar Goel (who is now the chairperson of the National Green Tribunal after retiring from the Supreme Court) and Justice Uday Umesh Lalit delivered one such order, which could be described as “judicial overreach” in a criminal appeal case, Subhash Kashinath Mahajan v State of Maharashtra. The bench had expanded the ambit of this case without the appellants asking for it, and introduced three safeguards with the aim of preventing “misuse” of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The three safeguards were, however, seen as an attempt to dilute the Act’s stringent provisions against oppression of SCs and STs, and this led to huge protests from the Act’s intended beneficiaries. On October 1, 2019, a three-judge bench, comprising Justices Arun Mishra, MR Shah and BR Gavai recalled the earlier order of the two-judge bench by invoking the Court’s review jurisdiction following a plea from the government.

The three “safeguards” to prevent “misuse” of the Act were:

• There should be a preliminary inquiry prior to the registration of an FIR against those accused under the Act
• The Investigation Officer must receive further approval prior to effectuating an arrest
• There should be no bar on the grant of anticipatory bail to any accused, notwithstanding any judgment or order or direction of any court.

Following the judgment, Parliament amended the Act, inserting Section 18A, which effectively nullified the two-bench’s judgment in Kashinath Mahajan. Subsequently, the constitutionality of Section 18A was challenged before the Supreme Court.

The three-judge bench also heard petitions challenging the amendment but reserved its order in this case, which would be delivered separately.

The October 1 judgment, authored by Justice Mishra, noted that the Act of 1989 aimed to remove the disparity of SCs and STs, who remain vulnerable and are denied their civil rights. The judgment drew from the Act’s Statement of Objects and Reasons: “The SCs and STs are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons… When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them…A special legislation to check and deter crimes against them committed by non-SCs and non-STs has, therefore, become necessary.”

The centre submitted to the three-judge bench that the earlier order of the two-judge bench would shake the very objective of the mechanism to prevent the offences of atrocities and cause a miscarriage of justice even in deserving cases. Rule 7(2) of the SC and ST (Prevention of Atrocities) Rules, 1995, provides that the investigating officer should complete the investigation within 30 days. Without immediate registration of FIR and arrest and by providing anticipatory bail to the accused, Rule 7 is bound to be frustrated, the centre told the review bench.

Preliminary inquiry can only be held in a case where it has to be ascertained whether a cognisable offence has been committed or not. If the information discloses that it has, it is mandatory to register the FIR, the centre said.

If the benefit of anticipatory bail is made available to the accused, there is every possibility of them misusing that liberty while on anticipatory bail to terrorise their victims and prevent a proper investigation, the centre contended.

In any case, the Supreme Court had already held in Kartar Singh v State of Punjab (1994) that the denial of the right of anticipatory bail under Section 438, CrPC, would not amount to a violation of Article 21. Section 18 of the 1989 Act makes it clear that Section 438 of the Code shall not apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act.

The two-judge bench erroneously inferred from the low conviction rate under the 1989 Act that the law had been abused. The low conviction rate, the attorney general submitted before the review bench, is a reflection of the failure of the criminal justice system and not an abuse of law.

“The witnesses seldom come to support the downtrodden class, biased mindset continues, and they are pressurised in several manners, and the complainant also hardly muster the courage,” the judgment noted.

“What legislature cannot do legitimately, cannot be done by the interpretative process by the courts,” the three-judge bench observed. It faulted the earlier bench for its flawed presumption that members of the SC and ST community may misuse the law as a class, whereas members of the upper castes or the elite class do not resort to similar misuse. Human failing and not caste is attributable to lodging a false report, the bench reasoned.

Justifying the interference of courts if there is a misuse of law, the bench ruled out a change of the law. In 2016, more than 47,000 cases were registered under the 1989 Act. “The number is alarming, and it cannot be said that it is due to the outcome of the misuse of the provisions of the Act,” the bench held. The requirement of preliminary investigation before registering an FIR was seen by the Court as discriminatory to SCs and STs.

The bench also underlined the Court’s consistent view that if prima facie a case has not been made out attracting the provisions of the 1989 Act, the bar on grant of anticipatory bail is not attracted. An accused under the Act is not without remedy as he or she can approach the High Court for quashing the FIR under Section 482, CrPC, it said.

Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged under the 1989 Act. Therefore, the two-judge bench by making it mandatory encroached on a field which is reserved for the legislature, the three-judge bench concluded.