SC/ST judgment: Potential for misuse not a valid ground to read down statute, Centre seeks review
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SC/ST judgment: Potential for misuse not a valid ground to read down statute, Centre seeks review

Murali Krishnan

The Central government has wasted no time in seeking a review of the controversial judgment by the Supreme Court in Dr. Subhash Kashinath Mahajan vs. State of Maharashtra.

A review petition was filed today, assailing the judgment which had introduced safeguards to prevent misuse of the SC/ST (Prevention of Atrocities) Act, 1989 against officers who deal with the complaints under the Act in their official capacity.

Interestingly, the Centre has sought a hearing of the review petition in open court.

The judgment in question ((Dr. Subhash Kashinath Mahajan vs. State of Maharashtra), which was delivered by a Bench of Justices AK Goel and UU Lalit on March 20, had held that prior sanction of an appointing authority is required for prosecuting officers who deal with complaints under the Act in their official capacity. The judgment states,

“…no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District.”

Quite significantly, the Court had also given a purposive interpretation to Section 18 of the Act, which prevents the grant of anticipatory bail in complaints under the Act. It had held that there is no absolute bar on grant of anticipatory bail in cases under the Act if no prima facie case is made out.

“There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.”

In the review petition filed today, the Centre has contended that the judgment suffers from errors apparent on the face of the record, as the Court failed to appreciate certain facts and settled principles of law.

It is the stand of the Centre that despite the deterrent provision in the Act, continuing atrocities against SC/STs is a cause of concern.

“High incidence of occurrence of offences against them also indicated that the deterrent effect of the POA 1989 Act was not adequately felt by the accused”.

This led to amendments to the Act, the Centre states. It has also cited the low rate of conviction and high rate of acquittal under the Act as attributable to several factors like,

“delay in lodging FIR, witnesses and complainant becoming hostile, absence of proper scrutiny of cases by the Prosecution before filing the chargesheet in court, lack of proper presentation of the case by the prosecution and appreciation of evidence by the Court.”

On Section 18 of the Act dealing with anticipatory bail, which the Supreme Court had read down, the Centre has stated that this provision is the backbone of the Act, and any dilution of the same would shake the very objective of the mechanism to prevent atrocities.

The government has contended that alleged potential for misuse cannot be a ground for reading down a statute, and if such a principle is extended to offences under other provisions of law, criminal law would be rendered toothless.

“The alleged potential of misuse would not be deserved to considered as a valid, justifiable or permissible ground for reading down the stringent provisions of the PoA Act 1989. Such a principle if extended to offences created under other provisions of law would render criminal law and criminal procedure system toothless and nugatory…”

Equally interesting is the submission on Article 21. It is the Centre’s case that while the right of the accused under Article 21 is important, the same is equally available to members of the SC/ST community. Hence, any interpretation of the Act which results in the dilution of its provisions would result in depriving the members of the SC/ST community of their right under Article 21.

“…the immense pain and injury which gets caused on commission of any kind of offence against members of SCT/ST enumerated and included in Section 3 of the PoA Act 1989 is the worst form of violation of Article 21…requiring complete and strict implementation of PoA Act 1989…”

National Crime Records Bureau records data (2016)
National Crime Records Bureau records data (2016)

Contending that the judgment of March 20 has wide ramifications and implications. It will adversely affect a substantial population of the SC/ST, the Central government has sought a review of the same.

Importantly, the Centre has also prayed for an open court hearing of the review petition.

Before the Division bench of Justices AK Goel and UU Lalit, the Centre had taken a stand that the Court should not lay down any guidelines with respect to the Act. While adverting to the high acquittal rate under the Act, the Centre had cited a press release to the effect that in the event of false cases, relevant Sections of IPC can be invoked.

However, it had also submitted that awarding punishment to members of the SC/ST community for false cases would be against the spirit of the Act.

The Court had, however, placed reliance on the submissions of Amicus Curiae Amarendra Sharan and advocate Manisha T Karia, appearing for an intervenor, in order to deliver the controversial verdict.

Interestingly, though the Court had sought the assistance of Attorney General KK Venugopal in the matter, it was Additional Solicitor General Maninder Singh who subsequently appeared for the Central government.

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