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A three-Judge Bench of the Supreme Court today allowed the Review Petition filed by the Central government against a March 2018 decision of a Division Bench that had effectively diluted the provisions of the SC/ST Act.
The judgment was rendered by a three-Judge Bench of Justices Arun Mishra, MR Shah, and BR Gavai. The Centre had assailed the decision of the Supreme Court in Subhash Kashinath Mahajan v. State of Maharashtra, by which it had diluted some of the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 [SC/ST Act].
The Bench also observed that the directions issued by the Division Bench were not called for, and were not within the parameters of Article 142 of the Constitution of India. Justice Arun Mishra went on to state,
“We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.
…What legislature cannot do legitimately, cannot be done by the interpretative process by the courts.”
Directions 3, 4, and 5 as laid down in the judgment stand set aside after today’s judgment. The amendment to the Act had already nullified the effect of directions 3 and 4. These directions read as follows:
iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
While allowing the review petition filed by the Centre, the Court took note of the alarming figures recorded by the National Crime Records Bureau which indicated that over 47000 cases under the SC/ST Act were filed in 2016. Such figures cannot be reached on the basis of false cases, the Court noted. While, the possibility of misuse of the Act is not discarded by the Court, it, however, said,
“There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one.
… There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the Cr.PC.”
Underscoring the need for some special provisions for the benefit of the downtrodden classes, the judgment ends on a hopeful note of creating a casteless society where there will exist no discrimination and no need for affirmative action.
“The creation of a casteless society is the ultimate aim. We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like Act of 1989, and there is no need to provide for any reservation to SCs/STs/OBCs, and only one class of human exist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equal as per Constitutional goal. “
In the judgment passed last year, the Bench of Justices AK Goel and UU Lalit had introduced safeguards to prevent the misuse of the SC/ST Act against officers who deal with the complaints under the Act in their official capacity.
It has held that prior sanction of the appointing authority is required for prosecuting officers for acts done by them 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.”
This judgment had caused a major uproar across the country and was protested against by members of the SC/ST communities.
The Centre then moved the Supreme Court, immediately seeking a review of this judgment. A hearing was held on April 3, however, the Court had refused to stay the operation of the judgment then.
In August 2018, Parliament brought in an amendment to the Act that effectively reversed the decision of the Supreme Court. However, the validity of the amendment was also assailed in the Supreme Court.
The Review Petition eventually came up for hearing before the special three-Judge Bench, which reserved its decision in the matter on September 18. On that date, Justice Mishra had observed that India had still not emerged from the clutches of the social evil of untouchability.
The Court had also asked the Centre why the authorities had failed to address the plight of manual scavengers, who are dying on a daily basis, particularly owing to the lack of protective gear.
[Read the Judgment]