By Pranika Goel
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Citation: 2020 SCC Online SC 159
Act: SC/ST Prevention of Atrocities) Amendment Act 2018
Principle: The constitutionality of the act was upheld
Facts
Section 18A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018 prescribes that neither a preliminary investigation is required to be conducted before the registration of an FIR, nor the approval of any person is required before arresting anyone, under the provisions of the act. Further, section 438 of the Criminal Procedure Code, which provides for anticipatory bail, won’t be applicable to a case under the act. This amendment was passed by the legislature to nullify the effects of the judgement rendered in Dr Subhash Kashinath Mahajan v. The State of Maharashtra ((2018) 6 SCC 454), in which directions to the contrary had been issued, that is, the requirement of a preliminary enquiry as well as approval for arrest. However, these directions had been recalled by the court in the review judgement (Union of India v. State of Maharashtra, 2019 SCC Online SC 1279).
Issue
Whether the amendment is
violative of Articles 14 and 21 of the Indian Constitution?
Reasoning
Justice Mishra, who delivered
the principal judgement, upheld the validity of the amendment by citing the
reasons given while deciding the review petitions, which led to the revocation
of the safeguards passed in the Subhash Kashinath judgement. In that decision,
it was pointed out that members of the Scheduled Caste and Scheduled Tribe
communities are still grossly discriminated against and remain vulnerable. Despite
the principle of equality envisaged in Article 14, the Constitution also
provides for positive discrimination through special provisions for the
upliftment of these communities under Article 15(4). Further, the right to life
and liberty under Article 21 includes the right to live with human dignity,
which contains within it, the right to be treated equally. The Scheduled Caste
and Scheduled Tribes (Prevention of Atrocities) Act 1989 was passed in
furtherance of these provisions of the Constitution. Hence, the safeguards,
which further put these communities at a more disadvantageous position, by imposing
a more rigorous approach than the general law, were violative of Articles 15,
17 and 21, by treating them as unequal, as well as defeating the very object of
the 1989 act and hence were recalled. They also fell outside the ambit of the
powers of the court, granted under Article 142 of the Constitution.
Secondly, denying
anticipatory bail would not be violative of Article 14 since the offences under
the act are special offences and hence can’t be compared with general offences.
Moreover, the bar against anticipatory bail would not operate if no prima facie
case is made out. While deciding whether the provision against anticipatory
bail is violative of Article 21, the court held that in light of the
exploitative conditions prevailing against the SC/ST communities, there is
possibility that anticipatory bail is used to hinder the process of justice. The
same is not a matter of right, but only a statutory right, and in no manner a
part of Article 21. Hence, the 2018 Amendment Act is not violative of any
provisions of the Constitution.
Justice Bhatt, while writing
a concurring but supplementary opinion, said that while false accusations are
made, they are not the true reflection of the level of atrocities that prevail
against the members of SC/ST communities. Hence, the special provisions for their
protection can’t be put at par with the concern of the petitioners that false
accusations may be made. He added a caveat that the power of the High Court to
grant a pre-arrest bail should be used sparingly and in exceptional cases where
no prima facie case seems to exist.
Conclusion
The court upheld the
constitutional validity of the Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Amendment Act 2018, since the same only furthers the object of
the 1989 act as well as the provisions of the constitution, and any direction
to the contrary would only further disadvantage the already downtrodden
communities. Anticipatory bail for the offences committed under the act can be
granted only when a prima facie case is not made out.
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Pranika Goel is a 2nd year Law student at National Law University, Delhi. Still exploring what her true calling is, she is interested in Constitutional Law, Criminal Law, Corporate Law and Cyber Law. She likes to read fiction, paint and cook to de-stress. A curious soul, she enjoys studying about other fields, particularly Positive Psychology and Mathematics.
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