The path towards Dignity of Life

Dignity is a crux for and right of every living human being; without it; none could survive. Nonetheless, several individuals, especially Scheduled Castes and Scheduled Tribes in India(SC/ST), deprived of life with dignity. The root of such deprivation is casteism followed since centuries, which insensitively divided the citizens in upper and lower casts, and disgraced the motive of the word Fraternity in the Preamble of Constitution of India. One of the purposes of Preamble, Article 21, and Article 17 is to bring the backward castes into the mainstream and their upliftment, by providing them protection, reservations and rights. The Constitution has declared rights and reservation; and for protection of SC/ST from heinous and ominous acts, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) passed for the protection of SC/ST's. The Act laid the foundation of designated courts and punishments for atrocities with the sole purpose of protecting SC/ST. The Amendment of 2018 has inserted Section 18A in the Act, which was challenged by Mr Prathvi Raj Chauhan (Petitioner), before the Supreme Court (S.C.S.C.) through Writ petitions bearing no. 1015 of 2018 and 1016 of 2018.

Section 18 of the Act states that Section 438 of the Code of Criminal Procedure (CrPC), which laid down the concept of anticipatory bail, shall not be applicable for a person committed an offence under the Act. Further Section 18A states that no enquiry is required before registration of F.I.R., the investigating officer shall arrest any person; who is under the accusation of the Act and follow procedures only mentioned under the Act and Section 438 of CrPC shall not apply notwithstanding any order or judgment of the court. It was submitted that Section 18A of the Act, was against the conclusion/directions given by S.C.S.C. in Dr SubhashKashinath Mahajan v. The State of Maharashtra & Anr., (2018). The conclusion/directions are the arrests of the public and non-public servant, to avoid false implication, and violation of above would be contempt.

The SC settled the first Writ Petition by studying the observations in review Petition of Dr SubhashKashinath Mahajan v. The State of Maharashtra & Anr., (2018), where S.C.S.C. described conclusions/directions. The SC further emphasized the report of the National Commission for Scheduled Castes regarding preliminary investigation before registration of F.I.R. and N.C.R.B. data for growth in crime rate against SC/ST, quashing the appropriate cases and granting anticipatory bail in serious matters. Consequently, the S.C.S.C. considered above as abuse of law. Under the CrPC, the complaint about the cognizable offence registered forthwith, and all offences under the Act are cognizable. Still, the complaint-lodging process is backed with a condition of a preliminary enquiry, would violate of protective discrimination of Article 15, 17, and 21. The Constitutional bench in Kartar Singh case among other things, observed, right of anticipatory bail would not amount to a violation of Article 21 of the Constitution of India. In respect of appointing authority, S.C.S.C. held that the authority has no right to go beyond the F.I.R. when the offence is cognizable, non-bailable, and the investigation completed. Further, it is not a provision in general law to take the permission of appointing authority, when the offender may be a public servant. Prior approval authority or S.S.P. is not required before the arrest, as it would be discriminatory and against the protective discrimination. In LalitaKumari's case, the bench observed, where a cognizable offence commits, the F.I.R. has to be outrightly registered, and no preliminary inquiry has to be made. Consequently, direction (iii), (iv) and (v) have been nullified by S.C.  

For deciding the issue of Section 438 of CrPC, the S.C.S.C. relied on the State of M.P.M.P. & Anr. v. Ram Krishna Balothia Anr, and stated, offences in the Act are on the ground of untouchability under Article 17 of the Constitution, which are cognizable and application Section 438 would give liberty to the offenders to misuse the benefits by terrorizing victims and preventing the investigation. In Vilas PandurangPawar and Anr. v. State of Maharashtra and Ors., the identical view was taken by S.C.S.C., Section 18 of the Act r/w Section 438 create a bar for granting anticipatory bail. Therefore, relying on above grounds, S.C.S.C. delivered its judgement dated 10.02.2020, recalled its previous order dated 01.10.2019., by upholding Section 18A of the Act and denied the applicability of Section 438, unless in exceptional cases.

In the second writ petition, Justice Bhat has agreed with the judgment passed by Justice Arun Mishra. Justice Bhat emphasis on the word Fraternity in the preamble. In RaghunathraoGanpatrao v. Union of India, SC observed, "the object of the word Fraternity is assuring the dignity of an individual. Dr Ambedkar elaborated the Fraternity as a sense of common brotherhood among all Indians." Further, Justice Bhat showed concern about the increasing cases against SC/ST's and pointed out the failure on the part of concerned authorities. In addition to the above judgment Justice Bhat supplemented, "amendments precluding preliminary enquiry, or provisions which remove the bar against the arrest of public servants accused of offences punishable under the Act, would not be a positive step" and reasoning for this is various offences have recorded and in case of any false accusation, the innocent would suffer from legal proceedings. He further added that, in cases where no prima facie material was found, the courts could grant anticipatory bail and subsequently, disposed of the petitions on 10.02.2020.