A Wrong Turn in the Road to Equality

April 6, 2018 | Jayna Kothari

Ironically, on the 91st anniversary of the revolutionary Mahad Satyagraha, (a Dalit march led by Dr. B.R. Ambedkar to access water in a tank), on 20th March 2018, in Dr. Subhash Kashinath Mahajan vs. The State of Maharashtra and Anr.the Supreme Court opined that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act) was being misused and laid down guidelines, substantially diluting the provisions of the Act.


The facts of this case are that the Principal and Head of Department had made adverse remarks in the annual confidential report about the Complainant, a member of a Scheduled Caste. The Complainant alleged that it had been caste-motivated, and filed a complaint against them under Sections 3(i)(ix), 3(2)(vi), and 3(2)(vii) of the Act as well as Sections 182, 192, 193, 203 and 219 read with Section 34 of the Indian Penal Code. To chargesheet them, the investigating officer required the sanction under Section 197 of the Criminal Procedure Code (CrPC). When faced with a request for sanction, the Appellant, serving as the Director of Technical Education in the State of Maharashtra denied sanction.


The Complainant then lodged another FIR against the Appellant charging him under the same Sections, stating that the Appellant was aware of the caste undertones in this matter and alleging that since the two officers were both Class-I officers, the Appellant did not have the right to handle requests for sanction under Section 197, but still chose to do so. The Appellant moved the Bombay High Court under Section 482 of the CrPC to quash these proceedings, which was not allowed. The Appellant thereafter filed an appeal against this order before the Supreme Court.


While examining the question of quashing, the Supreme Court questioned Section 18 of the Act which imposed a barrier to anticipatory bail. Even though the Accused had obtained anticipatory bail in this case, surprisingly the Court stressed on the need for safeguards to provide protection against arrests on the basis of a unilateral allegation of malafides against public officers, for protection of their fundamental right to liberty under Article 21. The Supreme Court held that though in its previous decision in State of MP And Anr. vs. Ram Krishna Balothia And Anr. the constitutional validity of Section 18, there was a need to revisit it because innocent persons against whom there was no prima faciecase, or there was a patently false case cannot be denied anticipatory bail. The Court’s clarification that it does not intend to dilute the provisions of Section 18 appears to be an attempt at keeping things correct on paper, while diluting its impact on the ground.


The Court held that the Act was being misused not by relying on any empirical data but only by relying on judicial observations in some High Court judgements. It also cited National Crime Records Bureau data which recorded filing of closure reports of 15-16% cases and acquittal or withdrawal or compounding of more than 75% of cases. The Court interpreted this to mean that the cases filed had been maliciously without any legal basis because closure of cases does not in any way indicate that the cases were false.


It held that the procedure for deprivation of liberty under the Act had not been fair, just and equitable, in accordance with the Maneka Gandhi standards. The Court cited its decision on the values of secularism, fraternity and integration of the society, which may require a check on false implications of innocent citizens, especially against public servants. It completely ignored and trivialised the discrimination, the social and economic disabilities faced by members of Scheduled Castes and Scheduled Tribes in India.


The Court quashed the present complaint and mandated a preliminary enquiry, to be completed within 7 days, before any arrests are made under the Act. Where no prima facie case could be made out, the Court directed that the authority which appointed the accused public servant, must sanction his arrest. Similarly, all arrests of a non-public servant mandates permission from the Senior Superintendent of Police of the District. Ignoring Section 22 of the Act, additional hurdles, seemingly to protect public servants while discharging their duties, were placed.


Despite the observation that arrests of persons accused under the Act could be personally motivated, it granted additional powers to the investigating officer to conduct a preliminary enquiry, as well as to the Deputy Superintendent of Police of the District to decide on sanction for prosecuting a non-public citizen under the Act.


The Court also ignored the Statement of Objects and Reasons of the Act which protects members of the Scheduled Castes and Scheduled Tribes from vested interests who try to harms them when they assert their rights. Being a special law legislated to address caste discrimination, this judgement dilutes it by placing additional hurdles for inquiry and arrest, imputes its misuse without any empirical basis and gives out a message that public servants are being harassed under this law, when the whole focus of this law is to actually protect SC/ST persons from discrimination. This judegment is pending review, and unless it is reviewed and such observations are set aside, the Act will not have the strength and impact required to tackle caste inequality.


This post was authored by Jayna Kothari and Mandakini J.

Jayna Kothari

Executive Director

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