It is gratifying that long after 28 years after the enactment of SC/ST (Prevention of Atrocities) Act – 1989, the Supreme Court took stock of the situation regarding misuse of the provisions of the Act by both investigating agency and people of vested interest groups over the years as a result of which innocent people are arrested under the draconian provisions under the Act and hauled up for criminal prosecution.
The court also gave a direction that before the arrest under the provisions of the Act is made, it requires a written approval by a police officer of the rank of senior Superintendent of Police and equivalent rank i.e. Additional Commissioner of Police who will record reasons why an arrest is necessary where a public servant is involved and approval must come from the appointing authority. At the time of registration of the case under the provisions of the Act, law enjoins the police to hold preliminary inquiry by an officer of the rank of Deputy SP which is also the mandate of SC/ST Rules – 1995. The court further directed that if the allegations are found to be false, frivolous or motivated at the threshold, the police authority will not proceed with the investigation.
In this backdrop, it is distressing to note that the Act forbids the grant of release of the accused on anticipatory bail under Section – 438 of the code of criminal procedure. Therefore as an additional safeguard, the Division Bench of the court noted that when an accused is arrested under the Act and produced before a magistrate, the concerned court would apply its judicial mind at the outset to ascertain if a prima facie case under the Act has been made out. On such considerations, the court would decide regarding the necessity or refusal of further remand or detention of the accused in custody.
As a matter of fact the Act did not allow an accused arrested under the provisions of the Act to get anticipatory bail. For the first time, the apex court in its anxiety to safeguard the rights of an accused twisted the provisions of the Act and expressed its concern regarding misuse of the law by the investigating agency, unscrupulous people and vested interest groups who belong to political parties and their rivals. The court therefore to safeguard the liberty of the people and protect the rights of the innocents removed the bar or fetter under Section – 18 of the Act which has refused the grant of anticipatory bail to a person arrested on an accusation of having committed an offence under the Act. In the context, it is worthwhile to note that Article – 21 of the Constitution says in laudable terms that ‘no person shall be deprived of his life or personnel liberty except according to the procedure established by law’. In view of this constitutional mandate, the Supreme Court while interpreting the provisions of SC/ST Act came across the gross misuse of this law by unscrupulous elements of the society including public servants who are in charge of its enforcement.
Besides, it is worthwhile to mention that SC/ST Act also says that the provisions of the Probations of Offender’s Act shall not apply to any person above the age of 18 years who is found guilty of having committed an offence under the SC/ST Act.
Now therefore in view of such draconian provisions while interpreting the provisions in the SC/ST Act, the Supreme Court held that the liberty of citizens is crushed by such a legislative enactment. In the context, it would be appropriate to say that there was the Rowlet Act during British Raj which was treated as black law having draconian provisions which interfered with the freedom of the people for which this law was withdrawn. Similarly, we have had stringent laws like POTA (Prevention of Terrorist Activities Act) and TADA (Terrorist and Disruptive Activities Act) and both the Acts having contained draconian provisions, coming in conflict with the liberty of citizens were withdrawn. On the same analogy, the SC/ST (Prevention Atrocities Act) has stringent provision which affects substantially the freedom of people which are now held to be draconian provisions enshrined in the Act by the ruling of the Supreme Court, which have been withdrawn by this path breaking judgment. After this judgment, the Congress party raised uproar in the Parliament and wanted the Central Government to move the Supreme Court for review of the judgment or an amendment of the provisions of the SC/ST Act, as the judgment will stand as a bar for protection of the SC/ST people who are in minority.
Significantly, the court has held that the provision of Section – 18 of the Act in this regard which does not permit an accused arrested under the provisions of the SC/ST Act to invoke the provisions of grant of anticipatory bail is certainly draconian provision which comes sharply in conflict with the liberty of the innocent prosecuted under the Act. The court therefore put an embargo that from now onwards, arrest of any person under the SC/ST Act will require a written approval by a police officer of the SSP rank who would record reasons justifying the arrest and where a public servant is involved, approval/sanction must come from the appointing authority. Ultimately the court while interpreting the provision of Section – 18 which denies the right of an arrested person regarding grant of anticipatory bail held that such provision will not apply to such cases where no case is made out or the allegations are patently false or motivated.
Such a verdict is absolutely necessary to prevent blackmail of public servants from discharging their official duties under the Act and furthermore to safeguard the rights of common citizens who are faced with the threat of remand to jail custody after the arrest and surrender of their civil rights.
Concluding, the court in its judgment was supplied with the figures by the National Crime Records Bureau (NCRB) regarding the rate of conviction and acquittal in cases filed under SC/ST Act and came across glaring instances of misuse of the law over the years. In 2015, out of the total complaints investigated by police under the Act, closure reports were filled in almost 16 per cent cases. Out of the total cases handled by courts under the Act in the same year, more than 75 per cent paces ended up in acquittal, withdrawal or compounding of cases. Even the Parliament debated the misuse of the Act in the year 2015. The Bench thus held “The underprivileged need to be protected against any kind of atrocities to give effect to the ideals cherished in the Constitution. At the same time, this law cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for any extraneous consideration against citizens. Any harassment of an innocent person, irrespective of caste or religion, is against the constitutional guarantee. The apex court emphatically said “This court must enforce this guarantee.
law should not result in caste hatred.” The Bench further added that “no law can mandate arrest of an innocent by limiting even his pre-arrest bail.”
(The writer is an ex-Special Judge, CBI, Mob: 9437022723)