UNION OF INDIA versus STATE OF MAHARASHTRA AND ORS.

[2019] 12 S.C.R. 1125

UNION OF INDIA

STATE OF MAHARASHTRA AND ORS.

(Review Petition (Crl.) No. 228 of 2018)

(Criminal Appeal No.416 of 2018)

OCTOBER 01, 2019

[ARUN MISHRA, M.R. SHAH AND B.R. GAVAI, JJ.]

Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – Supreme Court in Dr. Subhash KashinathMahajan v. State of Maharashtra reported as [2018] 4 SCR 877, whiledealing with the 1989 Act issued guidelines inter alia viz.- (iii) inview of acknowledged abuse of law of arrest under the 1989 Act,arrest of public servant can only be after approval of the appointingauthority and in case of non-public servant after approval by theS.S.P; (iv) preliminary inquiry by Dy.S.P to find out whetherallegations make out case under the 1989 Act and that the sameare not frivolous/motivated – Review of – Held: As the members ofthe Scheduled Castes and Scheduled Tribes have suffered for long;protective discrimination has been envisaged u/Art.15 and the 1989Act to make them equals – Offences under the 1989 Act arecognizable – Impugned directions put riders on the right to arrest –It is not open to the legislature to put members of SCs and STs indisadvantageous position vis-à-vis others and in particular to so-called upper castes/general category –What legislature cannot dolegitimately, cannot be done by the interpretative process by thecourts – For lodging false report, the caste of person is not thecause – It is due to the human failing and not due to the castefactor – There may be certain false cases and that can be groundfor interference by the Court u/s.482, CrPC, but the law cannot bechanged due to such misuse –More than 47,000 cases wereregistered in 2016 under the 1989 Act –Number is alarming, and itcannot be said that it is due to the misuse of the Act – To say thatreport lodged by an SC/ST would be registered only after preliminaryinvestigation by Dy. S.P, whereas under Cr.PC complaint lodged

Arelating to cognizable offence has to be registered forthwith, wouldmean that report by upper-caste has to be registered immediatelyand arrest be made forthwith and thus, would be opposed to theprotective discrimination meted out to the members of the SCs andSTs as envisaged u/Arts.15, 17 & 21– Guidelines (iii), (iv) appearto have been issued in view of the provisions of s.18, 1989 Act,Bwhereas adequate safeguards have been provided by purposiveinterpretation by Supreme Court in State of M.P. v. R.K. Balothia[1995] 1 SCR 897 – Permission of the appointing authority to arrestpublic servant is not at all statutorily envisaged and amounts tomandate having legislative colour which is field not earmarkedCfor the Courts – If at the threshold, approval of appointing authorityis made necessary for arrest, the very purpose of the Act is likely tobe frustrated – Various complications may arise– Further, in caseof non-public servant requiring the approval of SSP for the arrestof accused could not have been made sine qua non, as it may delaythe matter – As the approval of arrest by appointing authority/S.S.P.Dhave not been approved, the direction to record reasons and scrutinyby Magistrate consequently stands nullified – Direction nos.(iii),(iv) issued by Supreme Court recalled – Consequently, directionno.(v) also vanishes –Constitution of India– Arts.15, 17, 21 and142 – Code of Criminal Procedure, 1973 –ss. 2(c), 41, 197, 438 &E482– Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Rules, 1995 – r.7(2) – Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Amendment Rules, 2016.

Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 –s.18 – Held: Provision of s.18 cannot be saidFto be violative of Art.21 – Constitution of India – Art.21.

Constitution of India– Art.142 – Exercise of powers under –Impugned guidelines/directions issued by the Supreme Court in Dr.Subhash Kashinath Mahajan v. State of Maharashtra reported as [2018]4 SCR 877,inter alia directing that under the 1989 Act, arrest ofGpublic servant can only be after approval of the appointing authority;in case of non-public servant after approval by the S.S.P and alsofor preliminary inquiry by Dy.S.P to find out whether allegationsmake out case under the Act and that the same are not frivolous/motivated – Held: Directions encroach upon the field reserved for

the legislature and are against the concept of protectivediscrimination in favour of down-trodden classes u/Art.15(4) andalso impermissible within the parameters laid down by Supreme Courtfor exercise of powers u/Art.142 – Impugned directions recalled –Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989.

Judicial Review – Scope of and issuance of guidelines –Discussed.

Allowing the review petitions, the Court

HELD: 1.1 The provision of Section 18 of the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 cannot be said to be violative of Article 21. As the membersof the Scheduled Castes and Scheduled Tribes have suffered forlong; the protective discrimination has been envisaged underArticle 15 of the Constitution of India and the provisions of theAct of 1989 to make them equals. All the offences under theAtrocities Act are cognizable. The impugned directions put theriders on the right to arrest. As per the existing provisions, theappointing authority has no power to grant or withhold sanctionto arrest concerning public servant. SCs/STs are still makingthe struggle for equality and for exercising civil rights in variousareas of the country. The members of the Scheduled Castes andScheduled Tribes are still discriminated against. In spite ofreservation, the fruits of development have not reached to them,by and large, they remain unequal and vulnerable section of thesociety. The classes of Scheduled Castes and Scheduled Tribeshave been suffering ignominy and abuse, and they have beenoutcast socially for the centuries.[Paras 19, 37, 38 and 41] [1150-B; 1167-B-C; 1168-D-E]

1.2 There is right to live with dignity and also right to diewith dignity. For violation of human rights under Article 21 grantof compensation is one of the concomitants which has foundstatutory expression in the provisions of compensation, to bepaid in case an offence is committed under the provisions of theAct of 1989. good reputation is an element of personal securityand is protected by the Constitution equally with the right to theenjoyment of life, liberty, and property. Therefore, it has been

Aheld to be an essential element of the right to life of citizenunder Article 21. The provisions of the Act of 1989 are, in essence,concomitants covering various facets of Article 21 of theConstitution of India. The Constitution of India provides equalitybefore the law under the provisions contained in Article 14. Article15(4) of the Constitution carves out an exception for making anyBspecial provision for the advancement of any socially andeducationally backward classes of citizens or SCs and STs. Furtherprotection is conferred under Article 15(5) concerning theiradmission to educational institutions, including private educationalinstitutions, whether aided or unaided by the State, other thanCthe minority educational institutions. Historically disadvantageousgroups must be given special protection and help so that theycan be uplifted from their poverty and low social status. Thelegislature has to attempt such incumbents be protected underArticle 15(4), to deal with them with more rigorous provisions ascompared to provisions of general law available to the othersDwould create inequality which is not permissible/envisagedconstitutionally. It would be an action to negate mandatoryconstitutional provisions not supported by the constitutionalscheme; rather, it would be against the mandated constitutionalprotection. It is not open to the legislature to put members ofEthe Scheduled Castes and Scheduled Tribes in disadvantageousposition vis-à-vis others and in particular to so-called upper castes/general category. Thus, they cannot be discriminated against.What legislature cannot do legitimately, cannot be done by theinterpretative process by the courts. The particular law, i.e., Actof 1989, has been enacted and has also been amended in 2016 toFmake its provisions more effective. Special prosecutors are tobe provided for speedy trial of cases. The incentives are alsoprovided for rehabilitation of victims, protection of witnesses andmatters connected therewith.[Paras 45, 47 & 48] [1170-C-E, G;1171-A-E]G1.3 There is no presumption that the members of theScheduled Castes and Scheduled Tribes may misuse theprovisions of law as class and it is not resorted to by themembers of the upper Castes or the members of the elite class.For lodging false report, it cannot be said that the caste of aHperson is the cause. It is due to the human failing and not due tothe caste factor. Caste is not attributable to such an act. On theother hand, members of the Scheduled Castes and ScheduledTribes due to backwardness hardly muster the courage to lodgeeven first information report, much less, false one. In case itis found to be false/unsubstantiated, it may be due to the faultyinvestigation or for other various reasons including human failingsirrespective of caste factor. There may be certain cases whichmay be false that can be ground for interference by the Court,but the law cannot be changed due to such misuse. In such asituation, it can be taken care in proceeding under section 482 ofthe Cr.PC. The data of National Crime Records Bureau, Ministryof Home Affairs, has been pointed out on behalf of Union of Indiawhich indicates that more than 47,000 cases were registered inthe year 2016 under the Act of 1989. The number is alarming,and it cannot be said that it is due to the outcome of the misuse ofthe provisions of the Act. To treat SCs and STs as persons whoare prone to lodge false reports under the provisions of theScheduled Castes and Scheduled Tribes Act for taking revengeor otherwise as monetary benefits made available to them in thecase of their being subjected to such offence, would be againstfundamental human equality. The monetary benefits are providedin the cases of an acid attack, sexual harassment of SC/ST women,rape, murder, etc. In such cases, FIR is required to be registeredpromptly. It is an unfortunate state of affairs that the caste systemstill prevails in the country and people remain in slums, moreparticularly, under skyscrapers, and they serve the inhabitantsof such buildings. To treat such incumbents with rider that areport lodged by an SCs/STs category, would be registered onlyafter preliminary investigation by Dy. S.P., whereas under Cr.PCa complaint lodged relating to cognizable offence has to beregistered forthwith. It would mean report by upper-caste hasto be registered immediately and arrest can be made forthwith,whereas, in case of an offence under the Act of 1989, it would beconditioned one. It would be opposed to the protectivediscrimination meted out to the members of the Scheduled Castesand Scheduled Tribes as envisaged under the Constitution inArticles 15, 17 and 21 and would tantamount to treating them asunequal, somewhat supportive action as per the mandate of

ABCDEFG

[2019] 12 S.C.R.

AConstitution is required to make them equals. It would also becontrary to the procedure prescribed under the Cr.PC andcontrary to the law laid down by this Court in Lalita Kumari. Theguidelines in (iii) and (iv) appear to have been issued in view ofthe provisions contained in Section 18 of the Act of 1989; whereasadequate safeguards have been provided by purposiveBinterpretation by this Court in the case of State of M.P. v. R.K.Balothia. The consistent view of Supreme Court that if prima faciecase has not been made out attracting the provisions of SC/STAct of 1989, in that case, the bar created under section 18 on thegrant of anticipatory bail is not attracted. Thus, misuse of theCprovisions of the Act is intended to be taken care of by the decisionabove. In Kartar Singh, Constitution Bench of this Court laiddown that taking away the said right of anticipatory bail would notamount to violation of Article 21 of the Constitution of India.Thus, prima facie it appears that in the case of misuse of provisions,adequate safeguards are provided in the decision mentionedDabove. That apart directions (iii) and (iv) issued may delay theinvestigation of cases. As per the amendment made in the Rulesin the year 2016, charge sheet has to be filed to enable timelycommencement of the prosecution. The directions issued arelikely to delay the timely scheme framed under the Act/Rules.E[Paras 49-55] [1171-F-G; 1172-A-C, E-H; 1173-A-G]

In re: sanction of the appointing authority:

1.5 Concerning public servants, the provisions containedin Section 197, Cr.PC provide protection by prohibitingcognizance of the offence without the sanction of the appointingFauthority and the provision cannot be applied at the stage of thearrest. That would run against the spirit of Section 197, Cr.PC.Section 41, Cr.PC authorises every police officer to carry out anarrest in case of cognizable offence and the very definition of acognizable offence in terms of Section 2(c) of Cr.PC is one forGwhich police officer may arrest without warrant. In case any personapprehends that he may be arrested, harassed and implicatedfalsely, he can approach the High Court for quashing the FIRunder Section 482 as observed in State of Orissa v. Debendra NathPadhi. Permission of the appointing authority to arrest public

servant is not at all statutorily envisaged; it is encroaching on afield which is reserved for the legislature. The direction amountsto mandate having legislative colour which is field notearmarked for the Courts. The direction is discriminatory andwould cause several legal complications.To decide whether anaccused is entitled to bail under Section 438 in case no primafacie case is made out or under Section 439 is the function of theCourt. The direction of appointing authority not to arrest maycreate conflict with the provisions of Act of 1989 and is withoutstatutory basis. [Paras 56-59] [1173-H; 1174-A-E; 1175-A-B]

1.6 By the guidelines issued, the anomalous situation maycrop up in several cases. In case the appointing authority forms aview that as there is no prima facie case the incumbent is not tobe arrested, several complications may arise. For the arrest ofan offender, may be public servant, it is not the provision of thegeneral law of Cr.PC that permission of the appointing authorityis necessary. No such statutory protection provided to publicservant in the matter of arrest under the IPC and the Cr.PC assuch it would be discriminatory to impose such rider in the casesunder the Act of 1989. Only in the case of discharge of officialduties, some offence appears to have been committed, in thatcase, sanction to prosecute may be required and not otherwise.In case the act is outside the purview of the official discharge ofduty, no such sanction is required. The appointing authority cannotsit over an FIR in case of cognizable, non-bailable offense andinvestigation made by the Police Officer; this function cannot beconferred upon the appointing authority as it is not envisagedeither in the Cr.P.C. or the Act of 1989. Thus, this rider cannotbe imposed in respect of the cases under the Act of 1989. It isnot the function of the appointing authority to intermeddle with acriminal investigation. If at the threshold, approval of appointingauthority is made necessary for arrest, the very purpose of theAct is likely to be frustrated. Various complications may arise.[Paras 60-62] [1175-C-F; 1176-C]

In ref: approval of arrest by the SSP in the case of non-public servant:

A1.7 Inter alia for the reasons as mentioned earlier, requiringthe approval of SSP before an arrest is not warranted in such acase as that would be discriminatory and against the protectivediscrimination envisaged under the Act. Apart from that, no suchguidelines can prevail, which are legislative. When there is noprovision for anticipatory bail, obviously arrest has to be made.BWithout doubting bona fides of any officer, it cannot be left at thesweet discretion of the incumbent howsoever high. For an arrestof accused such condition of approval of SSP could not havebeen made sine qua non, it may delay the matter in the casesunder the Act of 1989. [Para 63] [1176-D-F]

CRequiring the Magistrate to scrutinise the reasons forpermitting further detention:

1.8 The reasons so recorded have to be considered by theMagistrate for permitting further detention. In case of approvalhas not been granted, this exercise has not been undertaken.DWhen the offence is registered under the Act of 1989, the lawshould take its course. Even otherwise, the approval of arrest byappointing authority/S.S.P. has not been approved, the directionto record reasons and scrutiny by Magistrate consequently standsnullified. In case cognisable offence is made out, the FIR has toEbe outrightly registered, and no preliminary inquiry has to bemade as held in Lalita Kumari by Constitution Bench. There isno such provision in the Code of Criminal Procedure forpreliminary inquiry or under the SC/ST Act, as such direction isimpermissible. Moreover, it is ordered to be conducted by theperson of the rank of Dy. S.P. The number of Dy. S.P. as per standFof Union of India required for such an exercise of preliminaryinquiry is not available. The direction (iv) cannot survive for theother reasons as it puts the members of the Scheduled Castesand Scheduled Tribes in disadvantageous position in the matterof procedure vis-a-vis to the complaints lodged by members ofGupper caste, for later no such preliminary investigation isnecessary, in that view of matter it should not be necessary tohold preliminary inquiry for registering an offence under theAtrocities Act of 1989. Directions encroach upon the fieldreserved for the legislature and against the concept of protective

discrimination in favour of down-trodden classes under Article15(4) of the Constitution and also impermissible within theparameters laid down by this Court for exercise of powers underArticle 142 of Constitution of India. Resultantly, direction Nos.(iii)and (iv) issued by this Court are recalled and consequently it isheld that direction No.(v), also vanishes. [Paras 64-66] [1176-G-H; 1177-A-F, H; 1178-A-B]

Lalita Kumari v. Government of U.P.(2014) 2 SCC 1:[2013] 14 SCR 713 ;Kartar Singh v. State of Punjab(1994) 3 SCC 569 : [1994] 2 SCR 375 ;Bachan Singhv. the State of Punjab(1980) 2 SCC 684 ;KesavanandaBharati v. State of Kerala (1973) 4 SCC 225 : [1973]Suppl. SCR 1;I.R. Coelho v. State of T.N.(2007) 2 SCC1 : [2007] 1 SCR 706;Bhim Singh v. Union of India(2010) 5 SCC 53 ;State of T.N v. State of Kerala(2014)12 SCC 696 : [2014] 12 SCR 875 ;Khadak Singh v.State of Himachal PradeshAIR 1963 SC 1295 :[1964] SCR 332 ;Olga Tellis v. Bombay CorporationAIR 1986 SC 180 : [1985] 2 Suppl. SCR 51 – followed.

National Campaign on Dalit Human Rights & Ors v.Union of India & Ors.(2017) 2 SCC 432 : [2016] 9SCR 122 ; State of M.P. v. Ram Krishna Balothia(1995) 3 SCC 221 : [1995] 1 SCR 897; SubramanianSwamy & Ors. v. Raju(2014) 8 SCC 390 : [2014] 9SCR 283 ;Asif Hameed & Ors. v. State of Jammu andKashmir & Ors. 1(989) 2 Suppl. SCC 364 : [1989] 3SCR 19 ; Indian Drugs & Pharmaceuticals Ltd. v.Workmen, Indian Drugs & Pharmaceuticals Ltd.(2007) 1 SCC 408 : [2006] 9 Suppl. SCR 73;DivisionalManager, Aravali Golf Club v. Chander Hass(2008) 1SCC 683 : [2007] 12 SCR 1084 ;Kuchchh Jal SankatNivaran Samili & Ors. v. State of Gujarat & Anr.(2013) 12 SCC 226 ;Hinch Lal Tiwari v. Kamla Devi(2001) 6 SC 496 : [2001] 1 Suppl.SCR 23 ; FrancisCoralie Mullin v. Union Territory Delhi, AdministratorAIR 1981 SC 746 : [1981] 2 SCR 516 ;People’s Unionfor Civil Liberties v. Union of India (2005) 2 SCC436 : [2005] 1 SCR 494;Umesh Kumar v. State of

Andhra Pradesh(2013) 10 SCC 591 : [2013] 14 SCR213; Kishore Samrite v. State of Uttar Pradesh (2013)2 SCC 398 : [2012] 9 SCR 733 ; Subramanian Swamyv. Union of India (2016) 7 SCC 221 : [2016] 3 SCR865 ; Kailas & Ors. v. State of Maharashtra(2011) 1SCC 793 : [2011] 1 SCR 94 ; State of Orissa v.Debendra Nath Padhi (2005) 1 SCC 568 : [2004] 6Suppl. SCR 460 – relied on.

State of Haryana & Ors. v. Bhajan Lal & Ors. (1992) 1Suppl. SCC 335 : [1990] 3 Suppl. SCR 259; SupremeCourt Bar Association v. Union of India(1998) 4 SCC409 : [1998] 2 SCR 795 ;Prem Chand Garg v. ExciseCommr.AIR 1963 SC 996 : [1963] Suppl. SCR 885;E.S.P. Rajaram v. Union of India(2001) 2 SCC 186:[2001] 1 SCR 203;A.R. Antulay v. R.S. Nayak(1988)2 SCC 602 ;Bonkya v. State of Maharashtra(1995) 6SCC 447:[1995] 4 Suppl. SCR 89; M.C. Mehta v.Kamal Nath(2000) 6 SCC 213 : [2000] 1 Suppl. SCR389 ;State of Punjab v. Rajesh Syal(2002) 8 SCC 158: [2002] 3 Suppl. SCR 124;Textile Labour Associationv. Official Liquidator (2004) 9 SCC 741 : [2004] 3 SCR1161 ; Laxmidas Morarji v. Behrose Darab Madan(2009) 10 SCC 425 : [2009] 14 SCR 777; Manish Goelv. Rohini Goel(2010) 4 SCC 393 : [2010] 2 SCR414 ;A.B. Bhaskara Rao v. CBI(2011) 10 SCC 259 :[2011] 12 SCR 718 ;State of Punjab v. Rafiq Masih(2014) 8 SCC 883 : [2014] 8 SCR 228;Vishakha v.State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl.SCR 404;S.C. Chandra v. State of Jharkhand(2007)8 SCC 279 : [2007] 9 SCR130 ; Dr. Subhash KashinathMahajan v. State of Maharashtra (2018) 6 SCC 454 :[2018] 4 SCR 877 – referred to.

Stock v. Frank Jones (Tipton),1978 (1) WLR 231– referred to.

Salmond on Jurisprudence, 12[th] Edition; Sweet &Maxwell – referred to.

Case Law Reference

[2016] 9 SCR 122

relied on followedrelied onfollowedrelied onreferred toreferred toreferred toreferred to referred to referred to referred to referred to referred to followed relied on referred torelied on referred to

[2013] 14 SCR 713 followed[1990] 3 Suppl. SCR 259 referred to[1995] 1 SCR 897relied on[1994] 2 SCR 375followed[2014] 9 SCR 283relied on[1998] 2 SCR 795referred to[1963] Suppl. SCR 885referred to[2001] 1 SCR 203referred to(1988) 2 SCC 602referred to[1995] 4 Suppl. SCR 89 referred to[2000] 1 Suppl. SCR 389 referred to[2002] 3 Suppl. SCR 124 referred to[2004] 3 SCR 1161 referred to[2009] 14 SCR 777 referred to[2010] 2 SCR 414 referred to[2011] 12 SCR 718 referred to[2014] 8 SCR 228 referred to[1997] 3 Suppl. SCR 404 referred to(1980) 2 SCC 684 followed[1989] 3 SCR 19 relied on[2007] 9 SCR 130 referred to[2006] 9 Suppl. SCR 73 relied on[2007] 12 SCR 1084 relied on(2013) 12 SCC 226relied on[2018] 4 SCR 877 referred to

[1995] 4 Suppl. SCR 89 referred to

Para 15Para 16Para 17Para 18BPara 19Para 20Para 21 (a)CPara 21 (b)Para 21 (c)Para 21 (d)Para 21(e)DPara 21 (f)Para 21 (g)Para 21(h)Para 21 (i)EPara 21 (j)Para 21(k)Para 21 (l)Para 22FPara 24Para 25Para 25Para 26GPara 27Para 28Para 29

[2019] 12 S.C.R.

INHERENT JURISDICTION: Review Petition (Criminal)No. 228 of 2018 in Criminal Appeal No. 416 of 2018

From the Judgment and Order dated 20.03.2018 in Criminal AppealNo. 416 of 2018

With

Review Petition (Crl.) No. 275 of 2018 in Criminal Appeal No.416Fof 2018.

K. K. Venugopal, AG, Tushar Mehta, ASG, R. Balasubramanian,Mohan Parashran, Vikas Singh, Gopal Sankaranarayanan, Ashok KumarSharma, Sr. Advs., Ankur Talwar, Ms. Shraddha Deshmukh, Raj BahadurYadav, Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, VarunGSharma, Ms. Shashi Kiran, Satish Chandra, Arjun Sain, Ms. Pooja Dhar,Ms. Gayatri Verma, Aishwarya Kane, Vishal Sinha, Parmanand Gaur,Ms. Bandana Singh, Kshitij Mudgal, B. K. Gautam, Mrs. Anil Katiyar,K.K.L. Gautam, A. K. Suman, P. S. Nerwal, Rahul Mohd., Bharat Ram,Sanjeev Malhotra, K. Paari Vendhan, Nilesh Ukey, SabarishSubramanian, Prabu Ramasubramanian, Y. William Vinoth Kumar, Vishnu

Unnikrishnan, Ms. Disha Wadekar, Paras Nath Singh, Siddharth, FuzailAhmad Ayyubi, Rameshwar Prasad Goyal, Varinder Kumar Sharma,Nachiketa Joshi, Prashant Bhushan, Shivendra Singh, Karuvaki Mohanty,Dr. M.N. Verma, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar,Sushil Karanjkar, K. N. Rai, Kumar Parimal, Smarhar Singh, GunturPrabhakar, Balraj Dewan, Avijit Bhattacharjee, Ms. Upma Shrivastava,Ajoy Kumar Ghosh, Abhay Kant Mishra, P.V. Saravana Raja, G. Prakash,Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, MohanKumar, Manoj Gorkela, Sandeep Kumar Singh, Ram Shrivastava,Ms. Hemlata K., Sandeep Kumar Singh (for M/s. Gorkela Law Office),Raj Kamal, Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad,Kunal Yadav, Ms. Neena Shukla, Alok Shukla, Debasis Misra, D. MaheshBabu, Dr. A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Ms. RichaSingh, Ms. Pratima Rani, Sadashiv, Shekhar Kumar, Arup Banerjee,M. Y. Deshmukh, Ms. Manjeet Kirpal, Dr. K. S. Chauhan, Ajit KumarEkka, Ravi Prakash, Chand Kiran, S. P. Singh, Mahfooz A. Nazki, PolankiGowtham, Advs. for the appearing parties.

Applicant-in-person.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1.The Union of India has filed the instant petition for review ofthe judgment and order dated 20.3.2018 passed by this Court in CriminalAppeal No.416 of 2018. This Court while dealing with the provisions ofScheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph83 of the judgment, which are extracted hereunder:-

“83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process ofcourt and are quashed.

ii) There is no absolute bar against grant of anticipatory bail incases under the Atrocities Act if no prima facie case is made outor where on judicial scrutiny the complaint is found to be primafacie mala fide. We approve the view taken and approach of theGujarat High Court in Pankaj Suthar (supra) and Dr. N.T.Desai (supra) and clarify the judgments of this Court in Balothia(supra) and Manju Devi (supra);

Aiii) In view of acknowledged abuse of law of arrest in cases underthe Atrocities Act, arrest of public servant can only be afterapproval of the appointing authority and of non-public servantafter approval by the S.S.P. which may be granted in appropriatecases if considered necessary for reasons recorded. Such reasonsmust be scrutinized by the Magistrate for permitting furtherBdetention.

iv) To avoid false implication of an innocent, preliminary enquirymay be conducted by the DSP concerned to find out whether theallegations make out case under the Atrocities Act and that theallegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by wayof disciplinary action as well as contempt.

The above directions are prospective.”

2.This Court, while passing the judgment under review, hasDobserved in paragraph 32 thus:

“32. This Court is not expected to adopt passive or negativerole and remain bystander or spectator if violation of rights isobserved. It is necessary to fashion new tools and strategies soas to check injustice and violation of fundamental rights. NoEprocedural technicality can stand in the way of enforcement offundamental rights[1]. There are enumerable decisions of this Courtwhere this approach has been adopted and directions issued witha view to enforce fundamental rights which may sometimes beperceived as legislative in nature. Such directions can certainlyFbe issued and continued till an appropriate legislation is enacted[2].Role of this Court travels beyond merely dispute settling anddirections can certainly be issued which are not directly in conflictwith valid statute[3]. Power to declare law carries with it, withinthe limits of duty, to make law when none exists[4] .

G1 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 132 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandeyv. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v.State of T.N. (1996) 6 SCC 756

3 Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48

4 Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18

[Note: For convenience, the cases/citations in the extracts have beenHrenumbered.]

3. Question has been raised by the Union of India that when theCourt does not accept the legislative and specific provisions of law passedby the legislature and only the legislature has the power to amend thoseprovisions if the Court finds provisions are not acceptable to it, it has tobe struck them down being violative of fundamental rights or in case ofdeficiency to point out to the legislature to correct the same.

4.The Union of India has submitted that judgment and order dated20.3.2018 entails wide ramification and it deserves to be reviewed bythis Court. It is also submitted that this Court has failed to take note ofaspects which would have significant bearing on the present case.

5.It is submitted that the Act of 1989 had been enacted toremove the disparity of the Scheduled Castes and Scheduled Tribes whoremain vulnerable and denied their civil rights. The Statement ofObjects and Reasons of the Act of 1989, for which it had been enactedis as under:

“Despite various measures to improve the socio-economicconditions of the Scheduled Castes and the Scheduled Tribes, theyremain vulnerable. They are denied number of civil rights. Theyare subjected to various offences, indignities, humiliations, andharassment. They have, in several brutal incidents, been deprivedof their life and property. Serious crimes are committed againstthem for various historical, social, and economic reasons.

2. ………. When they assert their rights and resist practices ofuntouchability against them or demand statutory minimum wagesor refuse to do any bonded and forced labour, the vested intereststry to cow them down and terrorise them. When the ScheduledCastes and the Scheduled Tribes try to preserve theirself-respect or honour of their women, they become irritants forthe dominant and the mighty. Occupation and cultivation of eventhe Government allotted land by the Scheduled Castes andScheduled Tribes is resented and more often these peoplebecome victims of attacks by the vested interests. Of late, therehas been an increase in the disturbing trend of the commission ofcertain atrocities like making the Scheduled Caste persons earinedible substances, like human excreta and attacks on and masskillings of helpless Scheduled Castes and the Scheduled Tribesand rape of women belonging to the Scheduled Castes and the

Scheduled Tribes. Under the circumstances, the existing lawslike the Protection of Civil Rights Act, 1955 and the normalprovisions of the Indian Penal Code have been found to beinadequate to check these crimes. special legislation to checkand deter crimes against them committed by non-Scheduled Castesand non-Scheduled Tribes has, therefore, become necessary.”

The preamble to the Act of 1989 states as under:

“An Act to prevent the Commission of offences of atrocities againstthe members of the Scheduled Castes and the Scheduled Tribes,to provide for special courts for the trial of such offences and forCthe relief and rehabilitation of the victims of such offences andfor matters connected therewith or incidental thereto.”

Section 18 of the Act of 1989 has been enacted to take care of aninherent deterrence and to instil sense of protection amongst membersof Scheduled Castes and Scheduled Tribes. It is submitted that anyDdilution of the same would shake the very objective of the mechanism toprevent the offences of atrocities. The directions issued would cause amiscarriage of justice even in deserving cases. With view to objectapprehended misuse of the law, no such direction can be issued. In casethere is no prima facie case made out under the Act of 1989,anticipatory bail can be granted. The same was granted in the case inEquestion also.

6.It is submitted that because of the continuing atrocities againstthe members of the Scheduled Castes and Scheduled Tribes, acommission of offences against them indicated an increase, even theexisting provisions were not considered sufficient to achieve theFobjective to deliver equal justice to the members of the Scheduled Castesand the Scheduled Tribes. Hence, the Act of 1989 had been amended inApril 2015, enforced with effect from 26.01.2016.

7.It is further submitted that the amendments broadly related toaddition of several new offences/atrocities like tonsuring ofGhead/moustache, or similar acts which are derogatory to the dignity ofthe members of Scheduled Castes and Scheduled Tribes, garlanding withfootwear, denying access to irrigation facilities or forest rights, disposeor carry human or animal carcasses, or to dig graves, using or permittingmanual scavenging, dedicating Scheduled Caste or Scheduled Tribewoman as devadasi, abusing in caste name, perpetrating witchcraftHatrocities, imposing social or economic boycott, preventing ScheduledCaste and Scheduled Tribe candidates from filing nomination to contestelections, insulting Scheduled Castes/ Scheduled Tribes woman byremoving her garments, forcing member of Scheduled Caste/Scheduled Tribe to leave house, village or residence, defiling objectssacred to members of Scheduled Castes and Scheduled Tribes, touchingor using acts or gestures of sexual nature against members ofScheduled Castes and Scheduled Tribes and addition of certain IPCoffences like hurt, grievous hurt, intimidation, kidnapping etc., attractingless than ten years of imprisonment committed against members ofScheduled Castes and Scheduled Tribes as offences punishable underthe Act of 1989, beside rephrasing and expansion of some of the earlieroffences.

8.It is submitted that the provisions have also been made for theestablishment of exclusive Special Courts and specification of ExclusiveSpecial Public Prosecutors to exclusively try the offences under the Actof 1989 to enable expeditious disposal of cases, Special Courts andExclusive Special Courts to take direct cognisance of offences andcompletion of trial as far as possible within two months from the date offiling of the charge sheet and addition of chapter on the “Rights ofVictims and Witnesses”.

9. It is also submitted on behalf of Union of India that as per theamendment Rules, 2016 the provisions have also been made with regardto relief amount of 47 offences of atrocities to victims, rationalisation ofthe phasing of payment of relief amount, enhancement of relief amountbetween Rs.85,000/- to Rs.8,25,000/- depending upon the nature of theoffence, payment of admissible relief within seven days, on completionof investigation and filing of charge sheet within sixty days to enabletimely commencement of prosecution and periodic review of the schemefor the rights and entitlements of victims and witnesses in accessingjustice by the State, District and Sub-Division Level Vigilance andMonitoring Committees in their respective meetings.

10.It is submitted that this Court has failed to appreciate that lowrate of conviction and high rate of acquittal under the Act of 1989,related cases is attributable to several factors like delay in lodging theFIR, witnesses, and complainants becoming hostile, absence of properscrutiny of the cases by the prosecution before filing the charge sheet inthe Court, lack of proper presentation of the case by the prosecution and

Aappreciation of evidence by the Court. There is long pendency of thetrial, which makes the witness to lose their interest and lack ofcorroborative evidence. There are procedural delays in investigationand filing of the charge sheet.

11.It is submitted that Rule 7(2) of Scheduled Castes andBScheduled Tribes (Prevention of Atrocities) Rules, 1995 provides thatinvestigating officer to complete the investigation within 30 days.Without immediate registration of FIR and arrest and by providinganticipatory bail to the accused, Rule 7 is bound to be frustrated.

12.It is further submitted that the directions issued are legislative.CIt would devoid the object of the Act to remove the caste-basedsub-judication and discrimination. Such directions are impermissible tobe issued under Article 142 of the Constitution of India.

13.It is also submitted that offences of atrocities against themembers of Scheduled Castes and Scheduled Tribes have beenDdisturbingly continuing and as per the data of National Crime RecordsBureau (NCRB), Ministry of Home Affairs, 47,338 number of caseswere registered in the country under the Act of 1989 in conjunction withthe Indian Penal Code during the year 2016. Further, only 24.5 % of thesaid cases ended in conviction and 89.3% were pending in the courts atthe end of the year 2016. In the circumstances, it is not proper to diluteEthe provisions and make it easier for the accused to get away fromarrest by directing preliminary enquiry, approval for an arrest.14.Per contra, it is submitted that directions are proper becauseof misuse of the legislative provisions of the Atrocities Act, and no casefor interference is made out in the review jurisdiction.F

15.Before dealing with submission, we refer to the decisions. InNational Campaign on Dalit Human Rights & Ors v. Union of India& Ors. (2017) 2 SCC 432, this Court has considered the report ofJustice K. Punnaiah Commission and the 6[th] Report of the NationalCommission for Scheduled Castes/ Scheduled Tribes. The NHRCGreport also highlighted the non-registration of cases and various othermachinations resorted to by the police to discourage Dalits fromregistering cases under the Act of 1989. In the said case this Court haddirected the strict implementation of the provisions of theAct of 1989. The relevant portion of the decision mentioned above isextracted hereunder:H

“18. We have carefully examined the material on record, and weare of the opinion that there has been failure on the part of theauthorities concerned in complying with the provisions of the Actand the Rules. The laudable object with which the Act had beenmade is defeated by the indifferent attitude of the authorities. It istrue that the State Governments are responsible for carrying outthe provisions of the Act as contended by the counsel for theUnion of India. At the same time, the Central Government has animportant role to play in ensuring the compliance with the provisionsof the Act. Section 21(4) of the Act provides for report on themeasures taken by the Central Government and StateGovernments for the effective implementation of the Act to beplaced before Parliament every year. The constitutional goal ofequality for all the citizens of this country can be achieved onlywhen the rights of the Scheduled Castes and Scheduled Tribesare protected. The abundant material on record proves that theauthorities concerned are guilty of not enforcing the provisions ofthe Act. The travails of the members of the Scheduled Castesand the Scheduled Tribes continue unabated. We are satisfiedthat the Central Government and the State Governments shouldbe directed to strictly enforce the provisions of the Act and we doso. The National Commissions are also directed to discharge theirduties to protect the Scheduled Castes and Scheduled Tribes. ….”

16.Reliance has been placed on Lalita Kumari v. Governmentof U.P., (2014) 2 SCC 1, wherein Constitution Bench of this Court hasobserved as under:

“35. However, on the other hand, there are number of caseswhich exhibit that there are instances where the power of thepolice to register an FIR and initiate an investigation thereto aremisused where cognizable offence is not made out from thecontents of the complaint. significant case in this context is thecase of Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667wherein this Court has expressed its anxiety over misuse ofSection 498-A of the Penal Code, 1860 (in short “IPC”) withrespect to which large number of frivolous reports were lodged.This Court expressed its desire that the legislature must take intoconsideration the informed public opinion and the pragmatic realitiesto make necessary changes in law.

36. The abovesaid judgment resulted in the 243rd Report of theLaw Commission of India submitted on 30-8-2012. The LawCommission, in its report, concluded that though the offence underSection 498-A could be made compoundable, however, the extentof misuse was not established by empirical data, and, thus, couldnot be ground to denude the provision of its efficacy. The LawCommission also observed that the law on the question whetherthe registration of FIR could be postponed for reasonable timeis in state of uncertainty and can be crystallised only upon thisCourt putting at rest the present controversy.”

99. In CBI v. Tapan Kumar Singh (2003) 6 SCC 175, it was heldas under: (SCC pp. 183-84, para 20)

“20. ……If he has reasons to suspect, on the basis of informationreceived, that cognizable offence may have been committed, heis bound to record the information and conduct an investigation.At this stage, it is also not necessary for him to satisfy himselfabout the truthfulness of the information. It is only after completeinvestigation that he may be able to report on the truthfulness orotherwise of the information. …..The true test is whether theinformation furnished provides reason to suspect the commissionof an offence, which the police officer concerned is empoweredunder Section 156 of the Code to investigate. If it does, he has nooption but to record the information and proceed to investigatethe case either himself or depute any other competent officer toconduct the investigation…..”

It is apparent from the decision in Lalita Kumari (supra) thatFIR has to be registered forthwith in case it relates to the commission ofthe cognizable offence. There is no discretion on the Officer In-chargeof the Police Station for embarking upon preliminary inquiry beforeregistration of FIR. Preliminary inquiry can only be held in case whereit has to be ascertained whether cognizable offence has been committedor not. If the information discloses the commission of cognizableoffence, it is mandatory to register the FIR under Section 154 of Cr.PC,and no preliminary inquiry is permissible in such situation. This Courtin Lalita Kumar (supra) observed as under:

“54. Therefore, the context in which the word “shall” appears inSection 154(1) of the Code, the object for which it has been usedand the consequences that will follow from the infringement ofthe direction to register FIRs, all these factors clearly show thatthe word “shall” used in Section 154(1) needs to be given itsordinary meaning of being of “mandatory” character. Theprovisions of Section 154(1) of the Code, read in the light of thestatutory scheme, do not admit of conferring any discretion on theofficer in charge of the police station for embarking upon apreliminary inquiry prior to the registration of an FIR. It is settledposition of law that if the provision is unambiguous and thelegislative intent is clear, the court need not call into it any otherrules of construction.”

Concerning the question of arrest, in Lalita Kumari (supra) thisCourt has considered the safeguard in respect of arrest of an accusedperson. This Court affirmed the principle that arrest cannot be maderoutinely on the mere allegation of commission of an offence. Thequestion arises as to justification to create special dispensation applicableonly to complaints under the Atrocities Act because of safeguardsapplicable generally.

17.In State of Haryana & Ors. v. Bhajan Lal & Ors., 1992Supp (1) SCC 335, which has been relied upon in Lalita Kumari (supra),this Court has observed as under:

“31. At the stage of registration of crime or case on the basisof the information disclosing cognizable offence in compliancewith the mandate of Section 154(1) of the Code, the concernedpolice officer cannot embark upon an enquiry as to whether theinformation, laid by the informant is reliable and genuine orotherwise and refuse to register case on the ground that theinformation is not reliable or credible. On the other hand, the officerin charge of police station is statutorily obliged to register caseand then to proceed with the investigation if he has reason tosuspect the commission of an offence which he is empoweredunder Section 156 of the Code to investigate, subject to the provisoto Section 157. (As we have proposed to make detaileddiscussion about the power of police officer in the field ofinvestigation of cognizable offence within the ambit of Sections

156 and 157 of the Code in the ensuing part of this judgment, wedo not propose to deal with those sections in extenso in the presentcontext.) In case, an officer in charge of police station refusesto exercise the jurisdiction vested in him and to register case onthe information of cognizable offence reported and therebyviolates the statutory duty cast upon him, the person aggrieved bysuch refusal can send the substance of the information in writingand by post to the Superintendent of Police concerned who ifsatisfied that the information forwarded to him discloses acognizable offence, should either investigate the case himself ordirect an investigation to be made by any police officer subordinateto him in the manner provided by sub-section (3) of Section 154of the Code.

32. Be it noted that in Section 154(1) of the Code, the legislaturein its collective wisdom has carefully and cautiously used theexpression “information” without qualifying the same as in Section41(1)(a) or (g) of the Code wherein the expressions, “reasonablecomplaint” and “credible information” are used. Evidently, thenon-qualification of the word “information” in Section 154(1) unlikein Section 41(1)(a) and (g) of the Code may be for the reasonthat the police officer should not refuse to record an informationrelating to the commission of cognizable offence and to registera case thereon on the ground that he is not satisfied with thereasonableness or credibility of the information. In other words,‘reasonableness’ or ‘credibility’ of the said information is not acondition precedent for registration of case. comparison ofthe present Section 154 with those of the earlier Codes will indicatethat the legislature had purposely thought it fit to employ only theword “information” without qualifying the said word. Section 139of the Code of Criminal Procedure of 1861 (Act 25 of 1861)passed by the Legislative Council of India read that ‘everycomplaint or information’ preferred to an officer in charge of apolice station should be reduced into writing which provision wassubsequently modified by Section 112 of the Code of 1872 (Act10 of 1872) which thereafter read that ‘every complaint’ preferredto an officer in charge of police station shall be reduced in writing.The word ‘complaint’ which occurred in previous two Codes of1861 and 1872 was deleted and in that place the word ‘information’

was used in the Codes of 1882 and 1898 which word is now usedin Sections 154, 155, 157 and 190(c) of the present Code of 1973(Act 2 of 1974). An overall reading of all the Codes makes itclear that the condition which is sine qua non for recording firstinformation report is that there must be an information and thatinformation must disclose cognizable offence.

33. It is, therefore, manifestly clear that if any information disclosinga cognizable offence is laid before an officer in charge of policestation satisfying the requirements of Section 154(1) of the Code,the said police officer has no other option except to enter thesubstance thereof in the prescribed form, that is to say, to registera case on the basis of such information.”

The Court observed the conduct of an investigation into an offenceafter the registration of FIR is procedure established by law andconforms with Article 21 of the Constitution. This Court has alsoconsidered possible misuse of the provisions of the law in Lalita Kumari(supra).

18.On behalf of Union of India, the decision in State of M.P. v.Ram Krishna Balothia (1995) 3 SCC 221 has been relied on, in whichthis Court has upheld the validity of Section 18 of the Act of 1989 andobserved in background relating to the practice of untouchability andthe social attitude which lead to the commission of such offences againstthe Scheduled Castes/ Scheduled Tribes, there is justification ofapprehension that if benefit of anticipatory bail is made available topersons who are alleged to have committed such offences, there is everypossibility of their misusing that liberty while on anticipatory bail toterrorise their victims and to prevent proper investigation. This Courtin Ram Krishna Balothia’s (supra) has observed:

“6. It is undoubtedly true that Section 438 of the Code of CriminalProcedure, which is available to an accused in respect of offencesunder the Penal Code, is not available in respect of offences underthe said Act. But can this be considered as violative of Article 14?The offences enumerated under the said Act fall into separateand special class. Article 17 of the Constitution expressly dealswith the abolition of ‘untouchability’ and forbids its practice in anyform. It also provides that enforcement of any disability arisingout of ‘untouchability’ shall be an offence punishable under the

Alaw. The offences, therefore, which are enumerated under Section3(1) arise out of the practice of ‘untouchability.’ It is in this contextthat certain special provisions have been made in the said Act,including the impugned provision under Section 18 which is beforeus. The exclusion of Section 438 of the Code of CriminalProcedure in connection with offences under the Act has to beBviewed in the context of the prevailing social conditions whichgive rise to such offences, and the apprehension that perpetratorsof such atrocities are likely to threaten and intimidate their victimsand prevent or obstruct them in the prosecution of these offenders,if the offenders are allowed to avail of anticipatory bail. In thisCconnection we may refer to the Statement of Objects and Reasonsaccompanying the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Bill, 1989, when it was introduced inParliament. It sets out the circumstances surrounding theenactment of the said Act and points to the evil which the statutesought to remedy. In the Statement of Objects and Reasons, it isDstated:

“Despite various measures to improve the socio-economicconditions of the Scheduled Castes and the Scheduled Tribes,they remain vulnerable. They are denied number of civil rights.They are subjected to various offences, indignities, humiliations,and harassment. They have, in several brutal incidents, beendeprived of their life and property. Serious crimes are committedagainst them for various historical, social and economic reasons

2. … When they assert their rights and resist practices ofuntouchability against them or demand statutory minimumwages or refuse to do any bonded and forced labour, the vestedinterests try to cow them down and terrorise them. When theScheduled Castes and the Scheduled Tribes try to preservetheir self-respect or honour of their women, they become irritantsfor the dominant and the mighty. Occupation and cultivation ofeven the Government allotted land by the Scheduled Castes,and Scheduled Tribes is resented, and more often these peoplebecome victims of attacks by the vested interests. Of late, therehas been an increase in the disturbing trend of commission ofcertain atrocities like making the Scheduled Caste persons eatinedible substances like human excreta and attacks on and mass

killings of helpless Scheduled Castes and Scheduled Tribes andrape of women belonging to the Scheduled Castes and theScheduled Tribes…. special legislation to check and detercrimes against them committed by non-Scheduled Castes andnon-Scheduled Tribes has, therefore, become necessary.”

The above statement graphically describes the social conditionswhich motivated the said legislation. It is pointed out in the aboveStatement of Objects and Reasons that when members of theScheduled Castes and Scheduled Tribes assert their rights anddemand statutory protection, vested interests try to cow them downand terrorise them. In these circumstances, if anticipatory bail isnot made available to persons who commit such offences, such adenial cannot be considered as unreasonable or violative of Article14, as these offences form distinct class by themselves andcannot be compared with other offences.

9. Of course, the offences enumerated under the present caseare very different from those under the Terrorist and DisruptiveActivities (Prevention) Act, 1987. However, looking to thehistorical background relating to the practice of “Untouchability”and the social attitudes which lead to the commission of suchoffences against Scheduled Castes and Scheduled Tribes, thereis justification of an apprehension that if the benefit of theanticipatory bail is made available to the persons who are allegedto have committed such offences, there is every likelihood of theirmisusing their liberty while on anticipatory bail to terrorise theirvictims and to prevent proper investigation. It is in this contextthat Section 18 has been incorporated in the said Act. It cannotbe considered as in any manner violative of Article 21.

10. It was submitted before us that while Section 438 is availablefor graver offences under the Penal Code, it is not available foreven “minor offences” under the said Act. This grievance alsocannot be justified. The offences which are enumerated underSection 3 are offences which, to say the least, denigrate membersof Scheduled Castes and Scheduled Tribes in the eyes of society,and prevent them from leading life of dignity and self-respect.Such offences are committed to humiliate and subjugate membersof Scheduled Castes and Scheduled Tribes with view to keepingthem in state of servitude. These offences constitute separate

Aclass and cannot be compared with offences under the PenalCode.”

19.In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, thisCourt has observed that denial of the right of anticipatory bail undersection 438 would not amount to violation of Article 21 of the ConstitutionBof India. Thus, the provision of section 18 cannot be said to be violativeof Article 21. Article 17 of the Constitution abolishes untouchability.

20.In Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390,it is observed that where statutory provisions are clear and unambiguous,it cannot be read down and has observed that the statistics are to beconsidered by legislature. The Court must take care not to expressany opinions on sufficiency or adequacy of such figures and shouldconfine their scrutiny to legality not necessity of law. This Courtobserved:

“67. Before parting, we would like to observe that elaboratestatistics have been laid before us to show the extent of seriouscrimes committed by juveniles and the increase in the rate ofsuch crimes, of late. We refuse to be tempted to enter into thesaid arena, which is primarily for the legislature to consider. Courtsmust take care not to express opinions on the sufficiency oradequacy of such figures and should confine its scrutiny to thelegality and not the necessity of the law to be made or continued.We would be justified to recall the observations of Justice KrishnaIyer in Murthy Match Works (1974) 4 SCC 428, as the presentissues seem to be adequately taken care of by the same: (SCC p.437, paras 13-15)

“13. Right at the threshold, we must warn ourselves of thelimitations of judicial power in this jurisdiction. Mr. Justice Stoneof the Supreme Court of the United States has delineated theselimitations in United States v. Butler: 80L Ed 477: 297 US 1(1936) thus: (L.Ed p. 495)

“The power of Courts to declare statute unconstitutional issubject to two guiding principles of decision which ought neverto be absent from judicial consciousness. One is that Courtsare concerned only with the power to enact statutes, not withtheir wisdom. The other is that while unconstitutional exerciseof power by the executive and legislative branches of the

Government is subject to judicial restraint, the only checkupon our exercise of power is our own sense of self-restraint.For the removal of unwise laws from the statute books appeallies not to the Courts but to the ballot and to the processes ofdemocratic Government.”

14. In short, unconstitutionality and not unwisdom of legislationis the narrow area of judicial review. In the present case,unconstitutionality is alleged as springing from lugging togethertwo dissimilar categories of match manufacturers into onecompartment for like treatment.

15. Certain principles which bear upon classification may bementioned here. It is true that State may classify persons andobjects for the purpose of legislation and pass laws for the purposeof obtaining revenue or other objects. Every differentiation is nota discrimination. But classification can be sustained only if it isfounded on pertinent and real differences as distinguished fromirrelevant and artificial ones. The constitutional standard bywhich the sufficiency of the differentia which form validbasis for classification may be measured has been repeatedlystated by the courts. If it rests on difference which bears afair and just relation to the object for which it is proposed, itis constitutional. To put it differently, the means must have nexuswith the ends. Even so, large latitude is allowed to the State forclassification upon reasonable basis and what is reasonable is aquestion of practical details and variety of factors which theCourt will be reluctant and perhaps ill-equipped to investigate. Inthis imperfect world perfection even in grouping is an ambitionhardly ever accomplished. In this context, we have to rememberthe relationship between the legislative and judicial departmentsof Government in the determination of the validity of classification.Of course, in the last analysis courts possess the power topronounce on the constitutionality of the acts of the other brancheswhether classification is based upon substantial differences oris arbitrary, fanciful and consequently illegal. At the same time,the question of classification is primarily for legislative judgment,and ordinarily does not become judicial question. power toclassify being extremely broad and based on diverseconsiderations of executive pragmatism, the judicature cannot

1152SUPREME COURT REPORTS

Arush in where even the legislature warily treads. All theseoperational restraints on judicial power must weigh moreemphatically where the subject is taxation.”

(emphasis supplied)

It was observed in Subramanian Swamy (supra) that whereBstatutory provisions are clear and unambiguous, it cannot be read down.It would not be possible to carry out directions of this Court as numberof Dy. S.P. Level Officers is not sufficient to make compliance of thedirections.

21.Concerning the exercise of powers under Article 142 ofCConstitution of India, learned Attorney General has submitted that suchpower could not have been exercised against the spirit of statutoryprovisions and to nullify them and field reserved for the legislature asthere was no vacuum. He has referred to the following decisions:

(a) In Supreme Court Bar Association v. Union of India, (1998)D4 SCC

409, this Court has observed as under:

“47. …..It, however, needs to be remembered that the powersconferred on the Court by Article 142 being curative in naturecannot be construed as powers which authorise the Court to ignoreEthe substantive rights of litigant while dealing with causepending before it. This power cannot be used to “supplant”substantive law applicable to the case or cause under considerationof the Court. Article 142, even with the width of its amplitude,cannot be used to build new edifice where none existed earlier,Fby ignoring express statutory provisions dealing with subjectand thereby to achieve something indirectly which cannot beachieved directly. …..

48. …..Indeed, these constitutional powers cannot, in any way,be controlled by any statutory provisions but at the same timeGthese powers are not meant to be exercised when their exercisemay come directly in conflict with what has been expresslyprovided for in statute dealing expressly with the subject.”

(b) In Prem Chand Garg v. Excise Commr., AIR 1963 SC 996,the Court observed that it has no power to circumscribe fundamentalHrights guaranteed under Article 32 of Constitution of India.

(c) In E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, theCourt observed that the Supreme Court under Article 142 of theConstitution could not altogether disregard the substantive provisions ofa statute and pass orders concerning an issue, which can be settled onlythrough mechanism prescribed in another statute.

(d) In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, it has beenobserved that though the language of article 142 is comprehensive andplenary, the directions given by the court should not be inconsistent with,repugnant to or in violation of the specific provisions of any statute.

(e) In Bonkya v. State of Maharashtra, (1995) 6 SCC 447, theCourt has held that the Court exercises jurisdiction under Article 142 ofthe Constitution intending to do justice between the parties, but not indisregard of the relevant statutory provisions.

(f) In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, this Courthas observed that Article 142, even with the width of its amplitude, cannotbe used to build new edifice where none existed earlier, by ignoringexpress statutory provisions dealing with subject and thereby achievesomething indirectly which cannot be achieved directly.

(g) In State of Punjab v. Rajesh Syal, (2002) 8 SCC 158, theCourt held that even in exercising power under Article 142(1), it is morethan doubtful that an order can be passed contrary to law.

(h) In Textile Labour Association v. Official Liquidator, (2004)9 SCC 741, observation has been made that power under Article 142 isonly residuary power, supplementary and complementary to the powersexpressly conferred on this Court by statutes, exercisable to do completejustice between the parties wherever it is just and equitable to do so. It isintended to prevent any obstruction to the stream of justice.

(i) In Laxmidas Morarji v. Behrose Darab Madan, (2009) 10SCC 425, it was observed that the Supreme Court would not pass anyorder under Article 142 of the Constitution which would amount tosupplanting substantive law applicable or ignoring express statutoryprovisions dealing with the subject, at the same time these constitutionalpowers cannot in any way, be controlled by any statutory provisions.

(j) In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, it wasobserved that the courts are meant to enforce the rule of law and not topass the orders or directions which are contrary to what has been injected

Aby law. The power under Article 142 not to be exercised in case wherethere is no basis in law which can form an edifice for building up asuperstructure.

(k) In A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259, it washeld that the power under Article 142 is not restricted by statutoryBprovisions. It cannot be exercised based on sympathy and in conflictwith the statute.

(l) In State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, thisCourt held that Article 142 is supplementary and it cannot supplant thesubstantive provisions. It is power which gives preference to equityCover the law. The relevant portion is extracted hereunder:

“12. Article 142 of the Constitution of India is supplementary innature and cannot supplant the substantive provisions, though theyare not limited by the substantive provisions in the statute. It is apower that gives preference to equity over law. It is justice-Doriented approach as against the strict rigours of the law. Thedirections issued by the Court can normally be categorised intoone, in the nature of moulding of relief and the other, as thedeclaration of law. “Declaration of law” as contemplated inArticle141 of the Constitution: is the speech express or necessarily impliedby the highest court of the land…..This Court on the qui vive hasEexpanded the horizons ofArticle 142 of the Constitution by keepingit outside the purview ofArticle 141 of the Constitution and bydeclaring it direction of the Court that changes its complexionwith the peculiarity in the facts and circumstances of the case.”

(emphasis supplied)

22.It is submitted that there was no legislative vacuum calling forthe exercise of power under Article 142 of the Constitution of India andhence the reliance on Vishakha v. State of Rajasthan, (1997) 6 SCC241 is misplaced. On the contrary, the matter was covered by the statute;namely, Section 18 of the said Atrocities Act read with Section 41 ofGCr.PC.

23.We now propose to examine the law concerning field reservedfor the legislature and extant of judicial interference in the field reservedfor the legislature. The difference between the common law and statutelaw has been brought out in the following passage in the book, SalmondHon Jurisprudence, 12[th] Edition; Sweet & Maxwell:

“In the strict sense, however, legislation is the laying down oflegal rules by sovereign or subordinate legislator. Here we mustdistinguish law-making by legislators from law-making by thecourts. Legislators can lay down rules purely for the future andwithout reference to any actual dispute; the courts, in so far asthey create law, can do so only in application to the cases beforethem and only in so far as is necessary for their solution. Judiciallaw-making is incidental to the solving of legal disputes; legislativelaw-making is the central function of the legislator.”

24.In various decisions, this Court has dealt with the scope ofjudicial review and issuance of guidelines. The directions mentionedabove touch the realm of policy. In Bachan Singh v. the State ofPunjab, (1980) 2 SCC 684, the Court has laid down and recognised thejudicial review thus:

“67. Behind the view that there is presumption ofconstitutionality of statute and the onus to rebut the same lies onthose who challenge the legislation, is the rationale of judicialrestraint, recognition of the limits of judicial review, respectfor the boundaries of legislative and judicial functions, and thejudicial responsibility to guard the trespass from one side or theother. The primary function of the courts is to interpret and applythe laws according to the will of those who made them and not totransgress into the legislative domain of policy-making. “The jobof Judge is judging and not law-making.” In Lord Devlin’s words:“Judges are the keepers of the law, and the keepers of theseboundaries cannot, also, be among outriders.”

(emphasis supplied)

It has been observed that the Court should not transgress into thelegislative domain of policymaking.

25.In Asif Hameed & Ors. v. State of Jammu and Kashmir &Ors., 1989 Supp. (2) SCC 364, this Court has observed that it is not forthe Court to pronounce policy. It cannot lay down what is wise or politic.Self-restraint is the essence of the judicial oath. The Court observed:

“17. Before adverting to the controversy directly involved in theseappeals, we may have fresh look on the inter se functioning ofthe three organs of democracy under our Constitution. Although

the doctrine of separation of powers has not been recognisedunder the Constitution in its absolute rigidity but the Constitutionmakers have meticulously defined the functions of various organsof the State. Legislature, executive and judiciary have to functionwithin their own spheres demarcated under the Constitution. Noorgan can usurp the functions assigned to another. The Constitutiontrusts to the judgment of these organs to function and exercisetheir discretion by strictly following the procedure prescribedtherein. The functioning of democracy depends upon the strengthand independence of each of its organs. Legislature and executive,the two facets of people’s will, they have all the powers, includingthat of finance. Judiciary has no power over sword or the purse;nonetheless, it has power to ensure that the aforesaid two mainorgans of State function within the constitutional limits. It is thesentinel of democracy. Judicial review is powerful weapon torestrain unconstitutional exercise of power by the legislature andexecutive. The expanding horizon of judicial review has taken inits fold the concept of social and economic justice. While exerciseof powers by the legislature and executive is subject to judicialrestraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.

18. Frankfurter, J. of the U.S. Supreme Court dissenting in thecontroversial expatriation case of Trop v. Dulles, 356 US 96observed as under:

“All power is, in Madison’s phrase, “of an encroaching nature.”Judicial power is not immune against this human weakness. Italso must be on guard against encroaching beyond its properbounds, and not the less so since the only restraint upon it isself-restraint...

Rigorous observance of the difference between limits of powerand wise exercise of power — between questions of authorityand questions of prudence — requires the most alertappreciation of this decisive but subtle relationship of twoconcepts that too easily coalesce. No less does it require adisciplined will to adhere to the difference. It is not easy tostand aloof and allow want of wisdom to prevail to disregardone’s own strongly held view of what is wise in the conduct ofaffairs. But it is not the business of this Court to pronouncepolicy. It must observe fastidious regard for limitations on itsown power, and this precludes the court’s giving effect to itsown notions of what is wise or politic. That self-restraint is ofthe essence in the observance of the judicial oath, for theConstitution has not authorized the judges to sit in judgment onthe wisdom of what Congress and the executive branch do.”

(emphasis supplied)

The Court held that it could not affect its notions of what is wiseor politic. It is for the legislature to consider data and decide such aspects.The law laid down in Asif Hameed v. State of Jammu and Kashmir(supra) has been reiterated by this Court in S.C. Chandra v. State ofJharkhand, (2007) 8 SCC 279.

26.In Indian Drugs & Pharmaceuticals Ltd. v. Workmen,Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Courtobserved thus:

“40. The courts must, therefore, exercise judicial restraint, andnot encroach into the executive or legislative domain. Orders forcreation of posts, appointment on these posts, regularisation, fixingpay scales, continuation in service, promotions, etc. are all executiveor legislative functions, and it is highly improper for Judges to stepinto this sphere, except in rare and exceptional case. The relevantcase-law and philosophy of judicial restraint has been laid downby the Madras High Court in great detail in RamaMuthuramalingam v. Dy. Supdt. of Police, AIR 2005 Mad 1and we fully agree with the views expressed therein.”

27.In Divisional Manager, Aravali Golf Club v. Chander Hass,(2008) 1 SCC 683, this Court held as under:

“18. Judges must` exercise judicial restraint and must not encroachinto the executive or legislative domain, vide Indian Drugs &Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408 and S.C.Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurringjudgment of M. Katju, J.).

19. Under our Constitution, the legislature, the executive and thejudiciary all have their own broad spheres of operation. Ordinarily,it is not proper for any of these three organs of the State toencroach upon the domain of another, otherwise the delicate

Abalance in the Constitution will be upset, and there will be areaction.”

28.In Kuchchh Jal Sankat Nivaran Samili & Ors. v. State ofGujarat & Anr., (2013) 12 SCC 226, it has been observed that Courtshould not encroach upon the legislative domain. It cannot term aBparticular policy as fairer than the other. The Court observed:

“12. We have given our most anxious consideration to the rivalsubmissions, and we find substance in the submission of Mr. Divan.We are conscious of the fact that there is wide separation ofpowers between the different limbs of the State and, therefore, itis expected of this Court to exercise judicial restraint and notencroach upon the executive or legislative domain. What theappellants in substance are asking this Court to do is to conduct acomparative study and hold that the policy of distribution of wateris bad.We are afraid; we do not have the expertise or wisdom toanalyse the same. It entails intricate economic choices and thoughthis Court tends to believe that it is expert of experts, but thisprinciple has inherent limitation. True it is that the Court is entitledto analyse the legal validity of the different means of distributionbut it cannot and will not term particular policy as fairer than theother. We are of the opinion that the matters affecting the policyand requiring technical expertise be better left to the decision ofthose who are entrusted and qualified to address the same. ThisCourt shall step in only when it finds that the policy is inconsistentwith the constitutional laws or is arbitrary or irrational.”

(emphasis supplied)

29.In Dr. Subhash Kashinath Mahajan v. State ofMaharashtra, (2018) 6 SCC 454, this Court held that no directionscould be issued which are directly in conflict with the statute.

30.In Kesavananda Bharati v. State of Kerala, (1973) 4 SCCG225, this Court has observed as under:

292. The learned Attorney-General said that every provision ofthe Constitution is essential; otherwise, it would not have been putin the Constitution. This is true. But this does not place every

provision of the Constitution in the same position. The true positionis that every provision of the Constitution can be amended providedin the result the basic foundation and structure of the constitutionremains the same. The basic structure may be said to consist ofthe following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, theexecutive and the judiciary;

(5) Federal character of the Constitution.

31.In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, the followingobservations have been made:

“129. Further, the Court in Kesavananda case not only held thatArticle 31-B is not controlled by Article 31-A but also specificallyupheld the Twenty-ninth Constitution Amendment whereby certainKerala Land Reform Acts were included in the Ninth Scheduleafter those Acts had been struck down by the Supreme Court inKunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364. Theonly logical basis for upholding the Twenty-ninth Amendment isthat the Court was of the opinion that the mechanism of Article31-B, by itself, is valid, though each time Parliament in exerciseof its constituent power added law in the Ninth Schedule, suchexercise would have to be tested on the touchstone of the basicstructure test. [See Shelat & Grover, JJ., paras 607 & 608(7);Hegde & Mukherjea, JJ., paras 738-43, 744(8); Ray, J., paras1055-60, 1064; Jaganmohan Reddy, J., para 1212(4); Palekar, J.,para 1333(3); Khanna, J., paras 1522, 1536, 1537(xv); Mathew,J., para 1782; Beg, J., paras 1857(6); Dwivedi, J., para 1994,1995(4) and Chandrachud, J., paras 2136-41 and 2142(10).]

130. As pointed out, it is fallacy to regard that Article 31-B readwith the Ninth Schedule excludes judicial review in the matter ofviolation of fundamental rights. The effect of Article 31-B is toremove fetter on the power of Parliament to pass law inviolation of fundamental rights. On account of Article 31-B, cause

of action for violation of fundamental right is not available becausethe fetter placed by Part III on legislative power is removed andis non-existent. Non-availability of cause of action based on breachof fundamental right cannot be regarded as exclusion or ouster ofjudicial review. As result of the operation of Article 31-B readwith the Ninth Schedule, occasion for exercise of judicial reviewdoes not arise. But there is no question of exclusion or ouster ofjudicial review. The two concepts are different.”

32.In Bhim Singh v. Union of India, (2010) 5 SCC 538, it washeld as under:

C“77. Another contention raised by the petitioners is that the Schemeviolates the principle of separation of powers under theConstitution. The concept of separation of powers, even thoughnot found in any particular constitutional provision, is inherent inthe polity the Constitution has adopted. The aim of separation ofpowers is to achieve the maximum extent of accountability ofDeach branch of the Government.

78. While understanding this concept, two aspects must be bornein mind. One, that separation of powers is an essential feature ofthe Constitution. Two that in modern governance, strict separationis neither possible, nor desirable. Nevertheless, till this principle ofEaccountability is preserved, there is no violation of separation ofpowers. We arrive at the same conclusion when we assess theposition within the constitutional text. The Constitution does notprohibit overlap of functions, but in fact, provides for some overlapas parliamentary democracy. But what it prohibits is such exerciseFof function of the other branch which results in wresting away ofthe regime of constitutional accountability.

85. Again, in the Constitution Bench judgment in A.K. Roy v. Unionof India Chandrachud, C.J. speaking for the majority held at p.295, para 23 that: “our Constitution does not follow the Americanpattern of strict separation of powers.”

86. This Court has previously held that the taking away of thejudicial function through legislation would be violative of separationof powers. As Chandrachud, J. noted in Indira Nehru Gandhi v.Raj Narain, 1975Supp SCC 1: (SCC p. 261, para 689)

“689. … the exercise by the legislature of what is purely andindubitably judicial function is impossible to sustain in thecontext even of our cooperative federalism which contains norigid distribution of powers but which provides system ofsalutary checks and balances.”

This is because such legislation upsets the balance between thevarious organs of the State thus harming the system ofaccountability in the Constitution.

87. Thus, the test for the violation of separation of powers mustbe precisely this. law would be violative of separation of powersnot if it results in some overlap of functions of different branchesof the State, but if it takes over an essential function of the otherbranch leading to lapse in constitutional accountability. It is throughthis test that we must analyse the present Scheme.”

33.In State of T.N. v. State of Kerala, (2014) 12 SCC 696, itwas observed as under:

“126. On deep reflection of the above discussion, in our opinion,the constitutional principles in the context of Indian Constitutionrelating to separation of powers between the legislature, executiveand judiciary may, in brief, be summarised thus:

126.1. Even without express provision of the separation of powers,the doctrine of separation of powers is an entrenched principle inthe Constitution of India. The doctrine of separation of powersinforms the Indian constitutional structure and it is an essentialconstituent of rule of law. In other words, the doctrine of separationof power though not expressly engrafted in the Constitution, itssweep, operation, and visibility are apparent from the scheme ofIndian Constitution. Constitution has made demarcation, withoutdrawing formal lines between the three organs—legislature,executive and judiciary. In that sense, even in the absence ofexpress provision for separation of powers, the separation ofpowers between the legislature, executive and judiciary is notdifferent from the Constitutions of the countries which containexpress provision for separation of powers.

126.2. Independence of courts from the executive and legislatureis fundamental to the rule of law and one of the basic tenets ofIndian Constitution. Separation of judicial power is significantconstitutional principle under the Constitution of India.

126.3. Separation of powers between three organs—thelegislature, executive and judiciary—is also nothing but aconsequence of principles of equality enshrined in Article 14 ofthe Constitution of India. Accordingly, breach of separation ofjudicial power may amount to negation of equality under Article14. Stated thus, legislation can be invalidated on the basis ofbreach of the separation of powers since such breach is negationof equality under Article 14 of the Constitution.

126.4. The superior judiciary (High Courts and Supreme Court) isempowered by the Constitution to declare law made by thelegislature (Parliament and State Legislatures) void if it is foundto have transgressed the constitutional limitations or if it infringedthe rights enshrined in Part III of the Constitution.

126.5. The doctrine of separation of powers applies to the finaljudgments of the courts. The legislature cannot declare anydecision of court of law to be void or of no effect. It can, however,pass an amending Act to remedy the defects pointed out by acourt of law or on coming to know of it aliunde. In other words, acourt’s decision must always bind unless the conditions on whichit is based are so fundamentally altered that the decision could nothave been given in the altered circumstances.

126.6. If the legislature has the power over the subject-matterand competence to make validating law, it can at any time makesuch validating law and make it retrospective. The validity of avalidating law, therefore, depends upon whether the legislaturepossesses the competence which it claims over the subject-matterand whether in making the validation law it removes the defectwhich the courts had found in the existing law.

126.7. The law enacted by the legislature may apparently seemto be within its competence but yet in substance if it is shown asan attempt to interfere with the judicial process, such law may beinvalidated being in breach of doctrine of separation of powers.In such situation, the legal effect of the law on judgment or

judicial proceeding must be examined closely, having regard tolegislative prescription or direction. The questions to be askedare:

(i) Does the legislative prescription or legislative directioninterfere with the judicial functions?

(ii) Is the legislation targeted at the decided case or whetherimpugned law requires its application to case already finallydecided?

(iii) What are the terms of law; the issues with which it dealsand the nature of the judgment that has attained finality?

If the answer to Questions (i) and (ii) is in the affirmative and theconsideration of aspects noted in Question (iii) sufficientlyestablishes that the impugned law interferes with the judicialfunctions, the Court may declare the law unconstitutional.”

34.The House of Lords in Stock v. Frank Jones (Tipton), 1978(1) WLR 231 with respect to interpretation of the legislative provisionshas observed thus:

“It is idle to debate whether, in so acting, the court is making law.As has been cogently observed, it depends on what you mean by“make” and “law” in this context. What is incontestible is thatthe court is mediating influence between the executive and thelegislature, on the one hand, and the citizen on the other.

Nevertheless, it is essential to the proper judicial function in theconstitution to bear in mind:

(1) modern legislation is difficult and complicated process, inwhich, even before bill is introduced in House of Parliament,successive drafts are considered and their possible repercussionson all envisageable situations are weighed by people bringing tobear very wide range of experience: the judge cannot matchsuch experience or envisage all such repercussions, either bytraining or by specific forensic aid;

(2) the bill is liable to be modified in Parliament dominated by aHouse of Commons whose members are answerable to the citizenswho will be affected by the legislation: an English judge is not soanswerable;

(3) in society living under the rule of law citizens are entitled toregulate their conduct according to what statute has said, ratherthan by what it was meant to say or by what it would haveotherwise said if newly considered situation had been envisaged;

(4) stark contradistinction between the letter and the spirit ofthe law may be very well in the sphere of ethics, but in the forensicprocess St. John is safer guide than St. Paul, the logos being theinforming spirit; and it should be left to peoples’ courts in totalitarianregimes to stretch the law to meet the forensic situation in responseto gut reaction;

(5) Parliament may well be prepared to tolerate some anomaly inthe interest of an overriding objective;

(6) what strikes the lawyer as an injustice may well have seemedto the legislature as no more than the correction of nowunjustifiable privilege or particular misfortune necessarily oracceptably involved in the vindication of some supervening generalsocial benefit;

(7) the parliamentary draftsmen knows what objective thelegislative promoter wishes to attain, and he will normally anddesirably try to achieve that objective by using language of theappropriate register in its natural, ordinary and primary sense toreject such an approach on the grounds that it gives rise to ananomaly is liable to encourage complication and anfractuosity indrafting;

(8) Parliament is nowadays in continuous session so that anunlooked-for and unsupportable injustice or anomaly can be readilyrectified by legislation: this is far preferable to judicial contortionof the law to meet apparently hard cases with the result thatordinary citizens and their advisers hardly know where they stand.

All this is not to advocate judicial supineness: it is merely respectfullyto commend self-knowledge of judicial limitations, both personaland constitution…..”

35.A lecture delivered by Mr. Justice M.N. Venkatachaliah, formerChief Justice of India, at the Constitution Day on 26.2.2016 in this Court,has been relied upon in the context of judicial determination of policy.Following observations have been relied upon:

“The proposition that “when there is no law the executive muststep-in and when the executive also does not act the judiciaryshould do so” is an attractive invitations: but it is more attractivethan constitutionally sound. Executive power is of coursecoextensive with legislative power. field un-occupied by law isopen to the executive. But there is no warrant that by virtue ofthose provisions the courts can come in and legislate. Theargument that the larger power of the court to decide andpronounce upon the validity of law includes the power to frameschemes and issue directions in the nature of legislation mayequally be open to question.This is typically the converse case of Bills of attainder; Legislativedetermination of disputes/rights has been held to be illegal andimpressible. Ameerunnisa, Ram Prasad Narayan Sahi and IndiraGandhi are some of the telling cases. By the same logic andconverse reasoning, judicial legislation which is judicialdetermination of policy and law is difficult to be justifiedjurisprudentially. It is one of the basic constitutional principlesthat just as courts are not constitutionally competent to legislateunder the guise of interpretation so also neither Parliament norState Legislatures can perform an essentially judicial function.None of the three constitutionally assigned spheres or orbits ofauthority can encroach upon the other. This is the logical meaningof the supremacy of the Constitution.

Lord Devlin’s comment comes to mind; ‘The British have no morewish to be governed by the judges than they wish to be judged bytheir admirations’.

This is not to deny the need and the desirability of such measures.The question is one of legitimacy and propriety, Robert Bork’s profoundstatement comes to mind:

“.. the desire to do justice whose nature seems obvious iscompelling, while the concept of constitutional process is abstract,rather arid, and the abstinence it counsels unsatisfying. To give into temptation, this one time, solves an urgent human problem, anda faint crack develops in the American foundation. judge hasbegun to rule where legislator should”. (THE TEMPTING OFAMERICA)

AAny support or justification for judicial legislation will have to bepremised on sound legal reasoning. It cannot be justified for thereason that it produces welcome and desirable results. If that isdone, law will cease to be what justice Holmes named it, “thecalling of thinkers and becomes the province of emotions andsensitivities”. It then becomes process of personal choiceBfollowed by rationalisation. The major and minor premises do notlead to result; but the result produces major and minor premises.This is reversal of the process - virtually making concept ofconstitutional adjudication stand on its head. It is to law whatRobert Frost called ‘free verse,’ “Tennis with the net down.” ThenCnaturally there are no rules, only passions. Legal reasoning rootedin concern for legitimate process rather than desired resultsrestricts judges to their proper role in constitutional democracy.That marks off the line between judicial power and legislativepower. Legislation, contrary to some popular notions, is veryelaborate democratic process. It takes much to distil the rawDamorphous public opinion into scalable legislative values throughthe multi-tiered filter of parliamentary processes &procedures…..”

36.In the light of the discussion mentioned above of legal principles,we advert to directions issued in paragraph 83. Direction Nos. (iii) andE(iv) and consequential direction No. (v) are sought to be reviewed/recalled. Directions contain the following aspects: -

1. That arrest of public servant can only be after approval ofthe appointing authority.

F2. The arrest of non-public servant after approval by the SeniorSuperintendent of Police (SSP).

3. The arrest may be in an appropriate case if considered necessaryfor reasons to be recorded;

4. Reasons for arrest must be scrutinised by the Magistrate forGpermitting further detention;

5. Preliminary enquiry to be conducted by the Dy. S.P. level officersto find out whether the allegations make out case and that the allegationsare not frivolous or motivated.

6. Any violation of the directions mentioned above will beactionable by way of disciplinary action as well as contempt.

37.Before we dilate upon the aforesaid directions, it is necessaryto take note of certain aspects. It cannot be disputed that as the membersof the Scheduled Castes and Scheduled Tribes have suffered for long;the protective discrimination has been envisaged under Article 15 of theConstitution of India and the provisions of the Act of 1989 to make themequals.

38.All the offences under the Atrocities Act are cognizable. Theimpugned directions put the riders on the right to arrest. An accusedcannot be arrested in atrocities cases without the concurrence of thehigher Authorities or appointing authority as the case may be. As perthe existing provisions, the appointing authority has no power to grant orwithhold sanction to arrest concerning public servant.

39.The National Commission for Scheduled Castes AnnualReport 2015-16, has recommended for prompt registration of FIRs thus:

“The Commission has noted with concern that instances ofprocedural lapses are frequent while dealing atrocity cases byboth police and civil administration. There are delays in the judicialprocess of the cases. The Commission, therefore, identifiedlacunae commonly noticed during police investigation, as alsopreventive/curable actions the civil administration can take. NCSCrecommends the correct and timely application of SC/ST (PoA)Amendment Act, 2015 and Amendment Rules of 2016 as well asthe following for improvement:

8.6.1 Registration of FIRs - The Commission has observed thatthe police often resort to preliminary investigation upon receivinga complaint in writing before lodging the actual FIRs.As result,the SC victims have to resort to seeking directions from courtsfor registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble SupremeCourt has also on more than one occasion emphasized aboutregistration of FIR first. This Commission again reemphasizesthat the State / UT Governments should enforce prompt registrationof FIRs.”

(emphasis supplied)

A40. The learned Attorney General pointed out that the statisticsconsidered by the Court in the judgment under review indicate that 9 to10 percent cases under the Act were found to be false. The percentageof false cases concerning other general crimes such as forgery iscomparable, namely 11.51 percent and for kidnapping and abduction, itis 8.85 percent as per NCRB data for the year 2016. The same can beBtaken care of by the Courts under Section 482, and in case no primafacie case is made out, the Court can always consider grant of anticipatorybail and power of quashing in appropriate cases. For the low convictionrate, he submitted that same is the reflection of the failure of the criminaljustice system and not an abuse of law. The witnesses seldom come toCsupport down-trodden class, biased mindset continues, andthey arepressurised in several manners, and the complainant also hardly musterthe courage.

41.As to prevailing conditions in various areas of the country, weare compelled to observe that SCs/STs are still making the struggle forDequality and for exercising civil rights in various areas of the country.The members of the Scheduled Castes and Scheduled Tribes are stilldiscriminated against in various parts of the country. In spite ofreservation, the fruits of development have not reached to them, by andlarge, they remain unequal and vulnerable section of the society. Theclasses of Scheduled Castes and Scheduled Tribes have been sufferingEignominy and abuse, and they have been outcast socially for the centuries.The efforts for their upliftment should have been percolated down toeradicate their sufferings.42.Though, Article 17 of the Constitution prohibits untouchability,whether untouchability has vanished? We have to find the answer to allFthese pertinent questions in the present prevailing social scenario in dif-ferent parts of the country. The clear answer is that untouchabilitythough intended to be abolished, has not vanished in the last 70 years.We are still experimenting with ‘tryst with destiny.’ The plight of un-touchables is that they are still denied various civil rights; the condition isGworse in the villages, remote areas where fruits of development havenot percolated down. They cannot enjoy equal civil rights. So far, wehave not been able to provide the modern methods of scavenging toHarijans due to lack of resources and proper planning and apathy.

Whether he can shake hand with person of higher class on equalfooting? Whether we have been able to reach that level of psyche andhuman dignity and able to remove discrimination based upon caste?Whether false guise of cleanliness can rescue the situation, how suchcondition prevails and have not vanished, are we not responsible? Theanswer can only be found by soul searching. However, one thing is surethat we have not been able to eradicate untouchability in real sense asenvisaged and we have not been able to provide down-trodden class thefundamental civil rights and amenities, frugal comforts of life which makelife worth living. More so, for Tribals who are at some places still kept inisolation as we have not been able to provide them even basic amenities,education and frugal comforts of life in spite of spending considerableamount for the protection, how long this would continue. Whether theyhave to remain in the status quo and to entertain civilized society?Whether under the guise of protection of the culture, they are deprivedof fruits of development, and they face violation of traditional rights?

43.In Khadak Singh vs. State of Himachal Pradesh, AIR 1963SC 1295, this Court has observed that the right to life is not merely ananimal’s existence. Under Article 21, the right to life includes the right tolive with dignity. Basic human dignity implies that all the persons aretreated as equal human in all respects and not treated as an untouchable,downtrodden, and object for exploitation. It also implies that they arenot meant to be born for serving the elite class based upon the caste.The caste discrimination had been deep-rooted, so the consistent effortis on to remove it, but still, we have to achieve the real goal. No doubtwe have succeeded partially due to individual and collective efforts.

44.The enjoyment of quality life by the people is the essence ofguaranteed right under Article 21 of the Constitution, as observed inHinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live withhuman dignity is included in the right to life as observed in FrancisCoralie Mullin v. Union Territory Delhi, Administrator, AIR 1981SC 746, Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gen-der injustice, pollution, environmental degradation, malnutrition, socialostracism of Dalits are instances of human rights violations as observedby this Court in People’s Union for Civil Liberties v. Union of India,(2005) 2 SCC 436:

A“34. The question can also be examined from another angle. Theknowledge or experience of police officer of human rightsviolation represents only one facet of human rights violation andits protection, namely, arising out of crime. Human rightsviolations are of various forms which besides police brutality are— gender injustice, pollution, environmental degradation,Bmalnutrition, social ostracism of Dalits, etc. police officer canclaim to have experience of only one facet. That is not therequirement of the section.”

(emphasis supplied)

45.There is right to live with dignity and also right to die withCdignity. For violation of human rights under Article 21 grant ofcompensation is one of the concomitants which has found statutoryexpression in the provisions of compensation, to be paid in case anoffence is committed under the provisions of the Act of 1989. goodreputation is an element of personal security and is protected by theDConstitution equally with the right to the enjoyment of life, liberty, andproperty. Therefore, it has been held to be an essential element of theright to life of citizen under Article 21 as observed by this Court inUmesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, KishoreSamrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and SubramanianSwamy v. Union of India, (2016) 7 SCC 221. The provisions of the ActEof 1989 are, in essence, concomitants covering various facets of Article21 of the Constitution of India.

46.They do labour, bonded or forced, in agricultural fields, whichis not abrogated in spite of efforts. In certain areas, women are nottreated with dignity and honour and are sexually abused in various forms.FWe see sewer workers dying in due to poisonous gases in chambers.They are like death traps. We have not been able to provide the masksand oxygen cylinders for entering in sewer chambers, we cannot leavethem to die like this and avoid tortious liability concerned with officials/machinery, and they are still discriminated within the society in theGmatter of enjoying their civil rights and cannot live with human dignity.

47.The Constitution of India provides equality before the lawunder the provisions contained in Article 14. Article 15(4) of the

Constitution carves out an exception for making any special provisionfor the advancement of any socially and educationally backward classesof citizens or SCs. and STs. Further protection is conferred underArticle 15(5) concerning their admission to educational institutions,including private educational institutions, whether aided or unaided bythe State, other than the minority educational institutions. Historicallydisadvantageous groups must be given special protection and help sothat they can be uplifted from their poverty and low social status asobserved in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC793. The legislature has to attempt such incumbents be protected underArticle 15(4), to deal with them with more rigorous provisions ascompared to provisions of general law available to the others wouldcreate inequality which is not permissible/envisaged constitutionally. Itwould be an action to negate mandatory constitutional provisions notsupported by the constitutional scheme; rather, it would be against themandated constitutional protection. It is not open to the legislature to putmembers of the Scheduled Castes and Scheduled Tribes in adisadvantageous position vis-à-vis others and in particular to so-calledupper castes/general category. Thus, they cannot be discriminated againstmore so when we have peep into the background perspective. Whatlegislature cannot do legitimately, cannot be done by the interpretativeprocess by the courts.

48.The particular law, i.e., Act of 1989, has been enacted andhas also been amended in 2016 to make its provisions more effective.Special prosecutors are to be provided for speedy trial of cases. Theincentives are also provided for rehabilitation of victims, protection ofwitnesses and matters connected therewith.

49. There is no presumption that the members of the ScheduledCastes and Scheduled Tribes may misuse the provisions of law as aclass and it is not resorted to by the members of the upper Castes or themembers of the elite class. For lodging false report, it cannot be saidthat the caste of person is the cause. It is due to the human failing andnot due to the caste factor. Caste is not attributable to such an act. Onthe other hand, members of the Scheduled Castes and Scheduled Tribesdue to backwardness hardly muster the courage to lodge even firstinformation report, much less, false one. In case it is found to be false/

Aunsubstantiated, it may be due to the faulty investigation or for othervarious reasons including human failings irrespective of caste factor.There may be certain cases which may be false that can be ground forinterference by the Court, but the law cannot be changed due to suchmisuse. In such situation, it can be taken care in proceeding undersection 482 of the Cr.PC.B

50. The data of National Crime Records Bureau, Ministry of HomeAffairs, has been pointed out on behalf of Union of India whichindicates that more than 47,000 cases were registered in the year 2016under the Act of 1989. The number is alarming, and it cannot be saidthat it is due to the outcome of the misuse of the provisions of the Act.

51.As matter of fact, members of the Scheduled Castes andScheduled Tribes have suffered for long, hence, if we cannot providethem protective discrimination beneficial to them, we cannot place themat all at disadvantageous position that may be causing injury to them bywidening inequality and against the very spirit of our Constitution. ItDwould be against the basic human dignity to treat all of them as liar oras crook person and cannot look at every complaint by such complain-ant with doubt. Eyewitnesses do not come up to speak in their favour.They hardly muster the courage to speak against upper caste, that iswhy provisions have been made by way of amendment for the protec-Etion of witnesses and rehabilitation of victims. All humans are equalincluding in their frailings. To treat SCs. and STs. as persons who areprone to lodge false reports under the provisions of the Scheduled Castesand Scheduled Tribes Act for taking revenge or otherwise as monetarybenefits made available to them in the case of their being subjected tosuch offence, would be against fundamental human equality. It cannotFbe presumed that person of such class would inflict injury upon himselfand would lodge false report only to secure monetary benefits or totake revenge. If presumed so, it would mean adding insult to injury, merelyby the fact that person may misuse provisions cannot be ground totreat class with doubt. It is due to human failings, not due to the casteGfactor. The monetary benefits are provided in the cases of an acid at-tack, sexual harassment of SC/ST women, rape, murder, etc. In suchcases, FIR is required to be registered promptly.

52.It is an unfortunate state of affairs that the caste system stillprevails in the country and people remain in slums, more particularly,Hunder skyscrapers, and they serve the inhabitants of such buildings.

53.To treat such incumbents with rider that report lodged byan SCs/STs category, would be registered only after preliminaryinvestigation by Dy. S.P., whereas under Cr.PC complaint lodgedrelating to cognizable offence has to be registered forthwith. It wouldmean report by upper-caste has to be registered immediately andarrest can be made forthwith, whereas, in case of an offence under theAct of 1989, it would be conditioned one. It would be opposed to theprotective discrimination meted out to the members of the ScheduledCastes and Scheduled Tribes as envisaged under the Constitution inArticles 15, 17 and 21 and would tantamount to treating them asunequal, somewhat supportive action as per the mandate of Constitutionis required to make them equals. It does not prima facie appearpermissible to look them down in any manner. It would also be contraryto the procedure prescribed under the Cr.PC and contrary to the lawlaid down by this Court in Lalita Kumari (supra).

54. The guidelines in (iii) and (iv) appear to have been issued inview of the provisions contained in Section 18 of the Act of 1989; whereasadequate safeguards have been provided by purposive interpretationby this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3SCC 221. The consistent view of this Court that if prima facie case hasnot been made out attracting the provisions of SC/ST Act of 1989, inthat case, the bar created under section 18 on the grant of anticipatorybail is not attracted. Thus, misuse of the provisions of the Act is intendedto be taken care of by the decision above. In Kartar Singh (supra), aConstitution Bench of this Court has laid down that taking away the saidright of anticipatory bail would not amount to violation of Article 21 ofthe Constitution of India. Thus, prima facie it appears that in the case ofmisuse of provisions, adequate safeguards are provided in the decisionmentioned above.

55.That apart directions (iii) and (iv) issued may delay theinvestigation of cases. As per the amendment made in the Rules in theyear 2016, charge sheet has to be filed to enable timelycommencement of the prosecution. The directions issued are likely todelay the timely scheme framed under the Act/Rules.

In re: sanction of the appointing authority :

56.Concerning public servants, the provisions contained inSection 197, Cr.PC provide protection by prohibiting cognizance of the

Aoffence without the sanction of the appointing authority and theprovision cannot be applied at the stage of the arrest. That would runagainst the spirit of Section 197, Cr.PC. Section 41, Cr.PC authorisesevery police officer to carry out an arrest in case of cognizableoffence and the very definition of cognizable offence in terms ofSection 2(c) of Cr.PC is one for which police officer may arrest withoutBwarrant.

57.In case any person apprehends that he may be arrested,harassed and implicated falsely, he can approach the High Court forquashing the FIR under Section 482 as observed in State of Orissa v.Debendra Nath Padhi, (2005) 1 SCC 568.C

58.While issuing guidelines mentioned above approval of appointingauthority has been made imperative for the arrest of public servantunder the provisions of the Act in case, he is an accused of havingcommitted an offence under the Act of 1989. Permission of the appoint-ing authority to arrest public servant is not at all statutorily envisaged;Dit is encroaching on field which is reserved for the legislature. Thedirection amounts to mandate having legislative colour which is fieldnot earmarked for the Courts.59.The direction is discriminatory and would cause several legalcomplications. On what basis the appointing authority would grantEpermission to arrest public servant? When the investigation is notcomplete, how it can determine whether public servant is to be arrestedor not? Whether it would be appropriate for appointing authority to lookinto case diary in case where its sanction for prosecution may not berequired in an offence which has not happened in the discharge ofFofficial duty. Approaching appointing authority for approval of arrest ofa public servant in every case under the Act of 1989 is likely to consumesufficient time. The appointing authority is not supposed to know theground realities of the offence that has been committed, and arrestsometimes becomes necessary forthwith to ensure further progress ofthe investigation itself. Often the investigation cannot be completedGwithout the arrest. There may not be any material before the appointingauthority for deciding the question of approval. To decide whether apublic servant should be arrested or not is not function of appointingauthority, it is wholly extra-statutory. In case appointing authority holds

that public servant is not to be arrested and declines approval, whatwould happen, as there is no provision for grant of anticipatory bail. Itwould tantamount to take away functions of Court. To decide whetheran accused is entitled to bail under Section 438 in case no prima faciecase is made out or under Section 439 is the function of the Court. Thedirection of appointing authority not to arrest may create conflict withthe provisions of Act of 1989 and is without statutory basis.

60.By the guidelines issued, the anomalous situation may crop upin several cases. In case the appointing authority forms view that asthere is no prima facie case the incumbent is not to be arrested, severalcomplications may arise. For the arrest of an offender, maybe apublic servant, it is not the provision of the general law of Cr.PC thatpermission of the appointing authority is necessary. No such statutoryprotection provided to public servant in the matter of arrest under theIPC and the Cr.PC as such it would be discriminatory to impose suchrider in the cases under the Act of 1989. Only in the case of discharge ofofficial duties, some offence appears to have been committed, in thatcase, sanction to prosecute may be required and not otherwise. In casethe act is outside the purview of the official discharge of duty, no suchsanction is required.

61. The appointing authority cannot sit over an FIR in case ofcognizable, non-bailable offense and investigation made by the PoliceOfficer; this function cannot be conferred upon the appointing authorityas it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, thisrider cannot be imposed in respect of the cases under the Act of 1989,may be that provisions of the Act are sometimes misused, exercise ofpower of approval of arrest by appointing authority is whollyimpermissible, impractical besides it encroaches upon the field reservedfor the legislature and is repugnant to the provisions of general law as nosuch rider is envisaged under the general law.

62.Assuming it is permissible to obtain the permission ofappointing authority to arrest accused, would be further worsening theposition of the members of the Scheduled Castes and Scheduled Tribes.If they are not to be given special protection, they are not to be furtherput in disadvantageous position. The implementation of the conditionmay discourage and desist them even to approach the Police and would

1176SUPREME COURT REPORTS

Acast shadow of doubt on all members of the Scheduled Castes andScheduled Tribes which cannot be said to be constitutionally envisaged.Other castes can misuse the provisions of law; also, it cannot be saidthat misuse of law takes place by the provisions of Act of 1989. In casethe direction is permitted to prevail, days are not far away when writpetition may have to be filed to direct the appointing authority toBconsider whether accused can be arrested or not and as to the reasonsrecorded by the appointing authority to permit or deny the arrest. It isnot the function of the appointing authority to intermeddle with acriminal investigation. If at the threshold, approval of appointingauthority is made necessary for arrest, the very purpose of the Act isClikely to be frustrated. Various complications may arise. Investigationcannot be completed within the specified time, nor trial can becompleted as envisaged. Act of 1989 delay would be adding to thefurther plight of the downtrodden class.

In ref: approval of arrest by the SSP in the case of aDnon-public servant:

63.Inter alia for the reasons as mentioned earlier, we are of theconsidered opinion that requiring the approval of SSP before an arrest isnot warranted in such case as that would be discriminatory and againstthe protective discrimination envisaged under the Act. Apart from that,Eno such guidelines can prevail, which are legislative. When there is noprovision for anticipatory bail, obviously arrest has to be made. Withoutdoubting bona fides of any officer, it cannot be left at the sweetdiscretion of the incumbent howsoever high. The approval would meanthat it can also be ordered that the person is not to be arrested then howthe investigation can be completed when the arrest of an incumbent, isFnecessary, is not understandable. For an arrest of accused such acondition of approval of SSP could not have been made sine qua non,it may delay the matter in the cases under the Act of 1989.

Requiring the Magistrate to scrutinise the reasons forpermitting further detention:G

64.As per guidelines issued by this Court, the public servant canbe arrested after approval by appointing authority and that of anon-public servant after the approval of SSP. The reasons so recordedhave to be considered by the Magistrate for permitting furtherdetention. In case of approval has not been granted, this exercise has

not been undertaken. When the offence is registered under the Act of1989, the law should take its course no additional fetter sare called foron arrest whether in case of public servant or non-public servant.Even otherwise, as we have not approved the approval of arrest byappointing authority/S.S.P., the direction to record reasons and scrutinyby Magistrate consequently stands nullified.

65.The direction has also been issued that the Dy. S.P. shouldconduct preliminary inquiry to find out whether allegations make out acase under the Atrocities Act, and that the allegations are not frivolousor motivated. In case cognisable offence is made out, the FIR has tobe outrightly registered, and no preliminary inquiry has to be made asheld in Lalita Kumari (supra) by Constitution Bench. There is no suchprovision in the Code of Criminal Procedure for preliminary inquiry orunder the SC/ST Act, as such direction is impermissible. Moreover, it isordered to be conducted by the person of the rank of Dy. S.P. Thenumber of Dy. S.P. as per stand of Union of India required for such anexercise of preliminary inquiry is not available. The direction would meanthat even if complaint made out cognizable offence, an FIR wouldnot be registered until the preliminary inquiry is held. In case prelimi-nary inquiry concludes that allegations are false or motivated, FIR is notto be registered in such case how final report has to be filed in theCourt. The direction (iv) cannot survive for the other reasons as it putsthe members of the Scheduled Castes and Scheduled Tribes in adisadvantageous position in the matter of procedure vis-a-vis to thecomplaints lodged by members of upper caste, for later no suchpreliminary investigation is necessary, in that view of matter it should notbe necessary to hold preliminary inquiry for registering an offence underthe Atrocities Act of 1989.

66.The creation of casteless society is the ultimate aim. Weconclude with pious hope that day would come, as expected by theframers of the Constitution, when we do not require any such legislationlike Act of 1989, and there is no need to provide for any reservation toSCs/STs/OBCs, and only one class of human exist equal in all respectsand no caste system or class of SCs/STs or OBCs exist, all citizens areemancipated and become equal as per Constitutional goal.

67.We do not doubt that directions encroach upon the fieldreserved for the legislature and against the concept of protective

Adiscrimination in favour of down-trodden classes under Article 15(4) ofthe Constitution and also impermissible within the parameters laid downby this Court for exercise of powers under Article 142 of Constitution ofIndia. Resultantly, we are of the considered opinion that direction Nos.(iii)and (iv) issued by this Court deserve to be and are hereby recalled andconsequently we hold that direction No. (v), also vanishes. The reviewBpetitions are allowed to the extent mentioned above.

68.All the pending applications regarding intervention etc. standdisposed of.

CDivya Pandey

Review Petitions allowed.