PRATHVI RAJ CHAUHAN versus UNION OF INDIA & OTHERS

[2020] 2 S.C.R. 727

PRATHVI RAJ CHAUHAN

UNION OF INDIA & OTHERS

(Writ Petition (C) No. 1015 of 2018)

FEBRUARY 10, 2020

[ARUN MISHRA, VINEET SARAN AND

S. RAVINDRA BHAT, JJ.]

Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – s.18A – Challenge to – Petitioners challengeds.18A which was enacted owing to the judgment of Supreme Courtin Dr. Subhash Kashinath case reported as [2018] 4 SCR 877, mainlybecause of direction nos.(iii) to (v) contained in para 83 inter aliaw.r.t holding preliminary inquiry for registration of FIR, necessityto obtain approval of the appointing authority concerning arrest ofa public servant and of the SSP in other cases – Union of Indiafiled review petitions – Allowed – Direction nos. (iii) to (v) recalled– Held: Per Arun Mishra and Vineet Saran, JJ. – Provisions madein s.18A are rendered of academic use as they were enacted to takecare of mandate issued in Dr. Subhash Kashinath case which no moreprevails – preliminary inquiry is permissible only in thecircumstances as per law laid down by Constitution Bench in LalitaKumari case – Further, concerning the applicability of provisionsof s.438, CrPC, it shall not apply to the cases under 1989 Act –However, if the complaint does not make out prima facie case under1989 Act, the bar created by s.18 & 18A(i) shall not apply – Inexceptional cases, power can be exercised u/s.482, CrPC forquashing cases to prevent misuse of provisions on settledparameters, as observed in the review petitions – Per S. RavindraBhat, J. (Supplementing) Any interference with the provisions ofthe Act, particularly with respect to the amendments precludingpreliminary enquiry, or provisions which remove the bar againstarrest of public servants accused of offences punishable under theAct, would not be positive step – Various reports, official dataincluding those released by the National Crime Records Bureau,paint dismal picture – While considering any application seeking

Apre-arrest bail, the High Court has to balance the two interests: i.e.that the power is not so used as to convert the jurisdiction into thatu/s.438, CrPC, but that it is used sparingly and such orders madein very exceptional cases where no prima facie offence is made outas shown in the FIR – Further also, if such orders are not made inBthose classes of cases, the result would inevitably be miscarriage ofjustice or abuse of process of law – Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Amednment Act, 2018 – Constitutionof India – Arts.14, 15, 17, 21, 23 & 24 – Code of Criminal Procdure,1973 – ss.438 and 482 – Untouchability (Offences) Act, 1955 –Civil Rights Act, 1955.CDisposing of the writ petitions, the Court

HELD: PER ARUN MISHRA, J. (for himself and VINEETSARAN, J.)

Concerning the provisions contained in section 18A, withDrespect to preliminary inquiry for registration of FIR, the generaldirections (iii) and (iv) issued in Dr. Subhash Kashinath’s casehave already been recalled. preliminary inquiry is permissibleonly in the circumstances as per the law laid down by aConstitution Bench of Supreme Court in Lalita Kumari case, shallEhold good as explained in the order passed by Supreme Court inthe review petitions on 1.10.2019 and the amended provisions ofsection 18A have to be interpreted accordingly. The provisionswhich have been made in section 18A are rendered of academicuse as they were enacted to take care of mandate issued in Dr.Subhash Kashinath which no more prevails. The provisions wereFalready in section 18 of the Act with respect to anticipatory bail.Concerning the applicability of provisions of section 438 Cr.PC,it shall not apply to the cases under Act of 1989. However, if thecomplaint does not make out prima facie case for applicabilityof the provisions of the Act of 1989, the bar created by section 18Gand 18A (i) shall not apply. This aspect has been clarified whiledeciding the review petitions. The court can, in exceptional cases,exercise power under section 482 Cr.PC for quashing the casesto prevent misuse of provisions on settled parameters, as alreadyobserved while deciding the review petitions. The challenge tothe provisions has been rendered academic. [Paras 8-11][750-HH; 751-A-H]

Dr. Subhash Kashinath Mahajan v. The State ofMaharashtra & Anr. (2018) 6 SCC 454 : [2018] 4 SCR877; State of M.P. & Anr. v. Ram Kishna Balothia &Anr. (1995) 3 SCC 221 : [1995] 1 SCR 897; VilasPandurang Pawar and Anr. v. State of Maharashtra &Ors. (2012) 8 SCC 795 : [2012] 8 SCR 270; ShakuntlaDevi v. Baljinder Singh (2014) 15 SCC 521; LalitaKumari v. Government of U.P. (2014) 2 SCC 1 : [2013]14 SCR 713 – referred to.

PER S. RAVINDRA BHAT, J.

1.1 Any interference with the provisions of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,particularly with respect to the amendments precludingpreliminary enquiry, or provisions which remove the bar againstarrest of public servants accused of offences punishable underthe Act, would not be positive step. The various reports,recommendations and official data, including those released bythe National Crime Records Bureau, paint dismal picture. Thefigures reflected were that for 2014, instances of crimes recordedwere 40401; for 2015, the crime instances recorded were 38670and for 2016, the registered crime incidents were 40801.According to one analysis of the said 2016 report, 422,799 crimesagainst scheduled caste communities’ members and 81,332crimes against scheduled tribe communities’ members werereported between 2006 and 2016. These facts, ought to be keptin mind by courts which have to try and deal with offences underthe Act. It is important to keep oneself reminded that whilesometimes (perhaps mostly in urban areas) false accusations aremade, those are not necessarily reflective of the prevailing andwide spread social prejudices against members of these oppressedclasses. Significantly, the amendment of 2016, in the expandeddefinition of ‘atrocity’, also lists pernicious practices (underSection 3) including forcing the eating of inedible matter, dumpingof excreta near the homes or in the neighbourhood of membersof such communities and several other forms of humiliation, whichmembers of such scheduled caste communities are subjected to.All these considerations far outweigh the petitioners’ concernthat innocent individuals would be subjected to what are describedas arbitrary processes of investigation and legal proceedings,

CDE

FGH

Awithout adequate safeguards. The right to trial with all attendantsafeguards are available to those accused of committing offencesunder the Act; they remain unchanged by the enactment of theamendment. As far as the provision of Section 18A and anticipatorybail is concerned, the judgment of Mishra, J, has stated that incases where no prima facie materials exist warranting arrest in aBcomplaint, the court has the inherent power to direct pre-arrestbail. [Paras 17-19][760-C-G; 761-A-C]

1.2 While considering any application seeking pre-arrestbail, the High Court has to balance the two interests: i.e. that thepower is not so used as to convert the jurisdiction into that underCSection 438 of the Criminal Procedure Code, but that it is usedsparingly and such orders made in very exceptional cases whereno prima facie offence is made out as shown in the FIR, and furtheralso that if such orders are not made in those classes of cases,the result would inevitably be miscarriage of justice or abuse of

process of law. Such stringent terms, otherwise contrary to theDphilosophy of bail, are absolutely essential, because liberal useof the power to grant pre-arrest bail would defeat the intention ofParliament. Unless provisions of the Act are enforced in theirtrue letter and spirit, with utmost earnestness and dispatch, thedream and ideal of casteless society will remain only dream, aEmirage. The marginalization of scheduled caste and scheduledtribe communities is an enduring exclusion and is based almostsolely on caste identities. It is to address problems of segmentedsociety, that express provisions of the Constitution which giveeffect to the idea of fraternity, or bandhutva (cU/kqRo) referred toin the Preamble, and statutes like the Act, have been framed.FThese underline the social – rather collective resolve – ofensuring that all humans are treated as humans, that their innategenius is allowed outlets through equal opportunities and eachof them is fearless in the pursuit of her or his dreams.[Paras 20, 21][761-C-H]

GIndira Sawhney v Union of India [1992] Suppl. 1 SCR454; Raghunathrao Ganpatrao v. Union of India[1993] 1 SCR 480; Nandini Sundar v. State ofChhatisgarh (2011) 7 SCC 457; Dalit Human Rights v.

Union of India (2017) 2 SCC 432 : [2016] 9 SCR 122;Subhash Kashinath Mahajan v. State of Maharashtra& Ors. (2018) 4 SCC 454 : [2018] 4 SCR 877; Unionof India v. State of Maharastra 2019 (13) SCALE 280– referred to.

Guru Granth Saheb p.83; B. Shiva Rao: Framing ofIndia’s Constitution Vol.III, Page 510 (1968); Reporton the Prevention of Atrocities against Scheduled CastesPublished by the National Human Rights Commission-(accessed at https://nhrc.nic.in/publications/otherpublicationsson 15 December, 2019 at 08:27 hrs);Reports, recommendations and official data releasedby National Crime Records Bureau (http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%207A.1.pdfcontaining statistics relating to crime againstmembers of scheduled caste and scheduled tribepopulations);Indiaspend(https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-by-746-746/) – referred to.

Case Law Reference

In the Judgment of Arun Mishra and Vineet Saran, JJ.

In the Judgment of S. Ravindra Bhat, J.

A[2018] 4 SCR 877referred to2019 (1) SCALE 280referred to

Para 15

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1015 of 2018.

BUnder Article 32 of the Constitution of India

With

Writ Petition (C) No. 1016 of 2018.

K. K. Venugopal, Attorney General, Tushar Mehta, SolicitorGeneral, R. Balasubramaniam, Dinesh Kumar Goswami, Ashok KumarSharma, Mohan Parasaran, R. S. Gerwal, Gopal Shankarnarayan,Sr. Advs., Ms. Shraddha Deshmukh, Ankur Talwar, Raj Bahadur Yadav,Shiv Mangal Sharma, Mrs. Anil Katiyar, Mithilesh Kumar Singh, RudraDVikram Singh, Parmanand Gaur, Mrs. Bandana Singh, Kshitij Mudgal,Ekansh Bansal, Akhil Sharma, K. K. L. Gautam, A. K. Suman, P. S.Nerwal, Bharat Ram, Rahul Mohod, Varun Mudgil, R. R. Bag, SanjeevMalhotra, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar,Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, Ms. Sarita Devi,Ms. Mamta Rani, Prabhoo Dayal Tiwari, Hitesh Kumar Sharma,EMs. Savati Gerwal, Krishna Kapoor, Ms. Shashi Kiran, Satish Chandra,Arjun Saini, Ms. Pooja Dhar, Ms. Gayatri Verma, Shurtanjya Bhardwaj,Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmed, Kunal Yadav,Ms. Neena Shukla, Alok Shukla, Manoj Gorkela, Ms. Hemlata Kharayat,Ram Srivastava, Sandeep Kumar Singh (for M/s. Gorkela Law Office),FK. Paari Vendhan, Nilesh Ukey, Sabarish Subramanian, PrabuRamasubramanian, Y. William Vinoth Kumar, Vishnu Unnikrishnan,Ms.Disha Wadekar, Paras Nath Singh, Avijit Bhattacharjee, Ms. UpmaShrivastava, Ajoy Kumar Ghosh, Abhay Kant Mishra, G. Prakash, JishnuM. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Prakash Sharma,Anuj Saxena, Arup Banerjee, Mohd. Naved, Susheel Tomar, BalrajGDewan, Smarhar Singh, Kumar Parimal, Ms. Shashi Kiran, Fuzail AhmadAyyubi, Varinder Kumar Sharma, Anilendra Pandey, Advs. for theappearing parties.

Petitioner-in-person.

The Judgments of the Court were delivered by

ARUN MISHRA, J.*

1. The petitioners have questioned the provisions inserted by wayof carving out section 18A of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as well assection 18A, are reproduced hereunder:

“18. Section 438 of the Code not to apply to persons committingan offence under the Act.—Nothing in section 438 of the Codeshall apply in relation to any case involving the arrest of any personon an accusation of having committed an offence under this Act.”

“Section 18A. (1) For the purposes of this Act,-

(a) preliminary enquiry shall not be required for registration of aFirst Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest,if necessary, of any person, against whom an accusation of havingcommitted an offence under this Act has been made, and noprocedure other than that provided under this Act or the Codeshall apply.

(2) The provisions of section 438 of the Code shall not apply to acase under this Act, notwithstanding any judgment or order ordirection of any Court.”

2. It is submitted that section 18A has been enacted to nullify thejudgment of this Court in Dr. Subhash Kashinath Mahajan v. TheState of Maharashtra & Anr., (2018) 6 SCC 454, in which followingdirections were issued:

“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 D. Suthar (supra) and Dr. N.T.Desai (supra) and clarify the judgments of this Court in Balothia(supra) and Manju Devi (supra);

A(iii) In view of acknowledged abuse of law of arrest in casesunder the Atrocities Act, arrest of public servant can only beafter approval of the appointing authority and of non-publicservant after approval by the S.S.P. which may be granted inappropriate cases if considered necessary for reasons recorded.Such reasons must be scrutinised by the Magistrate for permittingBfurther detention.

(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 directions (iii) and (iv) will be actionable byway of disciplinary action as well as contempt.

The above directions are prospective.”

3. It has been submitted that this Court has noted in Dr. SubhashDKashinath (supra) that the provisions of the Act of 1989 are beingmisused as such the amendment is arbitrary, unjust, irrational and violativeof Article 21 of the Constitution of India. There could not have been anycurtailment of the right to obtain anticipatory bail under section 438 Cr.PC.Prior scrutiny and proper investigation are necessary. Most of theEsafeguards have been provided under the Act of 1989 to prevent undueharassment. This Court has struck down the provision of section 66A ofthe Information Technology Act on the ground of violation of fundamentalrights; on the same anvil, the provisions of section 18A of the Act of1989 deserve to be struck down.

F4. It is not disputed at the Bar that the provisions in section 18A inthe Act of 1989 had been enacted because of the judgment passed bythis Court in Dr. Subhash Kashinath’s case (supra), mainly because ofdirection Nos (iii) to (v) contained in para 83. The Union of India hadfiled review petitions, and the same have been allowed, and directionNos (iii) to (v) have been recalled. Thus, in view of the judgment passedGin the review petitions, the matter is rendered of academic importanceas we had restored the position as prevailed by various judgments thatwere in vogue before the matter of Dr. Subhash Kashinath (supra)was decided. We are not burdening the decision as facts and reasonshave been assigned in detail while deciding review petitions on 1.10.2019

and only certain clarifications are required in view of the provisions carvedout in section 18A. There can be protective discrimination, not reverseone. We have dealt with various questions in the review petitions whiledeciding the same as under:

“36. In the light of the discussion mentioned above of legalprinciples, we advert to directions issued in paragraph 83. DirectionNos. (iii) and (iv) and consequential direction No. (v) are soughtto be reviewed/recalled. Directions contain the following aspects:-

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

2. 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 forpermitting 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 theallegations are not frivolous or motivated.

6. Any violation of the directions mentioned above will be actionableby 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 themembers of the Scheduled Castes and Scheduled Tribes havesuffered for long; the protective discrimination has been envisagedunder Article 15 of the Constitution of India and the provisions ofthe Act of 1989 to make them equals.

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 ofthe higher Authorities or appointing authority as the case may be.As per the existing provisions, the appointing authority has nopower to grant or withhold sanction to arrest concerning publicservant.

39. The National Commission for Scheduled Castes Annual Report2015-16, 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 observedthat the police often resort to preliminary investigation uponreceiving complaint in writing before lodging the actual FIRs.As result, the SC victims have to resort to seeking directionsfrom courts for registration of FIRs u/s 156(3) of Cr.P.C.Hon’ble Supreme Court has also on more than one occasionemphasized about registration of FIR first. This Commissionagain reemphasizes that the State / UT Governments shouldenforce prompt registration of FIRs.”

(emphasis supplied)

40. The learned Attorney General pointed out that the statisticsconsidered by the Court in the judgment under review indicatethat 9 to 10 percent cases under the Act were found to be false.The percentage of false cases concerning other general crimessuch as forgery is comparable, namely 11.51 percent and forkidnapping and abduction, it is 8.85 percent as per NCRB datafor the year 2016. The same can be taken care of by the Courtsunder Section 482, and in case no prima facie case is made out,the Court can always consider grant of anticipatory bail and powerof quashing in appropriate cases. For the low conviction rate, hesubmitted that same is the reflection of the failure of the criminaljustice system and not an abuse of law. The witnesses seldomcome to support down-trodden class, biased mindset continues,andthey are pressurised in several manners, and the complainantalso hardly muster the courage.

41. As to prevailing conditions in various areas of the country, weare compelled to observe that SCs/STs are still making the struggle

for equality and for exercising civil rights in various areas of thecountry. The members of the Scheduled Castes and ScheduledTribes are still discriminated against in various parts of the country.In spite of reservation, the fruits of development have not reachedto them, by and large, they remain unequal and vulnerable sectionof the society. The classes of Scheduled Castes and ScheduledTribes have been suffering ignominy and abuse, and they havebeen outcast socially for the centuries. The efforts for theirupliftment should have been percolated down to eradicate theirsufferings.

42. Though, Article 17 of the Constitution prohibits untouchability,whether untouchability has vanished? We have to find the answerto all these pertinent questions in the present prevailing socialscenario in different parts of the country. The clear answer is thatuntouchability though intended to be abolished, has not vanishedin the last 70 years. We are still experimenting with ‘tryst withdestiny.’ The plight of untouchables is that they are still deniedvarious civil rights; the condition is worse in the villages, remoteareas where fruits of development have not percolated down.They cannot enjoy equal civil rights. So far, we have not beenable to provide the modern methods of scavenging to Harijansdue to lack of resources and proper planning and apathy. Whetherhe can shake hand with person of higher class on equal footing?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, howsuch condition prevails and have not vanished, are we notresponsible? The answer can only be found by soul searching.However, one thing is sure that we have not been able to eradicateuntouchability in real sense as envisaged and we have not beenable to provide down-trodden class the fundamental civil rightsand amenities, frugal comforts of life which make life worth living.More so, for Tribals who are at some places still kept in isolationas we have not been able to provide them even basic amenities,education and frugal comforts of life in spite of spending aconsiderable amount for the protection, how long this wouldcontinue. Whether they have to remain in the status quo and toentertain civilized society? Whether under the guise of protectionof the culture, they are deprived of fruits of development, andthey 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 merelyan animal’s existence. Under Article 21, the right to life includesthe right to live with dignity. Basic human dignity implies that allthe persons are treated as equal human in all respects and nottreated as an untouchable, downtrodden, and object for exploitation.It also implies that they are not meant to be born for serving theelite class based upon the caste. The caste discrimination hadbeen deep-rooted, so the consistent effort is on to remove it, butstill, we have to achieve the real goal. No doubt we havesucceeded 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 observedin Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right tolive with human dignity is included in the right to life as observedin Francis Coralie Mullin v. Union Territory Delhi,Administrator, AIR 1981 SC 746, Olga Tellis v. BombayCorporation, AIR 1986 SC 180. Gender injustice, pollution,environmental degradation, malnutrition, social ostracism of Dalitsare instances of human rights violations as observed by this Courtin People’s Union for Civil Liberties v. Union of India, (2005)2 SCC 436:“34. The question can also be examined from another angle.The knowledge or experience of police officer of humanrights violation represents only one facet of human rightsviolation and its protection, namely, arising out of crime. Humanrights violations are of various formswhich besides policebrutality are — gender injustice, pollution, environmentaldegradation, malnutrition, social ostracism of Dalits, etc. policeofficer can claim to have experience of only one facet. That isnot the requirement of the section.” (emphasis supplied)

45. There is right to live with dignity and also right to die withdignity. 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 casean offence is committed under the provisions of the Act of 1989.A good reputation is an element of personal security and isprotected by the Constitution equally with the right to the

enjoyment of life, liberty, and property. Therefore, it has beenheld to be an essential element of the right to life of citizenunder Article 21 as observed by this Court in Umesh Kumar v.State of Andhra Pradesh, (2013) 10 SCC 591, Kishore Samritev. State of Uttar Pradesh, (2013) 2 SCC 398 and SubramanianSwamy v. Union of India, (2016) 7 SCC 221. The provisions ofthe Act of 1989 are, in essence, concomitants covering variousfacets of Article 21 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 arenot treated with dignity and honour and are sexually abused invarious forms. We see sewer workers dying in due to poisonousgases in chambers. They are like death traps. We have not beenable to provide the masks and oxygen cylinders for entering insewer chambers, we cannot leave them to die like this and avoidtortious liability concerned with officials/machinery, and they arestill discriminated within the society in the matter of enjoying theircivil 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 theConstitution carves out an exception for making any specialprovision for the advancement of any socially and educationallybackward classes of citizens or SCs. and STs. Further protectionis conferred under Article 15(5) concerning their admission toeducational institutions, including private educational institutions,whether aided or unaided by the State, other than the minorityeducational institutions. Historically disadvantageous groups mustbe given special protection and help so that they can be upliftedfrom their poverty and low social status as observed in Kailas &Ors. v. State of Maharashtra, 2011 (1) SCC 793. The legislaturehas to attempt such incumbents be protected under Article 15(4),to deal with them with more rigorous provisions as compared toprovisions of general law available to the others would createinequality which is not permissible/envisaged constitutionally. Itwould be an action to negate mandatory constitutional provisionsnot supported by the constitutional scheme; rather, it would beagainst the mandated constitutional protection. It is not open tothe legislature to put members of the Scheduled Castes and

Scheduled Tribes in disadvantageous position vis-à-vis othersand in particular to so-called upper castes/general category. Thus,they cannot be discriminated against more so when we have apeep into the background perspective. What legislature cannot dolegitimately, cannot be done by the interpretative process by thecourts.

48. The particular law, i.e., Act of 1989, has been enacted andhas also been amended in 2016 to make its provisions moreeffective. Special prosecutors are to be provided for speedy trialof cases. The incentives are also provided for rehabilitation ofvictims, protection of witnesses and matters connected therewith.

49. There is no presumption that the members of the ScheduledCastes and Scheduled Tribes may misuse the provisions of law asa class and it is not resorted to by the members of the upperCastes or the members of the elite class. For lodging false report,it cannot be said that the caste of person is the cause. It is dueto the human failing and not due to the caste factor. Caste is notattributable to such an act. On the other hand, members of theScheduled Castes and Scheduled Tribes due to backwardnesshardly muster the courage to lodge even first information report,much less, false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or forother various reasons including human failings irrespective of castefactor. There may be certain cases which may be false that canbe ground for interference by the Court, but the law cannot bechanged due to such misuse. In such situation, it can be takencare in proceeding under section 482 of the Cr.PC.

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 year2016 under the Act of 1989. The number is alarming, and it cannotbe said that it is due to the outcome of the misuse of the provisionsof the Act.

51. As matter of fact, members of the Scheduled Castes andScheduled Tribes have suffered for long, hence, if we cannotprovide them protective discrimination beneficial to them, wecannot place them at all at disadvantageous position that may

be causing injury to them by widening inequality and against thevery spirit of our Constitution. It would be against the basic humandignity to treat all of them as liar or as crook person andcannot look at every complaint by such complainant with doubt.Eyewitnesses do not come up to speak in their favour. They hardlymuster the courage to speak against upper caste, that is whyprovisions have been made by way of amendment for the protectionof witnesses and rehabilitation of victims. All humans are equalincluding in their frailings. 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. It cannot be presumed that personof such class would inflict injury upon himself and would lodge afalse report only to secure monetary benefits or to take revenge.If presumed so, it would mean adding insult to injury, merely bythe fact that person may misuse provisions cannot be ground totreat class with doubt. It is due to human failings, not due to thecaste factor. The monetary benefits are provided in the cases ofan acid attack, sexual harassment of SC/ST women, rape, murder,etc. In such cases, 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,under 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. Itwould mean report by upper-caste has to be registeredimmediately and arrest can be made forthwith, whereas, in caseof an offence under the Act of 1989, it would be conditioned one.It would be opposed to the protective discrimination meted out tothe members of the Scheduled Castes and Scheduled Tribes asenvisaged under the Constitution in Articles 15, 17 and 21 andwould tantamount to treating them as unequal, somewhat supportiveaction as per the mandate of Constitution is required to makethem equals. It does not prima facie appear permissible to look

them down in any manner. It would also be contrary to theprocedure 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;whereas adequate safeguards have been provided by purposiveinterpretation by this Court in the case of State of M.P. v. R.K.Balothia, (1995) 3 SCC 221. The consistent view of this Courtthat if prima facie case has not been made out attracting theprovisions of SC/ST Act of 1989, in that case, the bar createdunder section 18 on the grant of anticipatory bail is not attracted.Thus, misuse of the provisions of the Act is intended to be takencare of by the decision above. In Kartar Singh (supra), aConstitution Bench of this Court has laid down that taking awaythe said right of anticipatory bail would not amount to violationof Article 21 of the Constitution of India. Thus, prima facie itappears that in the case of misuse of provisions, adequatesafeguards are provided in the decision mentioned above.

55. 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 are likelyto delay the timely scheme framed under the Act/Rules.

In re: sanction of the appointing authority :

56. Concerning public servants, the provisions contained in Section197, Cr.PC provide protection by prohibiting cognizance of theoffence without the sanction of the appointing authority and theprovision cannot be applied at the stage of the arrest. That wouldrun against the spirit of Section 197, Cr.PC. Section 41, Cr.PCauthorises every police officer to carry out an arrest in case of acognizable offence and the very definition of cognizable offencein terms of Section 2(c) of Cr.PC is one for which police officermay arrest without warrant.

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

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 theappointing authority to arrest public servant is not at all statutorilyenvisaged; it is encroaching on field which is reserved for thelegislature. The direction amounts to mandate having legislativecolour which is field not earmarked for the Courts.59. The direction is discriminatory and would cause several legalcomplications. On what basis the appointing authority would grantpermission to arrest public servant? When the investigation isnot complete, how it can determine whether public servant is tobe arrested or not? Whether it would be appropriate for appointingauthority to look into case diary in case where its sanction forprosecution may not be required in an offence which has nothappened in the discharge of official duty. Approaching appointingauthority for approval of arrest of public servant in every caseunder the Act of 1989 is likely to consume sufficient time. Theappointing authority is not supposed to know the ground realitiesof the offence that has been committed, and arrest sometimesbecomes necessary forthwith to ensure further progress of theinvestigation itself. Often the investigation cannot be completedwithout the arrest. There may not be any material before theappointing authority for deciding the question of approval. To decidewhether public servant should be arrested or not is not functionof appointing authority, it is wholly extra-statutory. In caseappointing authority holds that public servant is not to be arrestedand declines approval, what would happen, as there is no provisionfor grant of anticipatory bail. It would tantamount to take awayfunctions of Court. To decide whether an accused is entitled tobail under Section 438 in case no prima faciecase is made out orunder Section 439 is the function of the Court. The direction ofappointing authority not to arrest may create conflict with theprovisions 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 viewthat as there is no prima facie case the incumbent is not to bearrested, several complications may arise. For the arrest of an

offender, maybe 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.

61. The appointing authority cannot sit over an FIR in case ofcognizable, non-bailable offense and investigation made by thePolice Officer; this function cannot be conferred upon theappointing authority as it is not envisaged either in the Cr.P.C. orthe Act of 1989. Thus, this rider cannot be imposed in respect ofthe cases under the Act of 1989, may be that provisions of theAct are sometimes misused, exercise of power of approval ofarrest by appointing authority is wholly impermissible, impracticalbesides it encroaches upon the field reserved for the legislatureand is repugnant to the provisions of general law as no such rideris envisaged under the general law.62. Assuming it is permissible to obtain the permission of appointingauthority to arrest accused, would be further worsening the positionof the members of the Scheduled Castes and Scheduled Tribes.If they are not to be given special protection, they are not to befurther put in disadvantageous position. The implementation ofthe condition may discourage and desist them even to approachthe Police and would cast shadow of doubt on all members ofthe Scheduled Castes and Scheduled Tribes which cannot be saidto be constitutionally envisaged. Other castes can misuse theprovisions of law; also, it cannot be said that misuse of law takesplace by the provisions of Act of 1989. In case the direction ispermitted to prevail, days are not far away when writ petitionmay have to be filed to direct the appointing authority to considerwhether accused can be arrested or not and as to the reasonsrecorded by the appointing authority to permit or deny the arrest.It is not the function of the appointing authority to intermeddlewith criminal investigation. If at the threshold, approval ofappointing authority is made necessary for arrest, the very purpose

of the Act is likely to be frustrated. Various complications mayarise. Investigation cannot be completed within the specified time,nor trial can be completed as envisaged. Act of 1989 delay wouldbe adding to the further plight of the downtrodden class.

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

63. Inter alia for the reasons as mentioned earlier, we are of theconsidered opinion that requiring the approval of SSP before anarrest is not warranted in such case as that would bediscriminatory and against the protective discrimination envisagedunder the Act. Apart from that, no such guidelines can prevail,which are legislative. When there is no provision for anticipatorybail, obviously arrest has to be made. Without doubting bona fidesof any officer, it cannot be left at the sweet discretion of theincumbent howsoever high. The approval would mean that it canalso be ordered that the person is not to be arrested then how theinvestigation can be completed when the arrest of an incumbent,is necessary, is not understandable. For an arrest of accused sucha condition of approval of SSP could not have been made sinequa non, it may delay the matter in the cases under the Act of1989.

Requiring the Magistrate to scrutinise the reasons forpermitting further detention:

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 sorecorded have to be considered by the Magistrate for permittingfurther detention. In case of approval has not been granted, thisexercise has not been undertaken. When the offence is registeredunder the Act of 1989, the law should take its course no additionalfetter sare called for on arrest whether in case of public servantor non-public servant. Even otherwise, as we have not approvedthe approval of arrest by appointing authority/S.S.P., the directionto record reasons and scrutiny by Magistrate consequently standsnullified.

65. The direction has also been issued that the Dy. S.P. shouldconduct preliminary inquiry to find out whether allegations makeout case under the Atrocities Act, and that the allegations are

not frivolous or motivated. In case cognisable offence is madeout, the FIR has to be outrightly registered, and no preliminaryinquiry has to be made as held in Lalita Kumari (supra) by aConstitution Bench. There is no such provision in the Code ofCriminal Procedure for preliminary inquiry or under the SC/STAct, as such direction is impermissible. Moreover, it is ordered tobe conducted by the person of the rank of Dy. S.P. The numberof Dy. S.P. as per stand of Union of India required for such anexercise of preliminary inquiry is not available. The direction wouldmean that even if complaint made out cognizable offence, anFIR would not be registered until the preliminary inquiry is held.In case preliminary inquiry concludes that allegations are falseor motivated, FIR is not to be registered in such case how afinal report has to be filed in the Court. The direction (iv) cannotsurvive for the other reasons as it puts the members of theScheduled Castes and Scheduled Tribes in disadvantageousposition in the matter of procedure vis-a-vis to the complaintslodged by members of upper caste, for later no such preliminaryinvestigation is necessary, in that view of matter it should not benecessary to hold preliminary inquiry for registering an offenceunder the Atrocities Act of 1989.

66. The creation of casteless society is the ultimate aim. Weconclude with pious hope that day would come, as expectedby the framers of the Constitution, when we do not require anysuch legislation like Act of 1989, and there is no need to providefor any reservation to SCs/STs/OBCs, and only one class of humanexist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equalas per Constitutional goal.

67. We do not doubt that directions encroach upon the field reservedfor the legislature and against the concept of protectivediscrimination 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, we are of theconsidered opinion that direction Nos.(iii) and (iv) issued by thisCourt deserve to be and are hereby recalled and consequentlywe hold that direction No. (v), also vanishes. The review petitionis allowed to the extent mentioned above.”

5. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr.,(1995) 3 SCC 221, this Court has upheld the validity of section 18 of theAct of 1989. This Court 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 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 in accordancewith law. The offences, therefore, which are enumerated underSection 3(1), arise out of the practice of ‘untouchability.’ It is inthis context that certain special provisions have been made in thesaid Act, including the impugned provision under Section 18, whichis before us. The exclusion of Section 438 of the Code of CriminalProcedure in connection with offences under the said Act has tobe viewed 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 thisconnection, 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 isstated:

“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 economicreasons.

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 their self-respector honour of their women, they become irritants for the dominantand the mighty. Occupation and cultivation of even the Governmentallotted land by the Scheduled Castes and Scheduled Tribes isresented, and more often, these people become victims of attacksby the vested interests. Of late, there has been an increase in thedisturbing trend of commission of certain atrocities like makingthe Scheduled Caste persons eat inedible substances like humanexcreta and attacks on and mass killings of helpless ScheduledCastes and Scheduled Tribes and rape of women belonging to theScheduled Castes and the Scheduled Tribes…. special legislationto check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore,become necessary.” The above statement graphically describesthe social conditions which motivated the said legislation. It ispointed out in the above Statement of Objects and Reasons thatwhen members of the Scheduled Castes and Scheduled Tribesassert their rights and demand statutory protection, vested intereststry to cow them down and terrorise them. In these circumstances,if anticipatory bail is not made available to persons who commitsuch offences, such denial cannot be considered as unreasonableor violative of Article 14, as these offences form distinct classby themselves and cannot be compared with other offences.7. We have next to examine whether Section 18 of the said Actviolates, in any manner, Article 21 of the Constitution, whichprotects the life and personal liberty of every person in this country.Article 21 enshrines the right to live with human dignity, preciousright to which every human being is entitled; those who have been,for centuries, denied this right, more so. We find it difficult toaccept the contention that Section 438 of the Code of CriminalProcedure is an integral part of Article 21. In the first place, therewas no provision similar to Section 438 in the old CriminalProcedure Code. The Law Commission in its 41st Report

recommended introduction of provision for grant of anticipatorybail. It observed:

“We agree that this would be useful advantage. Though wemust add that it is in very exceptional cases that such powershould be exercised.” In the light of this recommendation,Section 438 was incorporated, for the first time, in the CriminalProcedure Code of 1973. Looking to the cautiousrecommendation of the Law Commission, the power to grantanticipatory bail is conferred only on Court of Session or theHigh Court. Also, anticipatory bail cannot be granted as matterof right. It is essentially statutory right conferred long afterthe coming into force of the Constitution. It cannot beconsidered as an essential ingredient of Article 21 of theConstitution. And its non-application to certain specialcategory of offences cannot be considered as violative ofArticle 21.

9. Of course, the offences enumerated under the present caseare very different from those under the Terrorists and DisruptiveActivities (Prevention) Act, 1987. However, looking to the historicalbackground relating to the practice of ‘untouchability’ and thesocial attitudes which lead to the commission of such offencesagainst Scheduled Castes and Scheduled Tribes, there isjustification for an apprehension that if the benefit of anticipatorybail is made available to the persons who are alleged to havecommitted such offences, there is every likelihood of their misusingtheir liberty while on anticipatory bail to terrorise their victims andto prevent proper investigation. It is in this context that Section18 has been incorporated in the said Act. It cannot be consideredas 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 societyand 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 keeping

them in state of servitude. These offences constitute separateclass and cannot be compared with offences under the PenalCode.

11. similar view of Section 18 of the said Act has been taken bythe Full Bench of the Rajasthan High Court in the case of JaiBSingh v. Union of India, AIR 1993 Raj 177, and we respectfullyagree with its findings.”

6. This Court in Vilas Pandurang Pawar and Anr. v. State ofMaharashtra and Ors., (2012) 8 SCC 795, has observed thus:

“10. The scope of Section 18 of the SC/ST Act read with SectionC438 of the Code is such that it creates specific bar in the grantof anticipatory bail. When an offence is registered against personunder the provisions of the SC/ST Act, no court shall entertain anapplication for anticipatory bail, unless it prima facie finds thatsuch an offence is not made out. Moreover, while considering theDapplication for bail, scope for appreciation of evidence and othermaterial on record is limited. The court is not expected to indulgein critical analysis of the evidence on record. When provisionhas been enacted in the Special Act to protect the persons whobelong to the Scheduled Castes and the Scheduled Tribes and abar has been imposed in granting bail under Section 438 of theECode, the provision in the Special Act cannot be easily brushedaside by elaborate discussion on the evidence.”

7. This Court in Shakuntla Devi v. Baljinder Singh, (2014) 15SCC 521, has observed thus:

F“4. The High Court has not given any finding in the impugnedorder that an offence under the aforesaid Act is not made outagainst the respondent and has granted anticipatory bail, which iscontrary to the provisions of Section 18 of the aforesaid Act aswell as the aforesaid decision of this Court in Vilas PandurangPawar case, (2012) 8 SCC 795. Hence, without going into theGmerits of the allegations made against the respondent, we set asidethe impugned order of the High Court granting bail to therespondent.”

8. Concerning the provisions contained in section 18A, suffice itto observe that with respect to preliminary inquiry for registration of

FIR, we have already recalled the general directions (iii) and (iv) issuedin Dr. Subhash Kashinath’s case (supra). preliminary inquiry ispermissible only in the circumstances as per the law laid down by aConstitution Bench of this Court in Lalita Kumari v. Government ofU.P., (2014) 2 SCC 1, shall hold good as explained in the order passedby this Court in the review petitions on 1.10.2019 and the amendedprovisions of section 18A have to be interpreted accordingly.

9. The section 18A(i) was inserted owing to the decision of thisCourt in Dr.Subhash Kashinath (supra), which made it necessary toobtain the approval of the appointing authority concerning public servantand the SSP in the case of arrest of accused persons. This Court hasalso recalled that direction on Review Petition (Crl.) No.228 of 2018decided on 1.10.2019. Thus, the provisions which have been made insection 18A are rendered of academic use as they were enacted to takecare of mandate issued in Dr. Subhash Kashinath (supra) which nomore prevails. The provisions were already in section 18 of the Act withrespect to anticipatory bail.

10. Concerning the applicability of provisions of section 438 Cr.PC,it shall not apply to the cases under Act of 1989. However, if the complaintdoes not make out prima facie case for applicability of the provisionsof the Act of 1989, the bar created by section 18 and 18A (i) shall notapply. We have clarified this aspect while deciding the review petitions.

11. The court can, in exceptional cases, exercise power undersection 482 Cr.PC for quashing the cases to prevent misuse of provisionson settled parameters, as already observed while deciding the reviewpetitions. The legal position is clear, and no argument to the contrary hasbeen raised.

12. The challenge to the provisions has been rendered academic.In view of the aforesaid clarifications, we dispose of the petitions.

S. RAVINDRA BHAT, J.

1. I am in agreement with the judgment proposed by Justice ArunMishra as well as its conclusions that the challenge to the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) (Amendment)Act, 2018 must fail, with the qualifications proposed in the judgment

Awith respect to the inherent power of the court in granting anticipatorybail in cases where primafacie an offence is not made out. I wouldhowever, supplement the judgment with my opinion.

2. The Constitution of India is described variously as charter ofgovernance of the republic, as delineation of the powers of the state inBits various manifestations vis-à-vis inalienable liberties and documentdelimiting the rights and responsibilities of the Union and its constituentstates. It is more: it is also pact between people, about the relationshipsthat they guarantee to each other (apart from the guarantee of libertiesvis-à-vis the state) in what was society riven1 along caste and sectarianCdivisions. That is why the preambular assurance that the republic wouldbe one which guarantees to its people liberties, dignity, equality of statusand opportunityand fraternity.

3. It is this idea of India, - promise of oneness of and for, allpeople,regardless of caste, gender, place of birth, religion and otherDdivisions that Part III articulates in four salient provisions: Article 15,Article 17, Article 23 and Article 24. The idea of fraternity occupying ascrucial place in the scheme of our nation’s consciousness and polity, isone of the lesser explored areas in the constitutional discourse of thiscourt. The fraternity assured by the Preamble is not merely declarationof ritual handshake or cordiality between communities that are diverseEand have occupied different spaces: it is far more. This idea findsarticulation in Article 15.[1 ]That provision, perhaps even more than Article14, fleshes out the concept of equality by prohibiting discrimination anddiscriminatory practices peculiar to Indian society. At the center of this

F1 The relevant parts of Article 15 are extracted below:“15. Prohibition of discrimination on grounds of religion, race, caste, sex orplace of birth

(1) The State shall not discriminate against any citizen on grounds only of religion,race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or anyof them, be subject to any disability, liability, restriction or condition with regardGto(a) access to shops, public restaurants, hotels and places of public entertainment;or

(b) the use of wells, tanks, bathing ghats, roads and places of public resortmaintained wholly or partly out of State funds or dedicated to the use of thegeneral public…”

(3)Nothing in this article shall prevent the State from making any special provisionfor women and children”

idea, is that all people, regardless of caste backgrounds, should haveaccess to certain amenities, services and goods so necessary for everyindividual. Article 15 is an important guarantee against discrimination.What is immediately noticeable is that whereas Article 15 (1) enjoins theState (with all its various manifestations, per Article 12) not to discriminateon the proscribed grounds (religion, race, caste, sex (i.e. gender), placeof birth or any of them), Article 15 (2) is wider injunction:it prohibitsdiscrimination or subjection to any disability of anyone on the grounds ofreligion, caste, race, sex or place of birth in regard to access to shops,places of public entertainment, or public restaurants (Article 15 (2) (a)).Article 15(2)(b) proscribes the subjection of anyone to any disability onthe proscribed grounds (i.e. discrimination on grounds of religion, caste,race, sex or place of birth) with regard to “the use of wells, tanks,bathing ghats, roads and places of public resort maintained whollyor partly out of State funds or dedicated to the use of the generalpublic..”

4. The making of this provision- and others, in my view, is impelledby the trinity of the preambular vision that the Constitution makers gaveto this country. Paeans have been sung about the importance of libertyas constitutional value: its manifest articulation in the (original) seven“lamps” -i.e. freedoms under Article 19 of the Constitution; the otherrights to religion, those of religious denominations, etc. Likewise, thecentrality of equality as an important constitutional provision has beenemphasized, and its many dimensions have been commented upon.However, the articulation of fraternity as constitutional value, haslamentably been largely undeveloped. In my opinion, all the three - Liberty,Equality and Fraternity, are intimately linked. The right to equality, sansliberty or fraternity, would be chimerical - as the concept presently knownwould be reduced to equality among equals, in every manner- merehusk of the grand vision of the Constitution. Likewise, liberty withoutequality or fraternity, can well result in the perpetuation of existinginequalities and worse, result in license to indulge in society’s basestpractices. It is fraternity, poignantly embedded through the provisions ofPart III, which assures true equality, where the state treats all alike,assures the benefits of growth and prosperity to all, with equal libertiesto all, and what is more, which guarantees that every citizen treats everyother citizen alike.

A5. When the framers of the Constitution began their daunting task,they had before them formidable duty and stupendous opportunity:of forging nation, out of several splintered sovereign states and citystates, with the blueprint of an idea of India. What they envisioned wasa common charter of governance and equally charter for the people.The placement of the concept of fraternity, in this context was neitherBan accident, nor an idealized emulation of the western notion of fraternity,which finds vision in the French and American constitutions and chartersof independence. It was unique and poignant reminder of societyriven with acute inequalities: more specifically, the practice of castediscrimination in its virulent form, where the essential humanity of aClarge mass of people was denied by society- i.e. untouchability.

6. The resolve to rid society of these millennial practices,consigning large segment of humanity to the eternal bondage of themost menial avocations creating inflexible social barriers, was criticizedby many sages and saints. Kabir, the great saint poet, for instance, in hiscomposition, remarked:D

“If thou thinkest the maker distinguished castes:

Birth is according to these penalties for deeds.

Born Sudra, you die Sudra;

EIt is only in this world of illusion that you assume the sacredthread.

If birth from Brahmin makes you Brahmin,

Why did you not come by another way?

If birth from Turk makes you Turk,F

Why were you not circumcised in the womb?

Saith Kabir, renounce family, caste, religion, and nation,

And live as one.”G

7. There were several others who spoke, protested, or spokeagainst the pernicious grip of social inequity due to caste oppression ofthe weakest and vulnerable segments of society. Guru Nanak, for instance,stated[2]

H2 Guru Granth Saheb p.83

“Caste and dynastic pride are condemnable notions,the one master shelters all existence.Anyone arrogating superiority to himself haltbe disillusioned. Saith Nanak:superiority shall be determined by God”

The Guru Granth Saheb also states that

“All creatures are noble, none low,

One sole maker has all vessels fashioned;

In all three worlds is manifest the same light…”

8. The preamble to the Constitution did not originally contain theexpression “fraternity”; it was inserted later by the Drafting Committeeunder the chairmanship of Dr. Ambedkar. While submitting the draftConstitution, he stated, on 21 February, 1948, that the Drafting Committeehad added clause about fraternity in the Preamble even though it wasnot part of the Objectives Resolution because it felt that “the need forfraternal concord and goodwill in India was never greater thannow, and that this particular aim of the new Constitution should beemphasized by special mention in the Preamble”[3]. Pandit Thakur DasBhargava expressed “sense of gratitude to Dr. Ambedkar for havingadded the word “fraternity” to the Preamble”. Acharya Kripalanialso emphasized on this understanding, in his speech on 17 October,1949:

“Again, I come to the great doctrine of fraternity, which isallied with democracy. It means that we are all sons of thesame God, as the religious would say, but as the mystic wouldsay, there is one life pulsating through all of us, or as theBible says, “We are one of another”. There can be nofraternity without this.”

9. This court too, has recognized and stressed upon the need torecognize fraternity as one of the beacons which light up the entireConstitution. Justice Thommen, in Indira Sawhney v Union of India[4]said this:

3 B. Shiva Rao: Framing of India’s Constitution Vol III, page 510 (1968)

4 1992 Supp (3) SCR 454

“The makers of the Constitution were fully conscious of theunfortunate position of the Scheduled Castes and ScheduledTribes. To them equality, liberty and fraternity are but dream;an ideal guaranteed by the law, but far too distant to reach;far too illusory to touch. These backward people and othersin like positions of helplessness are the favoured children ofthe Constitution. It is for them that ameliorative and remedialmeasures are adopted to achieve the end of equality. To permitthose who are not intended to be so specially protected tocompete for reservation is to dilute the protection and defeatthe very constitutional aim.”

10. In Raghunathrao Ganpatrao v. Union of India[5] this court

held:

“In our considered opinion this argument is misconceived andhas no relevance to the facts of the present case. One of theobjectives of the Preamble of our Constitution is ‘fraternityassuring the dignity of the individual and the unity andintegrity of the nation.’ It will be relevant to cite the explanationgiven by Dr. Ambedkar for the word ‘fraternity’ explainingthat ‘fraternity means sense of common brotherhood of allIndians.’ In country like ours with so many disruptive forcesof regionalism, communalism and linguism, it is necessary toemphasise and re-emphasise that the unity and integrity ofIndia can be preserved only by spirit of brotherhood. Indiahas one common citizenship and every citizen should feel thathe is Indian first irrespective of other basis. In this view, anymeasure at bringing about equality should be welcome.”

11. In similar vein, the court in Nandini Sundar v. State ofChhatisgarh[6] again commented on this aspect and said that “t(T)heConstitution itself, in no uncertain terms, demands that the Stateshall strive, incessantly and consistently, to promote fraternityamongst all citizens such that dignity of every citizen is protected,Gnourished and promoted.”

12. It was to achieve this ideal of fraternity, that the threeprovisions- Articles 15, 17 and 24 were engrafted. Though Article 17proscribes the practice of untouchability and pernicious practices

5 1993 (1) SCR 480H6 2011 (7) SCC 457

associated with it, the Constitution expected Parliament and thelegislatures to enact effective measures to root it out, as well as allother direct and indirect, (but virulent nevertheless) forms of castediscrimination. Therefore, in my opinion, fraternity is as important afacet of the promise of our freedoms as personal liberty and equality is.The first attempt by Parliament to achieve that end was the enactmentof the Untouchability (Offences) Act, 1955. The Act contained asignificant provision that where any of the forbidden practices “iscommitted in relation to member of Scheduled Caste” the Courtshall presume, unless the contrary is proved, that such act was committedon the ground of “Untouchability”. This implied that the burden of prooflies on the accused and not on the prosecution. The Protection of CivilRights Act, 1955, followed. This too made provision for prescribing“punishment for the preaching and practice of - “Untouchability”for the enforcement of any disability arising therefrom”. Theenforcement of social practices associated with untouchability anddisabilities was outlawed and made the subject matter of penalties. Afternearly 35 years’ experience, it was felt that the 1955 Act (which wasamended in 1976) did not provide sufficient deterrence to social practices,which continued unabated and in widespread manner, treating membersof the scheduled caste and tribe communities in the most discriminatorymanner, in most instances, stigmatizing them in public places, virtuallydenying them the essential humanity which all members of Society areentitled to.13. It was to address this gulf between the rights which theConstitution guaranteed to all people, particularly those who continuedto remain victims of ostracism and discrimination, that the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989(hereafter “the Act”) was enacted. Rules under the Act were framed in1995 to prevent the commission of atrocities against members ofSchedules Castes and Tribes, to provide for special courts for the trial ofsuch offences and for the relief and rehabilitation of the victims of suchoffences and for matters connected therewith or incidental thereto. TheStatement of Objects and Reasons appended to the Bill, when moved inthe Parliament, observed that despite various measures to improve thesocio-economic conditions of Scheduled Castes and Scheduled Tribes,they remained vulnerable. They are denied number of civil rights andare subjected to various offences, indignities, humiliation and harassment.They have been, in several brutal instances, deprived of their life andproperty. Serious atrocities were committed against them for various

ABCDE

FGH

Ahistorical, social and economic reasons. The Act, for the first time, putsdown the contours of ‘atrocity’ so as to cover the multiple ways throughwhich members of scheduled castes and scheduled tribes have been forcenturies humiliated, brutally oppressed, degraded, denied their economicand social rights and relegated to perform the most menial jobs.

B14. The Report on the Prevention of Atrocities against ScheduledCastes[7] vividly described that despite enacting stringent penal measures,atrocities against scheduled caste and scheduled tribe communitiescontinued; even law enforcement mechanisms had shown lackadaisicalapproach in the investigation and prosecution of such offences. Thereport observed that in rural areas, various forms of discrimination andCpractices stigmatizing members of these communities continued.Parliament too enacted an amendment to the Act in 2015, strengtheningits provisions in the light of the instances of socially reprehensive practicesthat members of scheduled caste and scheduled tribe communities weresubjected to. In this background, this court observed in the decision inNational Campaign on Dalit Human Rights v. Union of India[8] that:D

“The ever-increasing number of cases is also an indicationto show that there is total failure on the part of the authoritiesin complying with the provisions of the Act and the Rules.Placing reliance on the NHRC Report and other reports, thePetitioners sought mandamus from this Court for effectiveEimplementation of the Act and the Rules.

12. We have carefully examined the material on record andwe are of the opinion that there has been failure on the partof the concerned authorities in complying with the provisionsof the Act and Rules. The laudable object with which the ActFhad been made is defeated by the indifferent attitude of theauthorities. It is true that the State Governments are responsiblefor carrying out the provisions of the Act as contended by thecounsel for the Union of India. At the same time, the CentralGovernment has an important role to play in ensuring thecompliance of the provisions of the Act. Section 21(4) of theGAct provides for report on the measures taken by the CentralGovernment and State Governments for the effective

7 Published by the National Human Rights Commission (accessed at https://nhrc.nic.in/-publications/otherpublicationss on 15 December, 2019 at 08:27 hrs)8 (2017) 2 SCC 432H

implementation of the Act to be placed before the Parliamentevery year. The constitutional goal of equality for all thecitizens of this country can be achieved only when the rightsof the Scheduled Castes and Scheduled Tribes are protected.The abundant material on record proves that the authoritiesconcerned are guilty of not enforcing the provisions of theAct. The travails of the members of the Scheduled Castes andthe Scheduled Tribes continue unabated. We are satisfied thatthe Central Government and State Governments should bedirected to strictly enforce the provisions of the Act and wedo so.”

15. In Subhash Kashinath Mahajan v. State of Maharashtra& Ors[9], two judge bench of this court held that the exclusion ofanticipatory bail provisions of the Code of Criminal Procedure (by Section18 of the Act) did not constitute an absolute bar for the grant of bail,where it was discernable to the court that the allegations about atrocitiesor violation of the provisions of the Act were false. It was also held,more crucially, that public servants could be arrested only after approvalby the appointing authority (of such public servant) and in other cases,after approval by the Senior Superintendent of Police. It was also directedthat cases under the Act could be registered only after preliminaryenquiry into the complaint. These directions were seen to be contrary tothe spirit of the Act and received considerable comment in the publicdomain; the Union of India too moved this court for their review. In thereview proceedings, three judge bench of this court, in Union of Indiav. State of Maharastra[10] recalled and overruled those directions.

16. In the meanwhile, Parliament enacted the amendment of2018[11] (by Act No. 27 of 2019), which is the subject matter of challenge

9 2018 (4) SCC 454

10 2019 (13) SCALE 280

11 The operative part of the amendment, brief one, reads as follows:“ 2. After section 18 of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989, the following section shall be inserted,namely:—

“18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not berequired for registration of First Information Report against any person; or(b) the investigating officer shall not require approval for the arrest, if necessary,of any person, against whom an accusation of having committed an offenceunder this Act has been made and no procedure other than that provided underthis Act or the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to case underthis Act, notwithstanding any judgment or order or direction of any Court.”.

CDE

Ain these proceedings. The clear intention of Parliament was to undo theeffect of this court’s declaration in Subhash Kashinath Mahajan(supra). The provisions of the amendment expressly override thedirections in Subhash Kashinath Mahajan, that preliminary inquirywithin seven days by the Deputy Superintendent of Police concerned, tofind out whether the allegations make out case under the Act, and thatBarrest in appropriate cases may be made only after approval by theSenior Superintendent of Police. The Parliamentary intent was to allaythe concern that this would delay registration of First Information Report(FIR) and would impede strict enforcement of the provision of the Act.17. The judgment of Mishra, J has recounted much of the discussionCand reiterated the reasoning which led to the recall and review of thedecision in Subhash Kashinath Mahajan (supra); I respectfully adoptthem. I would only add that any interference with the provisions of theAct, particularly with respect to the amendments precluding preliminaryenquiry, or provisions which remove the bar against arrest of publicDservants accused of offences punishable under the Act, would not be apositive step. The various reports, recommendations and official data,including those released by the National Crime Records Bureau[12], painta dismal picture. The figures reflected were that for 2014, instances ofcrimes recorded were 40401; for 2015, the crime instances recordedwere 38670 and for 2016, the registered crime incidents were 40801.EAccording to one analysis of the said 2016 report[13], 422,799 crimesagainst scheduled caste communities’ members and 81,332 crimes againstscheduled tribe communities’ members were reported between 2006and 2016.

18. These facts, in my opinion ought to be kept in mind by courtsFwhich have to try and deal with offences under the Act. It is importantto keep oneself reminded that while sometimes (perhaps mostly in urbanareas) false accusations are made, those are not necessarily reflectiveof the prevailing and wide spread social prejudices against members ofthese oppressed classes. Significantly, the amendment of 2016, in theGexpanded definition of ‘atrocity’, also lists pernicious practices (underSection 3) including forcing the eating of inedible matter, dumping of

12 http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf containingstatistics relating to crime against members of scheduled caste and scheduled tribepopulations

13 Indiaspend https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-Hby-746-746/

excreta near the homes or in the neighbourhood of members of suchcommunities and several other forms of humiliation, which members ofsuch scheduled caste communities are subjected to. All theseconsiderations far outweigh the petitioners’ concern that innocentindividuals would be subjected to what are described as arbitraryprocesses of investigation and legal proceedings, without adequatesafeguards. The right to trial with all attendant safeguards are availableto those accused of committing offences under the Act; they remainunchanged by the enactment of the amendment.

19. As far as the provision of Section 18A and anticipatory bail isconcerned, the judgment of Mishra, J, has stated that in cases where noprima facie materials exist warranting arrest in complaint, the courthas the inherent power to direct pre-arrest bail.

20. I would only add caveat with the observation and emphasizethat while considering any application seeking pre-arrest bail, the HighCourt has to balance the two interests: i.e. that the power is not so usedas to convert the jurisdiction into that under Section 438 of the CriminalProcedure Code, but that it is used sparingly and such orders made invery exceptional cases where no prima facie offence is made out asshown in the FIR, and further also that if such orders are not made inthose classes of cases, the result would inevitably be miscarriage ofjustice or abuse of process of law. I consider such stringent terms,otherwise contrary to the philosophy of bail, absolutely essential, becausea liberal use of the power to grant pre-arrest bail would defeat the intentionof Parliament.21. It is important to reiterate and emphasize that unless provisionsof the Act are enforced in their true letter and spirit, with utmostearnestness and dispatch, the dream and ideal of casteless society willremain only dream, mirage. The marginalization of scheduled casteand scheduled tribe communities is an enduring exclusion and is basedalmost solely on caste identities. It is to address problems of segmentedsociety, that express provisions of the Constitution which give effect tothe idea of fraternity, or bandhutva (cU/kqRo) referred to in the Preamble,and statutes like the Act, have been framed. These underline the social– rather collective resolve – of ensuring that all humans are treated ashumans, that their innate genius is allowed outlets through equalopportunities and each of them is fearless in the pursuit of her or hisdreams. The question which each of us has to address, in everyday life,

Ais can the prevailing situation of exclusion based on caste identity beallowed to persist in democracy which is committed to equality and therule of law? If so, till when? And, most importantly, what each one of uscan do to foster this feeling of fraternity amongst all sections of thecommunity without reducing the concept (of fraternity) to ritualisticformality, tacit acknowledgment, of the “otherness” of each one’sBidentity.

22. I am of the opinion that in the light of and subject to the aboveobservations, the petitions have to be and are, accordingly disposed of.

CDivya Pandey

Petitions disposed of.