TaxTMI 
TaxTMI 
2020 (2) TMI 1705
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....Reetu Sharma, Nihal Ahmad, Kunal Yadav, Neena Shukla, Alok Shukla, Manoj Gorkela, Hemlata Kharayat, Ram Srivastava, Sandeep Kumar Singh, Advs. for Gorkela Law Office, K. Paari Vendhan, Nilesh Ukey, Sabarish Subramanian, Prabu Ramasubramanian, Y. William Vinoth Kumar, Vishnu Unnikrishnan, Disha Wadekar, Paras Nath Singh, Avijit Bhattacharjee, Upma Shrivastava, Ajoy Kumar Ghosh, Abhay Kant Mishra, G. Prakash, Jishnu M.L., Priyanka Prakash, Beena Prakash, Prakash Sharma, Anuj Saxena, Arup Banerjee, Mohd. Naved, Susheel Tomar, Balraj Dewan, Smarhar Singh, Kumar Parimal, Fuzail Ahmad Ayyubi, Varinder Kumar Sharma, Anilendra Pandey and Pooja Dhar, Advs. JUDGMENT Arun Mishra, J. 1. The Petitioners have questioned the provisions inserted by way of carving out Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as well as Section 18A, are reproduced hereunder: 18. Section 438 of the Code not to apply to persons committing an offence under the Act.--Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under ....
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....sused as such the amendment is arbitrary, unjust, irrational and violative of Article 21 of the Constitution of India. There could not have been any curtailment of the right to obtain anticipatory bail Under Section 438 Code of Criminal Procedure Prior scrutiny and proper investigation are necessary. Most of the safeguards have been provided under the Act of 1989 to prevent undue harassment. This Court has struck down the provision of Section 66A of the Information Technology Act on the ground of violation of fundamental rights; on the same anvil, the provisions of Section 18A of the Act of 1989 deserve to be struck down. 4. It is not disputed at the Bar that the provisions in Section 18A in the Act of 1989 had been enacted because of the judgment passed by this Court in Dr. Subhash Kashinath's case (supra), mainly because of direction Nos. (iii) to (v) contained in para 83. The Union of India had filed review petitions, and the same have been allowed, and direction Nos. (iii) to (v) have been recalled. Thus, in view of the judgment passed in the review petitions, the matter is rendered of academic importance as we had restored the position as prevailed by various judgments ....
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.... The Commission has noted with concern that instances of procedural lapses are frequent while dealing atrocity cases by both police and civil administration. There are delays in the judicial process of the cases. The Commission, therefore, identified lacunae commonly noticed during police investigation, as also preventive/curable actions the civil administration can take. NCSC recommends the correct and timely application of SC/ST (PoA) Amendment Act, 2015 and Amendment Rules of 2016 as well as the following for improvement: 8.6.1 Registration of FIRs - The Commission has observed that the police often resort to preliminary investigation upon receiving a complaint in writing before lodging the actual FIRs. As a result, the SC victims have to resort to seeking directions from courts for registration of FIRs Under Section 156(3) of Code of Criminal Procedure. Hon'ble Supreme Court has also on more than one occasion emphasized about registration of FIR first. This Commission again reemphasizes that the State/UT Governments should enforce prompt registration of FIRs. 40. The learned Attorney General pointed out that the statistics considered by the Court in th....
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....son of higher class on equal footing? Whether we have been able to reach that level of psyche and human dignity and able to remove discrimination based upon caste? Whether false guise of cleanliness can rescue the situation, how such condition prevails and have not vanished, are we not responsible? The answer can only be found by soul searching. However, one thing is sure that we have not been able to eradicate untouchability in a real sense as envisaged and we have not been able to provide down-trodden class the fundamental civil rights and amenities, frugal comforts of life which make life worth living. More so, for Tribals who are at some places still kept in isolation as we have not been able to provide them even basic amenities, education and frugal comforts of life in spite of spending a considerable amount for the protection, how long this would continue. Whether they have to remain in the status quo and to entertain civilized society? Whether under the guise of protection of the culture, they are deprived of fruits of development, and they face a violation of traditional rights? 43. In Khadak Singh v. State of Himachal Pradesh AIR 1963 SC 1295, this Court has obser....
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....itizen Under Article 21 as observed by this Court in Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, Kishore Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian Swamy v. Union of India, (2016) 7 SCC 221. The provisions of the Act of 1989 are, in essence, concomitants covering various facets of Article 21 of the Constitution of India. 46. They do labour, bonded or forced, in agricultural fields, which is not abrogated in spite of efforts. In certain areas, women are not treated with dignity and honour and are sexually abused in various forms. We see sewer workers dying in due to poisonous gases in chambers. They are like death traps. We have not been able to provide the masks and oxygen cylinders for entering in sewer chambers, we cannot leave them to die like this and avoid tortious liability concerned with officials/machinery, and they are still discriminated within the society in the matter of enjoying their civil rights and cannot live with human dignity. 47. The Constitution of India provides equality before the law under the provisions contained in Article 14. Article 15(4) of the Constitution carves out an exception for making any ....
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....ound to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding Under Section 482 of the Code of Criminal Procedure. 50. The data of National Crime Records Bureau, Ministry of Home Affairs, has been pointed out on behalf of Union of India which indicates that more than 47,000 cases were registered in the 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 of the provisions of the Act. 51. As a matter of fact, members of the Scheduled Castes and Scheduled Tribes have suffered for long, hence, if we cannot provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality and against the very spirit of our Constitution. It would be against the basic human dignity to treat all of them as a liar or....
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....cribed under the Code of Criminal Procedure and contrary to the law laid down by this Court in Lalita Kumari (supra). 54. The guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221. The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created Under Section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above. In Kartar Singh (supra), a Constitution Bench of this Court has laid down that taking away the said right of anticipatory bail would not amount to a 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 mentioned above. 55. That apart directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment ma....
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....ound realities of the offence that has been committed, and arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself. Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of appointing authority, it is wholly extra-statutory. In case appointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as there is no provision for grant of anticipatory bail. It would tantamount to take away functions of Court. To decide whether an Accused is entitled to bail Under Section 438 in case no prima facie case is made out or Under Section 439 is the function of the Court. The direction of appointing authority not to arrest may create conflict with the provisions of Act of 1989 and is without statutory basis. 60. By the guidelines issued, the anomalous situation may crop up in several cases. In case the appointing authority forms a view that as there is no prima facie case the incumbent is not to be arrested, ....
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....eny the arrest. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged. Act of 1989 delay would be adding to the further plight of the downtrodden class. In ref: approval of arrest by the SSP in the case of a non-public servant: 63. Inter alia for the reasons as mentioned earlier, we are of the considered opinion that requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, obviously arrest has to be made. Without doubting bona fides of any officer, it cannot be left at the sweet discretion of the incumbent howsoever high. The approval would mean that it can also be ordered that the person is not to be arrested then....
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....aints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act of 1989. 66. The creation of a casteless society is the ultimate aim. We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like Act of 1989, and there is no need to provide for any reservation to SCs/STs/OBCs, and only one class of human exist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equal as per Constitutional goal. 67. We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of down-trodden classes Under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers Under Article 142 of Constitution of India. Resultantly, we are of the considered opinion that direction Nos. (iii) and (iv) issued by this Court deserve to be....
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....n deprived of their life and property. Serious crimes are committed against them for various historical, social, and economic reasons. 2. ... When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented, and more often, these people become victims of attacks by the vested interests. of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes.... A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled ....
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.... looking to the historical background relating to the practice of 'untouchability' and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21. 10. It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is not available for even "minor offences" under the said Act. This grievance also cannot be justified. The offences which are enumerated Under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Sche....
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.... laid down by a Constitution Bench of this Court in Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed by this Court in the review petitions on 1.10.2019 and the amended provisions of Section 18A have to be interpreted accordingly. 9. The Section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra), which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of Accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in Section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail. 10. Concerning the applicability of provisions of Section 438 Code of Criminal Procedure, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989....
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....ces: it is far more. This idea finds articulation in Article 15. The relevant parts of Article 15 are extracted below: "15. Prohibition of discrimination on grounds of religion, race, caste, sex or place 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 any of them, be subject to any disability, liability, restriction or condition with regard to (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 resort maintained wholly or partly out of State funds or dedicated to the use of the general public..." (3) Nothing in this Article shall prevent the State from making any special provision for women and children" That provision, perhaps even more than Article 14, fleshes out the concept of equality by prohibiting discrimination and discriminatory practices peculiar to Indian society. At the center of this idea, is that all people, regardless o....
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.... growth and prosperity to all, with equal liberties to all, and what is more, which guarantees that every citizen treats every other citizen alike. 17. When the framers of the Constitution began their daunting task, they had before them a formidable duty and a stupendous opportunity: of forging a nation, out of several splintered sovereign states and city states, with the blueprint of an idea of India. What they envisioned was a common charter of governance and equally a charter for the people. The placement of the concept of fraternity, in this context was neither an accident, nor an idealized emulation of the western notion of fraternity, which finds vision in the French and American constitutions and charters of independence. It was a unique and poignant reminder of a society riven with acute inequalities: more specifically, the practice of caste discrimination in its virulent form, where the essential humanity of a large mass of people was denied by society- i.e. untouchability. 18. The resolve to rid society of these millennial practices, consigning a large segment of humanity to the eternal bondage of the most menial avocations creating inflexible social barriers, was c....
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....mystic would say, there is one life pulsating through all of us, or as the Bible says, "We are one of another". There can be no fraternity without this. 21. This Court too, has recognized and stressed upon the need to recognize fraternity as one of the beacons which light up the entire Constitution. Justice Thommen, in Indira Sawhney v. Union of India 1992 Supp (3) SCR 454 said this: The makers of the Constitution were fully conscious of the unfortunate position of the Scheduled Castes and Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch. These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim. 22. In Raghunathrao Ganpatrao v. Union of India 1993 (1) SCR 480 this Court held: In our considered opinion this argument is misconceived and ....
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....sability arising therefrom". The enforcement of social practices associated with untouchability and disabilities was outlawed and made the subject matter of penalties. After nearly 35 years' experience, it was felt that the 1955 Act (which was amended in 1976) did not provide sufficient deterrence to social practices, which continued unabated and in a widespread manner, treating members of the scheduled caste and tribe communities in the most discriminatory manner, in most instances, stigmatizing them in public places, virtually denying them the essential humanity which all members of Society are entitled to. 25. It was to address this gulf between the rights which the Constitution guaranteed to all people, particularly those who continued to remain victims of ostracism and discrimination, that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter "the Act") was enacted. Rules under the Act were framed in 1995 to prevent the commission of atrocities against members of Schedules Castes and Tribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matter....
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....f the concerned authorities in complying with the provisions of the Act and Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act as contended by the counsel for the Union of India. At the same time, the Central Government has an important role to play in ensuring the compliance of the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before the Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities concerned are guilty of not enforcing the provisions of the Act. The travails of the members of the Scheduled Castes and the Scheduled Tribes continue unabated. We are satisfied that the Central Government and State Governments should be directed to strictly enforce the provisions of the ....
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.... the Deputy Superintendent of Police concerned, to find out whether the allegations make out a case under the Act, and that arrest in appropriate cases may be made only after approval by the Senior Superintendent of Police. The Parliamentary intent was to allay the concern that this would delay registration of First Information Report (FIR) and would impede strict enforcement of the provision of the Act. 29. The judgment of Mishra, J has recounted much of the discussion and reiterated the reasoning which led to the recall and review of the decision in Subhash Kashinath Mahajan (supra); I respectfully adopt them. I would only add that any interference with the provisions of the Act, particularly with respect to the amendments precluding preliminary enquiry, or provisions which remove the bar against arrest of public servants Accused of offences punishable under the Act, would not be a positive step. The various reports, recommendations and official data, including those released by the National Crime Records Bureau http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table 7A.1. pdf containing statistics relating to crime against members of scheduled caste and scheduled tribe pop....