Updated: Mar 29
This article has been authored by Savita Gangwar, a third-year student at Army Institute of Law, Mohali.
“The purification required is not of untouchables but of the so- called superior castes”
India got independence 74 years ago, Indians celebrate the adoption of the Constitution every year on 26th January where they take the pledge to treat all Indians as their brothers and sisters. We still have the provision of Article 17 of the Constitution prohibiting ‘Untouchability’. We have acts like Scheduled Castes and Scheduled Tribes Act, 1989, protecting the depressed classes. The Dalit dilemma in India still reads like an entire data sheet of tragedies.
In India, around 240 million people are Dalits, which is nearly 25% of India’s population. According to the National Crime Records Bureau report, 2019, crimes against members of Scheduled Castes and Scheduled Tribes (‘SCs/STs’) communities increased by 7.3% and 26.5% respectively. Total of 45,935 and 8,257 cases of crimes and atrocities were recorded against the Dalit and Tribal people respectively. The shooting rates of atrocities against them were the major reason for the enactment of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the Act’) so that these marginalized communities are protected against discrimination and atrocities. In 2018, the Act was amended and S. 18A was added which reversed the decision of the Supreme Court (‘SC’) in Subhash Kashinath Mahajan v. State of Maharashtra.
Historical Aspect of the Act
The Act was passed by Parliament in September 1989 to provide a shield to the members of the depressed classes against derogatory caste-based offences committed by the non-members. It was made for the purpose of providing justice and equitableness so that their rights are not transgressed by a few dominant citizens. Our constitution permits for framing such laws which ensure welfare of these members, with a view that it would improve their condition in the society and protect them from the shackles of Untouchability.
The offences which these members are likely to face are enlisted in S. 3(1) of the said Act. The Act gives special protection to the members of the depressed classes and punishes those who commit crimes against them. The provision of S. 18 of the Act that mentions the non- application of S. 438 of CrPC which says that anticipatory bail shall not be given to the accused for the atrocities made against these members under the Act, was also added keeping in mind the prevailing social-economic positions of these members. When these members ask for their rights and demand statutory protection, the accused try to cow them down and terrorize them. In these circumstances, if anticipatory bail is not provided, it is not discriminatory or violation of Article 14 of the Constitution as these offences are counted in a separate class and cannot be compared with other offences.
Need of the Amendment Act, 2018
On March 20, 2018, the Apex/Supreme Court in Subhash Kashinath v. State of Maharashtrapassed a judgment which diluted S. 18 of the Act. In this case the Petitioner had filed a petition in SC with reference to the violation of fundamental rights of non-members of SCs/STs provided under Article 22 read with Article 21 of the Indian Constitution. It was claimed that there are times when members of SCs/STs allegedly lodge false complaints. In these cases, the respondent is left with no option but facing immediate arrest. He is not given a chance to prove his innocence and is deprived of Natural Justice.
Realizing that the Act was being misused, the court diluted S.18 and listed safeguards to prevent this misuse. The SC held that there shall be no absolute bar against the grant of anticipatory bail for the cases that fall under this Act. Further the court ruled that a preliminary enquiry may be conducted by the concerned Deputy Superintendent of Police rank-officer (‘DSP’) to ascertain whether the allegations form a case under the Act or not and the same are not instigated before registration of First Information Report (‘FIR’). Further, the arrest for the offences can only be done with the prior approval of appointing authority in public cases and Senior Superintendent of Police rank-officer (‘SSP’) in other cases. Such reasons must be further inspected by the Magistrate for upholding detention.
This decision was highly criticized by the society and lead to huge uproar. With the onset of various protests and violence, Central Government was compelled to look into the matter in depth and comprehended that the exploitation of the members of SCs/STs was still prevalent in the society. Offences under S. 3(1) of the Act fall in a very special class and arise out of Untouchability. Hence, government brought an Amendment in the Act whereby S. 18A was introduced for the protection of the members of the depressed class.
What is Amendment Act, 2018?
Right to live with dignity and self-respect is a part of Right to life under Article 21 of the Constitution. Commission of offences mentioned under S. 3(1) of the Act violates this principle. Denial of anticipatory bail in the offences committed under the act, in no way deprives the fundamental right of accused, as held in Kartar Singh v. State of Punjab. Amendment in the Act was made on August 17, 2018, whereby S. 18A was added which says that preliminary inquiry shall not be required for the registration of FIR and investigating officer is not obliged to take permission before arresting the accused. This concept was taken from SC judgment of Lalita Kumari v. State of UP, where it was held that if the offence is cognizable, preliminary enquiry before registration of FIR will not be made. Also, Anticipatory Bail under S. 438 of CrPC will not be given to the accused, notwithstanding any judgment or order or any direction given by any court except in the case where it is prima facie that the accused is innocent and the case has been filed with wrong intention.
This amendment was upheld by SC in Prathvi Raj Chauhan v. Union of India and reversed its own landmark judgment of Subhash Kashinath case. Therein the 3-judge bench discovered and exclaimed that it is difficult to treat S. 438 as an integral part of Article 21. Anticipatory bail cannot be granted as a matter of right and its non-application in certain special category of offences cannot be said as violation of Article 21.
Considering the historical background of untouchability and the social attitude which leads to offences subjugating and humiliating members of SCs/STs, it can be inferred that if anticipatory bail is given to such people, there is every possibility that the accused will take advantage of his liberty and hinder a proper investigation.
Contribution to the Constitutionality of 2018 Amendment
As members of SCs/STs are still struggling for equality and exercising civil rights, so the right of protective discrimination has been provided to them. Union of India v. State of Maharashtra partially set aside the decision made in Subhash Kashinath case. The bench showed a rigorous objection and it exclaimed that if these members are deprived of the right of protective discrimination then it would be very difficult for the state to bridge the gap between the depressed and the other people of the society. It would be against the very spirit of Indian constitution.
It is unjust to assume that all the members of SCs/STs, who file a complaint against the offences made upon them, as liars or crooks and not looking at every complaint with a doubt. The depressed hardly have courage to lodge a false FIR against any person of elite class. Still there may be cases where it is filed with mala fide intention, but in those cases court can make an interference and take care of the situation by making use of S. 482 of CrPC.
This case was indeed of great help to the judiciary in bringing the constitutionality of Amendment Act 2018.
The call of the moral attitude for the equality value is that “Equals must be treated equally. Unequal must be treated unequally, not to perpetuate the existing inequalities but to achieve and maintain a real state of effective equality”[i]. The framers of the constitution were aware of the fact that in a caste ridden society like India, absolute equality would in fact perpetuate inequality. In order to resolve such loopholes, Articles 15(4) and 16(3) of the Constitution aim to ensure the protective discrimination to elevate the deprived and oppressed. For providing a strong shield to the depressed class against the crimes committed by upper class people, 1989 Act came into picture. Moreover, S. 18 was added to ensure the application of protective discrimination. SC in Union of India v. State of Maharashtra exclaimed that any dilution in S. 18 would shake the very objective of the mechanism to prevent the offences of atrocities.
Though, by upholding the constitutional validity of Amendment Act, 2018, SC explicitly mentioned that S. 18A will not be applied in cases where complaint is prima facie made with mala fide intention and can be quashed under S. 482 of CrPC. In the very recent case of Pavas Sharma v. State of Chhattisgarh[ii], High Court observed that the offence under S. 3(2)(v) was prima facie made out and thus court granted anticipatory bail to the accused.
Hence, with the enactment of Amendment Act, 2018 welfare of not only the depressed class is covered but with the exception of granting anticipatory or pre-arrest bail in extraordinary situations where a denial of bail would mean miscarriage of justice, the fairness to other classes is also ensured. The constitutional validity of the Amendment Act, 2018 thus holds good position in the society.