This article is written by Chaitanya Verma of Rajiv Gandhi National University of Law.
Decoding the Judgment of Dr. Subash Kashinath Mahajan v. State of Maharastra – Prevention of Atrocity Act, 1989
‘Let a hundred guilty be acquitted, but one innocent should not be convicted.’
The aforementioned statement is one of the basic cardinal tenets of Indian Criminal Jurisprudence.
Courts, as institutions, are principled pragmatist sentinel and judges, while deciding issues, even economic, cultural, technological or political, which reach the adjudicatory authority of the high bench, consider solutions, after due hearing not from the impossible perspective of perfection but from the humanist approach of what is best under the circumstances, constitutionally acceptable and values inscribed in the constitution and statutes.
Perfect justice is a mirage. In the Pursuit of the illusion of perfect justice, we jeopardize the justice that lies within our grasp. In the words of great Oliver Wendell Holmes: ‘Of relative justice, the law may know something; of expediency, it knows much; with absolute justice, it does not concern itself’. So I would like to proceed with relative justice.
In the recent times, Hon’ble Supreme Court of India has given two perspicacious judgments, dispensing its duty as the arbiter of justice and imposing check and balance. First one is laying down the guidelines to immune the innocent people from falsely getting arrested under Prevention of Atrocities Act, 1989 and another is also of same nature under Section – 498A of IPC. After perusal of both the orders, it is evident that there is a misuse of power granted by law in order to protect the rights of SCs and STs and Women. It is the misfortune of this country that both the orders of the Hon’ble court has been misconstrued. I will be drawing the attention on Hon’ble SC’s ruling in Dr. Subash Kashinath Mahajan’s case. Hon’ble Sc has laid down four guidelines, which are as follows:
• There is no absolute bar against the grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
• In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, the arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
• To avoid the false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
• Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
We have witnessed hue and cry against this order of Hon’ble SC. It is pertinent to put emphasis on one of the most relevant observations made by Hon’ble Court:
The underprivileged need to be protected against any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions in decisions referred to above. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This Court must enforce such a guarantee. Law should not result in caste hatred. The preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity.
These lines can also be considered as the gist of this case. In the Present case the charges were framed under the under Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) as also Sections 182, 192, 193, 203 and 219 read with 34 of the Indian Penal Code, 1860 (IPC).
Shri Amrendra Sharan, learned senior counsel, who appeared as amicus in instant case and he substantiated all the charges which were levied against the accused (he was serving as Director of Technical Education in the State of Maharashtra at the relevant time) and none of the charges was able to stand the scrutiny of amicus and court found merit in submission of learned amicus and quashed the proceeding against the appellant.
Now several questions have been raised about this judgement and many have claimed that instant judgement has rendered the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, toothless.
The court has extensively and exhaustively deliberated on various issues before issuing the guidelines.
The rationale behind imposing a restriction on the arrest of Public and non- public Servant, which is now to be done after the prior permission of Appointing authority in terms of a public servant and S.S.P in terms of Non- Public Servant, is:
• Under the scheme of the Atrocities Act, several offences may solely depend upon the version of the complainant which may not be found to be true. There may not be any other tangible material. One-sided version, before trial, cannot displace the presumption of innocence.
• Referring to Section 41(1)(b) Cr.P.C. that arrest could be effected only if there was ‘credible’ information and only if the police officer had ‘reason to believe’ that the offence had been committed and that such arrest was necessary. Thus, the power of arrest should be exercised only after complying with the safeguards intended under Sections 41 and 41A Cr.P.C.
• To balance the right of liberty of the accused guaranteed under Article 21, which could be taken away only by just, fair and reasonable procedure and to check abuse of power by police and injustice to a citizen.
The matter of Anticipatory bail to be granted to accuse is not exclusive but subject to some restrictions. The court has analyzed the repercussion of this; it has taken into consideration the situations like: perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders if they are granted anticipatory bail. Vested interests try to cow them down and terrorise them. Thus, the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation. Section 18 of The Atrocities Act excludes section 438 of IPC i.e. Anticipatory Bail. The rationale behind the prohibition of the absolute bar, as given by Hon’ble Court was:
• Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilised society.
• On the one side is the social need to check a crime, on the other, there is a social need for protection of liberty, oppression and abuse by the police and the other law enforcing agencies.
• The Court observed that arrest brings humiliation, curtails freedom and casts scars forever. It is considered a tool for harassment and oppression. The drastic power is to be exercised with caution. Power of arrest is a lucrative source of corruption. This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its Third Part. …
It is necessary to understand that the steps taken by Hon’ble Apex Court are just to prevent the misuse of The Atrocity Act. It has nowhere tried to undermine the authority of the Act or tried to skew in favour of Non-SCs and Non-STs. It is the duty of the court to protect the fundamental right of the citizens, any law if contravenes the Part – III of the Constitution cannot be termed as good law. Article – 21 of the Constitution encompasses Right to Life with Dignity and Right to Fair Trial in its ambit.
If anyone falsely accused of atrocity against SCs and STs and he has been incarcerated under the said act, then it is the violation of his/her fundamental right and that is an unreasonable restriction on the liberty as guaranteed under Art. 21. The anticipatory bail, which was debarred under section 18 of the said act, can be granted to accuse if only, prima facie there is no case made out of it.
The court has not abolished the restriction which has been put under Section 18, it has just ensured that the bail should be granted where prima facie, no case exist The intervention of appointing authority in terms of a Public servant and S.S.P in terms of Non-Public Authority is made to check the false complaints. A life without dignity is worthless, “If dignity or honour vanishes what remains of life?
This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its Third Part.…. If a person is handcuffed or accompanied by police, then it leaves an indelible impression or scar on the character of that individual and it becomes almost impossible to restore the dignity of that individual, once he/she gets arrested. Hon’ble Court is the arbiter of justice has ensured the check and balance on the use of the said act. The hue and cry by the benificaries of this act need to understand that the act will function to fullest of its potential. It is just before arresting any individual, the laid guideline must be followed.
The 3rd Police commission report has mentioned that 60% of corruption takes place while arresting, Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreak some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the Dr Subash Kashinath Mahajan’s case. The basic questions in such circumstances therefore are- Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent?
The very same fundamental question arises in the facts and circumstances of this case also, viz., ‘whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. & S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?’ The answer to this question is undoubtedly and obviously ‘No’.
Under such circumstances, if the Courts are to apply such provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinising and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice.
Virtually, it would be tantamount to abdicating and relegating its judicial duty, the function of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible.
Whether the provisions of any particular Act and for that purpose the rules made thereunder are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of ‘judicial consideration-discretion’ and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial function-duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision.
First and foremost, the false accusation was proved in this case. Now the question before the Hon’ble court was, how to protect the officials or common people who were being exploited or harassed under the garb of this act. You need to understand that certain guidelines have been laid down by SC so that interest of the innocent can be protected. The tool of protection should not be used as the charter of exploitation. Whatever argument you have put forth, you have failed to appreciate the SC, they have charted every possible frontier and due to certain restraint I can’t mention them (I would suggest you to read the judgment).
I must say, whatever ground realities which you have mentioned and remain unreported; you must have witnessed it at first hand. If you haven’t witnessed then please read the report of the amicus, who was appointed in this case, he has thrown light on every aspect.
Right to fair trial is a part or facet of Art – 21 (Zahira Habibullah Sheikh & Anr vs the State Of Gujarat ((2004) 4 SCC 158), which was under question and Hon’ble SC has tried to strike a balance between them.
There should be a chilling effect of this judgment but on false and retaliatory accusation. When a person is handcuffed or escort by police in his van due to false accusation, his article 21 i.e. Right to live with dignity also stands violated and it is his fundamental right. Now the Special law v. The Fundamental right; Call is yours.
If any Harijan is being humiliated, attacked or suppressed, no one can justify it but a general people being arrested then his/ her family members face equal humiliation on the account of false accusation, that is not justified and no one can violate one’s fundamental right just to further their political agenda or appeasing image.
This country belongs to everyone, this special law is for our brothers and it is still open for them to lodge complain against the culprit but I’m sorry to say they can’t use it as a tool to harass anyone. If anyone commits a crime, he must be punished but if he does not then no finger should be raised on them. Whatever happened with our brothers in past was painful but the correction of discrimination is equality not vesting power with the suppressed class to discriminate or harass the other class.
Well thats your point of view of the judgment or I would say an uppercaste antithetical understanding of the judgement. Heres the other side of the story, Do read.
The decline in the conviction rate for crimes against Dalits has created an impression that this may be driven by false filing of cases. But data from NCRB do not seem to support this contention. In fact, the share of false cases under the SC/ST Act has declined over time (2009-2015). The conviction rate too has in fact improved — from 23.8% in 2013 to 28.8% in 2014. But comparing conviction rates of hate crimes with that of ordinary crimes is neither rational nor reasonable.
Moreover, low conviction rates show poor investigation and incompetence of prosecution. Witnesses routinely turn hostile in such cases. We have low conviction rates in terror crimes as well, but will the court similarly dilute stringent provisions of terror laws? If there is concern about the ‘presumption of innocence’ of the accused, the protection of anticipatory bail should be extended to the accused in all cases and under all statutes.
Though shocking, these figures are only the tip of the iceberg of the actual number of incidents since most Dalits generally do not muster enough courage to register cases for fear of retaliation by the higher castes. Even on relatively rare occasions in which a case reaches court, the most likely outcome is acquittal due to caste biases at every stage of investigation and trial. Due to these biases, Dalits, the poor and the minorities are over-represented on the list of death rows.
The court has deviated from the established judicial opinion on the subject. The Supreme Court had clearly said that anticipatory bail provision for the first time was introduced in 1973 and it is merely a limited statutory right and not part of right to life and personal liberty under Article 21.
Just like racism, untouchability is based on ‘descent’. Former Prime Minister Manmohan Singh was candid enough to equate it with apartheid. Extreme marginalisation and persecution is a harsh reality of Dalit life even after 70 years of our independence. The reality is that even today any assertion of rights by Dalits leads to backlash from the higher castes resulting in mass killings, gang rapes and putting Dalit houses on fire. TV anchors sitting in Delhi and Mumbai may not appreciate the gravity of untouchability as Dalits have almost no representation in print or electronic media, which are fully under the control of upper castes.
The court rightly emphasised presumption of innocence as the first principle of classical criminal law and said mere allegation by the victim cannot negate it. The court is also right in observing that arrest can only be made if there is ‘credible’ information and a police officer has ‘reason to believe’ that an offence has been committed. Certainly, arrest should not be mechanical and under our general law there is no mandate under law to arrest an innocent person.
True, the court has said that exclusion of anticipatory bail should be limited to only genuine cases and it should be considered inapplicable where no prima facie case is made out. If an allegation is motivated, such exclusion will not apply. But then PoA is a special law and protection of general law may be legitimately denied under a special law. In case of conflict between general law and special law, it is the special law that prevails. In any case, as noted by the court, the Supreme Court itself has held in Hema Mishra’s case that a constitutional court is not barred by anticipatory bail in spite of statutory bar.
The decision will surely have a chilling effect on reporting of already under-reported crimes against Dalits.