Case BriefsSupreme Court

Supreme Court: A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

The verdict came in the petition challenging the provisions inserted by way of carving out section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said provision was inserted by Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 in order to nullify the effect of the Supreme court’s 2018 ruling in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243 which laid down the following guidelines:

 “(ii) there is no absolute bar against 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.

(iii) 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.

(iv) to avoid 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.

(v) any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.”

The said verdict was, however, was partially set aside by the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ in Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, wherein it was held that some portions of the Dr Subhash Kashinath verdict were against the concept of protective discrimination in favour of down­trodden 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.

Taking into account the 2019 verdict that reviewed the 2018 verdict, Justice Mishra, in his judgment, held that 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 verdict which no more prevails.

The Court, further, said that provisions of section 438 Cr.PC 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, the bar created by section 18 and 18A(i) shall not apply. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters.

Justice Bhat, in his separate opinion, agreed with the views expressed by Justice Arun Mishra but added a caveat to it and said,

“while considering any application seeking pre-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 that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law.”

He also said that it is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread social prejudices against members of these oppressed classes. He said that atrocities like forcing the eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of such communities and several other forms of humiliation, which members of such scheduled caste communities are subjected to, far outweigh the petitioners’ concern that innocent individuals would be subjected to what are described as arbitrary processes of investigation and legal proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available to those accused of committing offences under the Act; they remain unchanged by the enactment of the amendment.

He concluded his judgment with a poignant question that

“can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the “otherness” of each one’s identity.”

[Prathvi Raj Chauhan v. Union of India, 2020 SCC OnLine SC 159, decided on 10.02.2020]

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Hot Off The PressNews

Supreme Court: A bench headed by Justice Dr, AK Sikri refused to stay the proposed amendments to the SC & ST (Prevention of Atrocities) Act, 1989 which restored the no anticipatory bail provision for the accused.

It said that the pending review petition filed by the Centre against the apex court’s March 20, 2018 verdict and the pleas challenging the new amendments made in the SC & ST verdict will be taken up together and referred the matter to the Chief Justice for reconstitution of a bench which Justice UU Lalit was a part of.

On March 20, 2018, the bench of AK Goel and UU Lalit, JJ acknowledged the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and said:

“the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties.”

The bench had held that an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. 

(With inputs from PTI)

Case BriefsHigh Courts

Madras High Court: The Single Judge Bench of S.S.Sundar, J. quashed the criminal complaint against BSNL employees who had put smiling emoji with tears in response to a video footage posted by the second respondent on the official WhatsApp group.

The second respondent (the applicant) posted a video footage of three customers expressing their grievance about the BSNL coverage on the official WhatsApp group which was intended to be used by the members for sharing of any innovative works or ideas for improving the quality of service of BSNL. The conversation was taken as an act to degrade the indoor staff by the petitioners who then along with few others have posted an emoji, namely, a smiling face with tears. They requested the members of SNEA by sending similar emojis in the ‘WhatsApp’ group to be shared by other members of the group. Annoyed by this, the second respondent filed the complaint under various provisions.

The Court said that when it is accepted that an emoji is sent to express one’s feeling about something, it cannot be treated as an overt act on others. It is a comment that may be intended to ridicule or to show one’s disapproval in a given context. Such emojis would not hit Section 67 of IT Act as its object is concerned with publication revealing an overt sexual interest or desire or encouraging an excessive interest in sexual matters. Further, the Court found that the act under consideration may offend the second respondent but it does not attract Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. As it was also not the case in the complaint that the smiley was intended to humiliate the second respondent for her being a member of SC/ST, the complaint under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 was not sustained. Court concluded that everyone has a right to express their feelings and share their idea. Every person has got indefeasible right to express what he feels. However, on Court’s insistence, the petitioners through an affidavit expressed their regret over posing of such smileys. After that Court decided that the matter should rest here and it will be neither in the interest of justice to permit such complaints to stay. [I. Linga Bhaskar v. The State through the Inspector of Police, CRL.O.P.(MD) No. 3110 of 2017 and Crl.M.P. (MD) Nos. 2366 and 6773 of 2017, order dated 05.06.2018]

Case BriefsSupreme Court

Supreme Court: The Vacation Bench comprising of Adarsh Kumar Goel and Ashok Bhushan JJ., allowed the Centre to go ahead with the reservation in promotion for employees belonging to the cadre of SC/ST in accordance to law.

Centre had stated various submissions for explaining their concern on the whole process of promotion being “standstill” due to the various orders passed by the High Courts and apex court.  The government also cited the cases on the issue of quota in promotion in government jobs by placing the apex court’s decision in M Nagaraj v. Union of India, (2006) 8 SCC 212  would be applicable, as in reference to the said case, creamy layer concept cannot be applied to the ST/SC for promotions as decided in the verdict of Indra Sawhney v. Union of India; 1992 Supp (3) SCC 210 and E.V Chinnaiah v. State of A.P; (2005) 1 SCC 394.

ASG Mahinder Singh also referred to an order passed on May 17th in which it was said that “pendency of petition before it shall not stand in the way of the Centre taking steps for the promotion”. He also mentioned Article 16 (4A) of the Constitution, which enabled the state to provide reservation in matters of promotion to SC/ST which in its view was not effectively represented for services.

By a decision of the Supreme Court in M Nagaraj v. Union of India (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4A) and (4B) was upheld.
Subsequent to the pronouncement of law in M Nagaraj, there were decisions by the Supreme Court stating that the government could not blindly provide for reservation in promotions, in favour of SCs and STs unless, prior thereto, the requisite exercise, to acquire quantifiable data regarding lack of representation of SCs and STs in public services was undertaken.

On noting the Delhi High Court verdict of August 23, 2017, in which the government was restrained from granting any reservation, in promotion to SC/ST, in exercise of the power conferred by Article 16 (4A) of the Constitution, without, in the first instance, carrying out the necessary preliminary exercise of acquiring quantifiable data indicating inadequacy of representation, the instant petition was filed and till any further decision of the Constitution bench, as per law permission has been granted in regard to the promotions. [State of Maharashtra v. Vijay Ghogre, 2018 SCC OnLine SC 589, order dated 05-06-2018]