Case BriefsSupreme Court

Supreme Court: After the plight of a blind Scheduled Caste woman who was raped reached before the bench of Dr. DY Chandrachud and MR Shah, JJ, the Court did an in depth analysis of intersectional oppression, the punishment to be awarded in such cases and what all factors need to be considered by the Courts while dealing with such cases. The Court said,

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. Transwomen may face violence on account of their heterodox gender identity. In such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman.”

In the present case, a blind girl belonging to a Scheduled Caste community was raped inside her own home by her brothers’ acquaintance. The accused was convicted under under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section 376(1) of the Indian Penal Code.

Uitlising the facts of this case, the Court explored a disturbing trend of sexual violence against women and girls with disabilities and to set in motion a thought process for how the structural realities resulting in this state of affairs can be effectively addressed.

“… women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as “soft targets” and “easy victims” for the commission of sexual violence. It is for this reason that our legal response to such violence, in the instant case as well as at a systemic level, must exhibit attentiveness to this salient fact.”

Intersectionality and it’s analysis

Intersectionality can be defined as a form of “oppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone…”.[1]

An intersectional lens is useful for addressing the specific set of lived experiences of those individuals who have faced violence and discrimination on multiple grounds. A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”.

“A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.”

An intersectional analysis requires to consider the distinct experience of a sub-set of women who exist at an intersection of varied identities. This is not to say that these women do not share any commonalities with other women who may be more privileged, but to equate the two experiences would be to play down the effects of specific socio-economic vulnerabilities certain women suffer. At its worse it would be to appropriate their pain to claim a universal subjectivity.

“… an analysis of intersectionality does not mean that we see caste, religion, class, disability and sexual orientation as merely “add ons” to the oppression that women may face. This is based on the assumption that gender oppression is oppressive in the same way for all women, only more so for women suffering marginalization on other grounds.”

Intersectionality requires Courts to analyse law in its social and economic context allowing us to formulate questions of equality as that of “power and powerlessness” instead of difference and sameness. The latter being a conceptual limitation of single axis analysis, it may allow certain intersectional claims to fall through the cracks since such claims are not unidirectional in nature.

Hence, there is a need for the Court to address and unpack the qualitative impact of the various identities an individual might have on the violence, discrimination or disadvantage being faced by them in the society.

Disabled Witnesses and their testimonies

A survey and analysis of High Court judgments by Saptarshi Mandal indicates that the testimony of the disabled witnesses is devalued by not recording the testimony of the prosecutrix at all; or recording it without adherence to correct legal procedure, thereby rendering it ineffectual; dismissal of the testimony for its lack of intelligibility or for not being supported by the condition of her body[2].

“This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts.”

As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness’ disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness.

Protection of Members of Scheduled Castes and Scheduled Tribes

Section 3(2)(v) of SC & ST Act

Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where

(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;

(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and

(iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person.

The key words in this Provision are “on the ground that such person is a member of a SC or ST”. The expression “on the ground” means “for the reason” or “on the basis of” and recognizes only a single axis model of oppression.

“…such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem.”

However, the provision cannot be read as “only on the ground that the victim was a member of the Scheduled Caste.” The statutory provision does not utilize the expression “only on the ground”. Reading the expression “only” would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words “on the ground’ but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground.

“To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity.”

A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence.

Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2) (v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”, thereby, decreasing the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.

“Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.”

The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.

However, since the offence in the present case took place before the amendment, on 31 March 2011, the Court held that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) was consequently set aside.

Why the accused in the present case deserved punishment no less than a life imprisonment?

  • Prosecuterix was blind since birth.
  • Accused was known o her brothers and used to visit their house often. T
  • Bereft of eye-sight, prosecuterix was able to identify the appellant by his voice with which she was familiar.
  • Shortly before entering prosecuterix’s home, he enquired of her mother where her sons were, when he was told that they were not at home. The appellant entered the house and subjected the prosecuterix to a sexual assault.
  • When the mother entered the house she found the prosecuterix in a nude condition on the ground bleeding from the injuries sustained on her genitals.

Hence, the nature and circumstances in which the offence has been committed would leave no manner of doubt that the appellant had taken advantage of the position of the woman who was blind since birth.

“A heinous offence has been committed on a woman belonging to Scheduled Caste. The imposition of a sentence of imprisonment for life cannot be faulted.”

[Patan Jamal Vali v. State of Andhra Pradesh, 2021 SCC OnLine SC 343, decided on 27.04.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Advocate Harinder Mohan Singh

[1] 4 Mary Eaton, Homosexual Unmodified: Speculations on Law‟s Discourse, Race, and Construction of Sexual Identity, in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICS OF THE LAW, Didi Herman and Carl Stychin eds. (Philadelphia: Temple University Press 1995), p. 46.

[2] 1 Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.

Case BriefsHigh Courts

Kerala High Court: N.Nagaresh, J., heard the instant petition against the order of Scrutiny Committee for Verification of Community Certificates, whereby the Committee had rejected Scheduled Caste (Sambava) status of the petitioner.

The grievance of the petitioner was that he was a Hindu Scheduled Caste (Sambava) and his parents belong to Sambava Community. To substantiate his claim the petitioner produced the extract of School Admission Register, certificate of membership issued by Akhila Kerala Cheramar Hindu Mahasabha (AKCHMS), and Transfer Certificate issued by the Government Arts College, where he was given Scheduled Caste concession during his studies. Further, the petitioner had submitted a certificate of membership of Kumali Scheduled Caste Service Co-operative Society, which suggest he was even a member of Director Board of the said Society from 06-03-2010 to 05-03-2015. Also, the Tahsildar, Peermed Taluk had issued Sambava Community Certificate to the petitioner.

The Committee alleged that the petitioner and his family members had obtained Scheduled Caste (Sambava) Community Certificate with malafide intention of claiming reservation benefits and were trying to usurp the benefits available to Scheduled Castes by forging documents. The Committee contended that the petitioner actually belonged to Christian Community of Sambava origin. The petitioner’s father was an offspring of Christian Sambava father and mother claiming to be Hindu Sambava. The petitioner’s father, mother and siblings received baptism in the year 1993 and became members of Church of South India, Kumali. Further, it was submitted,

“The documents collected and discrete field level enquiry revealed that the petitioner’s parents and siblings are following Christianity and therefore the petitioner cannot be considered as a member of Hindu religion. Consequently, he cannot be treated as a Scheduled Caste.”

 The Committee, therefore, rejected the Scheduled Caste (Sambava) claim of the petitioner. The State while accepting the recommendations of the Committee rejected the claim of caste status of the petitioner.

The petitioner argued that merely because the grandfather of the petitioner had converted to Christianity, it could not be assumed that he enunciated his Scheduled Caste. The Counsel for the petitioner, P.B.Krishnan while Relying on S. Anbalagan v. B. Devarajan, (1984) 2 SCC 112, urged that,

There should be a renunciation of caste by the convert and then alone, a person will lose Scheduled Caste status. Mere conversion of religion does not by itself show that the convert is not suffering from any disadvantage faced by Scheduled Castes. If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member, then notwithstanding his conversion, he would continue to be a member of the caste.

The petitioner argued that for the sole reason that his paternal grandfather embraced Christianity, it could not be held that the petitioner also was a Christian.

The Bench observed, though the petitioner’s father married a Scheduled Caste Hindu Sambava but, those facts would not be sufficient to hold that the petitioner was a Scheduled Caste (Sambava). The Bench, while holding the documentary evidences relied by the petitioner insufficient, said that when the whole family members of the petitioner, his wife and children were living in Christian faith the onus on the petitioner to establish that he belongs to Scheduled Caste Community would be heavy. The Bench stated,

“The petitioner has the burden to establish that he is living as a Hindu Scheduled Caste (Sambava,) following its customs and practices and that the Scheduled Caste Community has accepted the petitioner as one among them.”

 Considering the above, it was held that the findings of the Committee were entered into after anthropological enquiry and there was no reason for the Court to unsettle the findings. Thus, the petition was dismissed. [P. Rajan v. State of Kerala, 2021 SCC OnLine Ker 436, decided on 28-01-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., addressed the instant contempt petition. The Court while expressing concern over State inaction, stated, “The inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms.”

The present contempt petition was filed for non-compliance of order passed in W.P. No. 806 of 2013 on 18-01-2013. The facts of the case were that the petitioner who was a daily wage cook, employed in the Government Post-Matric Scheduled Caste Boys Hostel filed a petition seeking direction to the respondents, that regular pay-scale be granted to him in the light of circular dated 17-03-1978. It was submitted that the aforesaid circular gave daily wage employees engaged in the Tribal Welfare Department, benefit which had been given by the order passed in Dhanu Bai v. State of M.P., (W.A. No. 85/2011). The Court had ordered the State to consider if the order of Dhanu Bai case would squarely apply on the petitioner; and the State was given liberty to take into consideration any subsequent circular issued by the State Government in respect of grant of wages to daily wage.

The Court observed that, undue liberty that had been granted from time to time and again by this Court for the compliance of its orders, was being taken for granted. The abject disdain of the State and its functionaries to the orders passed by this Court was only on account of the leniency shown by this Court. Time and again, looking at the work load of the State and its functionaries, this Court has been loath to proceed against the guilty in contempt. This has emboldened them repeatedly and they put the orders passed by this Court in the back-burn. It had taken seven years to the State to come out with a pathetic response. The Court said,

The power that is given to the State and its functionaries are not without concomitant responsibility. Rudyard Kipling, a famous author whose association with the State is legendary on account of his work ” The Jungle Book”, has observed “power without responsibility – the prerogative of the ****** throughout the ages. Time and again, the State has, by its violation or its non-compliance to the orders passed by this Court; shown that it is an institution that prefers to have powers without responsibility.

 Considering that the respondents were aware with the order passed by this Court at least from 03-04-2013, if not before that, the Court remarked that, the inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms. It was further stated by the Court, “The State through its inactivity is partly responsible for the flood of writ petition before this Court and after the orders passed by this Court, it leads to filing of the contempt petition because the State and its instrumentalities do not comply with the order passed by this Court within the time period given in the order.”

In the light of above, the instant petition was disposed of with the direction to the respondent to take a decision within a period of two weeks from passing of this order. [Sona Bai v. Principal Secretary Tribal Welfare Department, Mantralaya, CONC-1455-2014, decided on 13-01-2021]

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., asked the State Government to file a report in the matter of lack of road to the graveyard for Scheduled Caste people due to which they are forced to pass through the agricultural ground with standing crops.

Petitioner sought a writ of mandamus, directing the respondent to provide pathway/road having access to burial ground from the villages where Adi Dravidar people have been residing so as to enable them to tale the dead bodies to the burial ground peacefully within the time stipulated by this Court.

Decision

“We have to hang our head in shame for having ill-treated and discriminated the Scheduled Caste people for centuries together.”

Bench added that since the Scheduled Caste people were not properly treated and offences committed against members of SCs and STs and rehabilitating the victims, the Centre passed the ‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989’, to give the dignity to prevent the crimes against members of Scheduled Castes and Schedule Tribes.

Even though the above stated Act was passed, yet the SC-ST people are not getting treated properly and offences are continuing.

In the instant case, a newspaper report published that there is a lack of road to graveyard forced Scheduled Caste people to pass through agriculture fields with standing crops.

Since no road facility has been provided to these people, they were compelled to carry the dead body through the fields with standing crops and put them to unnecessary trouble and untold hardships.

In light of the above, the Court stated that

Not only living persons but also dead bodies should be given dignity. The Scheduled Caste people should have roads to graveyards.

Court in view of the above opined that the issue reported is taken as a suo motu public interest litigation.

Respondents are directed to file a report with regard to the following queries:
(a) How many Scheduled Caste Habitations are located in the State of Tamil Nadu?
(b) Whether all the Scheduled Caste Habitations have got drinking water facilities, street lights and toilet facilities as well as roads to the graveyards?
(c) How many Habitations do not have roads to graveyards?
(d) What are all the steps taken, including the acquiring of lands for laying of roads for graveyards?
(e) By what time, all the Schedule Castes Habitations would be provided with water facilities, street lights toilet facilities as well as pathways to the graveyards?

[Registrar (Judicial) v. Secy. to Government; Suo Motu WP (MD) No. 19594 of 2020; decided on 21-12-2020]

Case BriefsSupreme Court Roundups

Did you know? In the year 2020,

    • All the Constitution bench verdicts were unanimous with no dissenting opinion.
    • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

As we look forward to the new year of 2021, here is a quick recap of the Constitution bench verdicts delivered by the Supreme Court of India in 2020.

1. Questions of law can be referred to larger bench while hearing a review petition

9-judge bench: SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ

After renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected, the 9-judge bench held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges. [Read: Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held]

Read more…

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52]


2. Pleas challenging the abrogation of Article 370 not referred to a larger bench

5-judge bench: NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ

The bench refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench. Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash casethe bench said that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. It noted,

the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”

Read more…

[Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1]


3. No time limit could be fixed while granting anticipatory bail

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

Read more…

[Sushila Aggarwal v. State of NCT of Delhi,  (2020) 5 SCC 1]


4. No lapse of acquisition proceedings if government has ‘paid’ compensation

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Last year, Justice Arun Mishra, heading the Bench, had refused to recuse himself from hearing the case and had said,

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

Justice Mishra’s recusal was sought on the ground that he was heading a Bench meant to re-examine a judgment that he had himself given in 2018 in in Indore Development Authority v. Shailendra, (2018) 3 SCC 412. 

Read more…

[Indore Development Authority v. Manohar Lal Sharma, (2020) 8 SCC 129]


5. States, and not MCI, have power to make reservation for in-service candidates in Post Graduate Medical Course 

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III.

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

 The Court, however, specifically observed and clarified that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

Read more…

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699]


6. Sub-classification of Scheduled Castes| E.V. Chinnaiah decision to be revisited; Matter referred to larger bench

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

After noticing that a 5-Judge Bench in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, the bench referred the matter to a larger bench and said,

“Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub¬classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

[State of Punjab v. Davinder Singh, (2020) 8 SCC 1]


7. SARFAESI Act applicable to Co­operative Banks

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.

Holding that Co­operative bank’s entire operation and activity of banking are governed by a law enacted under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act under Entry 38 of List I, the bench said,

“recovery of dues would be an essential function of any banking institution and the Parliament can enact a law under Entry 45 of List I as the activity of banking done by co­operative banks is within the purview of Entry 45 of List I. Obviously, it is open to the Parliament to provide the remedy for recovery under Section 13 of the SARFAESI Act.”

Read more…  

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  (2020) 9 SCC 215]


8. Andhra Pradesh’s 100% reservation for Scheduled Tribe candidates for the post of teachers without rhyme or reason

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ 

Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the bench said that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

Read more…

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383]


9. District Forum can’t extend limitation period of 45 days for filing response under Section 13 of Consumer Protection Act

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986.

The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 wherein the answers to the following questions were sought:

  • whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
  • what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.

Read more…

[New India Assurance v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757]


10. Accused under NDPS Act not entitled to acquittal as a blanket rule merely because the complainant is the investigating officer

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”

Read more…

[Mukesh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120]


11. State Government cannot fix the “minimum price” of sugarcane once Centre has already fixed it

5-judge bench: Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ,

The bench unanimously held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.

By virtue of Entries 33 and 34 List III of seventh Schedule, both the Central Government as well as the State Government have the power to fix the price of sugarcane. The Court, however, clarified that

“it is always open for the State Government to fix the “advised price” which is always higher than the “minimum price”, in view of the relevant provisions of the Sugarcane (Control) Order, 1966, which has been issued in exercise of powers under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953.”

Read more…

[West UP Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548]


Also read:

Supreme Court year-end roundup| From important judgments to unmissable facts and stories, here’s a comprehensive roundup of all that happened in 2020

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court declared that tribe “Gowari” is a part of Scheduled Tribe “Gond Gowari” thereby leading to several people taking benefit of Scheduled Tribes for admissions and employment, the bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has held that

“the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.”

The Court, however, directed that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date, as a result of the High Court’s decision, shall not be affected and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them.

“However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.”

On 14.08.2018, Bombay High Court, Nagpur Bench had declared that tribe ‘Gowari’ was a part of Scheduled Tribe ‘Gond Gowari’ and that ‘Gond Gowari’ shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950, is not a sub-tribe of ‘Gond’.

On declaration that “Gond Gowari” is not a sub-tribe of “Gond”

The validity of caste certificate to ‘Gond Gowari’ has to be tested on the basis of affinity test as specified in the Government Resolution dated 24.04.1985. The Government of State of Maharashtra, Tribal Development Department has issued G.R. dated 24.04.1985 where the State Government has referred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari.

“As per Article 342(1), tribes or tribal communities or parts or groups within tribes or tribal communities shall for the purposes of the Constitution be deemed to be Scheduled Tribes. There has to be some purposes for joining number of tribes together in one entry, but with regard to ‘Gond Gowari’ the affinity is more than apparent with ‘Gond’.”

The expression ‘Gond Gowari’ clearly expresses that the community ‘Gond Gowari’ has to do with tribe ‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which is clear from a report of the Backward Classes Commission, 1955. When the inclusion of the entry ‘Gond Gowari’ was as (subtribe of Gond), its affinity with ‘Gond’ cannot be ignored on any basis.

On tribe ‘Gowari’ being declared a part of Scheduled Tribe ‘Gond Gowari’

When the State has expressly written to the Government of India on 06.11.1981 that ‘Gowari’ community does not fulfill the criteria of Scheduled Tribe and thereafter after 1984, several studies were conducted by Tribal department in State of Maharashtra including report dated 12.05.2006 which reaffirms that ‘Gond Gowari’ and ‘Gowari’ are distinct community and ‘Gowari’ is not Scheduled Tribe, the High Court could not have observed that it accepts the view of the Central and State Government that ‘Gowari’ community be included in the Scheduled Tribe Order

Further, the recommendation to include Gowari as a separate Scheduled Tribe was forwarded by the State of Maharashtra in the year 1979 which was withdrawn in 1981 and after 1981 the State’s stand has been that “Gond Gowari” and “Gowari” are two separate castes and Gowari is not entitled for the benefit of Scheduled Tribe certificate.

On extinction of tribe “Gond Gowari” prior to 1911 and only “Gowari” existed

The High Court itself in its judgment noticed and found the mention of “Gond Gowari” in Census of 1891 and 1901. However, the basis of Census in 1911 was changed, and classification was made on the basis of traditional occupation in which group IV was of Forest and Hill Tribes and Group V was of Graziers and Dairymen. The figures of 1911, 1921 and 1931 showed that in Group V Graziers and Dairymen, there was mention of Gowari.

However, mere fact that in Censuses of 1911, 1921 and 1931 figures were given only of Group V, i.e., Graziers and Dairymen and there was no mention of “Gond Gowari” cannot lead to conclusion that “Gond Gowari” have become extinct before 1911.

“A Scheduled Tribe which admittedly was in existence and had a distinct identity shall not be treated to have become extinct merely because the basis of Census has been changed in the subsequent years. The benefit given to a Scheduled Tribe cannot be taken away on the basis of figures given in Census operation only.”

The inclusion of sub-Tribe as “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950 was on 29.10.1956 when sub-Tribe “Gond Gowari” was included in the Scheduled Tribe list it has to be presumed that the said inclusion was after consultation with the State and after considering the relevant materials. The High Court could not have questioned the inclusion of the Scheduled Tribe “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950.

Further, when before the High Court Scheduled Tribe certificates of “Gond Gowari” were filed in large number and there were documents to support by the revenue entries some of which are prior to 1950 and which certificates were sought to be quashed in the writ petition, the existence of Scheduled Tribe “Gond Gowari” was very much found.

“The Caste Scrutiny Committee having validated the said certificates it was not open for the High Court to say that Scheduled Tribe “Gond Gowari” became extinct prior to 1911.”

The Court, hence, concluded that none of the reasons given by the High Court are sustainable to hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘Gond Gowari’.

“The entire basis of the judgment of the High Court that tribe ‘Gond Gowari’ was completely extinct before 1911 having been found to be flawed, the entire basis of judgment is knocked out.”

[State of Maharshtra v. Keshao Vishwanath Sonone,  2020 SCC OnLine SC 1040, decided on 18.12.2020]


*Justice Ashok Bhushan has penned this judgment

Counsels heard

For State of Maharashtra: Senior Advocate Shyam Divan and advocate Ravindra Keshavrao Adsure,

For Union of India: Additional Solicitor General Sanjay Jain

For Zanaklal Bhaisaku Mangar: Senior Advocate C.U. Singh,

For Respondents: Senior Advocate Mukul Rohatgi and Advocate Bansuri Swaraj

Case BriefsHigh Courts

Bombay High Court: A Division Bench of V.G. Bisht and S.S. Shinde, JJ. allowed a writ petition by quashing and setting aside the order passed by Scheduled Caste, Scheduled Tribe, De- notified Tribe (Vimukt Jatis), Nomadic Tribe, Other Backward Class and Special Backward Class Category Caste Scrutiny Committee No. 1, Solapur, by which petitioner’s claim of belonging to Muslim-Mulani (OBC-340) was invalidated.

In the present case, petitioner challenged the legality, validity and propriety of impugned Judgment passed by respondent 2 – Scheduled Caste, Scheduled Tribe, De-notified Tribe (Vimukt Jatis), Nomadic Tribe, OBC and Special Backward Class Category Caste Scrutiny Committee No. 1, Solapur that invalidated the caste claim of petitioner as belonging to Mulani (OBC).

Petitioner was appointed as Assistant Teacher on the post reserved for OBC Category which had been duly approved by Education Officer (Primary) Solapur. The appointment was on reserved post for OBC Category. Respondent 1 forwarded her caste certificate for verification to Respondent 2 — Caste Scrutiny Committee.

The above-stated committee referred the matter to the Vigilance Cell for verification. Vigilance Officer recommended to the committee that the Petitioner is entitled to get the caste certificate to the effect that the Petitioner belongs to Mulani caste.

Caste Scrutiny Committee issued a show-cause notice to the petitioner alleging that all the documents produced by the petitioner show that the petitioner belongs to Muslim caste and not Mulani caste. The committee by its impugned order rejected the caste claim of the petitioner. Hence, the petition was filed.

Decision

Division Bench stated that it is required to be noted that in spite of Vigilance Cell Reports in favour of the petitioner, Committee in the impugned decision observed that since the committee is not agreeing to vigilance cell reports, therefore, said report is kept out of consideration. But the bench in view of the stated held that findings of the Committee are unacceptable for the reason that when such vigilance cell’s report is their the Committee is bound to consider the same and there is no reason to disbelieve the same.

The matter is remanded back to respondent 2 for de novo consideration.[Kumari Shaikh Shashim Mhamulal v. State of Maharashtra, 2020 SCC OnLine Bom 383 , decided on 09-03-2020]

Case BriefsSupreme Court

Supreme Court: Holding that the Court should not have encroached upon the field reserved for the legislature, the 3-judge bench has partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018. The 3-jduge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that some portions of the said 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.

The guidelines laid down in the March, 2018 verdict were:

(i) Proceedings in the present case are clear abuse of process of court and are quashed.

(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.

Challenging the said verdict, the Union of India argued that Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst member of Scheduled Castes and Scheduled Tribes. It submitted,

“any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases.  With a view to object apprehended misuse of the law, no such direction can be issued.”

Accepting the contention, the Court held that 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.”

It further said that directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules.

Considering the plight of the members of the Scheduled Castes and Scheduled Tribes, the Court said that the SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. It said,

“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 as a crook person and cannot look at every complaint by such complainant with a doubt.”

The Court also noticed that there is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. It said that the members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found 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 Cr.PC.”

The Court, hence, held,

“we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes.”

[Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, decided on 01.10.2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. contemplated an appeal where the appellant had been convicted and sentenced under Sections 363 and 376 of Penal Code, 1860 and Section 3(2)(v) of SC/ST Act i.e. commission of any offence under the IPC punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine.

Minimal facts relevant for proper appreciation of the case are that one Asha Bhai lodged an FIR against the appellant for alleged rape and kidnapping of the minor granddaughter of the complainant. Complainant, victim and the appellant were travelling to Ahmedabad when the appellant alleged drugged Asha and when he regained her consciousness there was no trace of the minor victim and the appellant. Subsequently, an investigation was conducted and charge-sheet was filed. Appellant was charged under various Sections of IPC and under Section 3(1) (xii) of SC/ST (Prevention of Atrocities) Act. As the charge under SC\ST Act was added the case was duly transferred to the Special Judge for trial. After the trial, the Judge convicted the appellant, hence the instant appeal was preferred.

The counsel for the appellant, Pradeep Shah, submitted that judgment passed by the trial court was bad in the eyes of law. He urged that there was no allegation of any of the prosecution witnesses that the accused kidnapped or subjected the victim to rape with the intention of committing offence on a member of the Scheduled Caste community. He further argued that the conviction of the accused of the offence under Section 3(2)(v) of the SC/ST Act was prima facie illegal. It was further submitted that the victim was not a minor and there was no proper evidence to prove otherwise. It was contended that the alleged victim resided with her own will and never protested hence the physical relation was consensual and no case of rape was to be made.

Learned Public Prosecutor, N.S. Bhati vehemently and fervently opposed the submissions advanced by the appellant. He urged that the victim had given cogent testimony at the trial stating that she was a minor on the date of the incident. The accused lured her away on the premise that he would get her father released from prison. Entertaining this bonafide belief, she accompanied the accused and her grandfather for going to Ahmedabad. The accused gave a slip to her grandfather and forced her to board a train. She was taken to Mahsana where she was kept in a house which is at an isolated place. There, the accused repeatedly subjected her to sexual intercourse. It was further submitted that the medical report pointed towards the alleged rape and the age of the minor was also confirmed accordingly.

The Court, gave thoughtful consideration to the arguments of the parties and observed that “Prima facie, from the evidence available on record, it is duly established and we are fully satisfied that the accused committed the offence under Sections 363 & 376 IPC not because he wanted to sexually assault a member of the scheduled caste community but these offences were perpetrated by the accused in order to satisfy his carnal desires.”

The Court further relied on the judgment in, Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557, where the Supreme Court in a similar case opined that, the case was not designated against the SC/ST community specifically. Hence the Court opined that the finding recorded by the trial court whereby the accused was held liable for the offence under Section 3(2)(v) of the SC/ST Act and was sentenced to life imprisonment on this count is ex-facie illegal and contrary to record. Hence, the Court set aside the impugned judgment to that extent. Further, it observed that the remaining Judgment of the trial court was legal. Thus the appeal was allowed partly.[Kesa Bhai v. State of Rajasthan, 2019 SCC OnLine Raj 1403, decided on 02-07-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of Abhay S. Oka, C.J. and H.T. Narendra Prasad, J. while not going into the legal issue involved, dismissed the petition.

A hostel building for girl students belonging to the Scheduled Caste was to be constructed on the order of the State Government as per the request by the Chief Officer, Molakalmuru Town Panchayat. The Hostel was to be constructed on a site meant for civic amenities.

Rama Bhat K., Counsel for the petitioner while objecting to the aforementioned order submitted that the girls’ hostel is not a “civic amenity” as it does not fall under the definition of it, under Section 2(h) of the Karnataka Urban Development Authorities Act, 1987.

Counsel for the respondent contended that the petitioner has no locus standi by raising this objection. He further contended that this particular petition is politically motivated as the petitioner is a defeated member of Zila Panchayat and wants to tarnish the image of the present council.

The Court observed that the act of the petitioner is not pro bono and should not be allowed to invoke the extraordinary jurisdiction of this Court by filing a Public Interest Litigation. The Court further observed that the petitioner repeatedly asserted that the construction of a hostel building would cause a nuisance to the neighbours.[V. Mara Nayaka v. State of Karnataka, 2019 SCC OnLine Kar 681, decided on 20-06-2019]

Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J. entertained a writ petition which sought relief against Bihar Public Service Commission to re-advertise by the way of corrigendum for the post of Dental Doctor and to be allowed to participate in the selection process.

The petitioner prayed for declaring the advertisement of 2015 issued by the Commission contrary to the Reservation Rules, 1991. The petitioner contended that she completed BDS course in 2016. It was stated that 617 posts in dental services were created by a notification of 2013, thus total sanctioned strength in the dental services became 700, out of which a few were earmarked for promotions and a few were already occupied, leaving 558 posts vacant. The Government of Bihar, enacted the Bihar Dentist Service Rule, 2014 for regulating appointments and service conditions in the dentist service. The commission issued an advertisement of 2015, for respective vacant posts and applications were invited from the eligible candidates. Further, it was stated that only 16 posts were earmarked for the backward class female.

The learned counsel for the petitioner, Kripa Nand Jha, submitted that the eligibility criteria in the advertisement of 2015 was BDS degree from a recognized University and should had been registered under the Bihar and Orissa Medical Act, 1916. The counsel brought to the notice of Court that since all the vacant posts were advertised and the last date of submission of the form was in 2015, the petitioner who received his degree in 2016, and similar aggrieved students would be precluded from obtaining employment for years to come.

The learned counsel for the respondent Commission, Zaki Haider, submitted that upon a requisition sent by the Department of Health, the Commission has published the advertisement for appointment as the post of basic grade Dental Surgeon under the Department of Health, Government of Bihar. He referred to the requisition sent by the Government in 2015, it had been submitted that the roster clearance was obtained from the General Administration Department and only thereafter, the vacancies were advertised, category wise. He further submitted that earlier also the Bihar Dentist Rules, 2014, issued vide notification in 2014, which was challenged before the High Court and the learned Division Bench of Court had dismissed the said writ petition.

It was contended by the other respondents, that proviso to Article 309 of the Constitution of India, conferred the powers to said State and specifically stated that as far as the prayer of the petitioner regarding issuance of a direction upon the respondents to re-advertise the post of Dental Surgeon and 35% horizontal reservation to the female candidates was permitted. They further contend that the petition was misconceived and bereft of any merit as to the aforesaid notification of the Department of 2016, and was not effective retrospectively. The requisitions were made by the Health Department and, accordingly, the Commission had issued the advertisement taking into consideration the rules of reservation i.e. the Bihar Reservation for Vacancies in posts and Services for Scheduled Caste, Scheduled Tribes and other Backward Classes Act, 1991.

The Court observed that, all adverting to the issue of applicability of the notification issued by the Department, admittedly the same is not applicable retrospectively and moreover, the roster clearance has been taken by the Health Department from the General Administration Department after which requisition was sent and thereafter, the advertisement has been published immediately in 2015, in pursuance to the Bihar Dental Service Rules, 2014.  Hence, the Court held that the said notification of the General Administration Department in 2016 cannot be applied for the recruitment process under consideration in the present writ petition. The contention of the petitioner regarding the Rules, 1991 being contrary to the advertisement of 2015 was also declared void. The Court noted submission made by the learned counsel for the petitioner to the effect that since the petitioner passed in the year 2016 and the advertisement had been issued in 2015, the petitioner was pre-empted from applying for the post of Dental Doctor in the Health Services of the Government of Bihar, and rejected the same as the petitioner was not eligible to apply in pursuance to the advertisement of 2015, hence she had no locus standi to challenge the eligibility conditions. Hence, the petition was dismissed.[Pragya v. State of Bihar, 2019 SCC OnLine Pat 689, decided on 17-05-2019]

Case BriefsHigh Courts

Bombay High Court: Hearing a public interest litigation, a Bench comprising of BP Dharmadhikari and ZA Haq, JJ. directed the Union Ministry of Information and Broadcasting to consider directing the media to refrain from using the word Dalit when referring to members of Scheduled Castes.

The Court was hearing a petition filed against the use of the word in official government documents. The petitioner informed the Court that the Ministry of Social Justice and Empowerment has already advised the Central Government to refrain from using any term apart from “Scheduled Caste” when referring to persons falling under the category. The Court was also informed that the State Government is also deliberating on taking appropriate action on the same.

The petitioner’s advocate then pointed out that similar directions to refrain from using the word were yet to be issued to the media. The Court then directed the Central Government to consider the question of issuing such direction to the media and take a suitable decision upon it within next six weeks. [Pankaj alias Lalitji Meshram v. Joint Secretary, Public Interest Litigation No. 114 of 2016, decided on 06-06-2018]

Case BriefsSupreme Court

Supreme Court: Acknowledging the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), the bench of AK Goel and UU Lalit, JJ said that 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. It was, hence, held that unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens.

The Court said:

“the 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. … Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution.”

Background:

The Court was hearing an appeal against the order of the Bombay High Court where it was held that no public servant or reviewing authority need to apprehend any action by way of false or frivolous prosecution, but the penal provisions of the Atrocities Act could not be faulted merely because of possibility of abuse. In the present matter, certain adverse remarks were recorded under the Atrocities Act against the appellant who was serving as the Director of Technical Education in the State of Maharashtra at the relevant time. Apart from the facts of the present appeal, it was brought to the Court’s notice that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.

Conclusion:

The Court held:

“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. The law has to be interpreted accordingly.”

Holding that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny, the Court issued the following directions:

  • 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.
  • 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 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 the direction of the Court will be actionable by way of disciplinary action as well as contempt.

[Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018]