Author: Saurav Kumar
Edited by: Shadrack Chai
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Name Of the case case/case title |
DR. SUBHASH KASHINATH MAHAJAN VS.
STATE OF MAHARASTRA (AIR 2018 SC 1490) |
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Case No |
CRIMINAL APPEAL NO. 416 OF 2018 |
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Date of the order |
20-03-2018 |
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Citation
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Criminal Appeal No. 416 Of 2018 (Arising Out of Special Leave Petition (Crl.) No. 5661 of 2017). |
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Jurisdiction
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Supreme Court of India. |
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Quorum
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Hon “ble Mr. Justice Adarash kumar Goel
Hon “ble Mr Justice Uday Umesh Lalit
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Author of the judgement
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Both Hon’ble justice |
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Appellant
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Dr. Subhash kashinath Mahajan |
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Respondent
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State of Maharashtra and Anr. |
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Counsel for appellant
Counsel for Respondent
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Advocate V.M Tarkunde
Advocate Amrendra Sharan |
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Acts and sections involved
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· The constitution of India 1950, Article 21 · Rules of the procedure of the National Commission for scheduled castes, section 3 · The schedule castes and schedule tribes (prevention of Atrocities )Act,1989, section 18 · Code of Criminal Procedure, 1973, section 41 · |
Abstract
The prevention of mistreatment of scheduled castes and scheduled tribes. The Atrocities Act of 1989 was established to protect against individual belongings of scheduled castes and scheduled tribes. Various forms of discrimination and atrocities along with other types of challenges are encountered within the community. The Supreme Court recently released its verdict. The case of Subhash Kashinath Mahajan against the state of Maharashtra. In this judgement, the court responded to the allegation of misuse of the SC/ST Act and filling false cases by imposing some safeguards. The most important of these was that there would be no absolute bar to the application of anticipatory bail in the case of a person accused of the offence in question. The court also ordered a preliminary investigation before registering a first information report (FIR) and a requirement that the investigating officer obtain further consent before making an arrest. In the case of a civil servant, the court noted that that an arrest can only be made with the consent of the police administration. Dalit communities were widely protesting against the judgement that weakened the act. The ruling was controversial. The central government finally offered to file a writ petition and also amended the SC/ST Act to quash the Judgement. In the meantime, petitions have been filed against the amendment because it violates the right to equality and life under articles 14 and 21 of the Constitution. In October 2019, the Supreme Court accepted the appeals and annulled the decision, made in March 2018, by which the law amending the laws was approved.
KEYWORDS: – scheduled caste and tribes, Supreme Court of India, discrimination and atrocities, Right to life article 14&21, allegation of misuse, Arrest etc..
Introduction /Background
To stop crimes and hate crimes against the scheduled castes and scheduled tribes, the Indian parliament passed the scheduled castes and scheduled tribes (prevention of Atrocities) in, 1989. It is commonly referred to as the SC/ST ACT, even in legislative discussions and Supreme Court of India rulings. The atrocities act POA, and POA are other names for it. The Indian parliament passed the scheduled castes and scheduled tribes (prevention of atrocities) Act, 1989 in recognition of the ongoing gross injustices and offences against the scheduled castes and scheduled tribes (which are classified as atrocities in section 3 of the act). At that time, the Protection of Civil Rights Act 1955 and the Indian Penal Code 1860 were deemed insufficient in preventing these hate crimes based on caste and ethnicity. The act was notified on January 30, 1990, after it was enacted by the Indian parliament on September 11 1989. It was notified on January 26, 2016, and received extensive amendments in 2015 including rearranging section 3 sub-sections. After that in 2018 and 2019, it was changed. On March 31 1995 notice of the rules was given. On April 14 2016, they were alerted and completely changed. 2018 saw a few changes to regulations and appendices. A 1990 study of atrocities against scheduled castes and scheduled tribes was carried out by the National Commission for SC and STs. The causes and remedies of atrocities were identified as follows;
Political factions based on caste lines; refusal to carry out customary tasks like clearing out dead animal carcasses, arranging cremations, bidding burial pits, bond; labour, indebtedness, non-payment of minimum wages, caste prejudice and practices of untouchability. Caste is the deep-rooted cause of these crimes as it encompasses a complete ordering of social groups on the basics of the so-called ritual purity. Until they pass away a person is regarded as a member of the caste into which they were born. Dalits have been denied access to essential resources and services are socially and physically barred from both castes of Hindu society, and face discrimination in all facets of life because they are believed to be ritually impure. They thereby experience dehumanizing customs of untouchability, as well as many kinds of exploitation, abuse and violence. Since they are exempt from the caste system and have their own unique culture and worldview, scheduled tribes are also subject to exploitation. The women from these tribes and castes had to carry two loads of work. In addition to being weak and defenceless against sexual exploitation, they were exploited by gender and caste. The period following independence was characterized by an ongoing number of atrocities occurring all over the nation. A few examples include the 1957 Ramanathapuram riots in Tamil Nadu, which were triggered by the assassination of defying the untouchability-based interdicts on scheduled castes. In the 1968 Kilavenmani massacre in Tamil Nadu, which declared 42 Dalits the terrible 1969 murder of Dalit Kotesu in Kanchikacherla, Andhra Pradesh, and the 1978 killings of ten scheduled tribes.
The severity and regularity of atrocities increased over time. For instance, in Bihar there were massacres of Dalits at Belchi and Pipra in 1970 and 1980 in Uttar Pradesh, there was a massacre at Kafalta in 1980 after a Dalit bridegroom rode a horse, in Madhya Pradesh, there were the 1982 killings of Bacchdas in the mandaspur district.
Legislative history
The constitutions foundations
The Indian constitutions articles 15 and 17 serve as the foundation for the Act. Discrimination based on caste is forbidden by Article 15. Untouchability is abolished and its practices in any form are forbidden, reads Article 17 of the Indian constitution. Any impairment resulting from untouchability will be enforced as a crime and will be dealt with according to the law.
The Untouchability Offences Act, 1955
The relevant law, the Untouchability (Offenses) Act (UOA) 1955 was passed five years after the Indian constitution was approved. In 1976, it underwent revisions and became the Protection of Civil Rights Act (PCRA).
Despite lacking a clear definition of the offences the UOA was a significant advancement with multiple enabling provisions. The UOA acknowledged the concept of wilful negligence and showed initiative by explicitly stating that the defendant had the burden of proving that the offenses were not the result of untouchability, since this would be the assumption of the court. The Act was visionary in that it acknowledged the responsibility of businesses and individual in authority, `such as their directors.
The Protection of Civil Rights Act, 1955
The Untouchability Offences Act of 1955 ultimately was determined to be insufficient to end untouchability and punish those who committed it. Following twenty-one years, the parliament renamed the UOA into the Protection of Civil Rights Act (PCRA), 1955, and made numerous revisions to it on November 19, 1976, the prime minister’s birthday. In 1976 this act (PCRAS4 was revised to include discrimination based on untouchability. The punishment for untouchability stemmed from social and religious infirmities.
The Protection of SCs/ STs Act 1989
An Act to prohibit the commission of atrocities against members of the scheduled castes and scheduled tribes, to establish special courts for the trial of such offences, to provide relief and rehabilitation to victims of such offences, and for other purposes related to or incidental thereto. Section 3(1) (r) of the Prevention of Atrocities Act 1989 criminalizes, among other things, anyone who is not a member of a scheduled caste or scheduled tribe in any place within public view. This act may be known as the scheduled castes and scheduled tribes (prevention of atrocities) Act, 1989. It covers all of India save the state of Jammu and Kashmir. It shall enter into force on such date as the central government may, by notification in the official Gazette, determine.
Drives or incites a member of a scheduled caste or scheduled tribes to abandon their home, village or other place of abode faces a minimum sentence of six months, imprisonment a maximum sentence of five years imprisonment and a fine. Recently the Delhi High Court decided that in instances under the scheduled tribes act. 1989, bail cannot be granted until the victims or complainant has had a chance to be heard. There are no other offences that violate the dignity of scheduled caste and scheduled tribe people, like tonsuring of the head shaving one’s moustache, or similar behaviours. Additionally, the penalties have been strengthened there are now provisions for special courts and quick trials.
Facts of the Cases
The complainant, Bhaskar Karbhari Gaikwad, worked at the College of Pharmacy Department. In his quarter confidential Report, his Superiors, Drs. Satish Bhise and Kishor Burade made some disparaging comments.
The plaintiff was a predetermined caste member, even though both of the seniors belonged to non-scheduled castes. His integrity and character were considered to be lacking based on the negative entry.
The complaint filed a formal complaint with the Karad Police, claiming this as justification number one. However, since the two individuals in question were -1 officers, the officers conducting the investigation applied a penalty under section 197 of the CrPc
The accused in this case, the appellant, is charged with violating the Indian penal code of 1860, section 182, 192, 193, and 219 read with 34, as well as section 3(1) (ix), 3(2)(iv), and 3(2)(vii) of the scheduled castes and scheduled tribes (prevention of Atrocities) Act 1989. In the relevant period, he was the state of Maharashtra’s Director of Technical Education.
After being granted anticipatory bail, the appellant applied for the proceeding to be quashed with the high court under section 482 crpc, arguing that he had only made a legitimate administrative order in his official. Even if the directives were incorrect, what he did cannot be considered an offence. The appeal was turned down by the High Court.
Legal Issue Raised Before the Court
1- The question that has come up during the course of this case is whether any unilateral accusations of mala fide can serve as justification for prosecuting officers who handled the case in their official capacities, and if such an accusation is made falsely, what safeguard is in place against such misuse.
2- The matter or questions at hand pertain to the reasonableness of the process in light of Article 21 of the Indian constitution, as well as the possibility of procedural safeguards to prevent the abuse of the scheduled castes and scheduled tribes (prevention of atrocities ) Act, 1989 for non-essential purposes. The notices of return are due on January 10 2018.
3- Whether there is an absolute bar to the grant of anticipatory bail as envisaged in the provision of section 18 of the Atrocities Act.
Arguments from the appellant side
The learned amicus contended that this court has commonly acknowledged the abuse of the power to make an arrest and has mandated that an arrest not be executed mechanically. It has been established that to use the power of arrest, one needs to have a reasonable suspicion that someone is involved as well as that an arrest is necessary. Joginder Kumar versus the state of U.P 6, M.C Abraham versus the state of Maharastra 7, D. Vnkatasubramaniam versus M.K Mohan Krishnamchari 8, Arnesh Kumar versus the State of Bihar 9, and Rini Johar & Ors. Versus state of M.P&Ors.
It was argued that under the Atrocities Act, an initial investigation may be required to forbid the use of arbitrary arrest power in the lack of tangible proof to support a version. It ought to be essential to document the reasons why the information was deemed reliable and an arrest was warranted. When dealing with public employees, the approval of the disciplinary authority must be employees, the approval of the disciplinary authority must be acquired, and in other situations, the Assistant Superintendent of police approval must be sought. The authority issuing authorization should be satisfied with the veracity of the information and the necessity of the arrest before granting permission, based on a preliminary investigation. If an arrest takes place while granted remand, the magistrate must issue a spoken order concerning the propriety of the arrest’s motivations. Without compromising the Act’s stated objectives in any way, these criteria will uphold the rights of affected persons as outlined in articles 14 and 21.
Arrest specifically related to violation of the POA Act Ought to be made only with the Magistrate’s prior approval. This might not be applicable, nevertheless, if an arrest is required for other IPC offenses. Furthermore, the seriousness of the offence must be considered, as the majority of institutional cases are based only on altercations or actions taken by public employees while they were acting in their official capacities.
In addition, the intervener’s attorney argues that the Atrocities Act is Vulnerable to abuse because there is financial reward available for filing a complaint under scheduled castes and scheduled tribes (prevention of Atrocities) Rules 1995 rule 12(4). A financial incentive like this might incentivize not just actual victims, but fake claims could also be filled with no recourse for the harmed parties because there would be no protection against them.
Anand Sakharam Jhadav, claiming to be the convenor of the Bahujan Karmachari Kalyan Sangh, has also filed an intervention application. When the law is clear, the court should not issue guidelines, according to the learned senior counsel representing the intervenor, Shri C.u Singh. There is reliance on the state of Jharkhand and Anr. In opposition to Om Prakash Sharma and Ors. Govind Singh 19, Rohitash Kumar and Ors. Twenty it was argued that this court was not authorized to establish rules that would have legislative authority. Ten SCC 437 (19) (2005).
The name of the person’s next friend who has been notified of the arrest, as well as the identification and specifics of the police officers holding the arrestee, must be recorded in the notebook kept at the place of detention about the arrest.
When an arrestee wants it, he or she should also be evaluated at the scene and any significant or minor injuries that may have occurred should be noted at that time. Both the arrestee and the police officer making the arrest must sign the inspection Memo, and the arrestee must receive a copy of it.
Arguments from the Respondent Side
Thus the argument was made that the aforementioned rulings are only examples of how frequently the rule was abused. A citizen’s reputation both personally and professionally may be unjustly harmed if simple charges are deemed sufficient. The protection of the rights of those who have been the victims of such false accusations must be interests of society and maintaining peace. In each department, the following committee should be established if there are accusations against an employee.
An internal committee may be formed by the employer or head of any institution to investigate complaints and specific issues about atrocities against SC/ST members.
A written complaint with supporting documentation must be submitted to the institution’s internal committee before filing a formal complaint or a formal police report.
This committee may be authorized to hear testimony from both parties and other sources to determine if there is a prima facie case under the POA Act.
Yogendra Mohan harsh has requested additional involvement. The intervener’s learned attorney argued that the act will become ineffectual and toothless if amicus submissions are allowed given the rise in crimes against SCs and STs.
Related legal provision
ARTICLE 14– discrimination based on caste, race, religion, place of birth, or sex is outlawed under Article 14. This article is broad in scope and applicable to protect the rights of individuals living in India.
Equality before the law; – According to this section of the text everyone must be treated equally in the eyes of the law. This idea is detrimental since it suggests that no one has any privileges. This section of the article is significant.
Equal safeguard under the law; – this clause states that everyone in society would be treated equally under the law. This idea is constructive because it anticipates the state taking constructive action. This is a procedural part of Article 14.
Article 21; – according to Article 21, no one may be taken from their life until the legal process has been followed. This implies that everyone has the right to life and that only the established legal process may be followed to take away someone’s life. The right to a healthy environment, the right to a livelihood, and the right to live with dignity are all included in the right to life. Individuals’ liberties are likewise safeguarded by Article 21. It declares that no one may be deprived of their freedom other than in compliance with the legal process. The freedom to go around freely, to select one’s domicile, and to pursue any legal profession or other activities are all examples of personal liberty.
Judgement
After carefully examining all of the arguments. submissions, and evidence presented by both parties, the court concluded that absent another crime specifically designated as an arrestable offense in place of those listed under the atrocities act, no arrest of a member of the public may be made without the written consent of the hiring authority. It was further stated that if the individual being arrested is not a public employee, they cannot be detained without the senior superintendent of police of the district authorising in writing, as long as they are served with a copy of the written permission and the reasons why before the court. It was said that the magistrate must consider the documented grounds when the arrested person is brought before him or her, and such detention should only be permitted if the accusations are determined to be valid. It was decided that to prevent bogus complaints and FIRs a preliminary investigation be conducted to determine whether the situation is covered by the atrocities act.
Related case laws
1- Vishakha versus state of Rajasthan (1997) 6 SCC 241
2- Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161
3- Lakshmi Kant Pandey vs. UOI (1983) 2 SCC 244
4- M.C. Mehta vs. State of T.N (1996) 6 SCC 756 27
5- Supreme Court bar lesson vs. UOI (1998) 4 SCC 409
References
https://indiankanoon.org/search/?formInput=citedby:108728085
