"A law is valuable not because it is law, but because there is right in it."

Caste system, an inalienable feature of India's identity, although devised for a higher objective as to categorise people according to their aptitude and skill for the proper functioning of society, always acted as an impediment to the brotherhood and fraternity of the nation. Since time immemorial, efforts were made to tackle the problem of atrocities against the marginalized people of society but the outcome was never up to the mark. The social and political institutions came up with different approaches at different times but no approach is better than that to give legislative or statutory safeguard & The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is one such example.

The whole Objective of criminal law, in an ideal state, is to balance the society's right to punish with the individual's right to bail and that is why every punitive legislation bears the two side of the coin, the rights of the accused and Rights of victim, which is necessary to be balanced in order to achieve real justice for all and The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is no exception.

On one hand, this Act protects the rights and interest of the marginalised by providing stringent provisions of punishment in case of atrocities against them, while on the other hand , absoluteness of the provisions paved the way for its misuse. This can be inferred from NCRB data for the 10-year period from 2007 to 2016, which shows an average conviction rate of 28.8 in crimes against Scheduled castes and 25.2 in crimes against Scheduled tribes. The average conviction rate for all crimes under the Indian Penal Code is much higher at 42.5.

In 2022, the NCRB reported a 13.1% increase in crimes against SCs, and a 14.3% increase in crimes against STs but the conviction rate fell by 2% from 36% in 2021 to 34% in 2022. Further the Supreme Court also recently asserted that the SC & ST (Prevention of Atrocities) Act, 1989 has become an instrument of "blackmail" and is being used by some to exact "vengeance" and satisfy vested interests.

In this article we will try to analyse and understand the chronological order of the developments that took place to ensure the just and effective implementation of the Act by negating every possible point of misuse.

Before delving into the developments it is necessary to understand the ignition point of the debate, the relevant provisions relating to pre FIR investigation and anticipatory bail under SC/ST (Prevention of Atrocities) Act, 1989

Section 18. Section 438 of the Code not to apply to persons committing an offence under the Act.— Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act

Section 438 of the Code of Criminal Procedure, 1973 ( Presently under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023) – This section provides provision of anticipatory bail which can be granted by the concerned High Court or the Court of Session to the person apprehending arrest.

The Beginning
Story starts with the case of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & Anr., (2018) 6 SCC 454, in which Honourable Supreme Court held that:

• There is no absolute bar against the grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where, on judicial scrutiny, the complaint is found to be prima facie mala fide.
• In view of the acknowledged abuse of the law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after the 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 scrutinised by the Magistrate for permitting further detention.
• To avoid the false implication of an innocent, a preliminary enquiry (within 7 days) 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.

After this case, the continuing position changed; now, if no prima facie case is established, the court shall have the power to grant anticipatory bail. Further, the police shall conduct a pre-FIR investigation to check whether the case is genuine or not.

Amendment Act of 2018

After this case, in 2018, the Government came up with The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Amendment Act 2018, and by this Amendment, a new section 18A was added to the Act, to get rid of the situation that was caused by the Dr. Subhash Mahajan Case.

Sec 18A. No enquiry or approval required.

1. For the purposes of this Act—
   • preliminary enquiry shall not be required for registration of a First Information Report against any person; or
   • the investigating officer shall not require approval for the arrest, if necessary, of any person against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
2. The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.

On the perusal of the provision, it is clear that the amendment restored the pre-Kashinath position and indirectly made the decision of Kashinath ineffective. After this amendment, the Union Government filed a review petition of this case, which was decided in the name of - Union Of India Vs State of Maharashtra & ORS [2019] 12 S.C.R. 1125. In this case, the court held that:

1. As the members of the Scheduled Castes and Scheduled Tribes have suffered for long, protective discrimination has been envisaged U/A 15 of the Indian Constitution and the 1989 Act to make them equals. The directions issued by the court in Kashinath are riders on the right to arrest.
2. The offences under the SC/ST Act are cognizable in nature, and to say that a report lodged by an SC/ST would be registered only after a preliminary investigation by Dy. S.P, whereas under Cr.PC a complaint lodged relating to a cognizable offence has to be registered forthwith, would mean that a report by an upper-caste has to be registered immediately and arrest be made forthwith, and thus would be opposed to the protective discrimination meted out to the members of the SCs and STs as envisaged U/A 15, 17 & 21.
3. The court held that the directions issued by the court in the Kashinath case are legislative in nature, so are liable to be set aside.
4. The direction for the prior permission for the arrest of the public servant is discriminatory and would cause several problems.
5. There is no need for conducting a preliminary inquiry for lodging of the FIR. This requirement will cause delay only in the process of administration of justice.

Now, on the analysis of the above observations, it is clear that this case also paved the way in favour of the government. But, in the evolving and maturing democracy of India, acceptance of any legislation by society is not an easy task, and like every other legislation, the Amendment Act was also challenged before the court to determine its constitutionality in the case of Prathvi Raj Chauhan Vs Union Of India.

Prathvi Raj Chauhan Vs UOI & others [2020] 2 S.C.R. 727

While deciding on the constitutionality:

1. The court upheld the constitutionality of the 2018 Amendment.
2. Concerning the applicability of provisions of section 438 Cr.PC, the court said that it shall not apply to the cases under the 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.
3. The preliminary inquiry is possible only in the situations which are mentioned in the case of Lalita Kumari Vs State of Uttar Pradesh.

So after this case, the position is:

• No preliminary inquiry is required.
• Anticipatory bail shall not be given if the case is prima facie established.

Here it is important to note that, although Court upheld the constitutionality of the amendment Act of 2018 and held that there is no requirement of any preliminary inquiry but, court added an important condition that in case of non establishment of prima facie case, there would be no bar to anticipatory bail. Thus it is the duty of the Court to ensure that there is a prima facie establishment of case, before denying the request of bail.

Shajan Skaria v. State of Kerala 2024
This case was related to the arrest of the editor of Malayalam YouTube News Channel 'Marunadan Malayalee' Shajan Skaria in a criminal case under the SC/ST Act over making alleged derogatory remarks against MLA PV Sreenijan.

Honourable apex Court affirmed and reiterated its decision made in Prathvi Raj case and held that if the necessary ingredients to constitute an offence under the Act are not disclosed on a prima facie reading of the allegations in the complaint or FIR, the bar under Section 18 of the Act would not apply. Court observed

"If on a prima facie reading of the materials referred to in the complaint and the complaint itself, the ingredients necessary for constituting the offence are not made out, then the bar of Section 18 would not be applicable and it would be open to the courts to consider the plea for the grant pre-arrest bail on its own merits"

The Court noted that the expression "arrest of any person" under Section 18 of the Act bars anticipatory bail only in cases where a valid arrest can be made under Section 41 read with Section 60A of the CrPC. Court said:
"It can be said that the bar under Section 18 of the Act, 1989 would apply only to cases where prima facie materials exist pointing towards the commission of an offence under the Act, 1989. We say so because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied"

By imposing duty on the trial courts, the apex court observed that:
"The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989"

Apex court also referred Vilas Pandurang Pawar v. State of Maharashtra 2012 in which it was observed that while Section 18 of the Act, 1989 creates a bar on invoking Section 438 of the CrPC, courts must verify if a prima facie case under the Act is made out.

Present position:

• There is no requirement of any pre investigation for the registration of the case under the Act
• Anticipatory bail would be denied on the establishment of prima facie case

Conclusion
A society's development is only as profound as its commitment to including and elevating the marginalized. True progress is reflected in how we address disparities and ensure that every voice is heard and valued. However it is equally important to ensure that while achieving this objective, the rights and interest of the other half should not get hampered.

This new epoch of 21st century is now replacing the caste as a social status with the economic status of the persons so although It is important to ensure the protection of the lower class from the atrocities of the upper class but every step in furtherance of this, every legislation and provisions should be so construed so as to minimize any kind of misuse.

Although the apex court took a stricter view against the potent misuse of the Act in recent cases,while considering the higher registration of cases and lower conviction rate, another important dimension for this cause is however overlooked by the court.

What the court is talking about is the intentional misuse of the Act leading to higher registration of cases but there are also several other factors which contribute to the lower conviction rate under the Act. Mistake of fact, Lack of Knowledge about the elements constituting crime under this Act, to the police officials and poor procedural conduct of these officials also contributes to the lower conviction rates. According to a study conducted by Economic & Political Weekly,nearly 50% of cases filed under the Act do not go to court and are closed by the police.

These aspects also need attention in order to cope up with the existing drag.

Written By: Muhammad Iftekhar Khan & Kapil Dwivedi, Student of 3rd Year LLB(Hons.) at Banaras Hindu University