“Social progress can be measured by the social position of the female sex” - Karl Marx


The Dalits and the Law

"...The third circumstance which adds to the helplessness of the Untouchables is the impossibility for the Untouchables to obtain any protection from the police or justice from the courts. The police are drawn from the ranks of caste Hindus. The Magistracy is drawn from the ranks of caste Hindus. The police and the magistracy are the kith and kin of caste Hindus. They share the sentiments and the prejudices of caste Hindus against the Untouchables. If an Untouchable goes to a police officer with a complaint against caste Hindus instead of receiving protection he will receive abuse. Either he will be driven away without his complaint being recorded or, if it is recorded, it is recorded falsely to provide a way of escape to "touchable" aggressors. If he accuses his offenders before a Magistrate the fate of the proceedings can be foretold. He will never get "touchable" witnesses because of the conspiracy of the villagers. If witnesses are untouchables the Magistrate will not accept their testimony as they are seen as the interested party and not independent witnesses. If the witnesses are independent, the Magistrate acquits the accused by saying that the Untouchable complainant did not strike him as a truthful witness. He can do this fearlessly because he knows full well that the higher tribunal will not reverse his finding because of the well-established rule which says that an appellate court should not disturb the finding of a Magistrate based upon the testimony of witness whose demeanor he observed..."

(Essay on Untouchables and Untouchability: Political Chapter 3 'Held at Bay' written by Dr Babasaheb Ambedkar)

The above statement by Dr. Babasaheb Ambedkar shows the harsh reality prevalent not only at his time but continues to be a part of today's life also.

On March 20, 2018 on historical Mahad Satyagraha Din celebrated as a day of reclaiming the basic human rights of the untouchable community, a division bench of the Supreme Court of India headed by Justice A.K. Goel and Justice Uday U. Lalit delivered a judgement that diluted the 'concept of inquiry' in the SC/ST Prevention of Atrocity Act 1989. This rendered the inquiry toothless, making the Act a non-starter at its inception.

Critics of the judgement would have responded differently if the Division Bench had chosen another day to deliver the judgment, rather than be seen as rubbing salt in the wound and slurring the image of the Honorable Supreme Court. The Division Bench of Honorable Supreme Court should have desisted from hearing the case, as the issue was only the quashing the FIR in question that the Honorable High Court of Bombay refused to do in the case of petitioner Mr. Mahajan, leading to the petition being filed before the Supreme Court.

In the confidential report, Gaikwad, the original complainant had filed an FIR against Mr. Barde and others for using abusive words. The investigating officer of Satara Police Station applied for permission from the state government under section 197 of the CrPC.

Before the application reached the proper authority of the State Government, Mahajan, director and in-charge of Higher Technical Education disposed it at his level, saying that no wrong has taken place and hence permission to prosecute is denied. Based on the refusal to prosecute, the inquiry officer filed a "C" Final Report before the court.

Complainant Gaikwad was aggrieved by the refusal of permission. He filed a complaint with the police against Mr. Mahajan on the ground that Mr. Mahajan does not have the power or authority to grant or refuse the sanction/permission to prosecute, and therefore has acted to save the accused. Against this FIR Mahajan filed a Writ Petition to quash the FIR. The Honorable High Court refused to quash the FIR on grounds that there is enough proof for prosecuting the accused. Aggrieved by the High Court's refusal, Mr. Gaikwad rushed to the Supreme Court.

Even the second FIR the same would follow the same procedure. As Mahajan is a government servant an application under section 197 of the CrPC needs to be submitted by the investigating officer of the police to the state. The judgment of the Honorable Supreme Court does not mention how the petition is being heard before permission is granted by the proper authority to prosecute. It is not possible to take action by the investigating officer before that permission is granted.

The other important aspect to note in this case is that no arrest was necessary as nothing was to be recovered. Every aspect of the case depended on the confidential report. The question that arises here is if it was necessary for the court to take up the issue of dignity/safeguard of the accused despite the fact that the Atrocity Act is victim and complainant centric.

What the court has not taken into the consideration is that both complainant and the accused are protected under article 21 of the Constitution of India that guarantees right to life and liberty with dignity. The court had an opportunity to lay down guidelines as to who is guilty, in case of a conflict between the fundamental rights of two citizens.

Their lordships should have desisted from admitting the case in the first place and should not have laid down general principles to dilute the provisions of inquiry under the Atrocity Act. After the perusal of the judgement, the guidelines are contrary to section 14 of the Act. The judgement completely ignores some issues considered by parliament that no injustice be done to SC/ST communities, either civil or criminal.

This authorises the District Magistrate and, or Deputy Superintendent of Police to place the matter before the special judge appointed under the act that can take cognizance of the judicial process. Before arresting the accused, the judicial court has to be satisfied. By laying down the guideline the Division Bench of the Honorable Supreme Court cast aspersions and doubts thereby creating parallel machinery.

This affected the powers of the judicial act as the charge sheet was scrutinized, casting further aspersions on judicial officers appointed by the high court. It is also important to note that the Honorable Supreme Court in a Special Leave to Appeal petition filed by petitioner Mr. Mahajan interpreted the provisions of the act by not hearing the stakeholders, social activists and subject experts.

Therefore it can be said that the required principle of natural justice has not been followed.

In the said judgement the Division Bench of the Honorable Supreme Court ought to have considered the fact that, Section 18 (Bar of Anticipatory Bail) has already been tested upon by the Constitution Bench of Honorable Supreme Court by the Judgement of State of MP vs Ram Krishna Balothia which has categorically held it as valid to the Constitution of India. Further the Honorable Supreme Court without quoting and substantiating its own judgement was pleased to quote the judgements of the various High Courts which predominantly includes Gujarat High Court to how the law has been misused but failed to show statistics/data or an earlier judgement passed to substantiate the contention of misuse.

It is observed in the judgement that the Honorable Supreme Court has failed to appreciate the fact that in its wisdom Parliament enacted the SC/ST Atrocity Act for the protection of the SC/ST people from atrocities and not to protect/safeguard the accused. The Honorable Supreme Court further failed to interpret that the guidelines can only be laid down in the absence of legislation but in the present case the Honorable Supreme Court's directive is contrary to the agreed principle.

It is pertinent here to mention that the Atrocity Act is a Special Legislation that protects the victim under Article 21. In the present judgement the Hon'ble Supreme Court interprets the guidelines to safeguard the alleged accused and his rights under Article 14 and 21. It is not possible to do this to any government authority (SSP or Appointing Authority in terms of Public Servant) as it falls solely in the domain of Legislature i.e. Parliament.

Therefore the present case of Mahajan can be treated as an example of judicial overreach on legislative powers of parliament. On the question of Section 18 (bar to the anticipatory bail) the Supreme Court has already enumerated that the judge who decides anticipatory bail of an accused under Atrocity Act has to see if the prima facie case is made. If yes then the accused cannot avail anticipatory bail but when it is not made then the judge can pass the order of granting pre-arrest protection.

Despite this indirect protection that is not part of section 18, the creation of obligation on the part of Senior Superintendent of Police to give approval and permission to victim before lodging the complaint is a complete misinterpretation, amounting to a re-writing of the law by the Honorable Apex Court.

The Supreme Court observed in the present judgement that misuse is judicially acknowledged which is evident from the text of the judgement that no judgement of the Supreme Court is quoted to substantiate the fact but certain high court judgements are referred to. In addition to this, the Supreme Court mentions in its judgement the objective and reasons of the Atrocity Act, quoting, "it was observed that members of SC and ST are vulnerable and are denied number of civil rights and they are subjected to humiliation and harassment. They assert their rights and demand statutory protection. Vested interests try to cow them down and terrorise them. There was an increase in the disturbing trend of commission of atrocities against members of SC and ST. Thus, the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation".

Despite these clear objectives of the said Act, the Honorable Supreme Court tried to topple down the Atrocity Act by creating parallel legislation in the name of safeguarding the accused and also by diluting the threat of being arrested, creating parallel legislation to take powers of parliament in its hand which can be said to be amounting to re-legislating the said Act by the Honorable Supreme Court which it is not empowered to do as per the separation of the powers theory.

It is a fact that the Honorable Supreme Court can issue guidelines when there is a lacuna or absence of any legislation but in the present case the Special Legislation SC/ST Atrocity Act is self sufficient to some extent to curb the menace of atrocity inflicted upon the SCs/STs.

It is further noted that, the present judgement is in contradiction to the Lalita Kumari judgement that says that the lodging of a FIR is mandatory. Therefore by asking permission from the SSP for lodging a complaint goes against the mandate laid down by the Lalita Kumari judgment. Therefore by not hearing the stakeholders and representative of public at large, this judgement goes against the principal of natural justice which is a pre-condition for the applicability of the judgement.

It is the bitter truth of our society that due to this judgement the castest forces will be strengthened and the Manuwadi forces will be in a position to rejoice. No doubt that the Supreme Court has power but in this case only the issue between the parties should have been settled. By not sticking to the principle the judgement is to travel beyond powers.

Therefore, we demand and request the Supreme Court to refer this judgement to a larger bench for considering the above observations and to decide whether the Supreme Court can dilute the powers granted to a special judge/special court and inquiry officer by re-legislating it which is contrary to the Constitutional separation of power theory?

If this is not decided soon then the reality pointed out in the above quote/statement of Babasaheb Ambedkar will continue to be relevant till socio-economic equality envisioned by the father of the Constitution is not realized.



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