Judgment in Plain English (Review Petition)

On October 1st 2019, the Bench comprising Justices Arun Mishra, M.R. Shah and B.R. Gavai delivered its judgment in the review petitions filed against the decision in Subhash Kashinath Mahajan(2018). In the 51-page judgment authored by Justice Mishra, the Bench recalled the Court’s directions in Subhash Kashinath Mahajan in relation to the regustration of FIRs and arrest of persons under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (‘Act’). Following are the directions which have been rendered invalid by the Bench:

• Arrest of a public servant can only be effected after acquiring the approval of the appointing authority
• Arrest of a non-public servant can only be carried out after acquiring the approval of Superintendent of Police
• In giving such approval, the approving authorities have to record reasons for the same
• Such recorded reasons must be scrutinized by the Magistrate for permitting further detention
• A preliminary enquiry must be carried out before the registration of FIRs under the Act by Dy.S.P. level officers of police to ascertain whether the allegations are frivolous or motivated

In relation to the grant of anticipatory bails for offences under the Act, the Court held that adequate safeguards were already in place. Placing reliance on the judgment in State of Madhya Pradesh v RK Balothia (1995), it observed that if no prima facie case has been made out, the bar on granting anticipatory bails under the Act will not be attracted.

The Court primarily provided three reasons for its recall:

1. The directions were issued under Court’s extraordinary powers under Article 142, which is to be exercised only when there is a legislative vacuum or lack of clarity in the existing provisions of a legislation. The Court in Subhash Kashinath Mahajan was not confronted with either of these scenarios

2. Directions introduced new fetters on registration of FIRs and making arrests under the Act. Such fetters were even more onerous than those found under the general law – Code of Criminal Procedure, 1973. This amounted to the unequal treatment of the members of the Scheduled Caste and Scheduled Tribe communities

3. Most of the directions were impractical

A more elaborate account of these reasons are provided below:

Court did not have the power to issue the directions

The Court noted that the directions in Subhash Kashinath Mahajan were issued by invoking its extraordinary powers under Article 142. Such exercise of powers are typically allowed only when there is a legislative vacuum (i.e., no law exists on the subject) or there is a lack of clarity on what the law is. In this case, the Court noted that there was neither a legal vacuum nor any ambiguity. Thus, the directions intruded into the sphere of policy making, which is beyond the powers of the Court.

Directions treated the SC/ST community unequally

The Court also placed emphasis on how the directions created an unequal legal regime for the members of the Scheduled Caste and Scheduled Tribe communities. In this regard, it pointed out how the directions placed new fetters on registering FIRs and making arrests under the Act. Such fetters were even more burdensome than the ones found under the general law governing the processes – the Code of Criminal Procedure, 1973. By creating a separate legal regimen for the offences under the Act, the directions further perpetrated the inequality suffered by the members of the Scheduled Caste and Scheduled Tribe communities.

Directions were impractical 

The Court also pointed to the impracticality of the directions. For instance, if a public servant has to be arrested, the approval of the appointing authority has to be obtained first. This will unduly delay the arrest. Moreover, the approving authority would not in most cases be fully informed of the facts of the case to provide a reasoned opinion on whether or not the arrest has to be made.