Day 2 Arguments

January 24th 2019

The 3 Judge bench of the Supreme Court began hearing the challenge to the 2018 Amendments to SC/ST (Prevention of Atrocities) Act 1989 which had effectively nullified the Supreme Court judgment in Kashinath Mahajan. In 2018, Parliament added Section 18A to SC/ST (Prevention of Atrocities) Act to overturn safeguards introduced by the Supreme Court in its Kashinath Mahajan judgment. Section 18A undoes all three safeguards introduced:

1. Conduct a preliminary enquiry prior to the registration of a First Incident Report (FIR)
2. Investigation officer must receive further approval prior to effectuating an arrest
3. Grant anticipatory bail to any accused, notwithstanding any judgment or order or direction of any Court.

A 3 Judge Bench is looking into the constitutional validity of these amendments and comprises AK Sikri, Ashok Bhushan and Abdul Nazeer JJ.

Today, Attorney General KK Venugopal submitted that the present challenge should be heard only after the review petition of Kashinath Mahajan is decided. It is to be noted that Parliament passed these amendments, while the Court was still hearing the review petition.

The counsel Vikas Singh representing the petitioners Prathvi Raj Chauhan and Priya Sharma objected by saying that the latest Amendments have an effect on citizens’ fundamental rights and urged the Bench to form a high powered committee headed by a Retired Supreme Court Judge to monitor the implementation of the Act.

AK Sikri J observed that the review will be heard by a different bench as Justice AK Goel, who was hearing the review petition, has retired. Conventionally, review petitions are heard by the same judges who decided the case. Sikri J suggested tagging the review petition with the present petition. Counsel Indira Jaising agreed, but Mr. Singh objected. Mr. Singh submitted that the Amendment should be stayed until the review petition is decided. He added that there cannot be review hearings and a substantive challenge to the Amendment at the same time.

Justice Sikri dictated the orders. The matter will be mentioned before the Chief Justice for it to be tagged along with the review petition.