In September 2012, the Supreme Court passed detailed guidelines regarding the implementation of the RTI Act. Criteria for selection to the Central Information Commission and the composition of its benches were also evolved by the Court. None of these guidelines were envisaged under the RTI Act. The Centre immediately sought review of the judgment. It contended that these guidelines were legislative in nature. They could not have been passed by a court.
Arguing the Centre’s review petition, the then Attorney General told the judges - “The guidelines maybe desirable. But what is desirable, and what is permissible, are not always the same thing.” The review petition was allowed. The Court acknowledged that it had “read in” words into the provisions of the Right to Information Act. It went on to hold that this was impermissible. The guidelines were recalled.
Two weeks ago, the Supreme Court passed a judgment, “reading in” wholesale changes into the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. As one would expect, the decision has drawn extreme reactions. It is also to my memory, the first instance of a judicial verdict, leading to violent protests across the country.
It is imperative to first understand the background of the controversy. Certain adverse remarks were recorded in the Annual Confidential Report of one Bhaskar Gaidwad by his superior officers. Gaidwad sought permission to prosecute them under the Atrocities Act. This was declined by one Subhash Mahajan, acting in his capacity of Director of Technical Education, Maharashtra. Mr. Gaidwad then proceeded to lodge a complaint against Mr. Mahajan, under the same Act. Mahajan was granted anticipatory bail.
He then sought quashing of the complaint before the High Court. It was argued that he had merely passed a bonafide order acting in his official capacity. This could not amount to an offence under the Atrocities Act. The contention was rejected by the High Court. While admitting Mr. Mahajan’s petition, the Supreme Court observed that there was a need to provide procedural safeguards under the Act.
The first issue before the Court was whether Section 18 of the Act created an absolute bar to Anticipatory Bail, in a complaint filed under the Atrocities Act. The Constitutionality of the provision has already been upheld in Ram Krishna Balothia’s case. The Court relied on its previous judgments in Vilas Pandurang Pawar and Shakuntla Devi to hold that the bar against anticipatory bail was not absolute. Rather, in cases where “when no case is made out or allegations are patently false or motivated”, anticipatory bail could be granted. It is difficult to disagree with the finding of the Court on this score. Freedom from arbitrary arrest is one of the fundamental facets of the rule of law.
Unfortunately, this is the sole portion of the Judgment I find myself able to agree with. The rest of it is peppered with incomplete data, hearsay evidence and faulty reasoning. Even Dr. Ambedkar is quoted out of context, for good measure. For example, the court cites NCRB data stating that 75 % of cases under the Atrocities Act have resulted in acquittal or withdrawal/compounding. The court holds this as evidence of misuse of the Act. However, the court ignores the same NCRB data which shows that over the last ten years (2007-2017), there has been a 66% growth in crimes against Dalits and that rapes of dalit women have doubled in the last 10 years. No data is cited to the number of acquittals/withdrawals in case of other criminal offences.
The Court also relies on the observations of a Standing Committee of Parliament on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014. The report had stressed on the need for safeguards against arrest under the Atrocities Act. The admissibility of such reports in judicial proceedings is uncertain. That said, the Court fails to note that the report was tabled in Parliament on 19th December, 2014. The amendment to the Act was carried out in January, 2016. The recommendations of the Standing Committee were not accepted. Rather, changes were made in order to give more teeth to the existing law.
The Ministry of Tribal Affairs notes that by way of the 2016 amendment, “the act has been strengthened to make the relevant provisions of the Act more effective.” in light of the “complaints/ allegations of atrocities despite provisions of the enabling act….” The legislative policy thus was to further strengthen the regime. The Court has done the opposite.
The bench also cites the Constitution Bench Judgment in Lalita Kumari to hold that an FIR must be registered in case a cognizable offence is disclosed. However, it goes on to hold that a case under the Atrocities Act, falls under the ‘exceptional category’ mentioned in Lalita Kumari. In such cases, a preliminary enquiry is to be held before registration of an FIR. The Court has also held that arrest of a public servant can only be carried out after approval of the appointing authority. In the case of a non-public servant, approval would be required from the Senior Superintendent of Police. These directions have neither basis in fact nor any justification in law. In effect, they “read in” amendments to the existing law.
Under our Constitution, there is a broad separation of powers between the three organs of the state, i.e. the legislature, executive, and judiciary. Ordinarily, one organ of the state seldom encroaches into the domain of another. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. Simply put, the duty of a Court is to decide what law is and not what it should be. This judgment however, is a case of the latter. Bear in mind that in July last year, the same bench had passed detailed guidelines in order to ‘curb misuse’ of domestic violence laws. The judgment is now being reconsidered by a larger bench.
Under pressure from all quarters, the Government was quick to file a review petition. During the hearing that took place yesterday (3rd April), the Court indicated that it was unlikely to review its decision. However, the matter has been posted to next week. Parties have been given time to file arguments.
The judgment is a text-book case of judicial overreach. It is also troubling for the sweeping generalizations it makes in the absence of any clear evidence. This will lend credence to anecdotal evidence regarding the misuse of the provisions. In the final result, the Judgment will only make it more difficult to get FIRs registered in “genuine cases”. Changes to the Atrocities Act may or may not be desirable. However, it is not permissible for the Court to make these changes. That is a decision best left to the legislature, which is equipped to take a call upon hearing all the stakeholders and analysing available data. One hopes that better sense prevails, and the guidelines passed are withdrawn.
Pranjal Kishore is a lawyer who practises in the Supreme Court. He tweets as @parahoot