A Stepping Stone towards the abolition of Reservation
By Shachi Singh and Abhijeet Singh
National Law University, Jodhpur
"Edited by Aayush Agarwal"
The Supreme Court has yet again fueled schism among the masses on the basis of Caste. Caste has repeatedly become the building block of castles of riots. In the decision ruled on 20th March regarding the case of Subhash Kashinath Mahajan v. the State of Maharashtra, the Supreme Court has allegedly diluted the special protection granted to SCs and STs under Prevention of Atrocities Act, 1989 [hereinafter “POA”].
SC and ST organizations called a “Bharat Bandh” on 2nd April 2018 to register their protest, leading to unwarranted casualties. In brief, the factual matrix of the case involved an appeal from the head of a technical institute, who mentioned some entries against an employee belonging to the group protected under POA. The employee accused the head of acting ultra vires while mentioning entries, claiming that only the state government was empowered to do so. The High Court of Bombay refused to quash the proceedings initiated against the ‘head’, prompting the employee to file an appeal in the apex court. The ensuing order from the Supreme Court has triggered either violent reactions or eulogies. Likewise, the legal fraternity is split with regard to the Supreme Court’s order. Most of them have labeled it as a dilution of the shield guaranteed by the POA.
The following are interpretations of Criminal law and Constitutional principles in order to analyze whether the Supreme Court has succeeded in giving the POA its justified interpretation.
To begin with, it is pertinent to gauge through the object and purpose of the POA:
“Despite various measures to improve the socioeconomic conditions of SCs & STs, they remain vulnerable. They are denied a number of civil rights; they are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious atrocities are committed against them for various historical, social and economic reasons.”
However, courts in India, including the apex court, have not sighed away in recording the abuse of POA in a catena of judgments [K. Aravinda Rao vs A.Sunder Kumar Das and Others, N.V. Ramana Raju and another vs. The State of Public prosecutor, Gorige Pentaiah vs. State Of A.P. & Ors] wherein courts have quashed the proceedings in light of the frivolous nature of the complaint.
In the same trail, the Supreme Court reportedly ordered the prosecution of Public servants under POA without prior sanction of the appointing authority. It is worth notingthat Section 197 of the CrPC (1973) provides for protection against the initiation of criminal proceedings of public servants and mandates the prior sanction of the appropriate authority. In the case of Inspector of Police and Ors Vs Battenapatka Venkata Ratnam and Ors [2015(5) SCALE 253], the SC reinforced its stance wherein it stated that the sanction is deemed necessary. The object and purpose behind the provision is to guard against any vexatious or malicious proceedings against the public servants without securing the opinion of theeir superior [DIR of Inspection and Audit v C.L. Subramanian]. This bar, in cognizance of an offence by a public servant, is absolute [State of Maharashtra v Subbarao]. Therefore, the POA cannot be read down to take away this guard. Legislative intent behind the POA’s provision with regard to punishment of public servant under sections 3(1)(ix) and 3(2)(vii) cannot be read down to deny required protection and deter them from performing their bona fide duties.
The principle of ‘Presumption of Innocence’ is a human right. This principle has been amply recognized in the International Covenants of ICCPR and ICSCER. Stemming from this human right and in view of the innumerable instances of POA’s abuse, the Supreme Court considered a blanket ban on anticipatory bail under Section 18 irrational. Since the protection of one’s rights does not warrant the violation of another’s rights, the denial of anticipatory bail under section 438 of CrPC is unsubstantiated. The denial of anticipatory bail under Section 18 of the POA was in clear violation of the aforementioned human right. Furthermore, in some other statutes which dealt with graver offences, viz. Unlawful Activities (Prevention) Act (1967), (for short "the UAPA Act" Terrorist and Disruptive Activities (Prevention) Act, 1985), Narcotic Drugs and Psychotropic Substances Act (1985), the acts had provisions pertaining to the restriction on bail. However, none of them ventured into the arena of anticipatory bail. The Supreme Court also imported the extended meaning of Article 21 of due process of law from Maneka Gandhi v Union of India. This ban under Section 18, as the court very rightly observed, would be infructuous when an accused in the POA can approach the court under Section 437 immediately after arrest. Hence, the rationale behind denial of right of the offenders under Section 18 of the POA to prevent them from terrorizing the victim group stands frustrated as they would be keen on being arrested so as to quickly get bail and attain freedom. The court has on numerous instancesobserved that bail is the rule, not the exception. Thus, the incorporation of this section was a deliberate endeavor of the legislature to mollify the depressed sections of society.
The Supreme Court also cited seminal Indra Sawhney’s judgment to interpret the POA in a manner which reinforces the secular structure of society. The authorities’ actions or legislations should not, in any manner whatsoever, usher anathema into the society on the basis caste or religion.
It is worth mentioning that the POA does not cover offences within the community of SCs and STs. In the wake of rising economic disparity, there is a high probability of such offences. The legislature must amend the act to prevent the abuse of the POA. Nevertheless, it is the responsibility of adjudicating bodies to dispense justice in its true sense. Justice should be served, but not at the cost of violating the rights of other sections of society. Undoubtedly, the court’s invocation of mischief rule buttresses the interpretation to uphold fundamental rights of non-SC/ST groups. The actions taken under the POA must not be disproportionate; real offenders must be targeted while the innocent should be left outside its sweep.
This judgment may possibly be a stepping stone towards the abolition of obsolete measures of reservation in order to build an egalitarian society.