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Home / India News / Amendments to the SC/ST Act constitutionally valid: Top court

Amendments to the SC/ST Act constitutionally valid: Top court

Supreme Court upheld the validity of the 2018 amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act) which had, among other things, reintroduced the bar on anticipatory bail to those accused under the Act.

india Updated: Feb 11, 2020 01:19 IST
Murali Krishnan
Murali Krishnan
Hindustan Times, New Delhi
A view of Supreme Court
A view of Supreme Court(Amal KS/HT PHOTO)

The Supreme Court on Monday upheld the validity of the 2018 amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act) which had, among other things, reintroduced the bar on anticipatory bail to those accused under the Act.

The judgment was delivered by a bench of justices Arun Mishra, Vineet Saran and Ravindra Bhat.

Parliament had, by an amendment to the SC/ST Act, introduced section 18A in 2018. The government had resorted to this step to undo the March 2018 judgment of the Supreme Court in Dr Subhash Kashinath Mahajan vs The State of Maharashtra.

In that judgment, the Supreme Court introduced some safeguards to the SC/ST Act in response to allegations of abuse of the SC/SC Act and the filing of false cases. Foremost among them was that there would be no absolute bar on the grant of anticipatory bail to a person accused under the Act if no prima facie case is made out, or where, on judicial scrutiny, the complaint is found to be false.

The court in that judgment had also mandated a preliminary inquiry by a deputy superintendent of police (DSP) prior to the registration of a first information report (FIR) and requirement of investigation officer to get further approval prior to effecting an arrest.

In the case of a public servant, the court said that arrest can be made only after the approval of the appointing authority and in case of a non-public servant, after approval by the senior superintendent of police (SSP). The judgment, which virtually diluted the provisions of the act, led to widespread protests by Dalit communities.

The central government eventually moved to file a review petition against the judgment and also amended the SC/ST Act to get over the court’s judgment.

The August 2018 amendment inserted section 18A in the SC/ST Act. This new provision did away with the three major requirements which were mandated by the Kashinath judgment.

As per this new provision, preliminary enquiry shall not be required for registration of FIR against any person and the investigating officer shall not require approval for the arrest of any person under the act.

Further, it also said that the provisions of Section 438 of the Code of Criminal Procedure (CrPC) dealing with anticipatory bail shall not apply to a case under the SC/ST Act.

“Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply,” the Monday’s judgment said.

Petitions were filed against the amendment on the ground that it violates the right to equality and life under Articles 14 and 21 of the Constitution.

In October 2019, the Supreme Court had allowed the review petitions and overturned the Kashinath Mahajan judgment effectively sanctioning the amendment to the act. Subsequently, it heard the petitions challenging the amendment and reserved its verdict on October 3.

Union minister and Lok Janshakti Party leader Ram Vilas Paswan hailed the Supreme Court order, asserting that the Centre is committed to protecting the constitutional rights of the Scheduled Castes (SCs) and Scheduled Tribes (STs).

“I welcome the decision of the Hon’ble Supreme Court to uphold SC/ST (Prevention of Atrocities) Amendment Act, 2018.The Central govt is committed to protecting SC/STs from atrocities and their constitutional rights, and today the apex court has also put its stamp on it,” Paswan said.

Bahujan Samaj Party chief Mayawati, too, welcomed the decision. “Thanks to the struggle of SCs and STs, the Central Government in 2018 passed a new law which abolished changes in the SC/ST Act and maintained its provisions as before. Today, Supreme Court has upheld the new law. Congratulations to SCs and STs, I salute their struggle and welcome the court verdict,” a rough translation of her tweet in Hindi read.

Mahesh Menon, Assistant Professor at National University of Juridical Sciences, Kolkata, said: “The whole exercise was an academic one and the judgment also says so. One bench passed the conditions diluting the act, and that order was overturned in a review.”

“Meanwhile, parliament swiftly chose to rectify the error of law. All said and done, there is the larger issue of increase in number of laws where the right to anticipatory bail is sought to be diluted. That poses the question of whether the criminal justice system is going in the right direction because we seem to be inclined towards curtailing the rights of the accused. It does not fit well within any understanding of human rights. The larger issues in criminal justice system are left unaddressed and instead we resort to such quick fixes which probably make the people happy – it’s just playing to the gallery,” he added.

(With agency inputs)