No automatic arrest in cases under SC/ST Act: Top court moves to prevent ‘rampant misuse’
Supreme Court says a preliminary probe by an officer not below the rank of deputy superintendent is a must before arresting a public servant under the SC/ST Act.
The Supreme Court on Tuesday banned automatic arrests and registration of criminal cases under the Scheduled Castes (SC) and the Scheduled Tribes (ST) Prevention of Atrocities Act, 1989, a legislation meant to protect the marginalised communities from abuse and discrimination.
A bench of Justices AK Goel and UU Lalit ruled that no arrests can be made under the act without prior permission. It also held that a court can grant a pre-bail arrest (anticipatory bail) if it, prima facie, finds the complaint is an abuse of the law, false, motivated and intended to blackmail or harass a person.
This was necessary, the court said, to prevent the “rampant misuse of the tough provisions of the law.”
“A law should not result in caste hatred,” the bench said.
Presently, the SC/ST Act bars a court from granting anticipatory bail to a person accused of the offence. On receiving a complaint, the police are bound to immediately register a First Information Report (FIR) and arrest the accused. A convicted person under the Act faces between six months in prison to capital punishment.
The law was first enacted in 1989 and strengthened in 2015, when caste slurs was also brought under its ambit. But conviction rates remain low and many activists complain that local police and law administration often dilute provisions and conduct shoddy investigation, resulting in high rates of acquittal.
In 2016, for example, the National Crime Records Bureau (NCRB) recorded that the national rate of conviction for cases filed under the SC/ST Act stood at 15.4%. In contrast, conviction rate under the Unlawful Activities (Prevention) Act stood at 33.3% and the Electricity Act was 89.8%. In the same year, around 1,300 people were convicted under the act and more than 7,000 people were acquitted, recorded the NCRB.
In Tuesday’s judgment, the court noted that the NCRB had recorded that in 2016 among the cases filed for crimes against scheduled caste persons, 5,347 cases were found to be false and 912 of the ST cases were found to be false. The bench underlined the need to provide safeguards in view of the misuse observed in the last three decades.
To protect the liberty of individuals, the bench said a public servant can only be arrested after the approval of the appointing authority. In case of a non-public servant, the approval of the Senior Superintendent of Police (SSP) is necessary. A permission to arrest may be granted in appropriate cases but with recorded reasons, which must be served upon the accused and also to the court. Such reasons must be scrutinised by the magistrate for permitting further detention.
The apex court also made it mandatory for the police to hold a preliminary enquiry, not exceeding a week.
The could was hearing a petition filed by Subhash Kashinath Mahajan, who challenged a Bombay high court order that refused to quash an FIR against him under the Act. The complainant in that case was a member of the SC community and had lodged the case after Mahajan refused to grant sanction to prosecute two other employees who had made adverse comments against the complainant. The SC allowed his appeal and quashed his case, terming it an “abuse of process of law.”
The order evoked mixed reactions.
Senior Supreme Court advocate CU Singh said the safeguard was required as far as arrests were concerned but for registration of FIRs, the court should not have given any directions to conduct a preliminary probe because it goes against a judgment of the Constitution Bench that made it mandatory for the police to register an FIR the moment a cognisable offence is alleged. “In the absence of empirical data, the court should not have held that the law is being misused,” he added.
Advocate Gopal Sankaranaryanan, another lawyer from the top court, said the judgment should be encouraged to check the misuse of law. “But my fear is this is difficult to enforce,” he said, referring to non-compliance by the police of a four-year-old verdict on dowry harassment that laid down guidelines to stop frivolous cases.
Ramesh Nathan, general secretary of the National Campaign on Dalit Human Rights, pointed out that the act was already not implemented properly. “There is a high rate of acquittal, including in well-known cases of massacre such as Laxmanpur Bathe in Bihar and Tsunduru in Andhra Pradesh,” he said. He added that the possibility of misuse existed in every legislation.