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SUPREME COURT OF INDIA
ARUN MISHRA, M.R. SHAH, B.R. GAVAI, JJ.
Union of India – Appellant
Versus
State Of Maharashtra And Ors. – Respondents
INHERENT JURISDICTION REVIEW PETITION (CRL.) NO.228 OF 2018 IN CRIMINAL APPEAL NO.416 OF 2018 WITH REVIEW PETITION (CRIMINAL) NO.275 OF 2018 IN CRIMINAL APPEAL NO.416 OF 2018
Decided on : 01-10-2019
(a) Interpretation of statute - Provisions of a statute not acceptable to Court - Court can strike it down - Provisions found deficient - Can be pointed out to legislature for correction. (Para 3)
(b) Constitution of India - Article 142 - Directions - Legislative in nature - Not permissible unless there is a vacuum. (Para 12, 20, 21, 22)
(c) Administration of justice - Common law and statute law - Lawmaking by legislators and lawmaking by the courts - Distinction - Judicial lawmaking is incidental to the solving of legal disputes; legislative lawmaking is the central function of the legislator - Separation of powers - What legislature cannot do legitimately, cannot be done by the interpretative process by the courts. (Para 23, 33, 47)
(d) Administration of Criminal Justice - Low conviction rate - Reflection of failure of criminal justice system - Not an abuse of law. (Para 40)
(e) Constitution of India - Article 17 and 21 - Right to life - Right to live with dignity - Includes right to die with dignity - Untouchability though made unconstitutional not yet vanished - Everybody should be treated as equal human in all respects and not treated as an untouchable, downtrodden, and object for exploitation - A good reputation is an essential element of right to life - Provisions of Act 1989 - Concomitants covering various facets of Article 21. (Para 43, 44, 45)
(f) Constitution of India - Article 14, 15 and 21 - Bonded or forced labour, sexual abuse of women in various forms and death of sewer workers for want of masks and oxygen cylinders - Violative of Articles 14, 15 and 21 - Need for protection to SC and ST. (Para 46, 47)
(g) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - No presumption of members of the Scheduled Castes and Scheduled Tribes misusing provisions of law as a class - For lodging a false report, it cannot be said that the caste of a person is the cause - Caste is not attributable to such an act - Even in case of false report remedy is available u/s 482, Code of Criminal Procedure, 1973. (Para 49, 50)
(h) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - Directions for preliminary investigation by Dy.S.P. before registering report under the Act - Code of Criminal Procedure, 1973 providing for a complaint relating to cognizable offence to be recorded forthwith - Would mean a report by upper caste being registered forthwith whereas in case of SC/ ST it is conditional - Directions violative of Articles 15, 17 and 21, Constitution of India and contrary to the Code - Directions also likely to delay investigation. (Para 54, 55, 65)
(i) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - Direction making approval of appointing authority for arrest of a public servant and that of SSP for non-public servant imperative - Not statutorily envisaged - Contrary to spirit of Section 197, Cr.PC - Likely to consume sufficient time - Appointing authority cannot sit over an FIR in case of cognizable, non-bailable offense and investigation made by the Police Officer - Directions amounting to a mandate having legislative colour - Not permissible. (Para 58, 59, 61, 63, 64)
Facts of the case:
This is a petition for review of the Court’s judgment and order dated 20.3.2018, more particularly the guidelines, in SC/ST Act.
Finding of the Court:
Directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India. Direction Nos.(iii) and (iv) issued by this Court are hereby recalled and consequently we hold that direction No. (v), also vanishes.
Result: The review petition allowed.
Key Points: - The Court recalled certain directions issued earlier under Article 142 as impermissible because they encroached upon the legislative domain (!) (!) (!) . - Arrest and detention safeguards under the Act must not discriminate against members of Scheduled Castes and Scheduled Tribes and must align with constitutional protections (!) (!) (!) . - The Court emphasized that low conviction rates cannot be attributed to abuse of the law but reflect systemic failures in the criminal justice mechanism (!) (!) .
JUDGMENT :
ARUN MISHRA, J.
1. The Union of India has filed the instant petition for review of the judgment and order dated 20.3.2018 passed by this Court in Criminal Appeal No.416 of 2018. This Court while dealing with the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph 83 of the judgment, which are extracted hereunder:
“83. Our conclusions are as follows:
(i) Proceedings in the present case are clear abuse of process of court and are quashed.
(ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);
(iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a nonpublic servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
(iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
(v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
The above directions are prospective.”
2. This Court, while passing the judgment under review, has observed in paragraph 32 thus:
“32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights [Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13]. There are enumerable decisions of this Court where this approach has been adopted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such directions can certainly be issued and continued till an appropriate legislation is enacted [Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756]. Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute [Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48]. Power to declare law carries with it, within the limits of duty, to make law when none exists [Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18].
3. Question has been raised by the Union of India that when the Court does not accept the legislative and specific provisions of law passed by the legislature and only the legislature has the power to amend those provisions if the Court finds provisions are not acceptable to it, it has to be struck them down being violative of fundamental rights or in case of deficiency to point out to the legislature to correct the same.
4. The Union of India has submitted that judgment and order dated 20.3.2018 entails wide ramification and it deserves to be reviewed by this Court. It is also submitted that this Court has failed to take note of aspects which would have a significant bearing on the present case.
5. It is submitted that the Act of 1989 had been enacted to remove the disparity of the Scheduled Castes and Scheduled Tribes who remain vulnerable and denied their civil rights. The Statemen
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