Dalits see the apex court’s order on SC/ST Act as a dog whistle to destroy the law

Dalit groups protesting during the Maharashtra Bandh | PTI

Judicial decision making is an idealised form of public reasoning that must elevate & educate public discourse. The SC/ST Act order failed meet these standards.

It’s been a horrid start to the summer in 2018 for the Supreme Court. Chief Justice Dipak Misra has been unable to quell the mini rebellion in the court, inspire public confidence in administering the judicial roster or resolve the political impasse around the appointment of judges. The political opposition threatens to impeach him and now senior counsel have begun pressing for a judicial remedy to set matters right.

However, Chief Justice Misra had no part to play in provoking a national bandh leading to the death of eight citizens last week. That provocation was from Justices Goel and Lalit’s decision in the Kashinath Mahajan case. As some recent commentary has suggested that this judgment was well founded and the public reaction unjustified, I review and assess the judgment and these views in detail below.

It’s often remarked that hard cases make bad law. However, this opinion appears to have made bad law in an easy case. A complaint had been filed against Kashinath Mahajan accusing him of offences under the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and the Indian Penal Code, 1860. He had already secured anticipatory bail and he sought to quash the complaint as being unfounded in fact and an attempt to secure a favourable administrative order through a false complaint. The Bombay High Court refused to quash the complaint and hence this appeal before the Supreme Court.

Three issues were considered by the court: should the complaint have been registered; should Mahajan have been arrested and should the complaint be quashed. Of these three, the court was strictly called on to decide only the third quashing issue. Ironically the judgment spends the least time discussing the evidence available to support this complaint. The brief discussion of the facts suggests that the offences under the Atrocities Act and the IPC may not be made out. Hence, the complaint could’ve been quashed with justification and the matter left to rest.

However, Justice Goel appears concerned that the Atrocities Act may perpetuate casteism and threaten the constitutional goal of a ‘cohesive, unified and casteless society’. Hence, he was keen to assert the court’s power to issue appropriate orders or directions to protect the fundamental rights of those falsely accused under the Atrocities Act. While there is little doubt that the court has such powers, these broad discretionary powers must be exercised with caution and rigour.

The appellants and amicus curiae relied on National Crime Records Bureau data, observations in previous judgments and some statements by the Parliamentary Standing Committee of Social Justice and Empowerment to conclude that there was widespread abuse of the Act. The court does not rigorously demonstrate that these data conclusively support the claim of abuse. Nor do they assess competing evidence in reports by the National Law School of India and the Navsarjan Trust. It may be unfair to expect a court to analyse, sift and weigh the available social science data on the question of abuse of the SC/ST Act. But the complexity of the assessment should discourage the court from entering into this inquiry in the first place.

Instead, the court concludes that there is abuse of the Act and hence adopts the view in Lalita Kumari v UP (2014) that for certain kinds of offences a preliminary inquiry was necessary before a complaint is registered. The bench added Atrocities Act cases to the matrimonial disputes, medical negligence and corruption for which such an inquiry is mandatory. Hereafter, before a complaint is registered in an atrocities case, written permission of the appointing authority for public officials and the district superintendent of police for all other persons.

There is nothing in the Act that changes the general law of arrest under section 41 of the Criminal Procedure Code, 1973. However, section 18 of the Act does prohibit the grant of anticipatory (pre-arrest) bail under section 438 of the Criminal Procedure Code, 1973 and a 2-judge bench of the Supreme Court had upheld this provision in Ram Krishna Balothia (1995). Subsequently, in Vilas Pandurang Pawar and Shakuntla Devi, the Supreme Court has already permitted pre-arrest bail in atrocities cases effectively overcoming the section 18 prohibition.

In fact, the appellant in this case had benefited from this reading of the Act and received anticipatory bail. Hence, there was no need for the court to revisit this issue and add that the section 18 (prohibition of anticipatory bail) was limited only cases where a prima facie case is made out. This was already the settled law.

Judicial decision making is an idealised form of public reasoning that must elevate and educate general public discourse. It must display a superior appreciation of social realities combined with clear and accomplished legal and moral reasoning. The eagerness of the court in the Kashinath Mahajan case to go beyond the case at hand exposes its failure to meet these standards. The decision ignited public protest not because it protects the freedoms of the falsely accused — these persons were already protected by the law — but as it was heard as a dog whistle that encouraged the dismantling of the Atrocities Act well before the social apartheid of caste is undone.

Sudhir Krishnaswamy is Professor and Director of the School of Policy and Governance at the Azim Premji University, and Founder Trustee of the Centre for Law and Policy Research, Bengaluru. He is the author of the book ‘Democracy and Constitutionalism in India’.