The Supreme Court didn’t dilute the SC/ST law, but just ensured that it applied to genuine cases

The Supreme Court of India | Atul Yadav/PTI

The solution to the broken criminal justice system for the victims of discrimination, lies in working towards fixing it, rather than on upending our Constitution.

A considerable political outcry has followed the recent Supreme Court decision on the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Concerns have been voiced about whether the court has diluted provisions of the SC/ST Act and how the verdict will impact those who suffer the discrimination that the law hopes to tackle. The government, on its part, had chosen to file a review petition. For all its features, however, the conversation has been noticeably silent on the specificities of the decision, and the constitutional values that it upholds.

The case dealt with the head of an educational institution against whom a criminal case was filed under the SC/ST Act and the Indian Penal Code, 1860. The respondent was employed by the institution, and had filed a case against two superiors under the SC/ST Act. The investigating officer applied to the appellant for sanction to pursue the matter, and this sanction was denied. The respondent subsequently filed an FIR against the appellant, claiming that only the state government had the authority to grant/refuse sanction for the officers in question, and the appellant had violated the law by entering into the matter.

The question before the Supreme Court was whether proceedings against the appellant ought to be quashed on the ground that he had simply passed an administrative order in good faith and that even if the order was an erroneous one, such an action could not be regarded an offence.

As the amicus curiae argued, the facts clearly showed that no case existed under either the SC/ST Act or the IPC. The relevant provisions regarding the former related to the giving of false information and the disappearance of incriminating evidence, none of which occurred in this case. And as regards the IPC, the provisions that related to the giving of false information, the fabrication of false evidence, and the authoring of a corrupt report were inapplicable in the case at hand.

The larger question that the amicus curiae raised was whether there were any limitations to the arrest of persons under the SC/ST Act. He argued that basic limitations did exist — the Act would have to conform to the presumption of innocence and to the bar against arbitrary arrests enshrined in both the right to equal treatment and the right to life in Articles 14 and 21 of the Constitution.

The Supreme Court agreed. The court accepted that the granting of anticipatory bail for offences under the SC/ST Act might involve a different basis than in other cases. However, this did not mean that anticipatory bail could be entirely excluded. It could not be excluded, the court held, “when no case is made out or allegations are patently false or motivated”. To permit this, the court rightly held, would mean to permit the arrest of a person either without any basis whatsoever or with the knowledge that the complaint was false and mala fide. Either situation would fly in the face of the most rudimentary criminal justice guarantees.

The court further noted that before an FIR is filed, a preliminary inquiry should be conducted, and if an arrest is to take place, there must be permission from the appointing authority if the person is a public servant and permission from the senior superintendent of police of the district in question in other cases. The reasons for the arrest must be recorded, and must be given to the person who is arrested and to the relevant court. The magistrate should consider these reasons in determining whether the person should continue to be subjected to further detention.

As should be clear, these guidelines are hardly dramatic. They are narrow, and the court’s decision was carefully constructed in light of prior decisions, criminal procedure guidelines, and constitutional principles. The court correctly observed that the SC/ST Act was not being diluted in any fashion. Instead, the Act was being interpreted to ensure that it applied to genuine cases, and that other instances were appropriately handled. There was a difference, the court noted, between shifts in the burden of proof, which were permissible, and the presumption of guilt, which found no place in our constitutional schema.

There is, no doubt, evidence on both sides of the equation — there is evidence that SC/STs are subject to discrimination and there is evidence that the SC/ST Act is abused. But the numbers are of little constitutional importance, because the right against an arrest without reasons is not a contingent matter. It is among the most central and elementary civil liberties.

It is true that our criminal justice system is terribly broken, and that many victims of discrimination, including SC/STs, can scarcely hope to receive the justice that they deserve. The solution lies in working towards fixing that system, rather than upending our Constitution. Sadly, there has been little political uproar in the direction of criminal justice reform, a reality that will ultimately harm both SC/STs and others.

Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla