I have come across social media posts attributed to Anand Ranganathan, a hard-core Hindu about the effect of 2018 Amendment to the Atrocity Act enacted by the Modi Government. The poster is circulated by one Sanjeev Dubey, Etawah, UP.
The possibility of attempt to drive an edge among the Hindus on SC-ST and non-SC-ST basis before the ensuing 2027 UP State elections cannot be ruled out. Otherwise, there is no reason why such posters should emerge after 8 years of amendment and just before the UP election.
The legal trajectory of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 involved a significant clash and eventual resolution between the judiciary and the legislature regarding automatic arrests and anticipatory bail.
The Supreme Court's 2018 Observation & Judgment
In the landmark case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra (Criminal Appeal No. 416 of 2028 Judgment dated March 20, 2018), the Supreme Court ruled that there would be no automatic arrests under the Atrocity Act. The Court expressed concerns over the alleged misuse of the law for filing false and motivated complaints, settling personal scores, or blackmailing public servants.
To prevent this, the Supreme Court instituted three specific procedural safeguards:
a. No Automatic Arrests: An accused could not be arrested immediately upon the filing of a complaint.
b. Preliminary Inquiry: A mandatory preliminary inquiry by a Deputy Superintendent of Police (DySP) was required within 7 days to check if the case was prima facie bona fide before an FIR could be registered.
c. Prior Sanction for Arrest: Written permission from the appointing authority was mandatory to arrest a public servant, and permission from the District Superintendent of Police was required for private citizens.
d. Anticipatory Bail: The court relaxed the absolute bar on anticipatory bail, stating it could be granted if the complaint appeared to be motivated or lacked a prima facie case.
The bench has issued the above directions in an appeal filed by Dr Subhash Kashinath Mahajan against the Bombay High Court judgment refusing to quash the FIR lodged against him for offences alleged under the Act.
The bench of Justice AK Goel and Justice UU Lalit said the question raised in the appeal is this: “Whether any unilateral allegation of mala fide can be ground to prosecute officers who dealt with the matter in official capacity and if such allegation is falsely made what is protection available against such abuse.”
The court further observed: “If the allegation is to be acted upon, the proceedings can result in arrest or prosecution of the person and have serious consequences on his right to liberty even on a false complaint which may not be intended by law meant for protection of a bona fide victim.”
The court also examined whether the above said procedure will be just and fair procedure under Article 21 of the Constitution of India or there can be procedural safeguards so that provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 are not abused for extraneous considerations.
The Government's Overturning Amendment
The ruling triggered massive nationwide protests and political backlash from Dalit and Tribal organizations, who argued that these safeguards diluted the law and left marginalised communities vulnerable.
In response, the Narendra Modi government introduced the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, which effectively nullified the Supreme Court's directives.
The amendment inserted a new section - Section 18A - into the original Act to restore its original stringent character.
The amendment specifically mandated that:
a. No Preliminary Inquiry: Registration of an FIR does not require any preliminary enquiry against the accused.
b. No Prior Approval: No approval or prior sanction from any authority is required before arresting an accused under the Act.
c. Absolute Bar on Anticipatory Bail: The provision of Section 438 of the Code of Criminal Procedure (CrPC) regarding anticipatory bail does not apply to cases under this Act, notwithstanding any judgment or direction of any court.
Subsequent Judicial Validation
Following the legislative amendment, the legal battle shifted back to the judiciary when petitions were filed challenging the constitutional validity of Section 18A.
However, the Supreme Court shifted its stance. First, in October 2019, the Court reviewed and recalled its own March 2018 judgment, acknowledging that historic discrimination, social stigma, and untouchability faced by the SC/ST communities were far from over.
Section18 – Section 438 of the Code not to apply to persons committing an offence under the Act: Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
Section 18A.
(i) For the purpose of this Act,-
(a) preliminary enquiry shall be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.
(ii) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.”
The vires of section 18 and 18A were tested in the Supreme Court.
Subsequently, in February 2020 (Prithvi Raj Chauhan v. Union of India, WP(C) 1015 of 2018), a three-judge bench of the Supreme Court comprising of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ vide Judgment dated February 10, 2020 formally upheld the constitutional validity of the Modi government's 2018 Amendment Act. The Court ruled that Parliament was well within its rights to enact the amendment to protect vulnerable sections and reiterated that anticipatory bail could only be granted in exceptional circumstances where no prima facie case is established under the Act.
However, the explicit observations made by the Supreme Court in the said Judgment are missed by many political analysts.
Justice Arun Mishra and Justice Vineet Saran in their separate judgment observed in para 10 to 12 as follows:
“10. 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. We have clarified this aspect while deciding the review petitions.
11. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
12. The challenge to the provisions has been rendered academic. In view of the aforesaid clarifications, we dispose of the petitions.”
Justice S. Ravindra Bhat, while agreeing with the observations of Justices Mishra and Saran, added as caveat in para 20 of his separate judgment as follows:
“20. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.”
Does it mean that the 2018 amendment just makes the lives of non-SC-ST people and the SC/ST get a powerful legal tool to persecute them?
The answer is “NO”. Despite the amendment, the Supreme Court has upheld the powers of the higher judiciary to intervene and quash the FIRs or criminal prosecution if the facts of the case warrant such interference. And the newly inserted section 18A also mandates preliminary enquiry before registering FIR.
The 2018 Amendment does not give any weapon to the marginalised people to persecute the non-SC-ST-NT.
