This post has been written by Mamta Kumari, a law student from Banasthali Vidyapith
TITLE OF CASE– Prathvi Raj Chauhan v. Union of India
CASE NO. – WP(C) 1015/2018
DATE OF DECISION– 10 February, 2020
COURT– Supreme Court of India
JUDGES– Arun Mishra, Vineet Saran, S. Ravindra Bhat
PARTIES INVOLVED – Petitioner– Prathvi Raj Chauhan, Priya Sharma, Sandeep Lamba, India For Rule of Law Foundation.
Respondent– Union of India
LAWYER- Petitioner– Shashi Kiran
Respondent– Attorney General K. K. Venugopal
FACTS OF THE CASE
- In this case the constitutional validity of section 18-A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act,2018 was challenged by the petitioners.
- The petition was filed on the ground that section 18-A of the said Act nullifies the decision of Subhash Kashinath Mahajan v. The State of Maharashtra &anr. [1] Where the court held that the provisions of Prevention of Atrocities Act was misused.
- The court had introduced several safeguards in Kashinath Mahajan case but the parliament overturned these safeguards by the amendment in the Act. The safeguards given in this case were-
- Conduct of preliminary inquiry before registration of First Information Report
- Investigating officer should receive approval before arrest.
- Anticipatory bail to accused, notwithstanding any judgment or order or direction of any court.
- This amendment has diluted the effect of Kashinath Mahajan The intention of Kashinath Mahajan Judgement was to prevent the people from abusing the Act.
- After passing of Kashinath Mahajan the parliament took a step to undo the judgment as it causes so much violence and protest by the Dalits and Adivasis group and placed the amendment bill in the parliament.
- Review petition challenging the Kashinath Mahajan judgment was filed before the Supreme Court of India.
- The legislature even has not waited for the court to hear the review petition filed which challenging the judgment.
- Supreme court issued notice on 7th September, 2018 to the central government to submit its response to the petition.
- In response to the notice, the central government file affidavit and stated that-
- The legislature is competent to make changes through the process of
- Large number of acquittal cases under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act) do not indicate the cases to be fake.
- Several petitions were filed challenging the 2018 Amendment.
- On 13th September, 2019 the review petition was referred by division bench comprising Arun Mishra and UU Lalit to three-judges bench.
- After hearing before three-judges bench, the court upheld the constitutional validity of the 2018 Amendment.
Why Section 18-A was inserted?
The section 18-A of the Act states that-
“(1) For the purposes of this Act, —
(a) preliminary enquiry shall not 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.
(2) 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.”.
This section has been inserted by the Amendment of 2018 to nullify the preliminary inquiry before the registration of FIR, no requirement of approval by the investigating officer before arrest. The section further states that no anticipatory bail will be given for the offence under the Act.
ISSUES
- Whether section 18–A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2018 is constitutionally valid?
- Whether bar on granting anticipatory bail is valid and whether it infringe the personal liberty of a person under Article 21 of Constitution?
ARGUMENTS
Petitioners Contention
The counsel for the petitioner contended that the safeguards introduced in Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & anr. was necessary as the Act was misused a a lot.
Further contended that the absolute bar on granting anticipatory bail will result in violation of fundamental right granted under article 21 of Constitution relating to Personal liberty of a person.
Respondents Contention
Attorney General KK Venugopal on behalf of Central Government contend that the amendment was made due to large number of acquittal cases and police failed to implement the act properly and prosecution of accused was also not effective.
The petitioners counsel further argued that the amendment is in conformity with the aim of the act which states for the protection of the SC/ST section of the society.
DECISION
In this case the three-judge bench of Supreme Court of India has upheld the Constitutional validity of section 18-A of “The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act,2018” and had nullified the effect of Kashinath Mahajan case. The court held that the directions given in Kashinath Mahajan case had placed unnecessary burden upon people of Scheduled Caste and Schedule Tribes.
While dealing with the section 18-A of the Act, the court said that while looking into the provision of section 18 with respect to preliminary inquiry before registration of FIR, the inquiry is permissible only in conditions laid down in Lalita Kumari v. Government of U.P. [2]
Court further held that no anticipatory bail to be given for offences under SC/ST Amendment Act. In the concurring opinion, Justice Ravindra Bhat observed that anticipatory bail can only be given in the exceptional cases and not in every case. The court had earlier observed that the anticipatory bail can only be granted where there is no prime facie case under SC/SCT Act.
Justice Ravindra Bhat while delivering judgment also states about equal treatment of all citizens and fostering the idea of fraternity because the concept of fraternity is as important as the personal liberty of a person.
Court further held that if an accused is a public servant, the arrest can only made after the approval of appointing authority and if the accused is non-public servant, the arrest can be made after the permission of Senior Superintended of Police.
REFERENCES
[1] (2018) 6 SCC 454
[2] (2014) 2 SCC 1
The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act,2018
http://indiankanoon.org/doc/31336209/