SPECIAL ARTICLE
Misuse of the Prevention of Atrocities Act
Scrutinising the Mahajan Judgment, 2018
Nitish Nawsagaray
The Supreme Court in Subhash Kashinath Mahajan v
State of Maharashtra (2018) has toned down the
effectiveness of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989
based on incorrect facts and faulty logic. The Court has
made the filing of first information reports and arrest of
the accused impossible in cases of caste atrocities while
simultaneously providing no remedy to members of the
SCs/STs against caste discrimination and violence.
The Supreme Court judgment may unwittingly turn out
to be a licence for upper-caste culprits to violate the
law with impunity.
Nitish Nawsagaray (nitish.nawsagaray@ilslaw.in) teaches at the Indian
Law Society’s Law College, Pune.
36
I
n a recent judgment of the Supreme Court in Subhash
Kashinath Mahajan v State of Maharashtra and Another
(2018) (henceforth Mahajan case), Section 18 of the Sched-
uled Castes (SCs) and the Scheduled Tribes (STs) (Prevention
of Atrocities) Act, 1989 (PoA Act) has been toned down. Along-
side, the police has been prohibited from registering a first in-
formation report (FIR) without preliminary inquiry and mak-
ing an arrest sans the written permission of the appointing
authority if the accused is a public servant, and senior superin-
tendent of police (SSP) in the case of non-public servants. The
judgment is loaded with prejudice and incorrect interpretation
of facts. This paper scrutinises the judgment in the Mahajan
case and seeks to analyse the reasons and justifications given
by the Court to tone down the PoA Act.
The PoA Act Perpetuates Casteism?
The Court, in its verdict, started with a serious concern,
it is necessary to express concern that (the) working of the PoA Act should
not result in perpetuating casteism which can have an adverse impact on
integration of the society and the constitutional values. (Subhash Kashi-
nath Mahajan v State of Maharashtra and Another 2018: para 42)
To support its argument, the Court relied upon the famous
speech of B R Ambedkar in the Constituent Assembly on
25 November 1949 wherein he had said that castes are anti-
national because they bring about separation in social life,
and generate jealousy and antipathy between castes. It is to
be noted that the context in which Ambedkar made this
statement is different from the issue at hand. Ambedkar,
all through his life, argued that “castes are anti-national”
and thus, need to be annihilated. In his seminal essay “Castes
in India: Their Mechanism, Genesis and Development” in
1916, Ambedkar propounded that “caste in the singular num-
ber is an unreality. Castes exist only in the plural number.
There is no such thing as a caste: there are always castes”
(emphasis added). Thus, he essentially advocated a pro-
gramme for the annihilation of the totality of castes, that is,
the entire caste system.
Caste is also not only notional, but is a fundamental social
reality. Violence against the SCs and the STs is but a brutal mani-
festation of this reality. The challenge before an egalitarian
constitution is to eradicate the graded inequality of the caste-
ridden social order, and establish equality and fraternity. In the
same speech on 25 November 1949, Ambedkar cautioned the
Constituent Assembly of the social and economic inequality
prevailing in Indian society, and demanded the immediate
JUNE 2, 2018 vol lIiI no 22 EPW Economic & Political Weekly

eradication of the same. The learned judges, however, seemed
to have missed this warning altogether.
The PoA Act was implemented as a furtherance of the dic-
tates of Articles 14, 17 and 21 of the Constitution. During the
19th and 20th centuries, social transformation was brought
about by the sweep of law. Criminal law sought to curb devi-
ance through deterrence. Thus, the fear of criminal law is used
effectively to ensure change in social attitudes. Article 17 of
the Constitution abolished untouchability and made its prac-
tice illegal. Parliament enacted the Untouchability (Offences)
Act in 1955 to punish the practice of untouchability. Later on,
this was amended to the Protection of Civil Rights Act, 1976
and then to the PoA Act, 1989. The statement of object of the
PoA Act states that the inadequacy of pre-existing legislations
in protecting the life and property of the SCs and STs paved the
way for the latest law.
A demand for justice by the SCs and STs is not an assertion of
caste, neither is it tantamount to the practice of casteism.
Rather, it is a claim for equality made by the most underprivi-
leged strata of society. A claim against caste humiliation and
caste violence is not an act of perpetuating casteism.
The learned judges also quoted the judgment of Indra Sawhney
v Union of India (1992). The judgment referred to Article 16(2)
of the Constitution which prohibits discrimination on the
basis of caste and states that “the progress of India has been
from casteism to egalitarianism—from feudalism to freedom”
(Sawhney 1992: 339).
The Supreme Court further observed in the Indra Sawhney
case that,
The caste system which has been put in the grave by the framers of
the Constitution is trying to raise its ugly head in various forms. Caste
poses a serious threat to the secularism and as a consequence to the in-
tegrity of the country. (Indra Sawhney v Union of India 1992: para 340)
These two observations of the constitutional bench are
quoted in the Mahajan judgment without any accompanying
comment. However, these observations in no way establish
that the working of the PoA Act results in perpetuating
casteism.
The Court in the Mahajan case further quoted the report
of the National Commission to Review the Working of the
Constitution (2002) and stated that one of the failures in the
working of the Constitution was that direct elections contin-
ued to be fought on caste lines. But, this quote too does not
support the proposition that the implementation of the PoA Act
results in perpetuating casteism. Yet, the Court jumps to the
conclusion that
the interpretation of the Atrocities Act should promote constitutional
values of fraternity and integration of society. This may require a check
on the false implication of innocent citizens on caste lines. (Subhash
Kashinath Mahajan v State of Maharashtra and Another 2018: para 47)
There is no logical connection between the authorities cited
by the Court and the conclusion at which it has arrived: the need
“to check the false implication of innocent citizens along caste
lines.” Thus, it is pertinent to examine the data and authorities
relied upon by the Court to arrive at the conclusion that the
PoA Act has been misused. If not, it needs to be scrutinised
Economic & Political Weekly EPW JUNE 2, 2018 vol lIiI no 22
SPECIAL ARTICLE
whether the Court began with a prejudiced perception of the
functioning of the PoA Act in the first place.
Examining Claim of Misuse
The Court in the Mahajan case mentioned that
It has been judicially acknowledged that there are instances of abuse
of the Act by vested interests against political opponents in Panchayat,
Municipal or other elections, to settle private civil disputes arising
out of property, monetary disputes, employment disputes and senior-
ity disputes. It may be noticed that by way of rampant misuse with
oblique motive for satisfaction of vested interests. (Subhash Kashinath
Mahajan v State of Maharashtra and Another 2018: para 66)
The Court relied upon two high court decisions in Dhiren
Prafulbhai Shah v State of Gujarat (2016), and Sharad v State of
Maharashtra (2015) to substantiate the “judicial acknowledge-
ment” of instances of abuse of the PoA Act.
Thereafter, the lawyer for the intervenor in the Mahajan
case relied upon a few more high court judgments to reflect on
the judicial acknowledgement of abuse of the PoA Act. She sub-
mitted that the act is prone to misuse on account of monetary
incentives being offered for merely lodging a case under Rule
12(4). She further relied upon the National Crime Records Bu-
reau (NCRB) data of 2016, citing that a total of 5,347 and 912
cases were found to be false out of the investigated cases
involving SC and ST complainants, respectively. In 2015, out of
the 15,638 cases decided, 495 cases (3.16%) were withdrawn
whereas 4,119 cases (26.34%) resulted in conviction.
On the other hand, senior council C U Singh appearing on
behalf of another intervention application against the appel-
lant, submitted that where the law is clear, no guidelines
should be issued by the Court. He further mentioned that the
statement of object and reasons from the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Amendment
Bill, 2013, where it was stated that there are procedural hurdles
such as non-registration of cases, procedural delays in investi-
gation, arrests and filing of charge sheets, delays in trials and
low conviction rates on account of which, the deterrent provi-
sions notwithstanding, atrocities against SCs/STs have contin-
ued unabated, necessitating the amendments passed in 2016.
The Court selectively relied upon the NCRB statistics cited by
the intervenor, completely ignoring the counterarguments
made by Singh. The Court failed to recognise the increase in
atrocities against SCs and STs in 2016. The number of cases
registered under the PoA Act in 2016 for atrocities against the
SCs was 40,801 (as compared to 38,670 in 2015) and 6,568
cases of atrocities against STs (as compared to 6,276 cases in
2015). This implies an increase in reported crimes of 5.5% for
SCs and 4.7% for STs in a period of a year.
In 2016, the courts conducted trials in 1,44,979 cases of
atrocities against SCs and 23,408 cases against STs. A majority
of the cases were pending from the previous year. In cases of
offence against SCs, trials have been completed in only 14,615
cases. Of these, the courts convicted the accused in 3,753 cas-
es, resulting in a conviction rate of 25.7 in 2016. Similarly, of
the 23,408 cases of atrocities against STs, only 2,895 trials were
completed with a conviction rate of 20.8%. In comparison, the
37
SPECIAL ARTICLE
conviction rate for all crimes under the Indian Penal Code
(IPC) in 2016 was 46.8%.
It must also be noted that the police investigated cases pend-
ing from previous years and filed charge sheets in 78% of the
cases of atrocities against SCs and 81% of the cases relating to
STs. Analysing the same NCRB data, at the end of 2016, 89.6% of
cases for SCs and 87.1% of cases for STs remained pending for
trial. The apex court, instead of recognising the low conviction
rate under the act, made its observation on the basis of a small
number of cases, 5,347 for SCs and 912 for STs, which were
found to be false after the investigation. The Court overlooked
the need to investigate the increase in atrocities and the inci-
dence of low conviction rates in cases of violence against SCs
and STs. The low conviction rate is a reflection on how cases
are registered and pursued in the PoA Act.
The Court, hearing an appeal against the Bombay High
Court judgment, ignored the fact that in 2017, the Maharashtra
police had informed the government that there was no sub-
stance to claim the widespread misuse of the PoA Act (Rajput
2017). The judgment also does not look into the reasons of
acquittal of the accused under the act. Despite the constitu-
tional guarantee of equality before law to all persons in India,
the reality for SCs and STs who suffer atrocities is often that
of delayed or denied justice. They face hurdles at every stage
in the criminal justice system—from the registration of cases,
to investigation, charge sheet and during court trials too.
Tremendous pressure is placed on the victims to not lodge
complaints against atrocities.
Quite often, police officials refuse to register the initial com-
plaint or the FIR or invoke provisions of the PoA Act in the FIR.
Moreover, counter-cases and false cases are filed by perpetra-
tors in collusion with police officials. Further, the police do not
arrest the accused immediately, investigate cases in time, in-
terview or cross-examine all the victims/witnesses during in-
vestigation, and fail to provide adequate protection to victims
and their families during and after the investigation. It is also
seen that the time taken to complete police investigation in the
counter-cases is much faster than in the PoA cases.
At the time of filing the charge sheet, often statements/testi-
monies of victims and witnesses are not corroborated with the
contents of the charge sheet. Sometimes, vital information is
deliberately left out of the charge sheet in order to weaken the
case and favour the accused. In addition, the issues of non-
establishment of or fast-tracking of cases through special
courts, non-appointment or poor capacity of special public
prosecutors, delays in trials due to the accused, victims, and/or
witnesses not appearing in court, victims and witnesses turn-
ing hostile due to fear or threats, arguments taking a substan-
tive length of time, courts being overburdened with cases,
lengthy investigations, etc, all contribute to the deprivation of
justice. Finally, there are hardly any cases where public serv-
ants have been convicted under Section 4 of the PoA Act for
wilful neglect of duty.
The Court also failed to take judicial acknowledgement of a
Supreme Court judgment by a larger bench in the National
Campaign on Dalit Human Rights v Union of India (2017).
38
A petition was filed by the National Campaign on Dalit Human
Rights (NCDHR) seeking direction from the Court for the gov-
ernment with regards non-implementation of the PoA Act. The
Supreme Court has observed that,
We have carefully examined the material on record and we are of the
opinion that there has been a failure on the part of the authorities
concerned in complying with the provisions of the Act and the Rules.
The laudable object with which the Act had been made is defeated
by the indifferent attitude of the authorities ... The abundant material on
record proves that the authorities concerned are guilty of not enforc-
ing the provisions of the Act. The travails of the members of the Sched-
uled Castes and the Scheduled Tribes continue unabated. We are satis-
fied that the Central Government and State Governments should be
directed to strictly enforce the provisions of the Act and we do so. The
National Commissions are also directed to discharge their duties to
protect the Scheduled Castes and Scheduled Tribes.
In the NCDHR case, the Court was of the view that the PoA
Act is not implemented in letter and spirit, a far cry from the
assertion of misuse in the Mahajan case.
Grant of Anticipatory Bail
The Mahajan judgment makes it mandatory for the judge/
magistrate to grant anticipatory bail in cases registered under
the PoA Act. However, Section 18 of the same act1 expressly
exempts the operation of Section 438 of the Code of Criminal
Procedure (CrPC) that allows for anticipatory bail. In the State
of Madhya Pradesh v Ram Krishna Balothia (1995) case, the
Supreme Court held that Section 18 of the PoA Act does not vio-
late Articles 14 and 21 of the Constitution. It further observed
that the exclusion of Section 438 of the CrPC from the PoA Act
had to be viewed in the context of the prevailing social condi-
tions, and the resultant apprehension that perpetrators of such
atrocities are likely to threaten and intimidate victims and pre-
vent or obstruct the prosecution of offenders, if they are granted
anticipatory bail. Clarifying the Balothia judgment, the Supreme
Court in the Mahajan case observed that
Ram Krishna Balothia may need to be revisited in view of judgments
of this court, particularly Maneka Gandhi (Maneka Gandhi v Union of
India, 1978), we consider it unnecessary to refer the matter to the larger
Bench as the judgment can be clarified in the light of law laid down by
this Court. Exclusion of anticipatory bail has been justified only to pro-
tect victims of perpetrators of crime. It cannot be read as being appli-
cable to those who are falsely implicated for extraneous reasons and
have not committed the offence on prima face independent scrutiny.
(Subhash Kashinath Mahajan v State of Maharashtra and Another
2018: para 51)
In spite of the express provision of Section 18 prohibiting
anticipatory bail in the PoA Act, the Court in Mahajan has gone
ahead and unravelled the same. To support its argument the
Court cited provisions of the Terrorist and Disruptive Activities
(Prevention) Act, 1985 (TADA Act); Unlawful Activities (Pre-
vention) Act, 1967; Maharashtra Control of Organised Crime
Act (MCOCA), 1999, and Narcotic Drugs and Psychotropic Sub-
stances Act, 1985. Under the TADA Act, Section 17(4) prohibits
the application of Section 438 of the CrPC. The subsequent pro-
vision Section 17(5) puts restriction on a person accused of an
offence punishable under the TADA Act from being released on
bail and one of the conditions was:
JUNE 2, 2018 vol lIiI no 22 EPW Economic & Political Weekly

Where the public prosecutor opposes the application of grant of bail, the
court had to be satisfied that there were reasonable grounds for believ-
ing that the accused was not guilty of such offence and that he was not
likely to commit any such offence while on bail. (Subhash Kashinath
Mahajan v State of Maharashtra and Another 2018: para 52)
The Court further observed that in special legislations like
TADA Act, MCOCA and others, the impact of release of persons
on bail was considered by the legislature not only at the stage
of grant of anticipatory bail, but even post-arrest at the stage of
grant of regular bail. Thus, the Court in the Mahajan case tried
to identify an ambiguity vis-à-vis anticipatory and regular bail
in the PoA Act to allow for the provision of anticipatory bail.
The judgment reads,
[t]he restriction in Section 18 is only at the stage of consideration of
matter for anticipatory bail and no such restriction is available while
the matter is to be considered for grant of regular bail. Theoretically,
it is possible to say that an application under Section 438 of the Code
may be rejected by the Court because of express restrictions in Section
18 of the Act but the very same court can grant bail under the provi-
sions of Section 437 of the Code, immediately after the arrest. There
seems to be no logical rationale behind this situation of putting a fetter
on grant of anticipatory bail whereas there is no such prohibition in
any way for grant of regular bail. It is, therefore, all the more neces-
sary and important that the express exclusion under Section 18 of the
Act is limited to genuine cases and inapplicable where no prima facie
case is made out. (Subhash Kashinath Mahajan v State of Maharashtra
and Another 2018: para 52)
However, going by this logic, if regular bail provisions are
made more stringent, the provision for denial of anticipatory
bail in the statute is justified. This seems a bizarre logic. The
reason for denial of anticipatory bail in atrocity cases is justi-
fied because the legislation stands on a different footing as
compared to other criminal laws. The Supreme Court in the
Balothia case while upholding the constitutional validity of
Section 18 of the PoA Act justified the rejection of anticipatory
bail in atrocity cases, observing
It was submitted before us that while Section 438 is available for graver
offences under the Penal Code, it is not available for even “minor of-
fences” under the said Act. This grievance also cannot be justified. The
offences which are enumerated under Section 3 are offences which,
to say the least, denigrate members of Scheduled Castes and Sched-
uled Tribes in the eyes of society, and prevent them from leading a
life of dignity and self-respect. Such offences are committed to hu-
miliate and subjugate members of Scheduled Castes and Scheduled
Tribes with a view to keeping them in a state of servitude. These of-
fences constitute a separate class and cannot be compared with of-
fences under the Penal Code. (State of Madhya Pradesh v Ram Krishna
Balothia 1995: para 10)
Another point to be taken into consideration is that the
amendments to the PoA Act came into force in 2016. Section
15(A) was added to the act, providing that a victim shall have
the right to be heard in respect of bail, discharge, release,
parole, conviction, and sentence to the accused, and many
other provisions. Thus, it could be said that the amended legis-
lation provided a double check on regular bail to the accused
by allowing victims the right to be heard before granting bail
to the accused. However, going by the logic of the Court in the
Mahajan case, because Section 15(A) of the PoA Act makes
grant of regular bail difficult, the denial of anticipatory bail
under Section 18 is not justified.
Economic & Political Weekly EPW JUNE 2, 2018 vol lIiI no 22
SPECIAL ARTICLE
The Court cited Vilas Pandurang Pawar v State of Maharashtra
(2012) and Shakuntla Devi v Baljinder Singh (2014) to argue
that there is no absolute bar to grant anticipatory bail if no
prima facie case is made out, inspite of the validity of Section
18 of the PoA Act being upheld. In the Pawar case, it was held
by the Supreme Court that,
The scope of Section 18 of the SC/ST Act read with Section 438 of the
Code is such that it creates a specific bar in the grant of anticipatory
bail. When an offence is registered against a person under the provi-
sions of the SC/ST Act, no Court shall entertain application for antici-
patory bail, unless it prima facie finds that such an offence is not made
out. Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is limited. Court
is not expected to indulge in critical analysis of the evidence on record.
When a provision has been enacted in the Special Act to protect the per-
sons who belong to the Scheduled Castes and the Scheduled Tribes
and a bar has been imposed in granting bail under Section 438 of the Code,
the provision in the Special Act cannot be easily brushed aside by elabo-
rate discussion on the evidence. (Vilas Pandurang Pawar v State of
Maharashtra 2012: para 10; emphasis added)
In the Shakuntla Devi case, the Supreme Court upholds the
Pawar judgment:
We find that Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1984 provides that nothing in Section
438 of the Criminal Procedure Code shall apply in relation to any case
involving the arrest of any person on an accusation of having commit-
ted an offence under this Act. This Court has also held in Vilas Pan-
durang Pawar & Anr v State of Maharashtra & Ors, that Section 18 of
the Act creates a specific bar to the grant of anticipatory bail to a per-
son against whom any offence is registered under the provisions of the
aforesaid Act and, therefore no Court shall entertain an application
for anticipatory bail unless it, prima facie, finds that an offence under
the Act is not made out. (Shakuntla Devi v Baljinder Singh 2014: para 4)
The emphasis in the Shakuntla Devi case is on the point that a
court shall not entertain an application for anticipatory bail
unless it prima facie finds that an offence under the act is not
made out. In this case, anticipatory bail was granted by the high
court, but no valid reasons were given by the court to justify
the grant of anticipatory bail. Thus, the Court decided that
The High Court has not given any finding in the impugned order
that an offence under the aforesaid Act is not made out against the
respondent and has granted anticipatory bail, which is contrary to
the provisions of Section 18 of the aforesaid Act as well as the afore-
said decision of this Court in Vilas Panduranga Pawar & Anr Case.
(Shakuntla Devi v Baljinder Singh 2014: para 5)
In Manju Devi v Onkarjit Singh Ahluwalia (2017: para 15), the
Supreme Court observed that
Though the Constitution of India abolishes “untouchability” but in
view of the social attitudes which lead to the commission of such
offences against Scheduled Castes and Scheduled Tribes, there is
justification for an apprehension that if the benefit of anticipatory bail
is made available to the persons who are alleged to have committed
such offences, there is every likelihood of their misusing their liberty
while on anticipatory bail to terrorize their victims and to prevent a
proper investigation. It is in this context that Section 18 has been in-
corporated in the SC/ST Act. The offences which are enumerated un-
der Section 3 of the SC/ST Act are offences which, to say the least,
denigrate members of Scheduled Castes and Scheduled Tribes in the
eyes of society and prevent them from leading a life of dignity and self-
respect. Such offences are committed to humiliate and subjugate mem-
bers of Scheduled Castes and Scheduled Tribes with a view to keeping
39
SPECIAL ARTICLE
them in a state of servitude. These offences constitute a separate class
and cannot be compared with offences under the Penal Code.
The Court further held that,
In view of the above discussion and in the light of the specific aver-
ments in the complaint made by the complainant, we are of the con-
sidered opinion that Section 18 of the SC/ST Act creates a bar for invok-
ing Section 438 of the Code and the High Court has committed grave
error in granting anticipatory bail to the Respondents. Accordingly,
the order dated 03.12.2014, passed by the High Court, is set aside.
(para 21)
The Supreme Court, relying on the Pawar case, did clearly
rule out that Section 18 creates a bar for invoking Section 438
of the CrPC. The reason for creating such a bar is also discussed
by the Court. Considering the special case of SCs and STs vis-à-
vis the upper castes in the Indian social order, the Court ob-
served that if anticipatory bail is granted then the accused can
misuse his liberty to terrorise the victims and prevent proper
investigation.
However, the Court in Mahajan has decided that,
It is thus patent that in cases under the Atrocities Act, exclusion of
right of anticipatory bail is applicable only if the case is shown to be
bona fide and that prima facie it falls under the Atrocities Act and not
otherwise. Section 18 does not apply where there is no prima facie case
or to cases of patent false implication or when the allegation is moti-
vated for extraneous reasons. We approve the view of the Gujarat High
Court in Pankaj D Suthar (supra) and N T Desai (supra). We clarify the
Judgments in Balothia (supra) and Manju Devi (supra) to this effect.
(Subhash Kashinath Mahajan v State of Maharashtra and Another 2018:
para 74; emphasis added)
The formula arrived at in the Mahajan case is that, anticipatory
bail can be granted (i) if no prima facie case is made out, (ii) it is
a case of patent false implication, or (iii) if the allegation is moti-
vated for extraneous reasons. A case of patent false implication
and allegations motivated for extraneous reasons are new
grounds added by the Court for granting anticipatory bail in
atrocity cases. The Court approved the views of the high court
and clarified its own judgments in the Balothia and Manju Devi
cases. If the Court was of the opinion that the Balothia and Manju
Devi cases were wrongly decided, it could have recommended
the judgments to be reviewed by a larger bench of the Supreme
Court. But, instead of referring to a larger bench, the judges
decided to clarify those decisions and, in the course of doing
so, completely opposed their essence. It is submitted that the
Mahajan case is decided per incuriam because the Balothia
and Manju Devi judgments were not followed. The Court has
also failed to explain what it means by “a case of patent false
implication and allegations motivated for extraneous reasons.”
What if the allegations are true but the court is of the opin-
ion that it is motivated for extraneous reasons. The court while
granting anticipatory bail is not supposed to indulge in a criti-
cal analysis of the evidence on record. How then would the
court decide extraneous reasons?
It is a well-settled principle of law that when a statutory pro-
vision is clear and not ambiguous, the court should not interpret
it in such a manner that it loses its original meaning. But, in
the Mahajan case, instead of literal interpretation of the law,
the Court preferred purposive interpretation of the PoA Act
(Mahajan 2018: para 56). The purposive construction of a
40
provision means a construction which fulfils the legislative
purpose of the act. While constructing the provisions of the act,
its natural, plain and grammatical meaning is to be looked
for. In constructing a provision, first the ordinary meaning of
the words of the statute must be examined. If the plain and
grammatical meaning leads to two or more constructions,
that is, if it leads to ambiguity, only then does the question of
purpose of statute come into play. Even so, purposive con-
struction should be within limits, and not be extended to such
a level that it crosses the line between construction and legis-
lation. The Court in the Mahajan case interpreted Section 18
purposively despite any scope of ambiguity therein. There
was no mischief to be remedied. The purpose read by the
Court in the Mahajan case is foreign to the purpose, aims and
objectives of the PoA Act.
Arrest and False Implication
The Court issued directions on the filing of FIRs under the PoA
Act and on procedures of making arrests in cases of atrocities
against SCs and STs. Before the Court could decide the issue, it
commenced with the premise that
the said Act should not be converted into a character for exploitation or
oppression by any unscrupulous persons or by police for extraneous rea-
sons against other citizens as has been found on several occasions in deci-
sions referred to above … Law should not result in caste hatred. (Subhash
Kashinath Mahajan v State of Maharashtra and Another 2018: para 75)
In the light of the data cited by the lawyers, judgments of vari-
ous high courts, observations of the standing committee of
Parliament, and the judgment of the Supreme Court in Lalitha
Kumari v State of Uttar Pradesh (2014), the Court concluded
We are of the view that cases under the Atrocities Act also fall in
exceptional category where preliminary inquiry must be held. Such
inquiry must be time-bound and should not exceed seven days in view
of directions of Lalitha Kumari. (Subhash Kashinath Mahajan v State of
Maharashtra and Another 2018: para 79)
In the concluding paragraph, the Court expressly directed that,
To avoid false implication of an innocent, a preliminary enquiry may be
conducted by the DSP (Deputy Superintendent of Police) concerned to
find out whether the allegations make out a case under the Atrocities
Act and that the allegations are not frivolous or motivated. (Subhash
Kashinath Mahajan v State of Maharashtra and Another 2018: para 84[iv])
In the Lalitha Kumari case (2014: para 120.6), the Supreme
Court gave directions that in certain types of cases, such as
matrimonial/family disputes, commercial offences, medical
negligence, corruption and cases with abnormal and unexplained
delays in initiating criminal prosecution, preliminary inquiry
should be conducted before filing the FIR. The reason for insti-
tuting such inquiry was the change in genesis and novelty of
crimes with the passage of time (Lalitha Kumari 2014: para
115). Now the question is, whether cases of caste atrocities do
fall in the exceptional category as those mentioned in the Lalitha
Kumari case, such that the need for a preliminary inquiry prior
to filing FIR rises. The offence of committing an atrocity, as
listed in Section 3 of the PoA Act, includes some of the worst
forms of violence inflicted by upper castes against members of
the SCs and the STs. Far from preliminary inquiries, once reported,
such cases require immediate action from the state.
JUNE 2, 2018 vol lIiI no 22 EPW Economic & Political Weekly

The principal object of the FIR from the point of view of the
informant is to set the criminal law machinery in motion (see
Hasib v State of Bihar 1972). As per Section 154 of the CrPC and
also Rule 5 of the Scheduled Castes and Scheduled Tribes (Pre-
vention of Atrocities) Rules, 1995, the police cannot refuse
to register any complaint/information received at the police
station. If the police fail to do so, Rule 5(3)—if any person is
aggrieved by a refusal on part of the officer in-charge of police
station to record the information, she may send by post the
substance of such information in writing to the superintendent
of police concerned—is provided as a remedy in such a situa-
tion. Yet, despite such legislative safeguards, it is the day-to-day
experience of the SCs and the STs that their FIRs are routinely
rejected and left unregistered in police stations (NHRC 2002:
113–14). The common experience all over India is that the police
officer in-charge does not register the FIR unless the deputy
superintendent of police (DSP) permits/directs the officer to do
so. Even if it is registered, the offences are not registered under
proper sections of the PoA Act. Taking note of this phenome-
non, Parliament in 2016 defined the duties of public servants2
and the punishments for violation of the same, which includes
imprisonment up to one year.
This delay in registration of FIRs is used by the accused to
pressurise the victims to take back their complaint and if not,
to file false cases against the complainants. The upper castes
exploit every rung of the criminal justice system, either to sup-
press their crimes or to further harass SCs and STs. The direction
of the Court in the Mahajan case to not register an FIR until a
preliminary inquiry by a senior officer, essentially legalises the
hitherto rampant delay in registering FIRs. The Court’s re-
mark—“law should not result in caste hatred”—betrays com-
plete ignorance of the reality of caste in India and in one stroke
makes out all atrocity complaints to be fraudulent. The state-
ment “law should not result in caste hatred” then should apply
to all laws and not only the PoA Act. What about the phenome-
non of filing robbery cases against Dalits and Adivasis to sup-
press atrocity complaints (Justice Punnaiah Commission 2001:
145)? Will the Court add a similar filter to all the cases where
there is allegation of misuse of law?
As regards arrests in atrocity cases, the Court directed as follows,
Accordingly, we direct that in absence of any other independent offence
calling for arrest, in respect of offences under the Atrocities Act, no arrest
may be effected, if an Accused person is a public servant, without written
permission of the appointing authority and if such a person is not a public
servant, without written permission of the Senior Superintendent of Po-
lice of the District. Such permissions must be granted for recorded reasons
which must be served on the person to be arrested and to the concerned
court. As and when a person arrested is produced before the Magistrate,
the Magistrate must apply his mind to the reasons recorded and further
detention should be allowed only if the reasons recorded are found to be
valid. To avoid false implication, before FIR is registered, preliminary en-
quiry may be made whether the case falls in the parameters of the Atroci-
ties Act and is not frivolous or motivated. (Subhash Kashinath Mahajan v
State of Maharashtra and Another 2018: para 81; emphasis added)
In the concluding paragraph, the Court passed the following order:
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 non-public servant after approval
Economic & Political Weekly EPW JUNE 2, 2018 vol lIiI no 22
SPECIAL ARTICLE
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. (Subhash Kashinath
Mahajan v State of Maharashtra and Another 2018: para 81[iii])
This means that if an FIR is registered solely under the PoA Act,
then a preliminary inquiry is mandatory and arrests approved by a
higher authority than the investigating officer. But, if the FIR includes
provisions of other criminal laws, for example the IPC, then
arrests could be made without following the above procedure.
Under the CrPC, wide powers have been conferred on the
police for making arrests without warrant under the circum-
stances mentioned in Section 41. The word “may” in Section
41(1) suggests that a police officer has discretion in making
arrests without warrant, whereas Clause (1)(a) expands the
scope of this discretion in respect of cognisable offences. How-
ever, these powers are not without limitations. The require-
ments of reasonability and credibility tend to prevent the
misuse of such power. What is reasonable complaint or suspi-
cion or what is credible information must depend upon the
facts and circumstances in each case.
Arrest may be necessary for the purpose of securing the
attendance of the accused at the time of trial, but it may also
become necessary as a preventive or precautionary measure in
respect of a person intending to commit a cognisable offence,
or a habitual offender or an ex-convict (see Sections 151 and
110 of the CrPC). Though all the offences under the PoA Act are
cognisable in the Mahajan case, the Court takes away the dis-
cretion of the police officer to arrest in atrocity cases. Even if
the police officer is reasonably convinced and has credible in-
formation of the commission of offence, they cannot arrest the
accused without the permission of the specified higher
authority. The Court further directs that any violation of its
directions with regard to the filing of FIRs and the arrests of
accused would be punishable by way of disciplinary action as
well as contempt of court (Subhash Kashinath Mahajan v State of
Maharashtra and Another 2018: para 83[v]). The Court, in a
sense, has made the filing of FIRs and arrest of accused impos-
sible in atrocity cases. The Court provides no remedy to the
members of SCs and STs, whose complaints will most likely be
declared “frivolous” or “motivated” at the end of the preliminary
enquiry by the DSP and result in non-registration of FIRs. Can
the aggrieved then invoke Section 190 of the CrPC?3 The Court
is silent on this. Even if it is possible, this whole process makes
access to justice much more difficult for a member of the SCs/STs.
Let us take a hypothetical case. A member of the SC/ST is
publicly humiliated by his superior officer at the workplace. If
they attempt to register an FIR at a police station, the officer
in-charge would request the DSP to conduct a preliminary
inquiry. The DSP, for reasons known to him, refuses to give
permission. In such a case, the complainant is left with no
choice but to live with the humiliation, which may pave the
way for further harassment. Similarly, if a land belonging to a
member of an ST is wrongfully occupied and cultivated by a
non-SC/ST member, what remedy does he have if the DSP re-
fuses to even register an FIR? Registration of FIRs is a basic
right of every citizen to claim justice. However, the Mahajan
41
SPECIAL ARTICLE

judgment has rendered this right of the SCs and the STs to be
held ransom to the mercy of senior police officers. If the senior
police officer is hand in glove with the perpetrators of the crime,
he will never permit the registration of FIR. Even in case of arrests,
a prior permission of the appointing authority for a public
servant and of the superintendent of police for non-public
servants makes the arrest of the culprits impossible in a caste-
ridden society. If the culprit is not arrested, or he is set free on
bail, or after the conviction he is given the benefit of Probation
of Offenders Act, 1958, it results in boosting the courage/im-
punity of upper castes in general and perpetrators in particu-
lar in committing further crimes against SCs and STs.
Going by the figures provided by the NCRB (2016), every day
four Dalit women are raped, two Dalits are murdered, two
Dalit houses are burnt, and 11 Dalits are beaten up. This is a
gross understatement; conservatively speaking, hardly one in
50 crimes gets registered in India. This is the plight of a people
whose number—201 million—exceeds the entire population
of Eastern Europe (Teltumbde 2008). Yet, their condition is
worse than that of any social minority in any country. We, perhaps,
have the most egalitarian Constitution, but the regime that op-
erates it has sustained a society that is the most inegalitarian.
To name a few violent crimes against Dalits in post-independence
India: Kilvenmani (44 Dalits burnt alive in Tamil Nadu, 1968),
Belchi (14 Dalits burnt alive in Bihar, 1977), Karamchedu (six
Dalits murdered, three Dalit women raped and many more
wounded in Andhra Pradesh, 1984), Chunduru (nine Dalits
massacred and dumped in a canal in Andhra Pradesh, 1991),
Melavalavu (an elected Dalit panchayat leader and five Dalits
murdered in Tamil Nadu, 1997), Kambalapalli (six Dalits burnt
alive in Karnataka, 2000), Jhajjar (five Dalits lynched near a
police station in Haryana in 2003), Khairlanji (four members
of a Dalit family brutally murdered by villagers in Maharash-
tra, 2006), Sunpedh (two Dalit toddlers were burnt alive in
Ballabhgarh, Haryana, 2015), and many more. The incidents
listed here may not figure in any history of post-independence
India. In fact, most Indians may not even have heard of
these places.
Conclusions
At many places in the Mahajan judgment, there is no logical
connection between the authorities cited by the Court and the
conclusion of misuse of the PoA Act. The Court made its argument
with a prejudiced perception of the functioning of the act. It has
failed to recognise the overall non-implementation of the PoA
Act and the reasons for low conviction and high acquittals there-
in. As regards grant of anticipatory bail, if the Court was of the
opinion that the Balothia and Manju Devi cases were wrongly
decided, it could have recommended these to be reviewed by a
larger bench of the Supreme Court. Instead, the judges decided
the issue by completely deviating from of the original, unam-
biguous meaning of the earlier rulings. Thus, the Mahajan case is
per incuriam. The Court has made the filing of FIRs and arrest
of the accused impossible in PoA Act cases while simultane-
ously providing no remedy to members of the SCs and the STs,
instead rendering their complaints “frivolous” or “motivated.”
Laws and legal processes are never self-executing; they de-
pend on human agency and institutions. In India, the ruling
classes and castes have always flaunted the existence of an
egalitarian Constitution and a plethora of laws, which appear
flawless, sincere, and earnest on paper. The complicity on the
part of state agencies along with socially powerful groups in a
poor implementation of the PoA Act, both in letter and spirit,
has exacerbated the vulnerability of the SCs and the STs to com-
munal violence. The Supreme Court judgment may turn out to
be a licence for upper-caste culprits to violate the law with im-
punity from now on. Relying on incorrect facts and faulty
premises of the misuse of the PoA Act, the Court has made the
SCs and the STs of India more vulnerable. It would be appropri-
ate for the Supreme Court to undo the wrongs caused to these
sections in the interest of justice and in furtherance of the con-
stitutional values of fraternity, equality and justice.

Notes 25 November, http://mls.org.in/books/HB- Justice and Company Affairs, Government of

1 Section 18 of the PoA Act reads thus: “Section
438 of the Code not to apply to persons com-
mitting 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.”
2 See Sections 4(1) and 4(2) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015.
3 Section 190 of the CrPC empowers the magis-
trate to take cognisance of any offence upon
receiving a complaint of facts which consti-
tutes an offence.
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