On March 20, 2018, a two-judge bench of the Supreme Court of India issued directions under The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (The Act). This judgment was met with nation-wide protests from the members of the marginalised communities, resulting in violence. Over a dozen dalits lost their lives in the Bharat Bandh on April 2, 2018. The judgment had tinkered with protections of the dalits which they had under special laws which the Parliament has enacted during V. P. Singh’s government.
The parliamentary debate on the Atrocity Act, when it was first adopted, emphasised that despite various measures adopted to improve the socio economic conditions of the SC/STs, they have remained vulnerable. Even though our Constitution specifically states that untouchability stands abolished, the facts on the ground had not changed adequately. Dalits are denied basic civil rights and are subject to various indignities. Serious crimes are committed against them for various historical, social and economic reasons. Dr. Rajendra Kumar Bajpai, while introducing the bill in the Rajya Sabha said:
"Although many of these offences could probably be covered under the normal law of the land, we are witnessing today a difference in degree which calls for differentiation in kind in respect of these offences."We should recognise the discrimination that they are subject to: Equal pay for equal work is denied to them. It was felt that a special legislation is necessary to check the atrocities that are conducted with impunity. As part of this, the Parliament felt that the grant of anticipatory bail was an area of concern: under this special law, the concept of bail before arrest shall not be applicable.
In some parts of India, there is increasing integration between castes. But, ironically, in some parts of the India, the socio-economic development of dalits is giving increased conflict. When dalits assert their rights, resist practices of untouchability, refuse to do bonded work, etc., this irritates their oppressors. The problems are alive and well. As a consequence, the Parliament has repeatedly amended the Act, including punishments for interfering with voting by dalits, intimidation from performing official duties in panchayats, economic boycott, filing malicious cases, denial of access, obstruction in the use of common property, etc. As part of this approach, the Modi administration did not modify the treatment of anticipatory bail by an alleged wrongdoer.
To summarise, this is not an oversight on the part of the Parliament. The Parliament consciously and deliberately, expressly excluded the grant of pre-arrest bail for alleged offenders, in S. 18 of the Act.
Recent developments in the Supreme Court
The Supreme Court recently has reversed this. I would like to humbly suggest that the august Supreme Court has not only erred in law, but chosen to not follow its own previous judgements, and thus breached judicial discipline.
In the present judgment, the petitioner contended that the provisions in the Act are being abused and the FIR registered against him should be quashed. Quashing the case against the petitioner, the court acknowledged the abuse of law of arrest and clarified that there is no absolute bar against grant of anticipatory bail under the Act. It then directed that no arrest can be made under the Act before approval of designated authorities. A provision of preliminary enquiry to be conducted by a Deputy Superintendent of Police (DSP) to ensure the allegations are not frivolous or motivated has also been introduced through the judgment. The government has asked for a review.
Pre-arrest bail and Art. 21 of the Constitution
In this case, there was no challenge to the constitutionality or validity of S.18. Yet, the Supreme Court gave a judgment that a dominant member of the community shall not be arrested unless a senior police officer (DSP) or senior government officer states in writing that his arrest be made. Dr. Mahajan’s case concerned quashing an FIR only; he stated that he had passed an administrative order which did not constitute any offence.
The Supreme Court has given sweeping directions on pre-arrest bail, and how arrest shall be made, using arguments based on Art. 21 (right to life). These directions, however, expressly conflict with the statute. They are contrary to the earlier judgments in Ram Krisnna, Manju Devi and a five judge bench decision in Kartar Singh, popularly known as the TADA case. In these cases, the Supreme Court has clearly stated that anticipatory bail is not a guaranteed right under Art. 21, and that denial of it in the atrocity act is not arbitrary and violative of Art. 14 (equal treatment), as this is a special law and forms a different class which protects the meekest of the meek.
The importance of precedents
Faced with this set of precedents, the Supreme Court should have observed the judicial discipline of `Binding Precedents'. This yields consistency and stability in the administration of Law. Without this, if each Court is left free to pursue its views regardless of previous judgments of their own peers in an hierarchal system, the result will be chaotic. The doctrine of precedent is thus an indispensable foundation of the system of common law, and should be scrupulously followed.
In interpreting the Law, Courts cannot add, alter or subtract a single word, especially when the literal reading of the same produces an Intelligible result. If this principle is not followed, then Courts run the risk of veering into legislation. This golden rule of interpretation of statutes, right from Maxwell’s times, has been followed in all common law countries. The Supreme Court should then bow to the text of the law that the Parliament has laid down. In the past, all superior courts have held that the legislature knew exactly what they said, and even if it is badly drafted, their Lordships will not carry out any amendments.
Devendra Nath Goburdhun is a practising lawyer in the Supreme Court of India