THE SUPREME Court on Tuesday recalled its earlier direction which diluted provisions of arrest under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
In its order on March 20, 2018, a Bench of Justices A K Goel and U U Lalit had directed that no arrests under the Act could be made without prior permission — from the appointing authority in case of public servants, and from the Senior Superintendent of Police (SSP) for others — and a preliminary enquiry should be conducted before registration of FIR.
But the Bench of Justices Arun Mishra, M R Shah and B R Gavai, on Tuesday, said if this was allowed, “the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged… delay would be adding to the further plight of the downtrodden class”.
“Permission of appointing authority to arrest a public servant is not at all statutorily envisaged; it is encroaching on a field which is reserved for the Legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the Courts…The direction is discriminatory and would cause several legal complications,” it said.
The court pointed out that there is no provision in the Code of Criminal Procedure (CrPC) or SC/ST Act for a preliminary enquiry, and it would mean that “even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary enquiry is held.”
“We do not doubt that the directions encroach upon the field reserved for the Legislature and are against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India,” it said.
The court also rued the condition of SCs and STs in the country. “As to prevailing conditions in various areas of the country, we are compelled to observe that SCs/ STs are still making a struggle for equality and for exercising civil rights… The members… are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached them, by and large, they remain an unequal and vulnerable section of the society… (They) have been suffering ignominy and abuse, and they have been outcast socially for centuries. The efforts for their upliftment should have percolated down to eradicate their sufferings,” it said.
“We have not been able to provide the downtrodden class fundamental civil rights and amenities, frugal comforts of life which make life worth living. More so, for tribals, who are, at some places, still kept in isolation, as we have not been able to provide them even basic amenities, education and frugal comforts of life in spite of spending a considerable amount for their protection. How long will this continue,” it said.
“They do labour, bonded or forced, in agricultural fields, which is not abrogated in spite of efforts. In certain areas, women are not treated with dignity and honour and are sexually abused in various forms. We see sewer workers dying due to poisonous gases… we have not been able to provide masks and oxygen cylinders… we cannot leave them to die like this and avoid tortious liability concerned with officials/ machinery, and they are still discriminated within the society in the matter of enjoying their civil rights,” said the court.
Saying that efforts to remove the caste system had only “succeeded partially”, the court ruled that historically disadvantaged groups must be given special protection so that they can be uplifted from their poverty and social condition.
“The creation of a casteless society is the ultimate aim. We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like the Act of 1989, and there is no need to provide for any reservation to SCs/ STs/ OBCs, and only one class of humans exist, equal in all respects, and no caste system or class of SCs or STs or OBCs exists. All citizens are emancipated and become equal as per the Constitutional goal,” it said.