The Supreme Court bench of Justices A. K. Sikri and Ashok Bhushan on Monday adjourned to November 20, being a Non-Miscellaneous Day, the hearing on a string of petitions challenging the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018.
Regarding it as a “minor modification”, Solicitor General Tushar Mehta requested for time until Friday to file the comprehensive reply on behalf of the Centre.
Senior Counsel Indira Jaising sought the impleadment of Bhaskar Kharbhari Gaidwad, who had filed the FIR from which arose the original proceedings culminating in the controversial March 20 decision of the apex court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra. The same was allowed.
The bench, on Monday, refused to entertain a plea for monitoring of the implementation of the amended Act before final hearing, remarking that it was tantamount to an application for reserving a seat in a school for an unborn child.
At the previous hearing on September 7, the bench had declined to stay the Amendment without according an opportunity of being heard to the government. The Union of India had been required to file its response within 6 weeks.
This PIL challenging the 2018 Amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 has been moved , inter alia, by Advocates Prathviraj Chauhan and Priya Sharma.
The grievance of the petitioners arises from the fact that even as the review of the controversial verdict of the Supreme Court in Dr. Subhash Kashinath Mahajan lies pending, the Amendment was cleared by the Parliament on August 9, rendering the judgment redundant.
By way of the Amendment, a new section 18A has been inserted in the Act of 1989, which does away with the court-imposed requirements of undertaking preliminary inquiry and of procuring approval prior to making an arrest. It also restores the unconditional ban on the grant of anticipatory bail in the event of an offence under the Act.
The decision in Subhash Kashinath Mahajan was followed by massive unrest across the nation, in the wake of which the Union of India and several state governments had sought a review of the same. However, the bench of Justices Adarsh Kumar Goel and U. U. Lalit had refused to relent.
The petitioners have contended, “thereafter, a rare move was adopted by the central government to get political mileage and under pressure from alliance partners and also worrying over the prospects of antagonising a huge vote bank ahead of the Loksabha elections next year, The Government decided to amend this act”
It has been averred that the anti-atrocities law has become an instrument to “blackmail” innocent citizens and public servants, that the Act of 1989 is used to exact “vengeance” and satisfy vested interests and that it is also prone to misuse on account of monetary incentive being available merely for lodging a case under Rule 12(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995.
It has been argued that the exclusion of the provision for anticipatory bail is arbitrary and unjust, in as much as wrongful arrest infringes the right to personal liberty under Article 21, and cannot, by any reasonable interpretation, be applicable when no case is made out or the allegations are patently false or motivated- “it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be blackmailed with the threat of a false case being registered under the Atrocities Act, without any protection of law”
The petitioners have stated that being born in an upper caste cannot be a ground for a presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum, that the power of arrest should be exercised only after complying with the safeguards of scrutiny, credible information and just and reasonable procedure under Sections 41 and 41A of the Cr.P.C.
The attention of the apex court has been drawn to the fact that the volume of complaints under this Act has increased alarmingly and that 85% of these complaints end in acquittal.
The petition urges the court to not remain a mere spectator by virtue of the violation of Fundamental Rights in the present case, indicating how the judgment of the Supreme Court in Shah Bano, entitling divorced Muslim women to maintenance under section 125, Cr. P. C., was overturned by the introduction of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to garner the votes of the orthodox minority community, and eventually how in Shamim Bano, section 125 was held to be universally-applicable regardless of the personal law.
Finally, reliance has been placed on the 2007 landmark ruling of the apex court declaring that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violate the basic structure of the constitution.