3-judge bench recalls 2-judge order against SC/ST Act

The Supreme Court on Tuesday recalled the two directions passed last year by its two-judge bench, which diluted the provisions of arrest under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The apex court's three-judge bench restored the earlier position of the law by recalling two directions in the March 20, 2018 verdict, which provided no absolute bar on grant of anticipatory bail and prior inquiry before effecting arrest of public servant and private individual under the Act.

A bench of Justices Arun Mishra, M R Shah and B R Gavai said the directions in the verdict may delay investigation of cases under the Act.

Criticising the verdict which provided for prior sanction from the appointing authority before the arrest of a public servant under the SC/ST Act, the bench said that it is contrary to legislative intent and not at all statutorily envisaged.

The top court also expressed displeasure with the another direction which provided for seeking approval of Senior Superintendent of Police (SSP) prior to the arrest of an private individual under the Act.

"We are of the considered opinion that requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the SC/ST Act," it said.

With regard to the direction of prior probe before registering the FIR, the top court said: "In case a cognisable offence is made out, the FIR has to be out rightly registered, and no preliminary inquiry has to be made as held.

"There is no such provision in the CrPC for preliminary inquiry or under the SC/ST Act, as such direction is impermissible."

It dealt with false cases lodged under the SC/ST Act, which was the basis of March 2018 verdict, and said: "There is no presumption that the members of the SCs/STs may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class".

"For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act," the bench said, adding that it cannot be the case that a report by upper caste has to be registered immediately and arrest can be made forthwith, whereas, in case of an offence under the SC/ST Act, it would be a conditioned one.

"It would be against the basic human dignity to treat all of them (SC/ST members) as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt," said a the bench.

It said that members of SC/ST cannot be put to a disadvantageous position in comparison to upper caste people and ‘what legislature cannot do legitimately, cannot be done by the interpretative process by the courts’.

The top court said that 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 Act of 1989, and there is no need to provide for any reservation to SCs/STs/OBCs, and only one class of human exist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equal as per Constitutional goal," it said.

The judgment was delivered by the top court on Centre's plea seeking review of the 2018 verdict, by which certain safeguards were provided for automatic arrest of an individual under the SC/ST Act.

The apex court's March 20, 2018, verdict had led to a massive outcry and protests by different SC/ST organisations across India after which Parliament passed the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, to neutralise the effects of the judgment.

The amendment Act has also been challenged in the top court.

The SC said that Indian society is still experimenting with 'tryst with destiny' as even after 70 years of independence the SC/ST community members continue to face discrimination, the Supreme Court said Tuesday.

Voicing serious concern over the prevailing untouchability and discrimination, the top court said it requires a ‘soul searching’ on whether a 'Harijan' can shake hand with a person of higher class on equal footing and whether the society has been able to reach that level of psyche and human dignity to remove the discrimination based upon caste.

"Sewer workers are dying due to poisonous gases in chambers and it is like death traps" as they are not even provided with masks and oxygen cylinders for entering in sewer chambers, the apex court said.

It said SC/ST members cannot be put to a disadvantageous position in comparison to upper caste people and ‘what legislature cannot do legitimately, cannot be done by the interpretative process by the courts’.

It further observed, "The clear answer is that untouchability though intended to be abolished, has not vanished in the last 70 years. We are still experimenting with ‘tryst with destiny'. The plight of untouchable is that they are still denied various civil rights; the condition is worse in the villages, remote areas where fruits of development have not percolated down. They cannot enjoy equal civil rights," the bench said.

The society has not been able to provide the modern methods of scavenging to 'Harijans' due to lack of resources and proper planning and apathy, it said.

"Whether he can shake hand with a person of higher class on equal footing? Whether we have been able to reach that level of psyche and human dignity and able to remove discrimination based upon caste? Whether false guise of cleanliness can rescue the situation, how such condition prevails and have not vanished, are we not responsible? The answer can only be found by soul searching," it said.

"The members of the SC/ST are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached to them, by and large, they remain unequal and vulnerable section of the society", it said.

Dealing with the plight of tribals, the bench said the society has not been able to provide them ‘even basic amenities, education and frugal comforts of life in spite of spending a considerable amount for the protection’.