A three-member bench of the Supreme Court has allowed the Modi government’s review petition against the dilution of powers of arrest under the controversial SC-ST Act, which had caused disquiet across a wide spectrum, including the affected class. This had even led to a certain Dalit alienation from the BJP as it was felt that the ruling coalition was not doing enough or was late in its response. To that extent, the latest Supreme Court verdict must gladden the hearts of the saffron elements.
The new decision removes the stipulation that a preliminary enquiry has to be completed by a police officer before initiating the arrest of an accused whenever a victim belonging to the SC-ST sections lodges a complaint with the police. The two-member bench of the apex court, which had overturned the provisions of the SC-SC Act in a March 2018 verdict, had issued detailed guidelines that must be followed for making arrests under the provision. The latest order withdraws those guidelines.
But the main ground on which the earlier order stands expunged has more to do with unfair treatment of cases relating to Dalits vis-à-vis other such cases and not specifically the import of the legislation itself. Under the landmark Lalit Kumari case, if a case of cognizable offence is made out against any person, an FIR has to be necessarily registered and the officer failing to do so will be held accountable. There is no need for an enquiry to be conducted before registering the FIR.
But the 2018 verdict had introduced the need for a preliminary enquiry on the ground that the provision was liable to be misused by the members of SC-ST to falsely implicate persons who they have problems with. The latest verdict rejects this apprehension, saying that the conditions of SC-STs as they exist today do not make this a possibility.
It is of great academic interest as to how the two benches arrived at their own conclusions in taking their respective positions as both have to be founded on sound reasoning. It would appear that the former took a purely judicial view of the case, while the review bench tended to look at things in a circumstantial angle. Both views would appear to be justified from their respective perspectives.
Citing the prevailing conditions in various areas of the country, the review bench said it is compelled to observe that SCs/STs are still making the struggle for equality and for exercising civil rights and that they are still discriminated against. These classes 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.
One major problem with this view, however, is that it is using the failure of the protective discrimination in favour of the Dalit classes as the ground for continuing the botched system. If the policies followed so far have failed to achieve the desired change, why defend those policies and use them to argue in favour of their continuance? Essentially, this is what the review bench has done. It is not good enough to show that the system has failed as tinkering with it further won’t make any material difference.
Perhaps even more disturbing is the reference to continued practice of untouchability in different parts of the country in various forms. When something is constitutionally banned as illegal and criminal, the prevalence of such practice cannot be used to defend any law or the provisions under it. A court cannot just mention the evil and stop there, especially when it is revolting to whatever we consider as the basic tenet of our Constitution and democracy itself. It has to recommend a remedy.
There is yet another one that leaves a bad taste. A reference to the possibility of misuse of the law by members of these disadvantaged sections betrays a sense of colonial indifference. The bench observed that there can be no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class. “It would be against the basic human dignity to treat all of them as liars or crooks and cannot look at every complaint by such complainant with a doubt”, it said.
Although the intention may be pious, the manner in which it finds expression leaves something to be desired. It does suggest the incidence of misuse, though it is not class-specific. Further arguments down the line to the effect that most such cases may be due to failure of the official machinery do not lessen the sting in the observation.
The writer is a freelance journalist.
Views are personal.
-By K Raveendran