The recent Supreme Court verdict in the case Dr Subhash Kashinath Mahajan versus the State of Maharashtra & others has kicked up a political storm. The court ruled that additional safeguards must be provided to civil servants before arresting them in a complaint registered under Scheduled Castes and Tribes (Prevention of Atrocities), 1989. It said that the approval of an appointing authority, a non- public servant and an S.S.P is required for arresting a public servant under the act. This safeguard has been added to avoid misuse of the act against public servants.
Anticipatory bail was denied for accused under the SC/ST (prevention of atrocities) act. The verdict has also made way for an anticipatory bail to accused if there is no prima facie case. Anticipatory bail is a provision in the law that allows a person to seek a bail if he/she anticipates an arrest on accusation of having committed a non-bailable offence. In its judgement [pdf] the apex court said :
83. Our conclusions are as follows:
i) Proceedings in the present case are a clear abuse of process of the court and are quashed.
ii) There is no absolute bar against the grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);
iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, the arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
This has raised concerns among the SC/ST community as the rate of conviction are already low under the act. They have also felt that the judgement would dilute the provisions of the act which protect the community from atrocities. This argument might have some validity. The need of the hours is to find a balance between protection of the SC/ST community from atrocities and prevent its misuse. Instead of working on a solution, the Congress party has decided to politicise the matter.
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This is a purely logical debate which must be examined from the legal point of view. A group of BJP MPs belonging to SC/ST community have met the law minister and asked him to file a review petition on the matter. This issue could turn into a test of perception for BJP as well. The SC and ST community has supported the party in several elections and its support is crucial for any party to succeed in the key state of Uttar Pradesh. Any indication that the party is against their interests will turn the tide against the party.
Thus, it would seem like a catch-22 situation for BJP. While the Court has issued its judgement based on misuse of the law, BJP would also need to balance the perception battle with the logical steps that need to be taken to not only protect the interests of the SC/ST community but also curb misuse of the law.