INDIA: Smokescreen judgments, police impunity and judicial overreach

By Urmila Pullat

On Mar 20, 2018, in Dr. Subhash Kashinath Mahajan vs. The State of Maharashtra And Anr., the Supreme Court of India held that there is no absolute bar on granting anticipatory bail for complaints under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter the SC/ST Act). Further, in a regrettable dilution of the Act, the judgment makes it mandatory for police to obtain written permission before arresting the accused, from the appointed authority in case of complaints against public servants, and from the Senior Superintendent of police(SSP) in case of complaints against non-public servants. The relevant provisions from the judgment (pp. 88-89),

“ii) There is no absolute bar against 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, 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.”

The offences under the SC/ST Act are cognizable offences i.e. the police can arrest without a warrant or order from a court. The procedure for arrest to be followed in cases of cognizable offences is detailed under S.41 of the Code of Criminal Procedure (CrPC) and as per S.41 (1) (b) (i), the police officer must have ‘reason to believe’ on the basis of the complaint, information or suspicion that such person has committed the said offence. As per the SC/ST Rules, 1951, Rule 7(1) states that any offence committed under the SC/ST Act must be investigated by a police officer not below the rank of Deputy Superintendent of Police (DySP), and that this officer should be appointed as the I.O,

“taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. “

This is what has taken on the misnomer of ‘automatic arrest’, giving the impression that the provisions of this Act are somehow more stringent than procedural requirements under the CrPC. The existing provisions show that the SC/ST Act and Rules take into account the seriousness of the offences and have in place certain safeguards, that do not exist for most other cognizable offences, to ensure effective and efficient investigation into these offences. What then is the reason for this judgment to introduce yet another procedural requirement before which an arrest effect and complaint investigated? Another judgment (Rajesh Sharma & Ors. V. State of U.P & Anr. On 27th July, 2017) by the same bench of Justices A.K. Goel and U.U. Lalit, comes to mind, which attempts to prevent misuse of S.498A (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, establishing ‘Family Welfare Committees’ to look into complaints under S.498 A of the IPC, before the police are allowed to arrest the accused.

Both the SC/ST act and S.498A are beneficial in nature, meant to protect members of SC/ST communities and women respectively from atrocities that are a product of deeply internalized notions, centuries old. Institutionalized in India, caste atrocities and dowry harassment against women are ‘social evils’ that require special laws or legal provisions to be able to combat it, given its widespread nature. The intention is to deter, and to deter harshly so that the tide can be reversed using the machinations of the law. In a clear case of overreach, the Supreme Court has merely reacted to this situation by imposing stricter and more onerous procedural requirements for vulnerable people filing complaints. The real issue, once again, get buried under the morass, obfuscated by lofty claims of ‘misuse’ of the law – an easy excuse, a convenient diversion.

The SC fails, yet again, as in the S.498A judgment, to draw the attention of the state to the abysmal state of policing in the country for after all, how is the law of arrest under an Act misused? Who is effecting the arrest? The police are responsible for pursuing false cases and arresting innocents, and, without paying attention to the poor investigative capabilities and intentions of the police, any and every criminal law can be misused, and is likely misused. 

Further, in cases of caste atrocities as in cases of violence against women, we must be cautious about trusting the statistics. There is likely a lack of reliable data given the nature of these crimes and how difficult it is to actually report them. The police are after all, repositories of existing cultural mores, and as our work in the fight against torture has shown, tools in the hand of those wielding power. By mandating the appointing authority to give written permission, can the SC ensure that they are free of bias and will not be prone to protecting their employee? Can a committee (in the case of S.498A complaints) or a superior officer be allowed to decide on a matter of such serious importance, which could even be a matter of life and death in some cases?

This judgment, in effect, makes it even more difficult for the bona fide complainants to access justice mechanisms and does a very good job of downplaying the pervasive monster of caste atrocities in India. Can the CRPC be bypassed by simply adding more committees and authorities to decide whether a complaint is genuine? The genuineness of a complaint must be decided by the police investigating the case and not by additional authorities and persons.

The rule of law paramount and the real focus should be on improving investigative powers of the police and not reduce people to pawns of the system, by forcing them to jump through hoops to prove their bona fides and then subjecting them to a languorous criminal justice system anyway. The two judgments of this bench make the benefit of beneficial legislations and provisions impervious and once again, allows the police to bask in the impunity afforded to them by the system, with no effective mechanism to check the growing misuse of their powers.