Over a dozen innocent Dalits lost their lives in the Bharat bandh the other day because of the judgment of the Supreme Court. It tinkered with the in-built protection of Dalits which they had under the special laws enacted by the Parliament during VP Singh’s government.
The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, became a special law as the then government informed Parliament that despite the various measures adopted to improve the socio-economic conditions of the SC/STs, they remain vulnerable. To check this menace, Parliament said grant of anticipatory bail be expressly excluded from the ambit of the Act.
Even though the Constitution states that untouchability stood abolished, Prime Minister Narendra Modi’s government realised that the ground realities were otherwise. Amendments were introduced including punishments for prevention from voting, intimidation from performing office duties under panchayats, economic boycott, malicious cases, denial of access, obstructing in use of common property and wholesome social measures.
The lawmakers realised that this social menace had to be effectively checked with an iron hand bail. Parliament, therefore, consciously and deliberately, expressly excluded the grant of pre-arrest bail to alleged offenders in Section 18 of the Act as it would balance the socio-economic realities. But the Supreme Court recently reversed this, causing a major upheaval. It not only erred in law but chose not to follow its own previous judgments and breached judicial discipline.
In the petition filed by Subhash Mahajan, former director of technical education, Maharashtra, against a Bombay High Court order rejecting his plea to quash an FIR filed by Bhaskar Gaikwad, store-keeper in the department of technical education, the Supreme Court noted that there were instances of the Act being abused by vested interests.
In Mahajan’s case, which led to the storm, there was no challenge to the constitutionality or validity of Section 18, non-grant of anticipatory bail, yet the Supreme Court gave a judgment that a dominant member of the community shall not be arrested unless a senior superintendent of police or senior government officer stated in writing that his arrest be made. Mahajan’s case was for only quashing an FIR.
The sweeping directions of pre-arrest bail, how an arrest shall be made and denial of anticipatory bail is violative of Article 21 of Fundamental Rights and is unwarranted. These directions are prohibited under the statute. They are contrary to the earlier judgments in the Ram Krishna, Manju Devi and the Kartar Singh cases.
Twenty-four years ago, the Supreme Court held that the question of grant of pre-arrest bail did not arise under this special law. It understood the anguish of law makers and held that anticipatory bail if granted would be abused in every likelihood to terrorise the victims and would hinder proper investigation. Thus, Supreme Court in Mahajan’s case was duty-bound to follow the earlier binding decisions.
Interpreting the law, it is clear that courts cannot add/alter or subtract even a single word, especially when the literal reading of the same produces an intelligible result. If not, it would not amount to interpretation but legislation.
Thus, there could be no departure. The courts can never proceed on the assumption, as it did in this case, that Parliament while enacting the statute had committed a mistake. On the contrary, all superior courts, while interpreting statutes, have held that the legislature knew exactly what it said and even if it was badly drafted their Lordships would not carry out any amendment.
D N Goburdhun
Senior Supreme Court lawyer
dngoburdhun@gmail.com