By Anita Cheria and Edwin
The order of Justices Adarsh Kumar Goel and Uday Umesh Lalit of the Supreme Court of India in the regarding the implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and Rules 1995 (amended in 2015 and 2016 respectively) has caused considerable consternation and dismay.
There are many opinions on the judgement. For clarity it is best to go back to the basics: to the bare Act and Rules. This piece looks at the judgement from the point of view of the Act and the Rules, bearing in mind the highest standards of law, evidence and proof to ‘apply principles of law and draw inferences, not to be swayed by mercy or compassion, adjudicate without taking sides and without being mindful of the consequence on the basis of well-drawn parameters’ – or more prosaically: facts are sacred, comment is free.
What is really written in the law?
The judgement
The 89-page judgement quotes copiously from several other judgements (curiously many from the High Court of Gujarat), international instruments, why it is competent to pass the judgement, and finally meanders into its reasoning, judgement, orders.
The major contentions in the judgement that accepts and ‘acknowledge[s] abuse of law of arrest’ (para 83 (iii)) which are reflected in the orders are:
There is rampant misuse of the Act for ‘blackmail’, ‘vendetta’ and ‘personal vengeance’ (para 21, which quotes several judgements, and 67) and alludes to monetary incentive (para 24) mentioned by the petitioner.
The high rate of acquittal proves that most of the cases are false (para 25, 26).
Based on this the judges have passed two orders to prevent the ‘acknowledged abuse of law of arrest’:
The automatic arrest (para 81 and 83 (iii)) of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the Senior Superintendent of Police of the District which may be granted in appropriate cases if considered necessary for reasons recorded.
To avoid the false implication of an innocent, a preliminary inquiry may be conducted by the Deputy Superintendent of Police concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated (para 83(iv)).
As we shall show below, if the above two allegations are true, it shows serious dereliction of duty by the police and/or connivance in the miscarriage of justice, because the procedure established by law makes personal spot visit, investigation and remedial action by both the District Magistrate (DM, the highest civilian authority of a district) and the Superintendent of Police (SP, the highest executive authority of the district) mandatory before filing of the First Information Report [FIR] for all cases of atrocities (not just heinous crimes).
The law as it stands
What the law actually says should be clear to all. It is from the law as it exists, that conclusions to the validity and comprehensiveness of the law and the state machinery for its implementation can be drawn. Unfortunately, this copious judgement does neither. The relevant rules for filing an FIR are Rule 12 and to an extent Rule 6. For punishment for neglect of duties it is Section 4(2) and 4(3) of the Act. Both the procedures are conspicuous in their absence in the judgement. It reinforces the common – but erroneous – perception that the law goes against natural justice in that it denies anticipatory bail and that persons can be arrested just on the basis of a complaint. As we shall show below, these are patently false.
Filing an FIR
This Act is a testament to India’s commitment to a social justice state. But it is not arbitrary or against the principles of natural justice. It is important to know the prescribed procedure when an atrocity becomes known – either through a complaint or otherwise – and how an FIR can actually be filed before taking positions. Rule 12(1) and 12(2) detail the procedure:
(1) The District Magistrate and the Superintendent of Police shall visit the place or area where the atrocity has been committed to assess the loss of life and damage to the property and draw a list of victim, their family members and dependents entitled for relief.
(2) Superintendent of Police shall ensure that the First Information Report is registered in the book of the concerned police station and effective measures for apprehending the accused are taken.
The relief given, and the rehabilitation measures taken must be reported immediately to the special court which can enhance it at its discretion. (Rule 12(7)).
In other words, the FIR is to be filed by the SP after a personal visit and investigation. This not only removes the arbitrariness in filing the cases, but also makes it virtually impossible to have any ‘mistake of fact’. Which DySP will dare say that the FIR filed by his superior officer after a field investigation is ‘mistake of fact’?
This is in addition to the procedure established in Rule 6 (Spot inspection by officers) which also mandates that officials – again the DM or any executive magistrate, SP and DySP – immediately visit the spot whenever they ‘receive information from any person or upon his own knowledge that an atrocity has been committed’.
It can be seen from the above that the standards set are quite rigorous, and if followed, will surely not result in any false/frivolous case being filed. It would require the connivance of the high level officials visiting the spot – the DM or the sub-Divisional Magistrate or any other executive Magistrate and the SP, DySP – to file cases simply to blackmail or for the financial incentive as alleged/implied by the Justices.
Punishment for neglect of duties
Now let us come to the other bugbear: action when there is dereliction of duty. Punishment for neglect of duties is dealt with in Section 4 of the Act. What the law actually says is much more stringent that what the learned Justices have prescribed, if they had only deigned to read Section 4(2) and 4(3) of the Act, which is given below. It is in plain English and unambiguous.
Section 4(1) specifies that it is for public servants not belonging to a Scheduled Caste or a Scheduled Tribe for wilful neglect of duty. Section 4(2) lists the duties that the public servant should do in seven sub-sub-sections (4(2)a,b,c,d,e,f,g)
4. Punishment for neglect of duties.—
(2) The duties of public servant referred to in sub-section (1) shall include––
(a) to read out to an informant the information given orally, and reduced to writing by the officer in charge of the police station, before taking the signature of the informant;
(g) to perform any other duty specified in this Act or the rules made thereunder:
Provided that the charges in this regard against the public servant shall be booked on the recommendation of an administrative enquiry.
(3) The cognizance in respect of any dereliction of duty referred to in sub-section (2) by a public servant shall be taken by the Special Court or the Exclusive Special Court and shall give direction for penal proceedings against such public servant.
Please read the last line of Rule 4(2) and 4(3) again and again carefully. It already sets a much higher standard that what the Justices ordered. Prosecution for dereliction of duty is only after an administrative enquiry. Then and only then do the penal provisions apply. Cognisance is by the special court. It is unclear whether the justices impute incompetence or malevolence to the judges in the special courts.
If the prescribed procedure is not followed, then it is clear dereliction of duty by the line management/ superior officials in the respective department – police, prosecution or administration. It is they who should be held to account, instead of casting aspersions on the victim of caste based violence.
The full implications of the Lalitha Kumari (Writ Petition (Criminal) No. 68 of 2008) judgement regarding immediate filing of FIRs (which applies to all complaints and not just to those under POA) is beyond the scope of this note. However, suffice to say that it adds to the immediacy of investigation and the duties of the SP and DM still stand and false cases should not come for trial. (As an aside, an order of a five judge bench it cannot be overturned by this two judge bench).
If the justices are really concerned about (and these are grounds for a review)
Acquittals, they should call for the records and reports of, and course material by, the high-powered review committees in each state (ordered by Justices C K Prasad and Jagdish Singh Khehar in Criminal Appeal No 1485 of 2008 in State of Gujarat Versus Kishanbhai) so that the reasons for acquittal are known scientifically based on data rather than by perception which is often biased.
False cases, they should call for the records of the Superintendent of Police and District Magistrates who did the spot investigation under Rule 12(1) and caused the FIR to be filed under Rule 12(2).
Action taken under Section 4 for Dereliction of Duty by a government official, they should call for the records of the proceedings and the recommendations of the administrative enquiry as mandated under Section 4(2).
Implementation of the Act by the state, they should call for the minutes of the biannual State (Rule 16) and quarterly District (Rule 17) Vigilance and Monitoring Committee Meetings – which have the highest political, administrative, executive and prosecution officials of the state, up to and including the Chief Minister – and have the periodic review of cases of each investigating officer (Rule 7(3)) and performance of the special public prosecutor (Rule 4(2)).
The present case has brought out the fact that the DM and SP are not fulfilling their duties. Unfortunately, instead of ordering them to do so, and putting in place a mechanism to ensure that they do so on the pain of contempt of court, the Supreme Court has not only missed an opportunity but also indulged in needless name calling and victim blaming. The present observation that all acquittals are false cases filed due to ulterior motives is a permanent blot on the judiciary. Obviously, these judges did not benefit from the refresher courses ordered by Justices CK Prasad and Jagdish Singh Khehar. Just because the sunrise and cock crow are simultaneous, does not mean that the sun rises because the cock crows. Neither causality nor connexion is proved nor exists.
The Annual Status of Education Reports (ASER) finds that a majority of Indian students in Class 5 cannot read and comprehend a Class 2 text, and there is a severe comprehension deficit when it comes to mathematics. It is our fervent wish that the Justices of the Supreme Court of India do not fall under those statistics.
Views expressed are authors' own
Anita Cheria and Edwin are partners at Openspace, a campaign support organisation, that supports institution development, documentation and training, publishing, human rights education, advocacy and campaigns.