Review – on directions of Apex court in dealing with the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’ are set at right =This Court while dealing with the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph 83 of the judgment, which are extracted hereunder:­ “83. Our conclusions are as follows: i) Proceedings in the present case are clear abuse of process of court and are quashed. 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 1 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 non­public 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 above directions are prospective.”= This Court, while passing the judgment under review, has observed in paragraph 32 thus: “32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights1 . There are enumerable decisions of this Court where this approach has been adopted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such directions can certainly be issued and continued till an appropriate legislation is enacted2 . Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute3 . Power to declare law carries with it, within the limits of duty, to make law when none exists4=direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes. The review petitions are allowed to the extent mentioned above

REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CRL.) NO.228 OF 2018
IN
CRIMINAL APPEAL NO.416 OF 2018
UNION OF INDIA …..PETITIONER
VERSUS
STATE OF MAHARASHTRA AND ORS. ….RESPONDENTS
WITH
REVIEW PETITION (CRIMINAL) NO.275 OF 2018
IN
CRIMINAL APPEAL NO.416 OF 2018
J U D G M E N T
ARUN MISHRA, J.

  1. The Union of India has filed the instant petition for review of the
    judgment and order dated 20.3.2018 passed by this Court in Criminal
    Appeal No.416 of 2018. This Court while dealing with the provisions
    of Scheduled Castes and the Scheduled Tribes (Prevention of
    Atrocities) Act, 1989 (for short ‘the Act of 1989’) has issued guidelines
    in paragraph 83 of the judgment, which are extracted hereunder:­
    “83. Our conclusions are as follows:
    i) Proceedings in the present case are clear abuse of process of
    court and are quashed.
    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
    1
    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 non­public 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 above directions are prospective.”
  2. This Court, while passing the judgment under review, has
    observed in paragraph 32 thus:
    “32. This Court is not expected to adopt a passive or negative role
    and remain bystander or a spectator if violation of rights is
    observed. It is necessary to fashion new tools and strategies so as to
    check injustice and violation of fundamental rights. No procedural
    technicality can stand in the way of enforcement of fundamental
    rights1
    . There are enumerable decisions of this Court where this
    approach has been adopted and directions issued with a view to
    enforce fundamental rights which may sometimes be perceived as
    legislative in nature. Such directions can certainly be issued and
    continued till an appropriate legislation is enacted2
    . Role of this
    Court travels beyond merely dispute settling and directions can
    certainly be issued which are not directly in conflict with a valid
    statute3
    . Power to declare law carries with it, within the limits of
    duty, to make law when none exists4
    .
    1 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13
    2 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983)
    2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756
    3 Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48
    4 Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18
    [Note: For convenience, the cases/citations in the extracts have been renumbered.]
    2
  3. Question has been raised by the Union of India that when the
    Court does not accept the legislative and specific provisions of law
    passed by the legislature and only the legislature has the power to
    amend those provisions if the Court finds provisions are not
    acceptable to it, it has to be struck them down being violative of
    fundamental rights or in case of deficiency to point out to the
    legislature to correct the same.
  4. The Union of India has submitted that judgment and order dated
    20.3.2018 entails wide ramification and it deserves to be reviewed by
    this Court. It is also submitted that this Court has failed to take note
    of aspects which would have a significant bearing on the present case.
  5. It is submitted that the Act of 1989 had been enacted to remove
    the disparity of the Scheduled Castes and Scheduled Tribes who
    remain vulnerable and denied their civil rights. The Statement of
    Objects and Reasons of the Act of 1989, for which it had been enacted
    is as under:
    “Despite various measures to improve the socio­economic
    conditions of the Scheduled Castes and the Scheduled Tribes,
    they remain vulnerable. They are denied number of civil rights.
    They are subjected to various offences, indignities,
    humiliations, and harassment. They have, in several brutal
    incidents, been deprived of their life and property. Serious
    crimes are committed against them for various historical,
    social, and economic reasons.
  6. ………. When they assert their rights and resist practices of
    untouchability against them or demand statutory minimum
    wages or refuse to do any bonded and forced labour, the
    vested interests try to cow them down and terrorise them.
    3
    When the Scheduled Castes and the Scheduled Tribes try to
    preserve their self­respect or honour of their women, they
    become irritants for the dominant and the mighty. Occupation
    and cultivation of even the Government allotted land by the
    Scheduled Castes and Scheduled Tribes is resented and more
    often these people become victims of attacks by the vested
    interests. Of late, there has been an increase in the disturbing
    trend of the commission of certain atrocities like making the
    Scheduled Caste persons ear inedible substances, like human
    excreta and attacks on and mass killings of helpless
    Scheduled Castes and the Scheduled Tribes and rape of
    women belonging to the Scheduled Castes and the Scheduled
    Tribes. Under the circumstances, the existing laws like the
    Protection of Civil Rights Act, 1955 and the normal provisions
    of the Indian Penal Code have been found to be inadequate to
    check these crimes. A special legislation to check and deter
    crimes against them committed by non­Scheduled Castes and
    non­Scheduled Tribes has, therefore, become necessary.”
    The preamble to the Act of 1989 states as under:
    “An Act to prevent the Commission of offences of atrocities
    against the members of the Scheduled Castes and the
    Scheduled Tribes, to provide for special courts for the trial of
    such offences and for the relief and rehabilitation of the
    victims of such offences and for matters connected therewith
    or incidental thereto.”
    Section 18 of the Act of 1989 has been enacted to take care of an
    inherent deterrence and to instil a sense of protection amongst
    members of Scheduled Castes and Scheduled Tribes. It is submitted
    that any dilution of the same would shake the very objective of the
    mechanism to prevent the offences of atrocities. The directions issued
    would cause a miscarriage of justice even in deserving cases. With a
    view to object apprehended misuse of the law, no such direction can
    be issued. In case there is no prima facie case made out under the
    Act of 1989, anticipatory bail can be granted. The same was granted
    in the case in question also.
    4
  7. It is submitted that because of the continuing atrocities against
    the members of the Scheduled Castes and Scheduled Tribes, a
    commission of offences against them indicated an increase, even the
    existing provisions were not considered sufficient to achieve the
    objective to deliver equal justice to the members of the Scheduled
    Castes and the Scheduled Tribes. Hence, the Act of 1989 had been
    amended in April 2015, enforced with effect from 26.01.2016.
  8. It is further submitted that the amendments broadly related to
    addition of several new offences/atrocities like tonsuring of
    head/moustache, or similar acts which are derogatory to the dignity of
    the members of Scheduled Castes and Scheduled Tribes, garlanding
    with footwear, denying access to irrigation facilities or forest rights,
    dispose or carry human or animal carcasses, or to dig graves, using or
    permitting manual scavenging, dedicating a Scheduled Caste or a
    Scheduled Tribe woman as devadasi, abusing in caste name,
    perpetrating witchcraft atrocities, imposing social or economic boycott,
    preventing Scheduled Caste and Scheduled Tribe candidates from
    filing nomination to contest elections, insulting a Scheduled Castes/
    Scheduled Tribes woman by removing her garments, forcing a member
    of Scheduled Caste/ Scheduled Tribe to leave house, village or
    residence, defiling objects sacred to members of Scheduled Castes and
    Scheduled Tribes, touching or using acts or gestures of a sexual
    5
    nature against members of Scheduled Castes and Scheduled Tribes
    and addition of certain IPC offences like hurt, grievous hurt,
    intimidation, kidnapping etc., attracting less than ten years of
    imprisonment committed against members of Scheduled Castes and
    Scheduled Tribes as offences punishable under the Act of 1989, beside
    rephrasing and expansion of some of the earlier offences.
  9. It is submitted that the provisions have also been made for the
    establishment of exclusive Special Courts and specification of
    Exclusive Special Public Prosecutors to exclusively try the offences
    under the Act of 1989 to enable expeditious disposal of cases, Special
    Courts and Exclusive Special Courts to take direct cognisance of
    offences and completion of trial as far as possible within two months
    from the date of filing of the charge sheet and addition of chapter on
    the “Rights of Victims and Witnesses”.
  10. It is also submitted on behalf of Union of India that as per the
    amendment Rules, 2016 the provisions have also been made with
    regard to relief amount of 47 offences of atrocities to victims,
    rationalisation of the phasing of payment of relief amount,
    enhancement of relief amount between Rs.85,000/­ to Rs.8,25,000/­
    depending upon the nature of the offence, payment of admissible relief
    within seven days, on completion of investigation and filing of charge
    sheet within sixty days to enable timely commencement of prosecution
    6
    and periodic review of the scheme for the rights and entitlements of
    victims and witnesses in accessing justice by the State, District and
    Sub­Division Level Vigilance and Monitoring Committees in their
    respective meetings.
  11. It is submitted that this Court has failed to appreciate that low
    rate of conviction and high rate of acquittal under the Act of 1989,
    related cases is attributable to several factors like delay in lodging the
    FIR, witnesses, and complainants becoming hostile, absence of proper
    scrutiny of the cases by the prosecution before filing the charge sheet
    in the Court, lack of proper presentation of the case by the
    prosecution and appreciation of evidence by the Court. There is long
    pendency of the trial, which makes the witness to lose their interest
    and lack of corroborative evidence. There are procedural delays in
    investigation and filing of the charge sheet.
  12. It is submitted that Rule 7(2) of Scheduled Castes and
    Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that
    investigating officer to complete the investigation within 30 days.
    Without immediate registration of FIR and arrest and by providing
    anticipatory bail to the accused, Rule 7 is bound to be frustrated.
  13. It is further submitted that the directions issued are legislative.
    It would devoid the object of the Act to remove the caste­based sub7
    judication and discrimination. Such directions are impermissible to
    be issued under Article 142 of the Constitution of India.
  14. It is also submitted that offences of atrocities against the
    members of Scheduled Castes and Scheduled Tribes have been
    disturbingly continuing and as per the data of National Crime Records
    Bureau (NCRB), Ministry of Home Affairs, 47,338 number of cases
    were registered in the country under the Act of 1989 in conjunction
    with the Indian Penal Code during the year 2016. Further, only 24.5
    % of the said cases ended in conviction and 89.3% were pending in the
    courts at the end of the year 2016. In the circumstances, it is not
    proper to dilute the provisions and make it easier for the accused to
    get away from arrest by directing a preliminary enquiry, approval for
    an arrest.
  15. Per contra, it is submitted that directions are proper because of
    misuse of the legislative provisions of the Atrocities Act, and no case
    for interference is made out in the review jurisdiction.
  16. Before dealing with submission, we refer to the decisions. In
    National Campaign on Dalit Human Rights & Ors v. Union of India &
    Ors. (2017) 2 SCC 432, this Court has considered the report of Justice
    K. Punnaiah Commission and the 6th Report of the National
    Commission for Scheduled Castes/ Scheduled Tribes. The NHRC
    8
    report also highlighted the non­registration of cases and various other
    machinations resorted to by the police to discourage Dalits from
    registering cases under the Act of 1989. In the said case this Court
    had directed the strict implementation of the provisions of the Act of
  17. The relevant portion of the decision mentioned above is
    extracted hereunder:
    “18. We have carefully examined the material on record, and we are
    of the opinion that there has been a failure on the part of the
    authorities concerned in complying with the provisions of the Act
    and the Rules. The laudable object with which the Act had been
    made is defeated by the indifferent attitude of the authorities. It is
    true that the State Governments are responsible for carrying out the
    provisions of the Act as contended by the counsel for the Union of
    India. At the same time, the Central Government has an important
    role to play in ensuring the compliance with the provisions of the
    Act. Section 21(4) of the Act provides for a report on the measures
    taken by the Central Government and State Governments for the
    effective implementation of the Act to be placed before Parliament
    every year. The constitutional goal of equality for all the citizens of
    this country can be achieved only when the rights of the Scheduled
    Castes and Scheduled Tribes are protected. The abundant material
    on record proves that the authorities concerned are guilty of not
    enforcing the provisions of the Act. The travails of the members of
    the Scheduled Castes and the Scheduled Tribes continue unabated.
    We are satisfied that the Central Government and the State
    Governments should be directed to strictly enforce the provisions of
    the Act and we do so. The National Commissions are also directed
    to discharge their duties to protect the Scheduled Castes and
    Scheduled Tribes. ….”
  18. Reliance has been placed on Lalita Kumari v. Government of U.P.,
    (2014) 2 SCC 1, wherein a Constitution Bench of this Court has
    observed as under:
    “35. However, on the other hand, there are a number of cases
    which exhibit that there are instances where the power of the police
    to register an FIR and initiate an investigation thereto are misused
    where a cognizable offence is not made out from the contents of the
    complaint. A significant case in this context is the case of Preeti
    Gupta v. State of Jharkhand (2010) 7 SCC 667 wherein this Court
    has expressed its anxiety over misuse of Section 498­A of the Penal
    9
    Code, 1860 (in short “IPC”) with respect to which a large number of
    frivolous reports were lodged. This Court expressed its desire that
    the legislature must take into consideration the informed public
    opinion and the pragmatic realities to make necessary changes in
    law.
  19. The abovesaid judgment resulted in the 243rd Report of the Law
    Commission of India submitted on 30­8­2012. The Law
    Commission, in its report, concluded that though the offence under
    Section 498­A could be made compoundable, however, the extent of
    misuse was not established by empirical data, and, thus, could not
    be a ground to denude the provision of its efficacy. The Law
    Commission also observed that the law on the question whether the
    registration of FIR could be postponed for a reasonable time is in a
    state of uncertainty and can be crystallised only upon this Court
    putting at rest the present controversy.”

  1. In CBI v. Tapan Kumar Singh (2003) 6 SCC 175, it was held as
    under: (SCC pp. 183­84, para 20)
    “20. ……If he has reasons to suspect, on the basis of
    information received, that a cognizable offence may have been
    committed, he is bound to record the information and conduct
    an investigation. At this stage, it is also not necessary for him
    to satisfy himself about the truthfulness of the information. It
    is only after a complete investigation that he may be able to
    report on the truthfulness or otherwise of the information.
    …..The true test is whether the information furnished provides
    a reason to suspect the commission of an offence, which the
    police officer concerned is empowered under Section 156 of
    the Code to investigate. If it does, he has no option but to
    record the information and proceed to investigate the case
    either himself or depute any other competent officer to
    conduct the investigation…..”
    It is apparent from the decision in Lalita Kumari (supra) that FIR
    has to be registered forthwith in case it relates to the commission of
    the cognizable offence. There is no discretion on the Officer In­charge
    of the Police Station for embarking upon a preliminary inquiry before
    registration of FIR. Preliminary inquiry can only be held in a case
    where it has to be ascertained whether a cognizable offence has been
    committed or not. If the information discloses the commission of a
    cognizable offence, it is mandatory to register the FIR under Section
    10
    154 of Cr.PC, and no preliminary inquiry is permissible in such a
    situation. This Court in Lalita Kumar (supra) observed as under:
    “54. Therefore, the context in which the word “shall” appears in
    Section 154(1) of the Code, the object for which it has been used
    and the consequences that will follow from the infringement of the
    direction to register FIRs, all these factors clearly show that the
    word “shall” used in Section 154(1) needs to be given its ordinary
    meaning of being of “mandatory” character. The provisions of
    Section 154(1) of the Code, read in the light of the statutory scheme,
    do not admit of conferring any discretion on the officer in charge of
    the police station for embarking upon a preliminary inquiry prior to
    the registration of an FIR. It is settled position of law that if the
    provision is unambiguous and the legislative intent is clear, the
    court need not call into it any other rules of construction.”
    Concerning the question of arrest, in Lalita Kumari (supra) this
    Court has considered the safeguard in respect of arrest of an accused
    person. This Court affirmed the principle that arrest cannot be made
    routinely on the mere allegation of commission of an offence. The
    question arises as to justification to create a special dispensation
    applicable only to complaints under the Atrocities Act because of
    safeguards applicable generally.
  2. In State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1)
    SCC 335, which has been relied upon in Lalita Kumari (supra), this
    Court has observed as under:
    “31. At the stage of registration of a crime or a case on the basis of
    the information disclosing a cognizable offence in compliance with
    the mandate of Section 154(1) of the Code, the concerned police
    officer cannot embark upon an enquiry as to whether the
    information, laid by the informant is reliable and genuine or
    otherwise and refuse to register a case on the ground that the
    information is not reliable or credible. On the other hand, the officer
    in charge of a police station is statutorily obliged to register a case
    and then to proceed with the investigation if he has reason to
    suspect the commission of an offence which he is empowered under
    11
    Section 156 of the Code to investigate, subject to the proviso to
    Section 157. (As we have proposed to make a detailed discussion
    about the power of a police officer in the field of investigation of a
    cognizable offence within the ambit of Sections 156 and 157 of the
    Code in the ensuing part of this judgment, we do not propose to
    deal with those sections in extenso in the present context.) In case,
    an officer in charge of a police station refuses to exercise the
    jurisdiction vested in him and to register a case on the information
    of a cognizable offence reported and thereby violates the statutory
    duty cast upon him, the person aggrieved by such refusal can send
    the substance of the information in writing and by post to the
    Superintendent of Police concerned who if satisfied that the
    information forwarded to him discloses a cognizable offence, should
    either investigate the case himself or direct an investigation to be
    made by any police officer subordinate to him in the manner
    provided by sub­section (3) of Section 154 of the Code.
  3. Be it noted that in Section 154(1) of the Code, the legislature in
    its collective wisdom has carefully and cautiously used the
    expression “information” without qualifying the same as in Section
    41(1)(a) or (g) of the Code wherein the expressions, “reasonable
    complaint” and “credible information” are used. Evidently, the nonqualification of the word “information” in Section 154(1) unlike in
    Section 41(1)(a) and (g) of the Code may be for the reason that the
    police officer should not refuse to record an information relating to
    the commission of a cognizable offence and to register a case
    thereon on the ground that he is not satisfied with the
    reasonableness or credibility of the information. In other words,
    ‘reasonableness’ or ‘credibility’ of the said information is not a
    condition precedent for registration of a case. A comparison of the
    present Section 154 with those of the earlier Codes will indicate that
    the legislature had purposely thought it fit to employ only the word
    “information” without qualifying the said word. Section 139 of the
    Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the
    Legislative Council of India read that ‘every complaint or information’
    preferred to an officer in charge of a police station should be
    reduced into writing which provision was subsequently modified by
    Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter
    read that ‘every complaint’ preferred to an officer in charge of a
    police station shall be reduced in writing. The word ‘complaint’
    which occurred in previous two Codes of 1861 and 1872 was
    deleted and in that place the word ‘information’ was used in the
    Codes of 1882 and 1898 which word is now used in Sections 154,
    155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An
    overall reading of all the Codes makes it clear that the condition
    which is sine qua non for recording a first information report is that
    there must be an information and that information must disclose a
    cognizable offence.
  4. It is, therefore, manifestly clear that if any information
    disclosing a cognizable offence is laid before an officer in charge of a
    police station satisfying the requirements of Section 154(1) of the
    Code, the said police officer has no other option except to enter the
    12
    substance thereof in the prescribed form, that is to say, to register a
    case on the basis of such information.”
    The Court observed the conduct of an investigation into an
    offence after the registration of FIR is a procedure established by law
    and conforms with Article 21 of the Constitution. This Court has also
    considered possible misuse of the provisions of the law in Lalita
    Kumari (supra).
  5. On behalf of Union of India, the decision in State of M.P. v. Ram
    Krishna Balothia (1995) 3 SCC 221 has been relied on, in which this
    Court has upheld the validity of Section 18 of the Act of 1989 and
    observed in background relating to the practice of untouchability and
    the social attitude which lead to the commission of such offences
    against the Scheduled Castes/ Scheduled Tribes, there is justification
    of apprehension that if benefit of anticipatory bail is made available to
    persons who are alleged to have committed such offences, there is
    every possibility of their misusing that liberty while on anticipatory
    bail to terrorise their victims and to prevent a proper investigation.
    This Court in Ram Krishna Balothia’s (supra) has observed:
    “6. It is undoubtedly true that Section 438 of the Code of Criminal
    Procedure, which is available to an accused in respect of offences
    under the Penal Code, is not available in respect of offences under
    the said Act. But can this be considered as violative of Article 14?
    The offences enumerated under the said Act fall into a separate and
    special class. Article 17 of the Constitution expressly deals with the
    abolition of ‘untouchability’ and forbids its practice in any form. It
    also provides that enforcement of any disability arising out of
    ‘untouchability’ shall be an offence punishable under the law. The
    offences, therefore, which are enumerated under Section 3(1) arise
    13
    out of the practice of ‘untouchability.’ It is in this context that
    certain special provisions have been made in the said Act, including
    the impugned provision under Section 18 which is before us. The
    exclusion of Section 438 of the Code of Criminal Procedure in
    connection with offences under the Act has to be viewed in the
    context of the prevailing social conditions which give rise to such
    offences, and the apprehension that perpetrators of such atrocities
    are likely to threaten and intimidate their victims and prevent or
    obstruct them in the prosecution of these offenders, if the offenders
    are allowed to avail of anticipatory bail. In this connection we may
    refer to the Statement of Objects and Reasons accompanying the
    Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
    Bill, 1989, when it was introduced in Parliament. It sets out the
    circumstances surrounding the enactment of the said Act and
    points to the evil which the statute sought to remedy. In the
    Statement of Objects and Reasons, it is stated:
    “Despite various measures to improve the socio­economic
    conditions of the Scheduled Castes and the Scheduled Tribes,
    they remain vulnerable. They are denied number of civil rights.
    They are subjected to various offences, indignities, humiliations,
    and harassment. They have, in several brutal incidents, been
    deprived of their life and property. Serious crimes are committed
    against them for various historical, social and economic reasons
  6. … When they assert their rights and resist practices of
    untouchability against them or demand statutory minimum
    wages or refuse to do any bonded and forced labour, the vested
    interests try to cow them down and terrorise them. When the
    Scheduled Castes and the Scheduled Tribes try to preserve their
    self­respect or honour of their women, they become irritants for
    the dominant and the mighty. Occupation and cultivation of
    even the Government allotted land by the Scheduled Castes, and
    Scheduled Tribes is resented, and more often these people
    become victims of attacks by the vested interests. Of late, there
    has been an increase in the disturbing trend of commission of
    certain atrocities like making the Scheduled Caste persons eat
    inedible substances like human excreta and attacks on and
    mass killings of helpless Scheduled Castes and Scheduled Tribes
    and rape of women belonging to the Scheduled Castes and the
    Scheduled Tribes…. A special legislation to check and deter
    crimes against them committed by non­Scheduled Castes and
    non­Scheduled Tribes has, therefore, become necessary.”
    The above statement graphically describes the social conditions
    which motivated the said legislation. It is pointed out in the above
    Statement of Objects and Reasons that when members of the
    Scheduled Castes and Scheduled Tribes assert their rights and
    demand statutory protection, vested interests try to cow them down
    and terrorise them. In these circumstances, if anticipatory bail is
    not made available to persons who commit such offences, such a
    denial cannot be considered as unreasonable or violative of Article
    14, as these offences form a distinct class by themselves and cannot
    be compared with other offences.
    14
  7. Of course, the offences enumerated under the present case are
    very different from those under the Terrorist and Disruptive
    Activities (Prevention) Act, 1987. However, looking to the historical
    background relating to the practice of “Untouchability” and the
    social attitudes which lead to the commission of such offences
    against Scheduled Castes and Scheduled Tribes, there is
    justification of an apprehension that if the benefit of the
    anticipatory bail is made available to the persons who are alleged to
    have committed such offences, there is every likelihood of their
    misusing their liberty while on anticipatory bail to terrorise their
    victims and to prevent a proper investigation. It is in this context
    that Section 18 has been incorporated in the said Act. It cannot be
    considered as in any manner violative of Article 21.
  8. It was submitted before us that while Section 438 is available
    for graver offences under the Penal Code, it is not available for even
    “minor offences” under the said Act. This grievance also cannot be
    justified. The offences which are enumerated under Section 3 are
    offences which, to say the least, denigrate members of Scheduled
    Castes and Scheduled Tribes in the eyes of society, and prevent
    them from leading a life of dignity and self­respect. Such offences
    are committed to humiliate and subjugate members of Scheduled
    Castes and Scheduled Tribes with a view to keeping them in a state
    of servitude. These offences constitute a separate class and cannot
    be compared with offences under the Penal Code.”
  9. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, this Court
    has observed that denial of the right of anticipatory bail under section
    438 would not amount to a violation of Article 21 of the Constitution
    of India. Thus, the provision of section 18 cannot be said to be
    violative of Article 21. Article 17 of the Constitution abolishes
    untouchability.
  10. In Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390, it is
    observed that where statutory provisions are clear and unambiguous,
    it cannot be read down and has observed that the statistics are to be
    considered by a legislature. The Court must take care not to express
    any opinions on sufficiency or adequacy of such figures and should
    15
    confine their scrutiny to legality not a necessity of law. This Court
    observed:
    “67. Before parting, we would like to observe that elaborate
    statistics have been laid before us to show the extent of serious
    crimes committed by juveniles and the increase in the rate of such
    crimes, of late. We refuse to be tempted to enter into the said arena,
    which is primarily for the legislature to consider. Courts must take
    care not to express opinions on the sufficiency or adequacy of such
    figures and should confine its scrutiny to the legality and not the
    necessity of the law to be made or continued. We would be justified
    to recall the observations of Justice Krishna Iyer in Murthy Match
    Works (1974) 4 SCC 428, as the present issues seem to be
    adequately taken care of by the same: (SCC p. 437, paras 13­15)
    “13. Right at the threshold, we must warn ourselves of the
    limitations of judicial power in this jurisdiction. Mr. Justice
    Stone of the Supreme Court of the United States has
    delineated these limitations in United States v. Butler: 80L Ed
    477: 297 US 1 (1936) thus: (L.Ed p. 495)
    “The power of Courts to declare a statute
    unconstitutional is subject to two guiding principles of
    decision which ought never to be absent from judicial
    consciousness. One is that Courts are concerned only
    with the power to enact statutes, not with their wisdom.
    The other is that while unconstitutional exercise of power
    by the executive and legislative branches of the
    Government is subject to judicial restraint, the only
    check upon our exercise of power is our own sense of
    self­restraint. For the removal of unwise laws from the
    statute books appeal lies not to the Courts but to the
    ballot and to the processes of democratic Government.”
  11. In short, unconstitutionality and not unwisdom of a
    legislation is the narrow area of judicial review. In the present
    case, unconstitutionality is alleged as springing from lugging
    together two dissimilar categories of match manufacturers into
    one compartment for like treatment.
  12. Certain principles which bear upon classification may be
    mentioned here. It is true that a State may classify persons
    and objects for the purpose of legislation and pass laws for the
    purpose of obtaining revenue or other objects. Every
    differentiation is not a discrimination. But classification can
    be sustained only if it is founded on pertinent and real
    differences as distinguished from irrelevant and artificial ones.
    The constitutional standard by which the sufficiency of the
    differentia which form a valid basis for classification may be
    measured has been repeatedly stated by the courts. If it rests
    on a difference which bears a fair and just relation to the object
    for which it is proposed, it is constitutional. To put it differently,
    16
    the means must have nexus with the ends. Even so, a large
    latitude is allowed to the State for classification upon a
    reasonable basis and what is reasonable is a question of
    practical details and a variety of factors which the Court will
    be reluctant and perhaps ill­equipped to investigate. In this
    imperfect world perfection even in grouping is an ambition
    hardly ever accomplished. In this context, we have to
    remember the relationship between the legislative and judicial
    departments of Government in the determination of the
    validity of classification. Of course, in the last analysis courts
    possess the power to pronounce on the constitutionality of the
    acts of the other branches whether a classification is based
    upon substantial differences or is arbitrary, fanciful and
    consequently illegal. At the same time, the question of
    classification is primarily for legislative judgment, and
    ordinarily does not become a judicial question. A power to
    classify being extremely broad and based on diverse
    considerations of executive pragmatism, the judicature cannot
    rush in where even the legislature warily treads. All these
    operational restraints on judicial power must weigh more
    emphatically where the subject is taxation.”
    (emphasis supplied)
    It was observed in Subramanian Swamy (supra) that where
    statutory provisions are clear and unambiguous, it cannot be read
    down. It would not be possible to carry out directions of this Court as
    number of Dy. S.P. Level Officers is not sufficient to make compliance
    of the directions.
  13. Concerning the exercise of powers under Article 142 of
    Constitution of India, learned Attorney General has submitted that
    such power could not have been exercised against the spirit of
    statutory provisions and to nullify them and field reserved for the
    legislature as there was no vacuum. He has referred to the following
    decisions:
    (a) In Supreme Court Bar Association v. Union of India, (1998) 4 SCC
    409, this Court has observed as under:
    17
    “47. …..It, however, needs to be remembered that the powers
    conferred on the Court by Article 142 being curative in nature
    cannot be construed as powers which authorise the Court to ignore
    the substantive rights of a litigant while dealing with a cause
    pending before it. This power cannot be used to “supplant”
    substantive law applicable to the case or cause under consideration
    of the Court. Article 142, even with the width of its amplitude,
    cannot be used to build a new edifice where none existed earlier, by
    ignoring express statutory provisions dealing with a subject and
    thereby to achieve something indirectly which cannot be achieved
    directly. …..
  14. …..Indeed, these constitutional powers cannot, in any way, be
    controlled by any statutory provisions but at the same time these
    powers are not meant to be exercised when their exercise may come
    directly in conflict with what has been expressly provided for in a
    statute dealing expressly with the subject.”
    (b) In Prem Chand Garg v. Excise Commr., AIR 1963 SC 996, the
    Court observed that it has no power to circumscribe fundamental
    rights guaranteed under Article 32 of Constitution of India.
    (c) In E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, the Court
    observed that the Supreme Court under Article 142 of the
    Constitution could not altogether disregard the substantive provisions
    of a statute and pass orders concerning an issue, which can be settled
    only through a mechanism prescribed in another statute.
    (d) In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, it has been
    observed that though the language of article 142 is comprehensive
    and plenary, the directions given by the court should not be
    inconsistent with, repugnant to or in violation of the specific
    provisions of any statute.
    18
    (e) In Bonkya v. State of Maharashtra, (1995) 6 SCC 447, the Court
    has held that the Court exercises jurisdiction under Article 142 of the
    Constitution intending to do justice between the parties, but not in
    disregard of the relevant statutory provisions.
    (f) In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, this Court has
    observed that Article 142, even with the width of its amplitude, cannot
    be used to build a new edifice where none existed earlier, by ignoring
    express statutory provisions dealing with a subject and thereby
    achieve something indirectly which cannot be achieved directly.
    (g) In State of Punjab v. Rajesh Syal, (2002) 8 SCC 158, the Court
    held that even in exercising power under Article 142(1), it is more than
    doubtful that an order can be passed contrary to law.
    (h) In Textile Labour Association v. Official Liquidator, (2004) 9 SCC 741,
    observation has been made that power under Article 142 is only a
    residuary power, supplementary and complementary to the powers
    expressly conferred on this Court by statutes, exercisable to do
    complete justice between the parties wherever it is just and equitable
    to do so. It is intended to prevent any obstruction to the stream of
    justice.
    (i) In Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC
    425, it was observed that the Supreme Court would not pass any
    19
    order under Article 142 of the Constitution which would amount to
    supplanting substantive law applicable or ignoring express statutory
    provisions dealing with the subject, at the same time these
    constitutional powers cannot in any way, be controlled by any
    statutory provisions.
    (j) In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, it was observed
    that the courts are meant to enforce the rule of law and not to pass
    the orders or directions which are contrary to what has been injected
    by law. The power under Article 142 not to be exercised in a case
    where there is no basis in law which can form an edifice for building
    up a superstructure.
    (k) In A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259, it was held that
    the power under Article 142 is not restricted by statutory provisions.
    It cannot be exercised based on sympathy and in conflict with the
    statute.
    (l) In State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, this Court
    held that Article 142 is supplementary and it cannot supplant the
    substantive provisions. It is a power which gives preference to equity
    over the law. The relevant portion is extracted hereunder:
    “12. Article 142 of the Constitution of India is supplementary in
    nature and cannot supplant the substantive provisions, though
    they are not limited by the substantive provisions in the statute. It
    is a power that gives preference to equity over law. It is a justiceoriented approach as against the strict rigours of the law. The
    20
    directions issued by the Court can normally be categorised into one,
    in the nature of moulding of relief and the other, as the declaration
    of law. “Declaration of law” as contemplated in Article 141 of the
    Constitution: is the speech express or necessarily implied by the
    highest court of the land…..This Court on the qui vive has expanded
    the horizons of Article 142 of the Constitution by keeping it outside
    the purview of Article 141 of the Constitution and by declaring it a
    direction of the Court that changes its complexion with the
    peculiarity in the facts and circumstances of the case.”
    (emphasis supplied)
  15. It is submitted that there was no legislative vacuum calling for
    the exercise of power under Article 142 of the Constitution of India
    and hence the reliance on Vishakha v. State of Rajasthan, (1997) 6
    SCC 241 is misplaced. On the contrary, the matter was covered by
    the statute; namely, Section 18 of the said Atrocities Act read with
    Section 41 of Cr.PC.
  16. We now propose to examine the law concerning field reserved for
    the legislature and extant of judicial interference in the field reserved
    for the legislature. The difference between the common law and
    statute law has been brought out in the following passage in the book,
    Salmond on Jurisprudence, 12th Edition; Sweet & Maxwell:
    “In the strict sense, however, legislation is the laying down of legal
    rules by a sovereign or subordinate legislator. Here we must
    distinguish law­making by legislators from law­making by the
    courts. Legislators can lay down rules purely for the future and
    without reference to any actual dispute; the courts, in so far as they
    create law, can do so only in application to the cases before them
    and only in so far as is necessary for their solution. Judicial lawmaking is incidental to the solving of legal disputes; legislative lawmaking is the central function of the legislator.”
  17. In various decisions, this Court has dealt with the scope of
    judicial review and issuance of guidelines. The directions mentioned
    21
    above touch the realm of policy. In Bachan Singh v. the State of
    Punjab, (1980) 2 SCC 684, the Court has laid down and recognised the
    judicial review thus:
    “67. Behind the view that there is a presumption of
    constitutionality of a statute and the onus to rebut the same lies on
    those who challenge the legislation, is the rationale of judicial
    restraint, a recognition of the limits of judicial review, a respect for
    the boundaries of legislative and judicial functions, and the judicial
    responsibility to guard the trespass from one side or the other. The
    primary function of the courts is to interpret and apply the laws
    according to the will of those who made them and not to transgress
    into the legislative domain of policy­making. “The job of a Judge is
    judging and not law­making.” In Lord Devlin’s words: “Judges are
    the keepers of the law, and the keepers of these boundaries cannot,
    also, be among outriders.”
    (emphasis supplied)
    It has been observed that the Court should not transgress into
    the legislative domain of policymaking.
  18. In Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors.,
    1989 Supp. (2) SCC 364, this Court has observed that it is not for the
    Court to pronounce policy. It cannot lay down what is wise or politic.
    Self­restraint is the essence of the judicial oath. The Court observed:
    “17. Before adverting to the controversy directly involved in these
    appeals, we may have a fresh look on the inter se functioning of the
    three organs of democracy under our Constitution. Although the
    doctrine of separation of powers has not been recognised under the
    Constitution in its absolute rigidity but the Constitution makers
    have meticulously defined the functions of various organs of the
    State. Legislature, executive and judiciary have to function within
    their own spheres demarcated under the Constitution. No organ can
    usurp the functions assigned to another. The Constitution trusts to
    the judgment of these organs to function and exercise their
    discretion by strictly following the procedure prescribed therein. The
    functioning of democracy depends upon the strength and
    independence of each of its organs. Legislature and executive, the
    two facets of people’s will, they have all the powers, including that of
    finance. Judiciary has no power over sword or the purse;
    nonetheless, it has power to ensure that the aforesaid two main
    organs of State function within the constitutional limits. It is the
    22
    sentinel of democracy. Judicial review is a powerful weapon to
    restrain unconstitutional exercise of power by the legislature and
    executive. The expanding horizon of judicial review has taken in its
    fold the concept of social and economic justice. While exercise of
    powers by the legislature and executive is subject to judicial
    restraint, the only check on our own exercise of power is the selfimposed discipline of judicial restraint.
  19. Frankfurter, J. of the U.S. Supreme Court dissenting in the
    controversial expatriation case of Trop v. Dulles, 356 US 96
    observed as under:
    “All power is, in Madison’s phrase, “of an encroaching
    nature.” Judicial power is not immune against this human
    weakness. It also must be on guard against encroaching
    beyond its proper bounds, and not the less so since the only
    restraint upon it is self­restraint…
    Rigorous observance of the difference between limits of power
    and wise exercise of power — between questions of authority
    and questions of prudence — requires the most alert
    appreciation of this decisive but subtle relationship of two
    concepts that too easily coalesce. No less does it require a
    disciplined will to adhere to the difference. It is not easy to
    stand aloof and allow want of wisdom to prevail to disregard
    one’s own strongly held view of what is wise in the conduct of
    affairs. But it is not the business of this Court to pronounce
    policy. It must observe a fastidious regard for limitations on its
    own power, and this precludes the court’s giving effect to its
    own notions of what is wise or politic. That self­restraint is of
    the essence in the observance of the judicial oath, for the
    Constitution has not authorized the judges to sit in judgment
    on the wisdom of what Congress and the executive branch do.”
    (emphasis supplied)
    The Court held that it could not affect its notions of what is wise
    or politic. It is for the legislature to consider data and decide such
    aspects. The law laid down in Asif Hameed v. State of Jammu and
    Kashmir (supra) has been reiterated by this Court in S.C. Chandra v.
    State of Jharkhand, (2007) 8 SCC 279.
    23
  20. In Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian
    Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Court observed
    thus:
    “40. The courts must, therefore, exercise judicial restraint, and not
    encroach into the executive or legislative domain. Orders for
    creation of posts, appointment on these posts, regularisation, fixing
    pay scales, continuation in service, promotions, etc. are all
    executive or legislative functions, and it is highly improper for
    Judges to step into this sphere, except in a rare and exceptional
    case. The relevant case­law and philosophy of judicial restraint has
    been laid down by the Madras High Court in great detail in Rama
    Muthuramalingam v. Dy. Supdt. of Police, AIR 2005 Mad 1 and we
    fully agree with the views expressed therein.”
  21. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008)
    1 SCC 683, this Court held as under:
    “18. Judges must` exercise judicial restraint and must not
    encroach into the executive or legislative domain, vide Indian Drugs
    & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408 and S.C.
    Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurring
    judgment of M. Katju, J.).
  22. Under our Constitution, the legislature, the executive and the
    judiciary all have their own broad spheres of operation. Ordinarily,
    it is not proper for any of these three organs of the State to
    encroach upon the domain of another, otherwise the delicate
    balance in the Constitution will be upset, and there will be a
    reaction.”
  23. In Kuchchh Jal Sankat Nivaran Samili & Ors. v. State of Gujarat
    & Anr., (2013) 12 SCC 226, it has been observed that Court should
    not encroach upon the legislative domain. It cannot term a particular
    policy as fairer than the other. The Court observed:
    “12. We have given our most anxious consideration to the rival
    submissions, and we find substance in the submission of Mr.
    Divan. We are conscious of the fact that there is wide separation of
    powers between the different limbs of the State and, therefore, it is
    expected of this Court to exercise judicial restraint and not
    encroach upon the executive or legislative domain. What the
    24
    appellants in substance are asking this Court to do is to conduct a
    comparative study and hold that the policy of distribution of water
    is bad. We are afraid; we do not have the expertise or wisdom to
    analyse the same. It entails intricate economic choices and though
    this Court tends to believe that it is expert of experts, but this
    principle has inherent limitation. True it is that the Court is entitled
    to analyse the legal validity of the different means of distribution
    but it cannot and will not term a particular policy as fairer than the
    other. We are of the opinion that the matters affecting the policy
    and requiring technical expertise be better left to the decision of
    those who are entrusted and qualified to address the same. This
    Court shall step in only when it finds that the policy is inconsistent
    with the constitutional laws or is arbitrary or irrational.”
    (emphasis supplied)
  24. In Dr. Subhash Kashinath Mahajan v. State of Maharashtra,
    (2018) 6 SCC 454, this Court held that no directions could be issued
    which are directly in conflict with the statute.
  25. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225,
    this Court has observed as under:
  26. The learned Attorney­General said that every provision of the
    Constitution is essential; otherwise, it would not have been put in
    the Constitution. This is true. But this does not place every
    provision of the Constitution in the same position. The true position
    is that every provision of the Constitution can be amended provided
    in the result the basic foundation and structure of the constitution
    remains the same. The basic structure may be said to consist of the
    following features:
    (1) Supremacy of the Constitution;
    (2) Republican and Democratic form of Government;
    (3) Secular character of the Constitution;
    (4) Separation of powers between the legislature, the executive
    and the judiciary;
    (5) Federal character of the Constitution.
  27. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, the following
    observations have been made:
    “129. Further, the Court in Kesavananda case not only held that
    Article 31­B is not controlled by Article 31­A but also specifically
    upheld the Twenty­ninth Constitution Amendment whereby certain
    Kerala Land Reform Acts were included in the Ninth Schedule after
    25
    those Acts had been struck down by the Supreme Court in
    Kunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364. The only
    logical basis for upholding the Twenty­ninth Amendment is that the
    Court was of the opinion that the mechanism of Article 31­B, by
    itself, is valid, though each time Parliament in exercise of its
    constituent power added a law in the Ninth Schedule, such exercise
    would have to be tested on the touchstone of the basic structure
    test. [See Shelat & Grover, JJ., paras 607 & 608(7); Hegde &
    Mukherjea, JJ., paras 738­43, 744(8); Ray, J., paras 1055­60,
    1064; Jaganmohan Reddy, J., para 1212(4); Palekar, J., para
    1333(3); Khanna, J., paras 1522, 1536, 1537(xv); Mathew, J., para
    1782; Beg, J., paras 1857(6); Dwivedi, J., para 1994, 1995(4) and
    Chandrachud, J., paras 2136­41 and 2142(10).]
  28. As pointed out, it is a fallacy to regard that Article 31­B read
    with the Ninth Schedule excludes judicial review in the matter of
    violation of fundamental rights. The effect of Article 31­B is to
    remove a fetter on the power of Parliament to pass a law in violation
    of fundamental rights. On account of Article 31­B, cause of action
    for violation of fundamental right is not available because the fetter
    placed by Part III on legislative power is removed and is nonexistent. Non­availability of cause of action based on breach of
    fundamental right cannot be regarded as exclusion or ouster of
    judicial review. As a result of the operation of Article 31­B read with
    the Ninth Schedule, occasion for exercise of judicial review does not
    arise. But there is no question of exclusion or ouster of judicial
    review. The two concepts are different.”
  29. In Bhim Singh v. Union of India, (2010) 5 SCC 538, it was held as
    under:
    “77. Another contention raised by the petitioners is that the
    Scheme violates the principle of separation of powers under the
    Constitution. The concept of separation of powers, even though
    not found in any particular constitutional provision, is inherent in
    the polity the Constitution has adopted. The aim of separation of
    powers is to achieve the maximum extent of accountability of each
    branch of the Government.
  30. While understanding this concept, two aspects must be borne
    in mind. One, that separation of powers is an essential feature of
    the Constitution. Two that in modern governance, a strict
    separation is neither possible, nor desirable. Nevertheless, till this
    principle of accountability is preserved, there is no violation of
    separation of powers. We arrive at the same conclusion when we
    assess the position within the constitutional text. The Constitution
    does not prohibit overlap of functions, but in fact, provides for
    some overlap as a parliamentary democracy. But what it prohibits
    is such exercise of function of the other branch which results in
    wresting away of the regime of constitutional accountability.
    26

  1. Again, in the Constitution Bench judgment in A.K. Roy v.
    Union of India Chandrachud, C.J. speaking for the majority held at
    p. 295, para 23 that: “our Constitution does not follow the
    American pattern of a strict separation of powers.”
  2. This Court has previously held that the taking away of the
    judicial function through legislation would be violative of
    separation of powers. As Chandrachud, J. noted in Indira Nehru
    Gandhi v. Raj Narain, 1975 Supp SCC 1: (SCC p. 261, para 689)
    “689. … the exercise by the legislature of what is purely
    and indubitably a judicial function is impossible to sustain in
    the context even of our cooperative federalism which contains
    no rigid distribution of powers but which provides a system
    of salutary checks and balances.”
    This is because such legislation upsets the balance between the
    various organs of the State thus harming the system of
    accountability in the Constitution.
  3. Thus, the test for the violation of separation of powers must be
    precisely this. A law would be violative of separation of powers not
    if it results in some overlap of functions of different branches of
    the State, but if it takes over an essential function of the other
    branch leading to lapse in constitutional accountability. It is
    through this test that we must analyse the present Scheme.”
  4. In State of T.N. v. State of Kerala, (2014) 12 SCC 696, it was
    observed as under:
    “126. On deep reflection of the above discussion, in our opinion, the
    constitutional principles in the context of Indian Constitution
    relating to separation of powers between the legislature, executive
    and judiciary may, in brief, be summarised thus:
    126.1. Even without express provision of the separation of powers,
    the doctrine of separation of powers is an entrenched principle in
    the Constitution of India. The doctrine of separation of powers
    informs the Indian constitutional structure and it is an essential
    constituent of rule of law. In other words, the doctrine of separation
    of power though not expressly engrafted in the Constitution, its
    sweep, operation, and visibility are apparent from the scheme of
    Indian Constitution. Constitution has made demarcation, without
    drawing formal lines between the three organs—legislature,
    executive and judiciary. In that sense, even in the absence of
    express provision for separation of powers, the separation of powers
    between the legislature, executive and judiciary is not different from
    the Constitutions of the countries which contain express provision
    for separation of powers.
    27
    126.2. Independence of courts from the executive and legislature is
    fundamental to the rule of law and one of the basic tenets of Indian
    Constitution. Separation of judicial power is a significant
    constitutional principle under the Constitution of India.
    126.3. Separation of powers between three organs—the legislature,
    executive and judiciary—is also nothing but a consequence of
    principles of equality enshrined in Article 14 of the Constitution of
    India. Accordingly, breach of separation of judicial power may
    amount to negation of equality under Article 14. Stated thus, a
    legislation can be invalidated on the basis of breach of the
    separation of powers since such breach is negation of equality
    under Article 14 of the Constitution.
    126.4. The superior judiciary (High Courts and Supreme Court) is
    empowered by the Constitution to declare a law made by the
    legislature (Parliament and State Legislatures) void if it is found to
    have transgressed the constitutional limitations or if it infringed the
    rights enshrined in Part III of the Constitution.
    126.5. The doctrine of separation of powers applies to the final
    judgments of the courts. The legislature cannot declare any decision
    of a court of law to be void or of no effect. It can, however, pass an
    amending Act to remedy the defects pointed out by a court of law or
    on coming to know of it aliunde. In other words, a court’s decision
    must always bind unless the conditions on which it is based are so
    fundamentally altered that the decision could not have been given
    in the altered circumstances.
    126.6. If the legislature has the power over the subject­matter and
    competence to make a validating law, it can at any time make such
    a validating law and make it retrospective. The validity of a
    validating law, therefore, depends upon whether the legislature
    possesses the competence which it claims over the subject­matter
    and whether in making the validation law it removes the defect
    which the courts had found in the existing law.
    126.7. The law enacted by the legislature may apparently seem to
    be within its competence but yet in substance if it is shown as an
    attempt to interfere with the judicial process, such law may be
    invalidated being in breach of doctrine of separation of powers. In
    such situation, the legal effect of the law on a judgment or a judicial
    proceeding must be examined closely, having regard to legislative
    prescription or direction. The questions to be asked are:
    (i) Does the legislative prescription or legislative direction
    interfere with the judicial functions?
    (ii) Is the legislation targeted at the decided case or whether
    impugned law requires its application to a case already finally
    decided?
    (iii) What are the terms of law; the issues with which it deals and
    the nature of the judgment that has attained finality?
    28
    If the answer to Questions (i) and (ii) is in the affirmative and the
    consideration of aspects noted in Question (iii) sufficiently
    establishes that the impugned law interferes with the judicial
    functions, the Court may declare the law unconstitutional.”
  5. The House of Lords in Stock v. Frank Jones (Tipton), 1978 (1)
    WLR 231 with respect to interpretation of the legislative provisions has
    observed thus:
    “It is idle to debate whether, in so acting, the court is making law.
    As has been cogently observed, it depends on what you mean by
    “make” and “law” in this context. What is incontestible is that the
    court is a mediating influence between the executive and the
    legislature, on the one hand, and the citizen on the other.
    Nevertheless, it is essential to the proper judicial function in the
    constitution to bear in mind:
    (1) modern legislation is a difficult and complicated process, in
    which, even before a bill is introduced in a House of Parliament,
    successive drafts are considered and their possible repercussions
    on all envisageable situations are weighed by people bringing to
    bear a very wide range of experience: the judge cannot match such
    experience or envisage all such repercussions, either by training or
    by specific forensic aid;
    (2) the bill is liable to be modified in a Parliament dominated by a
    House of Commons whose members are answerable to the citizens
    who will be affected by the legislation: an English judge is not so
    answerable;
    (3) in a society living under the rule of law citizens are entitled to
    regulate their conduct according to what a statute has said, rather
    than by what it was meant to say or by what it would have
    otherwise said if a newly considered situation had been envisaged;
    (4) a stark contradistinction between the letter and the spirit of the
    law may be very well in the sphere of ethics, but in the forensic
    process St. John is a safer guide than St. Paul, the logos being the
    informing spirit; and it should be left to peoples’ courts in
    totalitarian regimes to stretch the law to meet the forensic situation
    in response to a gut reaction;
    (5) Parliament may well be prepared to tolerate some anomaly in
    the interest of an overriding objective;
    (6) what strikes the lawyer as an injustice may well have seemed to
    the legislature as no more than the correction of a now unjustifiable
    privilege or a particular misfortune necessarily or acceptably
    29
    involved in the vindication of some supervening general social
    benefit;
    (7) the parliamentary draftsmen knows what objective the
    legislative promoter wishes to attain, and he will normally and
    desirably try to achieve that objective by using language of the
    appropriate register in its natural, ordinary and primary sense to
    reject such an approach on the grounds that it gives rise to an
    anomaly is liable to encourage complication and anfractuosity in
    drafting;
    (8) Parliament is nowadays in continuous session so that an
    unlooked­for and unsupportable injustice or anomaly can be readily
    rectified by legislation: this is far preferable to judicial contortion of
    the law to meet apparently hard cases with the result that ordinary
    citizens and their advisers hardly know where they stand.
    All this is not to advocate judicial supineness: it is merely
    respectfully to commend a self­knowledge of judicial limitations,
    both personal and constitution…..”
  6. A lecture delivered by Mr. Justice M.N. Venkatachaliah, former
    Chief Justice of India, at the Constitution Day on 26.2.2016 in this
    Court, has been relied upon in the context of judicial determination of
    policy. Following observations have been relied upon:
    “The proposition that “when there is no law the executive must
    step­in and when the executive also does not act the judiciary
    should do so” is an attractive invitations: but it is more attractive
    than constitutionally sound. Executive power is of course
    coextensive with legislative power. A field un­occupied by law is
    open to the executive. But there is no warrant that by virtue of
    those provisions the courts can come in and legislate. The
    argument that the larger power of the court to decide and
    pronounce upon the validity of law includes the power to frame
    schemes and issue directions in the nature of legislation may
    equally be open to question.
    This is typically the converse case of Bills of attainder; Legislative
    determination of disputes/rights has been held to be illegal and
    impressible. Ameerunnisa, Ram Prasad Narayan Sahi and Indira
    Gandhi are some of the telling cases. By the same logic and
    converse reasoning, judicial legislation which is judicial
    determination of policy and law is difficult to be justified
    jurisprudentially. It is one of the basic constitutional principles
    that just as courts are not constitutionally competent to legislate
    under the guise of interpretation so also neither Parliament nor
    State Legislatures can perform an essentially judicial function.
    30
    None of the three constitutionally assigned spheres or orbits of
    authority can encroach upon the other. This is the logical meaning
    of the supremacy of the Constitution.
    Lord Devlin’s comment comes to mind; ‘The British have no more
    wish to be governed by the judges than they wish to be judged by
    their admirations’.
    This is not to deny the need and the desirability of such measures.
    The question is one of legitimacy and propriety, Robert Bork’s
    profound statement comes to mind:
    “.. the desire to do justice whose nature seems obvious is
    compelling, while the concept of constitutional process is abstract,
    rather arid, and the abstinence it counsels unsatisfying. To give in
    to temptation, this one time, solves an urgent human problem, and
    a faint crack develops in the American foundation. A judge has
    begun to rule where a legislator should”. (THE TEMPTING OF
    AMERICA)
    Any support or justification for judicial legislation will have to be
    premised on sound legal reasoning. It cannot be justified for the
    reason that it produces welcome and desirable results. If that is
    done, law will cease to be what justice Holmes named it, “the calling
    of thinkers and becomes the province of emotions and sensitivities”.
    It then becomes a process of personal choice followed by
    rationalisation. The major and minor premises do not lead to a
    result; but the result produces major and minor premises. This is a
    reversal of the process ­ virtually making concept of constitutional
    adjudication stand on its head. It is to law what Robert Frost called
    ‘free verse,’ “Tennis with the net down.” Then naturally there are no
    rules, only passions. Legal reasoning rooted in a concern for
    legitimate process rather than desired results restricts judges to
    their proper role in a constitutional democracy. That marks off the
    line between judicial power and legislative power. Legislation,
    contrary to some popular notions, is a very elaborate democratic
    process. It takes much to distil the raw amorphous public opinion
    into scalable legislative values through the multi­tiered filter of
    parliamentary processes & procedures…..”
  7. In the light of the discussion mentioned above of legal principles,
    we advert to directions issued in paragraph 83. Direction Nos. (iii) and
    (iv) and consequential direction No. (v) are sought to be
    reviewed/recalled. Directions contain the following aspects: ­
    31
  8. That arrest of a public servant can only be after approval of the
    appointing authority.
  9. The arrest of a non­public servant after approval by the Senior
    Superintendent of Police (SSP).
  10. The arrest may be in an appropriate case if considered necessary
    for reasons to be recorded;
  11. Reasons for arrest must be scrutinised by the Magistrate for
    permitting further detention;
  12. Preliminary enquiry to be conducted by the Dy. S.P. level officers
    to find out whether the allegations make out a case and that the
    allegations are not frivolous or motivated.
  13. Any violation of the directions mentioned above will be
    actionable by way of disciplinary action as well as contempt.
  14. Before we dilate upon the aforesaid directions, it is necessary to
    take note of certain aspects. It cannot be disputed that as the
    members of the Scheduled Castes and Scheduled Tribes have suffered
    for long; the protective discrimination has been envisaged under
    Article 15 of the Constitution of India and the provisions of the Act of
    1989 to make them equals.
    32
  15. All the offences under the Atrocities Act are cognizable. The
    impugned directions put the riders on the right to arrest. An accused
    cannot be arrested in atrocities cases without the concurrence of the
    higher Authorities or appointing authority as the case may be. As per
    the existing provisions, the appointing authority has no power to grant
    or withhold sanction to arrest concerning a public servant.
  16. The National Commission for Scheduled Castes Annual Report
    2015­16, has recommended for prompt registration of FIRs thus:
    “The Commission has noted with concern that instances of
    procedural lapses are frequent while dealing atrocity cases by both
    police and civil administration. There are delays in the judicial
    process of the cases. The Commission, therefore, identified lacunae
    commonly noticed during police investigation, as also
    preventive/curable actions the civil administration can take. NCSC
    recommends the correct and timely application of SC/ST (PoA)
    Amendment Act, 2015 and Amendment Rules of 2016 as well as the
    following for improvement:
    8.6.1 Registration of FIRs ­ The Commission has observed that the
    police often resort to preliminary investigation upon receiving a
    complaint in writing before lodging the actual FIRs. As a result, the
    SC victims have to resort to seeking directions from courts for
    registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme Court
    has also on more than one occasion emphasized about registration
    of FIR first. This Commission again reemphasizes that the State /
    UT Governments should enforce prompt registration of FIRs.”
    (emphasis supplied)
  17. The learned Attorney General pointed out that the statistics
    considered by the Court in the judgment under review indicate that 9
    to 10 percent cases under the Act were found to be false. The
    percentage of false cases concerning other general crimes such as
    forgery is comparable, namely 11.51 percent and for kidnapping and
    33
    abduction, it is 8.85 percent as per NCRB data for the year 2016. The
    same can be taken care of by the Courts under Section 482, and in
    case no prima facie case is made out, the Court can always consider
    grant of anticipatory bail and power of quashing in appropriate cases.
    For the low conviction rate, he submitted that same is the reflection of
    the failure of the criminal justice system and not an abuse of law. The
    witnesses seldom come to support down­trodden class, biased
    mindset continues, and they are pressurised in several manners, and
    the complainant also hardly muster the courage.
  18. As to prevailing conditions in various areas of the country, we
    are compelled to observe that SCs/STs are still making the struggle for
    equality and for exercising civil rights in various areas of the country.
    The members of the Scheduled Castes and Scheduled Tribes are still
    discriminated against in various parts of the country. In spite of
    reservation, the fruits of development have not reached to them, by
    and large, they remain unequal and vulnerable section of the society.
    The classes of Scheduled Castes and Scheduled Tribes have been
    suffering ignominy and abuse, and they have been outcast socially for
    the centuries. The efforts for their upliftment should have been
    percolated down to eradicate their sufferings.
  19. Though, Article 17 of the Constitution prohibits untouchability,
    whether untouchability has vanished? We have to find the answer to
    34
    all these pertinent questions in the present prevailing social scenario
    in different parts of the country. The clear answer is that
    untouchability though intended to be abolished, has not vanished in
    the last 70 years. We are still experimenting with ‘tryst with destiny.’
    The plight of untouchables is that they are still denied various civil
    rights; the condition is worse in the villages, remote areas where fruits
    of development have not percolated down. They cannot enjoy equal
    civil rights. So far, we have not been able to provide the modern
    methods of scavenging to Harijans due to lack of resources and proper
    planning and apathy. Whether he can shake hand with a person of
    higher class on equal footing? Whether we have been able to reach
    that level of psyche and human dignity and able to remove
    discrimination based upon caste? Whether false guise of cleanliness
    can rescue the situation, how such condition prevails and have not
    vanished, are we not responsible? The answer can only be found by
    soul searching. However, one thing is sure that we have not been able
    to eradicate untouchability in a real sense as envisaged and we have
    not been able to provide down­trodden class the fundamental civil
    rights and amenities, frugal comforts of life which make life worth
    living. More so, for Tribals who are at some places still kept in
    isolation as we have not been able to provide them even basic
    amenities, education and frugal comforts of life in spite of spending a
    considerable amount for the protection, how long this would continue.
    35
    Whether they have to remain in the status quo and to entertain
    civilized society? Whether under the guise of protection of the culture,
    they are deprived of fruits of development, and they face a violation of
    traditional rights?
  20. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963 SC
    1295, this Court has observed that the right to life is not merely an
    animal’s existence. Under Article 21, the right to life includes the right
    to live with dignity. Basic human dignity implies that all the persons
    are treated as equal human in all respects and not treated as an
    untouchable, downtrodden, and object for exploitation. It also implies
    that they are not meant to be born for serving the elite class based
    upon the caste. The caste discrimination had been deep­rooted, so the
    consistent effort is on to remove it, but still, we have to achieve the
    real goal. No doubt we have succeeded partially due to individual and
    collective efforts.
  21. The enjoyment of quality life by the people is the essence of
    guaranteed right under Article 21 of the Constitution, as observed in
    Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with
    human dignity is included in the right to life as observed in Francis
    Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746,
    Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gender injustice,
    pollution, environmental degradation, malnutrition, social ostracism of
    36
    Dalits are instances of human rights violations as observed by this
    Court in People’s Union for Civil Liberties v. Union of India, (2005) 2
    SCC 436:
    “34. The question can also be examined from another angle. The
    knowledge or experience of a police officer of human rights
    violation represents only one facet of human rights violation and
    its protection, namely, arising out of crime. Human rights
    violations are of various forms which besides police brutality are
    — gender injustice, pollution, environmental degradation,
    malnutrition, social ostracism of Dalits, etc. A police officer can
    claim to have experience of only one facet. That is not the
    requirement of the section.” (emphasis supplied)
  22. There is right to live with dignity and also right to die with
    dignity. For violation of human rights under Article 21 grant of
    compensation is one of the concomitants which has found statutory
    expression in the provisions of compensation, to be paid in case an
    offence is committed under the provisions of the Act of 1989. A good
    reputation is an element of personal security and is protected by the
    Constitution equally with the right to the enjoyment of life, liberty, and
    property. Therefore, it has been held to be an essential element of the
    right to life of a citizen under Article 21 as observed by this Court in
    Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, Kishore
    Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian
    Swamy v. Union of India, (2016) 7 SCC 221. The provisions of the Act
    of 1989 are, in essence, concomitants covering various facets of Article
    21 of the Constitution of India.

37

  1. They do labour, bonded or forced, in agricultural fields, which is
    not abrogated in spite of efforts. In certain areas, women are not
    treated with dignity and honour and are sexually abused in various
    forms. We see sewer workers dying in due to poisonous gases in
    chambers. They are like death traps. We have not been able to
    provide the masks and oxygen cylinders for entering in sewer
    chambers, we cannot leave them to die like this and avoid tortious
    liability concerned with officials/machinery, and they are still
    discriminated within the society in the matter of enjoying their civil
    rights and cannot live with human dignity.
  2. The Constitution of India provides equality before the law under
    the provisions contained in Article 14. Article 15(4) of the Constitution
    carves out an exception for making any special provision for the
    advancement of any socially and educationally backward classes of
    citizens or SCs. and STs. Further protection is conferred under Article
    15(5) concerning their admission to educational institutions, including
    private educational institutions, whether aided or unaided by the
    State, other than the minority educational institutions. Historically
    disadvantageous groups must be given special protection and help so
    that they can be uplifted from their poverty and low social status as
    observed in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC 793.
    The legislature has to attempt such incumbents be protected under
    38
    Article 15(4), to deal with them with more rigorous provisions as
    compared to provisions of general law available to the others would
    create inequality which is not permissible/envisaged constitutionally.
    It would be an action to negate mandatory constitutional provisions
    not supported by the constitutional scheme; rather, it would be
    against the mandated constitutional protection. It is not open to the
    legislature to put members of the Scheduled Castes and Scheduled
    Tribes in a disadvantageous position vis­à­vis others and in particular
    to so­called upper castes/general category. Thus, they cannot be
    discriminated against more so when we have a peep into the
    background perspective. What legislature cannot do legitimately,
    cannot be done by the interpretative process by the courts.
  3. The particular law, i.e., Act of 1989, has been enacted and has
    also been amended in 2016 to make its provisions more effective.
    Special prosecutors are to be provided for speedy trial of cases. The
    incentives are also provided for rehabilitation of victims, protection of
    witnesses and matters connected therewith.
  4. There is no presumption that the members of the Scheduled
    Castes and Scheduled Tribes may misuse the provisions of law as a
    class and it is not resorted to by the members of the upper Castes or
    the members of the elite class. For lodging a false report, it cannot be
    said that the caste of a person is the cause. It is due to the human
    39
    failing and not due to the caste factor. Caste is not attributable to
    such an act. On the other hand, members of the Scheduled Castes
    and Scheduled Tribes due to backwardness hardly muster the courage
    to lodge even a first information report, much less, a false one. In case
    it is found to be false/unsubstantiated, it may be due to the faulty
    investigation or for other various reasons including human failings
    irrespective of caste factor. There may be certain cases which may be
    false that can be a ground for interference by the Court, but the law
    cannot be changed due to such misuse. In such a situation, it can be
    taken care in proceeding under section 482 of the Cr.PC.
  5. The data of National Crime Records Bureau, Ministry of Home
    Affairs, has been pointed out on behalf of Union of India which
    indicates that more than 47,000 cases were registered in the year
    2016 under the Act of 1989. The number is alarming, and it cannot be
    said that it is due to the outcome of the misuse of the provisions of the
    Act.
  6. As a matter of fact, members of the Scheduled Castes and
    Scheduled Tribes have suffered for long, hence, if we cannot provide
    them protective discrimination beneficial to them, we cannot place
    them at all at a disadvantageous position that may be causing injury
    to them by widening inequality and against the very spirit of our
    40
    Constitution. It would be against the basic human dignity to treat all
    of them as a liar or as a crook person and cannot look at every
    complaint by such complainant with a doubt. Eyewitnesses do not
    come up to speak in their favour. They hardly muster the courage to
    speak against upper caste, that is why provisions have been made by
    way of amendment for the protection of witnesses and rehabilitation of
    victims. All humans are equal including in their frailings. To treat
    SCs. and STs. as persons who are prone to lodge false reports under
    the provisions of the Scheduled Castes and Scheduled Tribes Act for
    taking revenge or otherwise as monetary benefits made available to
    them in the case of their being subjected to such offence, would be
    against fundamental human equality. It cannot be presumed that a
    person of such class would inflict injury upon himself and would lodge
    a false report only to secure monetary benefits or to take revenge. If
    presumed so, it would mean adding insult to injury, merely by the fact
    that person may misuse provisions cannot be a ground to treat class
    with doubt. It is due to human failings, not due to the caste factor.
    The monetary benefits are provided in the cases of an acid attack,
    sexual harassment of SC/ST women, rape, murder, etc. In such cases,
    FIR is required to be registered promptly.
    41
  7. It is an unfortunate state of affairs that the caste system still
    prevails in the country and people remain in slums, more particularly,
    under skyscrapers, and they serve the inhabitants of such buildings.
  8. To treat such incumbents with a rider that a report lodged by an
    SCs/STs category, would be registered only after a preliminary
    investigation by Dy. S.P., whereas under Cr.PC a complaint lodged
    relating to cognizable offence has to be registered forthwith. It would
    mean a report by upper­caste has to be registered immediately and
    arrest can be made forthwith, whereas, in case of an offence under the
    Act of 1989, it would be conditioned one. It would be opposed to the
    protective discrimination meted out to the members of the Scheduled
    Castes and Scheduled Tribes as envisaged under the Constitution in
    Articles 15, 17 and 21 and would tantamount to treating them as
    unequal, somewhat supportive action as per the mandate of
    Constitution is required to make them equals. It does not prima facie
    appear permissible to look them down in any manner. It would also be
    contrary to the procedure prescribed under the Cr.PC and contrary to
    the law laid down by this Court in Lalita Kumari (supra).
  9. The guidelines in (iii) and (iv) appear to have been issued in view
    of the provisions contained in Section 18 of the Act of 1989; whereas
    adequate safeguards have been provided by a purposive interpretation
    by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC
    42
  10. The consistent view of this Court that if prima facie case has not
    been made out attracting the provisions of SC/ST Act of 1989, in that
    case, the bar created under section 18 on the grant of anticipatory bail
    is not attracted. Thus, misuse of the provisions of the Act is intended
    to be taken care of by the decision above. In Kartar Singh (supra), a
    Constitution Bench of this Court has laid down that taking away the
    said right of anticipatory bail would not amount to a violation of
    Article 21 of the Constitution of India. Thus, prima facie it appears
    that in the case of misuse of provisions, adequate safeguards are
    provided in the decision mentioned above.
  11. That apart directions (iii) and (iv) issued may delay the
    investigation of cases. As per the amendment made in the Rules in the
    year 2016, a charge sheet has to be filed to enable timely
    commencement of the prosecution. The directions issued are likely to
    delay the timely scheme framed under the Act/Rules.
    In re: sanction of the appointing authority :
  12. Concerning public servants, the provisions contained in Section
    197, Cr.PC provide protection by prohibiting cognizance of the offence
    without the sanction of the appointing authority and the provision
    cannot be applied at the stage of the arrest. That would run against
    the spirit of Section 197, Cr.PC. Section 41, Cr.PC authorises every
    police officer to carry out an arrest in case of a cognizable offence and
    43
    the very definition of a cognizable offence in terms of Section 2(c) of
    Cr.PC is one for which police officer may arrest without warrant.
  13. In case any person apprehends that he may be arrested,
    harassed and implicated falsely, he can approach the High Court for
    quashing the FIR under Section 482 as observed in State of Orissa v.
    Debendra Nath Padhi, (2005) 1 SCC 568.
  14. While issuing guidelines mentioned above approval of appointing
    authority has been made imperative for the arrest of a public servant
    under the provisions of the Act in case, he is an accused of having
    committed an offence under the Act of 1989. Permission of the
    appointing authority to arrest a public servant is not at all statutorily
    envisaged; it is encroaching on a field which is reserved for the
    legislature. The direction amounts to a mandate having legislative
    colour which is a field not earmarked for the Courts.
  15. The direction is discriminatory and would cause several legal
    complications. On what basis the appointing authority would grant
    permission to arrest a public servant? When the investigation is not
    complete, how it can determine whether public servant is to be
    arrested or not? Whether it would be appropriate for appointing
    authority to look into case diary in a case where its sanction for
    prosecution may not be required in an offence which has not
    44
    happened in the discharge of official duty. Approaching appointing
    authority for approval of arrest of a public servant in every case under
    the Act of 1989 is likely to consume sufficient time. The appointing
    authority is not supposed to know the ground realities of the offence
    that has been committed, and arrest sometimes becomes necessary
    forthwith to ensure further progress of the investigation itself. Often
    the investigation cannot be completed without the arrest. There may
    not be any material before the appointing authority for deciding the
    question of approval. To decide whether a public servant should be
    arrested or not is not a function of appointing authority, it is wholly
    extra­statutory. In case appointing authority holds that a public
    servant is not to be arrested and declines approval, what would
    happen, as there is no provision for grant of anticipatory bail. It
    would tantamount to take away functions of Court. To decide whether
    an accused is entitled to bail under Section 438 in case no prima facie
    case is made out or under Section 439 is the function of the Court.
    The direction of appointing authority not to arrest may create conflict
    with the provisions of Act of 1989 and is without statutory basis.
  16. By the guidelines issued, the anomalous situation may crop up
    in several cases. In case the appointing authority forms a view that as
    there is no prima facie case the incumbent is not to be arrested,
    several complications may arise. For the arrest of an offender, maybe a
    45
    public servant, it is not the provision of the general law of Cr.PC that
    permission of the appointing authority is necessary. No such statutory
    protection provided to a public servant in the matter of arrest under
    the IPC and the Cr.PC as such it would be discriminatory to impose
    such rider in the cases under the Act of 1989. Only in the case of
    discharge of official duties, some offence appears to have been
    committed, in that case, sanction to prosecute may be required and
    not otherwise. In case the act is outside the purview of the official
    discharge of duty, no such sanction is required.
  17. The appointing authority cannot sit over an FIR in case of
    cognizable, non­bailable offense and investigation made by the Police
    Officer; this function cannot be conferred upon the appointing
    authority as it is not envisaged either in the Cr.P.C. or the Act of 1989.
    Thus, this rider cannot be imposed in respect of the cases under the
    Act of 1989, may be that provisions of the Act are sometimes misused,
    exercise of power of approval of arrest by appointing authority is
    wholly impermissible, impractical besides it encroaches upon the field
    reserved for the legislature and is repugnant to the provisions of
    general law as no such rider is envisaged under the general law.
  18. Assuming it is permissible to obtain the permission of appointing
    authority to arrest accused, would be further worsening the position of
    46
    the members of the Scheduled Castes and Scheduled Tribes. If they
    are not to be given special protection, they are not to be further put in
    a disadvantageous position. The implementation of the condition may
    discourage and desist them even to approach the Police and would
    cast a shadow of doubt on all members of the Scheduled Castes and
    Scheduled Tribes which cannot be said to be constitutionally
    envisaged. Other castes can misuse the provisions of law; also, it
    cannot be said that misuse of law takes place by the provisions of Act
    of 1989. In case the direction is permitted to prevail, days are not far
    away when writ petition may have to be filed to direct the appointing
    authority to consider whether accused can be arrested or not and as
    to the reasons recorded by the appointing authority to permit or deny
    the arrest. It is not the function of the appointing authority to
    intermeddle with a criminal investigation. If at the threshold, approval
    of appointing authority is made necessary for arrest, the very purpose
    of the Act is likely to be frustrated. Various complications may arise.
    Investigation cannot be completed within the specified time, nor trial
    can be completed as envisaged. Act of 1989 delay would be adding to
    the further plight of the downtrodden class.
    In ref: approval of arrest by the SSP in the case of a non­public
    servant:
  19. Inter alia for the reasons as mentioned earlier, we are of the
    considered opinion that requiring the approval of SSP before an arrest
    47
    is not warranted in such a case as that would be discriminatory and
    against the protective discrimination envisaged under the Act. Apart
    from that, no such guidelines can prevail, which are legislative. When
    there is no provision for anticipatory bail, obviously arrest has to be
    made. Without doubting bona fides of any officer, it cannot be left at
    the sweet discretion of the incumbent howsoever high. The approval
    would mean that it can also be ordered that the person is not to be
    arrested then how the investigation can be completed when the arrest
    of an incumbent, is necessary, is not understandable. For an arrest of
    accused such a condition of approval of SSP could not have been
    made a sine qua non, it may delay the matter in the cases under the
    Act of 1989.
    Requiring the Magistrate to scrutinise the reasons for permitting
    further detention:
  20. As per guidelines issued by this Court, the public servant can be
    arrested after approval by appointing authority and that of a nonpublic servant after the approval of SSP. The reasons so recorded have
    to be considered by the Magistrate for permitting further detention. In
    case of approval has not been granted, this exercise has not been
    undertaken. When the offence is registered under the Act of 1989, the
    law should take its course no additional fetter sare called for on arrest
    whether in case of a public servant or non­public servant. Even
    otherwise, as we have not approved the approval of arrest by
    48
    appointing authority/S.S.P., the direction to record reasons and
    scrutiny by Magistrate consequently stands nullified.
  21. The direction has also been issued that the Dy. S.P. should
    conduct a preliminary inquiry to find out whether allegations make
    out a case under the Atrocities Act, and that the allegations are not
    frivolous or motivated. In case a cognisable offence is made out, the
    FIR has to be outrightly registered, and no preliminary inquiry has to
    be made as held in Lalita Kumari (supra) by a Constitution Bench.
    There is no such provision in the Code of Criminal Procedure for
    preliminary inquiry or under the SC/ST Act, as such direction is
    impermissible. Moreover, it is ordered to be conducted by the person
    of the rank of Dy. S.P. The number of Dy. S.P. as per stand of Union of
    India required for such an exercise of preliminary inquiry is not
    available. The direction would mean that even if a complaint made out
    a cognizable offence, an FIR would not be registered until the
    preliminary inquiry is held. In case a preliminary inquiry concludes
    that allegations are false or motivated, FIR is not to be registered in
    such a case how a final report has to be filed in the Court. The
    direction (iv) cannot survive for the other reasons as it puts the
    members of the Scheduled Castes and Scheduled Tribes in a
    disadvantageous position in the matter of procedure vis­a­vis to the
    complaints lodged by members of upper caste, for later no such
    49
    preliminary investigation is necessary, in that view of matter it should
    not be necessary to hold preliminary inquiry for registering an offence
    under the Atrocities Act of 1989.
  22. The creation of a casteless society is the ultimate aim. We
    conclude with a pious hope that a day would come, as expected by the
    framers of the Constitution, when we do not require any such
    legislation like Act of 1989, and there is no need to provide for any
    reservation to SCs/STs/OBCs, and only one class of human exist
    equal in all respects and no caste system or class of SCs/STs or OBCs
    exist, all citizens are emancipated and become equal as per
    Constitutional goal.
  23. We do not doubt that directions encroach upon the field reserved
    for the legislature and against the concept of protective discrimination
    in favour of down­trodden classes under Article 15(4) of the
    Constitution and also impermissible within the parameters laid down
    by this Court for exercise of powers under Article 142 of Constitution
    of India. Resultantly, we are of the considered opinion that direction
    Nos.(iii) and (iv) issued by this Court deserve to be and are hereby
    recalled and consequently we hold that direction No. (v), also vanishes.
    The review petitions are allowed to the extent mentioned above.
    50
  24. All the pending applications regarding intervention etc. stand
    disposed of.
    ……………………..J.
    (Arun Mishra)
    ……………………..J.
    (M.R. Shah)
    ………………….….J.
    October 01, 2019. (B.R. Gavai)
    New Delhi;
    51