W.P.(C) No.5915 of 2013 Present : 07. 18.02.2014 Mr. Chittaranjan Nandy, petitioner in person. This petition seeks declaration that the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter called ‘the Act’) is ultravires the Constitution.
2. According to the petitioner, the subject matter of enactment is No.covered by the field of legislation in any of the entries of the VIIth Schedule to the Constitution. Sections 18 and 19 of the Act which make the provisions of Sections 438 & 350 of Cr.P.C. and Probation of Offenders Act inapplicable violate fundamental rights under Articles 14 and 15 of the Constitution. We have heard the petitioner in person, who is an Advocate. Law made by Parliament canNo.be held to be beyond the legislative competence unless the same is shown to be covered by the State List. This being the position, the plea of the petitioner with regard to the lack of legislative competence canNo.be accepted. As regards the plea of violation of Articles 14 and 15, this submission also canNo.be accepted. -2- Having regard to the social conditions taken into account by the Parliament, particularly, the practice of ‘untouchability’, the nature of offences covered by the Act can be treated to be a separate category. The offences enumerated under the Act are acts which, denigrate members of the SC & ST in the eyes of society and prevent them from leading a life of dignity and preventive measures could certainly be taken by the legislature. In State of M.P. Vs. Ram Kishna Balothia & Anr., (1995) 3 SCC 221, the issue of validity of Section 18 of the impugned Act excluding the applicability of the provision of anticipatory bail was gone into. After due consideration, the Hon’ble Supreme Court held : “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 No.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 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 in accordance with law. The offences, therefore, which are enumerated under Section 3(1) arise 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 -3- Procedure in connection with offences under the said 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 socio-economic 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.
2. .......... When they assert their rights and resist practices of unteachability 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 self-respect 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 -4- the Scheduled Castes 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 non-Scheduled Castes and non-Scheduled 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 No.made available to persons who commit such offences, such a denial canNo.be considered as unreasonable or violative of Article 14, as these offences form distinct class by themselves and canNo.be compared with other offences.
7. We have next to examine whether Section 18 of the said Act violates, in any manner, Article 21 of the Constitution which protects the life and personal liberty of every person in this country. Article 21 enshrines the right to live with human dignity, a precious right to which every humanbeing is entitled; those who have been, for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed;"we agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised."
-5- In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commision, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail canNo.be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It canNo.be considered as an essential ingredient of Article 21 of the Constitution. And its nonapplication to a certain special category of offences canNo.be considered as violative of Article 21.
9. Of course, the offences enumerated under the present case are very different from those under the Terrorists 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 for an apprehension that if the benefit of 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 canNo.be considered as in any manner violative of Article 21.
10. It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is No.available for even "miNo.offences" under the said Act. This grievance also canNo.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 self-respect. 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 canNo.be compared with offences under the Penal Code.”
. -6- In the judgment, the Hon’ble Supreme Court also referred, with approval, the Full Bench judgment of the Rajasthan High Court in Jai Singh Vs. Union of India, AIR 1993 RAJ.
177. Therein the Act was upheld. The Rajasthan High Court held that the prevention of atrocities against the members of SC & ST was a legitimate object of legislature. The High Court held as follows: “16. Reading the preamble of the present Act, it would be found that it had been enacted to prevent the commission of atroci-ties against the members of the Scheduled Castes and Scheduled Tribes. It is thus inten-tion which has to be kept into account while interpreting the various Sections of the Act. xxx xxx xxx xxx 27. In the instant case, the Parliament found that 'atrocities' had instead of diminishing against the members of the Scheduled Castes and Scheduled Tribes were on in-crease. In order to check them and for the civil rights guaranteed, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was passed. xxx xxx xxx xxx 48. The aforesaid Act was also a special Act passed by the Parliament to provide for the speedy trial of certain offences in terrorist affected areas and for matters connected therewith.
49. The present Act with which we are concerned aims at to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The two Acts may be different in their amplitude, but indignity tolerated up to the year 1988 by the Scheduled Castes and Scheduled Tribes had been -7- felt No.to be tolerable any more, consequently, the present Act was enacted. xxx xxx xxx xxx 71.Court may have its own views on a particular matter but it canNo.question the wisdom of Parliament. If a legislation is within the competence of Parliament, and does No.infringe Part III of the Constitution, it is to be accepted. The judicial process does No.lay where the Parliament has exclusive jurisdiction.”
. In view of the above, we do No.find any ground to declare the impugned Act unconstitutional. The petition is dismissed. ……......……………… A.K.Goel, C.J.AD ……………………….. Dr. A.K. Rath, J.