Holding

Section 18A is rendered of academic use after the recall of the Kashinath directions; preliminary inquiry is permissible only as per Lalita Kumari, Section 438 does not apply but its bar is inapplicable where no prima facie case exists, and courts may quash cases under Section 482, so the challenge to Section 18A fails.

Summary

The petitioners challenged Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which removed the requirement of a preliminary inquiry and the need for approval before arrest, and barred anticipatory bail under Section 438 of the CrPC. The Court noted that the directions issued in Dr. Subhash Kashinath’s case (requiring preliminary inquiry and approval for arrest) had been recalled by the Union’s successful review petitions. Consequently, Section 18A was held to be of only academic relevance, with preliminary inquiry permissible only as per the Lalita Kumari rule. The Court affirmed that Section 438 does not apply to offences under the Act, but the bar does not arise where no prima facie case exists, and courts may use Section 482 to quash frivolous proceedings. The challenge to Section 18A therefore fails and the writ petitions are dismissed.

Issues considered

Whether Section 18A of the SC/ST (Prevention of Atrocities) Act, 1989, which eliminates preliminary inquiry and approval for arrest, is constitutionally valid.
Whether the directions issued in Dr. Subhash Kashinath case (iii)-(v) remain binding after the Union’s review petitions.
Whether Section 438 of the Criminal Procedure Code applies to offences under the SC/ST Act.
Whether the provisions of Section 18A violate Articles 14, 15, 21 and other fundamental rights.
Whether courts may grant pre‑arrest bail when no prima facie case is made out under the Act.

Legislation cited

Civil Rights Act, 1955
Code of Criminal Procedure, 1973s. 197, s. 438, s. 482
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 18, s. 18A
Untouchability (Offences) Act, 1955

Subjects

SC/ST ActSection 18Apreliminary inquiryanticipatory bailSection 438 CrPCSection 482 CrPCconstitutional validityfundamental rightsprotective discriminationcaste atrocitiesreview petitionSupreme Court

Judgment

[2020] 2 S.C.R. 727 727

PRATHVI RAJ CHAUHAN A
v.
UNION OF INDIA & OTHERS
(Writ Petition (C) No. 1015 of 2018)
FEBRUARY 10, 2020 B

[ARUN MISHRA, VINEET SARAN AND
S. RAVINDRA BHAT, JJ.]
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 – s.18A – Challenge to – Petitioners challenged C
s.18A which was enacted owing to the judgment of Supreme Court
in Dr. Subhash Kashinath case reported as [2018] 4 SCR 877, mainly
because of direction nos.(iii) to (v) contained in para 83 inter alia
w.r.t holding preliminary inquiry for registration of FIR, necessity
to obtain approval of the appointing authority concerning arrest of
a public servant and of the SSP in other cases – Union of India D
filed review petitions – Allowed – Direction nos. (iii) to (v) recalled
– Held: Per Arun Mishra and Vineet Saran, JJ. – Provisions made
in s.18A are rendered of academic use as they were enacted to take
care of mandate issued in Dr. Subhash Kashinath case which no more
prevails – A preliminary inquiry is permissible only in the E
circumstances as per law laid down by Constitution Bench in Lalita
Kumari case – Further, concerning the applicability of provisions
of s.438, CrPC, it shall not apply to the cases under 1989 Act –
However, if the complaint does not make out a prima facie case under
1989 Act, the bar created by s.18 & 18A(i) shall not apply – In F
exceptional cases, power can be exercised u/s.482, CrPC for
quashing cases to prevent misuse of provisions on settled
parameters, as observed in the review petitions – Per S. Ravindra
Bhat, J. (Supplementing) Any interference with the provisions of
the Act, particularly with respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar against G
arrest of public servants accused of offences punishable under the
Act, would not be a positive step – Various reports, official data
including those released by the National Crime Records Bureau,
paint a dismal picture – While considering any application seeking
H
727
728 SUPREME COURT REPORTS [2020] 2 S.C.R.

A pre-arrest bail, the High Court has to balance the two interests: i.e.
that the power is not so used as to convert the jurisdiction into that
u/s.438, CrPC, but that it is used sparingly and such orders made
in very exceptional cases where no prima facie offence is made out
as shown in the FIR – Further also, if such orders are not made in
B those classes of cases, the result would inevitably be miscarriage of
justice or abuse of process of law – Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Amednment Act, 2018 – Constitution
of India – Arts.14, 15, 17, 21, 23 & 24 – Code of Criminal Procdure,
1973 – ss.438 and 482 – Untouchability (Offences) Act, 1955 –
Civil Rights Act, 1955.
C
Disposing of the writ petitions, the Court
HELD: PER ARUN MISHRA, J. (for himself and VINEET
SARAN, J.)
Concerning the provisions contained in section 18A, with
D respect to preliminary inquiry for registration of FIR, the general
directions (iii) and (iv) issued in Dr. Subhash Kashinath’s case
have already been recalled. A preliminary inquiry is permissible
only in the circumstances as per the law laid down by a
Constitution Bench of Supreme Court in Lalita Kumari case, shall
E hold good as explained in the order passed by Supreme Court in
the review petitions on 1.10.2019 and the amended provisions of
section 18A have to be interpreted accordingly. The provisions
which have been made in section 18A are rendered of academic
use as they were enacted to take care of mandate issued in Dr.
Subhash Kashinath which no more prevails. The provisions were
F already in section 18 of the Act with respect to anticipatory bail.
Concerning the applicability of provisions of section 438 Cr.PC,
it shall not apply to the cases under Act of 1989. However, if the
complaint does not make out a prima facie case for applicability
of the provisions of the Act of 1989, the bar created by section 18
G and 18A (i) shall not apply. This aspect has been clarified while
deciding the review petitions. The court can, in exceptional cases,
exercise power under section 482 Cr.PC for quashing the cases
to prevent misuse of provisions on settled parameters, as already
observed while deciding the review petitions. The challenge to
the provisions has been rendered academic. [Paras 8-11][750-
H
H; 751-A-H]
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 729

Dr. Subhash Kashinath Mahajan v. The State of A
Maharashtra & Anr. (2018) 6 SCC 454 : [2018] 4 SCR
877; State of M.P. & Anr. v. Ram Kishna Balothia &
Anr. (1995) 3 SCC 221 : [1995] 1 SCR 897; Vilas
Pandurang Pawar and Anr. v. State of Maharashtra &
Ors. (2012) 8 SCC 795 : [2012] 8 SCR 270; Shakuntla
B
Devi v. Baljinder Singh (2014) 15 SCC 521; Lalita
Kumari v. Government of U.P. (2014) 2 SCC 1 : [2013]
14 SCR 713 – referred to.
PER S. RAVINDRA BHAT, J.
1.1 Any interference with the provisions of the Scheduled C
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
particularly w ith respect to the amendments precluding
preliminary enquiry, or provisions which remove the bar against
arrest of public servants accused of offences punishable under
the Act, would not be a positive step. The various reports,
recommendations and official data, including those released by D
the National Crime Records Bureau, paint a dismal picture. The
figures reflected were that for 2014, instances of crimes recorded
were 40401; for 2015, the crime instances recorded were 38670
and for 2016, the registered crime incidents were 40801.
According to one analysis of the said 2016 report, 422,799 crimes
E
against scheduled caste communities’ members and 81,332
crimes against scheduled tribe communities’ members were
reported between 2006 and 2016. These facts, ought to be kept
in mind by courts which have to try and deal with offences under
the Act. It is important to keep oneself reminded that while
sometimes (perhaps mostly in urban areas) false accusations are F
made, those are not necessarily reflective of the prevailing and
wide spread social prejudices against members of these oppressed
classes. Significantly, the amendment of 2016, in the expanded
definition of ‘atrocity’, also lists pernicious practices (under
Section 3) including forcing the eating of inedible matter, dumping
of excreta near the homes or in the neighbourhood of members G
of such communities and several other forms of humiliation, which
members of such scheduled caste communities are subjected to.
All these considerations far outweigh the petitioners’ concern
that innocent individuals would be subjected to what are described
as arbitrary processes of investigation and legal proceedings,
H
730 SUPREME COURT REPORTS [2020] 2 S.C.R.

A without adequate safeguards. The right to a trial with all attendant
safeguards are available to those accused of committing offences
under the Act; they remain unchanged by the enactment of the
amendment. As far as the provision of Section 18A and anticipatory
bail is concerned, the judgment of Mishra, J, has stated that in
cases where no prima facie materials exist warranting arrest in a
B complaint, the court has the inherent power to direct a pre-arrest
bail. [Paras 17-19][760-C-G; 761-A-C]
1.2 While considering any application seeking pre-arrest
bail, the High Court has to balance the two interests: i.e. that the
power is not so used as to convert the jurisdiction into that under
C Section 438 of the Criminal Procedure Code, but that it is used
sparingly and such orders made in very exceptional cases where
no prima facie offence is made out as shown in the FIR, and further
also that if such orders are not made in those classes of cases,
the result would inevitably be a miscarriage of justice or abuse of
process of law. Such stringent terms, otherwise contrary to the
D
philosophy of bail, are absolutely essential, because a liberal use
of the power to grant pre-arrest bail would defeat the intention of
Parliament. Unless provisions of the Act are enforced in their
true letter and spirit, with utmost earnestness and dispatch, the
dream and ideal of a casteless society will remain only a dream, a
E mirage. The marginalization of scheduled caste and scheduled
tribe communities is an enduring exclusion and is based almost
solely on caste identities. It is to address problems of a segmented
society, that express provisions of the Constitution which give
effect to the idea of fraternity, or bandhutva ( cU/kqRo) referred to
in the Preamble, and statutes like the Act, have been framed.
F These underline the social – rather collective resolve – of
ensuring that all humans are treated as humans, that their innate
genius is allowed outlets through equal opportunities and each
of them is fearless in the pursuit of her or his dreams.
[Paras 20, 21][761-C-H]
G Indira Sawhney v Union of India [1992] Suppl. 1 SCR
454; Raghunathrao Ganpatrao v. Union of India
[1993] 1 SCR 480; Nandini Sundar v. State of
Chhatisgarh (2011) 7 SCC 457; Dalit Human Rights v.

H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 731

Union of India (2017) 2 SCC 432 : [2016] 9 SCR 122; A
Subhash Kashinath Mahajan v. State of Maharashtra
& Ors. (2018) 4 SCC 454 : [2018] 4 SCR 877; Union
of India v. State of Maharastra 2019 (13) SCALE 280
– referred to.
Guru Granth Saheb p.83; B. Shiva Rao: Framing of B
India’s Constitution Vol.III, Page 510 (1968); Report
on the Prevention of Atrocities against Scheduled Castes
Published by the National Human Rights Commission
(accessed at https://nhrc.nic.in/publications/other-
publicationss on 15 December, 2019 at 08:27 hrs);
Reports, recommendations and official data released C
by National Crime Records Bureau (http://ncrb.gov.in/
StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf
containing statistics relating to crime against
members of scheduled caste and scheduled tribe
populations);Indiaspend(https://www.indiaspend.com/
D
over-a-decade-crime-rate-against-dalits-rose-by-746-
746/) – referred to.
Case Law Reference
In the Judgment of Arun Mishra and Vineet Saran, JJ.
[2018] 4 SCR 877 referred to Para 2 E
[1995] 1 SCR 897 referred to Para 5
[2012] 8 SCR 270 referred to Para 6
(2014) 15 SCC 521 referred to Para 7
[2013] 14 SCR 713 referred to Para 8 F

In the Judgment of S. Ravindra Bhat, J.
[1992] Suppl. 1 SCR 454 referred to Para 9
G
[1993] 1 SCR 480 referred to Para 10
(2011) 7 SCC 457 referred to Para 11
[2016] 9 SCR 122 referred to Para 14

H
732 SUPREME COURT REPORTS [2020] 2 S.C.R.

A [2018] 4 SCR 877 referred to Para 15
2019 (1) SCALE 280 referred to Para 15
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1015 of 2018.
B Under Article 32 of the Constitution of India

With

Writ Petition (C) No. 1016 of 2018.
C
K. K. Venugopal, Attorney General, Tushar Mehta, Solicitor
General, R. Balasubramaniam, Dinesh Kumar Goswami, Ashok Kumar
Sharma, Mohan Parasaran, R. S. Gerwal, Gopal Shankarnarayan,
Sr. Advs., Ms. Shraddha Deshmukh, Ankur Talwar, Raj Bahadur Yadav,
Shiv Mangal Sharma, Mrs. Anil Katiyar, Mithilesh Kumar Singh, Rudra
D Vikram Singh, Parmanand Gaur, Mrs. Bandana Singh, Kshitij Mudgal,
Ekansh Bansal, Akhil Sharma, K. K. L. Gautam, A. K. Suman, P. S.
Nerwal, Bharat Ram, Rahul Mohod, Varun Mudgil, R. R. Bag, Sanjeev
Malhotra, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar,
Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, Ms. Sarita Devi,
Ms. Mamta Rani, Prabhoo Dayal Tiwari, Hitesh Kumar Sharma,
E Ms. Savati Gerwal, Krishna Kapoor, Ms. Shashi Kiran, Satish Chandra,
Arjun Saini, Ms. Pooja Dhar, Ms. Gayatri Verma, Shurtanjya Bhardwaj,
Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmed, Kunal Yadav,
Ms. Neena Shukla, Alok Shukla, Manoj Gorkela, Ms. Hemlata Kharayat,
Ram Srivastava, Sandeep Kumar Singh (for M/s. Gorkela Law Office),
F K. Paari Vendhan, Nilesh Ukey, Sabarish Subramanian, Prabu
Ramasubramanian, Y. William Vinoth Kumar, Vishnu Unnikrishnan,
Ms.Disha Wadekar, Paras Nath Singh, Avijit Bhattacharjee, Ms. Upma
Shrivastava, Ajoy Kumar Ghosh, Abhay Kant Mishra, G. Prakash, Jishnu
M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Prakash Sharma,
Anuj Saxena, Arup Banerjee, Mohd. Naved, Susheel Tomar, Balraj
G Dewan, Smarhar Singh, Kumar Parimal, Ms. Shashi Kiran, Fuzail Ahmad
Ayyubi, Varinder Kumar Sharma, Anilendra Pandey, Advs. for the
appearing parties.

Petitioner-in-person.
H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 733

The Judgments of the Court were delivered by A
ARUN MISHRA, J.*
1. The petitioners have questioned the provisions inserted by way
of carving out section 18A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (Act of 1989). Section 18 as well as
section 18A, are reproduced hereunder: B

“18. Section 438 of the Code not to apply to persons committing
an offence under the Act.—Nothing in section 438 of the Code
shall apply in relation to any case involving the arrest of any person
on an accusation of having committed an offence under this Act.”
“Section 18A. (1) For the purposes of this Act,- C
(a) preliminary enquiry shall not be required for registration of a
First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest,
if necessary, of any person, against whom an accusation of having
committed an offence under this Act has been made, and no D
procedure other than that provided under this Act or the Code
shall apply.
(2) The provisions of section 438 of the Code shall not apply to a
case under this Act, notwithstanding any judgment or order or
direction of any Court.” E
2. It is submitted that section 18A has been enacted to nullify the
judgment of this Court in Dr. Subhash Kashinath Mahajan v. The
State of Maharashtra & Anr., (2018) 6 SCC 454, in which following
directions were issued:
“83. Our conclusions are as follows: F
(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
or where on judicial scrutiny the complaint is found to be prima G
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);
Ed. Note : Judgment delivered by Arun Mishra, J. (for himself and Vineet Saran, J.) H
734 SUPREME COURT REPORTS [2020] 2 S.C.R.

A (iii) In view of acknowledged abuse of law of arrest in cases
under the Atrocities Act, arrest of a public servant can only be
after approval of the appointing authority and of a non-public
servant after approval by the S.S.P. which may be granted in
appropriate cases if considered necessary for reasons recorded.
Such reasons must be scrutinised by the Magistrate for permitting
B
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.
C
(v) Any violation of directions (iii) and (iv) will be actionable by
way of disciplinary action as well as contempt.
The above directions are prospective.”
3. It has been submitted that this Court has noted in Dr. Subhash
D Kashinath (supra) that the provisions of the Act of 1989 are being
misused as such the amendment is arbitrary, unjust, irrational and violative
of Article 21 of the Constitution of India. There could not have been any
curtailment of the right to obtain anticipatory bail under section 438 Cr.PC.
Prior scrutiny and proper investigation are necessary. Most of the
E safeguards have been provided under the Act of 1989 to prevent undue
harassment. This Court has struck down the provision of section 66A of
the Information Technology Act on the ground of violation of fundamental
rights; on the same anvil, the provisions of section 18A of the Act of
1989 deserve to be struck down.

F 4. It is not disputed at the Bar that the provisions in section 18A in
the Act of 1989 had been enacted because of the judgment passed by
this Court in Dr. Subhash Kashinath’s case (supra), mainly because of
direction Nos (iii) to (v) contained in para 83. The Union of India had
filed review petitions, and the same have been allowed, and direction
Nos (iii) to (v) have been recalled. Thus, in view of the judgment passed
G in the review petitions, the matter is rendered of academic importance
as we had restored the position as prevailed by various judgments that
were in vogue before the matter of Dr. Subhash Kashinath (supra)
was decided. We are not burdening the decision as facts and reasons
have been assigned in detail while deciding review petitions on 1.10.2019
H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 735
[ARUN MISHRA, J.]

and only certain clarifications are required in view of the provisions carved A
out in section 18A. There can be protective discrimination, not reverse
one. We have dealt with various questions in the review petitions while
deciding the same as under:
“36. In the light of the discussion mentioned above of legal
principles, we advert to directions issued in paragraph 83. Direction B
Nos. (iii) and (iv) and consequential direction No. (v) are sought
to be reviewed/recalled. Directions contain the following aspects:-
1. That arrest of a public servant can only be after approval of the
appointing authority.
2. The arrest of a non-public servant after approval by the Senior C
Superintendent of Police (SSP).
3. The arrest may be in an appropriate case if considered necessary
for reasons to be recorded;
4. Reasons for arrest must be scrutinised by the Magistrate for D
permitting further detention;
5. 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.
6. Any violation of the directions mentioned above will be actionable E
by way of disciplinary action as well as contempt.
37. 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 F
under Article 15 of the Constitution of India and the provisions of
the Act of 1989 to make them equals.
38. 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 G
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.

H
736 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 39. The National Commission for Scheduled Castes Annual Report
2015-16, 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
B 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:
C
“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.
D 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)
E
40. 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
F kidnapping and 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
G 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 down-trodden class, biased mindset continues,
andthey are pressurised in several manners, and the complainant
also hardly muster the courage.
41. As to prevailing conditions in various areas of the country, we
H
are compelled to observe that SCs/STs are still making the struggle
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 737
[ARUN MISHRA, J.]

for equality and for exercising civil rights in various areas of the A
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
B
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.
42. Though, Article 17 of the Constitution prohibits untouchability,
whether untouchability has vanished? We have to find the answer C
to 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 D
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? E
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. F
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 down-trodden 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, G
education and frugal comforts of life in spite of spending a
considerable amount for the protection, how long this would
continue. 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 H
they face a violation of traditional rights?
738 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 43. 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.
B
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 deep-rooted, 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.
C 44. 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,
D Administrator, AIR 1981 SC 746, Olga Tellis v. Bombay
Corporation, AIR 1986 SC 180. Gender injustice, pollution,
environmental degradation, malnutrition, social ostracism of 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:
E
“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
F 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)
45. There is right to live with dignity and also right to die with
G 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
H protected by the Constitution equally with the right to the
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 739
[ARUN MISHRA, J.]

enjoyment of life, liberty, and property. Therefore, it has been A
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
B
the Act of 1989 are, in essence, concomitants covering various
facets of Article 21 of the Constitution of India.
46. 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 C
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 D
civil rights and cannot live with human dignity.
47. 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 E
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 F
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 Article 15(4),
to deal with them with more rigorous provisions as compared to
provisions of general law available to the others would create G
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
H
740 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Scheduled Tribes in a disadvantageous position vis-à-vis others
and in particular to so-called 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.
B
48. 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.
C
49. 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
D to the human 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/
E 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.
F
50. 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
G of the Act.
51. 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
H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 741
[ARUN MISHRA, J.]

be causing injury to them by widening inequality and against the A
very spirit of our 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
B
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 C
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
D
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.
52. It is an unfortunate state of affairs that the caste system still E
prevails in the country and people remain in slums, more particularly,
under skyscrapers, and they serve the inhabitants of such buildings.
53. 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 F
relating to cognizable offence has to be registered forthwith. It
would mean a report by upper-caste 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 G
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
H
742 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 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).
54. 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;
B 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 221. 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
C 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
D appears that in the case of misuse of provisions, adequate
safeguards are provided in the decision mentioned above.
55. 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
E 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 :
56. Concerning public servants, the provisions contained in Section
F 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 the very definition of a cognizable offence
G in terms of Section 2(c) of Cr.PC is one for which police officer
may arrest without warrant.
57. 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
H Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 743
[ARUN MISHRA, J.]

58. While issuing guidelines mentioned above approval of appointing A
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 B
legislature. The direction amounts to a mandate having legislative
colour which is a field not earmarked for the Courts.
59. 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 C
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
happened in the discharge of official duty. Approaching appointing
authority for approval of arrest of a public servant in every case D
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 E
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 extra-statutory. In case
appointing authority holds that a public servant is not to be arrested
F
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 faciecase 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 G
provisions of Act of 1989 and is without statutory basis.
60. 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 H
744 SUPREME COURT REPORTS [2020] 2 S.C.R.

A offender, maybe a 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
B 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.

C 61. The appointing authority cannot sit over an FIR in case of
cognizable, non-bailable 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
D 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.
E 62. Assuming it is permissible to obtain the permission of appointing
authority to arrest accused, would be further worsening the position
of 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
F
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
G 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
H
appointing authority is made necessary for arrest, the very purpose
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 745
[ARUN MISHRA, J.]

of the Act is likely to be frustrated. Various complications may A
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 non-
public servant: B
63. Inter alia for the reasons as mentioned earlier, we are of the
considered opinion that requiring the approval of SSP before an
arrest 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, C
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, D
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 E
permitting further detention:
64. As per guidelines issued by this Court, the public servant can
be arrested after approval by appointing authority and that of a
non-public servant after the approval of SSP. The reasons so
recorded have to be considered by the Magistrate for permitting F
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 non-public servant. Even otherwise, as we have not approved G
the approval of arrest by appointing authority/S.S.P., the direction
to record reasons and scrutiny by Magistrate consequently stands
nullified.
65. The direction has also been issued that the Dy. S.P. should
conduct a preliminary inquiry to find out whether allegations make
H
out a case under the Atrocities Act, and that the allegations are
746 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 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
B
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.
C 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 vis-a-vis to the complaints
D
lodged by members of upper caste, for later no such 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.
66. The creation of a casteless society is the ultimate aim. We
E 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/
F STs or OBCs exist, all citizens are emancipated and become equal
as per Constitutional goal.
67. We do not doubt that directions encroach upon the field reserved
for the legislature and against the concept of protective
discrimination in favour of down-trodden classes under Article
G 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 petition
H is allowed to the extent mentioned above.”
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 747
[ARUN MISHRA, J.]

5. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., A
(1995) 3 SCC 221, this Court has upheld the validity of section 18 of the
Act of 1989. This Court 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 B
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 C
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 D
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 E
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 F
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. G
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.
H
748 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 2. … 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 self-respect
B 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
C 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 non-
D 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
E
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.
F
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 human being is entitled; those who have been,
G 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
H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 749
[ARUN MISHRA, J.]

recommended introduction of a provision for grant of anticipatory A
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.” In the light of this recommendation,
Section 438 was incorporated, for the first time, in the Criminal B
Procedure Code of 1973. Looking to the cautious
recommendation of the Law Commission, the power to grant
anticipatory bail is conferred only on a Court of Session or the
High Court. Also, anticipatory bail cannot be granted as a matter
of right. It is essentially a statutory right conferred long after
C
the coming into force of the Constitution. It cannot be
considered as an essential ingredient of Article 21 of the
Constitution. And its non-application to a certain special
category of offences cannot be considered as violative of
Article 21.
9. Of course, the offences enumerated under the present case D
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 E
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 cannot be considered F
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 not available for
even “minor offences” under the said Act. This grievance also
cannot be justified. The offences which are enumerated under G
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 H
750 SUPREME COURT REPORTS [2020] 2 S.C.R.

A them in a state of servitude. These offences constitute a separate
class and cannot be compared with offences under the Penal
Code.
11. A similar view of Section 18 of the said Act has been taken by
the Full Bench of the Rajasthan High Court in the case of Jai
B Singh v. Union of India, AIR 1993 Raj 177, and we respectfully
agree with its findings.”
6. This Court in Vilas Pandurang Pawar and Anr. v. State of
Maharashtra and Ors., (2012) 8 SCC 795, has observed thus:
“10. The scope of Section 18 of the SC/ST Act read with Section
C 438 of the Code is such that it creates a specific bar in the grant
of anticipatory bail. When an offence is registered against a person
under the provisions of the SC/ST Act, no court shall entertain an
application for anticipatory bail, unless it prima facie finds that
such an offence is not made out. Moreover, while considering the
D application for bail, scope for appreciation of evidence and other
material on record is limited. The court is not expected to indulge
in critical analysis of the evidence on record. When a provision
has been enacted in the Special Act to protect the persons who
belong to the Scheduled Castes and the Scheduled Tribes and a
bar has been imposed in granting bail under Section 438 of the
E Code, the provision in the Special Act cannot be easily brushed
aside by elaborate discussion on the evidence.”
7. This Court in Shakuntla Devi v. Baljinder Singh, (2014) 15
SCC 521, has observed thus:

F “4. The High Court has not given any finding in the impugned
order that an offence under the aforesaid Act is not made out
against the respondent and has granted anticipatory bail, which is
contrary to the provisions of Section 18 of the aforesaid Act as
well as the aforesaid decision of this Court in Vilas Pandurang
Pawar case, (2012) 8 SCC 795. Hence, without going into the
G merits of the allegations made against the respondent, we set aside
the impugned order of the High Court granting bail to the
respondent.”
8. Concerning the provisions contained in section 18A, suffice it
to observe that with respect to preliminary inquiry for registration of
H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 751
[ARUN MISHRA, J.]

FIR, we have already recalled the general directions (iii) and (iv) issued A
in Dr. Subhash Kashinath’s case (supra). A preliminary inquiry is
permissible only in the circumstances as per the law laid down by a
Constitution Bench of this Court in Lalita Kumari v. Government of
U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed
by this Court in the review petitions on 1.10.2019 and the amended B
provisions of section 18A have to be interpreted accordingly.
9. The section 18A(i) was inserted owing to the decision of this
Court in Dr.Subhash Kashinath (supra), which made it necessary to
obtain the approval of the appointing authority concerning a public servant
and the SSP in the case of arrest of accused persons. This Court has C
also recalled that direction on Review Petition (Crl.) No.228 of 2018
decided on 1.10.2019. Thus, the provisions which have been made in
section 18A are rendered of academic use as they were enacted to take
care of mandate issued in Dr. Subhash Kashinath (supra) which no
more prevails. The provisions were already in section 18 of the Act with
respect to anticipatory bail. D

10. Concerning the applicability of provisions of section 438 Cr.PC,
it shall not apply to the cases under Act of 1989. However, if the complaint
does not make out a prima facie case for applicability of the provisions
of the Act of 1989, the bar created by section 18 and 18A (i) shall not
apply. We have clarified this aspect while deciding the review petitions. E

11. The court can, in exceptional cases, exercise power under
section 482 Cr.PC for quashing the cases to prevent misuse of provisions
on settled parameters, as already observed while deciding the review
petitions. The legal position is clear, and no argument to the contrary has
been raised. F

12. The challenge to the provisions has been rendered academic.
In view of the aforesaid clarifications, we dispose of the petitions.

S. RAVINDRA BHAT, J. G

1. I am in agreement with the judgment proposed by Justice Arun
Mishra as well as its conclusions that the challenge to the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) (Amendment)
Act, 2018 must fail, with the qualifications proposed in the judgment
H
752 SUPREME COURT REPORTS [2020] 2 S.C.R.

A with respect to the inherent power of the court in granting anticipatory
bail in cases where primafacie an offence is not made out. I would
however, supplement the judgment with my opinion.
2. The Constitution of India is described variously as a charter of
governance of the republic, as a delineation of the powers of the state in
B its various manifestations vis-à-vis inalienable liberties and a document
delimiting the rights and responsibilities of the Union and its constituent
states. It is more: it is also a pact between people, about the relationships
that they guarantee to each other (apart from the guarantee of liberties
vis-à-vis the state) in what was a society riven1 along caste and sectarian
C divisions. That is why the preambular assurance that the republic would
be one which guarantees to its people liberties, dignity, equality of status
and opportunity and fraternity.
3. It is this idea of India, - a promise of oneness of and for, all
people, regardless of caste, gender, place of birth, religion and other
D divisions that Part III articulates in four salient provisions: Article 15,
Article 17, Article 23 and Article 24. The idea of fraternity occupying as
crucial a place in the scheme of our nation’s consciousness and polity, is
one of the lesser explored areas in the constitutional discourse of this
court. The fraternity assured by the Preamble is not merely a declaration
of a ritual handshake or cordiality between communities that are diverse
E and have occupied different spaces: it is far more. This idea finds
articulation in Article 15.1 That provision, perhaps even more than Article
14, fleshes out the concept of equality by prohibiting discrimination and
discriminatory practices peculiar to Indian society. At the center of this

F 1
The relevant parts of Article 15 are extracted below:
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard
G to
(a) access to shops, public restaurants, hotels and places of public entertainment;
or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public…”
H (3) Nothing in this article shall prevent the State from making any special provision
for women and children”
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 753
[S. RAVINDRA BHAT, J.]

idea, is that all people, regardless of caste backgrounds, should have A
access to certain amenities, services and goods so necessary for every
individual. Article 15 is an important guarantee against discrimination.
What is immediately noticeable is that whereas Article 15 (1) enjoins the
State (with all its various manifestations, per Article 12) not to discriminate
on the proscribed grounds (religion, race, caste, sex (i.e. gender), place B
of birth or any of them), Article 15 (2) is a wider injunction: it prohibits
discrimination or subjection to any disability of anyone on the grounds of
religion, caste, race, sex or place of birth in regard to access to shops,
places of public entertainment, or public restaurants (Article 15 (2) (a)).
Article 15(2)(b) proscribes the subjection of anyone to any disability on
the proscribed grounds (i.e. discrimination on grounds of religion, caste, C
race, sex or place of birth) with regard to “the use of wells, tanks,
bathing ghats, roads and places of public resort maintained wholly
or partly out of State funds or dedicated to the use of the general
public..”
4. The making of this provision- and others, in my view, is impelled D
by the trinity of the preambular vision that the Constitution makers gave
to this country. Paeans have been sung about the importance of liberty
as a constitutional value: its manifest articulation in the (original) seven
“lamps” -i.e. freedoms under Article 19 of the Constitution; the other
rights to religion, those of religious denominations, etc. Likewise, the E
centrality of equality as an important constitutional provision has been
emphasized, and its many dimensions have been commented upon.
However, the articulation of fraternity as a constitutional value, has
lamentably been largely undeveloped. In my opinion, all the three - Liberty,
Equality and Fraternity, are intimately linked. The right to equality, sans
liberty or fraternity, would be chimerical - as the concept presently known F
would be reduced to equality among equals, in every manner- a mere
husk of the grand vision of the Constitution. Likewise, liberty without
equality or fraternity, can well result in the perpetuation of existing
inequalities and worse, result in license to indulge in society’s basest
practices. It is fraternity, poignantly embedded through the provisions of G
Part III, which assures true equality, where the state treats all alike,
assures the benefits of growth and prosperity to all, with equal liberties
to all, and what is more, which guarantees that every citizen treats every
other citizen alike.

H
754 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 5. When the framers of the Constitution began their daunting task,
they had before them a formidable duty and a stupendous opportunity:
of forging a nation, out of several splintered sovereign states and city
states, with the blueprint of an idea of India. What they envisioned was
a common charter of governance and equally a charter for the people.
The placement of the concept of fraternity, in this context was neither
B an accident, nor an idealized emulation of the western notion of fraternity,
which finds vision in the French and American constitutions and charters
of independence. It was a unique and poignant reminder of a society
riven with acute inequalities: more specifically, the practice of caste
discrimination in its virulent form, where the essential humanity of a
C large mass of people was denied by society- i.e. untouchability.
6. The resolve to rid society of these millennial practices,
consigning a large segment of humanity to the eternal bondage of the
most menial avocations creating inflexible social barriers, was criticized
by many sages and saints. Kabir, the great saint poet, for instance, in his
composition, remarked:
D
“If thou thinkest the maker distinguished castes:
Birth is according to these penalties for deeds.
Born a Sudra, you die a Sudra;

E It is only in this world of illusion that you assume the sacred
thread.
If birth from a Brahmin makes you a Brahmin,
Why did you not come by another way?
If birth from a Turk makes you a Turk,
F
Why were you not circumcised in the womb?
…
Saith Kabir, renounce family, caste, religion, and nation,
And live as one.”
G
7. There were several others who spoke, protested, or spoke
against the pernicious grip of social inequity due to caste oppression of
the weakest and vulnerable segments of society. Guru Nanak, for instance,
stated2
2
H Guru Granth Saheb p.83
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 755
[S. RAVINDRA BHAT, J.]

“Caste and dynastic pride are condemnable notions, A
the one master shelters all existence.
Anyone arrogating superiority to himself halt
be disillusioned. Saith Nanak:
superiority shall be determined by God” B
The Guru Granth Saheb also states that
“All creatures are noble, none low,
One sole maker has all vessels fashioned;
C
In all three worlds is manifest the same light…”
8. The preamble to the Constitution did not originally contain the
expression “fraternity”; it was inserted later by the Drafting Committee
under the chairmanship of Dr. Ambedkar. While submitting the draft
Constitution, he stated, on 21 February, 1948, that the Drafting Committee
had added a clause about fraternity in the Preamble even though it was D
not part of the Objectives Resolution because it felt that “the need for
fraternal concord and goodwill in India was never greater than
now, and that this particular aim of the new Constitution should be
emphasized by special mention in the Preamble”3. Pandit Thakur Das
Bhargava expressed a “sense of gratitude to Dr. Ambedkar for having E
added the word “fraternity” to the Preamble”. Acharya Kripalani
also emphasized on this understanding, in his speech on 17 October,
1949:
“Again, I come to the great doctrine of fraternity, which is
allied with democracy. It means that we are all sons of the F
same God, as the religious would say, but as the mystic would
say, there is one life pulsating through all of us, or as the
Bible says, “We are one of another”. There can be no
fraternity without this.”
9. This court too, has recognized and stressed upon the need to G
recognize fraternity as one of the beacons which light up the entire
Constitution. Justice Thommen, in Indira Sawhney v Union of India4
said this:
3
B. Shiva Rao: Framing of India’s Constitution Vol III, page 510 (1968)
4
1992 Supp (3) SCR 454 H
756 SUPREME COURT REPORTS [2020] 2 S.C.R.

A “The makers of the Constitution were fully conscious of the
unfortunate position of the Scheduled Castes and Scheduled
Tribes. To them equality, liberty and fraternity are but a dream;
an ideal guaranteed by the law, but far too distant to reach;
far too illusory to touch. These backward people and others
B in like positions of helplessness are the favoured children of
the Constitution. It is for them that ameliorative and remedial
measures are adopted to achieve the end of equality. To permit
those who are not intended to be so specially protected to
compete for reservation is to dilute the protection and defeat
the very constitutional aim.”
C
10. In Raghunathrao Ganpatrao v. Union of India 5 this court
held:
“In our considered opinion this argument is misconceived and
has no relevance to the facts of the present case. One of the
objectives of the Preamble of our Constitution is ‘fraternity
D
assuring the dignity of the individual and the unity and
integrity of the nation.’ It will be relevant to cite the explanation
given by Dr. Ambedkar for the word ‘fraternity’ explaining
that ‘fraternity means a sense of common brotherhood of all
Indians.’ In a country like ours with so many disruptive forces
E of regionalism, communalism and linguism, it is necessary to
emphasise and re-emphasise that the unity and integrity of
India can be preserved only by a spirit of brotherhood. India
has one common citizenship and every citizen should feel that
he is Indian first irrespective of other basis. In this view, any
measure at bringing about equality should be welcome.”
F
11. In a similar vein, the court in Nandini Sundar v. State of
Chhatisgarh6 again commented on this aspect and said that “t(T)he
Constitution itself, in no uncertain terms, demands that the State
shall strive, incessantly and consistently, to promote fraternity
amongst all citizens such that dignity of every citizen is protected,
G nourished and promoted.”
12. It was to achieve this ideal of fraternity, that the three
provisions- Articles 15, 17 and 24 were engrafted. Though Article 17
proscribes the practice of untouchability and pernicious practices
5
1993 (1) SCR 480
H 6
2011 (7) SCC 457
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 757
[S. RAVINDRA BHAT, J.]

associated with it, the Constitution expected Parliament and the A
legislatures to enact effective measures to root it out, as well as all
other direct and indirect, (but virulent nevertheless) forms of caste
discrimination. Therefore, in my opinion, fraternity is as important a
facet of the promise of our freedoms as personal liberty and equality is.
The first attempt by Parliament to achieve that end was the enactment
of the Untouchability (Offences) Act, 1955. The Act contained a B
significant provision that where any of the forbidden practices “is
committed in relation to a member of a Scheduled Caste” the Court
shall presume, unless the contrary is proved, that such act was committed
on the ground of “Untouchability”. This implied that the burden of proof
lies on the accused and not on the prosecution. The Protection of Civil C
Rights Act, 1955, followed. This too made provision for prescribing
“punishment for the preaching and practice of - “Untouchability”
for the enforcement of any disability arising therefrom”. The
enforcement of social practices associated with untouchability and
disabilities was outlawed and made the subject matter of penalties. After
nearly 35 years’ experience, it was felt that the 1955 Act (which was D
amended in 1976) did not provide sufficient deterrence to social practices,
which continued unabated and in a widespread manner, treating members
of the scheduled caste and tribe communities in the most discriminatory
manner, in most instances, stigmatizing them in public places, virtually
denying them the essential humanity which all members of Society are
entitled to. E

13. It was to address this gulf between the rights which the
Constitution guaranteed to all people, particularly those who continued
to remain victims of ostracism and discrimination, that the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereafter “the Act”) was enacted. Rules under the Act were framed in F
1995 to prevent the commission of atrocities against members of
Schedules Castes and 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. The
Statement of Objects and Reasons appended to the Bill, when moved in G
the Parliament, observed that despite various measures to improve the
socio-economic conditions of Scheduled Castes and Scheduled Tribes,
they remained vulnerable. They are denied a number of civil rights and
are subjected to various offences, indignities, humiliation and harassment.
They have been, in several brutal instances, deprived of their life and
property. Serious atrocities were committed against them for various H
758 SUPREME COURT REPORTS [2020] 2 S.C.R.

A historical, social and economic reasons. The Act, for the first time, puts
down the contours of ‘atrocity’ so as to cover the multiple ways through
which members of scheduled castes and scheduled tribes have been for
centuries humiliated, brutally oppressed, degraded, denied their economic
and social rights and relegated to perform the most menial jobs.
B 14. The Report on the Prevention of Atrocities against Scheduled
Castes7 vividly described that despite enacting stringent penal measures,
atrocities against scheduled caste and scheduled tribe communities
continued; even law enforcement mechanisms had shown a lackadaisical
approach in the investigation and prosecution of such offences. The
report observed that in rural areas, various forms of discrimination and
C practices stigmatizing members of these communities continued.
Parliament too enacted an amendment to the Act in 2015, strengthening
its provisions in the light of the instances of socially reprehensive practices
that members of scheduled caste and scheduled tribe communities were
subjected to. In this background, this court observed in the decision in
National Campaign on Dalit Human Rights v. Union of India8 that:
D
“The ever-increasing number of cases is also an indication
to show that there is a total failure on the part of the authorities
in complying with the provisions of the Act and the Rules.
Placing reliance on the NHRC Report and other reports, the
Petitioners sought a mandamus from this Court for effective
E implementation of the Act and the Rules.
12. 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 concerned authorities in complying with the provisions
of the Act and Rules. The laudable object with which the Act
F 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 of the provisions of the Act. Section 21(4) of the
G Act provides for a report on the measures taken by the Central
Government and State Governments for the effective

7
Published by the National Human Rights Commission (accessed at https://nhrc.nic.in/
publications/other-publicationss on 15 December, 2019 at 08:27 hrs)
8
(2017) 2 SCC 432
H
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 759
[S. RAVINDRA BHAT, J.]

implementation of the Act to be placed before the Parliament A
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 B
the Scheduled Tribes continue unabated. We are satisfied that
the Central Government and State Governments should be
directed to strictly enforce the provisions of the Act and we
do so.”
15. In Subhash Kashinath Mahajan v. State of Maharashtra C
& Ors9, a two judge bench of this court held that the exclusion of
anticipatory bail provisions of the Code of Criminal Procedure (by Section
18 of the Act) did not constitute an absolute bar for the grant of bail,
where it was discernable to the court that the allegations about atrocities
or violation of the provisions of the Act were false. It was also held,
more crucially, that public servants could be arrested only after approval D
by the appointing authority (of such public servant) and in other cases,
after approval by the Senior Superintendent of Police. It was also directed
that cases under the Act could be registered only after a preliminary
enquiry into the complaint. These directions were seen to be contrary to
the spirit of the Act and received considerable comment in the public E
domain; the Union of India too moved this court for their review. In the
review proceedings, a three judge bench of this court, in Union of India
v. State of Maharastra10 recalled and overruled those directions.
16. In the meanwhile, Parliament enacted the amendment of
201811 (by Act No. 27 of 2019), which is the subject matter of challenge
9
F
2018 (4) SCC 454
10
2019 (13) SCALE 280
11
The operative part of the amendment, a brief one, reads as follows:
“ 2. After section 18 of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989, the following section shall be inserted,
namely:—
“18A. (1) For the purposes of this Act,— (a) preliminary enquiry shall not be G
required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary,
of any person, against whom an accusation of having committed an offence
under this Act has been made and no procedure other than that provided under
this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under
this Act, notwithstanding any judgment or order or direction of any Court.”. H
760 SUPREME COURT REPORTS [2020] 2 S.C.R.

A in these proceedings. The clear intention of Parliament was to undo the
effect of this court’s declaration in Subhash Kashinath Mahajan
(supra). The provisions of the amendment expressly override the
directions in Subhash Kashinath Mahajan, that a preliminary inquiry
within seven days by the Deputy Superintendent of Police concerned, to
find out whether the allegations make out a case under the Act, and that
B
arrest in appropriate cases may be made only after approval by the
Senior Superintendent of Police. The Parliamentary intent was to allay
the concern that this would delay registration of First Information Report
(FIR) and would impede strict enforcement of the provision of the Act.
17. The judgment of Mishra, J has recounted much of the discussion
C and reiterated the reasoning which led to the recall and review of the
decision in Subhash Kashinath Mahajan (supra); I respectfully adopt
them. I would only add that any interference with the provisions of the
Act, particularly with respect to the amendments precluding preliminary
enquiry, or provisions which remove the bar against arrest of public
D servants accused of offences punishable under the Act, would not be a
positive step. The various reports, recommendations and official data,
including those released by the National Crime Records Bureau12, paint
a dismal picture. The figures reflected were that for 2014, instances of
crimes recorded were 40401; for 2015, the crime instances recorded
were 38670 and for 2016, the registered crime incidents were 40801.
E According to one analysis of the said 2016 report13, 422,799 crimes
against scheduled caste communities’ members and 81,332 crimes against
scheduled tribe communities’ members were reported between 2006
and 2016.
18. These facts, in my opinion ought to be kept in mind by courts
F which have to try and deal with offences under the Act. It is important
to keep oneself reminded that while sometimes (perhaps mostly in urban
areas) false accusations are made, those are not necessarily reflective
of the prevailing and wide spread social prejudices against members of
these oppressed classes. Significantly, the amendment of 2016, in the
G expanded definition of ‘atrocity’, also lists pernicious practices (under
Section 3) including forcing the eating of inedible matter, dumping of
12
http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%207A.1.pdf containing
statistics relating to crime against members of scheduled caste and scheduled tribe
populations
13
Indiaspend https://www.indiaspend.com/over-a-decade-crime-rate-against-dalits-rose-
H by-746-746/
PRATHVI RAJ CHAUHAN v. UNION OF INDIA & OTHERS 761
[S. RAVINDRA BHAT, J.]

excreta near the homes or in the neighbourhood of members of such A
communities and several other forms of humiliation, which members of
such scheduled caste communities are subjected to. All these
considerations far outweigh the petitioners’ concern that innocent
individuals would be subjected to what are described as arbitrary
processes of investigation and legal proceedings, without adequate
B
safeguards. The right to a trial with all attendant safeguards are available
to those accused of committing offences under the Act; they remain
unchanged by the enactment of the amendment.
19. As far as the provision of Section 18A and anticipatory bail is
concerned, the judgment of Mishra, J, has stated that in cases where no
prima facie materials exist warranting arrest in a complaint, the court C
has the inherent power to direct a pre-arrest bail.
20. I would only add a caveat with the observation and emphasize
that while considering any application seeking pre-arrest bail, the High
Court has to balance the two interests: i.e. that the power is not so used
as to convert the jurisdiction into that under Section 438 of the Criminal D
Procedure Code, but that it is used sparingly and such orders made in
very exceptional cases where no prima facie offence is made out as
shown in the FIR, and further also that if such orders are not made in
those classes of cases, the result would inevitably be a miscarriage of
justice or abuse of process of law. I consider such stringent terms, E
otherwise contrary to the philosophy of bail, absolutely essential, because
a liberal use of the power to grant pre-arrest bail would defeat the intention
of Parliament.
21. It is important to reiterate and emphasize that unless provisions
of the Act are enforced in their true letter and spirit, with utmost F
earnestness and dispatch, the dream and ideal of a casteless society will
remain only a dream, a mirage. The marginalization of scheduled caste
and scheduled tribe communities is an enduring exclusion and is based
almost solely on caste identities. It is to address problems of a segmented
society, that express provisions of the Constitution which give effect to
the idea of fraternity, or bandhutva (cU/kqRo) referred to in the Preamble, G
and statutes like the Act, have been framed. These underline the social
– rather collective resolve – of ensuring that all humans are treated as
humans, that their innate genius is allowed outlets through equal
opportunities and each of them is fearless in the pursuit of her or his
dreams. The question which each of us has to address, in everyday life, H
762 SUPREME COURT REPORTS [2020] 2 S.C.R.

A is can the prevailing situation of exclusion based on caste identity be
allowed to persist in a democracy which is committed to equality and the
rule of law? If so, till when? And, most importantly, what each one of us
can do to foster this feeling of fraternity amongst all sections of the
community without reducing the concept (of fraternity) to a ritualistic
formality, a tacit acknowledgment, of the “otherness” of each one’s
B
identity.
22. I am of the opinion that in the light of and subject to the above
observations, the petitions have to be and are, accordingly disposed of.

C Divya Pandey Petitions disposed of.

D

E

F

G

H