Holding

The directions mandating approval of the appointing authority/SSP for arrest and a preliminary inquiry by a Dy SP under the SC/ST Act are ultra‑vires and are recalled.

Summary

The Union of India sought review of the Supreme Court's directions in Dr. Subhash Kashinath Mahajan v. State of Maharashtra, which required approval of the appointing authority for arresting a public servant and of the SSP for a non‑public servant, and mandated a preliminary inquiry by a Dy SP before registering an FIR under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Court examined whether these guidelines infringed the protective discrimination guaranteed under Articles 15, 17 and 21, violated Section 18 of the Act, and encroached upon the legislative field under Article 142. Relying on the constitutional mandate of protective discrimination, the cognizability of offences under the Act, and precedents such as Lalita Kumari and State of M.P. v. Balothia, the Court held that the directions were ultra‑vires and contrary to the statute. Consequently, the directions (iii), (iv) and the consequential (v) were recalled. The review petitions were allowed.

Issues considered

The validity of the Supreme Court's directions requiring approval of the appointing authority or SSP before arrest under the SC/ST Act.
Whether Section 18 of the SC/ST Act violates Article 21 of the Constitution.
Whether the directions constitute legislative overreach under Article 142.
Whether protective discrimination under Articles 15(4) and 17 precludes such procedural riders.
Whether anticipatory bail can be denied in offences under the SC/ST Act.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 156, s. 157, s. 197, s. 2(c), s. 41, s. 438, s. 482
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 18
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Rules, 2016
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995s. 7(2)

Subjects

SC/ST Actprotective discriminationArticle 142judicial overreachcognizable offenceanticipatory bailpreliminary inquiryseparation of powersconstitutional lawreview petition

Judgment

[2019] 12 S.C.R. 1125 1125

UNION OF INDIA A
v.
STATE OF MAHARASHTRA AND ORS.
(Review Petition (Crl.) No. 228 of 2018)
in B
(Criminal Appeal No.416 of 2018)
OCTOBER 01, 2019
[ARUN MISHRA, M.R. SHAH AND B.R. GAVAI, JJ.]
C
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 – Supreme Court in Dr. Subhash Kashinath
Mahajan v. State of Maharashtra reported as [2018] 4 SCR 877, while
dealing with the 1989 Act issued guidelines inter alia viz.- (iii) in
view of acknowledged abuse of law of arrest under the 1989 Act,
arrest of public servant can only be after approval of the appointing D
authority and in case of non-public servant after approval by the
S.S.P; (iv) preliminary inquiry by Dy.S.P to find out whether
allegations make out a case under the 1989 Act and that the same
are not frivolous/motivated – Review of – Held: As the members of
the Scheduled Castes and Scheduled Tribes have suffered for long;
protective discrimination has been envisaged u/Art.15 and the 1989 E
Act to make them equals – Offences under the 1989 Act are
cognizable – Impugned directions put riders on the right to arrest –
It is not open to the legislature to put members of SCs and STs in
disadvantageous position vis-à-vis others and in particular to so-
called upper castes/general category –What legislature cannot do F
legitimately, cannot be done by the interpretative process by the
courts – For lodging false report, the caste of person is not the
cause – It is due to the human failing and not due to the caste
factor – There may be certain false cases and that can be ground
for interference by the Court u/s.482, CrPC, but the law cannot be
changed due to such misuse –More than 47,000 cases were G
registered in 2016 under the 1989 Act –Number is alarming, and it
cannot be said that it is due to the misuse of the Act – To say that
report lodged by an SC/ST would be registered only after preliminary
investigation by Dy. S.P, whereas under Cr.PC a complaint lodged
H
1125
1126 SUPREME COURT REPORTS [2019] 12 S.C.R.

A relating to cognizable offence has to be registered forthwith, would
mean that report by upper-caste has to be registered immediately
and arrest be made forthwith and thus, would be opposed to the
protective discrimination meted out to the members of the SCs and
STs as envisaged u/Arts.15, 17 & 21– Guidelines (iii), (iv) appear
to have been issued in view of the provisions of s.18, 1989 Act,
B
whereas adequate safeguards have been provided by purposive
interpretation by Supreme Court in State of M.P. v. R.K. Balothia
[1995] 1 SCR 897 – Permission of the appointing authority to arrest
public servant is not at all statutorily envisaged and amounts to
mandate having legislative colour which is a field not earmarked
C for the Courts – If at the threshold, approval of appointing authority
is made necessary for arrest, the very purpose of the Act is likely to
be frustrated – Various complications may arise– Further, in case
of non-public servant requiring the approval of SSP for the arrest
of accused could not have been made sine qua non, as it may delay
the matter – As the approval of arrest by appointing authority/S.S.P.
D
have not been approved, the direction to record reasons and scrutiny
by Magistrate consequently stands nullified – Direction nos.(iii),
(iv) issued by Supreme Court recalled – Consequently, direction
no.(v) also vanishes –Constitution of India– Arts.15, 17, 21 and
142 – Code of Criminal Procedure, 1973 –ss. 2(c), 41, 197, 438 &
E 482– Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 – r.7(2) – Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Rules, 2016.
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 –s.18 – Held: Provision of s.18 cannot be said
F to be violative of Art.21 – Constitution of India – Art.21.
Constitution of India – Art.142 – Exercise of powers under –
Impugned guidelines/directions issued by the Supreme Court in Dr.
Subhash Kashinath Mahajan v. State of Maharashtra reported as [2018]
4 SCR 877, inter alia directing that under the 1989 Act, arrest of
G public servant can only be after approval of the appointing authority;
in case of non-public servant after approval by the S.S.P and also
for a preliminary inquiry by Dy.S.P to find out whether allegations
make out a case under the Act and that the same are not frivolous/
motivated – Held: Directions encroach upon the field reserved for

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1127

the legislature and are against the concept of protective A
discrimination in favour of down-trodden classes u/Art.15(4) and
also impermissible within the parameters laid down by Supreme Court
for exercise of powers u/Art.142 – Impugned directions recalled –
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
B
Judicial Review – Scope of and issuance of guidelines –
Discussed.
Allowing the review petitions, the Court
HELD: 1.1 The provision of Section 18 of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, C
1989 cannot be said to be violative of Article 21. As the members
of the Scheduled Castes and Scheduled Tribes have suffered for
long; the protective discrimination has been envisaged under
Article 15 of the Constitution of India and the provisions of the
Act of 1989 to make them equals. All the offences under the D
Atrocities Act are cognizable. The impugned directions put the
riders on the right to arrest. As per the existing provisions, the
appointing authority has no power to grant or withhold sanction
to arrest concerning a public servant. SCs/STs are still making
the struggle for equality and for exercising civil rights in various
areas of the country. The members of the Scheduled Castes and E
Scheduled Tribes are still discriminated against. In spite of
reservation, the fruits of development have not reached to them,
by and large, they remain unequal and vulnerable section of the
society. The classes of Scheduled Castes and Scheduled Tribes
have been suffering ignominy and abuse, and they have been F
outcast socially for the centuries.[Paras 19, 37, 38 and 41] [1150-
B; 1167-B-C; 1168-D-E]
1.2 There is right to live with dignity and also right to die
with dignity. For violation of human rights under Article 21 grant
of compensation is one of the concomitants which has found G
statutory expression in the provisions of compensation, to be
paid in case an offence is committed under the provisions of the
Act of 1989. A good reputation is an element of personal security
and is protected by the Constitution equally with the right to the
enjoyment of life, liberty, and property. Therefore, it has been
H
1128 SUPREME COURT REPORTS [2019] 12 S.C.R.

A held to be an essential element of the right to life of a citizen
under Article 21. The provisions of the Act of 1989 are, in essence,
concomitants covering various facets of Article 21 of the
Constitution of India. 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
B
special provision for the advancement of any socially and
educationally backward classes of citizens or SCs and STs. Further
protection is conferred under Article 15(5) concerning their
admission to educational institutions, including private educational
institutions, whether aided or unaided by the State, other than
C the minority educational institutions. Historically disadvantageous
groups must be given special protection and help so that they
can be uplifted from their poverty and low social status. 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
D
would create inequality which is not permissible/envisaged
constitutionally. It would be an action to negate mandatory
constitutional provisions not supported by the constitutional
scheme; rather, it would be against the mandated constitutional
protection. It is not open to the legislature to put members of
E the Scheduled Castes and 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.
What legislature cannot do legitimately, cannot be done by the
interpretative process by the courts. The particular law, i.e., Act
of 1989, has been enacted and has also been amended in 2016 to
F
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.[Paras 45, 47 & 48] [1170-C-E, G;
1171-A-E]
G 1.3 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
H person is the cause. It is due to the human failing and not due to
UNION OF INDIA v. STATE OF MAHARASHTRA 1129

the caste factor. Caste is not attributable to such an act. On the A
other hand, members of the Scheduled Castes and Scheduled
Tribes due to backwardness hardly muster the courage to lodge
even a first information report, much less, a false one. In case it
is found to be false/unsubstantiated, it may be due to the faulty
investigation or for other various reasons including human failings
B
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. The data of National Crime Records Bureau, Ministry
of Home Affairs, has been pointed out on behalf of Union of India C
which indicates that more than 47,000 cases were registered in
the year 2016 under the Act of 1989. The number is alarming,
and it cannot be said that it is due to the outcome of the misuse of
the provisions of the Act. To treat SCs and STs as persons who
are prone to lodge false reports under the provisions of the
D
Scheduled Castes and Scheduled Tribes Act for taking revenge
or otherwise as monetary benefits made available to them in the
case of their being subjected to such offence, would be against
fundamental human equality. 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 E
promptly. It is an unfortunate state of affairs that the caste system
still prevails in the country and people remain in slums, more
particularly, under skyscrapers, and they serve the inhabitants
of such buildings. To treat such incumbents with a rider that a
report lodged by an SCs/STs category, would be registered only
F
after a preliminary investigation by Dy. S.P., whereas under Cr.PC
a complaint lodged relating to cognizable offence has to be
registered forthwith. It would mean a report by 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 G
discrimination meted out to the members of the Scheduled Castes
and Scheduled Tribes as envisaged under the Constitution in
Articles 15, 17 and 21 and would tantamount to treating them as
unequal, somewhat supportive action as per the mandate of
H
1130 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Constitution is required to make them equals. 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. The
guidelines in (iii) and (iv) appear to have been issued in view of
the provisions contained in Section 18 of the Act of 1989; whereas
adequate safeguards have been provided by a purposive
B
interpretation by this Court in the case of State of M.P. v. R.K.
Balothia. The consistent view of Supreme Court that if prima facie
case has not been made out attracting the provisions of SC/ST
Act of 1989, in that case, the bar created under section 18 on the
grant of anticipatory bail is not attracted. Thus, misuse of the
C provisions of the Act is intended to be taken care of by the decision
above. In Kartar Singh, a Constitution Bench of this Court laid
down that taking away the said right of anticipatory bail would not
amount to a violation of Article 21 of the Constitution of India.
Thus, prima facie it appears that in the case of misuse of provisions,
adequate safeguards are provided in the decision mentioned
D
above. That apart directions (iii) and (iv) issued may delay the
investigation of cases. As per the amendment made in the Rules
in the year 2016, a charge sheet has to be filed to enable timely
commencement of the prosecution. The directions issued are
likely to delay the timely scheme framed under the Act/Rules.
E [Paras 49-55] [1171-F-G; 1172-A-C, E-H; 1173-A-G]
In re: sanction of the appointing authority:
1.5 Concerning public servants, the provisions contained
in Section 197, Cr.PC provide protection by prohibiting
cognizance of the offence without the sanction of the appointing
F 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 in terms of Section 2(c) of Cr.PC is one for
G which police officer may arrest without warrant. In case any person
apprehends that he may be arrested, harassed and implicated
falsely, he can approach the High Court for quashing the FIR
under Section 482 as observed in State of Orissa v. Debendra Nath
Padhi. Permission of the appointing authority to arrest a public

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1131

servant is not at all statutorily envisaged; it is encroaching on a A
field which is reserved for the legislature. The direction amounts
to a mandate having legislative colour which is a field not
earmarked for the Courts. The direction is discriminatory and
would cause several legal complications.To decide whether an
accused is entitled to bail under Section 438 in case no prima
B
facie case is made out or under Section 439 is the function of the
Court. The direction of appointing authority not to arrest may
create conflict with the provisions of Act of 1989 and is without
statutory basis. [Paras 56-59] [1173-H; 1174-A-E; 1175-A-B]
1.6 By the guidelines issued, the anomalous situation may
crop up in several cases. In case the appointing authority forms a C
view that as there is no prima facie case the incumbent is not to
be arrested, several complications may arise. For the arrest of
an offender, may be 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 D
servant in the matter of arrest under the IPC and the Cr.PC as
such it would be discriminatory to impose such rider in the cases
under the Act of 1989. Only in the case of discharge of official
duties, some offence appears to have been committed, in that
case, sanction to prosecute may be required and not otherwise.
In case the act is outside the purview of the official discharge of E
duty, no such sanction is required. 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 F
be imposed in respect of the cases under the Act of 1989. It is
not the function of the appointing authority to intermeddle with a
criminal investigation. If at the threshold, approval of appointing
authority is made necessary for arrest, the very purpose of the
Act is likely to be frustrated. Various complications may arise.
[Paras 60-62] [1175-C-F; 1176-C] G

In ref: approval of arrest by the SSP in the case of a non-
public servant:

H
1132 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 1.7 Inter alia for the reasons as mentioned earlier, 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, which are legislative. When there is no
provision for anticipatory bail, obviously arrest has to be made.
B
Without doubting bona fides of any officer, it cannot be left at the
sweet discretion of the incumbent howsoever high. 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. [Para 63] [1176-D-F]
C Requiring the Magistrate to scrutinise the reasons for
permitting further detention:
1.8 The reasons so recorded have to be considered by the
Magistrate for permitting further detention. In case of approval
has not been granted, this exercise has not been undertaken.
D When the offence is registered under the Act of 1989, the law
should take its course. Even otherwise, the approval of arrest by
appointing authority/S.S.P. has not been approved, the direction
to record reasons and scrutiny by Magistrate consequently stands
nullified. In case a cognisable offence is made out, the FIR has to
E be outrightly registered, and no preliminary inquiry has to be
made as held in Lalita Kumari by a Constitution Bench. There is
no such provision in the Code of Criminal Procedure for
preliminary inquiry or under the SC/ST Act, as such direction is
impermissible. Moreover, it is ordered to be conducted by the
person of the rank of Dy. S.P. The number of Dy. S.P. as per stand
F of Union of India required for such an exercise of preliminary
inquiry is not available. 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 lodged by members of
G 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. Directions encroach upon the field
reserved for the legislature and against the concept of protective

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1133

discrimination in favour of down-trodden classes under Article A
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, direction Nos.(iii)
and (iv) issued by this Court are recalled and consequently it is
held that direction No.(v), also vanishes. [Paras 64-66] [1176-G-
B
H; 1177-A-F, H; 1178-A-B]
Lalita Kumari v. Government of U.P. (2014) 2 SCC 1:
[2013] 14 SCR 713 ; Kartar Singh v. State of Punjab
(1994) 3 SCC 569 : [1994] 2 SCR 375 ; Bachan Singh
v. the State of Punjab (1980) 2 SCC 684 ; Kesavananda
Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] C
Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC
1 : [2007] 1 SCR 706; Bhim Singh v. Union of India
(2010) 5 SCC 53 ; State of T.N v. State of Kerala (2014)
12 SCC 696 : [2014] 12 SCR 875 ; Khadak Singh v.
State of Himachal Pradesh AIR 1963 SC 1295 : D
[1964] SCR 332 ; Olga Tellis v. Bombay Corporation
AIR 1986 SC 180 : [1985] 2 Suppl. SCR 51 – followed.
National Campaign on Dalit Human Rights & Ors v.
Union of India & Ors. (2017) 2 SCC 432 : [2016] 9
SCR 122 ; State of M.P. v. Ram Krishna Balothia E
(1995) 3 SCC 221 : [1995] 1 SCR 897; Subramanian
Swamy & Ors. v. Raju (2014) 8 SCC 390 : [2014] 9
SCR 283 ; Asif Hameed & Ors. v. State of Jammu and
Kashmir & Ors. 1(989) 2 Suppl. SCC 364 : [1989] 3
SCR 19 ; Indian Drugs & Pharmaceuticals Ltd. v.
Workmen, Indian Drugs & Pharmaceuticals Ltd. F
(2007) 1 SCC 408 : [2006] 9 Suppl. SCR 73; Divisional
Manager, Aravali Golf Club v. Chander Hass (2008) 1
SCC 683 : [2007] 12 SCR 1084 ; Kuchchh Jal Sankat
Nivaran Samili & Ors. v. State of Gujarat & Anr.
(2013) 12 SCC 226 ; Hinch Lal Tiwari v. Kamla Devi G
(2001) 6 SC 496 : [2001] 1 Suppl.SCR 23 ; Francis
Coralie Mullin v. Union Territory Delhi, Administrator
AIR 1981 SC 746 : [1981] 2 SCR 516 ; People’s Union
for Civil Liberties v. Union of India (2005) 2 SCC
436 : [2005] 1 SCR 494; Umesh Kumar v. State of
H
1134 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Andhra Pradesh (2013) 10 SCC 591 : [2013] 14 SCR
213; Kishore Samrite v. State of Uttar Pradesh (2013)
2 SCC 398 : [2012] 9 SCR 733 ; Subramanian Swamy
v. Union of India (2016) 7 SCC 221 : [2016] 3 SCR
865 ; Kailas & Ors. v. State of Maharashtra (2011) 1
SCC 793 : [2011] 1 SCR 94 ; State of Orissa v.
B
Debendra Nath Padhi (2005) 1 SCC 568 : [2004] 6
Suppl. SCR 460 – relied on.
State of Haryana & Ors. v. Bhajan Lal & Ors. (1992) 1
Suppl. SCC 335 : [1990] 3 Suppl. SCR 259; Supreme
Court Bar Association v. Union of India (1998) 4 SCC
C 409 : [1998] 2 SCR 795 ; Prem Chand Garg v. Excise
Commr. AIR 1963 SC 996 : [1963] Suppl. SCR 885;
E.S.P. Rajaram v. Union of India (2001) 2 SCC 186:
[2001] 1 SCR 203; A.R. Antulay v. R.S. Nayak (1988)
2 SCC 602 ; Bonkya v. State of Maharashtra (1995) 6
D SCC 447:[1995] 4 Suppl. SCR 89; M.C. Mehta v.
Kamal Nath (2000) 6 SCC 213 : [2000] 1 Suppl. SCR
389 ; State of Punjab v. Rajesh Syal (2002) 8 SCC 158
: [2002] 3 Suppl. SCR 124; Textile Labour Association
v. Official Liquidator (2004) 9 SCC 741 : [2004] 3 SCR
1161 ; Laxmidas Morarji v. Behrose Darab Madan
E (2009) 10 SCC 425 : [2009] 14 SCR 777; Manish Goel
v. Rohini Goel (2010) 4 SCC 393 : [2010] 2 SCR
414 ; A.B. Bhaskara Rao v. CBI (2011) 10 SCC 259 :
[2011] 12 SCR 718 ; State of Punjab v. Rafiq Masih
(2014) 8 SCC 883 : [2014] 8 SCR 228; Vishakha v.
F State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl.
SCR 404; S.C. Chandra v. State of Jharkhand (2007)
8 SCC 279 : [2007] 9 SCR130 ; Dr. Subhash Kashinath
Mahajan v. State of Maharashtra (2018) 6 SCC 454 :
[2018] 4 SCR 877 – referred to.
G Stock v. Frank Jones (Tipton), 1978 (1) WLR 231
– referred to.
Salmond on Jurisprudence, 12 th Edition; Sweet &
Maxwell – referred to.

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1135

Case Law Reference A
[2016] 9 SCR 122 relied on Para 15
[2013] 14 SCR 713 followed Para 16
[1990] 3 Suppl. SCR 259 referred to Para 17
[1995] 1 SCR 897 relied on Para 18 B
[1994] 2 SCR 375 followed Para 19
[2014] 9 SCR 283 relied on Para 20
[1998] 2 SCR 795 referred to Para 21 (a)
C
[1963] Suppl. SCR 885 referred to Para 21 (b)
[2001] 1 SCR 203 referred to Para 21 (c)
(1988) 2 SCC 602 referred to Para 21 (d)
[1995] 4 Suppl. SCR 89 referred to Para 21(e)
D
[2000] 1 Suppl. SCR 389 referred to Para 21 (f)
[2002] 3 Suppl. SCR 124 referred to Para 21 (g)
[2004] 3 SCR 1161 referred to Para 21(h)
[2009] 14 SCR 777 referred to Para 21 (i)
E
[2010] 2 SCR 414 referred to Para 21 (j)
[2011] 12 SCR 718 referred to Para 21(k)
[2014] 8 SCR 228 referred to Para 21 (l)
[1997] 3 Suppl. SCR 404 referred to Para 22 F
(1980) 2 SCC 684 followed Para 24
[1989] 3 SCR 19 relied on Para 25
[2007] 9 SCR 130 referred to Para 25
[2006] 9 Suppl. SCR 73 relied on Para 26 G
[2007] 12 SCR 1084 relied on Para 27
(2013) 12 SCC 226 relied on Para 28
[2018] 4 SCR 877 referred to Para 29
H
1136 SUPREME COURT REPORTS [2019] 12 S.C.R.

A [1973] Suppl. SCR 1 followed Para 30
[2007] 1 SCR 706 followed Para 31
(2010) 5 SCC 53 followed Para 32
[2014] 12 SCR 875 followed Para 33
B [1964] SCR 332 followed Para 43
[2001] 1 Suppl. SCR 23 relied on Para 44
[1981] 2 SCR 516 relied on Para 44
[1985] 2 Suppl. SCR 51 followed Para 44
C
[2005] 1 SCR 494 relied on Para 44
[2013] 14 SCR 213 relied on Para 45
[2012] 9 SCR 733 relied on Para 45
[2016] 3 SCR 865 relied on Para 45
D
[2011] 1 SCR 94 relied on Para 47
[2004] 6 Suppl. SCR 460 relied on Para 57
INHERENT JURISDICTION: Review Petition (Criminal)
No. 228 of 2018 in Criminal Appeal No. 416 of 2018
E
From the Judgment and Order dated 20.03.2018 in Criminal Appeal
No. 416 of 2018
With
Review Petition (Crl.) No. 275 of 2018 in Criminal Appeal No.416
F of 2018.
K. K. Venugopal, AG, Tushar Mehta, ASG, R. Balasubramanian,
Mohan Parashran, Vikas Singh, Gopal Sankaranarayanan, Ashok Kumar
Sharma, Sr. Advs., Ankur Talwar, Ms. Shraddha Deshmukh, Raj Bahadur
Yadav, Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, Varun
G Sharma, Ms. Shashi Kiran, Satish Chandra, Arjun Sain, Ms. Pooja Dhar,
Ms. Gayatri Verma, Aishwarya Kane, Vishal Sinha, Parmanand Gaur,
Ms. Bandana Singh, Kshitij Mudgal, B. K. Gautam, Mrs. Anil Katiyar,
K.K.L. Gautam, A. K. Suman, P. S. Nerwal, Rahul Mohd., Bharat Ram,
Sanjeev Malhotra, K. Paari Vendhan, Nilesh Ukey, Sabarish
Subramanian, Prabu Ramasubramanian, Y. William Vinoth Kumar, Vishnu
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1137

Unnikrishnan, Ms. Disha Wadekar, Paras Nath Singh, Siddharth, Fuzail A
Ahmad Ayyubi, Rameshwar Prasad Goyal, Varinder Kumar Sharma,
Nachiketa Joshi, Prashant Bhushan, Shivendra Singh, Karuvaki Mohanty,
Dr. M.N. Verma, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar,
Sushil Karanjkar, K. N. Rai, Kumar Parimal, Smarhar Singh, Guntur
Prabhakar, Balraj Dewan, Avijit Bhattacharjee, Ms. Upma Shrivastava,
B
Ajoy Kumar Ghosh, Abhay Kant Mishra, P.V. Saravana Raja, G. Prakash,
Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Mohan
Kumar, Manoj Gorkela, Sandeep Kumar Singh, Ram Shrivastava,
Ms. Hemlata K., Sandeep Kumar Singh (for M/s. Gorkela Law Office),
Raj Kamal, Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad,
Kunal Yadav, Ms. Neena Shukla, Alok Shukla, Debasis Misra, D. Mahesh C
Babu, Dr. A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Ms. Richa
Singh, Ms. Pratima Rani, Sadashiv, Shekhar Kumar, Arup Banerjee,
M. Y. Deshmukh, Ms. Manjeet Kirpal, Dr. K. S. Chauhan, Ajit Kumar
Ekka, Ravi Prakash, Chand Kiran, S. P. Singh, Mahfooz A. Nazki, Polanki
Gowtham, Advs. for the appearing parties.
D
Applicant-in-person.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The Union of India has filed the instant petition for review of E
the judgment and order dated 20.3.2018 passed by this Court in Criminal
Appeal No.416 of 2018. This Court while dealing with the provisions of
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph
83 of the judgment, which are extracted hereunder:-
F
“83. Our conclusions are as follows:
i) Proceedings in the present case are clear abuse of process of
court and are quashed.
ii) There is no absolute bar against grant of anticipatory bail in
cases under the Atrocities Act if no prima facie case is made out G
or where on judicial scrutiny the complaint is found to be prima
facie mala fide. We approve the view taken and approach of the
Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T.
Desai (supra) and clarify the judgments of this Court in Balothia
(supra) and Manju Devi (supra);
H
1138 SUPREME COURT REPORTS [2019] 12 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 scrutinized by the Magistrate for permitting further
B
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 direction (iii) and (iv) will be actionable by way
of disciplinary action as well as contempt.
The above directions are prospective.”
2. This Court, while passing the judgment under review, has
D observed in paragraph 32 thus:
“32. This Court is not expected to adopt a passive or negative
role and remain bystander or a spectator if violation of rights is
observed. It is necessary to fashion new tools and strategies so
as to check injustice and violation of fundamental rights. No
E procedural technicality can stand in the way of enforcement of
fundamental rights1. There are enumerable decisions of this Court
where this approach has been adopted and directions issued with
a view to enforce fundamental rights which may sometimes be
perceived as legislative in nature. Such directions can certainly
F be issued and continued till an appropriate legislation is enacted2.
Role of this Court travels beyond merely dispute settling and
directions can certainly be issued which are not directly in conflict
with a valid statute3. Power to declare law carries with it, within
the limits of duty, to make law when none exists4 .
1
G Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13
2
Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey
v. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v.
State of T.N. (1996) 6 SCC 756
3
Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48
4
Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18
[Note: For convenience, the cases/citations in the extracts have been
H renumbered.]
UNION OF INDIA v. STATE OF MAHARASHTRA 1139
[ARUN MISHRA, J.]

3. Question has been raised by the Union of India that when the A
Court does not accept the legislative and specific provisions of law passed
by the legislature and only the legislature has the power to amend those
provisions if the Court finds provisions are not acceptable to it, it has to
be struck them down being violative of fundamental rights or in case of
deficiency to point out to the legislature to correct the same.
B
4. The Union of India has submitted that judgment and order dated
20.3.2018 entails wide ramification and it deserves to be reviewed by
this Court. It is also submitted that this Court has failed to take note of
aspects which would have a significant bearing on the present case.
5. It is submitted that the Act of 1989 had been enacted to C
remove the disparity of the Scheduled Castes and Scheduled Tribes who
remain vulnerable and denied their civil rights. The Statement of
Objects and Reasons of the Act of 1989, for which it had been enacted
is as under:
“Despite various measures to improve the socio-economic D
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. E

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 F
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 G
has been an increase in the disturbing trend of the commission of
certain atrocities like making the Scheduled Caste persons ear
inedible substances, like human excreta and attacks on and mass
killings of helpless Scheduled Castes and the Scheduled Tribes
and rape of women belonging to the Scheduled Castes and the
H
1140 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Scheduled Tribes. Under the circumstances, the existing laws
like the Protection of Civil Rights Act, 1955 and the normal
provisions of the Indian Penal Code have been found to be
inadequate to check these crimes. A special legislation to check
and deter crimes against them committed by non-Scheduled Castes
and non-Scheduled Tribes has, therefore, become necessary.”
B
The preamble to the Act of 1989 states as under:
“An Act to prevent the Commission of offences of atrocities against
the members of the Scheduled Castes and the Scheduled Tribes,
to provide for special courts for the trial of such offences and for
C the relief and rehabilitation of the victims of such offences and
for matters connected therewith or incidental thereto.”
Section 18 of the Act of 1989 has been enacted to take care of an
inherent deterrence and to instil a sense of protection amongst members
of Scheduled Castes and Scheduled Tribes. It is submitted that any
D dilution of the same would shake the very objective of the mechanism to
prevent the offences of atrocities. The directions issued would cause a
miscarriage of justice even in deserving cases. With a view to object
apprehended misuse of the law, no such direction can be issued. In case
there is no prima facie case made out under the Act of 1989,
anticipatory bail can be granted. The same was granted in the case in
E question also.
6. It is submitted that because of the continuing atrocities against
the members of the Scheduled Castes and Scheduled Tribes, a
commission of offences against them indicated an increase, even the
existing provisions were not considered sufficient to achieve the
F objective to deliver equal justice to the members of the Scheduled Castes
and the Scheduled Tribes. Hence, the Act of 1989 had been amended in
April 2015, enforced with effect from 26.01.2016.
7. It is further submitted that the amendments broadly related to
addition of several new offences/atrocities like tonsuring of
G head/moustache, or similar acts which are derogatory to the dignity of
the members of Scheduled Castes and Scheduled Tribes, garlanding with
footwear, denying access to irrigation facilities or forest rights, dispose
or carry human or animal carcasses, or to dig graves, using or permitting
manual scavenging, dedicating a Scheduled Caste or a Scheduled Tribe
woman as devadasi, abusing in caste name, perpetrating witchcraft
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1141
[ARUN MISHRA, J.]

atrocities, imposing social or economic boycott, preventing Scheduled A
Caste and Scheduled Tribe candidates from filing nomination to contest
elections, insulting a Scheduled Castes/ Scheduled Tribes woman by
removing her garments, forcing a member of Scheduled Caste/
Scheduled Tribe to leave house, village or residence, defiling objects
sacred to members of Scheduled Castes and Scheduled Tribes, touching
B
or using acts or gestures of a sexual nature against members of
Scheduled Castes and Scheduled Tribes and addition of certain IPC
offences like hurt, grievous hurt, intimidation, kidnapping etc., attracting
less than ten years of imprisonment committed against members of
Scheduled Castes and Scheduled Tribes as offences punishable under
the Act of 1989, beside rephrasing and expansion of some of the earlier C
offences.
8. It is submitted that the provisions have also been made for the
establishment of exclusive Special Courts and specification of Exclusive
Special Public Prosecutors to exclusively try the offences under the Act
of 1989 to enable expeditious disposal of cases, Special Courts and D
Exclusive Special Courts to take direct cognisance of offences and
completion of trial as far as possible within two months from the date of
filing of the charge sheet and addition of chapter on the “Rights of
Victims and Witnesses”.
9. It is also submitted on behalf of Union of India that as per the E
amendment Rules, 2016 the provisions have also been made with regard
to relief amount of 47 offences of atrocities to victims, rationalisation of
the phasing of payment of relief amount, enhancement of relief amount
between Rs.85,000/- to Rs.8,25,000/- depending upon the nature of the
offence, payment of admissible relief within seven days, on completion
of investigation and filing of charge sheet within sixty days to enable F
timely commencement of prosecution and periodic review of the scheme
for the rights and entitlements of victims and witnesses in accessing
justice by the State, District and Sub-Division Level Vigilance and
Monitoring Committees in their respective meetings.
10. It is submitted that this Court has failed to appreciate that low G
rate of conviction and high rate of acquittal under the Act of 1989,
related cases is attributable to several factors like delay in lodging the
FIR, witnesses, and complainants becoming hostile, absence of proper
scrutiny of the cases by the prosecution before filing the charge sheet in
the Court, lack of proper presentation of the case by the prosecution and H
1142 SUPREME COURT REPORTS [2019] 12 S.C.R.

A appreciation of evidence by the Court. There is long pendency of the
trial, which makes the witness to lose their interest and lack of
corroborative evidence. There are procedural delays in investigation
and filing of the charge sheet.
11. It is submitted that Rule 7(2) of Scheduled Castes and
B Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that
investigating officer to complete the investigation within 30 days.
Without immediate registration of FIR and arrest and by providing
anticipatory bail to the accused, Rule 7 is bound to be frustrated.
12. It is further submitted that the directions issued are legislative.
C It would devoid the object of the Act to remove the caste-based
sub-judication and discrimination. Such directions are impermissible to
be issued under Article 142 of the Constitution of India.
13. It is also submitted that offences of atrocities against the
members of Scheduled Castes and Scheduled Tribes have been
D disturbingly continuing and as per the data of National Crime Records
Bureau (NCRB), Ministry of Home Affairs, 47,338 number of cases
were registered in the country under the Act of 1989 in conjunction with
the Indian Penal Code during the year 2016. Further, only 24.5 % of the
said cases ended in conviction and 89.3% were pending in the courts at
the end of the year 2016. In the circumstances, it is not proper to dilute
E the provisions and make it easier for the accused to get away from
arrest by directing a preliminary enquiry, approval for an arrest.
14. Per contra, it is submitted that directions are proper because
of misuse of the legislative provisions of the Atrocities Act, and no case
for interference is made out in the review jurisdiction.
F
15. Before dealing with submission, we refer to the decisions. In
National Campaign on Dalit Human Rights & Ors v. Union of India
& Ors. (2017) 2 SCC 432, this Court has considered the report of
Justice K. Punnaiah Commission and the 6th Report of the National
Commission for Scheduled Castes/ Scheduled Tribes. The NHRC
G report also highlighted the non-registration of cases and various other
machinations resorted to by the police to discourage Dalits from
registering cases under the Act of 1989. In the said case this Court had
directed the strict implementation of the provisions of the
Act of 1989. The relevant portion of the decision mentioned above is
extracted hereunder:
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1143
[ARUN MISHRA, J.]

“18. We have carefully examined the material on record, and we A
are of the opinion that there has been a failure on the part of the
authorities concerned in complying with the provisions of the Act
and the Rules. The laudable object with which the Act had been
made is defeated by the indifferent attitude of the authorities. It is
true that the State Governments are responsible for carrying out
B
the provisions of the Act as contended by the counsel for the
Union of India. At the same time, the Central Government has an
important role to play in ensuring the compliance with the provisions
of the Act. Section 21(4) of the Act provides for a report on the
measures taken by the Central Government and State
Governments for the effective implementation of the Act to be C
placed before Parliament every year. The constitutional goal of
equality for all the citizens of this country can be achieved only
when the rights of the Scheduled Castes and Scheduled Tribes
are protected. The abundant material on record proves that the
authorities concerned are guilty of not enforcing the provisions of
D
the Act. The travails of the members of the Scheduled Castes
and the Scheduled Tribes continue unabated. We are satisfied
that the Central Government and the State Governments should
be directed to strictly enforce the provisions of the Act and we do
so. The National Commissions are also directed to discharge their
duties to protect the Scheduled Castes and Scheduled Tribes. ….” E
16. Reliance has been placed on Lalita Kumari v. Government
of U.P., (2014) 2 SCC 1, wherein a Constitution Bench of this Court has
observed as under:
“35. However, on the other hand, there are a number of cases
which exhibit that there are instances where the power of the F
police to register an FIR and initiate an investigation thereto are
misused where a cognizable offence is not made out from the
contents of the complaint. A significant case in this context is the
case of Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667
wherein this Court has expressed its anxiety over misuse of G
Section 498-A of the Penal Code, 1860 (in short “IPC”) with
respect to which a large number of frivolous reports were lodged.
This Court expressed its desire that the legislature must take into
consideration the informed public opinion and the pragmatic realities
to make necessary changes in law.
H
1144 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 36. The abovesaid judgment resulted in the 243rd Report of the
Law Commission of India submitted on 30-8-2012. The Law
Commission, in its report, concluded that though the offence under
Section 498-A could be made compoundable, however, the extent
of misuse was not established by empirical data, and, thus, could
not be a ground to denude the provision of its efficacy. The Law
B
Commission also observed that the law on the question whether
the registration of FIR could be postponed for a reasonable time
is in a state of uncertainty and can be crystallised only upon this
Court putting at rest the present controversy.”
***
C
99. In CBI v. Tapan Kumar Singh (2003) 6 SCC 175, it was held
as under: (SCC pp. 183-84, para 20)
“20. ……If he has reasons to suspect, on the basis of information
received, that a cognizable offence may have been committed, he
D is bound to record the information and conduct an investigation.
At this stage, it is also not necessary for him to satisfy himself
about the truthfulness of the information. It is only after a complete
investigation that he may be able to report on the truthfulness or
otherwise of the information. …..The true test is whether the
information furnished provides a reason to suspect the commission
E of an offence, which the police officer concerned is empowered
under Section 156 of the Code to investigate. If it does, he has no
option but to record the information and proceed to investigate
the case either himself or depute any other competent officer to
conduct the investigation…..”
F It is apparent from the decision in Lalita Kumari (supra) that
FIR has to be registered forthwith in case it relates to the commission of
the cognizable offence. There is no discretion on the Officer In-charge
of the Police Station for embarking upon a preliminary inquiry before
registration of FIR. Preliminary inquiry can only be held in a case where
G it has to be ascertained whether a cognizable offence has been committed
or not. If the information discloses the commission of a cognizable
offence, it is mandatory to register the FIR under Section 154 of Cr.PC,
and no preliminary inquiry is permissible in such a situation. This Court
in Lalita Kumar (supra) observed as under:

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1145
[ARUN MISHRA, J.]

“54. Therefore, the context in which the word “shall” appears in A
Section 154(1) of the Code, the object for which it has been used
and the consequences that will follow from the infringement of
the direction to register FIRs, all these factors clearly show that
the word “shall” used in Section 154(1) needs to be given its
ordinary meaning of being of “mandatory” character. The
B
provisions of Section 154(1) of the Code, read in the light of the
statutory scheme, do not admit of conferring any discretion on the
officer in charge of the police station for embarking upon a
preliminary inquiry prior to the registration of an FIR. It is settled
position of law that if the provision is unambiguous and the
legislative intent is clear, the court need not call into it any other C
rules of construction.”
Concerning the question of arrest, in Lalita Kumari (supra) this
Court has considered the safeguard in respect of arrest of an accused
person. This Court affirmed the principle that arrest cannot be made
routinely on the mere allegation of commission of an offence. The D
question arises as to justification to create a special dispensation applicable
only to complaints under the Atrocities Act because of safeguards
applicable generally.
17. In State of Haryana & Ors. v. Bhajan Lal & Ors., 1992
Supp (1) SCC 335, which has been relied upon in Lalita Kumari (supra), E
this Court has observed as under:
“31. At the stage of registration of a crime or a case on the basis
of the information disclosing a cognizable offence in compliance
with the mandate of Section 154(1) of the Code, the concerned
police officer cannot embark upon an enquiry as to whether the F
information, laid by the informant is reliable and genuine or
otherwise and refuse to register a case on the ground that the
information is not reliable or credible. On the other hand, the officer
in charge of a police station is statutorily obliged to register a case
and then to proceed with the investigation if he has reason to
suspect the commission of an offence which he is empowered G
under Section 156 of the Code to investigate, subject to the proviso
to Section 157. (As we have proposed to make a detailed
discussion about the power of a police officer in the field of
investigation of a cognizable offence within the ambit of Sections
H
1146 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 156 and 157 of the Code in the ensuing part of this judgment, we
do not propose to deal with those sections in extenso in the present
context.) In case, an officer in charge of a police station refuses
to exercise the jurisdiction vested in him and to register a case on
the information of a cognizable offence reported and thereby
violates the statutory duty cast upon him, the person aggrieved by
B
such refusal can send the substance of the information in writing
and by post to the Superintendent of Police concerned who if
satisfied that the information forwarded to him discloses a
cognizable offence, should either investigate the case himself or
direct an investigation to be made by any police officer subordinate
C to him in the manner provided by sub-section (3) of Section 154
of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature
in its collective wisdom has carefully and cautiously used the
expression “information” without qualifying the same as in Section
D 41(1)(a) or (g) of the Code wherein the expressions, “reasonable
complaint” and “credible information” are used. Evidently, the
non-qualification of the word “information” in Section 154(1) unlike
in Section 41(1)(a) and (g) of the Code may be for the reason
that the police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register
E a case thereon on the ground that he is not satisfied with the
reasonableness or credibility of the information. In other words,
‘reasonableness’ or ‘credibility’ of the said information is not a
condition precedent for registration of a case. A comparison of
the present Section 154 with those of the earlier Codes will indicate
F that the legislature had purposely thought it fit to employ only the
word “information” without qualifying the said word. Section 139
of the Code of Criminal Procedure of 1861 (Act 25 of 1861)
passed by the Legislative Council of India read that ‘every
complaint or information’ preferred to an officer in charge of a
police station should be reduced into writing which provision was
G subsequently modified by Section 112 of the Code of 1872 (Act
10 of 1872) which thereafter read that ‘every complaint’ preferred
to an officer in charge of a police station shall be reduced in writing.
The word ‘complaint’ which occurred in previous two Codes of
1861 and 1872 was deleted and in that place the word ‘information’
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1147
[ARUN MISHRA, J.]

was used in the Codes of 1882 and 1898 which word is now used A
in Sections 154, 155, 157 and 190(c) of the present Code of 1973
(Act 2 of 1974). An overall reading of all the Codes makes it
clear that the condition which is sine qua non for recording a first
information report is that there must be an information and that
information must disclose a cognizable offence.
B
33. It is, therefore, manifestly clear that if any information disclosing
a cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information.” C

The Court observed the conduct of an investigation into an offence
after the registration of FIR is a procedure established by law and
conforms with Article 21 of the Constitution. This Court has also
considered possible misuse of the provisions of the law in Lalita Kumari
(supra). D

18. On behalf of Union of India, the decision in State of M.P. v.
Ram Krishna Balothia (1995) 3 SCC 221 has been relied on, in which
this Court has upheld the validity of Section 18 of the Act of 1989 and
observed in background relating to the practice of untouchability and
the social attitude which lead to the commission of such offences against E
the Scheduled Castes/ Scheduled Tribes, there is justification of
apprehension that if benefit of anticipatory bail is made available to
persons who are alleged to have committed such offences, there is every
possibility of their misusing that liberty while on anticipatory bail to
terrorise their victims and to prevent a proper investigation. This Court F
in Ram Krishna Balothia’s (supra) has observed:
“6. It is undoubtedly true that Section 438 of the Code of Criminal
Procedure, which is available to an accused in respect of offences
under the Penal Code, is not available in respect of offences under
the said Act. But can this be considered as violative of Article 14? G
The offences enumerated under the said Act fall into a separate
and special class. Article 17 of the Constitution expressly deals
with the abolition of ‘untouchability’ and forbids its practice in any
form. It also provides that enforcement of any disability arising
out of ‘untouchability’ shall be an offence punishable under the
H
1148 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
Procedure in connection with offences under the Act has to be
B
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
C 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
D
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,
E 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
untouchability against them or demand statutory minimum
F 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
G even the Government allotted land by the Scheduled Castes,
and Scheduled Tribes is resented, and more often these people
become victims of attacks by the vested interests. Of late, there
has been an increase in the disturbing trend of commission of
certain atrocities like making the Scheduled Caste persons eat
inedible substances like human excreta and attacks on and mass
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1149
[ARUN MISHRA, J.]

killings of helpless Scheduled Castes and Scheduled Tribes and A
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 B
which motivated the said legislation. It is pointed out in the above
Statement of Objects and Reasons that when members of the
Scheduled Castes and Scheduled Tribes assert their rights and
demand statutory protection, vested interests try to cow them down
and terrorise them. In these circumstances, if anticipatory bail is
not made available to persons who commit such offences, such a C
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.
9. Of course, the offences enumerated under the present case
are very different from those under the Terrorist and Disruptive D
Activities (Prevention) Act, 1987. However, looking to the
historical background relating to the practice of “Untouchability”
and the social attitudes which lead to the commission of such
offences against Scheduled Castes and Scheduled Tribes, there
is justification of an apprehension that if the benefit of the E
anticipatory bail is made available to the persons who are alleged
to have committed such offences, there is every likelihood of their
misusing their liberty while on anticipatory bail to terrorise their
victims and to prevent a proper investigation. It is in this context
that Section 18 has been incorporated in the said Act. It cannot
be considered as in any manner violative of Article 21. F

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
Section 3 are offences which, to say the least, denigrate members G
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 H
1150 SUPREME COURT REPORTS [2019] 12 S.C.R.

A class and cannot be compared with offences under the Penal
Code.”
19. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, this
Court has observed that denial of the right of anticipatory bail under
section 438 would not amount to a violation of Article 21 of the Constitution
B of India. Thus, the provision of section 18 cannot be said to be violative
of Article 21. Article 17 of the Constitution abolishes untouchability.
20. In Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390,
it is observed that where statutory provisions are clear and unambiguous,
it cannot be read down and has observed that the statistics are to be
C considered by a legislature. The Court must take care not to express
any opinions on sufficiency or adequacy of such figures and should
confine their scrutiny to legality not a necessity of law. This Court
observed:
“67. Before parting, we would like to observe that elaborate
D statistics have been laid before us to show the extent of serious
crimes committed by juveniles and the increase in the rate of
such crimes, of late. We refuse to be tempted to enter into the
said arena, which is primarily for the legislature to consider. Courts
must take care not to express opinions on the sufficiency or
adequacy of such figures and should confine its scrutiny to the
E legality and not the necessity of the law to be made or continued.
We would be justified to recall the observations of Justice Krishna
Iyer in Murthy Match Works (1974) 4 SCC 428, as the present
issues seem to be adequately taken care of by the same: (SCC p.
437, paras 13-15)
F “13. Right at the threshold, we must warn ourselves of the
limitations of judicial power in this jurisdiction. Mr. Justice Stone
of the Supreme Court of the United States has delineated these
limitations in United States v. Butler: 80L Ed 477: 297 US 1
(1936) thus: (L.Ed p. 495)
G “The power of Courts to declare a statute unconstitutional is
subject to two guiding principles of decision which ought never
to be absent from judicial consciousness. One is that Courts
are concerned only with the power to enact statutes, not with
their wisdom. The other is that while unconstitutional exercise
of power by the executive and legislative branches of the
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1151
[ARUN MISHRA, J.]

Government is subject to judicial restraint, the only check A
upon our exercise of power is our own sense of self-restraint.
For the removal of unwise laws from the statute books appeal
lies not to the Courts but to the ballot and to the processes of
democratic Government.”
14. In short, unconstitutionality and not unwisdom of a legislation B
is the narrow area of judicial review. In the present case,
unconstitutionality is alleged as springing from lugging together
two dissimilar categories of match manufacturers into one
compartment for like treatment.
15. Certain principles which bear upon classification may be C
mentioned here. It is true that a State may classify persons and
objects for the purpose of legislation and pass laws for the purpose
of obtaining revenue or other objects. Every differentiation is not
a discrimination. But classification can be sustained only if it is
founded on pertinent and real differences as distinguished from
irrelevant and artificial ones. The constitutional standard by D
which the sufficiency of the differentia which form a valid
basis for classification may be measured has been repeatedly
stated by the courts. If it rests on a difference which bears a
fair and just relation to the object for which it is proposed, it
is constitutional. To put it differently, the means must have nexus E
with the ends. Even so, a large latitude is allowed to the State for
classification upon a reasonable basis and what is reasonable is a
question of practical details and a variety of factors which the
Court will be reluctant and perhaps ill-equipped to investigate. In
this imperfect world perfection even in grouping is an ambition
hardly ever accomplished. In this context, we have to remember F
the relationship between the legislative and judicial departments
of Government in the determination of the validity of classification.
Of course, in the last analysis courts possess the power to
pronounce on the constitutionality of the acts of the other branches
whether a classification is based upon substantial differences or G
is arbitrary, fanciful and consequently illegal. At the same time,
the question of classification is primarily for legislative judgment,
and ordinarily does not become a judicial question. A power to
classify being extremely broad and based on diverse
considerations of executive pragmatism, the judicature cannot
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1152 SUPREME COURT REPORTS [2019] 12 S.C.R.

A rush in where even the legislature warily treads. All these
operational restraints on judicial power must weigh more
emphatically where the subject is taxation.”
(emphasis supplied)
It was observed in Subramanian Swamy (supra) that where
B statutory provisions are clear and unambiguous, it cannot be read down.
It would not be possible to carry out directions of this Court as number
of Dy. S.P. Level Officers is not sufficient to make compliance of the
directions.
21. Concerning the exercise of powers under Article 142 of
C Constitution of India, learned Attorney General has submitted that such
power could not have been exercised against the spirit of statutory
provisions and to nullify them and field reserved for the legislature as
there was no vacuum. He has referred to the following decisions:
(a) In Supreme Court Bar Association v. Union of India, (1998)
D 4 SCC
409, this Court has observed as under:
“47. …..It, however, needs to be remembered that the powers
conferred on the Court by Article 142 being curative in nature
cannot be construed as powers which authorise the Court to ignore
E
the substantive rights of a litigant while dealing with a cause
pending before it. This power cannot be used to “supplant”
substantive law applicable to the case or cause under consideration
of the Court. Article 142, even with the width of its amplitude,
cannot be used to build a new edifice where none existed earlier,
F by ignoring express statutory provisions dealing with a subject
and thereby to achieve something indirectly which cannot be
achieved directly. …..
48. …..Indeed, these constitutional powers cannot, in any way,
be controlled by any statutory provisions but at the same time
G these powers are not meant to be exercised when their exercise
may come directly in conflict with what has been expressly
provided for in a statute dealing expressly with the subject.”
(b) In Prem Chand Garg v. Excise Commr., AIR 1963 SC 996,
the Court observed that it has no power to circumscribe fundamental
H rights guaranteed under Article 32 of Constitution of India.
UNION OF INDIA v. STATE OF MAHARASHTRA 1153
[ARUN MISHRA, J.]

(c) In E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, the A
Court observed that the Supreme Court under Article 142 of the
Constitution could not altogether disregard the substantive provisions of
a statute and pass orders concerning an issue, which can be settled only
through a mechanism prescribed in another statute.
(d) In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, it has been B
observed that though the language of article 142 is comprehensive and
plenary, the directions given by the court should not be inconsistent with,
repugnant to or in violation of the specific provisions of any statute.
(e) In Bonkya v. State of Maharashtra, (1995) 6 SCC 447, the
Court has held that the Court exercises jurisdiction under Article 142 of C
the Constitution intending to do justice between the parties, but not in
disregard of the relevant statutory provisions.
(f) In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, this Court
has observed that Article 142, even with the width of its amplitude, cannot
be used to build a new edifice where none existed earlier, by ignoring D
express statutory provisions dealing with a subject and thereby achieve
something indirectly which cannot be achieved directly.
(g) In State of Punjab v. Rajesh Syal, (2002) 8 SCC 158, the
Court held that even in exercising power under Article 142(1), it is more
than doubtful that an order can be passed contrary to law. E
(h) In Textile Labour Association v. Official Liquidator, (2004)
9 SCC 741, observation has been made that power under Article 142 is
only a residuary power, supplementary and complementary to the powers
expressly conferred on this Court by statutes, exercisable to do complete
justice between the parties wherever it is just and equitable to do so. It is F
intended to prevent any obstruction to the stream of justice.
(i) In Laxmidas Morarji v. Behrose Darab Madan, (2009) 10
SCC 425, it was observed that the Supreme Court would not pass any
order under Article 142 of the Constitution which would amount to
supplanting substantive law applicable or ignoring express statutory
G
provisions dealing with the subject, at the same time these constitutional
powers cannot in any way, be controlled by any statutory provisions.
(j) In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, it was
observed that the courts are meant to enforce the rule of law and not to
pass the orders or directions which are contrary to what has been injected
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1154 SUPREME COURT REPORTS [2019] 12 S.C.R.

A by law. The power under Article 142 not to be exercised in a case where
there is no basis in law which can form an edifice for building up a
superstructure.
(k) In A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259, it was
held that the power under Article 142 is not restricted by statutory
B provisions. It cannot be exercised based on sympathy and in conflict
with the statute.
(l) In State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, this
Court held that Article 142 is supplementary and it cannot supplant the
substantive provisions. It is a power which gives preference to equity
C over the law. The relevant portion is extracted hereunder:
“12. Article 142 of the Constitution of India is supplementary in
nature and cannot supplant the substantive provisions, though they
are not limited by the substantive provisions in the statute. It is a
power that gives preference to equity over law. It is a justice-
D oriented approach as against the strict rigours of the law. The
directions issued by the Court can normally be categorised into
one, in the nature of moulding of relief and the other, as the
declaration of law. “Declaration of law” as contemplated in Article
141 of the Constitution: is the speech express or necessarily implied
by the highest court of the land…..This Court on the qui vive has
E expanded the horizons of Article 142 of the Constitution by keeping
it outside the purview of Article 141 of the Constitution and by
declaring it a direction of the Court that changes its complexion
with the peculiarity in the facts and circumstances of the case.”
(emphasis supplied)
F
22. It is submitted that there was no legislative vacuum calling for
the exercise of power under Article 142 of the Constitution of India and
hence the reliance on Vishakha v. State of Rajasthan, (1997) 6 SCC
241 is misplaced. On the contrary, the matter was covered by the statute;
namely, Section 18 of the said Atrocities Act read with Section 41 of
G Cr.PC.
23. We now propose to examine the law concerning field reserved
for the legislature and extant of judicial interference in the field reserved
for the legislature. The difference between the common law and statute
law has been brought out in the following passage in the book, Salmond
H on Jurisprudence, 12th Edition; Sweet & Maxwell:
UNION OF INDIA v. STATE OF MAHARASHTRA 1155
[ARUN MISHRA, J.]

“In the strict sense, however, legislation is the laying down of A
legal rules by a sovereign or subordinate legislator. Here we must
distinguish law-making by legislators from law-making by the
courts. Legislators can lay down rules purely for the future and
without reference to any actual dispute; the courts, in so far as
they create law, can do so only in application to the cases before
B
them and only in so far as is necessary for their solution. Judicial
law-making is incidental to the solving of legal disputes; legislative
law-making is the central function of the legislator.”
24. In various decisions, this Court has dealt with the scope of
judicial review and issuance of guidelines. The directions mentioned
above touch the realm of policy. In Bachan Singh v. the State of C
Punjab, (1980) 2 SCC 684, the Court has laid down and recognised the
judicial review thus:
“67. Behind the view that there is a presumption of
constitutionality of a statute and the onus to rebut the same lies on
those who challenge the legislation, is the rationale of judicial D
restraint, a recognition of the limits of judicial review, a respect
for the boundaries of legislative and judicial functions, and the
judicial responsibility to guard the trespass from one side or the
other. The primary function of the courts is to interpret and apply
the laws according to the will of those who made them and not to E
transgress into the legislative domain of policy-making. “The job
of a Judge is judging and not law-making.” In Lord Devlin’s words:
“Judges are the keepers of the law, and the keepers of these
boundaries cannot, also, be among outriders.”
(emphasis supplied) F
It has been observed that the Court should not transgress into the
legislative domain of policymaking.
25. In Asif Hameed & Ors. v. State of Jammu and Kashmir &
Ors., 1989 Supp. (2) SCC 364, this Court has observed that it is not for
the Court to pronounce policy. It cannot lay down what is wise or politic. G
Self-restraint is the essence of the judicial oath. The Court observed:
“17. Before adverting to the controversy directly involved in these
appeals, we may have a fresh look on the inter se functioning of
the three organs of democracy under our Constitution. Although
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1156 SUPREME COURT REPORTS [2019] 12 S.C.R.

A the doctrine of separation of powers has not been recognised
under the Constitution in its absolute rigidity but the Constitution
makers have meticulously defined the functions of various organs
of the State. Legislature, executive and judiciary have to function
within their own spheres demarcated under the Constitution. No
organ can usurp the functions assigned to another. The Constitution
B
trusts to the judgment of these organs to function and exercise
their discretion by strictly following the procedure prescribed
therein. The functioning of democracy depends upon the strength
and independence of each of its organs. Legislature and executive,
the two facets of people’s will, they have all the powers, including
C that of finance. Judiciary has no power over sword or the purse;
nonetheless, it has power to ensure that the aforesaid two main
organs of State function within the constitutional limits. It is the
sentinel of democracy. Judicial review is a powerful weapon to
restrain unconstitutional exercise of power by the legislature and
executive. The expanding horizon of judicial review has taken in
D
its fold the concept of social and economic justice. While exercise
of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of power is the self-
imposed discipline of judicial restraint.
18. Frankfurter, J. of the U.S. Supreme Court dissenting in the
E controversial expatriation case of Trop v. Dulles, 356 US 96
observed as under:
“All power is, in Madison’s phrase, “of an encroaching nature.”
Judicial power is not immune against this human weakness. It
also must be on guard against encroaching beyond its proper
F bounds, and not the less so since the only restraint upon it is
self-restraint...
Rigorous observance of the difference between limits of power
and wise exercise of power — between questions of authority
and questions of prudence — requires the most alert
G appreciation of this decisive but subtle relationship of two
concepts that too easily coalesce. No less does it require a
disciplined will to adhere to the difference. It is not easy to
stand aloof and allow want of wisdom to prevail to disregard
one’s own strongly held view of what is wise in the conduct of
H affairs. But it is not the business of this Court to pronounce
UNION OF INDIA v. STATE OF MAHARASHTRA 1157
[ARUN MISHRA, J.]

policy. It must observe a fastidious regard for limitations on its A
own power, and this precludes the court’s giving effect to its
own notions of what is wise or politic. That self-restraint is of
the essence in the observance of the judicial oath, for the
Constitution has not authorized the judges to sit in judgment on
the wisdom of what Congress and the executive branch do.”
B
(emphasis supplied)
The Court held that it could not affect its notions of what is wise
or politic. It is for the legislature to consider data and decide such aspects.
The law laid down in Asif Hameed v. State of Jammu and Kashmir
(supra) has been reiterated by this Court in S.C. Chandra v. State of C
Jharkhand, (2007) 8 SCC 279.
26. In Indian Drugs & Pharmaceuticals Ltd. v. Workmen,
Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Court
observed thus:
“40. The courts must, therefore, exercise judicial restraint, and D
not encroach into the executive or legislative domain. Orders for
creation of posts, appointment on these posts, regularisation, fixing
pay scales, continuation in service, promotions, etc. are all executive
or legislative functions, and it is highly improper for Judges to step
into this sphere, except in a rare and exceptional case. The relevant E
case-law and philosophy of judicial restraint has been laid down
by the Madras High Court in great detail in Rama
Muthuramalingam v. Dy. Supdt. of Police, AIR 2005 Mad 1
and we fully agree with the views expressed therein.”
27. In Divisional Manager, Aravali Golf Club v. Chander Hass, F
(2008) 1 SCC 683, this Court held as under:
“18. Judges must` exercise judicial restraint and must not encroach
into the executive or legislative domain, vide Indian Drugs &
Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408 and S.C.
Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurring
G
judgment of M. Katju, J.).
19. Under our Constitution, the legislature, the executive and the
judiciary all have their own broad spheres of operation. Ordinarily,
it is not proper for any of these three organs of the State to
encroach upon the domain of another, otherwise the delicate
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1158 SUPREME COURT REPORTS [2019] 12 S.C.R.

A balance in the Constitution will be upset, and there will be a
reaction.”
28. In Kuchchh Jal Sankat Nivaran Samili & Ors. v. State of
Gujarat & Anr., (2013) 12 SCC 226, it has been observed that Court
should not encroach upon the legislative domain. It cannot term a
B particular policy as fairer than the other. The Court observed:

“12. We have given our most anxious consideration to the rival
submissions, and we find substance in the submission of Mr. Divan.
We are conscious of the fact that there is wide separation of
C powers between the different limbs of the State and, therefore, it
is expected of this Court to exercise judicial restraint and not
encroach upon the executive or legislative domain. What the
appellants in substance are asking this Court to do is to conduct a
comparative study and hold that the policy of distribution of water
D is bad. We are afraid; we do not have the expertise or wisdom to
analyse the same. It entails intricate economic choices and though
this Court tends to believe that it is expert of experts, but this
principle has inherent limitation. True it is that the Court is entitled
to analyse the legal validity of the different means of distribution
but it cannot and will not term a particular policy as fairer than the
E other. We are of the opinion that the matters affecting the policy
and requiring technical expertise be better left to the decision of
those who are entrusted and qualified to address the same. This
Court shall step in only when it finds that the policy is inconsistent
with the constitutional laws or is arbitrary or irrational.”
F (emphasis supplied)
29. In Dr. Subhash Kashinath Mahajan v. State of
Maharashtra, (2018) 6 SCC 454, this Court held that no directions
could be issued which are directly in conflict with the statute.
30. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
G
225, this Court has observed as under:
292. The learned Attorney-General said that every provision of
the Constitution is essential; otherwise, it would not have been put
in the Constitution. This is true. But this does not place every
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1159
[ARUN MISHRA, J.]

provision of the Constitution in the same position. The true position A
is that every provision of the Constitution can be amended provided
in the result the basic foundation and structure of the constitution
remains the same. The basic structure may be said to consist of
the following features:
(1) Supremacy of the Constitution; B
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the
executive and the judiciary; C
(5) Federal character of the Constitution.
31. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, the following
observations have been made:
“129. Further, the Court in Kesavananda case not only held that
D
Article 31-B is not controlled by Article 31-A but also specifically
upheld the Twenty-ninth Constitution Amendment whereby certain
Kerala Land Reform Acts were included in the Ninth Schedule
after those Acts had been struck down by the Supreme Court in
Kunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364. The
only logical basis for upholding the Twenty-ninth Amendment is E
that the Court was of the opinion that the mechanism of Article
31-B, by itself, is valid, though each time Parliament in exercise
of its constituent power added a law in the Ninth Schedule, such
exercise would have to be tested on the touchstone of the basic
structure test. [See Shelat & Grover, JJ., paras 607 & 608(7);
F
Hegde & Mukherjea, JJ., paras 738-43, 744(8); Ray, J., paras
1055-60, 1064; Jaganmohan Reddy, J., para 1212(4); Palekar, J.,
para 1333(3); Khanna, J., paras 1522, 1536, 1537(xv); Mathew,
J., para 1782; Beg, J., paras 1857(6); Dwivedi, J., para 1994,
1995(4) and Chandrachud, J., paras 2136-41 and 2142(10).]
130. As pointed out, it is a fallacy to regard that Article 31-B read G
with the Ninth Schedule excludes judicial review in the matter of
violation of fundamental rights. The effect of Article 31-B is to
remove a fetter on the power of Parliament to pass a law in
violation of fundamental rights. On account of Article 31-B, cause
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1160 SUPREME COURT REPORTS [2019] 12 S.C.R.

A of action for violation of fundamental right is not available because
the fetter placed by Part III on legislative power is removed and
is non-existent. Non-availability of cause of action based on breach
of fundamental right cannot be regarded as exclusion or ouster of
judicial review. As a result of the operation of Article 31-B read
with the Ninth Schedule, occasion for exercise of judicial review
B
does not arise. But there is no question of exclusion or ouster of
judicial review. The two concepts are different.”
32. In Bhim Singh v. Union of India, (2010) 5 SCC 538, it was
held as under:
C “77. Another contention raised by the petitioners is that the Scheme
violates the principle of separation of powers under the
Constitution. The concept of separation of powers, even though
not found in any particular constitutional provision, is inherent in
the polity the Constitution has adopted. The aim of separation of
powers is to achieve the maximum extent of accountability of
D each branch of the Government.
78. While understanding this concept, two aspects must be borne
in mind. One, that separation of powers is an essential feature of
the Constitution. Two that in modern governance, a strict separation
is neither possible, nor desirable. Nevertheless, till this principle of
E accountability is preserved, there is no violation of separation of
powers. We arrive at the same conclusion when we assess the
position within the constitutional text. The Constitution does not
prohibit overlap of functions, but in fact, provides for some overlap
as a parliamentary democracy. But what it prohibits is such exercise
F of function of the other branch which results in wresting away of
the regime of constitutional accountability.
***
85. Again, in the Constitution Bench judgment in A.K. Roy v. Union
of India Chandrachud, C.J. speaking for the majority held at p.
G 295, para 23 that: “our Constitution does not follow the American
pattern of a strict separation of powers.”
86. This Court has previously held that the taking away of the
judicial function through legislation would be violative of separation
of powers. As Chandrachud, J. noted in Indira Nehru Gandhi v.
H Raj Narain, 1975 Supp SCC 1: (SCC p. 261, para 689)
UNION OF INDIA v. STATE OF MAHARASHTRA 1161
[ARUN MISHRA, J.]

“689. … the exercise by the legislature of what is purely and A
indubitably a judicial function is impossible to sustain in the
context even of our cooperative federalism which contains no
rigid distribution of powers but which provides a system of
salutary checks and balances.”
B
This is because such legislation upsets the balance between the
various organs of the State thus harming the system of
accountability in the Constitution.
87. Thus, the test for the violation of separation of powers must
be precisely this. A law would be violative of separation of powers C
not if it results in some overlap of functions of different branches
of the State, but if it takes over an essential function of the other
branch leading to lapse in constitutional accountability. It is through
this test that we must analyse the present Scheme.”
33. In State of T.N. v. State of Kerala, (2014) 12 SCC 696, it D
was observed as under:
“126. On deep reflection of the above discussion, in our opinion,
the constitutional principles in the context of Indian Constitution
relating to separation of powers between the legislature, executive
and judiciary may, in brief, be summarised thus: E
126.1. Even without express provision of the separation of powers,
the doctrine of separation of powers is an entrenched principle in
the Constitution of India. The doctrine of separation of powers
informs the Indian constitutional structure and it is an essential
constituent of rule of law. In other words, the doctrine of separation F
of power though not expressly engrafted in the Constitution, its
sweep, operation, and visibility are apparent from the scheme of
Indian Constitution. Constitution has made demarcation, without
drawing formal lines between the three organs—legislature,
executive and judiciary. In that sense, even in the absence of
G
express provision for separation of powers, the separation of
powers between the legislature, executive and judiciary is not
different from the Constitutions of the countries which contain
express provision for separation of powers.

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1162 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 126.2. Independence of courts from the executive and legislature
is fundamental to the rule of law and one of the basic tenets of
Indian Constitution. Separation of judicial power is a significant
constitutional principle under the Constitution of India.
126.3. Separation of powers between three organs—the
B legislature, executive and judiciary—is also nothing but a
consequence of principles of equality enshrined in Article 14 of
the Constitution of India. Accordingly, breach of separation of
judicial power may amount to negation of equality under Article
14. Stated thus, a legislation can be invalidated on the basis of
breach of the separation of powers since such breach is negation
C of equality under Article 14 of the Constitution.
126.4. The superior judiciary (High Courts and Supreme Court) is
empowered by the Constitution to declare a law made by the
legislature (Parliament and State Legislatures) void if it is found
to have transgressed the constitutional limitations or if it infringed
D the rights enshrined in Part III of the Constitution.
126.5. The doctrine of separation of powers applies to the final
judgments of the courts. The legislature cannot declare any
decision of a court of law to be void or of no effect. It can, however,
pass an amending Act to remedy the defects pointed out by a
E court of law or on coming to know of it aliunde. In other words, a
court’s decision must always bind unless the conditions on which
it is based are so fundamentally altered that the decision could not
have been given in the altered circumstances.
126.6. If the legislature has the power over the subject-matter
F and competence to make a validating law, it can at any time make
such a validating law and make it retrospective. The validity of a
validating law, therefore, depends upon whether the legislature
possesses the competence which it claims over the subject-matter
and whether in making the validation law it removes the defect
G which the courts had found in the existing law.
126.7. The law enacted by the legislature may apparently seem
to be within its competence but yet in substance if it is shown as
an attempt to interfere with the judicial process, such law may be
invalidated being in breach of doctrine of separation of powers.
In such situation, the legal effect of the law on a judgment or a
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1163
[ARUN MISHRA, J.]

judicial proceeding must be examined closely, having regard to A
legislative prescription or direction. The questions to be asked
are:
(i) Does the legislative prescription or legislative direction
interfere with the judicial functions?
(ii) Is the legislation targeted at the decided case or whether B
impugned law requires its application to a case already finally
decided?
(iii) What are the terms of law; the issues with which it deals
and the nature of the judgment that has attained finality?
C
If the answer to Questions (i) and (ii) is in the affirmative and the
consideration of aspects noted in Question (iii) sufficiently
establishes that the impugned law interferes with the judicial
functions, the Court may declare the law unconstitutional.”
34. The House of Lords in Stock v. Frank Jones (Tipton), 1978 D
(1) WLR 231 with respect to interpretation of the legislative provisions
has observed thus:
“It is idle to debate whether, in so acting, the court is making law.
As has been cogently observed, it depends on what you mean by
“make” and “law” in this context. What is incontestible is that
E
the court is a mediating influence between the executive and the
legislature, on the one hand, and the citizen on the other.
Nevertheless, it is essential to the proper judicial function in the
constitution to bear in mind:
(1) modern legislation is a difficult and complicated process, in F
which, even before a bill is introduced in a House of Parliament,
successive drafts are considered and their possible repercussions
on all envisageable situations are weighed by people bringing to
bear a very wide range of experience: the judge cannot match
such experience or envisage all such repercussions, either by
training or by specific forensic aid; G

(2) the bill is liable to be modified in a Parliament dominated by a
House of Commons whose members are answerable to the citizens
who will be affected by the legislation: an English judge is not so
answerable;
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1164 SUPREME COURT REPORTS [2019] 12 S.C.R.

A (3) in a society living under the rule of law citizens are entitled to
regulate their conduct according to what a statute has said, rather
than by what it was meant to say or by what it would have
otherwise said if a newly considered situation had been envisaged;
(4) a stark contradistinction between the letter and the spirit of
B the law may be very well in the sphere of ethics, but in the forensic
process St. John is a safer guide than St. Paul, the logos being the
informing spirit; and it should be left to peoples’ courts in totalitarian
regimes to stretch the law to meet the forensic situation in response
to a gut reaction;
C (5) Parliament may well be prepared to tolerate some anomaly in
the interest of an overriding objective;
(6) what strikes the lawyer as an injustice may well have seemed
to the legislature as no more than the correction of a now
unjustifiable privilege or a particular misfortune necessarily or
D acceptably involved in the vindication of some supervening general
social benefit;
(7) the parliamentary draftsmen knows what objective the
legislative promoter wishes to attain, and he will normally and
desirably try to achieve that objective by using language of the
E appropriate register in its natural, ordinary and primary sense to
reject such an approach on the grounds that it gives rise to an
anomaly is liable to encourage complication and anfractuosity in
drafting;
(8) Parliament is nowadays in continuous session so that an
F unlooked-for and unsupportable injustice or anomaly can be readily
rectified by legislation: this is far preferable to judicial contortion
of the law to meet apparently hard cases with the result that
ordinary citizens and their advisers hardly know where they stand.
All this is not to advocate judicial supineness: it is merely respectfully
to commend a self-knowledge of judicial limitations, both personal
G
and constitution…..”
35. A lecture delivered by Mr. Justice M.N. Venkatachaliah, former
Chief Justice of India, at the Constitution Day on 26.2.2016 in this Court,
has been relied upon in the context of judicial determination of policy.
Following observations have been relied upon:
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1165
[ARUN MISHRA, J.]

“The proposition that “when there is no law the executive must A
step-in and when the executive also does not act the judiciary
should do so” is an attractive invitations: but it is more attractive
than constitutionally sound. Executive power is of course
coextensive with legislative power. A field un-occupied by law is
open to the executive. But there is no warrant that by virtue of
B
those provisions the courts can come in and legislate. The
argument that the larger power of the court to decide and
pronounce upon the validity of law includes the power to frame
schemes and issue directions in the nature of legislation may
equally be open to question.
This is typically the converse case of Bills of attainder; Legislative C
determination of disputes/rights has been held to be illegal and
impressible. Ameerunnisa, Ram Prasad Narayan Sahi and Indira
Gandhi are some of the telling cases. By the same logic and
converse reasoning, judicial legislation which is judicial
determination of policy and law is difficult to be justified D
jurisprudentially. It is one of the basic constitutional principles
that just as courts are not constitutionally competent to legislate
under the guise of interpretation so also neither Parliament nor
State Legislatures can perform an essentially judicial function.
None of the three constitutionally assigned spheres or orbits of
authority can encroach upon the other. This is the logical meaning E
of the supremacy of the Constitution.
Lord Devlin’s comment comes to mind; ‘The British have no more
wish to be governed by the judges than they wish to be judged by
their admirations’.
F
This is not to deny the need and the desirability of such measures.
The question is one of legitimacy and propriety, Robert Bork’s profound
statement comes to mind:
“.. the desire to do justice whose nature seems obvious is
compelling, while the concept of constitutional process is abstract, G
rather arid, and the abstinence it counsels unsatisfying. To give in
to temptation, this one time, solves an urgent human problem, and
a faint crack develops in the American foundation. A judge has
begun to rule where a legislator should”. (THE TEMPTING OF
AMERICA)
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1166 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Any support or justification for judicial legislation will have to be
premised on sound legal reasoning. It cannot be justified for the
reason that it produces welcome and desirable results. If that is
done, law will cease to be what justice Holmes named it, “the
calling of thinkers and becomes the province of emotions and
sensitivities”. It then becomes a process of personal choice
B
followed by rationalisation. The major and minor premises do not
lead to a result; but the result produces major and minor premises.
This is a reversal of the process - virtually making concept of
constitutional adjudication stand on its head. It is to law what
Robert Frost called ‘free verse,’ “Tennis with the net down.” Then
C naturally there are no rules, only passions. Legal reasoning rooted
in a concern for legitimate process rather than desired results
restricts judges to their proper role in a constitutional democracy.
That marks off the line between judicial power and legislative
power. Legislation, contrary to some popular notions, is a very
elaborate democratic process. It takes much to distil the raw
D
amorphous public opinion into scalable legislative values through
the multi-tiered filter of parliamentary processes &
procedures…..”
36. In the light of the discussion mentioned above of legal principles,
we advert to directions issued in paragraph 83. Direction Nos. (iii) and
E (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.

F 2. The arrest of a non-public servant after approval by the Senior
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
G 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.

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1167
[ARUN MISHRA, J.]

6. Any violation of the directions mentioned above will be A
actionable 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 under Article 15 of the B
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 the C
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.
39. The National Commission for Scheduled Castes Annual
Report 2015-16, has recommended for prompt registration of FIRs thus: D
“The Commission has noted with concern that instances of
procedural lapses are frequent while dealing atrocity cases by
both police and civil administration. There are delays in the judicial
process of the cases. The Commission, therefore, identified
lacunae commonly noticed during police investigation, as also E
preventive/curable actions the civil administration can take. NCSC
recommends the correct and timely application of SC/ST (PoA)
Amendment Act, 2015 and Amendment Rules of 2016 as well as
the following for improvement:
8.6.1 Registration of FIRs - The Commission has observed that F
the police often resort to preliminary investigation upon receiving
a complaint in writing before lodging the actual FIRs. As a result,
the SC victims have to resort to seeking directions from courts
for registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme
Court has also on more than one occasion emphasized about
registration of FIR first. This Commission again reemphasizes G
that the State / UT Governments should enforce prompt registration
of FIRs.”
(emphasis supplied)

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1168 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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 kidnapping and abduction, it
is 8.85 percent as per NCRB data for the year 2016. The same can be
B
taken care of by the Courts under Section 482, and in case no prima
facie case is made out, the Court can always consider grant of anticipatory
bail and power of quashing in appropriate cases. For the low conviction
rate, he submitted that same is the reflection of the failure of the criminal
justice system and not an abuse of law. The witnesses seldom come to
C support down-trodden class, biased mindset continues, and they 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
are compelled to observe that SCs/STs are still making the struggle for
D equality and for exercising civil rights in various areas of the country.
The members of the Scheduled Castes and Scheduled Tribes are still
discriminated against in various parts of the country. In spite of
reservation, the fruits of development have not reached to them, by and
large, they remain unequal and vulnerable section of the society. The
classes of Scheduled Castes and Scheduled Tribes have been suffering
E 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 to all
F these pertinent questions in the present prevailing social scenario in dif-
ferent 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 un-
touchables is that they are still denied various civil rights; the condition is
G 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.

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1169
[ARUN MISHRA, J.]

Whether he can shake hand with a person of higher class on equal A
footing? Whether we have been able to reach that level of psyche and
human dignity and able to remove discrimination based upon caste?
Whether false guise of cleanliness can rescue the situation, how such
condition prevails and have not vanished, are we not responsible? The
answer can only be found by soul searching. However, one thing is sure
B
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,
education and frugal comforts of life in spite of spending a considerable C
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 they face a violation of traditional rights?
43. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963 D
SC 1295, this Court has observed that the right to life is not merely an
animal’s existence. Under Article 21, the right to life includes the right to
live with dignity. Basic human dignity implies that all the persons are
treated as equal human in all respects and not treated as an untouchable,
downtrodden, and object for exploitation. It also implies that they are
not meant to be born for serving the elite class based upon the caste. E
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.
44. The enjoyment of quality life by the people is the essence of
guaranteed right under Article 21 of the Constitution, as observed in F
Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with
human dignity is included in the right to life as observed in Francis
Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981
SC 746, Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gen-
der injustice, pollution, environmental degradation, malnutrition, social G
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:

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1170 SUPREME COURT REPORTS [2019] 12 S.C.R.

A “34. The question can also be examined from another angle. The
knowledge or experience of a police officer of human rights
violation represents only one facet of human rights violation and
its protection, namely, arising out of crime. Human rights
violations are of various forms which besides police brutality are
— gender injustice, pollution, environmental degradation,
B
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
C dignity. For violation of human rights under Article 21 grant of
compensation is one of the concomitants which has found statutory
expression in the provisions of compensation, to be paid in case an
offence is committed under the provisions of the Act of 1989. A good
reputation is an element of personal security and is protected by the
D Constitution equally with the right to the enjoyment of life, liberty, and
property. Therefore, it has been held to be an essential element of the
right to life of a citizen under Article 21 as observed by this Court in
Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, Kishore
Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian
Swamy v. Union of India, (2016) 7 SCC 221. The provisions of the Act
E 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.
F We see sewer workers dying in due to poisonous gases in chambers.
They are like death traps. We have not been able to provide the masks
and oxygen cylinders for entering in sewer chambers, we cannot leave
them to die like this and avoid tortious liability concerned with officials/
machinery, and they are still discriminated within the society in the
G matter of enjoying their 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

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1171
[ARUN MISHRA, J.]

Constitution carves out an exception for making any special provision A
for the advancement of any socially and educationally backward classes
of citizens or SCs. and STs. Further protection is conferred under
Article 15(5) concerning their admission to educational institutions,
including private educational institutions, whether aided or unaided by
the State, other than the minority educational institutions. Historically
B
disadvantageous groups must be given special protection and help so
that they can be uplifted from their poverty and low social status as
observed in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC
793. The legislature has to attempt such incumbents be protected under
Article 15(4), to deal with them with more rigorous provisions as
compared to provisions of general law available to the others would C
create inequality which is not permissible/envisaged constitutionally. It
would be an action to negate mandatory constitutional provisions not
supported by the constitutional scheme; rather, it would be against the
mandated constitutional protection. It is not open to the legislature to put
members of the Scheduled Castes and Scheduled Tribes in a
D
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.
48. The particular law, i.e., Act of 1989, has been enacted and E
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.
49. There is no presumption that the members of the Scheduled F
Castes and Scheduled Tribes may misuse the provisions of law as a
class and it is not resorted to by the members of the upper Castes or the
members of the elite class. For lodging a false report, it cannot be said
that the caste of a person is the cause. It is due to the human failing and
not due to the caste factor. Caste is not attributable to such an act. On G
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/

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1172 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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.
B
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 of the Act.
C
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 be causing injury to them by
widening inequality and against the very spirit of our Constitution. It
D 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 complain-
ant with a doubt. Eyewitnesses do not come up to speak in their favour.
They hardly muster the courage to speak against upper caste, that is
why provisions have been made by way of amendment for the protec-
E tion of witnesses and rehabilitation of victims. All humans are equal
including in their frailings. To treat SCs. and STs. as persons who are
prone to lodge false reports under the provisions of the Scheduled Castes
and Scheduled Tribes Act for taking revenge or otherwise as monetary
benefits made available to them in the case of their being subjected to
such offence, would be against fundamental human equality. It cannot
F be presumed that a person of such class would inflict injury upon himself
and would lodge a false report only to secure monetary benefits or to
take revenge. If presumed so, it would mean adding insult to injury, merely
by the fact that person may misuse provisions cannot be a ground to
treat class with doubt. It is due to human failings, not due to the caste
G factor. The monetary benefits are provided in the cases of an acid at-
tack, 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
prevails in the country and people remain in slums, more particularly,
H under skyscrapers, and they serve the inhabitants of such buildings.
UNION OF INDIA v. STATE OF MAHARASHTRA 1173
[ARUN MISHRA, J.]

53. To treat such incumbents with a rider that a report lodged by A
an SCs/STs category, would be registered only after a preliminary
investigation by Dy. S.P., whereas under Cr.PC a complaint lodged
relating to cognizable offence has to be registered forthwith. It would
mean a report by upper-caste has to be registered immediately and
arrest can be made forthwith, whereas, in case of an offence under the
B
Act of 1989, it would be conditioned one. It would be opposed to the
protective discrimination meted out to the members of the Scheduled
Castes and Scheduled Tribes as envisaged under the Constitution in
Articles 15, 17 and 21 and would tantamount to treating them as
unequal, somewhat supportive action as per the mandate of Constitution
is required to make them equals. It does not prima facie appear C
permissible to look them down in any manner. It would also be contrary
to the procedure prescribed under the Cr.PC and contrary to the law
laid down by this Court in Lalita Kumari (supra).
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; whereas D
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 under section 18 on the grant of anticipatory
bail is not attracted. Thus, misuse of the provisions of the Act is intended E
to be taken care of by the decision above. In Kartar Singh (supra), a
Constitution Bench of this Court has laid down that taking away the said
right of anticipatory bail would not amount to a violation of Article 21 of
the Constitution of India. Thus, prima facie it appears that in the case of
misuse of provisions, adequate safeguards are provided in the decision F
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
commencement of the prosecution. The directions issued are likely to G
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 197, Cr.PC provide protection by prohibiting cognizance of the
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1174 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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 in terms of
Section 2(c) of Cr.PC is one for which police officer may arrest without
B
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 Orissa v.
Debendra Nath Padhi, (2005) 1 SCC 568.
C
58. While issuing guidelines mentioned above approval of appointing
authority has been made imperative for the arrest of a public servant
under the provisions of the Act in case, he is an accused of having
committed an offence under the Act of 1989. Permission of the appoint-
ing authority to arrest a public servant is not at all statutorily envisaged;
D it is encroaching on a field which is reserved for the legislature. The
direction amounts to a mandate having legislative colour which is a field
not earmarked for the Courts.
59. The direction is discriminatory and would cause several legal
complications. On what basis the appointing authority would grant
E permission to arrest a public servant? When the investigation is not
complete, how it can determine whether public servant is to be arrested
or not? Whether it would be appropriate for appointing authority to look
into case diary in a case where its sanction for prosecution may not be
required in an offence which has not happened in the discharge of
F official duty. Approaching appointing authority for approval of arrest of
a public servant in every case under the Act of 1989 is likely to consume
sufficient time. The appointing authority is not supposed to know the
ground realities of the offence that has been committed, and arrest
sometimes becomes necessary forthwith to ensure further progress of
the investigation itself. Often the investigation cannot be completed
G 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

H
UNION OF INDIA v. STATE OF MAHARASHTRA 1175
[ARUN MISHRA, J.]

that a public servant is not to be arrested and declines approval, what A
would happen, as there is no provision for grant of anticipatory bail. It
would tantamount to take away functions of Court. To decide whether
an accused is entitled to bail under Section 438 in case no prima facie
case is made out or under Section 439 is the function of the Court. The
direction of appointing authority not to arrest may create conflict with
B
the 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 offender, maybe a
public servant, it is not the provision of the general law of Cr.PC that C
permission of the appointing authority is necessary. No such statutory
protection provided to a public servant in the matter of arrest under the
IPC and the Cr.PC as such it would be discriminatory to impose such
rider in the cases under the Act of 1989. Only in the case of discharge of
official duties, some offence appears to have been committed, in that D
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.
61. The appointing authority cannot sit over an FIR in case of
cognizable, non-bailable offense and investigation made by the Police E
Officer; this function cannot be conferred upon the appointing authority
as it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, this
rider cannot be imposed in respect of the cases under the Act of 1989,
may be that provisions of the Act are sometimes misused, exercise of
power of approval of arrest by appointing authority is wholly
impermissible, impractical besides it encroaches upon the field reserved F
for the legislature and is repugnant to the provisions of general law as no
such rider is envisaged under the general law.
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. G
If they are not to be given special protection, they are not to be further
put in a disadvantageous position. The implementation of the condition
may discourage and desist them even to approach the Police and would

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1176 SUPREME COURT REPORTS [2019] 12 S.C.R.

A cast a shadow of doubt on all members of the Scheduled Castes and
Scheduled Tribes which cannot be said to be constitutionally envisaged.
Other castes can misuse the provisions of law; also, it cannot be said
that misuse of law takes place by the provisions of Act of 1989. In case
the direction is permitted to prevail, days are not far away when writ
petition may have to be filed to direct the appointing authority to
B
consider whether accused can be arrested or not and as to the reasons
recorded by the appointing authority to permit or deny the arrest. It is
not the function of the appointing authority to intermeddle with a
criminal investigation. If at the threshold, approval of appointing
authority is made necessary for arrest, the very purpose of the Act is
C likely to be frustrated. Various complications may arise. Investigation
cannot be completed within the specified time, nor trial can be
completed as envisaged. Act of 1989 delay would be adding to the
further plight of the downtrodden class.
In ref: approval of arrest by the SSP in the case of a
D non-public servant:
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,
E no such guidelines can prevail, which are legislative. When there is no
provision for anticipatory bail, obviously arrest has to be made. Without
doubting bona fides of any officer, it cannot be left at the sweet
discretion of the incumbent howsoever high. The approval would mean
that it can also be ordered that the person is not to be arrested then how
the investigation can be completed when the arrest of an incumbent, is
F necessary, is not understandable. For an arrest of accused such a
condition of approval of SSP could not have been made a sine qua non,
it may delay the matter in the cases under the Act of 1989.
Requiring the Magistrate to scrutinise the reasons for
permitting further detention:
G
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 further
detention. In case of approval has not been granted, this exercise has
H
UNION OF INDIA v. STATE OF MAHARASHTRA 1177
[ARUN MISHRA, J.]

not been undertaken. When the offence is registered under the Act of A
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 the approval of arrest by
appointing authority/S.S.P., the direction to record reasons and scrutiny
by Magistrate consequently stands nullified.
B
65. The direction has also been issued that the Dy. S.P. should
conduct a preliminary inquiry to find out whether allegations make out a
case under the Atrocities Act, and that the allegations are not frivolous
or motivated. In case a cognisable offence is made out, the FIR has to
be outrightly registered, and no preliminary inquiry has to be made as
held in Lalita Kumari (supra) by a Constitution Bench. There is no such C
provision in the Code of Criminal Procedure for preliminary inquiry or
under the SC/ST Act, as such direction is impermissible. Moreover, it is
ordered to be conducted by the person of the rank of Dy. S.P. The
number of Dy. S.P. as per stand of Union of India required for such an
exercise of preliminary inquiry is not available. The direction would mean D
that even if a complaint made out a cognizable offence, an FIR would
not be registered until the preliminary inquiry is held. In case a prelimi-
nary 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 E
disadvantageous position in the matter of procedure vis-a-vis to the
complaints 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. F
66. The creation of a casteless society is the ultimate aim. We
conclude with a pious hope that a day would come, as expected by the
framers of the Constitution, when we do not require any such legislation
like Act of 1989, and there is no need to provide for any reservation to
SCs/STs/OBCs, and only one class of human exist equal in all respects G
and no caste system or class of SCs/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
H
1178 SUPREME COURT REPORTS [2019] 12 S.C.R.

A discrimination in favour of down-trodden classes under Article 15(4) of
the Constitution and also impermissible within the parameters laid down
by this Court for exercise of powers under Article 142 of Constitution of
India. Resultantly, we are of the considered opinion that direction Nos.(iii)
and (iv) issued by this Court deserve to be and are hereby recalled and
consequently we hold that direction No. (v), also vanishes. The review
B
petitions are allowed to the extent mentioned above.
68. All the pending applications regarding intervention etc. stand
disposed of.

C Divya Pandey Review Petitions allowed.

D

E

F

G

H