“The Constitution of India did not provide for the judiciary to be a super legislature, or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations” (Justice M. Katju).The Supreme Court, in its recent judgment (Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr.) exactly did what Justice Katju had cautioned against. However, before elaborating this argument, we need to understand why The Scheduled Castes and the Scheduled Tribes (Prevention of atrocities) Act, 1989 (the SC/ST Act) is required.Prior to this Act coming into force in 1989, crimes against members of the Scheduled Castes and the Scheduled Tribes were on a high. The existing laws like The Protection of Civil Rights Act, 1955 (or the provisions of the IPC) were found to be inadequate in checking these crimes because the 1955 Act’s focus was only on offences arising out of untouchability, that too mainly with respect to Scheduled Castes only. These offences were triable by a first class judicial magistrate, and there was no bar on anticipatory bail.On the other side, the SC/ST Act covers an array offences, including forcing to drink or eat inedible substances; forcibly removing clothes or parading any member of these communities naked; wrongfully occupying or dispossessing; assaulting or using force with intent to outrage the modesty of a woman; exploiting her sexually, while being in a position to dominate her will etc. Under the Act, no prior sanction is required for prosecuting a public servant, no grant of anticipatory bail and the offences are triable by a special court (Court of Sessions).Reverting to the main argument, section 18 of the SC/ST Act expressly bars the application of section 438 of the CrPC, 1973 i.e., anticipatory bail in relation to arrest of any person on an accusation of having committed an offence under the Act. The legislative reasoning was best explained in State of M.P. V.Ram Krishna Balothia, 1995 SC – that the history of untouchability and social attitudes that lead to the commission of offences against these communities, justify the apprehension that if anticipatory bail was made available to the accused, there was every likelihood of him/her misusing this liberty to terrorise the victim, and prevent proper investigation. The anticipatory bail, being a statutory right, was held not to be violative of Article 21 of the Constitution. Further, when an offence was registered under the SC/ST Act, no court could entertain an application for anticipatory bail, unless it found that prima facie an offence under the said Act was not made out. No analysis of the evidence is allowed, as a bar imposed by a Special Act cannot be set aside by a detailed discussion on the evidence (Vilas Pandurang Pawar v. State of Maharashtra, 2012 SC).Simply put, the recent Mahajan judgment misconstrued the Balothia judgment by saying that the latter justified the bar on anticipatory bail only to protect the victims, and therefore, could not be applied to those found on a prima facie judicial scrutiny to be falsely implicated. As a result, the judge can now go into the merits of the case, though prima facie, which is clearly opposed to the legislative intent. Even in the Pandurang Pawar case, the bench only allowed limited judicial scrutiny as to whether an offence under the Act was made out or not, but nowhere did it say that the judge could go into the merits of the case (even prima facie) i.e. if the accusation was true or false. It is noteworthy that all these judgments are two-bench judgments. Therefore, the apex court not only went against the legislative intent, but also refused to refer the case to a larger bench in complete disregard to the doctrine of precedent.An analogy can be drawn between this case and the Rajesh Sharma v. State of U.P (2017SC) wherein the same two-judge bench observed that in a case under section 498A of the IPC (non-bailable offence), no arrest should be effected until the report of a Family Welfare Committee is submitted that the information has merits. The Chief Justice of India, Dipak Mishra, had criticised this judgment, saying it curtailed the rights of the women and the guidelines issued, actually, lay in the ‘legislative sphere’ as courts could only interpret the law, not write the law (except if there is a casus omissus i.e. gap in the statute, or if there is no law on a point, as held in Divisional Manager, Aravali Golf v. Chander Hass, 2007SC). Section 18 was neither a case of casus omissus nor was the law absent on the point. On the contrary, it expressly barred the grant of anticipatory bail.Two questions arise here: One, if the guidelines issued in the Rajesh Sharma case lay in the legislative sphere, doesn’t that apply to those issued in the Mahajan case too? Two, shouldn’t judicial restraint have been shown, and left the law for the legislature to amend?The Mahajan judgment, in my opinion, is a text-book case of judicial overreach. Separation of powers is the bedrock of our Constitution. While the exercise of powers by the legislature and executive is subject to judicial review, the only check on the judiciary’s own exercise of power is its self-imposed restraint. The judiciary must keep that in mind.The writer is a human rights activist & lawyer based in Delhi.