As SC Reviews SC/ST Order, Modi Government Yet to Admit Its Errors

If the Goel-Lalit bench considers the Agrawal-Ashok Bhushan judgment of last year as “per incuriam”, then the right course would be to request the Chief Justice of India to constitute a larger bench to resolve the inconsistency.

New Delhi: On Tuesday, the Supreme Court bench consisting of Justice Adarsh Kumar Goel and Uday Umesh Lalit held a special sitting to hear in open court the review petition filed by the Centre seeking reconsideration of its  controversial March 20 judgment watering down the punitive aspect of the SC/ST Act

On Tuesday, the amicus curiae in the case, Amrendra Sharan, submitted: “They (the Centre) gave the data, they made the submissions (in favour of laying down guidelines for protection against arbitrary arrests), and now they are challenging it.”

During the hearing, Justice Lalit chided a counsel who repeatedly raised the issue of historical injustice and centuries of oppression suffered by the people of Scheduled Castes and Scheduled Tribes. “You don’t have to repeat that,” he said. 

The admonition served to underline the bench’s impatience with ‘non-legal arguments’ being advanced to justify the review petition in the case. However, the curt remark may also be construed as the bench’s insensitivity to the concerns of stakeholders, claiming to represent SCs and STs, who, like the Centre, also sought the review, though they were not parties to the main case.   

The bench perhaps considered  the repetition by the counsel of “centuries of suffering” at the hands of the upper castes as a ploy to remind the bench that its March 20 judgment was flawed because it completely ignored this crucial dimension. The bench knew that the counsel shared this perception, but was not willing to listen to even implicit arguments suggesting this.

That apart, a review petition can hope to succeed only if it convinces the same bench which heard the main case that there are errors apparent on the face of the record. The power of review may be exercised also on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. 

But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. 

Much has been reported about the bench’s refusal to stay its judgment, pending the hearing of the review petition. A judgment of the apex court is not stayed, but recalled, if it is convinced that the previous order was uncalled for. It is unusual, though, for the same bench to hear a review petition, in open court, (in contrast to the usual practice of hearing it in chambers), within two weeks of delivering its main judgment.

Therefore, when attorney general K.K. Venugopal submitted on Tuesday that the bench has imposed a new procedure not contemplated under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it was clear that he was suggesting the decision included errors apparent on the face of the record, even though he did not submit that it was erroneous on merits.

Venugopal drew the attention of the bench to paragraph 81 of the March 20 judgment which said:

“Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District….To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated.”

Venugopal asked: “Nowhere does the Act say an SSP will decide. They are the victims of terrible atrocities.”

To this Justice Goel replied: “We are not saying don’t punish. We are safeguarding an innocent person, and using the settled law on arrest.”

In paragraph 18, the bench had reasoned that laying down safeguards to enforce constitutional guarantees under Article 21 (in favour of the accused under the Atrocities Act) was necessary in view of the sixth report  of the parliamentary standing committee on social justice and empowerment (2014-15) on the PoA Act which rejected the stand of the ministry to the effect  that there was no need to provide for action against false or mala fide implication under the Atrocities Act.

The committee observed that the PoA Act, being a special law, should be wholesome to the extent that it must contain an inbuilt provision for securing justice for those who are falsely implicated with mala fide intent under it. “More so, when the law makers have shown such perspicacity in addressing such issues/misgivings when they inserted clause 14 (Punishment for false or malicious complaint and false evidence) in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”, the report had added. 

Relying on this observation of the committee in its report, the Supreme Court bench had justified laying down appropriate guidelines in order to ensure protection against arbitrary arrest or false implication in violation of Article 21 of the constitution, as the law itself is silent on punishment for false or malicious complaints and false evidence.

Error apparent

In concluding that safeguards against misuse of the law were needed, the court drew on a factually erroneous argument made by the Centre during the principal hearings on the matter. That error, apparent on the face of the record, however, eluded scrutiny on the first day of the review hearing as Venugopal did not get an opportunity to rebut the amicus curiae’s submissions.

As the Act’s drafter, P.S. Krishnan, explained in a recent letter to the Union minister for social justice and empowerment, additional solicitor general Maninder Singh was wrong when he  told the court during the hearing that the government rejected the standing committee’s suggestions because it felt punishing members of the SC and ST community for false implication would be against the spirit of the Act.

Singh, according to Krishnan, failed to explain that the Centre had rejected the recommendation of the parliamentary standing committee because acquittals do not mean that the cases were false. Acquittals usually mean that a factually true account of the atrocity could not be provided in the court because of poor investigation or witnesses turning hostile on account of the absence of adequate protection for them, Krishnan has suggested. 

However, it was this misleading submission by Singh which led the bench to infer that the Act lacked a suitable provision to protect the accused. That is why it felt the need to fill the void with appropriate guidelines to prevent what it assumed, as a result, would be an abuse of the Act. On Tuesday, the Centre did not get an opportunity to disown Maninder Singh’s argument during the hearing, and explain the error, apparent on the face of the record.

Grant of anticipatory bail to the accused

This error, as Krishnan’s letter makes it obvious, also led to another grave injustice in the judgment.

Section 18 of the PoA Act carries a bar against grant of anticipatory bail under Section 438 of the CrPC. The Supreme Court had held in State of M.P. v. Ram Krishna Balothia (1995) that Section 18 was not violative of Articles 14 and 21 of the constitution. It was observed that exclusion of Section 438 Cr.P.C. in connection with offences under the Act had to be viewed in the context of prevailing social conditions and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders, if they are granted anticipatory bail.

In its March 20 judgment, the bench considered the plea of the amicus curiae for revisiting the judgment in Balothia by a larger bench, but found it unnecessary, as it believed it could be clarified in the light of the law laid down by the apex court earlier.

Thus it reasoned:

“Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. It cannot be read as being applicable to those who are falsely implicated for extraneous reasons and have not committed the offence on prima facie independent scrutiny. Access to justice being a fundamental right, grain has to be separated from the chaff, by an independent mechanism… Thus considered, exclusion has to be applied to genuine cases and not to false ones”. 

The bench, however, laid down no guidelines as to how courts were to conclude whether a case was genuine or false, before the trial could begin, and how anticipatory bail could be granted to the accused under the PoA Act without violating the express provisions of Section 18, and its objective.

In Manju Devi v Onkarjit Singh Ahluwalia @ Onkarjeet Singh & Others, a two-judge Supreme Court bench comprising justices R.K. Agrawal and Ashok Bhushan, held in paragraph 19: “With regard to the plea that the complaint filed by the complainant is false and malicious and to wreak vengeance by the brother of the respondent No.1 herein, we are of the view that it cannot be looked into at the stage of taking cognisance and issue of process and the mala fide or bona fide of a case can only be taken into consideration at the time of trial”. 

In this case, the bench held that Section 18 of the Act creates a bar for invoking Section 438 of the Code and the high court had committed a grave error in granting anticipatory bail to the respondents-accused. It, therefore, set aside the order of the high court granting anticipatory bail to the accused under the PoA Act.

The Manju Devi judgment was delivered on March 24, 2017.

The court’s March 20, 2018 judgment refers to the 2017 judgment in passing, but misses the import of paragraph 19. Traditionally, judgments which ignore previous binding judgments are considered “per incuriam” – i.e. a decision taken without due regard to the law or the facts. If the Goel-Lalit bench considers the Agrawal-Ashok Bhushan judgment of last year as “per incuriam”, then the right course would be to request the Chief Justice of India to constitute a larger bench to resolve the inconsistency. But the Goel-Lalit bench appears to have ignored such constitutional niceties, as noticed recently in another case.

All of these issues are likely to be argued during the next hearing of the review case.