Commenting on the working of the Act in last three decades, the Court rued that “it has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes60. It may be noticed that by way of rampant misuse complaints are ‘largely being filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests.”

The Court further observed that “the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. The Act is also not intended to deter public servants from performing their bona fide duties. Thus, unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens.”

The Court thereafter laid down the following directions:
i. Anticipatory bail can be granted, if no prima facie case is made out or the complaint is found to be prima facie malafide;
ii. An public servant can only be arrested under POA after approval from the appointing authority;
iii. A private person can only be arrested, after approval from SSP for reasons to be recorded in writing.
iv. Before arrest, a pre-liminary enquiry ought to be carried out by DSP to ensure that the complaint is not frivolous or motivated.

In sum, the Court in one stroke has managed to dilute a hard fought but rarely implemented law and render it almost redundant. The Court’s repeated observations on the alleged misuse of law and being an instrument of blackmail smacks of complete caste prejudice and bias against the dalits and lower castes. The oft-repeated concern for ‘protection of innocents’ does not appear when thousands of dalits, muslims and other marginalised populations are rotting in jails as undertrials, without a word on their right to be released on bail. By going against the clear mandate of law, which excluded anticipatory bail for offences under POA, the Court has shown scant regard for the legislative wisdom as well as the legislative domain of law-making. It is common knowledge that police are highly reluctant to lodge FIRs under POA, and even when they are registered, matters are not properly investigated or prosecuted. In this context, rates are acquittals are no reflection that false cases are being prosecuted under the law.

Never before, a law was as recklessly mutiliated as has happened in this judgment. In times, when the horrific anti-dalit violence at Una in Gujarat is still fresh in publc minds, along with spate of atrocities in the last few years, it is highly disconcerting that the Court blames the POA for spreading caste hatred, and does not criticise the entrenched caste hierarchy of the entire Indian society. It is unfortunate that while the Bench quotes from B.R. Ambedkar, it has singularly failed to understand Ambedkar’s message and politics. The history of upper caste atrocities against the lower caste in India is so long that if the Bench wanted, it only had to dip a little to know why the law was enacted and why is it necessary to retain its stringency.

Predictably, the judgement has led to a furore amongst parliamentarians, dalit activists and jurists. Both law makers and activists have demanded an immediate review of the judgment and the revocation of the directions. Republic Party of India (A), an ally of BJP at the Centre, already declared their intention to file a review of the decision, notwithstanding the Government’s stand.

It is perhaps no coincidence that the same Bench had sought to dilute the anti-dowry law, by issuing similar directions against the grain of the law, which had to be overturned by the Chief Justice after few months, owing to a huge hue and cry amongst women’s groups and lawyers. One hopes that the same fate awaits this aberration of a judgment.

[Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, Crimial Appeal No. 416 of 2018, date of judgment: 20.03.2018] (IPA Service)