Analysis of Section 18 of the SC/ST (Prevention of Atrocities) Act

An Analysis of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Navigating the Bar on Anticipatory Bail in India

Introduction

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter "Atrocities Act" or "SC/ST Act") is a pivotal piece of legislation in India, enacted to prevent the commission of offences of atrocities against members of the Scheduled Castes (SCs) and Scheduled Tribes (STs), to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences.[1] A significant and often debated provision within this Act is Section 18, which imposes a bar on the applicability of Section 438 of the Code of Criminal Procedure, 1973 (CrPC), relating to anticipatory bail, for persons accused of committing an offence under the Atrocities Act.[2]

The legislative intent underpinning Section 18 is rooted in the historical and ongoing socio-economic vulnerabilities of SC/ST communities, aiming to ensure that perpetrators of atrocities do not evade the legal process or intimidate victims and witnesses by securing pre-arrest bail.[3] This article seeks to provide a comprehensive analysis of Section 18 of the Atrocities Act, tracing its judicial interpretation, constitutional scrutiny, and the evolving jurisprudence surrounding its application. It will particularly focus on how the Indian judiciary, especially the Supreme Court, has navigated the apparent rigidity of this provision, balancing the Act's protective mandate with the fundamental rights of individuals and the principles of natural justice.

Legislative Framework and Purpose of Section 18

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

The Atrocities Act was promulgated to address the persistent discrimination, violence, and indignities faced by members of Scheduled Castes and Scheduled Tribes. The Statement of Objects and Reasons accompanying the Bill highlighted that despite various measures, these communities "remain vulnerable... subjected to various offences, indignities, humiliations and harassment... deprived of their life and property."[4] It acknowledged that when SCs/STs "assert their rights and resist practices of untouchability... or demand statutory minimum wages... the vested interests try to cow them down and terrorize them."[4]

Section 2(1)(a) of the Act defines "atrocity" as an offence punishable under Section 3.[5] Section 3(1) enumerates a wide range of acts that constitute offences of atrocities if committed by a person not belonging to a Scheduled Caste or Scheduled Tribe against a member of such a community. These include, inter alia, forcing consumption of inedible substances, dumping obnoxious substances, land dispossession, forced labour, instituting false legal proceedings, intentional insult or intimidation with intent to humiliate in public view, and assaulting women with intent to dishonour.[6]

Section 18: The Express Bar on Anticipatory Bail

Section 18 of the Atrocities Act, 1989, unequivocally states: "Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."[2] Section 438 of the CrPC empowers the High Court or the Court of Session to direct that in the event of an arrest, an accused person shall be released on bail. The effect of Section 18 is thus to oust the jurisdiction of these courts to grant anticipatory bail to individuals accused under the Atrocities Act.

The rationale for this stringent provision, as observed by courts, is to prevent accused persons, who are often in a socially or economically dominant position, from using the liberty afforded by anticipatory bail to threaten or intimidate victims and witnesses, tamper with evidence, or otherwise obstruct the course of justice.[3], [7] The Gujarat High Court in Punak D. Suthar v. State of Gujarat noted that Parliament, in its "utmost wisdom," inserted Section 18 due to "great concern and anxiety over the atrocities which are going on unabatedly on SCs and STs," viewing it as a "welcome step" for a "disease grown desperately."[8]

Judicial Interpretation and Constitutional Validity of Section 18

Upholding Constitutional Validity

The constitutional validity of Section 18 was challenged on the grounds that it violated Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution of India. The Supreme Court, in the landmark case of State of M.P. And Another v. Ram Kishna Balothia And Another (1995), conclusively upheld its constitutionality.[3] The Court reasoned that offences under the Atrocities Act fall into a "separate and special class" arising from the practice of 'untouchability' and systemic discrimination.[3], [9]

The Court in Balothia held that the exclusion of Section 438 CrPC was not arbitrary or violative of Article 14 because it applied to a specific class of offences aimed at addressing historical injustices. Regarding Article 21, the Court observed that anticipatory bail is a statutory right, not a part of the fundamental right to life and personal liberty, and its exclusion in the context of specific heinous offences was justified.[3] The Court emphasized 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... if the offenders are allowed to avail of anticipatory bail."[9] This position drew support from the earlier decision in Kartar Singh v. State of Punjab (1994), where a similar denial of anticipatory bail under the Terrorist and Disruptive Activities (Prevention) Act, 1987, was held not to violate Article 21.[10] The validity of Section 18 has been consistently reaffirmed.[11]

The "Prima Facie Case" Caveat

Despite the unequivocal language of Section 18 and its affirmed constitutionality, the judiciary recognized the potential for misuse of the Atrocities Act. This led to an interpretive evolution where courts began to scrutinize whether a prima facie case under the Act was even made out before applying the absolute bar of Section 18. The Supreme Court in Vilas Pandurang Pawar And Another v. State Of Maharashtra And Others (2012) clarified that "Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out."[12] If the complaint indeed disclosed such an offence, the bar would apply.[12], [13]

This approach was further elaborated in Dr. Subhash Kashinath Mahajan v. State Of Maharashtra And Another (2018). The Supreme Court observed that the exclusion of anticipatory bail under Section 18 "is not absolute" and applies "predominantly to genuine cases where a prima facie case is established."[14] The Court held, "There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide."[14], [15] This was seen as necessary to safeguard innocent individuals from false or motivated accusations and prevent the abuse of the process of law, while ensuring the Act’s protective intent for genuine victims.[14] Several High Courts had also adopted this stance, emphasizing that a mere registration of an offence under the Act would not automatically bar anticipatory bail if the FIR or other materials did not disclose the ingredients of an offence under the Act.[16], [17], [18]

The Impact of Dr. Subhash Kashinath Mahajan and Subsequent Developments

The judgment in Dr. Subhash Kashinath Mahajan introduced certain procedural safeguards, including a preliminary inquiry before registration of FIR and prior approval for arrest, to prevent misuse of the Act.[14] These directions led to widespread debate and concerns that they diluted the Act's protective efficacy. In response, Parliament enacted the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, inserting Section 18-A into the Atrocities Act.

The constitutional validity of this amendment and the correctness of the directions in Mahajan were challenged in Prathvi Raj Chauhan v. Union Of India And Others (2020).[10] The Supreme Court in Prathvi Raj Chauhan upheld the validity of Section 18 and the newly inserted Section 18-A.[10] It recalled/overruled the directions issued in Mahajan concerning the necessity of a preliminary inquiry before FIR registration and mandatory prior approval for arrest, deeming them an encroachment on the legislative domain.[10], [13] The Court reaffirmed that, as held in Lalita Kumari v. Govt. of U.P. (2014), preliminary inquiries are generally impermissible where a cognizable offence is disclosed.[10]

Crucially, however, the Supreme Court in Prathvi Raj Chauhan also clarified the scope of the bar under Section 18 and 18-A. While affirming the stringent nature of these provisions, it reiterated that "if the complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created by Section 18 and Section 18A(i) shall not apply."[10] Thus, the power of the court to scrutinize the complaint to determine if a prima facie offence under the Atrocities Act is made out, as a precondition to the applicability of the bar on anticipatory bail, was preserved. This position has been subsequently followed by High Courts.[19], [20]

Section 18-A: Reinforcing the Bar

Section 18-A, introduced by the 2018 Amendment, was specifically enacted to reinforce the original intent of the Atrocities Act and to nullify the judicially introduced safeguards from the Mahajan case. Section 18-A provides:

"(1) For the purposes of this Act,––
(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person,
against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."[10], [13]

As interpreted and upheld in Prathvi Raj Chauhan, Section 18-A(1)(a) removes the requirement for a preliminary inquiry before FIR registration, and Section 18-A(2) emphatically reiterates the bar on anticipatory bail, irrespective of any prior judicial pronouncements that might have suggested a dilution.[10] However, as noted above, this does not preclude the court from examining whether the allegations, even if taken at face value, constitute an offence under the Atrocities Act. If no such offence is disclosed, the fetters of Section 18 and 18-A would not come into play.[10], [20]

Balancing Act: Protective Intent v. Potential for Misuse

The legislative intent behind Section 18 and 18-A is unequivocally protective: to shield vulnerable SC/ST individuals from atrocities and to ensure that accused persons, often belonging to dominant sections of society, cannot use anticipatory bail to evade justice, intimidate victims, or tamper with evidence.[3], [4], [7] The Supreme Court in Balothia acknowledged the "historical, social and economic reasons" for the commission of such crimes and the need for stringent measures.[4]

Simultaneously, concerns regarding the potential for misuse of the Atrocities Act for extraneous motives, such as settling personal scores or malicious prosecution, have been voiced, notably in Dr. Subhash Kashinath Mahajan.[14] The judiciary's response has been to carve out a limited scope for judicial scrutiny. While the bar on anticipatory bail is stringent, courts retain the inherent power to examine whether the allegations in the complaint prima facie attract the provisions of the Atrocities Act. If the allegations are patently false, mala fide, or do not disclose any offence under the Act, the courts may intervene to prevent an abuse of process.[10], [14], [15] As the Bombay High Court observed in Govind v. State Of Maharashtra (2019), "When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out."[21]

Conclusion

Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, fortified by Section 18-A, represents a significant legislative measure to combat caste-based atrocities by restricting access to anticipatory bail for accused individuals. Its constitutional validity has been firmly established, recognizing the special nature of offences under the Act and the societal imperative to protect vulnerable communities.

The jurisprudence, particularly through landmark Supreme Court decisions like State of M.P. v. Ram Kishna Balothia, Vilas Pandurang Pawar, Dr. Subhash Kashinath Mahajan, and Prathvi Raj Chauhan, reflects a continuous judicial effort to interpret this provision. While the bar on anticipatory bail is strict, it is not entirely impervious to judicial scrutiny. Courts retain the power to examine whether a prima facie case under the Atrocities Act is disclosed in the complaint. If the allegations, on their face, do not constitute an offence under the Act, or are found to be patently false or mala fide, the bar under Section 18 and 18-A may not apply, and the courts can grant relief under Section 438 CrPC.

This nuanced approach seeks to balance the Act's core objective of preventing atrocities and ensuring justice for victims with the fundamental principles of fairness and the need to prevent misuse of the law. The sensitive and careful application of these provisions by the judiciary remains crucial to upholding both the protective mandate of the Atrocities Act and the broader interests of justice in India.

References

  1. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Preamble.
  2. Section 18, The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. See also SHAJAN SKARIA v. THE STATE OF KERALA (Supreme Court Of India, 2024) (Reference Material 10).
  3. State Of M.P And Another v. Ram Kishna Balothia And Another (1995 SCC CRI 439, Supreme Court Of India, 1995) (Reference Material 5).
  4. Goluguri Ramakrishna Reddy & Anr. v. State Of A.P & Anr. (Andhra Pradesh High Court, 2005) (Reference Material 8), quoting Statement of Objects and Reasons of the SC/ST Act. See also Thavam v. State (Madras High Court, 1997) (Reference Material 14).
  5. Section 2(1)(a), The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. See also Manju Devi v. Onkarjit Singh Ahluwalia Alias Omkarjeet Singh And Others (Supreme Court Of India, 2017) (Reference Material 6).
  6. Section 3(1), The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. See also Manju Devi v. Onkarjit Singh Ahluwalia Alias Omkarjeet Singh And Others (Supreme Court Of India, 2017) (Reference Material 6); G. Krishnan v. Union Of India (Madras High Court, 2005) (Reference Material 9); SHAJAN SKARIA v. THE STATE OF KERALA (Supreme Court Of India, 2024) (Reference Material 10).
  7. K. Mallesham v. State Of A.P (Andhra Pradesh High Court, 1998) (Reference Material 7).
  8. Punak D. Suthar v. State of Gujarat, (1992 (1) GLR 405), as quoted in K. Mallesham v. State Of A.P (Andhra Pradesh High Court, 1998) (Reference Material 7) and Debjyoti Bhattacharyya v. The State Of West Bengal (Calcutta High Court, 2018) (Reference Material 13).
  9. Thavam v. State (Madras High Court, 1997) (Reference Material 14), quoting State of M.P. v. Ram Kishna Balothia.
  10. Prathvi Raj Chauhan v. Union Of India And Others (2020 SCC 4 727, Supreme Court Of India, 2020) (Reference Material 1).
  11. G. Krishnan v. Union Of India (Madras High Court, 2005) (Reference Material 9); K. Mallesham v. State Of A.P (1998 SCC ONLINE AP 414, Andhra Pradesh High Court, 1998) (Reference Material 16); Virendra Singh v. State Of Rajasthan (Rajasthan High Court, 2000) (Reference Material 12); Mohar Singh And Anothers v. State Of Madhya Pradesh (Madhya Pradesh High Court, 1995) (Reference Material 25).
  12. Vilas Pandurang Pawar And Another v. State Of Maharashtra And Others (2012 SCC 8 795, Supreme Court Of India, 2012) (Reference Material 2).
  13. Anand Teltumbde v. State Of Maharashtra (Bombay High Court, 2020) (Reference Material 24), discussing Vilas Pandurang Pawar and Prathvi Raj Chauhan (referred to as Union of India v. State of Maharashtra review).
  14. Dr Subhash Kashinath Mahajan v. State Of Maharashtra And Another (2018 SCC 6 454, Supreme Court Of India, 2018) (Reference Material 3 & 18).
  15. Debjyoti Bhattacharyya v. The State Of West Bengal (Calcutta High Court, 2018) (Reference Material 13 & 15), quoting Dr. Subhash Kashinath Mahajan.
  16. Pankaj D. Suthar v. State Of Gujarat (1992 CRIMES 1 1122, Gujarat High Court, 1991) (Reference Material 19).
  17. Ramchandra Govindrao Watkar v. State Of Maharashtra (1995 SCC ONLINE BOM 265, Bombay High Court, 1995) (Reference Material 20).
  18. MANJUNATHA v. STATE OF KARNATAKA (Karnataka High Court, 2017) (Reference Material 17). See also Pravinchandra N. Solanki v. State of Gujarat (Gujarat High Court, 2011) (Reference Material 21).
  19. S. PRABHAKAR RAO v. STATE OF KARNATAKA (Karnataka High Court, 2021) (Reference Material 22), citing Prathvi Raj Chauhan.
  20. REKHA S/O MADHUKAR MANKAR @ REKHA WD/O VILAS GHODE v. THE STATE OF MAHARASHTRA THROUGH ITS PSO, PS, SHEGAON GRAMIN, TQ SHEGAON DIST. BULDHANA AND ANOTHER (Bombay High Court, 2024) (Reference Material 23), citing Prathvi Raj Chauhan.
  21. Govind v. State Of Maharashtra Through I/C Pso Vazirabad Police Station And Others (Bombay High Court, 2019) (Reference Material 11).