Guest Post: Renumbering as Repeal? The Allahabad High Court on the interplay of BNSS with the SC/ST Act

(This is a guest post by Ammar Shahid)

Two orders from the Allahabad High Court raise a peculiar question: does the bar on anticipatory bail under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act“) continue to operate now that the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS“) has replaced the Code of Criminal Procedure, 1973 (“CrPC“)?

In Dinesh Kumar Srivastava v. State of UP (December, 2025), the applicant faced an FIR under Sections 376, 506, 406, 323, and 504 IPC along with Section 3(2)(v) of the SC/ST Act, arising from allegations of a relationship formed on the matrimonial website jeevansathi.com allegedly on a false promise of marriage. He sought anticipatory bail under Section 482 of the BNSS. The informant’s counsel opposed this on the ground that Section 18 of the SC/ST Act barred it. The Court disagreed, holding that firstly, Section 18 specifically refers to “Section 438 of the Code” and anticipatory bail applications are now filed under Section 482 BNSS, the bar had no application. Secondly, the Court held that prima facie the material on record did not establish an offence under Section 376 IPC, given that the relationship appeared consensual. The petition was allowed, and bail granted.

Next, Sushil Kumar v. State of UP (May, 2026) arose from rejection of an anticipatory bail application solely on the ground of Section 18. The alleged facts involved a commercial dispute over unpaid sale consideration for food grains, accompanied by an alleged assault and caste-based insult. The High Court set aside the trial Court’s order on two grounds. The first was the trial Court’s failure to consider the principle laid down in Prathvi Raj Chauhan v. Union of India, where the Supreme Court held that courts retain the power to grant pre-arrest bail in SC/ST Act cases where prima facie the ingredients of the Act are not made out. The second was the BNSS transition argument drawn from Dinesh Kumar Srivastava. The High Court held that these two factors had not been considered by the trial court, and sent the matter case for fresh consideration.

Section 8 of the General Clauses Act

Section 8 of the General Clauses Act, 1897 provides that where a Central Act is repealed and re-enacted with or without modification, references in any other Central Act to the repealed enactment shall, unless a different intention appears, be construed as references to the corresponding provisions of the re-enacted legislation.

Section 482 BNSS corresponds with Section 438 CrPC. Both carry the heading of anticipatory bail and provide the same relief to the same class of persons in the same procedural context. When Parliament enacted the BNSS, it was re-enacting an existing one under a different statutory number. By operation of Section 8 of the General Clauses Act, Section 18’s reference to Section 438 CrPC must now be read as a reference to Section 482 BNSS.

Neither Dinesh Kumar Srivastava nor Sushil Kumar consider Section 8, which is a serious flaw. The legal question, at its foundation, was one of statutory interpretation across a legislative transition. Section 8 of the General Clauses Act is the rule Parliament has itself put in place for resolving exactly this question. Its absence from the reasoning of both decisions is a significant gap.

The only caveat Section 8 carries is the phrase “unless a different intention appears.” One would need to find, within the SC/ST Act or Section 18 itself, some indication that Parliament intended the bar to be tied specifically and permanently to Section 438 CrPC as a provision, rather than to the institution of anticipatory bail as such. No such intention is apparent. Section 18 was aimed at the relief of anticipatory bail, not at a particular section number. The number was simply the address at which that relief resided at the time.

What the 2018 Amendment Tells Us

The legislative history of Section 18 adds important context. In Subhash Kashinath Mahajan v. State of Maharashtra, the Supreme Court permitted anticipatory bail in SC/ST Act cases subject to certain conditions. Parliament responded within months by enacting the SC/ST Amendment Act, 2018, inserting Section 18-A which, among other things, reinforced the bar on anticipatory bail. Parliament actively closed a space that the Supreme Court had opened (which it has, since, reopened - more on that below).

The suggestion that this same Parliament, in 2023, inadvertently allowed the Section 18 bar to lapse through the BNSS transition without any express amendment is difficult to accept. When a legislature has demonstrated such attentiveness to a particular provision, the more reasonable inference is that it relied on established principles of statutory interpretation, specifically Section 8 of the General Clauses Act, to ensure continuity. If Parliament had wanted to lift the bar, it could have done so expressly in the BNSS. It did not.

The Prathvi Raj Chauhan Exception

Both decisions also place reliance on the principle formulated by Prathvi Raj Chauhan, where the Supreme Court held that in cases where no prima facie material exists to make out an SC/ST Act offence, Courts may grant pre-arrest bail through inherent jurisdiction under Section 482 CrPC. This reading of Prathvi Raj Chauhan, however, is broader than what the judgment actually supports.

The inherent jurisdiction of the High Court in criminal matters vested in Section 482 CrPC, which corresponds to Section 528 of the BNSS, not Section 482 BNSS, which is the anticipatory bail provision. Section 18’s bar has always applied to the anticipatory bail route, not to the exercise of inherent jurisdiction in exceptional cases. These are two separate heads of power, and conflating them misrepresents both.

Beyond this structural issue, the Prathvi Raj Chauhan exception is not a straightforward gateway to routine merits review. The Supreme Court was clear that this inherent power is available “sparingly” in “very exceptional cases” to prevent a “miscarriage of justice or abuse of process of law,” and was explicit that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” The Court in Sushil Kumar, having identified Prathvi Raj Chauhan as a primary ground for remand, does not specify how the trial court is to apply this demanding threshold on reconsideration. Without any guidance, the remand functions as an implicit invitation to conduct the kind of routine merits review that Prathvi Raj Chauhan cautioned against.

This issue is also visible in Dinesh Kumar Srivastava. The Court's own prima facie analysis found no offence under Section 376 IPC on the basis that the relationship appeared consensual and no force was alleged. But the Prathvi Raj Chauhan threshold is directed at the absence of SC/ST Act ingredients from the face of the FIR, not at the tenability of a connected IPC charge. Where an FIR contains specific allegations of caste-based insult or harassment, as it does in both the decisions under discussion, it is not obvious that the threshold for invoking the inherent jurisdiction exception has been crossed. Hitesh Verma v. State of Uttarakhand, which Sushil Kumar itself cites, reaffirms that the bar under Section 18 is absolute where SC/ST Act offences are prima facie made out. Citing Hitesh Verma while simultaneously remitting for fresh consideration of anticipatory bail, without a definitive holding on whether SC/ST Act ingredients are absent from the FIR, creates a real tension that the judgment leaves unresolved.

Conclusion

The question raised by these two decisions is ultimately not a complicated one. Section 8 of the General Clauses Act provides a clear and direct answer: the bar under Section 18 travels with the legislative transition from CrPC to BNSS because Section 482 BNSS is the corresponding provision to Section 438 CrPC. The legislative history of Section 18, including the 2018 amendment, makes it implausible that Parliament intended this bar to lapse silently. The Prathvi Raj Chauhan exception operates through inherent jurisdiction in exceptional cases, not through anticipatory bail as a matter of routine.

The SC/ST Act is protective legislation enacted for a specific purpose. Its provisions are intended to give effect to that purpose, not to be read in ways that drain them of content through procedural technicality. Courts interpreting special protective statutes are expected to favour readings that advance the statute’s objects. A reading that allows the bail bar to lapse because a provision number changed does the opposite.

[Note: at the time of writing, it is not clear whether either decision has been challenged in the Supreme Court, or has been questioned by a bench of larger strength in the High Court itself]

Guest Post: The SC Judgment in Patan Vali - Progressive Obiter, Regressive Ratio?

(This is a guest post by Vrishank Singhania)

On April 27, 2021, a two-judge bench headed by Chandrachud J., in the matter of Patan Jamal Vali v. State of Andhra Pradesh [‘Patan Vali’], rendered an important judgement on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [‘SC/ST Act’]. The case pertained to the rape of a visually challenged woman belonging to the Scheduled Caste. The Sessions Court had convicted the accused under Section 376(1) of the Indian Penal Code, 1860 [‘IPC’] for rape, and under Section 3(2)(v) of the SC/ST Act. Section 3(2)(v) enhances the punishment to life imprisonment, for any offence under the IPC punishable with imprisonment for ten years or more, against a member of the SC/ST. Based on these two offences, the Sessions Court sentenced the accused to life imprisonment. 

An appeal was filed against this judgement in the the Andhra Pradesh High Court, which upheld the conviction. The orders of the High Court and the Sessions Court were then appealed to in the Supreme Court. The Supreme Court was satisfied that the conviction under Section 376(1) was proved beyond reasonable doubt and confined itself to the question of whether the offence under Section 3(2)(v) had been proved. 

In its judgement, the Supreme Court used the framework of intersectionality to critique and question the correctness of past interpretations of Section 3(2)(v). However, it stopped short of referring the matter to a larger bench, because in its opinion, the Section 3(2)(v) charge anyway failed on evidentiary grounds [paras 55-56]. Given the Court’s foray into intersectionality and critique of past precedent, the Court clearly sought to embody a spirit of caste-consciousness. However, I argue, that its application of the law to the present case belies this spirit. 

In the first section of this post, I look at some recent judgements of the Supreme Court on Section 3(2)(v) to contextualise the problems with the existing jurisprudence. While this issue has been discussed on this blog (here), I seek to go into greater detail – and in particular, examine the significance of the 2015 amendment to section 3(2)(v). In the second section, I analyse the Court’s critique of this jurisprudence in Patan Vali. In the third section, I critique the Court’s decision on the facts of the present case.

Judicial interpretation of Section 3(2)(v) of the SC/ST Act 

As mentioned above, Section 3(2)(v) provides for enhanced punishment of life imprisonment for certain offences under the IPC. While this provision was amended in 2015, earlier it provided that – 

"(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property, on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."                                          (Emphasis supplied)

The judiciary, in its interpretation of this section, read-in a mens rea requirement: it required proof that the caste of the victim was the motive behind the accused having committed the offence. At the level of the Supreme Court, the first instance of the reading-in of such a requirement was seen in Masumsha Hasanasha Musalman v. State of Maharashtra. This interpretation of Section 3(2)(v) was then carried forward in the other cases, such as Dinesh v. State of Rajasthan and Ramdas v State of Maharashtra. None of these judgements, however, provided any reasoning as to why Section 3(2)(v) required proof of caste as motive – there is no attempt to source such a mens rea requirement to either the text or legislative history of the Act, nor to any past precedent. 

The National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act in its report noted that a mens rearequirement contradicts parliamentary intent, and a Ministry of Home Affairs note made clear that motive ought to be irrelevant. Further, in State of Karnataka v. Appa Balu Ingale, Ramaswamy J. observed that motive is irrelevant when it comes to untouchability and atrocities against SC/ST, and that social necessity requires dispending with evidence of mens rea. Despite these, courts continued to use mens rea as a ground to acquit persons accused under the SC/ST Act. 

Given the abysmally low conviction rates, various Dalit rights organisations issued a clarion call in 2010 to strengthen the SC/ST Act through necessary amendments (for more on why it is difficult to prove caste-based motive, see here). One of the recommendations was to remove the phrase “on the ground” in Section 3(2)(v) given its misinterpretation by the judiciary. In responding to these demands, Parliament amended the SC/ST Act in 2015. Section 3(2)(v) now provides that – 

“(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or Scheduled Tribe, or such property belongs to such member shall be punishable with imprisonment for life and with fine.” (Emphasis supplied)

The phrase “on the ground” was replaced by “knowing”, to reduce the burden that courts had (incorrectly) placed on the prosecution under this Act.

The Supreme Court in Ashrafi v. State of Uttar Pradesh held that there was a distinction between the standard, pre- and post-amendment. It held that after the amendment “mere knowledge” of the victim’s caste was sufficient to establish an offence under Section 3(2)(v). However, this lower standard would apply only in cases after the amendment came into force. In Ashrafi, the offence pre-dated the amendment. However, it was held that – 

"In the absence of evidence proving intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." (Emphasis supplied)

The Court thus increased the threshold under the erstwhile provision, by reading in “only”: It would have to be shown that the “only” motive of the accused was the victim’s caste – the presence of any other motive would mean that Section 3(2)(v) was not attracted. Given that other motives such as enmity, jealousy or lust could also be traced to the commission of an offence, this increased threshold then became a ground to acquit accused under the Act. 

At the very least, this judgement had recognized a lower standard under the amended section, even though it had increased the standard under the original section. However, even this distinction between the original and amended section has now been conflated by the Supreme Court. 

In Khuman Singh v. State of Madhya Pradesh, the Court was dealing with an offence committed in 2005 i.e., prior to the amendment. However, the Court reproduced the amended section and then held that “There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste.” (Emphasis supplied)

There is no mention of the amendment in this judgement nor of the holding in Ashrafi. Given the offence was in 2005 (before the amendment), it is likely that the Court intended to apply the pre-amendment clause, but erroneously reproduced the amended section instead. While there is some room for ambiguity here, the conflation is clear in Hitesh Verma v. State of Uttarakhand [for a criticism of the interpretation of s.482 CrPC in this judgement, see here]. This case pertained to an offence committed in 2019 i.e. post amendment. The judgement mentions the amendments to the SC/ST Act and even goes into the details of the social context and purposes of the Act. Nevertheless, it goes on to hold that "… [facts] would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe." (Emphasis supplied)

This conflation has also crept into some High Court judgements. For instance, consider the Delhi High Court’s decision in Danish Khan v. State (Govt. of NCT of Delhi), which has been criticised on this blog (here). As the author notes, the High Court applied the ‘only’ standard by relying on Dinesh and Khuman Singh. Interestingly, in Danish Khan, the offence took place in 2019 i.e. post amendment. The Court should have applied the new standard. Nevertheless, like the Supreme Court, the High Court conflated standards and applied the ‘only’ standard to the amended clause. A similar conflation is seen by the Chhatisgarh High Court in Pavas Sharma v State of Chhatisgarh.

Thus, after the 2015 amendment, enacted to strengthen the SC/ST Act, the Supreme Court in Asharfi first increased the standard under the pre-amendment section. It then in Khuman Singh and Hitesh Verma applied the higher standard even to the amended section, thereby destroying the purpose of the amendment itself. 

Critique of Existing Jurisprudence Based on Intersectionality

Intersectionality claims that “oppression arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone...” [para 14, Patan Vali]. In other words, the experiences of a SC/ST woman are different from the experiences of a savarna woman. Multiple sources of oppression (such as caste, gender and disability) operate together, and they cannot be isolated in silos. In contrast to the intersectional approach, a single axis approach to discrimination homogenizes the experience of a group of persons based on a single marker such as gender, caste or disability. It does not account for the differences in experiences of persons within these groups. Patan Vali uses the lens of intersectionality to make two critiques – first, of the original section 3(2)(v); and second, of the holding in Ashrafi.

In terms of the original section, the Court states that the phrase “on the ground” is an instance of a statute only recognizing a single-axis model of oppression which requires that a person prove a discrete experience of oppression suffered on account of their caste. However, the problem with such statutory formulations according to the Court is that when the oppression is intersectional, it is difficult to separate out various grounds for oppression because they operate together. When a disabled, Schedule Caste woman experiences sexual assault she does not know whether it was because she was a woman or disabled or Schedule Caste. Her experiences are not disjunctive, but a combination of all her identity markers. According to the Court, the amended section on the other hand, by doing away with “on the ground”, enables an intersectional approach. [para 50].

The Court then critiques Asharfi, which read-in the requirement – “only on the ground” into Section 3(2)(v). This the Court observes is an incorrect reading of the clause and amounts to introducing a restriction that the Act did not contemplate. Further, from an intersectional lens, such an interpretation fails to account for how oppression functions in a cumulative fashion, and a separation of the grounds of oppression is impossible. The Court states that the correct interpretation of the original section would be that an offence under the section is established, so long as it can be shown that caste was merely one of the grounds for the offence. [para 55].

This critique marks an important discontinuity from other Supreme Court judgements which have sought to validate the Asharfi interpretation and have even extended it to the amended SC/ST Act. However, in my opinion, its first criticism of the original section 3(2)(v), incorrectly identifies the problem as the wording of the section - in particular, the phrase “on the ground”. This phrase, according to the Court, indicates that a person needs to “prove a discrete experience of oppression suffered on account of” their caste [para 50]. This however is not possible because grounds of oppression operate together – thus according to the Court the amendment rectified a flaw in the statute by replacing “on the ground” with “knowing that”. But the Court provides no explanation for why it believes that the wording of the original section required a single-axis approach. In fact, it seems to contradict itself on this point later in the judgement. While critiquing Asharfi, it states that reading in “only” was incorrect because an offence under the original section is established, so long as caste is merely one of the grounds of the offence – i.e., an intersectional approach was possible [para 55]. On one place the Court holds that the original section embodies a single-axis approach, whereas in another, it holds that the section embodies an intersectional approach. 

Apart from this inconsistency, Patan Vali failed to identify a more fundamental problem with previous interpretations of section 3(2)(v) – the introduction of a mens rea (or motive) requirement. As mentioned earlier, this was without any textual or historical basis. The failure to recognize the problem of the judicial introduction of mens rea has two consequences. First, it led the Court to hold that the 2015 amendment was necessary because of a lacuna in the statute, and not because of judicial misinterpretation of the original section. Given that there are pending cases from before the amendment, Patan Vali only serves to fortify the judicial misinterpretation by characterising it as a legislative error. Second, as I argue below, the Court ends up requiring proof of mens rea – which is ultimately the reason why it finds that the charge under Section 3(2)(v) has not been satisfied.

Supreme Court’s Decision on The Facts of Patan Vali 

While the Court doubts the correctness of the ruling in Asharfi, it refrains from referring the matter to a larger bench. This is because the Court says that the case anyway fails on evidentiary grounds, and thus, it need not go into an interpretation of the section itself [paras 55-56].

The Court holds that the prosecution failed to establish that the offence was committed on the basis of caste, and in this regard, disagrees with the ruling of lower courts. The Sessions Court had inferred that the offence was committed on the grounds of caste on the basis of the circumstances surrounding the offence –the accused knew the victim’s caste, and he committed the offence in her own house, in broad daylight, with her mother around – highlighting the impunity he believed he had on account of his caste [para 7]. However, according to the Supreme Court, for a conviction under the section the prosecution must lead “separate evidence” that specifically establishes the intent or motive of the accused [para 58]. When the Court introduced a motive requirement in the past, it left room for lower courts to infer motive based on surrounding circumstances – as the Sessions Court did here. However, Patan Vali adds further restrictions by requiring prosecution to furnish “separate evidence” as to the accused’s intent. 

The Court holds that since the original section adopts a single-axis approach, but oppression is intersectional, it would be difficult to establish what led to the offence – “whether it was her caste, gender or disability” [para 58]. Intersectionality thus becomes a reason for why an offence under section 3(2)(v) cannot be established. 

Far from being progressive, the Supreme Court’s reasoning on facts ultimately creates two additional hurdles for a successful prosecution under section 3(2)(v) – first, that motive cannot be inferred from circumstances, but requires separate evidence; and second, intersectionality makes it harder to separate grounds for oppression, making it difficult to show that an offence was on the basis of caste. While the criticisms of the Act and past precedent constitute obiter and do not change the position of law (since the matter is not referred to a larger bench), the additional restrictions it introduces are part of the ratio, as they constitute the core of Court’s decision. Nevertheless, it is an important judgement in that it recognizes the challenges that plague the enforcement of the SC/ST Act. Only time will tell which aspects of this judgement are fortified in further rulings by courts across the country.

Guest Post: Analysing of 3(2)(v) SCST Act in light of Danish Khan v. State

(This is a guest post by Jaiyesh Bhoosreddy)

The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (“SC/ST Act”) is a special legislation enacted for preventing and deterring commission of offences and atrocities against members of the Scheduled Castes and the Scheduled Tribes (“SC/ST”). In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3 SCC 221, the Supreme Court held that offences enumerated under the SC/ST Act falls into a special and separate class of offences. The Constitution of India, under Article 17, expressly deals with abolition of ‘untouchability’ and forbids its practice in any form. It also provides that the enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law. Therefore, offences enumerated under the SC/ST Act, specifically Section 3(1), arise out of the practice of ‘untouchability’.

At the outset, the author would like to clarify that criticism of the judgment under discussion is to be viewed isolated from its particular factual matrix; rather, it should be viewed in context of the precedent that it sets juxtaposed with the social conditions which ail the SC/ST communities in India, and the deeply ingrained disdain of the Indian society that is directed towards the members of the SC/ST.

Offence must be ‘impelled on the consideration that the victim is a member of a SC/ST’

In a recent judgment by the Delhi High Court in the matter of Danish Khan @ Saahil v. State (Govt. of NCT of Delhi) (“Danish Khan”) [Bail Application 3497/2020 (2021)], a Single Judge Bench granted anticipatory bail to the applicant who was accused of commission of an offence under Section 3(2)(v) of the SC/ST Act. The Court held that the offence was only made out when an offence under the Indian Penal Code, 1860 (“IPC”) should have been committed on a member of a SC/ST ‘particularly for the reason’ that such person is a member of a SC/ST. It is not the purpose of Section 3(2)(v) that ‘every offence’ under the IPC attracting imprisonment of 10 years or more would come within the SC/ST Act merely because the IPC offence is committed against a person who 'happens’ to be a member of a SC/ST. The enhanced punishment provided under Section 3(2)(v) is attracted when the ‘reason for the commission of the offence’ under the IPC is the fact that the victim is a member of a SC/ST. It is a necessary element that the "offender’s action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe". The Court explained that this rationale conforms with the Preamble of the SC/ST Act and the legislative intent behind the statute, which it viewed as creating a stringent regime to penalise targeting persons by reason of their caste identity. 

A similar view was taken in the matter of Dinesh @ Buddha v. State of Rajasthan [(2006) 3 SCC 771], wherein the Supreme Court held that — in connection with Section 3(2)(v) — the offence committed against a person must be ‘on the ground’ that such a person is a member of a SC/ST. This view was also held by the Supreme Court in Khuman Singh v. The State of Madhya Pradesh [(2019) SCC Online SC 1104] wherein the Court held that unless an offence is committed ‘only on the ground’ that the victim was a member of a Scheduled Caste, the offence under Section 3(2)(v) would not be made out.

Critical Analysis of Section 3(2)(v) of the SC/ST Act

The author would argue against the interpretation applied in Danish Khan as erroneous in a three-fold manner. 

Firstly, it is against the legislative intent which is clear from a reading of the provision and the preamble, which the court incorrectly read, through a beneficial interpretation of the provision, in favour of the narrowed scope of Section 3(2)(v). Secondly, it would be pertinent to mention that the rationale of the impugned judgment is also in conflict with the earlier decisions of the Supreme Court vis-à-vis the application of Sections 18 and 18A of the SC/ST Act, and the fact that the said provisions impose a bar on the grant of anticipatory bail once a prima facie case for applicability of the provisions of the SC/ST Act has been made out. Lastly, the rationale of Danish Khan, that it is not the purpose of Section 3(2)(v) of the SC/ST Act to punish ‘every offence’ under the IPC attracting imprisonment of 10 years or more with an enhanced punishment simply because the offender committed the offence against a person ‘who happens’ to be a member of a SC/ST and that an offender’s action must be impelled by the consideration that the victim is a member of a SC/ST to invoke the provision of Section 3(2)(v) of the SC/ST Act, does not hold strength in context of Indian society and the social conditioning of the populace vis-à-vis the caste system.

[A] Contrary to the Legislative Intent

The interpretation in Danish Khan with respect to application of Section 3(2)(v) is disjointed from the legislative intent evident from reading the provision and the preamble, and therefore, it is misconceived. It would be apposite to reproduce the wordings of Section 3(2)(v) for the sake of reference:

“3. Punishments for offences of atrocities.— …

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— …

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” (Emphasis added)

It is evident that the legislature intended to cover commission of any offence under the IPC, with punishment for a term of ten or more years, to be brought within the scope of Section 3(2)(v) of the SC/ST Act, as long as the offender satisfied the minimum threshold requirement of knowledge that the victim belonged to a SC/ST. This interpretation flows naturally from the reading of the following phrases in the provision, “commits any offence under the Indian Penal Code” and “knowing that such a person is a member of a Scheduled Caste or a Scheduled Tribe”, and it would also be pertinent to note that the latter phrase was specifically inserted by the legislature at a later point of time in order to substitute the original phrase which is as follows, “on the ground that such a person is a member of a Scheduled Caste or a Scheduled Tribe”. The interpretation in Danish Khan is undoubtedly contrary to the legislative intent, as it substitutes “knowing” with “impelled by the consideration”, thereby meaning that there must be a direct nexus between the alleged offence and caste status. A Court while interpreting a law can import/supply meaning to a legislation when the same has not been provided by the legislature and the provision is vague or unclear from a plain reading of the text, as per the standard English dictionary, according to the rule of literal interpretation of statues. However, it cannot interpret a provision contrary to the legislative intent so as to change the meaning of the provision, which was never intended by the legislature in the first place.

It would be apposite to reproduce the preamble of the SC/ST Act at this junction, considering as Danish Khan suggests that its logic is in conformity with the text:

“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 and the Exclusive Special Courts] for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.” (Emphasis added)

The SC/ST Act is a special legislation that intends on deterring all forms of crimes committed against the members of the SC/ST by ensuring prevention of the commission of offences and / or atrocities against such persons. This would include eligible offences under the IPC which could be attracted within Section 3(2)(v) to provide a harsher punishment for deterring all form of offences against members of the SC/ST provided that  an accused knew that such person was a member of a SC/ST. This approach is arguably in greater harmony with the preamble of the SC/ST Act as well as the legislative intent than the rationale provided in Danish Khan.

[B] Interpretation in Danish Khan of Section 3(2)(v) is in conflict with Section 18 of SC/ST Act and Prathvi Raj Chauhan

The rationale of Danish Khan is conflicting with earlier decisions of the Supreme Court of India. In the matter of Prathvi Raj Chauhan v. Union of India & Ors. (“Prathvi Raj Chauhan”) [(2020) 4 SCC 727] a three judge Bench of the Supreme Court upheld the constitutionality of the SC/ST Act denying anticipatory bail for certain offences by crafting an approach that requires a court to test whether allegations of offences under the SC/ST Act are prima facie made out. Determining whether the offence was “impelled on the consideration” of one’s caste status would require an inquiry of a kind that travels much beyond the prima facie test which Prathvi Raj Chauhan endorsed. This argument is further buttressed by the decision of the Supreme Court in Vilas Pandurang Pawar & Anr. v. State of Maharashtra and Ors. [(2012) 8 SCC 795] where it was held that, while at the stage of considering an application for anticipatory bail, the scope for appreciation of evidence and other material on record is limited and could not involve an elaborate discussion on evidence. Additionally, in Manju Devi v. Onkarjit Singh Ahluwalia & Ors. [(2017) 13 SCC 439] the Supreme Court observed that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process and can only be taken into consideration at the time of the trial. Thus, the question of whether an eligible offence under the IPC was impelled on the consideration of caste status or not cannot be examined at the stage of considering an application for grant of anticipatory bail.

[C] Misconceived Approach disjointed from the realities of the Indian Society

The approach in Danish Khan is misconceived and flawed in the context of Indian society. It suffers from the infirmity of being disjointed from the realities of the Indian society, which reflects a deeply ingrained disdain towards members of the SC/ST by virtue of a long history of social conditioning through the structures of the caste system. It proceeds on the flawed assumption that an offender’s motive for committing an offence against a member of a SC/ST can easily be ‘identified’ and ‘pinpointed’ on the basis of direct nexus of the ‘motive for the crime’ which is to be for the explicit ‘reason of caste status’ only, and the same can be distinguished from the aspect of ‘mere knowledge’ to segregate the eligible offences into two categories. In the first category of eligible offences, which would be applicable within the meaning of Section 3(2)(v) of the SC/ST Act, the offence must have occurred for the clear motive of hatred or disdain specifically against a member of a SC/ST. The second category of eligible offences, which would be excluded from Section 3(2)(v) of the SC/ST Act, the offence has been committed against a person coupled with the knowledge that such a person is a member of a SC/ST.

It is not possible or feasible, as a method of approach, to segregate each eligible offence on the criteria that it had occurred for the ‘purpose of targeting’ a person by ‘reason of their caste status’ distinguished from an offence that occurred against a person ‘who happened’ to be a member of a SC/ST. The correct approach to dealing with this situation has already been provided by the legislature, that is, if an offender commits any eligible offence under the IPC against a person knowing that such a person is a member of a SC/ST, then it would be trite to say that such an offence has been committed in a wilfully callous and criminally negligent manner against a member of an extremely vulnerable and marginalised section of Indian society, and the same should be prevented at all costs through all possible means of deterrence which is appropriately dealt with by the SC/ST Act. Therefore, the second category of eligible offences under the IPC should also be attracted within the meaning of Section 3(2)(v) of the SC/ST Act.

Conclusion

In light of the above discussion, the author strongly contends that the rationale of the single judge Bench in Danish Khan is patently flawed as it is contrary to the legislative intent evident from the plain reading of the bare provision and the preamble of the SC/ST Act. Additionally, the rationale in Danish Khan is conflicting with the earlier decisions of the Supreme Court of India vis-à-vis the applicability of Sections 18 and 18A of the SC/ST Act. Furthermore, the rationale in Danish Khan is a misconceived approach disjointed from the realities of the Indian society in light of the deep social conditioning that has occurred by virtue of passage of time accompanied with the internalisation of the negative notions propagated by the caste system for generations. The rationale, as a matter of precedent, in Danish Khan would be counter-productive to the intent and purpose of enacting the SC/ST Act in the first place and it would also erode the fine balance of maintaining the peace and tranquillity in the society, especially in the minds of the members of the SC/ST, which the legislature intended to provide by enacting the special legislation.

Guest Post: End of Justice? The Supreme Court's Order in Hitesh Verma v State of Uttarakhand

(This is a guest post by Prannv Dhawan & Ishwar Singh)

The Supreme Court’s recent judgment in Hitesh Verma v. State of Uttarakhand [decided on 05.11.2020] reversed an order of the Uttarakhand High Court and quashed the case with respect to allegations under SC/ST (Prevention of Atrocities) Act 1989 (‘the Act’). The Court held that insulting or intimidating a person belonging to a Scheduled Caste or Scheduled Tribe (SC/ST) community will not be counted as offence under the Act unless such insult or intimidation is on account of the victim belonging to SC/ST community. We argue that the decision has gone against the settled principles of invoking the power of quashing under section 482 and can act as a major hurdle for criminal trials to take place under the Act.

Factual Background

Before commenting on the reasoning and outcome of this decision, it is important to discuss the factual context and the impugned judgment of the High Court. The petition of the accused for quashing of the chargesheet and summoning order under the Act was dismissed by the High Court as it observed that the offence of insulting was prima facie made out and that the accused had failed to demonstrate any dereliction of duty or irregularity in the police investigation to merit the exceptional remedy under section 482 of CrPC. 

The complainant, a woman belonging to a scheduled caste, got lodged a First Information Report on 11.12.2019 regarding an incident that allegedly happened on her fields where the construction of her house was going on. She alleged that the accused (along with his family members) "entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks… said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity." She also alleged that the accused (along with his family members) since "past 6 months, [was] not allowing the applicant to work…[gave] death threats and [used] caste coloured abuses". 

The FIR was filed under section 3(1)(e) and section 3(1)(r) but the chargesheet was filed only under section 3(1)(x) [3(1)(x) post-amendments corresponds to 3(1)(r)]. Section 3(1)(e) deals with any act derogatory to human dignity like removal of moustache etc. The constant threats, and forcible taking away of construction material could be covered under the same. However, the legal proceedings were limited to the question of casteist remarks which the police reported to be covered under sub clause (r) that deals with ‘intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.’

The Supreme Court's Reasoning

The Court held that because the remedy under section 482 has been provided for in and applied in cases under the Act, it should be applied in this case as well. Precedents, however, require exceptional circumstances, grave error in investigation or the necessity to meet ends of justice, to justify the grant of this remedy. A three judge bench of the Supreme Court had, in Girish Kumar Suneja v. CBI (2017) 14 SCC 809, clarified the scope of these appeals. In the context of the appeals for revision (s 397, CrPC) and plenary jurisdiction (s 482, CrPC), the Supreme Court held that the revisionary jurisdiction is a discretionary jurisdiction (para 11) for the aid of justice. It also reiterated the principles laid down in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 that the power under section 482 of the CrPC should be exercised only in the rarest of the rare cases (Paras 34, 38). Another two judge bench of the Supreme Court, in State of UP v. Banne alias Baijnath, (2009) 4 SCC 271 reiterated the principles on the scope of interference in appeal held in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 to conclude that there must be “very substantial and compelling reasons” to discard the High Court's decision. These principles state that the Court must be extremely reluctant while reversing concurrent findings of lower courts and must intervene only if the impugned order is manifestly unjust and unfair based on erroneous law and facts leading to grave miscarriage of justice (Paras 27-28).

Another aspect which is of paramount importance is the explicit bar to use the power under Section 482 when a prima facie offence is made out from the FIR and other additional material present before the court as held in J P Sharma v. Vinod Kumar Jain, 1986 (3) SCC 67 (Para 51). This is important especially at the stage when the charge-sheet is laid before the trial court and only duty of the court exercising powers under Section 482 is to "prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial" as per State of HP v. Prithi Chand, 1996 (2) SCC 37 (Para 12). Even if the accused is successful in showing some suspicion or doubt, the allegations are to be believed at their face value [Rajiv Thapar and others v. Madan Lal Kapoor, 2013 (3) SCC 330 at Para 28 and Subrata Das v. State of Jharkhand, 2010 (10) SCC 798 at Para 6] and any enquiry as such to ‘probability, reliability, genuineness’ [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194 at Para 23] or ‘truthfulness, sufficiency and acceptability’ [State of Maharashtra v. Salman Salim Khan, 2004 (1) SCC 525 at Para 12] of the material produced should necessarily be relegated to stage of trial. Interestingly, a recent decision by the Court in Arnab Manoranjan Goswami v. State of Maharashtra (Criminal Appeal No. 742 of 2020, delivered after Hitesh Verma) has seemed to clarify the position that the powers under Section 482 must necessarily be exercised to evaluate to find out whether offence has been made out as per the allegations especially in cases where the accused has prima facie been able to establish instance of abuse of process such as ‘weaponized’ use of instrumentality of state (Paras 61 and 62).

The only exception to this bar is when continuity of the criminal proceeding constitutes an ‘abuse of process’ such as when a complaint has been initiated with malice or to cause harm or where allegations are absurd and inherently improbable [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 at Paras 102-103]. The Court, in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 also states that the cases can be quashed in ‘exceptional circumstances’ when misuse of provisions is established. In this case, there is no evidence for the misapplication of the section, irregularity in investigation or any other infirmity. 

The Court also reasoned that the offence was in relation to a property dispute and not relating to 'indignities, humiliations and harassment’ faced by vulnerable sections of society. Para 13 of judgment states that, "[T]he assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste." However it is trite that the mere existence of prior civil dispute or availability of simultaneous civil remedy alone is not a sufficient ground for quashing as held in Indian Oil Corporation v. NPEC India Ltd, 2006 (6) SCC 736 (Para 12). 

In fact, the Court has in Kailas v. State of Maharashtra, 2011 (1) SCC 793 explicitly noted the historical stigmatisation of scheduled communities and also has recently acknowledged in Union of India v. State of Maharashtra, (2020) 4 SCC 761 that SC/ST informants face various difficulties in getting cases filed. In the present case, the court disregarded the testimony regarding death threats, insult regarding lower caste status and intimidation to pass a judicial remedy enforcing caste amnesia. The Court also presumed that the offence was not on account of the informant’s caste despite the existing complaint and testimony. It is also stated that section 482 is an exceptional revisionary remedy that exists in case a misuse is demonstrated. Hence, a clear problem with this judgement is the low threshold applied in application of section 482. Hence, the Uttarakhand HC dismissal should have been upheld.

In light of the above analysis, the Court’s intervention at the pre-trial stage in a criminal investigation leaves much to be desired. It is hardly surprising that the National Coalition for Strengthening SCs & STs PoA has called for a review of the judgment. The coalition has further pointed out the failure of the police to invoke 3 (1) (u) and 3 (2) (va) of the Act in this case. Considering the ‘abysmally low’ rate of conviction under this social protection legislation, the Court ought to have considered the impact of its judgment on how the law will be interpreted by police and subordinate courts. The grant of the exceptional relief, thus leads to an ‘end of justice’ when no ends of justice were being achieved by the intervention at this stage.