This blog has been written by Tvesha Chauhan and Arnav Singh, Students at NLSIU.
Introduction
When the Parliament echoes “shall not”, the court replies by adding “unless”. The word “absolute” has lost its meaning in court transcripts. The Supreme Court’s recent judgment in Kiran v. Rajkumar Jivraj Jain & Anr.(‘Kiran’) interpreted the ‘absolute bar’ on anticipatory bail under Section 18 of the SC & ST (Prevention of Atrocities) Act (‘Act’) to be a “conditional bar”, only to be applied when caste-based intent is prima facie visible. The legislature’s usage of unqualified language in Section 18 has found new meaning in this judgement, stating that the same must be applied with a rider.
The Parliament of India in 1989 implemented this Act in light of the general law’s inadequacy to deal with casteist atrocities. Through Section 18 of this Act, it sought to prevent precisely what the court has allowed in this matter, a prima facie test enabling judicial discretion. This judgment, apart from overriding legislative intent, also risks institutionalising subjective decisions by courts and invites strategic manipulation in future applications, all at the expense of the lower judiciary, and most importantly, the victims that the Act seeks to protect.
This article argues that the Kiran judgment’s opening up of anticipatory bail through the application of a prima facie test undermines the statutory intent behind the Act, and only introduces various challenges for the lower judiciary by fostering a potential for inconsistent outcomes and a demand for premature assessments of subjective elements. It also explores the undue burdens placed on the victim and investigative agencies, to argue that this decision can open up systemic evasion routes for the accused[s] through its flawed interpretation of the Act.
Legislative and Judicial Trajectory of Section 18
Section 18 of the Act expressly prevents Section 438 of the Code of Criminal Procedure (‘CrPC’) (grant of anticipatory bail) from applying to the provisions therein. When the constitutionality of this provision was challenged on grounds of Article 14 in Ram Krishna Balothia (1995)(‘Balothia’). The Supreme Court justified the bar through a ‘reasonable nexus’ test, recognising the link between the nature of caste-atrocities and the need to refuse anticipatory bail in these cases. The court opined that granting anticipatory bail under such matters, due to the nature of the offence and the social background behind its commission, would enable the accused to potentially terrorize the victim and prevent a proper investigation [Ram Krishna Balothia (8)]. Thus, the court rooted the bar’s constitutionality in a substantive recognition of how caste atrocities fall under a distinct and special class to warrant this heightened safeguard.
The settled law, per the legislative and social rationale set out in Balothia, was brought into question again in Kashinath Mahajan v. State(‘Kashinath’), marking a major judicial departure. In casu, the Supreme Court ruled, for the first time, that Section 18 of the Act does not affect a blanket ban, and when a case does not prima facie suggest that the offence was directed towards the victim’s caste, anticipatory bail under Section 438 becomes possible for the accused. This was effectively a judicially curated exception, prioritising a court’s assessments over legislative intent as laid out in the Act.
The guidelines laid down in Kashinath were nullified in 2018 when the Parliament amended the Act to include Section 18A, which explicitly states a bar on the application of Section 438 of the CrPC, notwithstanding any order or judgment from any court, solidifying legislative intent. Furthermore, on a review petition filed by the Union in 2019, the court recalled its earlier judgment. In this matter, the court affirmed that the purpose and objective of the Act was to prevent atrocities by creating special protections with quick and accessible remedies for the aggrieved classes [UOI v State of Maharashtra (5)]. The court therefore opined that granting anticipatory bail would only hamper the investigation and thereby frustrate Rule 7 of the Act, which necessitates the completion of the investigation within 30 days. The court recognised, among other things, that this would shake the very objective of the Act by exacerbating delays and therefore increasing the plight of the classes it seeks to protect [UOI v State of Maharashtra (62)]. However, the Court’s move in Kiran mirrors the same reasoning that Parliament rejected through the 2018 amendment, thereby reviving the judicially-curated exception that the legislature had foreclosed.
The Kiran Judgment: An Systemic Erosion of Protections
The Kiran judgment reads into Section 18 an unwarranted and unlegislated “prima facie test”. The court thereby allows anticipatory bail to be granted on merits wherever a prima facie case cannot be made under Section 3 of the Act, reducing Section 18 to a question of judicial discretion. An assessment of the merit[s] of a case requires a consideration and analysis of the ingredients of the offence under Section 3, one of which is caste-based intent. This prima facie test, thereby not only goes against the legislative intent, but also calls for an assessment of inherently subjective questions of fact including but not limited to humiliation and caste targeting, despite the statutory foreclosure on an inquiry. This test thereby invites varied interpretations of caste-based intent of charges under Section 3 of the Act, which opens the door for potential inconsistency of outcomes.
The court further stated that it would not be permissible [for the court] to travel into the evidentiary realm or to even conduct a mini-trial, and that a prima facie assessment of merits has to be done from the bare language of the FIR. While a prima facie test based on the FIR is an established practice in bail jurisprudence under other special laws, plainly applying this test to section 3 offences under the Act creates challenges specific to this Act. The test involves presuming the facts in the FIR as true and then examining whether, on the face of it, the evidence establishes a likelihood of the accused having committed the alleged offence.
While the judicial focus under other special laws is solely on whether the accused actually committed the offence, offences under Section 3 of the Act additionally require demonstrating the subjective element of caste-based intent. The court’s current judgment, by restricting the assessment of caste-based intent to solely the language of the FIR, creates an impossible standard for the lower courts by adopting a test not envisioned for offences under this Act. It presents an inherent contradiction whereby courts have to conclusively assess whether caste-based intent exists, but without the option of a detailed exploration of evidence and questions of fact, only based on a “first impression” of the FIR itself.
The judgment also places reliance on the lower judiciary to perform an inquiry on merits, solely based on subjective interpretations of an FIR. It essentially asks the lower judiciary to engage with the FIR, but is silent on whether clarifying affidavits or conducting a scrutiny of circumstantial evidence therein comes under the ambit of “travel into the evidentiary realm”. The reasonable outcome of such a lack of a specific threshold for examination would be the inevitable interpretation, and the subsequent creation, of varied prima facie standards by the trial courts. The trial courts would be forced to invent ad hoc standards to abide by, in the absence of clear guidelines by the Apex court.
Such an impossible standard has a cascading effect not only on the lower courts, but also on the victims. It is at the stage of filing the FIR itself now that the victim would be forced to detail, in an exhaustive manner, all facts pertaining to the commission of the offence. Otherwise, it could potentially be used by the defense as defects in the FIR. This risks minor ambiguities to be painted as defects, thereby creating an institutionalised impunity and potentially risking excusing Section 3 offences under the guise of “lack of clarity” in an FIR. The judgment thereby incentivises the investigative agencies to do exactly what the legislative intent denied (through the 18A insertion in 2018) – placing a disproportionate investigative burden immediately upon or even prior to filing the FIR. The evidence collection exercise by the police would be forced to be airtight, inevitably exacerbating delays to such an extent that the aim of the act – a quick and protective process for the victim – would be frustrated.
Conclusion
The Kiran judgment is a fundamental violation of legislative intent as it erodes the absolute bar that the Parliament sought to enshrine in Section 18 by reading into it a prima facie test. It also sets an impossible standard for the lower courts wherein their assessment relates to inherently subjective elements of intent, but the only material allowed for such assessment is objective- the bare language of the FIR. This in turn gives the accused the potential to exploit drafting errors in the FIR which could be painted as mere ambiguities of fact, shifting a heavy burden on the victim and the investigative agency to paint a crystal-clear FIR through excessively long investigations and enquiries. This judgment prescribes a standard which inherently goes against the legislative intent with which this Act came into being in 1989. In sum, a dilapidated reality where paperwork outranks established principle, a message crudely attested to the oppressed: approach the law at your own risk.
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