Whether the court must hear victim while deciding bail application of accused in bailable offences under the SC & ST Atrocities Act?

Our final conclusions may be summarised as under :

(1) Section 15A(3) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015 (1 of 2016) is not ultra vires Articles 14 and 21 of the

Constitution of India.

(2) Section 15A(3) of the Amendment Act, 2015, cannot be

termed as manifestly arbitrary.

(3) Section 15A(3) of the Amendment Act, 2015, has to be

construed as mandatory and not directory. The

non-compliance of the said provision would render the

order null and void.

(4) Section 15A(3) of the Amendment Act, 2015, in no

manner imposes any unreasonable restrictions or fetters

on the discretion of the competent court, for the purpose of

considering the plea of bail. The general principles with

regard to grant of bail would continue to apply even in

cases under the Atrocities Act.

(5) The right of a person, who is accused of committing

only bailable offence or offences, if any, under the Act, to

be released on bail, is absolute in view of the provisions

contained in Section 436(1) of the Code of Criminal

Procedure. There is no provision in the Act which curtails

the right of an accused to get bail in a case of bailable

offence. The provisions contained in Section 15A(5) does

not, in any manner, affect the absolute right of a person,

who is accused of only bailable offence or offences, to be

released on bail.

(6) When a person is accused of committing only bailable

offence or offences under the Act, it is not mandatory to

grant opportunity of hearing to the victim or the dependent

as provided under Section 15A(5) of the Act in a proceeding

relating to granting bail to such accused. However, before

the court decides to decline such opportunity to the victim

or the dependent, the court shall thoroughly verify and

ascertain that the allegations against the accused disclose

commission of only bailable offence or offences under the

Act, by him.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 6369 of 2020

THE CHIEF JUSTICE MR. VIKRAM NATH and

 MR. JUSTICE J.B.PARDIWALA 

HEMAL ASHWIN JAIN (SHETH) Vs  UNION OF INDIA

CORAM:  THE CHIEF JUSTICE MR. VIKRAM NATH

and MR. JUSTICE J.B.PARDIWALA

Date : 06/08/2020

(PER :  MR. JUSTICE J.B.PARDIWALA)

1. By this writ-application under Article 226 of the

Constitution of India, the writ-applicant has prayed for the

following reliefs :

“(a) To allow this application;

(b) To hold and declare that the provisions of Section

15A(3) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 being violative of Article

14 and Article 21 of the Constitution of India;

(c) To issue appropriate Writ, Order or Direction quashing

and setting aside provisions of Section 15A(3) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 being ultra vires to Article 14 and

Article 21 of the Constitution of India;

(d) To direct that the provisions of Section 15A(3) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 be read down as directory and not

mandatory so as to empower the concerned court to

consider application of bail without issuing formal Notice to

the complainant;

(e) Pending admission, hearing and final disposal of this

application, to stay the implementation and operation of

provisions of Section 15A(3) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989;

(f) To pass any other and further orders as may be

deemed fit and proper to this Hon'ble Court.”

2. The facts giving rise to this litigation may be summarised

as under :

3. The writ-applicant is serving as a Manager in a company

running in the name of the Western Auto-spares situated at

Ahmedabad. It appears from the materials on record that one of

the employees of the factory got a First Information Report

registered against the writ-applicant for the offences punishable

under the provisions of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Amendment Act, 2015 (1 of

2016). In connection with the said FIR, the writ-applicant was

arrested by the police and later was ordered to be released on

bail.

4. It is the case of the writ-applicant that the registration of

the FIR against him by the employee of the factory is nothing but

gross misuse of the provisions of the Atrocities Act. It is his case

that he is a victim of malicious, vexatious and frivolous

prosecution.

5. It appears that in view of Section 15A of the Amendment

Act, 2015, falling within Chapter IVA, the first informant, in his

capacity as the so-called victim, was also heard by the Special

Court before granting bail to the writ-applicant.

6. It is the case of the writ-applicant that the amended

provisions in the form of Section 15A(3) and (5) are ultra vires

Article 14 of the Constitution of India being manifestly arbitrary.

7. According to the writ-applicant, Section 15A(3) and (5)

should be construed as directory and not mandatory. According

to the writ-applicant, the impugned provisions of law infringe the

right of an accused to seek bail from the competent court in

connection with a particular offence as it is now mandatory for

the Special Court, while considering the plea of bail in

connection with the offences under the Atrocities Act, to hear the

victim. This, according to the writ-applicant, could be termed as

a very drastic and draconian provision of law.

8. It is the case of the writ-applicant that except in cases

under the Atrocities Act, for no other offence, it is mandatory for

any court to hear the victim/complainant while considering the

plea of bail put forward by any accused. According to the

writ-applicant, no exception should be carved out when it comes

to considering the plea of bail. To put it in other words, it is the

case of the writ-applicant that even while hearing a bail

application of an accused charged with an offence of murder or

any other serious offence, if it is not mandatory for the court to

hear the victim/complainant, then why the provision like Section

15A(3) and (5) of the Amendment Act should be introduced by

the Legislature.

9. In such circumstances referred to above, the writ-applicant

prays that Section 15A(3) of the Amendment Act, 2015 (1 of

2016) be declared as violative of Article 14 and 21 respectively of

the Constitution of India, or in the alternative, the provisions of

Section 15A(3) of the Amendment Act, 2015, be construed as

directory and not mandatory so as to confer discretion upon the

competent court to consider the bail application with or without

issuing any notice to the victim.

SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT :

10. The grounds of challenge to the constitutional validity of

Section 15A(3) of the Amendment Act, 2015, as raised in the

memorandum of writ-application are as under :

“(A) That, the provision is violative of Article 14 and 21 of

the Constitution of India. The provision imposes arbitrary

restriction on bail as a mandatory procedure which violates

right to liberty enshrined under Article 21 of the Constitution

of India. It is settled law that procedural discrimination also

can condemn Article 14 of the Constitution of India. That

regard the petitioner begs to rely upon the ratio laid down

by the Hon’ble Apex Court in case of Budhan Choudhry and

Other v. The State Of Bihar [1955 AIR 191]

(B) That the provision has no nexus with the object to be

achieved by the Act. That imposing of such condition and/or

restriction on bail would not serve any purpose and would

in fact render the provision susceptible to misuse as no

exception is provided for grant of bail in case the court finds

that no offence under provisions of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

is made out.

(C) That the provision deprives accused for his

Fundamental Rights of liberty in the sense that the accused

would not be entitled to bail at the time of his production

before the court.

(D) That the provision is violative of Section 437 of the

Code of Criminal Procedure, 1973 compelling the accused to

remain in custody even if offence is punishable with

imprisonment with less than seven years. In other words

the parent statue for bail is the Code of Criminal Procedure,

1973. The procedure for bail is provided under the said

Code. There is nothing in the provisions of Section 15A(3)

which would override provisions of Section 5 of the Code of

Criminal Procedure, 1973. In fact, Section 5 of the Code of

Criminal Procedure, 1973 provides that if there is specific

provision to the contrary then provision of Section 5 will save

the provision of the Code of Criminal Procedure, 1973 even if

there is overriding effect.

(E) That the debate - discussion concerning the present

amendment does not contain any specific discussion and/or

requirement on introducing such restrictions. The object of

the Act is not to keep person charged with offence under the

Act in custody but is to bring justice to the victim by

conducting expeditious trial in this process the present

amendment is not going to yield any result.

(F) It is stated that all the courts across the State

considers bail application only after Notice is issued to the

complainant even if the cases where there are no

reasonable grounds for believing that the offence under the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 is made out. This is on account of the

reason that the provision is absolute and drastic which does

not leave any exception to balance individuals liberty. This

ultimately will result into a pre-condition for grant of bail

impeaching Article 21 of the Constitution of India.

(G) The provision is drastic, arbitrary and unreasonable

which is susceptible to misuse as no exception is carved out.

(H) That even otherwise the impugned provision is bad in

law and same be quashed and set aside.”

SUBMISSIONS ON BEHALF OF THE UNION OF INDIA :

11. Mr.Devang Vyas, the learned Assistant Solicitor General of

India appearing for the Union, has vehemently opposed this

writ-application. Mr.Vyas would submit that the challenge to the

constitutional validity of Section 15A(3) of the Amendment Act,

2015, is without any basis or foundation. Mr.Vyas would submit

that Section 15A falling in Chapter IVA of the Amendment Act,

2015, is with a definite object and purpose. He would submit

that the complaint/allegation of atrocities, despite the provisions

of the enabling Act against the members of the Scheduled Castes

and Scheduled Tribes is a matter of concern. The Act has

accordingly been strengthen to make the relevant provisions of

the Act more effective. Mr.Vyas would submit that based on the

consultation process with all the stakeholders, the amendments

in the Atrocities Act were proposed to broadly cover five areas,

namely (i) Amendments to Chapter II (Offences of Atrocities) to

include new definitions, new offences, to re-phrase existing

sections and expand the scope of presumptions, (ii) Institutional

Strengthening, (iii) Appeals (a new section), (iv) Establishing

Rights of Victims and Witnesses (a new chapter) and (v)

Strengthening Preventive Measures.

12. Mr.Vyas would submit that the objective of all the

above-referred amendments in the Atrocities Act is to deliver to

the members of the Scheduled Castes and Scheduled Tribes a

greater justice as well as an enhanced deterrent to the offenders.

13. Mr.Vyas would submit that by any stretch of imagination it

cannot be said that the impugned provisions of the Amendment

Act is manifestly arbitrary. He would submit that mere

apprehension that such amended provisions in the Act are likely

to be misused cannot be a ground to strike down such

provisions as ultra vires Article 14 of the Constitution of India on

the ground of arbitrariness.

14. Mr.Vyas would submit that there is no scope to read down

the impugned provisions of law as directory. Having regard to

the language employed by the Legislature and also having regard

to the objects and reasons for the amendment, Section 15A(3) of

the Amendment Act has to be construed as mandatory and there

is no discretion with the competent court in this regard.

15. Mr.Vyas would submit that having regard to the provisions

of law, a victim or dependent has a right to be heard by the court

enabling the victim or dependent to participate in any proceeding

in respect of not only bail proceedings but also in the

proceedings of discharge, release, parole, conviction or sentence

of an accused or any connected proceedings or arguments and

file written submissions on the conviction, acquittal or

sentencing.

16. Mr.Vyas would submit that the reliance placed by the

learned counsel appearing for the writ-applicant on a recent

decision of the Supreme Court in the case of Nikesh Tarachjand

Shah v. Union of India, reported in (2018)11 SCC 1, is

completely misplaced. Mr.Vyas would submit that in Nikesh

Tarachand Shah (supra), the Supreme Court struck down

Section 45(1) of the PMLA Act on the ground of being arbitrary

and discriminatory. The twin conditions under Section 45(1) for

the offences classified thereunder in Part-A of the Schedule to

the PMLA Act were held to be arbitrary and discriminatory

because the Supreme Court found the same to be violative of

Articles 14 and 21 of the Constitution of India. Mr.Vyas pointed

out that what weighed with the Supreme Court in saying so was

the condition stipulated in Section 45 that where the Public

Prosecutor opposes the application the court should be satisfied

that there are reasonable grounds for believing that the accused

is not guilty of such offence and that he was not likely to commit

offence while on bail. Such a provision of law was found by the

Supreme Court to be manifestly arbitrary and was accordingly

declared as ultra vires Articles 14 and 21 of the Constitution of

India.

17. In such circumstances referred to above, Mr.Vyas prays

that there being no merit in this writ-application, the same be

rejected.

ANALYSIS :

18. Having heard the learned counsel appearing for the parties

and having gone through the materials on record, the following

questions of pivotal importance fall for our consideration :

(1) Whether Section 15A(3) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2015 (1 of 2016) is ultra vires Articles 14 and 21

respectively of the Constitution of India being manifestly

arbitrary ?

(2) Whether Section 15A(3) of the Amendment Act, 2015,

is mandatory or directory ?

(3) Whether Section 15A(3) of the Amendment Act, 2015,

imposes any restrictions upon the competent court while

considering the plea of bail in connection with the offences

under the Atrocities Act ? In other words, whether Section

15A(3) of the Amendment Act could be said to be, in any

manner, placing unreasonable restrictions when it comes

to exercising discretion in favour of an accused while

considering the plea of bail ?

19. Before adverting to the rival submissions canvassed on

either side, we must look into the impugned provisions of the

Amendment Act, 2015. We quote the entire Chapter IVA of the

Amendment Act, 2015, which is with regard to the rights of the

victims and witnesses as under :

“CHAPTER IVA

RIGHTS OF VICTIMS AND WITNESSES

15A. (1) It shall be the duty and responsibility of the

State to make arrangements for the protection of victims,

their dependents, and witnesses against any kind of

intimidation or coercion or inducement or violence or threats

of violence.

(2) A victim shall be treated with fairness, respect and

dignity and with due regard to any special need that arises

because of the victim’s age or gender or educational

disadvantage or poverty.

(3) A victim or his dependent shall have the right to

reasonable, accurate, and timely notice of any Court

proceeding including any bail proceeding and the Special

Public Prosecutor or the State Government shall inform the

victim about any proceedings under this Act.

(4) A victim or his dependent shall have the right to apply

to the Special Court or the Exclusive Special Court, as the

case may be, to summon parties for production of any

documents or material, witnesses or examine the persons

present.

(5) A victim or his dependent shall be entitled to be heard

at any proceeding under this Act in respect of bail,

discharge, release, parole, conviction or sentence of an

accused or any connected proceedings or arguments and file

written submission on conviction, acquittal or sentencing.

(6) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973, the Special Court or the Exclusive

Special Court trying a case under this Act shall provide to a

victim, his dependent, informant or witnesses—

(a) the complete protection to secure the ends of

justice;

(b) the travelling and maintenance expenses during

investigation, inquiry and trial;

(c) the social-economic rehabilitation during

investigation, inquiry and trial; and

(d) relocation.

(7) The State shall inform the concerned Special Court or

the Exclusive Special Court about the protection provided to

any victim or his dependent, informant or witnesses and

such Court shall periodically review the protection being

offered and pass appropriate orders.

(8) Without prejudice to the generality of the provisions of

sub-section (6), the concerned Special Court or the Exclusive

Special Court may, on an application made by a victim or

his dependent, informant or witness in any proceedings

before it or by the Special Public Prosecutor in relation to

such victim, informant or witness or on its own motion, take

such measures including––

(a) concealing the names and addresses of the

witnesses in its orders or judgments or in any records

of the case accessible to the public;

(b) issuing directions for non-disclosure of the identity

and addresses of the witnesses;

(c) take immediate action in respect of any complaint

relating to harassment of a victim, informant or

witness and on the same day, if necessary, pass

appropriate orders for protection:

Provided that inquiry or investigation into the

complaint received under clause (c) shall be tried

separately from the main case by such Court and

concluded within a period of two months from the date

of receipt of the complaint:

Provided further that where the complaint under

clause (c) is against any public servant, the Court shall

restrain such public servant from interfering with the

victim, informant or witness, as the case may be, in

any matter related or unrelated to the pending case,

except with the permission of the Court.

(9) It shall be the duty of the Investigating Officer and the

Station House Officer to record the complaint of victim,

informant or witnesses against any kind of intimidation,

coercion or inducement or violence or threats of violence,

whether given orally or in writing, and a photocopy of the

First Information Report shall be immediately given to them

at free of cost.

(10) All proceedings relating to offences under this Act shall

be video recorded.

(11) It shall be the duty of the concerned State to specify

an appropriate scheme to ensure implementation of the

following rights and entitlements of victims and witnesses in

accessing justice so as––

(a) to provide a copy of the recorded First Information

Report at free of cost;

(b) to provide immediate relief in cash or in kind to

atrocity victims or their dependents;

(c) to provide necessary protection to the atrocity

victims or their dependents, and witnesses;

(d) to provide relief in respect of death or injury or

damage to property;

(e) to arrange food or water or clothing or shelter or

medical aid or transport facilities or daily allowances

to victims;

(f) to provide the maintenance expenses to the atrocity

victims and their dependents;

(g) to provide the information about the rights of

atrocity victims at the time of making complaints and

registering the First Information Report;

(h) to provide the protection to atrocity victims or their

dependents and witnesses from intimidation and

harassment;

(i) to provide the information to atrocity victims or their

dependents or associated organisations or individuals,

on the status of investigation and charge sheet and to

provide copy of the charge sheet at free of cost;

(j) to take necessary precautions at the time of medical

examination;

(k) to provide information to atrocity victims or their

dependents or associated organisations or individuals,

regarding the relief amount;

(l) to provide information to atrocity victims or their

dependents or associated organisations or individuals,

in advance about the dates and place of investigation

and trial;

(m) to give adequate briefing on the case and

preparation for trial to atrocity victims or their

dependents or associated organisations or individuals

and to provide the legal aid for the said purpose;

(n) to execute the rights of atrocity victims or their

dependents or associated organisations or individuals

at every stage of the proceedings under this Act and to

provide the necessary assistance for the execution of

the rights.

(12) It shall be the right of the atrocity victims or their

dependents, to take assistance from the Non-Government

Organisations, social workers or advocates.”

20. We take notice of the fact that the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) (Amendment) Act,

2018, was made a subject matter of challenge before the

Supreme Court in the case of Prathvi Raj Chauhan v. Union of

India and others [Writ Petition (C) No.1015 of 2018, decided on

10th February 2020]. The main challenge before the Supreme

Court was to the legality and validity of the provisions inserted

by way of carving out Section 18A of the Act, 1989. Their

Lordships Arun Mishra and Vineet Saran, JJ. disposed of the

petition holding as under :

“9. The section 18A(i) was inserted owing to the decision

of this Court in Dr. Subhash Kashinath (supra), which made

it necessary to obtain the approval of the appointing

authority concerning a public servant and the SSP in the

case of arrest of accused persons. This Court has also

recalled that direction on Review Petition (Crl.) No.228 of

2018 decided on 1.10.2019. Thus, the provisions which

have been made in section 18A are rendered of academic

use as they were enacted to take care of mandate issued in

Dr. Subhash Kashinath (supra) which no more prevails. The

provisions were already in section 18 of the Act with respect

to anticipatory bail.

10. Concerning the applicability of provisions of section

438 Cr.PC, it shall not apply to the cases under Act of 1989.

However, if the complaint does not make out a prima facie

case for applicability of the provisions of the Act of 1989, the

bar created by section 18 and 18A(2) shall not apply. We

have clarified this aspect while deciding the review

petitions.

11. The court can, in exceptional cases, exercise power

under section 482 Cr.PC for quashing the cases to prevent

misuse of provisions on settled parameters, as already

observed while deciding the review petitions. The legal

position is clear, and no argument to the contrary has been

raised.

12. The challenge to the provisions has been rendered

academic. In view of the aforesaid clarifications, we dispose

of the petitions.”

21. We take notice of a separate judgment, though concurring,

of His Lordship Justice S.Ravindra Bhat. As the observations

made by His Lordship are helpful to this Court to decide the

present matter, we quote the observations of His Lordship

Justice S.Ravindra Bhat thus :

“1. I am in agreement with the judgment proposed by

Justice Arun Mishra as well as its conclusions that the

challenge to the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) (Amendment) Act, 2018 must fail,

with the qualifications proposed in the judgment with

respect to the inherent power of the court in granting

anticipatory bail in cases where prima facie an offence is

not made out. I would however, supplement the judgment

with my opinion.

2. The Constitution of India is described variously as a

charter of governance of the republic, as a delineation of the

powers of the state in its various manifestations vis-à-vis

inalienable liberties and a document delimiting the rights

and responsibilities of the Union and its constituent states.

It is more: it is also a pact between people, about the

relationships that they guarantee to each other (apart from

the guarantee of liberties vis-à-vis the state) in what was a

society riven along caste and sectarian divisions. That is

why the preambular assurance that the republic would be

one which guarantees to its people liberties, dignity, equality

of status and opportunity and fraternity.

3. It is this idea of India, - a promise of oneness of and

for, all people, regardless of caste, gender, place of birth,

religion and other divisions that Part III articulates in four

salient provisions: Article 15, Article 17, Article 23 and

Article 24. The idea of fraternity occupying as crucial a place

in the scheme of our nation’s consciousness and polity, is

one of the lesser explored areas in the constitutional

discourse of this court. The fraternity assured by the

Preamble is not merely a declaration of a ritual handshake

or cordiality between communities that are diverse and have

occupied different spaces: it is far more. This idea finds

articulation in Article 15. That provision, perhaps even more

than Article 14, fleshes out the concept of equality by

prohibiting discrimination and discriminatory practices

peculiar to Indian society. At the center of this idea, is that

all people, regardless of caste backgrounds, should have

access to certain amenities, services and goods so

necessary for every individual. Article 15 is an important

guarantee against discrimination. What is immediately

noticeable is that whereas Article 15 (1) enjoins the State

(with all its various manifestations, per Article 12) not to

discriminate on the proscribed grounds (religion, race, caste,

sex (i.e. gender), place of birth or any of them), Article 15 (2)

is a wider injunction: it prohibits discrimination or subjection

to any disability of anyone on the grounds of religion, caste,

race, sex or place of birth in regard to access to shops,

places of public entertainment, or public restaurants. The

relevant parts of Article 15 are extracted below:

“15. Prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any

citizen on grounds only of religion, race, caste,

sex, place of birth or any of them .

(2) No citizen shall, on grounds only of religion,

race, caste, sex, place of birth or any of them, be

subject to any disability, liability, restriction or

condition with regard to

(a) access to shops, public restaurants,

hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats,

roads and places of public resort

maintained wholly or partly out of State

funds or dedicated to the use of the general

public…”

(3) Nothing in this article shall prevent the State

from making any special provision for women and

children”

Article 15(2)(b) prescribes the subjection of anyone

to any disability on the prescribed grounds (i.e.

discrimination on grounds of religion, caste, race,

sex or place of birth) with regard to “the use of

wells, tanks, bathing ghats, roads and places of

public resort maintained wholly or partly out of

State funds or dedicated to the use of the general

public.

4. The making of this provision and others, in my view, is

impelled by the trinity of the preambular vision that the

Constitution makers gave to this country. Paeans have been

sung about the importance of liberty as a constitutional

value: its manifest articulation in the (original) seven

“lamps” i.e. freedoms under Article 19 of the Constitution;

the other rights to religion, those of religious denominations,

etc. Likewise, the centrality of equality as an important

constitutional provision has been emphasized, and its many

dimensions have been commented upon. However, the

articulation of fraternity as a constitutional value, has

lamentably been largely undeveloped. In my opinion, all the

three - Liberty, Equality and Fraternity, are intimately

linked. The right to equality, sans liberty or fraternity, would

be chimerical - as the concept presently known would be

reduced to equality among equals, in every manner- a mere

husk of the grand vision of the Constitution. Likewise,

liberty without equality or fraternity, can well result in the

perpetuation of existing inequalities and worse, result in

license to indulge in society’s basest practices. It is

fraternity, poignantly embedded through the provisions of

Part III, which assures true equality, where the state treats

all alike, assures the benefits of growth and prosperity to

all, with equal liberties to all, and what is more, which

guarantees that every citizen treats every other citizen alike.

5. When the framers of the Constitution began their

daunting task, they had before them a formidable duty and

a stupendous opportunity: of forging a nation, out of several

splintered sovereign states and city states, with the

blueprint of an idea of India. What they envisioned was a

common charter of governance and equally a charter for the

people. The placement of the concept of fraternity, in this

context was neither an accident, nor an idealized emulation

of the western notion of fraternity, which finds vision in the

French and American constitutions and charters of

independence. It was a unique and poignant reminder of a

society riven with acute inequalities: more specifically, the

practice of caste discrimination in its virulent form, where

the essential humanity of a large mass of people was

denied by society- i.e. untouchability.

6. The resolve to rid society of these millennial practices,

consigning a large segment of humanity to the eternal

bondage of the most menial avocations creating inflexible

social barriers, was criticized by many sages and saints.

Kabir, the great saint poet, for instance, in his composition,

remarked:

“If thou thinkest the maker distinguished castes:

Birth is according to these penalties for deeds.

Born a Sudra, you die a Sudra;

It is only in this world of illusion that you assume

the sacred thread. If birth from a Brahmin makes

you a Brahmin, Why did you not come by another

way?

If birth from a Turk makes you a Turk, Why were

you not circumcised in the womb?

… Saint Kabir, renounce family, caste, religion,

and nation, And live as one.”

7. There were several others who spoke, protested, or

spoke against the pernicious grip of social inequity due to

caste oppression of the weakest and vulnerable segments of

society. Guru Nanak, for instance, stated :

“Caste and dynastic pride are condemnable notions,

the one master shelters all existence.

Anyone arrogating superiority to himself halt be

disillusioned. Saith Nanak:

superiority shall be determined by God”

The Guru Granth Saheb also states that

“All creatures are noble, none low,

One sole maker has all vessels fashioned;

In all three worlds is manifest the same light…”

8. The preamble to the Constitution did not originally

contain the expression “fraternity”; it was inserted later by

the Drafting Committee under the chairmanship of

Dr.Ambedkar. While submitting the draft Constitution, he

stated, on 21 February, 1948, that the Drafting Committee

had added a clause about fraternity in the Preamble even

though it was not part of the Objectives Resolution because

it felt that “the need for fraternal concord and goodwill in

India was never greater than now, and that this particular

aim of the new Constitution should be emphasized by

special mention in the Preamble” [B.Shiva Rao : Framing of

India's Constitution Vol.III, page 510 (1968)]. Pandit Thakur

Das Bhargava expressed a “sense of gratitude to Dr.

Ambedkar for having added the word “fraternity” to the

Preamble”. Acharya Kripalani also emphasized on this

understanding, in his speech on 17 October, 1949:

“Again, I come to the great doctrine of fraternity, which

is allied with democracy. It means that we are all sons

of the same God, as the religious would say, but as

the mystic would say, there is one life pulsating

through all of us, or as the Bible says, “We are one of

another”. There can be no fraternity without this.”

9. This court too, has recognized and stressed upon the

need to recognize fraternity as one of the beacons which

light up the entire Constitution. Justice Thommen, in Indira

Sawhney v Union of India, 1992 Supp (3) SCR 454 said this:

“The makers of the Constitution were fully

conscious of the unfortunate position of the

Scheduled Castes and Scheduled Tribes. To them

equality, liberty and fraternity are but a dream;

an ideal guaranteed by the law, but far too

distant to reach; far too illusory to touch. These

backward people and others in like positions of

helplessness are the favoured children of the

Constitution. It is for them that ameliorative and

remedial measures are adopted to achieve the

end of equality. To permit those who are not

intended to be so specially protected to compete

for reservation is to dilute the protection and

defeat the very constitutional aim.”

10. In Raghunathrao Ganpatrao v. Union of India, 1993(1)

SCR 480, this court held:

“In our considered opinion this argument is

misconceived and has no relevance to the facts of

the present case. One of the objectives of the

Preamble of our Constitution is 'fraternity

assuring the dignity of the individual and the

unity and integrity of the nation.' It will be

relevant to cite the explanation given by Dr.

Ambedkar for the word 'fraternity' explaining that

'fraternity means a sense of common brotherhood

of all Indians.' In a country like ours with so many

disruptive forces of regionalism, communalism

and linguism, it is necessary to emphasise and

re-emphasise that the unity and integrity of India

can be preserved only by a spirit of brotherhood.

India has one common citizenship and every

citizen should feel that he is Indian first

irrespective of other basis. In this view, any

measure at bringing about equality should be

welcome.”

11. In a similar vein, the court in Nandini Sundar v. State

of Chhatisgarh, 2011(7) SCC 457, again commented on this

aspect and said that “The Constitution itself, in no uncertain

terms, demands that the State shall strive, incessantly and

consistently, to promote fraternity amongst all citizens such

that dignity of every citizen is protected, nourished and

promoted.”

12. It was to achieve this ideal of fraternity, that the three

provisions - Articles 15, 17 and 24 were engrafted. Though

Article 17 proscribes the practice of untouchability and

pernicious practices associated with it, the Constitution

expected Parliament and the legislatures to enact effective

measures to root it out, as well as all other direct and

indirect, (but virulent nevertheless) forms of caste

discrimination. Therefore, in my opinion, fraternity is as

important a facet of the promise of our freedoms as personal

liberty and equality is. The first attempt by Parliament to

achieve that end was the enactment of the Untouchability

(Offences) Act, 1955. The Act contained a significant

provision that where any of the forbidden practices “is

committed in relation to a member of a Scheduled Caste” the

Court shall presume, unless the contrary is proved, that

such act was committed on the ground of “Untouchability”.

This implied that the burden of proof lies on the accused and

not on the prosecution. The Protection of Civil Rights Act,

1955, followed. This too made provision for prescribing

“punishment for the preaching and practice of -

"Untouchability" for the enforcement of any disability arising

therefrom”. The enforcement of social practices associated

with untouchability and disabilities was outlawed and

made the subject matter of penalties. After nearly 35 years’

experience, it was felt that the 1955 Act (which was

amended in 1976) did not provide sufficient deterrence to

social practices, which continued unabated and in a

widespread manner, treating members of the scheduled

caste and tribe communities in the most discriminatory

manner, in most instances, stigmatizing them in public

places, virtually denying them the essential humanity which

all members of Society are entitled to.

13. It was to address this gulf between the rights which

the Constitution guaranteed to all people, particularly those

who continued to remain victims of ostracism and

discrimination, that the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (hereafter “the

Act”) was enacted. Rules under the Act were framed in 1995

to prevent the commission of atrocities against members of

Schedules Castes and Tribes, to provide for 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. The Statement of

Objects and Reasons appended to the Bill, when moved in

the Parliament, observed that despite various measures to

improve the socio-economic conditions of Scheduled Castes

and Scheduled Tribes, they remained vulnerable. They are

denied a number of civil rights and are subjected to various

offences, indignities, humiliation and harassment. They

have been, in several brutal instances, deprived of their life

and property. Serious atrocities were committed against

them for various historical, social and economic reasons.

The Act, for the first time, puts down the contours of

‘atrocity’ so as to cover the multiple ways through which

members of scheduled castes and scheduled tribes have

been for centuries humiliated, brutally oppressed, degraded,

denied their economic and social rights and relegated to

perform the most menial jobs.

14. The Report on the Prevention of Atrocities against

Scheduled Castes vividly described that despite enacting

stringent penal measures, atrocities against scheduled caste

and scheduled tribe communities continued; even law

enforcement mechanisms had shown a lackadaisical

approach in the investigation and prosecution of such

offences. The report observed that in rural areas, various

forms of discrimination and practices stigmatizing members

of these communities continued. Parliament too enacted an

amendment to the Act in 2015, strengthening its provisions

in the light of the instances of socially reprehensive practices

that members of scheduled caste and scheduled tribe

communities were subjected to. In this background, this

court observed in the decision in National Campaign on Dalit

Human Rights v. Union of India, (2017)2 SCC 432, that:

“The ever-increasing number of cases is also an

indication to show that there is a total failure on

the part of the authorities in complying with the

provisions of the Act and the Rules. Placing

reliance on the NHRC Report and other reports,

the Petitioners sought a mandamus from this

Court for effective implementation of the Act and

the Rules.

12. We have carefully examined the material on

record and we are of the opinion that there has

been a failure on the part of the concerned

authorities in complying with the provisions of the

Act and Rules. The laudable object with which the

Act had been made is defeated by the indifferent

attitude of the authorities. It is true that the State

Governments are responsible for carrying out the

provisions of the Act as contended by the counsel

for the Union of India. At the same time, the

Central Government has an important role to play

in ensuring the compliance of the provisions of the

Act. Section 21(4) of the Act provides for a report

on the measures taken by the Central

Government and State Governments for the

effective implementation of the Act to be placed

before the Parliament every year. The

constitutional goal of equality for all the citizens of

this country can be achieved only when the rights

of the Scheduled Castes and Scheduled Tribes

are protected. The abundant material on record

proves that the authorities concerned are guilty of

not enforcing the provisions of the Act. The

travails of the members of the Scheduled Castes

and the Scheduled Tribes continue unabated. We

are satisfied that the Central Government and

State Governments should be directed to strictly

enforce the provisions of the Act and we do so.”

15. In Subhash Kashinath Mahajan v. State of

Maharashtra & Ors, 2018(4) SCC 454, a two judge bench of

this court held that the exclusion of anticipatory bail

provisions of the Code of Criminal Procedure (by Section 18

of the Act) did not constitute an absolute bar for the grant of

bail, where it was discernable to the court that the

allegations about atrocities or violation of the provisions of

the Act were false. It was also held, more crucially, that

public servants could be arrested only after approval by the

appointing authority (of such public servant) and in other

cases, after approval by the Senior Superintendent of Police.

It was also directed that cases under the Act could be

registered only after a preliminary enquiry into the

complaint. These directions were seen to be contrary to the

spirit of the Act and received considerable comment in the

public domain; the Union of India too moved this court for

their review. In the review proceedings, a three judge bench

of this court, in Union of India v. State of Maharastra,

2019(13) SCALE 280, recalled and overruled those

directions.

16. In the meanwhile, Parliament enacted the amendment

of 2018 (by Act No. 27 of 2019), which is the subject matter

of challenge in these proceedings. The clear intention of

Parliament was to undo the effect of this court’s declaration

in Subhash Kashinath Mahajan (supra). The provisions of

the amendment expressly override the directions in Subhash

Kashinath Mahajan, that a preliminary inquiry within seven

days by the Deputy Superintendent of Police concerned, to

find out whether the allegations make out a case under the

Act, and that arrest in appropriate cases may be made only

after approval by the Senior Superintendent of Police. The

Parliamentary intent was to allay the concern that this

would delay registration of First Information Report (FIR)

and would impede strict enforcement of the provision of the

Act.

17. The judgment of Mishra, J has recounted much of the

discussion and reiterated the reasoning which led to the

recall and review of the decision in Subhash Kashinath

Mahajan (supra); I respectfully adopt them. I would only

add that any interference with the provisions of the Act,

particularly with respect to the amendments precluding

preliminary enquiry, or provisions which remove the bar

against arrest of public servants accused of offences

punishable under the Act, would not be a positive step. The

various reports, recommendations and official data,

including those released by the National Crime Records

Bureau, paint a dismal picture. The figures reflected were

that for 2014, instances of crimes recorded were 40401; for

2015, the crime instances recorded were 38670 and for

2016, the registered crime incidents were 40801. According

to one analysis of the said 2016 report, 422,799 crimes

against scheduled caste communities’ members and 81,332

crimes against scheduled tribe communities’ members were

reported between 2006 and 2016.

18. These facts, in my opinion ought to be kept in mind by

courts which have to try and deal with offences under the

Act. It is important to keep oneself reminded that while

sometimes (perhaps mostly in urban areas) false

accusations are made, those are not necessarily reflective of

the prevailing and wide spread social prejudices against

members of these oppressed classes. Significantly, the

amendment of 2016, in the expanded definition of ‘atrocity’,

also lists pernicious practices (under Section 3) including

forcing the eating of inedible matter, dumping of excreta

near the homes or in the neighbourhood of members of such

communities and several other forms of humiliation, which

members of such scheduled caste communities are

subjected to. All these considerations far outweigh the

petitioners’ concern that innocent individuals would be

subjected to what are described as arbitrary processes of

investigation and legal proceedings, without adequate

safeguards. The right to a trial with all attendant

safeguards are available to those accused of committing

offences under the Act; they remain unchanged by the

enactment of the amendment.

19. As far as the provision of Section 18A and anticipatory

bail is concerned, the judgment of Mishra, J, has stated that

in cases where no prima facie materials exist warranting

arrest in a complaint, the court has the inherent power to

direct a pre-arrest bail.

20. I would only add a caveat with the observation and

emphasize that while considering any application seeking

pre-arrest bail, the High Court has to balance the two

interests: i.e. that the power is not so used as to convert the

jurisdiction into that under Section 438 of the Criminal

Procedure Code, but that it is used sparingly and such

orders made in very exceptional cases where no prima facie

offence is made out as shown in the FIR, and further also

that if such orders are not made in those classes of cases,

the result would inevitably be a miscarriage of justice or

abuse of process of law. I consider such stringent terms,

otherwise contrary to the philosophy of bail, absolutely

essential, because a liberal use of the power to grant

pre-arrest bail would defeat the intention of Parliament.

21. It is important to reiterate and emphasize that unless

provisions of the Act are enforced in their true letter and

spirit, with utmost earnestness and dispatch, the dream

and ideal of a casteless society will remain only a dream, a

mirage. The marginalization of scheduled caste and

scheduled tribe communities is an enduring exclusion and is

based almost solely on caste identities. It is to address

problems of a segmented society, that express provisions of

the Constitution which give effect to the idea of fraternity, or

bandhutva (referred to in the Preamble, and statutes like the

Act, have been framed. These underline the social – rather

collective resolve – of ensuring that all humans are treated

as humans, that their innate genius is allowed outlets

through equal opportunities and each of them is fearless in

the pursuit of her or his dreams. The question which each of

us has to address, in everyday life, is can the prevailing

situation of exclusion based on caste identity be allowed to

persist in a democracy which is committed to equality and

the rule of law? If so, till when? And, most importantly, what

each one of us can do to foster this feeling of fraternity

amongst all sections of the community without reducing the

concept (of fraternity) to a ritualistic formality, a tacit

acknowledgment, of the “otherness” of each one’s identity.”

22. We now proceed to consider, whether Section 15A(3) of the

Amendment Act, 2015, could be termed as manifestly arbitrary.

23. The point of law required to be decided merits enunciation

of settled principles of interpretation of statutes for reading a

clear provision as per its own terms, reading it along with every

other provision in the chapter in which it appears, reading the

statute as a whole and deciphering the intention of the

legislature that propelled the enactment given the state of affairs

that prevailed before the enactment, the mischief that was

apparent and the mode in which the legislature sought to

remedy it. The 'Heyden's rule' or the 'Mischief rule', which is the

well settled principle of law, must be present to the mind of any

interpretor of such enactment.

24. “The crime problem is the overdue debt a society pays for

tolerating for years the conditions that breed lawlessness.” - Earl

Warren.

25. An aspect of victimology, the doctrine of victim protection,

victim representation and victim rehabilitation, is the subject

matter of the litigation on hand.

26. The criminal justice system has been designed with the

State at the center-stage. Law and order is the prime duty of the

State. It fosters peace and prosperity. The rule of law is to prevail

for a welfare State to prosper. The citizens in a welfare State are

expected to have their basic human rights. These rights are often

violated. The law and order is breached. A citizen is harmed,

injured or even killed as a result of the crime. He/she is a victim

of an act termed an 'offence' in the criminal justice system.

He/she seeks recourse to law and justice. Justice is given to

him/her upon upholding the rule of law. It is denied to him/her

upon any breach by the perpetrator of the violation or even by

the defender of his rights - the State. [See : Balasaheb Rangnath

Khade vs. The State of Maharashtra and others, Criminal Appeal

No.991 of 2011 decided on 27th April 2012]

27. A thin difference between the victim and the complainant

may first be noted.

1. Oxford English Dictionary, 11th Edition at page 1610

defines the victim as a person harmed, injured or killed as

a result of a crime, accident etc. Section 2 (wa) of the Code

of Criminal Procedure which was incorporated by the

Amending Act, 5 of 2009 defines a victim as :

“a person who has suffered any loss or injury

caused by reason of the act or omission for which

the accused person has been charged and the

expression "victim" includes his or her guardian or

legal heir;

2. Black's Law Dictionary, Eighth Edition at page 302

defines the complainant as the party who brings a legal

complaint against another.

3. Advanced Law Lexicon by P. Ramanatha Aiyar at page

926 defines (4) Cr. Appeals 991, 992, 331 & 854/11 the

complainant as a person or authority making a complaint

to the council regarding something.

28. Section 377 (1) of the United States Code is in respect of

Crime Victims' Rights Act (CVRA). The Rights of Crime Victims

are set out thus :

(a) Rights of Crime Victims.- A crime victim has the

following rights:

(1) The right to be reasonably protected from the

accused.

(2) The right to reasonable, accurate, and timely notice

of any public court proceeding, or any parole

proceeding, involving the crime or of any release or

escape of the accused.

(3) The right not to be excluded from any such public

court proceeding, unless the court, after receiving clear

and convincing evidence, determines that testimony by

the victim would be materially altered if the victim

heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public

proceeding in the district court involving release, plea,

sentencing, or any parole proceeding.

(5) The reasonable right to confer with the attorney

for the Government in the case.

(6) The right to full and timely restitution as

provided in law.

(7) The right to proceedings free from unreasonable

delay.

(8) The right to be treated with fairness and with

respect for the victim's dignity and privacy.

29. The Victims of Crime Act in Canada sets out in Section

2 the statement of principles upon which the human rights

are granted to the victims for the victims' access to justice.

Section 2 of the Victims of Crime Act runs thus:

PART I STATEMENT OF PRINCIPLES

2. The following principles are adopted for the guidance

of persons in Declaration providing justice for victims of

crime: treatment (a) victims should be treated with

courtesy and compassion of victims and with respect for

their dignity, privacy and convenience;

redress (b) victims should receive prompt and fair

financial redress for the harm that they have suffered;

access to (c) victims should be informed of and should

have access to services services including social,

medical, legal and mental health and assistance;

assistance information (d) victims should be informed

about the progress of the investigation and prosecution

of the offence, court procedures, court the role of the

victim in court proceedings and the ultimate

procedures, etc. disposition of the proceedings;

victim (e) victims are entitled, where their personal

interests are concerns affected, to have their views and

concerns brought to the attention of the court where

consistent with criminal law and procedure;

safety (f) victims and their families should be protected

from intimidation, retaliation and harassment;

property (g) victims should have their stolen property

returned to them as soon as possible after recovery by

law enforcement authorities victim (h) victims are

entitled to prepare a victim impact statement impact

and have it considered by the court at sentencing;

statement information (i) victims are entitled to be

informed about the offender's n on status, including

release dates, parole eligibility, and offender probation

terms.

status, etc.

30. The General Assembly of the United Nations in its 96th

plenary meeting held on 29th November, 1985 set out the

Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power which recognizes and grants to

the victims, their families, witnesses and others who aid

them the rights in the area of access to justice and fair

treatment, Restitution and Compensation as basic human

rights.

31. In India in the past the Judges have attempted to accord

and confer the victim their rights in the criminal justice system.

In the case of Vijay Valia Vs. State of Maharashtra, 1987 Mh.L.J.

49 whilst considering the question of appointment of Special

Public Prosecutors, a Division Bench of the Bombay High Court

sounded the requirement of the Courts accepting the right of the

victim to partake in the criminal prosecution for doing the victim

justice. The Court in various paras observed thus :

“Both the State and the private party have a right to

prosecute the offender whether the offence is cognizable

or non-cognizable, and the prosecution, whether

launched by the private party or the State, is a

prosecution on behalf of the State.

The right to be heard includes the right to be represented

by an able spokesman of one's confidence. This right

belongs both to the accused and the complainant. It is

not only the accused who is in need of assistance and

protection of his rights but also the complainant. In fact,

it is to vindicate the rights and grievances of the

complainant and through him, of the State, that the

prosecution is launched- whether by the State or the

private party.

......whenever there is a request made by a private party

to engage an advocate of his choice to be paid for by him,

the request should be granted as a rule. The complainant

in such cases is either a victim of the offence or is related

to the victim or otherwise an aggrieved (11) Cr. Appeals

991, 992, 331 & 854/11 person. He has a right to be

heard and vindicated. As stated earlier, the right to be

heard implies a right to be effectively represented at the

hearing of the case. He has therefore a right to engage

an advocate of his choice. There is therefore no reason

why the State should refuse him the permission to

conduct the prosecution with the help of his advocate. If

there are any reasons for refusal, they should be stated

and communicated to him in writing.”

32. In the case of Nilabati Behera (Smt) alias Lalita Behera

Vs. State of Orissa & Ors. (1993) 2 SCC 746 the Supreme

Court enjoined the courts to 'evolve' new tools and mould

the remedies for harm done variously.

33. In that case the death of a son of 22 years in police

custody entitled a mother to compensation as an heir of the

"victim" by way of monetary amends and redressal by the

State since the death constituted violation of the

Fundamental Right to Life by the State's instrumentalities or

servants.

34. The Code of Criminal Procedure was sought to be

wholly amended in tune with the reforms suggested by the

well known Malimath Committee constituted by the Ministry

of Home Affairs, Govt. of India on 24th November, 2000

which submitted its Report popularly called the Malimath

Committee Report to the Ministry of Home Affairs in March,

2003. Though the Report sought to make more than the

usual cosmetic changes and indeed suggested

recommendations in the areas of victims participation in

trial and investigation and victim compensation by way of

the grant of Rights of Victims of Crimes, even that

committee's recommendations fell far short of the depth that

the victim's place in the Indian criminal justice system

merited.

35. The excerpts of the Report may be a guide to

understanding the course of action that the legislature was

to undertake :

(1) The victim not, being a party, have no role to play

in the trial except giving evidence as a witness.

(2) The committee suggests that among the related

parties in crime, the victim has the deepest interest in

the 'vindication of justice'. Question remains how far

the victim could co-operate with the prosecution when

he/she is in a traumatic stage of his/her life and

his/her interest is threatened by people behind the

actual culprit.

(3) Active participation of the victim during investigation

would be helpful in discovering the truth and if the victim

participates in the trial, the judge can maintain a neutral

position and need not become part of investigation

Machinery as in the Inquisitorial System.

36. An attempt at protecting the victim's rights and allowing

their prosecution has been made for the first time under the

proviso to Section 372 in Chapter XXIX dealing with appeals.

The noble principle :

"Hear those who cannot shout;

Listen to those who cannot speak"

for the first time found a foothold in our Criminal Justice System

in which all but the most affected were heard.

37. The victims, even today, have no semblance of rights at the

investigation stage and a feeble position at the trial stage of a

criminal prosecution.

38. As far back as in the year 1996, this Court, in the case of

Umaben W/o. Girish Namdar and another v. State of Gujarat

and others, reported in (1996)1 GLR 703, had the occasion to

consider, whether the complainant/informant should be

permitted to oppose the bail application preferred by the

accused. The court observed thus :

“Thus, taking into consideration the overall picture,

ordinarily it is indeed not necessary that the accused should

make the complainant/informant a party in his bail

application, however, if at the time of hearing the bail

application, the complainant side comes to know that such

bail application is filed and it desires to say something

special to bring it to the special notice of the Court then in

that case, it is always open to appear as a party in person

or engage a lawyer for that purpose to appraise the

concerned learned P.P. in charge of the case with whatever

latest instructions they want to pass on to the Court for

consideration but that is altogether a different thing. So far,

the picture is not that bad wherein the Court has lost

confidence in the Investigating Agency. If in future, if the

Court feels that the desired assistance is not forthcoming

and something is kept back from coming on the record from

the prosecuting agency, then in that case, the Court may

either on the request being made by the

complainant/prosecution witnesses or of its own join the

informant as a party to bail proceeding.”

39. We are not impressed by the submissions of Mr.Popat, the

learned counsel appearing for the writ-applicant, that Section

15A(3) of the Amendment Act, 2015, deserves to be struck down

as ultra vires Articles 14 and 21 of the Constitution of India

being manifestly arbitrary.

40. The issue, whether a law can be declared unconstitutional

on the ground of arbitrariness, has received the attention of the

Supreme Court in a Constitution Bench Judgment in the case of

Shayara Bano v. Union of India and others. R.F. Nariman and

U.U. Lalit, JJ. discredited the ratio of the following judgments,

i.e., (i) State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; (ii)

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 122,

(1996) 3 SCC 709, (2016) 2 SCC 445, (2017) 9 SCC 1). In the

above referred judgments of the Supreme Court, it was held that

a law cannot be declared unconstitutional on the ground that it

is arbitrary. The Judges pointed out a Larger Bench judgment in

the case of Dr. K.R. Lakshmanan v. State of T.N. & another and

Maneka Gandhi v. Union of India & another, where manifest

arbitrariness is recognized as the third ground on which the

legislative Act can be invalidated. The following discussion in

this behalf is worthy of note:

“87. The thread of reasonableness runs through the entire

fundamental rights chapter. What is manifestly arbitrary is

obviously unreasonable and being contrary to the rule of

law, would violate Article 14. Further, there is an apparent

contradiction in the three Judge Bench decision in McDowell

(State of A.P. v. McDowell and Co., (1996) 3 SCC 709) when

it is said that a constitutional challenge can succeed on the

ground that a law is disproportionate, excessive or

unreasonable, yet such challenge would fail on the very

ground of the law being unreasonable, unnecessary or

unwarranted. The arbitrariness doctrine when applied to

legislation obviously would not involve the latter challenge

but would only involve a law being disproportionate,

excessive or otherwise being manifestly unreasonable. All

the aforesaid grounds, therefore, do not seek to differentiate

between State action in its various forms, all of which are

interdicted if they fall foul of the fundamental rights

guaranteed to persons and citizens in Part III of the

Constitution.

88. We only need to point out that even after McDowell

(State of A.P. v. McDowell and Co., (1996) 3 SCC 709), this

Court has in fact negated statutory law on the ground of it

being arbitrary and therefore violative of Article 14 of the

Constitution of India. In Malpe Vishwanath Acharya, this

Court held that after passage of time, a law can become

arbitrary, and, 25 (1996) 2 SCC 226 26 (1978) 1 SCC 248

therefore, the freezing of rents at a 1940 market value under

the Bombay Rent Act would be arbitrary and violative of

Article 14 of the Constitution of India (see paras 8 to 15 and

31).

xx xx xx

99. However, in State of Bihar v. Bihar Distillery Ltd. (State

of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453), SCC at

para 22, in State of M.P. v. Rakesh Kohli (State of M.P. v.

Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481),

SCC at paras 17 to 19, in Rajbala v. State of Haryana

(Rajbala v. State of Haryana, (2016) 2 SCC 445), SCC at

paras 53 to 65 and in Binoy Viswam v. Union of India

(Binoy Viswam v. Union of India, (2017) 7 SCC 59), SCC at

paras 80 to 82, McDowell (State of A.P. v. McDowell and Co.,

(1996) 3 SCC 709) was read as being absolute bar to the

use of arbitrariness as a tool to strike down legislation

under Article 14. As has been noted by us earlier in this

judgment, McDowell (State of A.P. v. McDowell and Co.,

(1996) 3 SCC 709) itself is per incuriam, not having noticed

several judgments of Benches of equal or higher strength, its

reasoning even otherwise being flawed. The judgments,

following McDowell (State of A.P. v. McDowell and Co.,

(1996) 3 SCC 709) are, therefore, no longer good law.”

41. The historical development of the doctrine of arbitrariness

has been noticed by the Hon'ble Judges in Shayara Bano's case

(supra) in detail. It would suffice to reproduce paragraphs 67 to

69 respectively of the said judgment as the discussion in these

paragraphs provide a sufficient guide as to how a doctrine of

arbitrariness is to be applied while adjudging the constitutional

validity of a legislation.

“67. We now come to the development of the doctrine of

arbitrariness and its application to State action as a distinct

doctrine on which Sate action may be struck down as being

violative of the rule of law contained in Article 14. In a

significant passage, Bhagwati, J., in E.P. Royappa v. State

of T.N. stated:

“The last two grounds of challenge may be taken up

together for consideration. Though we have formulated

the third ground of challenge as a distinct and

separate ground, it is really in substance and effect

merely an aspect of the second ground based on

violation of Articles 14 and 16. Article 16 embodies

the fundamental guarantee that there shall be equality

of opportunity for all citizens in matters relating to

employment or appointment to any office under the

State. Though enacted as a distinct and independent

fundamental right because of its great importance as a

principle ensuring equality of opportunity in public

employment which is so vital to the building up of the

new classless egalitarian society envisaged in the

Constitution, Article 16 is only an instance of the

application of the concept of equality enshrined in

Article 14. In other words, Article 14 is the genus while

Article 16 is a species. Article 16 gives effect to the

doctrine of equality in all matters relating to public

employment. The basic principle which, therefore,

informs both Articles 14 and 16 is equality and

inhibition against discrimination. Now, what is the

content and reach of this great equalising principle? It

is founding faith, to use the words of Bose, J., a way

of life, and it must not be subjected to a narrow

pedantic or lexicographic approach. We cannot

countenance any attempt to truncate its all embracing

scope and meaning, for to do so would be to violate its

activist magnitude. Equality is a dynamic concept with

many aspects and dimensions and it cannot be

cribbed, cabined and confined within traditional and

doctrinaire limits. From a positivistic point of view,

equality is antithetic to arbitrariness. In fact equality

and arbitrariness are sworn enemies; one belongs to

the rule of law in a republic while the other, to the

whim and caprice of an absolute monarch. Where an

act is arbitrary, it is implicit in it that it is unequal both

according to political logic and constitutional law and

is therefore violative of Article 14, and if it effects any

matter relating to public employment, it is also

violative of Article 16. Article 14 and 16 strike at

arbitrariness in State action and ensure fairness and

equality of treatment. They require that State action

must be based on valid relevant principles applicable

alike to all similarly situate and it must not be guided

by any extraneous or irrelevant consideration because

that would be denial of equality. Where the operative

reason for State action, as distinguished from motive

inducting from the antechamber of the mind, is not

legitimate and relevant but is extraneous and outside

the area of permissible considerations, it would

amount to mala fide exercise of power and that is hit

by Articles 14 and 16. Mala fide exercise of power and

arbitrariness are different lethal radiations emanating

from the same vice: in fact the letter comprehends the

former. Both are inhibited by Articles 14 and 16.”

68. This was further flashed out in Maneka Gandhi v.

Union of India, where after stating that various fundamental

rights must be read together and must overlap and fertilise

each other, Bhagwati, J., further amplified this doctrine as

follows:

“7. Now, the question immediately arises as to what

is the requirement of Article 14: what is the content

and reach of the great equalising principle enunciated

in this article? There can be no doubt that it is a

founding faith of the Constitution. It is indeed the pillar

on which rests securely the foundation of our

democratic republic. And, therefore, it must not be

subjected to a narrow, pedantic or lexicographic

approach. No attempt should be made truncate its

all-embracing scope and meaning, for to do so would

to violate its activist magnitude. Equality is a dynamic

concept with many aspects and dimensions and it

cannot be imprisoned within traditional and

doctrinaire limits. We must reiterate here what was

pointed out by the majority in E.P.Royappa v. State of

T.N., namely that: (SCC p. 38, para 85)

“85. From a positivistic point of view, equality is

antithetic to arbitrariness. In fact equality and

arbitrariness are sworn enemies; one belongs to the

rule of law in a republic, while the other, to the whim

and caprice of an absolute monarch. Where an act is

arbitrary, it is implicit in it that it is unequal both

according to political logic and constitutional law and

is therefore violative of Article 14.

Article 14 strikes at arbitrariness in State action and

ensures fairness and equality of treatment. The

principle of reasonableness, which legally as well as

philosophically, is an essential element of equality or

non- arbitrariness pervades Article 14 like a brooding

omnipresence and the procedure contemplated by

Article 21 must answer the test of reasonableness in

order to be in conformity with Article 14. It must be

right and just and fair and not arbitrary, fanciful or

oppressive; otherwise, it would be no procedure at all

and the requirement of Article 21 would not be

satisfied.””

69. This was further clarified in A.L.Kalra v. Project and

Equipment Corpn., following Royappa and holding that

arbitrariness is a doctrine distinct from discrimination. It

was held: (A.L.Kalra case SCC p. 328, para 19)

“19. It thus appears well settled that Article 14

strikes at arbitrariness in executive/administrative

action because any action that is arbitrary must

necessarily involve the negation of equality. One need

not confine the denial of equality to a comparative

evaluation between two persons to arrive at a

conclusion of discriminatory treatment. An action per

se arbitrary itself denies equal of (sic) protection by

law. The Constitution Bench pertinently observed in

Ajay Hasia case and put the matter beyond

controversy when it said: (SCC p. 741, para 16)

“16. Wherever therefore, there is arbitrariness in

State action whether it be of the legislature or of the

executive or of an authority under Article 12, Article 14

immediately springs into action and strikes down such

State action.

This view was further elaborated and affirmed in

D.S.Nakara v. Union of India. In Maneka Gandhi v.

Union of India it was observed that Article 14 strikes

at arbitrariness in State action and ensures fairness

and equality of treatment. It is thus too late in the day

to contend that an executive action shown to be

arbitrary is not either judicially reviewable or within

the reach of Article 14. The same view was reiterated

in Babita Prasad v. State of Bihar, SCC at p. 285, para

3.”

42. The aforenoted doctrine is, thus, treated as one of the

facets of both the Articles 14 and 21 respectively of the

Constitution of India.

43. In the case of State of Jammu & Kashmir v. Triloki Nath

Khosa and others, reported in AIR 1974 SC 1, the Constitution

Bench of the Supreme Court upheld the legislation classifying

the Assistant Engineers into Degree-holders and Diplomaholders

respectively for the purpose of promotion. It was

observed that the classification on the basis of the educational

qualifications made with a view to achieving the administrative

efficiency cannot be said to rest on any fortuitous circumstance

and one has always to bear in mind the facts and circumstances

in order to judge the validity of a classification. It was observed

that there is a presumption of constitutionality of a statute. The

burden is on one, who canvasses that certain statute is

unconstitutional, to set out facts necessary to sustain the plea of

discrimination and to adduce cogent and convincing evidence to

prove those facts. In order to establish that the protection of the

equal opportunity clause has been denied to them, it is not

enough for the petitioners to say that they have been treated

differently from others, not even enough that a differential

treatment has been accorded to them in comparison with the

other similarly circumstanced. Discrimination is the essence of

classification and does violation to the constitutional guarantee

of equality only if it rests on an unreasonable basis.

44. On the question of grounds on which a law is framed by

the Legislation, i.e. the Parliament or the State Assembly, the

decision of a three-Judge Bench of the Supreme Court in the

case of State of A.P. and others vs. McDowell and Co. and

others, reported in (1996)3 SCC 709, hold the field and was often

referred to and relied upon. In the said judgment, the Supreme

Court had opined that the grounds for striking down a statute

framed by the Legislature are only two, viz. (i) lack of legislative

competence, or (ii) violation of fundamental rights or any other

constitutional provision. If the enactment is challenged as

violative of Article 14, it can be struck down only if it is found

that it is violative of the equality clause or the equal protection

clause enshrined therein. Similarly, if an enactment is

challenged as violative of any of the fundamental rights

guaranteed by clauses (a) to (g) of Article 19(1), it can be struck

down only if it is found not saved by any of the clauses (2) to (6).

No enactment can be struck down by just saying that it is

arbitrary or unreasonable. 'Arbitrariness' is an expression used

widely and rather indiscriminately - an expression of inherently

imprecise import. Hence, some or the other constitutional

infirmities have to be found before invalidating an Act. An

enactment cannot be struck down on the ground that the court

thinks it unjustified. The Parliament and the Legislatures,

composed as they are of the representatives of the people and

supposed to know and be aware of the need of the people and

every aspect of what is good and bad for them. The court cannot

sit on the judgment over their wisdom.

45. In the recent judgment of the Supreme Court in the case of

Shayra Bano (supra), His Lordship Rohinton Fali Nariman, J.,

however, expressed a somewhat different view. It was observed

that a statute can also be struck down if it is manifestly

arbitrary. It was observed as under :

“101. It will be noticed that a Constitution Bench of this

Court in Indian Express Newspapers v. Union of India,

(1985) SCC 641, stated that it was settled law that

subordinate legislation can be challenged on any of the

grounds available for challenge against plenary legislation.

This being the case, there is no rational distinction between

the two types of legislation when it comes to this ground of

challenge under Article 14. The test of manifest

arbitrariness, therefore, as laid down in the aforesaid

judgments would apply to invalidate legislation as well as

subordinate legislation under Article 14. Manifest

arbitrariness, therefore, must be something done by the

legislature capriciously, irrationally and/or without

adequate determining principle. Also, when something is

done which is excessive and disproportionate, such

legislation would be manifestly arbitrary. We are, therefore,

of the view that arbitrariness in the sense of manifest

arbitrariness as pointed out by us above would apply to

negate legislation as well under Article 14.”

46. It is well settled that as long as the legislation has the

necessary competence to frame a law and the law so framed is

not violative of the fundamental rights enshrined in the

Constitution or any of the constitutional provision, the court

would not strike down the statute merely on the perception that

the same is harsh or unjust.

47. Thus, as held by the Supreme Court, manifest

arbitrariness must be something done by the Legislature

capriciously, irrationally and/or without adequate determining

principle. When something is done, which is excessive and

disproportionate, such legislation would be manifestly arbitrary.

48. As discussed above, Section 15A(3) could be said to have

been introduced with a definite object and the object is to

prevent atrocities upon the members of the Scheduled Castes

and Scheduled Tribes. Just because a provision of law in the

Amendment Act enables the victim to appear before the

competent court at all the stages of the proceedings by itself does

not render the same arbitrary. We are saying so, because the

impugned provision is not laying any fetters or unreasonable

restrictions upon the court when it comes to exercising

discretion as regards the grant of bail, etc.

49. The principles of law with regard to grant of bail remain the

same. We reiterate the settled principles of law as regards the

grant of bail thus :

(a) Whether there is or is not a reasonable ground for

believing that the applicant has committed the offence with

which he is charged;

(b) the nature and gravity of the charge;

(c) severity of degree of the punishment which might fall

in the particular circumstances in case of a conviction;

(d) the danger of the applicant's absconding if he is

released on bail;

(e) the character and means and standing of the

applicant;

(f) the danger of the alleged offence being continued or

repeated, assuming that the accused is guilty of having

committed that offence in the past;

(g) the danger of witnesses being tampered with;

(h) opportunity of the applicant to prepare his defence;

and

(i) the fact that the applicant has already been some

months in jail and that the trial is not likely to conclude for

several months at least.

(j) The court must evaluate the entire available material

against the accused very carefully. The court must also

clearly comprehend the exact role of the accused in the

case. The cases in which the accused is implicated with the

help of Sections 34 and 149 of the Indian Penal Code, the

court should consider with even greater care and caution

because over implication in the cases is a matter of

common knowledge and concern.

(k) Frivolity in prosecution should always be considered

and it is only the element of genuineness that shall have to

be considered in the matter of grant of bail and in the event

of there being some doubt as to the genuineness of the

prosecution, in the normal course of events, the accused is

entitled to an order of bail.

50. The aforesaid general principles of law with regard to the

grant of bail shall, in no manner, affect by virtue of the

provisions incorporated under Chapter IVA of the Amendment

Act, 2015.

51. It is true that the accused may not find the presence of the

victim before the court very convenient, more particularly, when

the accused is seeking bail. However, as stated above, the

principles of law with regard to the grant of bail will remain the

same, whether the accused is seeking bail in connection with an

offence of murder or any offence under the Atrocities Act.

52. We are trying to answer the vociferous argument of

Mr.Popat that Section 15A(3) of the Amendment Act

unnecessarily enforce or places restrictions as regards the

discretion of the court. We are afraid, we are not in a position to

accept this argument. All that Section 15A(3) provides is a right

to the victim to appear before the court and oppose the bail plea

of the accused.

53. We are also not impressed by the argument of Mr.Popat

that Section 15A(3) of the Amendment Act should be construed

as directory and not mandatory. As is evident from a plain

reading of the section quoted above, the victim must be served

with notice of the bail application and must be provided an

opportunity to be heard and advance argument. When a statute

specifically provides a right to the victim/dependent to be heard

at any proceedings in respect of bail, and if the court fails to

provide such opportunity, then there is an inherent failure of

justice. This procedure, in our opinion, cannot be bypassed. The

non-compliance of the provision of Section 15A(3) of the

Amendment Act would render an order null and void. If Section

15A(3) of the Amendment Act is to be construed as directory,

then the very object and purpose with which such provision is

enacted would got frustrated. In the aforesaid context, we may

refer to and rely upon the Karnatake High Court decision in the

case of Marenna @ Mareppa v. State [Criminal Petition

No.200315 of 2020, decided on 21st July 2020]. We quote the

relevant observations thus :

“Therefore, where a right of Audi Alterm Partem is conferred

on the victim or his dependents, then the court has to give

an opportunity/right of audience to the victim or his/her

dependent to hear them as to enable them to participate in

the proceedings including bail proceedings also. Therefore, a

victim or dependent has a right to be heard by the Court

enabling the victim or dependents to participate in any

proceedings in respect of not only bail proceedings but also

in the proceedings of discharge, release, parole, conviction

or sentence of an accused or any connected proceedings or

arguments and file written submission on conviction,

acquittal or sentencing of a case. The court is able to hear

the victim or dependent in respect of a proceedings as

enumerated in Sub-section (5) of Section 15-A of the SC/ST

Act only when the victim or dependent are made as parties

in the proceedings, otherwise it cannot be possible for the

court to hear the victim/dependents and to receive any

written submission as stated in the said provision. The

victim or dependent may participate either personally or

through an Advocate or through Public Prosecutor or Special

Public Prosecutor or appear himself/herself. As per Section

15 of the SC/ST Act, the Special Public Prosecutor or

exclusive Special Public Prosecutor are assigned the duties

to represent the State in genre but in specie on behalf of the

victim or dependent/complainant/first informant to

prosecute the case.

But the parliament in its wisdom by inserting Chapter IV-A

and Section 15-A of the SC/ST Act confers right of victims

and witnesses and more expressly provided the victim or

dependent to participate in any proceedings. Therefore,

Sub-section (3) of Section 15-A of the SC/ST Act only

enumerates giving such information to the victim or

dependents through Special Public Prosecutor or State

Government about any proceedings pending in the court.

But Sub-section (5) of Section 15-A of the SC/ST Act confers

a right on the victim or dependents to make them to

participate in a proceedings and to hear their submissions

and also to file written submissions in this regard in the

proceedings pending before the court. Therefore, unless the

victim or dependent as enumerated in Section 2(ec) of the

SC/ST Act is made a party in the proceedings in the case

pending before any court, it is not possible for the court to

hear whatever submission to be put forth by the victim or

dependents in the proceedings before the court. Therefore,

under these circumstances, making the victim or dependent

as party in the proceedings pending before any court is

necessary and mandatory.”

54. In LT.Col. Prithi Pal Singh Bedi v. Union of India, reported

in 1983(3) SCC 140, the Supreme Court held as follows :

“8. The dominant purpose in construing a statute is to

ascertain the intention of the Parliament. One of the well

recognised canons of construction is that the legislature

speaks its mind by use of correct expression and unless

there is any ambiguity in the language of the provision the

Court should adopt literal construction if it does not lead to

an absurdity. ....If the literal construction leads to an

absurdity, external aids to construction can be resorted to.

To ascertain the literal meaning it is equally necessary first

to ascertain the juxtaposition in which the rule is placed, the

purpose for which it is enacted and the object which it is

required to subserve and the authority by which the rule is

framed. This necessitates examination of the broad features

of the Act.”

55. In Nathi Devi v. Radha Devi Gupta, reported in AIR 2005

SC 648, the Supreme Court held that :

“The interpretation function of the Court is to discover the

true legislative intent, it is trite that in interpreting a statute

the Court must, if the words are clear, plain, unambiguous

and reasonably susceptible to only one meaning, give to the

words that meaning, irrespective of the consequences. Those

words must be expounded in their natural and ordinary

sense. When a language is plain and unambiguous and

admits of only one meaning no question of construction of

statute arises, for the Act speaks for itself. Courts are not

concerned with the policy involved or that the results are

injurious or otherwise, which may follow from giving effect

to the language used. If the words used are capable of one

construction only then it would not be open to the Courts to

adopt any other hypothetical construction on the ground that

such construction is more consistent with the alleged object

and policy of the Act. In considering whether there is

ambiguity, the Court must look at the statute as a whole

and consider the appropriateness of the meaning in a

particular context avoiding absurdity and inconsistencies or

unreasonableness which may render the statute

unconstitutional.”

56. In Nathi Devi (supra), it is further held that :

“It is equally well-settled that in interpreting a statute, effort

should be made to give effect to each and every word used

by the Legislature. The Courts always presume that the

Legislature inserted every part thereof for a purpose and the

legislative intention is that every part of the statute should

have effect. A construction which attributes redundancy to

the legislature will not be accepted except for compelling

reasons such as obvious drafting errors.”

57. Crawford on 'Statutory Construction' (Ed.1940, Art.261,

p.516) sets out the following passage from an American case

approvingly as follows :

“The question as to whether a statute is mandatory or

directory depends upon the intent of the legislature and not

upon the language in which the intent is clothed. The

meaning and intention of the legislature must govern, and

these are to be ascertained, not only from the phraseology of

the provision, but also by considering its nature, its design,

and the consequences which would follow from construing it

the one way or the other.”

58. In State of U.P. v. Baburam Upadhya, reported in AIR 1961

SC 751, the Hon'ble Mr.Justice Subbarao has observed that :

“The Court may consider inter alia, the nature and design of

the statute, and the consequences which would follow from

construing it the one way or the other; the impact of other

provisions whereby the necessity of complying with the

provisions in question is avoided; the circumstances,

namely, that the statute provides for a contingency of the

non-compliance with the provisions; the fact that the

non-compliance with the provisions is or is not visited by

some penalty; the serious or the trivial consequences, that

flow therefrom; and above all, whether the object of the

legislation will be defeated or furthered.”

59. In the same judgment, the Hon'ble Judge has further held

that when a statute uses the word 'shall', prima facie it is

mandatory but the court may ascertain the real intention of the

legislature by carefully attending to the whole scope of the

statute.

60. In May George v. Tahsildar, reported in (2010)13 SCC 98,

the Supreme Court stated the precepts, which can be summed

up and usefully applied by this Court, as follows :

“(a) While determining whether a provision is mandatory or

directory, somewhat on similar lines as afore-noticed, the

Court has to examine the context in which the provision is

used and the purpose it seeks to achieve;

(b) To find out the intent of the legislature, it may also be

necessary to examine serious general inconveniences or

injustices which may be caused to persons affected by the

application of such provision;

(c) Whether the provisions are enabling the State to do some

things and/or whether they prescribe the methodology or

formalities for doing certain things;

(d) As a factor to determine legislative intent, the court may

also consider, inter alia, the nature and design of the statute

and the consequences which would flow from construing it,

one way or the other;

(e) It is also permissible to examine the impact of other

provisions in the same statute and the consequences of

non-compliance of such provisions;

(f) Physiology of the provisions is not by itself a

determinative factor. The use of the words `shall' or `may',

respectively would ordinarily indicate imperative or directory

character, but not always.

(g) The test to be applied is whether non-compliance with the

provision would render the entire proceedings invalid or not.

(h) The Court has to give due weightage to whether the

interpretation intended to be given by the Court would

further the purpose of law or if this purpose could be

defeated by terming it mandatory or otherwise.”

61. In such circumstances referred to above, we hold that

Section 15A(3) of the Amendment Act is mandatory and not

directory.

62. Mr.Popat has placed strong reliance on the decision of the

Supreme Court in the case of Nikesh Tarachand Shah (supra).

However, we are afraid, this decision is of no assistance to the

writ-applicant.

63. The twin conditions under Section 45(1) for the offences

classified thereunder in Part-A of the Schedule was held

arbitrary and discriminatory and invalid in Nikesh Tarachand

Shah (supra). Insofar as the twin conditions for release of

accused on bail under Section 45 of the Act, the Supreme Court

held the same to be unconstitutional as it violates Articles 14

and 21 of the Constitution of India. Subsequently, Section 45

has been amended by Amendment Act 13 of 2008. The words

“imprisonment for a term of imprisonment of more than three

years under Part A of the Schedule” has been substituted with

“accused of an offence under this Act…..”.

64. Although there has been an amendment to Section 45 of

the PMLA Act after the decision in the case of Nikesh Tarachand

Shah (supra), there is no subsequent decision of the Supreme

Court holding the said two conditions to be constitutionally valid

even when brought back by way of an amendment. However, we

are not concerned with the same having regard to the subject

matter of the present litigation. We may only say that Section 45

of the Act was declared unconstitutional as it placed

unreasonable restrictions upon the court for the purpose of

considering the plea of bail. The Supreme Court noticed that

there was manifest arbitrariness in the provision as the Public

Prosecutor had to be given an opportunity to oppose the

application for release on bail and where the Public Prosecutor

would oppose the bail application, the court would have to reach

to the satisfaction that there are reasonable grounds for

believing that the accused is not guilty of such offence and was

not likely to commit any offence while on bail. It is this

unreasonableness which weighed with the Supreme Court in

striking it down being violative of Articles 14 and 21 of the

Constitution of India.

65. Our final conclusions may be summarised as under :

(1) Section 15A(3) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015 (1 of 2016) is not ultra vires Articles 14 and 21 of the

Constitution of India.

(2) Section 15A(3) of the Amendment Act, 2015, cannot be

termed as manifestly arbitrary.

(3) Section 15A(3) of the Amendment Act, 2015, has to be

construed as mandatory and not directory. The

non-compliance of the said provision would render the

order null and void.

(4) Section 15A(3) of the Amendment Act, 2015, in no

manner imposes any unreasonable restrictions or fetters

on the discretion of the competent court, for the purpose of

considering the plea of bail. The general principles with

regard to grant of bail would continue to apply even in

cases under the Atrocities Act.

(5) The right of a person, who is accused of committing

only bailable offence or offences, if any, under the Act, to

be released on bail, is absolute in view of the provisions

contained in Section 436(1) of the Code of Criminal

Procedure. There is no provision in the Act which curtails

the right of an accused to get bail in a case of bailable

offence. The provisions contained in Section 15A(5) does

not, in any manner, affect the absolute right of a person,

who is accused of only bailable offence or offences, to be

released on bail.

(6) When a person is accused of committing only bailable

offence or offences under the Act, it is not mandatory to

grant opportunity of hearing to the victim or the dependent

as provided under Section 15A(5) of the Act in a proceeding

relating to granting bail to such accused. However, before

the court decides to decline such opportunity to the victim

or the dependent, the court shall thoroughly verify and

ascertain that the allegations against the accused disclose

commission of only bailable offence or offences under the

Act, by him.

66. In view of the aforesaid discussion, this writ-application

fails and is hereby rejected.

(VIKRAM NATH, CJ.)

(J. B. PARDIWALA, J.)

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