UNION OF INDIA v. STATE OF MAHARASHTRA & Ors.

Constitution is required to make them equals. It would also be contrary to the procedure prescribed under the Cr.PC and contrary to the law laid down by this Court in Lalita Kumari. The guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia. The consistent view of Supreme Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above. In Kartar Singh, a Constitution Bench of this Court laid down that taking away the said right of anticipatory bail would not amount to a violation of Article 21 of the Constitution of India. Thus, prima facie it appears that in the case of misuse of provisions, adequate safeguards are provided in the decision mentioned above. That apart directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules. [Paras 49-55] [1171-F-G; 1172-A-C, E-H; 1173-A-G] In re: sanction of the appointing authority:

1.5 Concerning public servants, the provisions contained in Section 197, Cr.PC provide protection by prohibiting cognizance of the offence without the sanction of the appointing authority and the provision cannot be applied at the stage of the arrest. That would run against the spirit of Section 197, Cr.PC. Section 41, Cr.PC authorises every police officer to carry out an arrest in case of a cognizable offence and the very definition of a cognizable offence in terms of Section 2(c) of Cr.PC is one for which police officer may arrest without warrant. In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi. Permission of the appointing authority to arrest a public A B C D E F G H UNION OF INDIA v. STATE OF MAHARASHTRA 1131 servant is not at all statutorily envisaged; it is encroaching on a field which is reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the Courts. The direction is discriminatory and would cause several legal complications.To decide whether an accused is entitled to bail under Section 438 in case no prima facie case is made out or under Section 439 is the function of the Court. The direction of appointing authority not to arrest may create conflict with the provisions of Act of 1989 and is without statutory basis. [Paras 56-59] [1173-H; 1174-A-E; 1175-A-B]

1.6 By the guidelines issued, the anomalous situation may crop up in several cases. In case the appointing authority forms a view that as there is no prima facie case the incumbent is not to be arrested, several complications may arise. For the arrest of an offender, may be a public servant, it is not the provision of the general law of Cr.PC that permission of the appointing authority is necessary. No such statutory protection provided to a public servant in the matter of arrest under the IPC and the Cr.PC as such it would be discriminatory to impose such rider in the cases under the Act of 1989. Only in the case of discharge of official duties, some offence appears to have been committed, in that case, sanction to prosecute may be required and not otherwise. In case the act is outside the purview of the official discharge of duty, no such sanction is required. The appointing authority cannot sit over an FIR in case of cognizable, non-bailable offense and investigation made by the Police Officer; this function cannot be conferred upon the appointing authority as it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, this rider cannot be imposed in respect of the cases under the Act of 1989. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. [Paras 60-62] [1175-C-F; 1176-C] In ref: approval of arrest by the SSP in the case of a non- public servant: A B C D E F G H 1132 SUPREME COURT REPORTS [2019] 12 S.C.R.

1.7 Inter alia for the reasons as mentioned earlier, requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, obviously arrest has to be made. Without doubting bona fides of any officer, it cannot be left at the sweet discretion of the incumbent howsoever high. For an arrest of accused such a condition of approval of SSP could not have been made a sine qua non, it may delay the matter in the cases under the Act of 1989. [Para 63] [1176-D-F] Requiring the Magistrate to scrutinise the reasons for permitting further detention:

1.8 The reasons so recorded have to be considered by the Magistrate for permitting further detention. In case of approval has not been granted, this exercise has not been undertaken. When the offence is registered under the Act of 1989, the law should take its course. Even otherwise, the approval of arrest by appointing authority/S.S.P. has not been approved, the direction to record reasons and scrutiny by Magistrate consequently stands nullified. In case a cognisable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of Dy. S.P. The number of Dy. S.P. as per stand of Union of India required for such an exercise of preliminary inquiry is not available. The direction (iv) cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-a-vis to the complaints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act of 1989. Directions encroach upon the field reserved for the legislature and against the concept of protective A B C D E F G H UNION OF INDIA v. STATE OF MAHARASHTRA 1133 discrimination in favour of down-trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India. Resultantly, direction Nos.(iii) and (iv) issued by this Court are recalled and consequently it is held that direction No.(v), also vanishes. [Paras 64-66] [1176-G- H; 1177-A-F, H; 1178-A-B] Lalita Kumari v. Government of U.P. (2014) 2 SCC 1: [2013] 14 SCR 713 ; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375 ; Bachan Singh v. the State of Punjab (1980) 2 SCC 684 ; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Bhim Singh v. Union of India (2010) 5 SCC 53 ; State of T.N v. State of Kerala (2014) 12 SCC 696 : [2014] 12 SCR 875 ; Khadak Singh v. State of Himachal Pradesh AIR 1963 SC 1295 : [1964] SCR 332 ; Olga Tellis v. Bombay Corporation AIR 1986 SC 180 : [1985] 2 Suppl. SCR 51 – followed. National Campaign on Dalit Human Rights & Ors v. Union of India & Ors. (2017) 2 SCC 432 : [2016] 9 SCR 122 ; State of M.P. v. Ram Krishna Balothia (1995) 3 SCC 221 : [1995] 1 SCR 897; Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390 : [2014] 9 SCR 283 ; Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors. 1(989) 2 Suppl. SCC 364 : [1989] 3 SCR 19 ; Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 : [2006] 9 Suppl. SCR 73; Divisional Manager, Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 : [2007] 12 SCR 1084 ; Kuchchh Jal Sankat Nivaran Samili & Ors. v. State of Gujarat & Anr. (2013) 12 SCC 226 ; Hinch Lal Tiwari v. Kamla Devi (2001) 6 SC 496 : [2001] 1 Suppl.SCR 23 ; Francis Coralie Mullin v. Union Territory Delhi, Administrator AIR 1981 SC 746 : [1981] 2 SCR 516 ; People’s Union for Civil Liberties v. Union of India (2005) 2 SCC 436 : [2005] 1 SCR 494; Umesh Kumar v. State of A B C D E F G H 1134 SUPREME COURT REPORTS [2019] 12 S.C.R. Andhra Pradesh (2013) 10 SCC 591 : [2013] 14 SCR 213; Kishore Samrite v. State of Uttar Pradesh (2013) 2 SCC 398 : [2012] 9 SCR 733 ; Subramanian Swamy v. Union of India (2016) 7 SCC 221 : [2016] 3 SCR 865 ; Kailas & Ors. v. State of Maharashtra (2011) 1 SCC 793 : [2011] 1 SCR 94 ; State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 : [2004] 6 Suppl. SCR 460 – relied on. State of Haryana & Ors. v. Bhajan Lal & Ors. (1992) 1 Suppl. SCC 335 : [1990] 3 Suppl. SCR 259; Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 : [1998] 2 SCR 795 ; Prem Chand Garg v. Excise Commr. AIR 1963 SC 996 : [1963] Suppl. SCR 885; E.S.P. Rajaram v. Union of India (2001) 2 SCC 186: [2001] 1 SCR 203; A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 ; Bonkya v. State of Maharashtra (1995) 6 SCC 447:[1995] 4 Suppl. SCR 89; M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 : [2000] 1 Suppl. SCR 389 ; State of Punjab v. Rajesh Syal (2002) 8 SCC 158 : [2002] 3 Suppl. SCR 124; Textile Labour Association v. Official Liquidator (2004) 9 SCC 741 : [2004] 3 SCR 1161 ; Laxmidas Morarji v. Behrose Darab Madan (2009) 10 SCC 425 : [2009] 14 SCR 777; Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [2010] 2 SCR 414 ; A.B. Bhaskara Rao v. CBI (2011) 10 SCC 259 : [2011] 12 SCR 718 ; State of Punjab v. Rafiq Masih (2014) 8 SCC 883 : [2014] 8 SCR 228; Vishakha v. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 : [2007] 9 SCR130 ; Dr. Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454 : [2018] 4 SCR 877 – referred to. Stock v. Frank Jones (Tipton), 1978 (1) WLR 231 – referred to. Salmond on Jurisprudence, 12th Edition; Sweet & Maxwell – referred to. A B C D E F G H UNION OF INDIA v. STATE OF MAHARASHTRA 1135 Case Law Reference [2016] 9 SCR 122 relied on [2013] 14 SCR 713 followed [1990] 3 Suppl. SCR 259 referred to [1995] 1 SCR 897 [1994] 2 SCR 375 [2014] 9 SCR 283 relied on followed relied on [1998] 2 SCR 795 referred to [1963] Suppl. SCR 885 referred to [2001] 1 SCR 203 (1988) 2 SCC 602 referred to referred to [1995] 4 Suppl. SCR 89 referred to [2000] 1 Suppl. SCR 389 referred to [2002] 3 Suppl. SCR 124 referred to [2004] 3 SCR 1161 referred to [2009] 14 SCR 777 referred to [2010] 2 SCR 414 referred to [2011] 12 SCR 718 referred to [2014] 8 SCR 228 referred to Para 15 Para 16 Para 17 Para 18 Para 19 Para 20 Para 21 (a) Para 21 (b) Para 21 (c) Para 21 (d) Para 21(e) Para 21 (f) Para 21 (g) Para 21(h) Para 21 (i) Para 21 (j) Para 21(k) Para 21 (l) [1997] 3 Suppl. SCR 404 referred to Para 22 (1980) 2 SCC 684 followed [1989] 3 SCR 19 relied on [2007] 9 SCR 130 referred to [2006] 9 Suppl. SCR 73 relied on [2007] 12 SCR 1084 relied on (2013) 12 SCC 226 relied on [2018] 4 SCR 877 referred to Para 24 Para 25 Para 25 Para 26 Para 27 Para 28 Para 29 A B C D E F G H 1136 SUPREME COURT REPORTS [2019] 12 S.C.R. A [1973] Suppl. SCR 1 [2007] 1 SCR 706 (2010) 5 SCC 53 [2014] 12 SCR 875 B [1964] SCR 332 followed followed followed followed followed [2001] 1 Suppl. SCR 23 relied on [1981] 2 SCR 516 relied on [1985] 2 Suppl. SCR 51 followed [2005] 1 SCR 494 [2013] 14 SCR 213 [2012] 9 SCR 733 [2016] 3 SCR 865 [2011] 1 SCR 94 relied on relied on relied on relied on relied on [2004] 6 Suppl. SCR 460 relied on C D E Para 30 Para 31 Para 32 Para 33 Para 43 Para 44 Para 44 Para 44 Para 44 Para 45 Para 45 Para 45 Para 47 Para 57 INHERENT JURISDICTION: Review Petition (Criminal) No. 228 of 2018 in Criminal Appeal No. 416 of 2018 From the Judgment and Order dated 20.03.2018 in Criminal Appeal No. 416 of 2018 With Review Petition (Crl.) No. 275 of 2018 in Criminal Appeal No.416 F of 2018. K. K. Venugopal, AG, Tushar Mehta, ASG, R. Balasubramanian, Mohan Parashran, Vikas Singh, Gopal Sankaranarayanan, Ashok Kumar Sharma, Sr. Advs., Ankur Talwar, Ms. Shraddha Deshmukh, Raj Bahadur Yadav, Nishant Gautam, Vardhman Kaushik, Ms. Priya Sharma, Varun Sharma, Ms. Shashi Kiran, Satish Chandra, Arjun Sain, Ms. Pooja Dhar, Ms. Gayatri Verma, Aishwarya Kane, Vishal Sinha, Parmanand Gaur, Ms. Bandana Singh, Kshitij Mudgal, B. K. Gautam, Mrs. Anil Katiyar, K.K.L. Gautam, A. K. Suman, P. S. Nerwal, Rahul Mohd., Bharat Ram, Sanjeev Malhotra, K. Paari Vendhan, Nilesh Ukey, Sabarish Subramanian, Prabu Ramasubramanian, Y. William Vinoth Kumar, Vishnu G H UNION OF INDIA v. STATE OF MAHARASHTRA 1137 Unnikrishnan, Ms. Disha Wadekar, Paras Nath Singh, Siddharth, Fuzail Ahmad Ayyubi, Rameshwar Prasad Goyal, Varinder Kumar Sharma, Nachiketa Joshi, Prashant Bhushan, Shivendra Singh, Karuvaki Mohanty, Dr. M.N. Verma, Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar, Sushil Karanjkar, K. N. Rai, Kumar Parimal, Smarhar Singh, Guntur Prabhakar, Balraj Dewan, Avijit Bhattacharjee, Ms. Upma Shrivastava, Ajoy Kumar Ghosh, Abhay Kant Mishra, P.V. Saravana Raja, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Mohan Kumar, Manoj Gorkela, Sandeep Kumar Singh, Ram Shrivastava, Ms. Hemlata K., Sandeep Kumar Singh (for M/s. Gorkela Law Office), Raj Kamal, Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, Kunal Yadav, Ms. Neena Shukla, Alok Shukla, Debasis Misra, D. Mahesh Babu, Dr. A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh, Ms. Pratima Rani, Sadashiv, Shekhar Kumar, Arup Banerjee, M. Y. Deshmukh, Ms. Manjeet Kirpal, Dr. K. S. Chauhan, Ajit Kumar Ekka, Ravi Prakash, Chand Kiran, S. P. Singh, Mahfooz A. Nazki, Polanki Gowtham, Advs. for the appearing parties. Applicant-in-person. The Judgment of the Court was delivered by ARUN MISHRA, J.

#1. The Union of India has filed the instant petition for review of the judgment and order dated 20.3.2018 passed by this Court in Criminal Appeal No.416 of 2018. This Court while dealing with the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph 83 of the judgment, which are extracted hereunder:- “83. Our conclusions are as follows: i) Proceedings in the present case are clear abuse of process of court and are quashed. ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); A B C D E F G H 1138 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective.”

#2. This Court, while passing the judgment under review, has observed in paragraph 32 thus: “32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights1. There are enumerable decisions of this Court where this approach has been adopted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such directions can certainly be issued and continued till an appropriate legislation is enacted2. Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute3. Power to declare law carries with it, within the limits of duty, to make law when none exists4 . 1 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13 2 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983) 2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756 3 Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48 4 Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18 [Note: For convenience, the cases/citations in the extracts have been renumbered.] UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1139

#3. Question has been raised by the Union of India that when the Court does not accept the legislative and specific provisions of law passed by the legislature and only the legislature has the power to amend those provisions if the Court finds provisions are not acceptable to it, it has to be struck them down being violative of fundamental rights or in case of deficiency to point out to the legislature to correct the same.

#4. The Union of India has submitted that judgment and order dated 20.3.2018 entails wide ramification and it deserves to be reviewed by this Court. It is also submitted that this Court has failed to take note of aspects which would have a significant bearing on the present case.

#5. It is submitted that the Act of 1989 had been enacted to remove the disparity of the Scheduled Castes and Scheduled Tribes who remain vulnerable and denied their civil rights. The Statement of Objects and Reasons of the Act of 1989, for which it had been enacted is as under: “Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations, and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social, and economic reasons.

#2. ………. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of the commission of certain atrocities like making the Scheduled Caste persons ear inedible substances, like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the A B C D E F G H 1140 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.” The preamble to the Act of 1989 states as under: “An Act to prevent the Commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts 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.” Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst members of Scheduled Castes and Scheduled Tribes. It is submitted that any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases. With a view to object apprehended misuse of the law, no such direction can be issued. In case there is no prima facie case made out under the Act of 1989, anticipatory bail can be granted. The same was granted in the case in question also.

#6. It is submitted that because of the continuing atrocities against the members of the Scheduled Castes and Scheduled Tribes, a commission of offences against them indicated an increase, even the existing provisions were not considered sufficient to achieve the objective to deliver equal justice to the members of the Scheduled Castes and the Scheduled Tribes. Hence, the Act of 1989 had been amended in April 2015, enforced with effect from 26.01.2016.

#7. It is further submitted that the amendments broadly related to addition of several new offences/atrocities like tonsuring of head/moustache, or similar acts which are derogatory to the dignity of the members of Scheduled Castes and Scheduled Tribes, garlanding with footwear, denying access to irrigation facilities or forest rights, dispose or carry human or animal carcasses, or to dig graves, using or permitting manual scavenging, dedicating a Scheduled Caste or a Scheduled Tribe woman as devadasi, abusing in caste name, perpetrating witchcraft UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1141 atrocities, imposing social or economic boycott, preventing Scheduled Caste and Scheduled Tribe candidates from filing nomination to contest elections, insulting a Scheduled Castes/ Scheduled Tribes woman by removing her garments, forcing a member of Scheduled Caste/ Scheduled Tribe to leave house, village or residence, defiling objects sacred to members of Scheduled Castes and Scheduled Tribes, touching or using acts or gestures of a sexual nature against members of Scheduled Castes and Scheduled Tribes and addition of certain IPC offences like hurt, grievous hurt, intimidation, kidnapping etc., attracting less than ten years of imprisonment committed against members of Scheduled Castes and Scheduled Tribes as offences punishable under the Act of 1989, beside rephrasing and expansion of some of the earlier offences.

#8. It is submitted that the provisions have also been made for the establishment of exclusive Special Courts and specification of Exclusive Special Public Prosecutors to exclusively try the offences under the Act of 1989 to enable expeditious disposal of cases, Special Courts and Exclusive Special Courts to take direct cognisance of offences and completion of trial as far as possible within two months from the date of filing of the charge sheet and addition of chapter on the “Rights of Victims and Witnesses”.

#9. It is also submitted on behalf of Union of India that as per the amendment Rules, 2016 the provisions have also been made with regard to relief amount of 47 offences of atrocities to victims, rationalisation of the phasing of payment of relief amount, enhancement of relief amount between Rs.85,000/- to Rs.8,25,000/- depending upon the nature of the offence, payment of admissible relief within seven days, on completion of investigation and filing of charge sheet within sixty days to enable timely commencement of prosecution and periodic review of the scheme for the rights and entitlements of victims and witnesses in accessing justice by the State, District and Sub-Division Level Vigilance and Monitoring Committees in their respective meetings.

#10. It is submitted that this Court has failed to appreciate that low rate of conviction and high rate of acquittal under the Act of 1989, related cases is attributable to several factors like delay in lodging the FIR, witnesses, and complainants becoming hostile, absence of proper scrutiny of the cases by the prosecution before filing the charge sheet in the Court, lack of proper presentation of the case by the prosecution and A B C D E F G H 1142 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H appreciation of evidence by the Court. There is long pendency of the trial, which makes the witness to lose their interest and lack of corroborative evidence. There are procedural delays in investigation and filing of the charge sheet.

#11. It is submitted that Rule 7(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that investigating officer to complete the investigation within 30 days. Without immediate registration of FIR and arrest and by providing anticipatory bail to the accused, Rule 7 is bound to be frustrated.

#12. It is further submitted that the directions issued are legislative. It would devoid the object of the Act to remove the caste-based sub-judication and discrimination. Such directions are impermissible to be issued under Article 142 of the Constitution of India.

#13. It is also submitted that offences of atrocities against the members of Scheduled Castes and Scheduled Tribes have been disturbingly continuing and as per the data of National Crime Records Bureau (NCRB), Ministry of Home Affairs, 47,338 number of cases were registered in the country under the Act of 1989 in conjunction with the Indian Penal Code during the year 2016. Further, only 24.5 % of the said cases ended in conviction and 89.3% were pending in the courts at the end of the year 2016. In the circumstances, it is not proper to dilute the provisions and make it easier for the accused to get away from arrest by directing a preliminary enquiry, approval for an arrest.

#14. Per contra, it is submitted that directions are proper because of misuse of the legislative provisions of the Atrocities Act, and no case for interference is made out in the review jurisdiction.

#15. Before dealing with submission, we refer to the decisions. In National Campaign on Dalit Human Rights & Ors v. Union of India & Ors. (2017) 2 SCC 432, this Court has considered the report of Justice K. Punnaiah Commission and the 6th Report of the National Commission for Scheduled Castes/ Scheduled Tribes. The NHRC report also highlighted the non-registration of cases and various other machinations resorted to by the police to discourage Dalits from registering cases under the Act of 1989. In the said case this Court had directed the strict implementation of the provisions of the Act of 1989. The relevant portion of the decision mentioned above is extracted hereunder: UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1143 “18. 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 authorities concerned in complying with the provisions of the Act and the 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 with 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 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 the State Governments should be directed to strictly enforce the provisions of the Act and we do so. The National Commissions are also directed to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. ….”

#16. Reliance has been placed on Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, wherein a Constitution Bench of this Court has observed as under: “35. However, on the other hand, there are a number of cases which exhibit that there are instances where the power of the police to register an FIR and initiate an investigation thereto are misused where a cognizable offence is not made out from the contents of the complaint. A significant case in this context is the case of Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667 wherein this Court has expressed its anxiety over misuse of Section 498-A of the Penal Code, 1860 (in short “IPC”) with respect to which a large number of frivolous reports were lodged. This Court expressed its desire that the legislature must take into consideration the informed public opinion and the pragmatic realities to make necessary changes in law. A B C D E F G H 1144 SUPREME COURT REPORTS [2019] 12 S.C.R.

#36. The abovesaid judgment resulted in the 243rd Report of the Law Commission of India submitted on 30-8-2012. The Law Commission, in its report, concluded that though the offence under Section 498-A could be made compoundable, however, the extent of misuse was not established by empirical data, and, thus, could not be a ground to denude the provision of its efficacy. The Law Commission also observed that the law on the question whether the registration of FIR could be postponed for a reasonable time is in a state of uncertainty and can be crystallised only upon this Court putting at rest the present controversy.” ***

#99. In CBI v. Tapan Kumar Singh (2003) 6 SCC 175, it was held as under: (SCC pp. 183-84, para 20) “20. ……If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage, it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. …..The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation…..” It is apparent from the decision in Lalita Kumari (supra) that FIR has to be registered forthwith in case it relates to the commission of the cognizable offence. There is no discretion on the Officer In-charge of the Police Station for embarking upon a preliminary inquiry before registration of FIR. Preliminary inquiry can only be held in a case where it has to be ascertained whether a cognizable offence has been committed or not. If the information discloses the commission of a cognizable offence, it is mandatory to register the FIR under Section 154 of Cr.PC, and no preliminary inquiry is permissible in such a situation. This Court in Lalita Kumar (supra) observed as under: A B C D E F G H UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1145 “54. Therefore, the context in which the word “shall” appears in Section 154(1) of the Code, the object for which it has been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors clearly show that the word “shall” used in Section 154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction.” Concerning the question of arrest, in Lalita Kumari (supra) this Court has considered the safeguard in respect of arrest of an accused person. This Court affirmed the principle that arrest cannot be made routinely on the mere allegation of commission of an offence. The question arises as to justification to create a special dispensation applicable only to complaints under the Atrocities Act because of safeguards applicable generally.

#17. In State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335, which has been relied upon in Lalita Kumari (supra), this Court has observed as under: “31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections A B C D E F G H 1146 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.

#32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer in charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ‘information’ UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1147 was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.

#33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” The Court observed the conduct of an investigation into an offence after the registration of FIR is a procedure established by law and conforms with Article 21 of the Constitution. This Court has also considered possible misuse of the provisions of the law in Lalita Kumari (supra).

#18. On behalf of Union of India, the decision in State of M.P. v. Ram Krishna Balothia (1995) 3 SCC 221 has been relied on, in which this Court has upheld the validity of Section 18 of the Act of 1989 and observed in background relating to the practice of untouchability and the social attitude which lead to the commission of such offences against the Scheduled Castes/ Scheduled Tribes, there is justification of apprehension that if benefit of anticipatory bail is made available to persons who are alleged to have committed such offences, there is every possibility of their misusing that liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. This Court in Ram Krishna Balothia’s (supra) has observed: “6. It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with the abolition of ‘untouchability’ and forbids its practice in any form. It also provides that enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable under the A B C D E F G H 1148 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H law. The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of ‘untouchability.’ It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18 which is before us. The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection we may refer to the Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in Parliament. It sets out the circumstances surrounding the enactment of the said Act and points to the evil which the statute sought to remedy. In the Statement of Objects and Reasons, it is stated: “Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations, and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons

#2. … When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes, and Scheduled Tribes is resented, and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1149 killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes…. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.” The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences.

#9. Of course, the offences enumerated under the present case are very different from those under the Terrorist and Disruptive Activities (Prevention) Act, 1987. However, looking to the historical background relating to the practice of “Untouchability” and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification of an apprehension that if the benefit of the anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21.

#10. It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is not available for even “minor offences” under the said Act. This grievance also cannot be justified. The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate A B C D E F G H 1150 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H class and cannot be compared with offences under the Penal Code.”

#19. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, this Court has observed that denial of the right of anticipatory bail under section 438 would not amount to a violation of Article 21 of the Constitution of India. Thus, the provision of section 18 cannot be said to be violative of Article 21. Article 17 of the Constitution abolishes untouchability.

#20. In Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390, it is observed that where statutory provisions are clear and unambiguous, it cannot be read down and has observed that the statistics are to be considered by a legislature. The Court must take care not to express any opinions on sufficiency or adequacy of such figures and should confine their scrutiny to legality not a necessity of law. This Court observed: “67. Before parting, we would like to observe that elaborate statistics have been laid before us to show the extent of serious crimes committed by juveniles and the increase in the rate of such crimes, of late. We refuse to be tempted to enter into the said arena, which is primarily for the legislature to consider. Courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued. We would be justified to recall the observations of Justice Krishna Iyer in Murthy Match Works (1974) 4 SCC 428, as the present issues seem to be adequately taken care of by the same: (SCC p. 437, paras 13-15) “13. Right at the threshold, we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States v. Butler: 80L Ed 477: 297 US 1 (1936) thus: (L.Ed p. 495) “The power of Courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that Courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1151 Government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the Courts but to the ballot and to the processes of democratic Government.”

#14. In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. In the present case, unconstitutionality is alleged as springing from lugging together two dissimilar categories of match manufacturers into one compartment for like treatment.

#15. Certain principles which bear upon classification may be mentioned here. It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional. To put it differently, the means must have nexus with the ends. Even so, a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps ill-equipped to investigate. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished. In this context, we have to remember the relationship between the legislative and judicial departments of Government in the determination of the validity of classification. Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal. At the same time, the question of classification is primarily for legislative judgment, and ordinarily does not become a judicial question. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot A B C D E F G H 1152 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H rush in where even the legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation.” (emphasis supplied) It was observed in Subramanian Swamy (supra) that where statutory provisions are clear and unambiguous, it cannot be read down. It would not be possible to carry out directions of this Court as number of Dy. S.P. Level Officers is not sufficient to make compliance of the directions.

#21. Concerning the exercise of powers under Article 142 of Constitution of India, learned Attorney General has submitted that such power could not have been exercised against the spirit of statutory provisions and to nullify them and field reserved for the legislature as there was no vacuum. He has referred to the following decisions: (a) In Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, this Court has observed as under: “47. …..It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. …..

#48. …..Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.” (b) In Prem Chand Garg v. Excise Commr., AIR 1963 SC 996, the Court observed that it has no power to circumscribe fundamental rights guaranteed under Article 32 of Constitution of India. UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1153 (c) In E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, the Court observed that the Supreme Court under Article 142 of the Constitution could not altogether disregard the substantive provisions of a statute and pass orders concerning an issue, which can be settled only through a mechanism prescribed in another statute. (d) In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, it has been observed that though the language of article 142 is comprehensive and plenary, the directions given by the court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute. (e) In Bonkya v. State of Maharashtra, (1995) 6 SCC 447, the Court has held that the Court exercises jurisdiction under Article 142 of the Constitution intending to do justice between the parties, but not in disregard of the relevant statutory provisions. (f) In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, this Court has observed that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly. (g) In State of Punjab v. Rajesh Syal, (2002) 8 SCC 158, the Court held that even in exercising power under Article 142(1), it is more than doubtful that an order can be passed contrary to law. (h) In Textile Labour Association v. Official Liquidator, (2004) 9 SCC 741, observation has been made that power under Article 142 is only a residuary power, supplementary and complementary to the powers expressly conferred on this Court by statutes, exercisable to do complete justice between the parties wherever it is just and equitable to do so. It is intended to prevent any obstruction to the stream of justice. (i) In Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, it was observed that the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. (j) In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, it was observed that the courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected A B C D E F G H 1154 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H by law. The power under Article 142 not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure. (k) In A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259, it was held that the power under Article 142 is not restricted by statutory provisions. It cannot be exercised based on sympathy and in conflict with the statute. (l) In State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, this Court held that Article 142 is supplementary and it cannot supplant the substantive provisions. It is a power which gives preference to equity over the law. The relevant portion is extracted hereunder: “12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice- oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. “Declaration of law” as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land…..This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.” (emphasis supplied)

#22. It is submitted that there was no legislative vacuum calling for the exercise of power under Article 142 of the Constitution of India and hence the reliance on Vishakha v. State of Rajasthan, (1997) 6 SCC 241 is misplaced. On the contrary, the matter was covered by the statute; namely, Section 18 of the said Atrocities Act read with Section 41 of Cr.PC.

#23. We now propose to examine the law concerning field reserved for the legislature and extant of judicial interference in the field reserved for the legislature. The difference between the common law and statute law has been brought out in the following passage in the book, Salmond on Jurisprudence, 12th Edition; Sweet & Maxwell: UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1155 “In the strict sense, however, legislation is the laying down of legal rules by a sovereign or subordinate legislator. Here we must distinguish law-making by legislators from law-making by the courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, in so far as they create law, can do so only in application to the cases before them and only in so far as is necessary for their solution. Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central function of the legislator.”

#24. In various decisions, this Court has dealt with the scope of judicial review and issuance of guidelines. The directions mentioned above touch the realm of policy. In Bachan Singh v. the State of Punjab, (1980) 2 SCC 684, the Court has laid down and recognised the judicial review thus: “67. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions, and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making. “The job of a Judge is judging and not law-making.” In Lord Devlin’s words: “Judges are the keepers of the law, and the keepers of these boundaries cannot, also, be among outriders.” (emphasis supplied) It has been observed that the Court should not transgress into the legislative domain of policymaking.

#25. In Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors., 1989 Supp. (2) SCC 364, this Court has observed that it is not for the Court to pronounce policy. It cannot lay down what is wise or politic. Self-restraint is the essence of the judicial oath. The Court observed: “17. Before adverting to the controversy directly involved in these appeals, we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although A B C D E F G H 1156 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people’s will, they have all the powers, including that of finance. Judiciary has no power over sword or the purse; nonetheless, it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self- imposed discipline of judicial restraint.

#18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles, 356 US 96 observed as under: “All power is, in Madison’s phrase, “of an encroaching nature.” Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint... Rigorous observance of the difference between limits of power and wise exercise of power — between questions of authority and questions of prudence — requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce UNION OF INDIA v. STATE OF MAHARASHTRA [ARUN MISHRA, J.] 1157 policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do.” (emphasis supplied) The Court held that it could not affect its notions of what is wise or politic. It is for the legislature to consider data and decide such aspects. The law laid down in Asif Hameed v. State of Jammu and Kashmir (supra) has been reiterated by this Court in S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279.

#26. In Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Court observed thus: “40. The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case-law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. of Police, AIR 2005 Mad 1 and we fully agree with the views expressed therein.”

#27. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, this Court held as under: