IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO. OF 2018

IN THE MATTER OF:-

1. INDIA FOR RULE OF LAW FOUNDATION,

Through its Chairperson
Ms. Deesha Bihari Gorasia, Advocate,
PETITIONER No.
1

2. VIKAS PARASHAR, ADVOCATE

S/o Raman Lal Parashar,
R/o 397 Narayan Puri, Dhouli Pyaou,
Mathura, Uttar Pradesh – 281001
VERSUS
1. Union of India,
Through Secretary,
Ministry of Law & Justice,
Legislative Department,
New Delhi

WITH

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

CONTACT NO.: 9582462424, 9820632424

SYNOPSIS & LIST OF DATES AND EVENTS

That the Petitioners are invoking the writ jurisdiction of this

Hon’ble Court under Article 32 of the Constitution of India

against the Respondents for having passed the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2018, by the Lok Sabha on August 6, 2018, rendering the

judgment of Supreme Court in Dr. Subhash Kashinath Mahajan

vs. The State of Maharashtra redundant, nugatory and otiose.

That being aggrieved by the directions of this Hon’ble Court, the

Respondent has filed a Crl. Review Petition No. 228 of 2018 in

Criminal Appeal No. 416 of 2018 on one hand, which is pending

before this Hon’ble Court. On the other hand, in willful defiance

of the directions of this Hon’ble Court in Criminal Appeal No.

416 of 2018 (Dr. Subhash Kashinath Mahajan supra), have gone

ahead and published in the official gazette No. 27 of 2018 on

August 17th 2018 the SC-ST Amendment Act, 2018, which in

effect tantamount’s to be a legislative overruling, invalidating

and dismissing the directions of this Hon’ble Court.

The Parliament can also amend an Act to cure a defect

highlighted by a Judgment, however it cannot make a law to

circumvent, overrule and bypass a judicial pronouncement

indicting a social evil, which goes to the root of violation of

natural justice and principles of equality. The Parliament also

has the power and jurisdiction to enact or amend or repeal a

law, either prospective or retrospective, only to cure an evil in

the society, commensurate to the fundamental rights and the

legislative competence of the Parliament and not otherwise. The

Parliament by way of The SC-ST Amendment Act, 2018 avowedly

seeks to bring back the unfair, arbitrary and illogical law, which

was directly set at naught by this Hon’ble Court in Dr. Subhash

Kashinath Mahajan supra, wherein this Hon’ble court issued the

following directions:

“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);

 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.

The very the purpose behind legislating The SC-ST Amendment

Act, 2018 is against the well-being of the non-SC/ST people in

the society and therefore premised on arbitrary, unlawful and

illogical principles of law, and the same is therefore devoid of any

scientific logic or reasoning. The said publication by the

Respondents of The SC-ST Amendment Act, 2018 is not only in

the teeth of Article 14, 19 and 21 of the Petitioners but also in

gross violation and contravention of Article 129 and 141 the

India Constitution rendering the directions passed by this

Hon’ble Court meaningless redundant and otiose.

The Parliament cannot overrule the Judgment passed by

this Hon’ble Court, in the guise of legislative competence - it

can only pass validating act in order to remove the defects

highlighted by the Court.

The final judgment, once rendered by this Hon’ble Court,

operates and remains in force until altered by this court it self in

appropriate proceedings. The Parliament and State Assemblies

have no power to enact laws to nullify the judicial verdicts based

on facts and findings. Under the guise of legislative powers inter-

alia under Article 246 read with the Seventh Schedule of the

Constitution, the legislature cannot neutralise the effect of the

judgment delivered by this Hon’ble Court, after ascertainment of

fact by means of evidence/materials placed by the parties to the

dispute. A plain and simple judicial decision on fact cannot be

altered by a legislative decision. That under the Constitutional

principle, the legislature had the power to render judicial

decisions “ineffective by enacting validating law within its

legislative field fundamentally altering or changing its character

retrospectively.” But this power “has no application where a

judicial decision has been rendered by recording a finding of

fact.

The Parliament can make/amend/repeal an Act to cure the/a

defect highlighted by a Judgment. However it doesn’t have the

competence to render the judgment meaningless by

making/amending/repealing a law in-order to circumvent,

overrule and bypass a judicial pronouncement. The legislative

over-reach, in the garb of legislative competence under Article

246 read with Seventh Schedule is in total violation of the

principles of separation of power between Judiciary and

legislature. And therefore goes to the root of independence of

judiciary and is a violation of natural justice and principles of

equality among the people of the country across class’s and

mass’s.

The said publication by the Respondents of The SC-ST

Amendment Act, 2018 is passed by the Lok-Sabha in utter

haste, keeping in view the impending Parliamentary Elections

2019, where the people belonging to SC/ST category can be

mislead by the Ruling party and in the bargain a blind loyalty

and devotion can be negotiated whereby the votes can be

managed by way of undue influence and manipulation.

It is submitted that the directions passed by this Hon’ble Court

was for the protection against the abuse of the Police powers

against the innocent people of this country, without preliminary

inquiry. This Hon’ble Court has directed the State to do a

through preliminary enquiry and investigation and if anything

material found, the police is free to arrest the accused, as per

law. However without a preliminary investigation and through

enquiry the arrest shall be unfair. This judgment also protects

the interest of whole nation, in this Judgment Hon’ble court

observed that there were instances of abuse of the Act by vested

interest for political or personal reasons, hence in course to

protect the fundamental rights of innocent, preliminary enquiry

is needed to ensure allegations is not “frivolous or motivated”.

However this judgment faced a nationwide protest of political

groups just to take advantage in upcoming election in 2019, on

the face of protests and to get maximum political millage and

being under pressure from alliance partner’s and also worried

over the prospects of antagonizing huge SC-ST vote bank ahead

of 2019 Lok-Sabha Elections, the Respondents filed a Review

Petition. The Respondents despite the pendency of the Review

Petition still decided to legislate The SC-ST Amendment Act,

2018 and restored the status–quo-ante. The SC-ST Amendment

Act, 2018 revives the previous provisions in such a manner, that

an accused person can’t access and avail the right of

Anticipatory bail.

The Parliament by passing the SC-ST Amendment Act 2018 has

unconstitutionally done indirectly what it couldn't do directly.

Despite the Review Petition pending with the Supreme Court, the

Government of India has in-order to overrule and get-away of the

directions of this Hon’ble Court, has passed the SC-ST

Amendment Act 2018, which is not only illegal but also reeks of

deep seethed desire to win 2019 Parliamentary Election by

incorrect means.

The legislature cannot overrule a judgment but the legislature

may pass a validating Act changing the law upon which that

judgment had been founded. Parliament had the competence to

bring in retrospective amendments to remove the basis of a

judgment. However in the guise of an amendment, Parliament

can't overrule a judgment or usurp judicial powers.

Any law/amendment made by the Parliament must have a

public purpose and not against the public policy of India. The

Parliament can make/amend/repeal an Act to cure a defect

highlighted by a Judgment. However it doesn’t have the power or

competence to render the judgment meaningless by amending

an Act in-order to circumvent, overrule and bypass a judicial

pronouncement. The legislative over-reach, in the garb of

legislative competence under Article 246 read with Seventh

Schedule is in total violation of the principles of separation of

power between Judiciary and legislature. And therefore goes to

the very root of independence of judiciary and is a violation of

natural justice and principles of equality among the people of the

country. Parliament had the competence to bring in retrospective

amendments to remove the basis of a judgment. In the guise of

amendment, Parliament cannot overrule a judgment or usurp

the judicial power.

The relevant abstract of the said the Amendment Act, 2018 is

produced hereunder-

1. (1) This Act may be called the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2018.

(2) It shall come into force on such date as the Central

Government may, by notification in the Official Gazette,

appoint.
 2. After section 18 of the Scheduled Castes and the

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

following section shall be inserted, namely:—

"18A. (1) For the purposes of this Act,—

(a) preliminary enquiry shall not be required for

registration of a First Information Report against

any person; or

(b) the investigating officer shall not require

approval for the arrest, if necessary, of any

person,

against whom an accusation of having committed an

offence under this Act has been made and no

procedure other than that provided under this Act or

the Code shall apply.

(2) The provisions of section 438 of the Code shall not

apply to a case under this Act, notwithstanding any

judgment or order or direction of any Court.".

Effect of the Amendment Act, 2018 on Public Servants

This Amendment Act, 2018 being highly prejudicial, the Public

Servants find it difficult to give adverse remarks against

employees for fear that they may be charged under the Act. It

may unfairly damage the personal and professional reputation of

a citizen. There is a need to balance the societal interest and

peace on the one hand and the protection of rights of victims of

such false allegations on the other.

Anticipatory Bail

It is submitted that in context of Section 18A the SC-ST

Amendment Act 2018, which excludes Section 438 (Anticipatory

Bail) of Criminal Procedure Code, violates the scheme of the

Constitution of India and specifically runs counter to Articles 14,

19 and 21 and is violative the doctrine of basic structure of the

Constitution and there must me struck-down by this Hon’ble

Court.

An order of anticipatory bail constitutes, an insurance against

police custody following upon arrest for offence or offences in

respect of which the order is issued. In other words, unlike a

post-arrest order of bail, it is a pre-arrest legal process, which

directs that if the person in whose favor it is issued is thereafter

arrested on the accusation in respect of which the direction is

issued, he shall be released on bail. Section 46(1) of the Code of

Criminal Procedure which deals with how arrests are to be

made, provides that in making the arrest, the police officer or

other person making the arrest “shall actually touch or confine

the body of the person to be arrested, unless there be a

submission to the custody by word or action“. A direction under

section 438 is intended to confer conditional immunity from this

‘touch’ or confinement.

The distinction between an ordinary order of bail and an order of

anticipatory bail is that whereas the former is granted after

arrest and thus means release from the custody of the police, the

latter is granted in anticipation of arrest and is therefore effective

at the very moment of arrest. Police custody is an inevitable

concomitant of arrest for non-bailable offences. The grant of

“anticipatory bail” to an accused who is under arrest involves a

contradiction in terms, in so far as the offence or offences for

which he is arrested, are concerned. After arrest, the accused

must seek his remedy under Section 437 or Section 439 of the

Code, if he wants to be released on bail in respect of the offence

or offences for which he is arrested.

Right to Equality

The time has come, when India must proudly walk towards

growth and development like Singapore, Korea and other South-

East-Asian countries and be called and known as an

Equalitarian Society. We must move away from the archaic laws

like reservation at the cost of equality. The reservation policy of

the Government of India must be completely stopped being in

total violation of the Right to Equality of the members of the non-

SC-ST community. The Members of the SC-ST community have

enjoyed the reservation policy for long, at the cost and peril of

the members of the non-SC-ST community.

The word fraternity has no meaning if the members of SC-ST are

given partial treatment under the protection of this Amendment

Act 2018. In fact this Amendment Act 2018 will create a wider

divide among the citizens of this country and the members of the

non-SC-ST community will start avoiding the members of SC-ST

community. I wonder how will this act achieve it purpose and

object of protecting the members of SC-ST Community against

the non-SC-ST members. If we want to abolish the sense of

separation among the people of India, it is necessary that we

should not encourage the sense of separation by our own act.

This Amendment Act 2018 in fact does injustice to the social,

political and economic rights of the members of the SC-ST

community.

The SC-ST Amendment Act 2018 is an attempt to separate the

society unfairly. To provide social security to the members of the

SC-ST community, unequally at the cost of non-SC-ST members,

is only going to divide the country. The SC-ST Amendment Act,

2018 is bound to encourage separatism and post-pone, at least

for some time, the dream of evolving a truly secular State. As

long as any community demands and gets partial treatment by

the Government, a truly secular State, in my opinion, shall

always remains a distant dream. The SC-ST Amendment Act

2018 in a way divides the Indian community on the lines of

insecurity, hatred and jealousy against the members of the

majority community, which is very harmful for the entire nation.

This kind of a divide will never be capable of being leveled and

the level playing field and goodwill among the Indian society will

be eroded permanently.

Under this act SC/ST people get an unfair advantage over rest of

the population thereby violating Article 14 of the constitution.

However if it may be necessary for social justice then this act

may only be used in caste wise sensitive areas for a period of not

more than five years. There should be a review of a caste wise

sensitive area every five years.

The SC-ST Act doesn’t provides, as to what will happen if the

victims of the SC-ST community, lodges a manufactured and

false police complaint against the non-SC-ST community

members, thereby willfully causing injury, embarrassment and

humiliation to them.

LIST OF DATES

1989 The Scheduled Castes and Tribes (Prevention of

Atrocities) Act, 1989 was enacted to prevent

atrocities against the members of the Scheduled

Castes and Scheduled Tribes in India.

20.03.2018 In the matter of Dr. Subhash Kashinath Mahajan

vs. The State of Maharashtra; wherein this Hon’ble

Court issued directions after examining all the

relevant facts pertains to the Scheduled Castes and

Schedule Tribes (Prevention of Atrocities) Act, 1989;

16.05.2018 Review Petition filed by the Respondents against

the directions of this Hon’ble Court in Dr. Subhash

Kashinath Mahajan vs. The State of Maharashtra;

17.08.2018 The Scheduled Castes and The Scheduled Tribes

(Prevention of Atrocities) Amendment Act, an Act

No. 27 of 2018 was notified in the Gazette of India

 and published by the Ministry of Law and Justice

and the President of India gave his assent and the

same was published for general public as Govt.

information. The amendment was done in a way to

overruled the directions of this Hon’ble Court in the

matter of Dr. Subhash Kashinath Mahajan vs. The

State of Maharashtra.

20.08.2018 A notification in the Gazette of India was published

by the Ministry of Social Justice and Empowerment

that in exercise of the power conferred by sub

section (2) section 1 of the Scheduled Castes and

The Scheduled Tribes (Prevention of Atrocities)

Amendment Act 2018 No. 27 of 2018, the Central

Government hereby appoints the 20th day of August

2018, as the date on which the provisions of the

impugned Act shall come into force.

Hence this Writ Petition.

 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO. OF 2018

IN THE MATTER OF:-

1. INDIA FOR RULE OF LAW FOUNDATION,

Through its Chairperson

PETITIONER No. 1

2. VIKAS PARASHAR, ADVOCATE

3. AJAY KUMAR MISHRA

VERSUS

1. Union of India,

Through Secretary,

Ministry of Law & Justice,

Legislative Department,

4th Floor, A-Wing,

Shashtri Bhawan,

New Delhi - 110001

WITH
 PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

CONTACT NO.: 9582462424, 9820632424

PIL UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

BEFORE THIS HON’BLE COURT FOR VIOLATION OF

ARTICLE 14, 19 & 21 AND OTHER ARTICLES OF THE

CONSTITUTION OF INDIA

TO,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS

COMPANION JUDGES OF THIS HON’BLE COURT

HUMBLE WRIT PETITION OF THE PETITIONERS

ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. That the Petitioners are filing the present Writ Petition (Public

Interest Litigation) before this Hon'ble Court under Article 32 of

the Constitution of India in-order to assail the validity of the SC-

ST (Prevention of Atrocities) Amendment Act, 2018. As the same

is in the teeth of Article 14, 19 & 21 apart from the entire

scheme of the Indian Constitution.

2. That following are the brief facts culminating into the present

Writ Petition -

a. In 1989, the Scheduled Castes and Tribes (Prevention

of Atrocities) Act, 1989 was enacted to prevent atrocities

against the Scheduled Castes and Scheduled Tribes;

b. That, the act was conceived as a strong safeguard

against the members Scheduled Castes and Tribes

however soon after it translated into an instrument of

mass blackmail of non-SC-ST members/innocent

citizen’s in the hands of the members of the SC-ST

community;

c. That, the past three decades have seen a prejudicial

abuse of the Scheduled Castes and Tribes (Prevention of

Atrocities) Act, 1989 by the members of the SC-ST

community against the non-SC-ST members in order to

set their individual scores/issues straight out of ill-will

and envy;

d. That, after many instance and complaints of abuse of

said SC-ST Act, 1989 and many Judgments of various

Hon’ble High Courts, wherein the Courts considered this

Act has now became a tool of mass harassment of the

innocents members of the non-SC-ST members of the

Society, this Hon’ble court in the matter of Dr. Subhash

kashinath mahajan vs. The State of Maharashtra and

Anr; wherein for the safeguard of innocents, this Hon’ble

Court issued directions after examining all the relevant

facts pertains to the Scheduled castes and Tribes

(Prevention of Atrocities) Act, 1989;

It is pertinent to mention here that a well descriptive

order was passed by this Hon’ble court for the safe

guard of the innocent people of this country, a true copy

of the Judgment of Dr. Subhash Kashinath Mahajan vs.

The State of Maharashtra and Anr; in Criminal Appeal

No. 416 of 2018 (Arising out of Special Leave Petition

(Crl) No. 5661 of 2017), dated 20.03.2018 is annexed as

ANNEXURE P-1 (Pg………………….).

f. That, under pressure from the Opposition Parties and

particular sections of the SC-ST society, the

Government decided to file a Review Petition against the

Judgment of this Hon’ble Court; the Review Petition is

still pending before this Hon’ble court. A true copy of the

Order passed by this Hon’ble Court dated 16/05/2018

in Review Petition Crl. No. 228 of 2018 is annexed as

ANNEXURE P-2 (Pg………………….).

g. In order to lure the members of SC-ST community for

the 2019 Parliamentary Elections, and despite having

filed the Review Petition, which is pending, the

Government of India without waiting for the verdict of

this Hon’ble Court in the Review Petition Crl. No. 228 of

2018 and in an effort to tide-over (legislative overruling)

the directions of this Hon’ble Court in Criminal Appeal

No. 416 of 2018 (Arising out of Special Leave Petition

(Crl) No. 5661 of 2017), dated 20.03.2018, impulsively

adopted an extraordinary step of amending the

Scheduled Castes and Tribes (Prevention of Atrocities)

Act, 1989. The said impugned Act is called the SC-ST

Amendment Act, 2018 and is under challenge in the

present Writ Petition (PIL).

h. That, save and except the directions of this Hon’ble

Court w.r.t., the preliminary investigation before

arresting anyone under the said Act, the intention of the

act was good, however after new amendment, its

structure is inconsistent with basic principles of liberty

and accountability. This Act is violative of Article 14, 19

& 21 of the Indian Constitution patently and is also

unfair because it doesn’t allow the accused right to life

and personal liberty which is guaranteed under Article

21 as Section 438 of CrPC (Anticipatory Bail) does not

apply to persons committing an offence under the SC-ST

Amendment Act, 2018. The arrest under the SC-ST

Amendment Act must be deferred until the collection of

credible evidence sufficient for filing the charge-sheet,

following the proviso to Section 41(1)(b) read

with Section 41A Cr.P.C. Without a preliminary

investigation and credible evidence this Act is a tool of

tyranny on the members of the non-SC-ST members.

i. That, on dated 17.08.2018 a Notification in the

Gazette of India published by the Ministry of Law and

Justice that The Scheduled Castes and The Scheduled

Tribes (Prevention of Atrocities) Amendment Act 2018

No. 27 of 2018 received the assent of the President of

India and was published for general public as Govt.

information. A true copy of the said notification

 published in the Gazette of India is annexed and

marked as ANNEXURE P-3 (Page No. ).

j. That, on dated 20.08.2018 a notification in the

Gazette of India was published by the Ministry of Social

Justice and Empowerment that in exercise of the power

conferred by sub section (2) section 1 of the Scheduled

Castes and The Scheduled Tribes (Prevention of

Atrocities) Amendment Act 2018 No. 27 of 2018, the

Central Government hereby appoints the 20th day of

August 2018, as the date on which the provisions of the

impugned Act shall come into force. A True copy of the

notification published in Gazette of India is annexed and

marked as ANNEXURE P-4 (Page No. ).

3. GROUNDS:

a. Because only the High Court in rarest of rare cases can

grant pre-arrest bail while exercising powers under Article

226 of the Constitution of India and since the SC-ST

Amendment Act 2018 doesn’t provides for the grant of

anticipatory bail under Section 438 CrPC, it would be bad in law

for Hon’ble Courts to grant anticipatory bails, when the SC-ST

Amendment Act 2018 itself has not provided for the same. The

legislative intention is, therefore, not to seek or provide pre-

arrest bail when the FIR discloses a cognizable offence. Since

there is a conscious withdrawal/deletion of Section 438 CrPC by

the Legislature from the SC-ST Amendment Act 2018, by Section

2(2) of the SC-ST Amendment Act 2018, the relief which

otherwise the Non-SC-ST members could not have obtained

under the Code, cannot be sought indirectly by invoking the Writ

Jurisdiction of the Hon’ble High Court’ or this Hon’ble Courts

across India, which is impermissible in law.

b. Because the SC-ST Amendment Act 2018 itself doesn’t

empower the Hon’ble Courts to invoke Section 438 of CrPC, only

in rare and extra-ordinary cases, can the Hon’ble High Courts

and this Hon’ble Court can exercise its jurisdiction under Article

226 or Article 32 of the Constitution of India, to grant

anticipatory bails. The Lower Courts will not have the

jurisdiction to grant anticipatory bails, since section 438 CrPC is

deleted from the scope of the SC-ST Amendment Act 2018. Not

everyone will be able to approach the writ Courts to get the

relief.

c. Because provisions of Section 438 CrPC (Pre-Arrest Bail)

are absent in the SC-ST Amendment Act 2018, the Writ Court’s
shall be burdened with large number of Writ Petitions filed

under Article 226 and 32 of the Indian Constitution.

d. Because Section 438 was added to the Code of Criminal

Procedure in the year 1973, in pursuance to the

recommendation made by the 41st Law Commission, but in

many States including the State of Uttar Pradesh Section

438 was specifically omitted, the legality of which came up for

consideration before the Constitution Bench of this Court

in Kartar Singh v. State of Punjab (1994) 3 SCC 569 and this

Court held that the deletion of Section 438 in the State of Uttar

Pradesh does not offend either Article 14, 19 or 21 of the

Constitution of India and the Legislature is competent to delete

that section and such a deletion is valid under Article 254(2) of

the Constitution of India.

e. Because as per Kartar Singh supra, a claim for pre-arrest

protection is neither a statutory nor a right guaranteed under

Article 14, 19 & 21 of the Constitution of India. All the same, in

Karatar Singh’s case (supra), this Court in sub-para (17) of Para

368, has also stated as follows:

“368 xxx xxx xxx (17) Though it cannot be said that the High

Court has no jurisdiction to entertain an application for bail

under Article 226 of the Constitution and pass orders either

 way, relating to the cases under the Act 1987, that power

should be exercised sparingly, that too only in rare and

appropriate cases in extreme circumstances. But the judicial

discipline and comity of courts require that the High Courts

should refrain from exercising the extraordinary jurisdiction

in such matters;

xxx xxx xxx”

f. Because section 41 CrPC is not deleted by the SC-ST

Amendment Act 2018, therefore the Police cannot arrest any

body with following the due procedure established by law. And

Article 21 guarantees the right to life and personal liberty.

Absence of a statutory power under section 438 CrPC cannot

restrain or curb the freedom guaranteed by Article 21 of the

Constitution of India.

g. Because the Courts, while examining the challenge for

quashing the FIR or a charge-sheet, could not grant relief

against arrest till the completion of the trial.

h. Because the Writ Petition seeking Anticipatory Bail if

rejected, there exists no remedy, to protect ones life and

personal liberty against a fabricated and false complaint. There

is no question of seeking an interim orders for granting bail,

when Writ Petition itself is dismissed.

i. Because one of the gifts of democracy to mankind is the

right to personal liberty. Life and personal freedom are the

prized jewels under Art.19 conjointly assured by Art. 20(3),

21 and 22 of the Constitution and Art.19 ensures freedom of

movement. Liberty aims at freedom not only from arbitrary

restraint but also to secure such conditions which are essential

for the full development of human personality. Liberty is the

essential concomitant for other rights without which a man

cannot be at his best. The essence of all civil liberties is to keep

alive the freedom of the individual subject to the limitations of

social control envisaged in diverse articles in the chapter of

Fundamental Rights Part III in harmony with social good

envisaged in the Directive Principles in Part IV of the

Constitution. Freedom cannot last long unless it is coupled with

order. Freedom can never exist without order. Freedom and

order may coexist. It is essential that freedom should be

exercised under authority and order should be enforced by

authority which is vested solely in the executive.

j. Because, The Act cannot be converted into a charter for

exploitation or oppression by any unscrupulous person or by the

police for extraneous reasons against other citizens. Any

harassment of an innocent citizen, irrespective of caste or

religion, is against the guarantee of the Constitution.

k. Because, after amendment the 1989 Act denies

anticipatory bail to the suspected offenders. The law is therefore

used to rob a person of his personal liberty merely on the

unilateral word of the complainant.

l. Because, as per the observations made by this Hon’ble

Court in Dr. Subhash Kashinath Mahajan Vs. The State of

Maharashtra & Anr. “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.”

These directions were made by this Hon’ble Court to protect the

interest of the innocent members of the society, who are also the

citizen of this country.

g. Because, review petition that was filed by the government

is still pending before this Hon’ble Court. And the

Respondents ought to have waited for the verdict of this

Court. Passing of the said Act has in a way overruled the

verdict of this Court, which is a legislative-over reach and

violative of the principles of separation of powers in the

Constitution.

h. Because, the Respondent arbitrarily decided to amend this

act and restored the previous provisions in such a manner,

so that an innocent can’t access to avail the right of

Anticipatory bail.

i. Because, this rare moved was adopted by the respondent,

to get the political millage and as the respondent was under

pressure from alliance partner and also worried over the

prospects of antagonizing huge vote bank of Dalit ahead of

parliamentary elections.

j. Because the general community of this country, deserve to

be treated equally and not with inequality. They are living in this

country as second grade citizen.

k. Because there cannot be any mandate under the law for

arrest of an innocent; Presumption of innocence is a human

right. No doubt, placing of burden of proof on accused in certain

circumstances may be permissible but there cannot be

presumption of guilt so as to deprive a person of his liberty

without an opportunity before an independent forum or Court.

l. Because a great ignominy, humiliation and disgrace is

attached to the arrest. Arrest leads to many serious

consequences not only for the accused but for the entire family

and at times for the entire community.

q. Because the power of arrest should be exercised only after

complying with the safeguards intended under Sections 41 and

41A Cr.P.C.

r. Because in the present context, to balance the right of

liberty of the accused guaranteed under Article 21, which could

be taken away only by just fair and reasonable procedure and to

check abuse of power by police and injustice to a citizen,

exercise of right of arrest was required to be suitably regulated

by way of guidelines by this Court under Article 32 read with

Article 141 of the Constitution. Some filters were required to be

incorporated to meet the mandate of Articles 14 and 21 to

strengthen the rule of law.

s. Because the Law Commission in July 2002 has severely

criticized the police of our country for the arbitrary use of power

of arrest which, the Commission said, is the result of the vast

discretionary powers conferred upon them by this Code. The

Commission expressed concern that there is no internal

mechanism within the Police Department to prevent misuse of

law in this manner and the stark reality that complaint lodged in

this regard does not bring any result. The Commission intends

to suggest amendments in the Criminal Procedure Code and has

invited suggestions from various quarters. Reference is made in

this Article to the 41st Report of the Law Commission wherein

the Commission saw “no justification” to require a person to

submit to custody, remain in prison for some days and then

apply for bail even when there are reasonable grounds for

holding that the person accused of an offence is not likely to

abscond or otherwise misuse his liberty. Discretionary power to

order anticipatory bail is required to be exercised keeping in

mind.

t. Because, the Act should amend in such a manner which

promote fraternity and integration of society as the Constitution

envisages “a cohesive, unified and casteless society.”

u. Because the object of the Act was to prevent commission of

offences of atrocities against members of SCs and STs and it

must be in consonance with the intent of the Act to provide for

punishment for members of SCs and STs for falsely implicating a

person. If punishment would not be provided, it means someone

from the SC/ST community can get away with a false complaint

against a person even if a court of law finds the complaint to be

frivolous.

v. Because there is no safeguard against false implication,

undue harassment and uncalled for arrest thus, for the innocent

citizen of country there shall be amendment in such manner

which incorporate safeguards against unreasonable and

arbitrary power of arrest in such cases.

w. Because, while Parliament and the State Legislature in

India enact the law and the Executive Government implements

it, the judiciary sits in judgment not only on the implementation

of the law by the Executive but also on the validity of the

Legislation sought to be implemented. One of the functions of

the superior judiciary in India is to examine the competence and

validity of legislation, both in point of legislative competence as

well as its consistency with the Fundamental Rights.

4. That the petitioner has not filed any other similar petition

before this Hon'ble Court or any other courts for the similar

relief.

PRAYER

In the premises of aforesaid it is most respectfully prayed that

this Hon’ble Court may be pleased to:

a. Issue an appropriate order, to declare the provisions

inserted in the new amendment of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2018 as ultra vires to the Article 14, 19 & 21 of constitution of

India apart from the basic structure of the Constitution;

and/or

b. Issue appropriate writ in the nature of mandamus to stay the

provisions of the new amendment in the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2018 during the pendency of this Writ Petition; and/or

c. Pass such other order (s)/ direction(s) as this Hon’ble Court

may deem fit and proper in the interest of justice.

AND FOR THIS ACT OF KINDNESS, THE PETITIONERS SHALL

EVER PRAY.

DRAWN ON: 17/09/2018

FILED ON: /08/2018
PLACE: NEW DELHI

A-1
PROFORMA FOR FIRST LISTING
SECTION: X
The case pertains to (Please tick/check the correct box):
• Central Act: (Title) – Article 32 of Constitution of India

• Central Rule : (Title) NA

• Rule No(s): NA

• State Act: (Title) NA

• Section : NA

• State Rule : (Title) NA

• Rule No(s): NA

• Impugned Common order : (Date) NA

• Impugned Final Order/Decree/ Notice : NA

(Date)
• High Court: (Name): NA

• Names of Judges: NA

• Tribunal/Authority : (Name):

1. NATURE OF MATTER: □ Civil □ Criminal Civil

2. (a) Petitioner : INDIA FOR RULE OF LAW FOUNDATION,
VIKAS PARASHAR, ADVOCATE & AJAY KUMAR MISHRA

(b) E-mail ID: [email protected]

(c) Mobile phone number: NA

,
3. (a) Respondent : Union of
India
(b) E-mail ID: NA
(c) Mobile phone number: NA
4. (a) Main category classification:
(b) Sub classification:
5. Not to be listed before: NA
6. Similar/Pending matter: NA
7. CRIMINAL MATTERS: NO
(a) Whether accused/convict has surrendered: □ NA
 Yes □ No
(b) FIR No. Date: NA
(c) Police Station: NA
(d) Sentence Awarded: NA
(e) Sentence Undergone: NA
8. LAND ACQUISITION MATTERS: NA
(a) Date of Section 4 notification: NA
(b) Date of Section 6 notification: NA
(c) Date of Section 17 notification: NA

9. TAX MATTERS: State the tax effect: NA

10. Special Category NA
(first petitioner/appellant only):
□ Senior citizen > 65 years □ SC/ST
□ Woman/child □ Disabled
□ Legal Aid case □ In custody

11. Vehicle Number NA

(in case of Motor Accident Claim matters):
12. Decided cases with citation: NA