Anticipatory Bail or Direct Jail under Atrocities Act-A Critical Analysis

Oct 8, 2020


This article aims to deal with the Atrocities Act, 2018, also known as the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and Rules 2018. Further, this article will give an analysis of the 2018 amendment related to the provision of Section 18 of the act which deals with anticipatory bail, preliminary inquiry and approval. Initially, this act was enacted in the year 1989 as the existing laws were found to be inadequate towards the crime of atrocities with the Schedule Caste (S.C.) and Schedule Tribe (S.T.).

Need and Objective of the Act

Does our society accept the lower and backward caste as people or they are still looking down upon?

India has always been a land of diversified cultures; the post-independence era was characterized by frequent occurrences of massacres across the country with S.C. and ST. the National Commission in 1990 on the happening of different kinds of atrocities on S.C. and S.T., the Causes and remedies highlighted various underlying causes for atrocities: land disputes; land alienation; bonded labour; indebtedness; failure to pay minimum wages; caste prejudice and practice of untouchability; political factions on caste lines; refusal to perform traditional works such as digging burial pits, arranging funerals, removing dead animal carcasses and beating drums; etc. It can be said that atrocity offences are considered the most serious crimes against humanity. Their status as foreign criminals is based on the assumption that the actions connected with them harm people's fundamental integrity. The deep source for such crimes is somewhere in the mindset of the upper caste due to the caste system, which based on the so-called ritual purity "encompasses an entire organization of social classes. Despite The Constitution of India, 1949 expressly has the provision as a fundamental right against discrimination under Article 15 and untouchability under Article 17; besides, we have different special laws like the Protection of Civil Rights (PCR) Act, 1955. Still, the caste system manages to win. Therefore, the objective highlighted the government's intention to bring justice to these communities by proactive efforts to allow them to live in a society with integrity and self-esteem, without fear of abuse or oppression from the dominant castes. The Supreme Court of India is too interpreting the act in its best possible way along with the amendments.

Critical Analysis of Amendment of 2018

The Supreme Court has delivered many landmark judgments. One of its judgments in the case of Subhash Kashinath Mahajan v State of Maharashtra on March 20 2018; offered three procedural protections in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. These safeguards related to the provision of anticipatory bail, the requirement to conduct a preliminary inquiry before the First Information Report (hereinafter 'F.I.R.) is registered, and the need to obtain approval before the arrest was made. But the judgment resulted led in great controversy and protest started throughout the country by the S.C. and S.T. The Parliament introduced the amendment of 2018 to control the situation and nullify the judgment.

In the amendment of 2018 section 18A (2) was added which affirm section 18 and state "notwithstanding any judgment or order of any Court" and the Section 18 of the act read as nothing in section 438 of the CrPC shall apply to the arrest of any person who is said to have committed an offence under the purview of this act. The confusion was drawn that both the section is violative of human rights and fundamental right. A question arose related to destruction in the stage of arrest, which was whether the imposed restriction on granting the bail is pre or post the stage of arrest or both. It was seen that the amendment did not give clear reasoning as to the restriction is fair or not in comparison with other existing laws with such restrictions. In a way, it could be said that the section 18A clause 2 with the "notwithstanding" clause is not appropriate or lack the stability. Notwithstanding clause is a non-constant provision typically found in laws validating that the intention is to validate any action which otherwise would be unconstitutional. One of the primary principles of law is that a person is said to be innocent unless proven guilty. In the present act, the complaint was registered even if the ingredients which do an act to the offence were not present. The act denied the provision of granting anticipatory bail which in a way makes the person guilty of a crime before the commencement of the trial. Therefore, where persons are detained pursuant to Section 18 of the Act purely on the basis of a one-sided interpretation of the case, their right to personal freedom is adversely affected without an equal, equitable, or rational process. Therefore it is said to be violative of Article 14 right to equality and Article 21 right to life and personal liberty provided as a fundamental right in the constitution of India. In a leading case, the Supreme Court held section 18 as valid ignoring the verdict given Gurbaksh Singh Sibbia v/s State of Punjab.

Section 18 is intra vires but can preclude anticipatory bail only if the charges are not intentional, and certain cases are excluded otherwise it may be considered a violation of an individual's personal liberty without a right, equitable or rational process. Furthermore, extending the precedent set out in the case of Maneka Gandhi and Sibbia to the case of Balothia, it can be said that section 18 cannot be read as applicable to those who are wrongly involved for international purposes and do not seem to have committed the crime prima facie on objective inspection.


After the analysis of the provision of section 18A (2), the courts must restore the provision as per judgment. The fact that procedural protection should not interfere with the rights of people. Thus, the complaint should be properly evaluated before arresting a person, and if prima facie, it turns out to be malafide then the person should have access to anticipatory bail.