Justice Ravindra Bhat in SC/ST Act verdict: Articles 15, 17 & 24 seeks to achieve this ideal

Justice Ravindra Bhat in SC/ST Act verdict: Articles 15, 17 & 24 seeks to achieve this ideal.

Justice S Ravindra Bhat’s gives a concurring judgment upholding the validity of the SC/ST Amendment Act 2018 is particularly notable because of its enlightening discussion on the Constitutional concept of “fraternity”.

Among the Preambular ideals of “liberty, equality and fraternity“, the latter is the least discussed and explored, notes Justice Bhat with a sense of regret.

As he says, “The idea of fraternity occupying as crucial a place in the scheme of our nation’s consciousness and polity, is one of the lesser explored areas in the constitutional discourse of this court”.

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The judgement stated that:

“The expression ‘fraternity’ was later added into the constitution by the Drafting Committee under the chairmanship of Dr. Ambedkar. While submitting the draft Constitution, he stated, on 21 February, 1948, that the Drafting Committee had added a clause about fraternity in the Preamble even though it was not part of the Objectives Resolution because it felt that “the need for fraternal concord and goodwill in India was never greater than now, and that this particular aim of the new Constitution should be emphasized by special mention in the Preamble.”

These three provisions Aricles 15, 17 and 24 they are to achieve the ideal of fraternity. It was to address for the rights which the Constitution guaranteed to all people, particularly those who continued to remain victims of ostracism and discrimination, that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter “the Act”) was enacted.

According to the analysis report of year  2016, 422,799 crimes against scheduled caste communities’ members and 81,332 crimes against scheduled tribe communities’ members  were reported between 2006 and 2016.

Justice Bhat said that, “It is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and wide spread social prejudices against members of these oppressed classes”.

As regards the applicability of pre-arrest bail, Justice Bhat added a caveat and urged Courts to follow a balanced approach :

“I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very  exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would  inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament”.

However, without ‘fraternity’, the other ideals of liberty and equality would be meaningless.

The judgement stated, “The right to equality, sans liberty or fraternity, would be chimerical – as the concept presently known would be reduced to equality among equals, in every manner- a mere husk of the grand vision of the Constitution”.

“Liberty without equality or fraternity, can well result in the perpetuation of existing inequalities and worse, result in license to indulge in society’s basest practices”.

Read the full judgement:click here