 I think we are meeting here today under the shadow of a judgment of the Supreme Court of India, rendered in criminal appeal 416 of 2018, Subash Kashinath Mahajan v. State of Maharashtra. It is not just the shadow of the judgment of the Supreme Court that has been cast on people like us but on the country as a whole and this judgment has already cost quite a few lives and therefore I think it is natural for me to be commenting on this judgment and presenting to you my views about this judgment. Now by way of introduction I think what Ravi did not mention is that a group of cases that I have always been concerned about is the cases relating to reservations for SC and ST in public employment. It has been a constant battle with what has euphemistically come to be described as the general category and opinions in court are polarised on both sides. I have consistently taken the view that I stand by the provisions of reservation in the Constitution of India and stand by the constitutional amendment which allowed reservations and promotions. So it is necessary to just say a few words about those provisions though I know that the other two speakers will be elaborating on those provisions. So why is this battle so fierce even inside the courtroom? Forget of fierce battles outside the courtroom. Why is this battle so fierce in the courtroom? The battle is fierce in the courtroom because it goes to the heart of what is the meaning of the guarantee of equality. And our constitution is unique in the world that it provides for reservations in public employment for schedule cast, schedule tribe and other backward classes. No matter where I travel in the world this is the one question that is raised and this is the one answer that I have to give Ms. Jai Singh your constitution is unique. You did not have to fight the battles that we fought in the United States of America to get some recognition for race in affirmative action. Blacks had to struggle for years together to get visibility and to get recognised and to get entry into educational institutions and in public employment whereas your constitution you have put it right there in your constitution that there will be reservations for SC, ST and other backward classes. So as I said I'll just come back to the issue of equality. The debate is on whether reservations further the guarantee of equality or whether they undermine the guarantee of equality that's the debate. And our argument is that these reservations further the guarantee of equality. Now while I should think the reasons are very obvious that the only way to dismantle inequality is by tilting in favour of those that are discriminated against. And how do you tilt in favour of those that are discriminated against? You give them employment in public spaces. Now why is employment in public places so important? They are the levers of power. All your secretaries, your additional secretaries and everybody in public employment the bureaucracy is a very powerful institution in this country. And unless you have this guarantee of reservation, your SC, STs are going to be out of the Indian bureaucracy. It will be entirely in the hands of the upper caste. So to correct that historical discrimination the device that the Indian constitution provided was of reservations in public employment. Now there are many other forms of performative action, for example reservations in educational institutions, scholarships, other ways of encouraging SC, ST and I'm a bit tired of raising in judgments of the Supreme Court that the constitution of India envisaged abolition of caste. My reading of the constitution does not tell me that it envisioned abolition of caste. What it did is envisage the abolition of untouchability which is an aspect of stigma attached to people. I'm sorry to have to say this and become so personal about it but I can tell you that in the Supreme Court of India in the ladies bar room only scheduled caste women work in the toilets. And I have personally seen women lawyers in the Supreme Court refusing to accept a cup of tea from sweepers who clean the toilets in the Supreme Court bar association have had to have fights with them over that. Now this is the extent to which this untouchability goes in the heart of the Supreme Court of India you cannot even imagine what it might be like in other parts of the country. So now I'll move on to this judgment. So let me come straight to the atrocities act. This act also became necessary for the reason that these people were not able to work in public employment without being slandered. Slandered in the name of their caste. That was what was happening. Apart from public employment even in public places they've been slandered I will not go into the issue of the riots in which they have died. I will not go into the rapes which are occurring forget it. I'm talking about public employment in the way they are slandered and which is going to bring me to the case which the Supreme Court decided because it concerns by the way I'd like to let you know that the complainant in that place is also present in this room today. Now what was this case all about I'd like to let you know and actually you know schedule caste people have been able to work in public employment only because of the existence of the atrocities act. If this act did not exist every day of their life they would be called Jamar and various other names. It is this act which has given them that liberation to be able to work in a space which is free from casteist remark. It is not a space free from caste. But the act tries to make it a space free from casteist remarks. Now I'm now going to give you almost like a classroom lesson of how not to write a judgment. How not to write a judgment. When I read this judgment how not to write a judgment. I'm scandalized by it this judgment and let me tell you why. There is more than a 50 page judgment of the High Court anyone who wants to read it is welcome please read it. This 50 page judgment of the High Court goes into the details of the facts. What are the facts? It records that a casteist remark was made against the complainant at the workplace. It records that the complainant made an allegation of corruption against his senior. He was a storekeeper and while keeping stores he made a complaint that I can see that money has been spent but there's no documentation over here to show that the money has been spent and he was told by this person against whom the FIR was filed you create the record. He refused to create the record comes time for his ACR. In his ACR he was there's a column there where he has to record what are his achievements. It's a self assessment and he recorded that my achievement is that I prevented corruption in my department. This ACR goes to his reporting authority. His reporting authority writes a remark over there saying well there was nothing to stop corruption because there was no corruption there was no illegality. Mind you this reporting officer is writing about himself. He is the person who did the corruption and he's making this remark because he's the reporting officer. Now this goes to the authority which accepts the ACR and the authority which accepts the ACR writes a remark saying making a casteist remark. He says look this man is advised not to be arrogant about his caste and to focus his attention on his work. He should be given no promotions and he should be sent for training because he doesn't know the ABC of work. That's where it all started. It did not begin with an FIR. It began with this man's complaint of corruption against the guy who finally goes to the Supreme Court and gets the complaint quashed. After this what happens is he makes a representation to the appellate authority saying this is a false statement in my ACR remove it and you believe it or not somebody had the courage and the good sense to come to the conclusion that it was a casteist remark. Somebody had the good sense to come to the conclusion that the remark was false. Somebody had the good sense to say this remark was made malafite and he got relief. The remarks were expunged from his ACR and in Maharashtra government there is a procedure that if there are two ways of dealing with an ACR if the remark is incorrect it is expunged. If it's malafite what the department does is they paste a piece of white paper over that remark so as if you obliterated from existence altogether. In his case there was a white paper put over this remark indicating that the remark was malafite. Now after that he goes and lodges an FIR under the act and in that FIR he says that information was conveyed to a public officer with the intention of causing injury to me. Please tell me all of you are sitting here majority of you are lawyers was there anything wrong in his invoking this provision? He has documentary evidence of the fact that false information was conveyed to a superior officer with the intention of denying him promotions and with the intention of making casteist remarks. Fair enough. After the investigation is done sanction is required under section 197 what do they do? They go and the investigating officer goes and applies for sanction to a person who doesn't have the power to give sanction because only the state has power to give sanction. Now the junior there are few mistakes I might make in the facts but ignore those the relevant things I'm telling you the junior officer records in the application which goes to this man to say sir may I draw your attention to the fact that you don't have the power to give sanction the power he was director technical education and the junior officer records sir sanction is to be given by the state government what you should do is forward this application to the state government let them take a decision on it. What does this Mr. Mahajan do director education he's sitting in the position of director technical education and he grants sanction sorry he refuses sanction to prosecute end of story so he just refuses permission to without having authority of law to even take a decision whether to sanction or not his duty was to forward it to the state government and he was forewarned that sir you don't have the right to give sanction okay meanwhile these guys go and they get anticipatory bail from the various courts all well our complainant did not challenge the grant of anticipatory bail at all why am I saying this because this judgment is 99.9% about the fact that anticipatory bail should be granted in under this atrocities act it was granted and and the complainant didn't challenge that anticipatory bail they were on bail I want to let you know that all the three accused have never spent even one hour behind closed doors in this complaint so what the complainant now does is he lodges a second FMR against Mr. Mahajan and the previous two people and this time his complaint is that Mr. Mahajan is shielding to accused persons which in and of itself is an offence in law by refusing sanction meanwhile the court has rejected the closure certificate saying that I find that the sanctioning authority has not been approached so I'm not going to accept your closure certificate closure report police closure report is rejected by the magistrate and says go and get sanctioned from the appropriate authority now it is in these circumstances that Mr. Mahajan alone not the other two approach the high court to quash the FIR number two and the argument there is that you know there's already an FIR so they can't be a second FIR very conveniently in invokes the judgment of the court Amit Shah versus CBI where the court said that if there's one FIR they can't be a second FIR but he doesn't point out that these are two different offenses whatever it is he succeeded in the high court and I would like to let you know that the young lawyer who argued the case in the high court is also present in this room today full congratulations to him Justice Dharmadhikari and Justice Naya gave a 50 paid judgment recording all these facts and saying sorry we cannot quash this FIR go to trial and now we come to the Supreme Court of India now we don't know why the matter gets listed before this particular bench nobody knows all I can tell you is that I've already put out a tweet or I've already replied to Mr. Dhananj Mahapatra of Times of India in which I said this judgment is cut and paste of the judgment which was given in section 498 in relation to women you just open the two judgments read them and you'll find the same judgments referred to and I know the judges now have a habit of repeating their own previous judgments in subsequent judgments so have now understood the technology of judgment writing there is a technology behind it and the technology is you give at least five judgments saying the same thing and you write the six judgment and you say in this this this judgment it has been said so and so therefore I'm treating it as precedence so judges are treating their own judgments as precedence first they're laying the foundation and then they're saying I have five precedence to site and making it appear as if it was a precedent and now the most horrible of all things you will not believe it there is no discussion in the Supreme Court judgment about why the judgment of the High Court is wrong I can see some people nodding heads which means you've read the judgment I challenge any one of you to show me one sentence in the judgment which gives the reasons why the High Court is wrong in refusing to quash nothing the operative order of the judgment says having regard to the submissions made by Amicus Curie Mr. Amarendra we now quash the FIR this according to me is how not to write a judgment so I will itemize how not to write a judgment first you phrase an issue which doesn't arise on the pleadings you do that what was the issue that they raised whether a public servant exercising power can be made an accused person for malafide reasons right you frame that issue an issue which doesn't arise if they had bothered to read the High Court judgment they would know the High Court has specifically dealt with the question of malafides and has held that this man was aware that he did not have the authority to sanction this prosecution he knew it because that memo was put in front of him that sir you have no right to sanction this prosecution sent it to the state government so the malafides are on the other side and therefore the judgment should have read whether a public servant who malafide refuses sanction should be prosecuted instead it reads whether an SCST person who makes a malafide complaint against a public servant should be should that complaint should be quashed the second thing that I told you about how not to write a judgment you very conveniently do not discuss the issue at hand namely whether or not the FIR is required to be quashed no reasons given as to why the FIR is required to be quashed nothing at all the third way on how to write a judgment is to appoint amicus of your choice I want to question this business of appointing amicus curate handpicking them from somewhere somewhere somewhere and appointing them it was done in the 498 a case two men were picked up and appointed amicus curate no woman was consulted no academic institution was consulted so this is the other way to how not to write a judgment you pick up an amicus forget the facts of the case and write what you want to write and the third thing is you deliver judgment on an issue which doesn't arise for consideration at all and you deal elaborately with whether or not to grant anticipatory bail when the men are already on anticipatory bail they're already free men and you're giving us a big judgment telling us oh you know anticipatory bail should be given and then of course you the judges become policemen and they write this judgment saying you know we think that just look at the ludicrous judgment which says take this approval of the appointing authority before making an arrest now why should any appointing authority give permission to the police to say all right now go ahead and make an address make an arrest then why should the function of the police be transferred to them and second before recording an FIR do a scrutiny do a preliminary so they have defanged the act no FIR can be lodged and no and no arrest can be made okay I'm not a great fan of arrests at all and as Dr. Mohan Gopal was saying that if this is the law of the land that nobody should be arrested let it apply to all of us let it apply to all of us why are Muslims picked up the offenses they never committed why are terrorists put behind bars with no anticipatory bail if you want to say this is the law of the land say it for everyone loud and clear you cannot pick up vulnerable communities women first then SCST and say well only these upper classes cannot be arrested and only husbands and mothers in law and fathers in law cannot be arrested all the rest of us can be arrested okay you don't require to go to any appointing authority or to any SP to arrest people who are not belonging to these categories the last thing I want to say about this judgment is I would urge all of you to read both judgments the High Court judgment and the Supreme Court judgment and the High Court judgment is actually goes through the philosophy of the law the objects and reasons behind the law it explains the relevance of protecting SCST it is based on a certain philosophical approach which is accepted by the legislature by the way okay and now you've come to the judgment of the Supreme Court it's exactly the reverse it says all these people they are all the time it is there's a sentence there which says it is now established beyond doubt that false and frivolous complaints are being made by SC and ST against the upper class established beyond doubt how if you go through the data you'll find selective representation of data you will see that where standing committees of parliaments have rejected a demand to amend the law to prevent so-called misuse the court is quoting only one paragraph of that committee report ignoring the less and I will tell you lastly and hand over lastly I will tell you that the FIR also in their judgment of the Supreme Court is not quoted in full finally what I want to say is how and why do certain cases get priority they leapfrog through the legal system and they get decided who takes these decisions which case to hear when this judgment was delivered in Bombay in November 2017 it comes to the Supreme Court it is in the registry for a couple of months it suddenly picked up and listed before a particular bench and on the first date of hearing of an issue is framed on the first day of hearing without issuing notice and issues frame that how to prevent misuse of the law notices issued to the Attorney General of India and notice and an amicus is appointed that's it and within a month of that day the judgment is rendered I want to say let the Supreme Court follow rules if they want to hear a final hearing let them admit the SLP and call for the entire record of the High Court the entire record of the High Court was not present before the Supreme Court when they render this judgment if they had called for the record that expunging of that remark would have been there on the record this burden cannot be placed on the complainant who's only a respondent in the case and the final thing I want to say is yes let me tell you that only senior councillor even marginally heard in the Supreme Court of India this complainant was not represented by a senior council and in his own words he said madam I asked him did you not appear did you not point all this out his words to me were banned madam both were Sunina Suni karte hain Hamein this is it this is the approach of the Supreme Court to lawyers who are not their favorites now if this is not a perversion of justice if this does not justify that for the Dalit community to come out on the streets what does it is this and my concern today in hosting this meeting and being you know asking all of you who have so kindly come here is that what are we in the legal profession doing to hold our judges accountable accountable to their own laws accountable to their rules accountable to their principles they tell us that we should not enter the policy domain they have entered the policy domain in this case