[This Article is authored by Tvesha Chauhan & Arnav Singh, 2nd year students of BA LLB (Hons.) at NLSIU Bangalore]

Introduction

When the Parliament echoes “shall not”, the court replies by adding “unless”. The word “absolute” has lost its meaning in court transcripts. The Supreme Court’s recent judgement in Kiran v. Rajkumar Jivraj Jain & Anr., 2025 (‘Kiran’) interpreted the absolute bar on anticipatory bail under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) to be a conditional bar. The legislation’s unqualified language has now been interpreted with a rider.

The Parliament of India enacted this Act in 1989 in light of the general law’s inadequacy to deal with casteist atrocities. Through Section 18 of this Act, it sought to prevent precisely what the court has allowed in this matter, a process enabling judicial discretion. This judgement, dated September 1, 2025, overrides legislative intent by the application of a prima facie test, allowing the assessment of anticipatory bail applications on merit. It thereby challenges three decades of judicial interpretation, setting aside the law of the land.

This article argues that the Kiran judgement’s opening up of anticipatory bail through the application of a prima facie test undermines the statutory intent behind the Act, and introduces various challenges for the lower judiciary by fostering a potential for inconsistent outcomes and a demand for premature assessments of subjective elements. It also explores the undue burdens placed on victims and investigative agencies, to argue that this decision can open up systemic evasion routes for the accused[s] through its flawed interpretation of the Act.

Legislative and Judicial Trajectory of Section 18

Section 18 of the Act expressly prevents Section 438 of the Code of Criminal Procedure (‘CrPC’), which deals with the grant of anticipatory bail, from applying to the provisions therein. When the constitutionality of this provision was challenged on grounds of Article 14 in State of M.P. and Ors. v. Ram Krishna Balothia and Ors.,1995, the Supreme Court observed that offences under the Act fall into a separate and special class due to their nature and the social background behind their commission. The court opined that anticipatory bail under such matters would only enable the accused to potentially terrorize victims and obstruct investigation [Ram Krishna Balothia]. The court thereby justified the restriction based on a nexus between the nature of caste-atrocities and the need to refuse anticipatory bail in such cases.

The settled law, as per the 1995 judgement, was brought into question again in Kashinath Mahajan v. State (‘Kashinath’). In this case the Supreme Court ruled, for the first time, that Section 18 does not affect a blanket ban, and when a case does not prima facie suggest that the offence was directed towards the victim’s caste, anticipatory bail under Section 438 of CrPC becomes possible for the accused.

The guidelines laid down in Kashinath case were nullified in 2018 when the Parliament added Section 18A, which restates a bar on the application of Section 438 of CrPC notwithstanding any order or judgement from any court, solidifying legislative intent. Furthermore, on a review petition filed by the Union in 2019, the court recalled its earlier judgment. In this matter, the court affirmed that the purpose and objective of the Act was to prevent atrocities by creating special protections with quick and accessible remedies for the aggrieved classes [UOI v State of Maharashtra]. The court therefore opined that granting anticipatory bail would only hamper investigation and thereby frustrate Rule 7 of the Act, which necessitates the completion of investigation within 30 days. The court recognised that this would shake the objective of the Act by exacerbating delays and therefore increasing the plight of those it seeks to protect [UOI v State of Maharashtra].

The Kiran Judgement: A Systemic Erosion of Protections

The Kiran judgement reads into Section 18 an unwarranted and unlegislated “prima facie test”. It allows anticipatory bail on merits wherever a prima facie case cannot be made, reducing Section 18 to a question of judicial discretion. An assessment of merit[s] requires a consideration and analysis of the ingredients of the offence under Section 3, one of which is caste-based intent. This prima facie test, thereby not only contravenes legislative intent, but also forces courts to assess inherently subjective questions of fact including but not limited to humiliation and caste targeting, despite a statutory foreclosure. This test thereby invites varied interpretations of caste-based intent for charges under Section 3 of the Act, which opens doors for potentially inconsistent outcomes.

The court further stated that it would not be permissible for the court to travel into the evidentiary realm or to conduct a mini- trial, and that prima facie assessment of merits has to be done from the bare language of the FIR. While a prima facie test based on the FIR is an established practice in bail jurisprudence under other special laws, plainly applying this test to section 3 offences creates challenges specific to this Act. Traditionally, the test presumes the facts in the FIR as true and then examines whether, on the face of it, the evidence establishes a likelihood of the accused having committed the offence.

While the judicial focus under other special laws is solely on whether the accused actually committed the offence, offences under Section 3 additionally require demonstrating the subjective element of caste-based intent. The court’s current judgement, by restricting the assessment of caste-based intent to solely the language of the FIR, creates an impossible standard for lower courts by adopting a test not envisioned for offences under this Act. This contradiction forces courts to assess whether caste-based intent exists, but without the option of a detailed exploration of evidence and questions of fact, only based on a “first impression” of the FIR itself.

Such an impossible standard has a cascading effect also on the victims. It is at the stage of filing the FIR now that the victim would be forced to detail, in an exhaustive manner, all facts pertaining to the commission of the offence. Otherwise, it could potentially be used by the defense as defects in the FIR. This allows minor ambiguities to be painted as defects thereby institutionalising an impunity and risking granting bail under the guise of “lack of clarity” in an FIR. The judgement therefore incentivises the investigative agencies to do exactly what the legislative intent denied – placing a disproportionate investigative burden immediately upon or even prior to filing the FIR. The evidence collection exercise by the police would be forced to be airtight, inevitably exacerbating delays to such an extent that the aim of the act – a quick and protective process for the victim – would be frustrated.

Conclusion

The Kiran judgement is a fundamental violation of legislative intent as it erodes the absolute bar that the Parliament sought to enshrine in Section 18 by reading into it a prima facie test. It also sets an impossible standard for the lower courts wherein their assessment relates to inherently subjective elements of intent, but the only material allowed for such assessment is objective- the bare language of the FIR. This in turn gives the accused the potential to exploit drafting errors in the FIR, shifting a heavy burden on the victim and the investigative agency to paint a crystal-clear FIR through excessively long investigations and enquiries. In sum, this judgment creates a reality where procedural formalities outranks established legislative protection, thereby undermining the very safeguards the Act sought to provide to the oppressed.