The Centre has told the Supreme Court that its judgment forbidding automatic arrest for offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 “has caused a lot of commotion in the country and is also creating anger, unease and a sense of disharmony”.
In a written statement submitted in court Wednesday in support of its petition seeking review of the March 20 order delivered by a two-judge bench of Justices A K Goel and U U Lalit, the government said “the confusion created by this judgment may have to be corrected by reviewing the judgment and recalling the directions”.
It said the order on “an issue of very sensitive nature” had “diluted” the Act, “resulting in great damage to the country”. The statement underlined what Attorney General K K Venugopal told the bench of Justices Goel and Lalit on April 3 during the hearing of the government’s review petition.
The government contended that the entire judgment was “vitiated” as it proceeded on the basis that it can legislate, and has the power “to make law when none exists”.
“ln India, separation of powers being part of the basic structure of the Constitution, there was no room for the court declaring that it could legislate and make plenary law.” It said the conclusions in the judgment were “in substance and effect, amendments made to the Atrocities Act, read with the Code (of Criminal Procedure, 1973)” and were “pure and simple, the exercise of the power of plenary legislation”.
Taking serious note of instances of abuse of the Act by “vested interests” for political and personal reasons, the Supreme Court, in its March 20 order, laid down stringent safeguards, including provision for anticipatory bail and vetting of a complaint to determine if a case is made out before registration of an FIR under the Act.
It also said that if the accused person is a public servant, arrest can be made only with the permission of the appointing authority, and where the accused is not a public servant, prior permission of the Senior Superintendent of Police of the district is necessary for arrest.
The order set off a political storm with the Opposition and allies of the ruling BJP calling it a dilution of the Act and questioning the government’s credentials on empowerment of Dalits. It led to nationwide protests by Dalit organisations.
On April 2, the Centre filed a petition seeking review of the order, saying potential for misuse was not a valid ground for reading down stringent provisions of the Act and that diluting it would deprive members of SC and ST communities the rights guaranteed under the Constitution.
In its written statement, the Attorney General said “it is essential that the conclusions drawn… be reviewed and recalled, so that no basis for misunderstanding the judgment or its impact on the implementation of the Atrocities Act would continue”.
The government said “the bland statement that ‘power to declare law carries with it, within the limits of duty, to make law when none exists’ is wholly fallacious, because we live under a written Constitution, of which separation of powers between the legislatures, the executive and the judiciary is the very basic structure and is inviolable”.
The statement asked “what else, therefore, does it mean, if in the teeth of the Separation of Powers, the highest court in the country says that the judiciary in the country, bound to uphold the Constitution and hence not to encroach upon that area reserved for Parliament and the legislatures, can lay down law contrary to a statute passed by Parliament”.
The Centre said the top court was not “filling in gaps” but was “amending” through judicial legislation, the Atrocities Act and the Code, thus defeating the salutary provisions of this law.