Hearing on the Centre’s petition seeking review of the Supreme Court’s March 20 order, which stopped automatic arrests in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, witnessed sharp exchanges on Thursday with the government telling the court that it had usurped powers of the legislature and the bench giving it back, saying atrocities against Dalits were continuing not because of its order, but because there was no quick punishment for offenders.
“For the last four decades, the court has believed that it has the power of legislature,” Attorney General K K Venugopal told a bench of Justices A K Goel and U U Lalit, contending that the March 20 order amounted to law-making by courts.
“Your lordships have passed rules which are in the nature of laws… by virtue of separation of powers, which is part of the basic structure, court can lay down guidelines for disposal of a case but not as a matter of law in respect of the whole country,” he said.
But the bench disagreed and pointed out that there were several cases in the past where judicial pronouncements had settled the law.
The Attorney General referred to protests against the March 20 order but Justice Lalit reminded him that “our judgment did not ask anyone to commit any crime”.
Venugopal said the matter should be sent to a larger bench for review and requested the court to stay its judgment until then. But the court did not grant any stay and fixed May 16 as the date of the next hearing.
When Venugopal pointed to the necessity of stringent provisions of the Act for the protection of sections subjected to inhuman treatment for years, the bench told him: “We want to make it clear that we are also for the protection of these sections.”
The Attorney General said there had been at least three incidents recently of Dalit grooms being stopped from using horses following caste frictions.
The bench said this was happening because the authorities were not taking action. “For that you need to deliver immediate punishment… Why can’t you punish in a month or so?” Justice Goel asked. Venugopal replied that this was difficult given the size of the country’s population. “There lies the problem,” Justice Goel said, adding “perhaps social action is also required at the level of society (to stop caste discrimination). People have to learn to respect each other”.
The March 20 order noted instances of abuse of the 1989 Act and laid down stringent safeguards, including provisions for anticipatory bail and “preliminary enquiry” by a DSP before registration of a case under it. It said that accused public servants can be arrested only with permission of the appointing authority and others with the prior permission of the Senior Superintendent of Police of the district.
The Centre contended that the court had amended the Code of Criminal Procedure, 1973, by laying down that prior sanction was needed for arrest. ‘’By saying don’t register an FIR, but do preliminary enquiry, the Supreme Court order had countermanded a statutory provision,” Venugopal said.
“What is worse is giving power to decide on arrest to civil servants in different parts of the government without them knowing anything about criminal law. This is legislation,” he said
But the bench said its direction for preliminary enquiry did not mean the officer concerned “must” do a PE, but that he “may” do it, depending on whether the DSP, who is the investigating officer, is satisfied or not.
The Attorney General pointed out that the statistics cited in the judgment do not support the conclusion about misuse of the Act.
But the court replied that it had included the statistics in the judgment because these were brought to its attention and not to justify its findings.
When Venugopal referred to recent reports of atrocities on members of SCs and STs, the court said “we had made it very clear that it will not affect other offences like rape, murder etc”.
The court had clarified during the last hearing that where a person is booked both under the SC/ST Act and any related offence under the IPC, the requirement of preliminary enquiry would apply only to offences under the SC/ST Act and FIR can be registered immediately for the IPC offences without waiting for the outcome of the preliminary enquiry.
Justice Lalit tried to explain why the court had allowed the provision for anticipatory bail while section 18 of the Act denied this to persons accused under the Act.
He said under Acts like POTA, TADA, MCOCA and UAPA, the legislature had denied the provision for both anticipatory bail and regular bail to the accused keeping in view the gravity of the crime.
But under SC/SC Act, only anticipatory bail was disallowed while regular bail could be granted. “Theoretically, this would mean an accused will not be entitled to release before arrest, but can be granted bail by producing him in court,” he said.
But the Attorney General said the court should have left it to the legislature. Justice Lalit said there were two decided cases of the apex court dealing with it. Venugopal said the order “has completely shaken the country as you have seen. Rightly or wrongly, people are so agitated that the result is 8 or 9 deaths”.
But the bench rejected this, saying “no, we did not say don’t register”.
Advocate Indira Jaising who appeared in the matter Thursday on behalf of the original complainant in the case sought recall of the order, saying the appellant who had approached the Supreme Court had filed only a truncated version of the FIR before it and that he should be tried for perjury.
The bench said it was aware of it and told her that its order was not obtained by fraudulently withholding facts. The court said it would take up her plea seeking perjury charges against the appellant as a review petition.