SC/ST Act: No stay on order, apex court says stepped in to fill gaps in law

New Delhi: The Supreme Court on Thursday clarified that the Scheduled Castes/Scheduled Tribes have full protection and security of the SC/ST Atrocities (Prevention) Act and the March 20 judgment has not diluted it in any manner.

A Bench of Justices AK Goel and Uday Lalit told this to Attorney General KK Venugopal when he said that the judgment, which says that no arrests can be made under SC/ST Atrocities Prevention Act without prior probe, has caused enough damage and disharmony in the country.

The AG said, “This had completely shaken the confidence of SC/STs, who feel insecure and crimes have increased in the last one month. “Rightly or wrongly people are agitated and there are nine deaths,” he added.

Justice Goel told the AG “preliminary enquiry before registration of FIR is not a must in every case. The Superintendent of police has to only satisfy that prime face evidence exists for registration of FIR. Such an enquiry can be done in one day. We are not suggesting that guilty under the Act should not be punished. We have to see whether he is falsely implicated or not. We have not said don’t register FIR, we have only said please check the facts in the complaint.”

The AG also told the court that the judgment has led to more crimes being committed against Dalits without registration of FIR and arrest being made. He cited recent incidents of how Dalit bridegrooms were pulled down from their horses and beaten up by mobs, as upper caste people did not like Dalits riding a horse.

Justice Goel observed, “Our judgment did not incite anyone to commit crimes. The SC/ST community has the full protection of this Court. Why can't authorities take action, wherever crimes take place? There should be system of immediate punishment. Communities should learn to respect each other.”

Justice Lalit told the AG “we have not diluted the Act in any manner. We have only taken note of the fact that right to life and liberty cannot be taken away on some absurd facts. This court has stepped in to protect the rights and to fill the gaps in the law.”

Venugopal said the judgment has seriously affected the morale of the SC/ST communities, for whom the law was a source of protection from centuries of suffering and social stigma. He described the March 20 judgment as judicial activism and said “you cannot declare a law in this country when it contradicts the existing law”.

He said the judgment gives sanctioning power over arrest to ordinary government servants. These government officers can now decide whether their subordinates should be arrested or not on a complaint filed by Dalits. Sanction is a matter for legislature. It is not for the courts to grant sanctioning powers.”

The AG further said that this judgment has diluted the provisions of the SC/ST Atrocities Act read with the Criminal Procedure Code, resulting in great damage to the country.

He said when it is the mandate of Parliament to grant protection to Dalits against atrocities, there was no reason for the court to dilute this mandate and act contrary to the provisions. He pointed out that the police officer on registration of FIR is bound to effect the arrest but he will now be compelled not to arrest the accused and any violation will result in contempt.

The entire judgment is vitiated by the fact that the Court proceeds on the basis that it can legislate, and has the power "to make law when none exists. 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, is bound to uphold the constitution. Hence not to encroach upon that area reserved for the Parliament and the legislatures and can lay down law contrary to a statute passed by Parliament.

On grant of anticipatory bail, the AG pointed out that the apex court had already upheld the validity of Section 18 of the SC/ST Act, which prohibits anticipatory bail. In view of this position anticipatory bail cannot be granted in any case where the complaint makes an allegation of an offence under the Atrocities Act, the Centre said and sought for review and recall of the judgment so that no basis for misunderstanding the judgment or its impact on the implementation of the Atrocities Act would continue.

While seeking interim stay of the March 20 directions, the AG urged the Bench to refer the matter for adjudication by a larger bench.

The court posted the matter for further arguments on March 16.