Kerala Govt Seeks Review/ Recall Of SC’s Verdict Diluting Stringent Provisions Of SC/ST Act [Read Petition]

Almost a month after the Supreme Court diluted stringent provisions of the SC/ST Act by directing against immediate arrest to rule out false implications, the State of Kerala has moved a petition seeking review/ recall of the March 20 judgment saying it has created insecurity among the SC/ST population which is already facing the wrath of serious crimes committed against them.

In its review petition filed through advocate G Prakash, the Kerala government sought review of the apex court’s March 20 verdict wherein the court had issued directions to prevent misuse of the SC/SC Act.

Centre had already filed the review petition in the matter. The bench, however, refused to grant an immediate stay on the operation of the judgment. The Bench has directed the Centre to file written submissions.

The Kerala government said in its review petition that “the above directions in affect nullified the provisions of the Atrocities Act introduced with a view to protect SC/ST people”.

It said the March 20 judgment has gone against the provisions of the Atrocities Act and has wide ramifications as the same has created insecurity among SC/ST people and requested the court to recall the verdict.

The state said the Parliament had, while passing the Act, taken note of the fact that “[d]espite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied a number of civil rights. They are subjected to various offences, indignities, humiliations and harassment.”

It said the directions issued by the court on March 20 are in direct conflict with the ratio laid down by the apex court in State of M.P. vs Ram Kishan Krishna wherein it was noted that “…when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form distinct class by themselves and cannot be compared with other offences.”

The review petition said the apex court should have referred the issue to larger bench in view of the Ram Kishan judgment being passed by a two-judge bench.

It also said the court has failed to appreciate that that there are several severe offences like sexual harassment of SC/ST women, rape, murder, acid attacks etc,, where the FIR needs to be registered at the earliest so that the investigation commences fast without any room for accused to seek anticipatory bail as well as provision of admissible relief amount to the victim/dependent as per provisions of the PoA Rules, consequent upon amendments done in the PoA Act, 1989.

It also relied on the data of the National Crime Records Bureau which showed 7,338 number of cases were registered in the country under PoA Act, 1989 in conjunction with the IPC, during the year 2016. Further, only 24.9% of the said cases ended in conviction and 89.3% were pending in the courts at the end of the year 2016.

“In the given situation of continuing offences of atrocities against members of SCs and STs, it would more significant and meaningful to affirm the reliance and trust of members of SC and ST on the Statue and not make it easier for the accused to get away from arrest, by imposing a preliminary enquiry,” it said.

AG’s Written Submissions

In written submissions filed in the Supreme Court in support of its review petition against the March 20 judgment that laid down stringent safeguards before registering a case under the  SC/ST (Prevention of Atrocities) Act, the Centre reminded the apex court that the sweeping changes in the operation of the Act amounted to amendment of the Act which only the legislature could do.

In his submissions, Attorney General K K Venugopal said the court could only interpret a statute and not make laws.

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 laws, when none exists, said the Attorney General.

“In 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. The sweeping changes made in the operation of the Act are all, in substance and effect amendments to the Atrocities Act. They are pure and simple the exercise of the power of plenary legislation. The confusion created by the judgment it is submitted, deserves to be corrected”, it said.

• Cracking the whip on "the rampant misuse of the SC/ST Act", a bench of justices A K Goel and U U Lalit had in its judgment ruled that there shall be no immediate arrest of a public or no-public servant.


• They also ruled that the accused can be taken into custody only after an official not below the rank of Deputy Superintendent (in case of public servant) or SSP (non-public servant) makes an enquiry and is satisfied that a prima-facie case existed.


• SC also said that the accused is also entitled to anticipatory bail if the complaint was found to be mala fide.

Quoting a lecture delivered by Justice M N Venkatachaliah, the former Chief Justice of India in connection with Constitution Day celebration on 26.11.2016, the AG said it cleared the misconception about the powers of judicial law making and has pointed out broadly three ways in which judges may be said to make law: These are a) Interpreting an ambiguity or apparent contradiction in a stature b) Gradually giving meaning to deliberately broadly worded terms in a statue by a succession of interpretive decisions c) Expanding the content of common law in accordance with needs of the times.

“To confuse these different aspects of the judges making laws with the power of amending plenary legislation or independently making plenary legislation is impermissible”, the Centre asserted.

Laying down safeguards against “misuse” of the Act, the bench had observed in the judgment: “It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in panchayat, municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes. It may be noticed that by way of rampant misuse, complaints are largely being filed particularly against public servants/ quasi-judicial/judicial officers with an oblique motive for the satisfaction of vested interests.”

Background

It is to be noted that the March 20 verdict was passed in an appeal filed by Subhash Kashinath Mahajan, who was the director of Technical Education in Maharashtra and had been accused of making adverse remarks in the annual confidential report of an employee of the Department who belonged to Scheduled Class, bringing his character and integrity in question.

This had led to a case being registered against Mahajan under the SC/ST Act in January,2006.  Mahajan was granted anticipatory bail and then he applied to the High Court for quashing the proceedings on the ground that he had merely, passed a bonafide administrative order in his official capacity.

The high court had rejected the petition in May 2017 following which Mahajan had preferred a Special Leave in the Supreme Court which concluded with the March 20 verdict.

“In view of acknowledged abuse of law of arrest in cases under the Atrocities Act”, the apex court had passed following directions:

• Proceedings in the present case are clear abuse of process of court and are quashed.


• There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima fade mala fide.


• In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, the arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded.Such reasons must be scrutinized by the Magistrate for permitting further detention.

•  To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.


• Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

Read the Petition Here