Days after nationwide protests on the issue, the Centre today sought a review of the Supreme Court verdict on the SC/ST Act, saying it has "diluted" its stringent provisions, resulting in "great damage" to the country by causing anger and a sense of disharmony among the people.
In written submissions in support of its review petition against the March 20 verdict, the government categorically said "the confusion created by this judgment may have to be corrected by reviewing the judgment and recalling the directions issued by this Hon'ble Court."
Observing that the court had dealt with an issue of a "very sensitive nature", it said the verdict has caused "commotion", "anger, unease and a sense of disharmony" in the country. It dubbed the entire judgement as "vitiated" as it proceeded on the basis that the top court can legislate a law despite having no such power.
The stand of the government came a week after the apex court refused to keep in abeyance its verdict, saying those agitating against its order putting in place certain safeguards on arrests under the 1989 Scheduled Castes and Tribes (Prevention of Atrocities) Act, may not have read the judgement or could have been misled by "vested interests".
The written submissions filed by Attorney General K K Venugopal said "this judgment has diluted, for the reasons stated, the provisions of the Atrocities Act read with the Code of Criminal Procedure, 1973, resulting in great damage to the country.
"It is essential that the conclusions drawn in paragraphs 83 (iii) (v) 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 told the top court.
The concerned paragraphs refer to the process to be followed while arresting an accused, either a public servant or otherwise, the preliminary enquiry conducted by a Deputy Superintendent of Police and directs that any violation has to be followed by disciplinary action as well as contempt.
The government said the entire judgment was "vitiated" as it proceeds on the basis that it can legislate, and has the power 'to make law when none exists'.
"... the Court declares the 'role of this court travels beyond merely dispute settling, and directions can certainly be issued which are not directly in conflict with a valid stature. Power to declare law carries with it, within the limits of duty, to make law when none exists', the Centre submitted.
"Having declared so, the court proceeds to lay down its conclusions (iii), (iv) and (v), which are directly in conflict with the Atrocities Act, the validity of which has been upheld by this Court, as well as the Code," the AG told the apex court.
"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.
"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," it said.
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.
Arguing on the reliance placed by the apex court on the English judgments which held that judges make law, the Centre said the principle has been "misapplied" as England has no written Constitution, and the belief that separation of powers existed there has been criticised by academics.
"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. Conclusions (iii) (v) are all, in substance and effect, amendments made to the Atrocities Act, read with the Code.
"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.
The Centre's submission came in the backdrop of several states being rocked by violence and clashes on April 2 following a 'Bharat Bandh' call given by several SC/ST organisations protesting the top court's March 20 order, which claimed at least eight lives and injured hundreds.
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