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The written submission by attorney general K K Venugopal on behalf of the Centre reflected the executive’s seething anger rather than a dispassionate analysis of the March 20 judgment, which introduced anticipatory bail as well as mandated police officers to first inquire into the veracity of a complaint before registering an FIR and arresting an accused.
“This case dealing with an issue of a very sensitive nature has caused a lot of commotion in the country and is also creating anger, unease and a sense of disharmony,” the AG said.
The Centre said the judgment by Justices A K Goel and U U Lalit diluted the provisions of the SC/ST Act, “resulting in great damage to the country” and appealed that the verdict be “reviewed and recalled so that no basis for misunderstanding the judgment or its impact on the implementation of the Act would continue”.
The AG said “the entire judgment is vitiated by the fact that the SC proceeds on the basis that it can legislate” and has the power to “make law when none exists”. He quoted a paragraph from the March 20 verdict declaring that “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 statute. The power to declare law carries with it, within the limits of our duty, to make law when none exists”.
The Centre said the SC made two cardinal mistakes. One, it diluted the provisions of the law by stepping into the shoes of legislators and then compounded the matter by warning police officers of contempt of court if they acted as per the stringent provisions of the SC/ST Act.
“The bland statement that ‘power to declare law carries with it, within the limits of our duty, to make law when none exists’ is wholly fallacious, because we live under a written Constitution, of which separation of powers between the legislature, executive and judiciary is the basic structure and is inviolable,” the Centre said.
Using strong words to criticise the SC’s alleged foray into legislative domain, the Centre said, “What else, therefore, does it mean if 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 legislature, can lay down law contrary to a statute passed by Parliament?”
By directing to delay an FIR for preliminary inquiry on a complaint, by asking for sanction from the appointing authority for the arrest of an accused public servant and sanction of senior superintendent of police in case of other class of accused, the SC was not filling gaps in the SC/ST Act but was amending the legislation through judicial process, thus defeating the object of the Act, the AG said.