oppn parties Recalling The 2018 Order On Scheduled Caste Act: Supreme Court Makes Amends

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Recalling The 2018 Order On Scheduled Caste Act: Supreme Court Makes Amends

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Writes for a number of publications.

Humans make mistakes. It is not criminal to make mistakes. But it is definitely criminal not to make amends once one discovers one has made a mistake. Hence, the Supreme Court’s decision to recall its 2018 order that diluted the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must be lauded. Calling the March 20, 2018 judgment "against the spirit of the Constitution", a three-judge has made amends by recalling it. In 2018, a two-judge bench had disallowed the arrest of public servants and private persons without prior permission in cases filed under the SC/ST Act and ordered that a preliminary inquiry was must before registering an FIR in such cases. The present bench said that the earlier bench had gone beyond its remit in framing the guidelines for the execution of the Act. It also considered the same to be an encroachment on what was essentially the work of the legislature.

The 2018 order had stipulated three guidelines for executing provisions of the Act. It had ruled that the restriction on granting anticipatory bail under Section 18 of the SC/ST Act should not that the courts cannot grant advance bail; that a person can be arrested only if the "appointing authority" (in the case of a public servant) or the SP (in the case of others) grants permission for such arrest; and that there a preliminary inquiry should be conducted into all complaints before making an arrest. This was considered a huge dilution of the provisions of the Act and an effort by the court to "make" law. Critics said that the court had failed to see the intention of the legislature behind keeping the provisions in the Act. The court, however, refused to stay its own order. There were widespread protests by Dalit bodies. The government then made amendments to the Act that nullified the order of the court and restored the original provisions.

In that sense, the present recall would seem academic. But the sound reasoning the court has displayed in its decision to recall the order makes for interesting legal debate and sets a good precedent. The court has said that it is wrong to assume that Dalits as a class are people given to lodge false complaints. It pointed out that if safeguards were to be provided on the assumption that Dalits lodge false complaints, it would amount to another form of discrimination against them. It has also said that the stringent provisions in the Act were due to social realities which were considered by the legislature while framing the provisions and the courts were there just to interpret them, not to change, modify or nullify them unless they were against the Constitution. Hence, the court has puts things in perspective by stating that the power of the legislature to make laws is supreme and the courts can only interpret them and examine their validity as per the Constitution but cannot pass an order that impinges on other laws or supplants them altogether.