NEW DELHI

03 May 2018 17:31 IST

March 20 judgment by the Supreme Court had banned immediate arrest on the basis of complaints of atrocities committed on Dalits.

Only anti-Dalit atrocities' complaints which are felt “absurd” or “absolutely” frivolous need to be probed by the police before proceeding to arrest the perpetrator, Justice A.K. Goel qualified the apex court's March 20 judgment which led to widespread unrest and violence across the country.

Preliminary enquiry is not a “must” in the case of every complaint under the anti-Dalit atrocities law — Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989.

The March 20 judgment by the Supreme Court had banned immediate arrest on the basis of complaints of atrocities committed on Dalits. The court had ordered that a preliminary enquiry should be conducted before such arrests.

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Prior sanction before arrest

The judgment further required prior sanction to be procured from appointing authority before arrest if the suspect is a government servant and permission of Deputy Commissioner if the accused is a private individual.

“In certain cases there may be something, while in other cases there may be absolutely nothing. In the latter, a preliminary enquiry is required. There may be cases which the police officers themselves feel are absurd. Such cases may be enquired into... not in all cases. We said the police 'may' conduct a preliminary enquiry and never said it is a 'must',” Justice Goel, who led the apex court Bench with Justice U.U. Lalit, orally observed.

The Bench is hearing a series of review petitions filed by the Centre and some States, including Tamil Nadu and Kerala, against their March 20 verdict.

Justice Goel said “what is happening now is that everybody is arrest under the law even if the probe officer is convinced there is no case”.

‘Judgment led to more crime’

Attorney-General K.K. Venugopal said the judgment has led to more crime being committed against Dalits. He cited recent incidents of how bridegrooms were pulled down from their horses and beaten up by mobs.

“Our judgment did not encite anyone to commit crimes. The SC/ST community has the full protection of this Court. Why can't authorities take action... there should be system of immediate punishment... the State should take steps... Communities should learn to respect each other,” Justice Goel responded.

Mr. 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.

Calling the March 20 judgment as a piece of “judicial activism”, Mr. Venugopal submitted that “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 complainy filed by Dalits.

“Sanction is a matter for legislature. It is not for the courts to grant sanctioning powers... the judgment has empowered thousands and thousands of civil servants with arresting powers,” Mr. Venugopal argued.

Mr. Venugopal said, given a chance, the likelihood is less that a police officer would regsiter an FIR on the complaint filed by a Dalit. Now the added condition of a preliminary enquiry would be used as an excuse to deny Dalits their fundamental right to access justice.

Judgment does not ban from registering a FIR

At this point, Justice Lalit reasoned that the court's judgment does not ban the police from registering an FIR, nor does it impose a particular line of action and nor does it say that an accused, if guilty, should not be punished.

“The judgment is merely a filter against arrest of a person too readily and mechanically,” Justice Lalit said.

Mr. Venugopal submitted that the court cannot lay down general guidelines for the entire country and should be case-specific. At most, the court can only fill up gaps in the present legislation and not lay down guidelimes on an ad-hoc basis, especiallu when these guidelines are inconsistent with the parliamentary law.

The Supreme Court judgment has caused disharmony and “great damage” to the country, Mr. Venugopal, urging the Bench to review their verdict.