Secure expunction of remarks against POA Act such as abuse, misuse, blackmail by Supreme Court


PS Krishnan, IAS (Retd), former secretary to Government of India (GoI), has written a letter to Thaawar Chand Gehlot, Minister for Social Justice & Empowerment, GoI — copies of which he has sent to senior ministers Ravi Shankar Prasad, Jual Oram and Ram Vilas Paswan — on the need to effectively defend the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, against the new Writ Petition filed on August 21, 2018.

Forwarding his letter to Dalit and Adivasi rights organizations across India, he has told them to get themselves “impleaded in this case quickly, engaged good senior lawyers and actively become parties in this case.”

Willing to “brief the lawyers so engaged”, he says,  “This will enable us to give the full picture in a holistic manner and the socio-historical background of the SC and SC (POA) Act before the courts and fill any lacuna that may be left by the government and its counsels.”

According to Krishnan, “While I am making every possible effort to persuade Government to take an effective stand and instruct their lawyers thoroughly along lines I have indicated, as I have been doing since many years in respect of cases pertaining to SCs, STs and BCs, it is not wise to leave everything to Government and organizations for SCs and STs and Social Justice must step in actively in fighting out this and other cases before Supreme Court and High Courts.”

Text of the letter sent by Krishnan to Thaawar Chand Gehlot:

The commendable initiative of the Government in amending the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) (POA) Act in the recently concluded Monsoon Session to undo the dilution of its implementation following the judgment of a 2-Member Bench of the Hon’ble Supreme Court on 20.03.2018 has, as expected, been followed by a Writ Petition, filed by two lawyers, namely, Ms Priya Sharma and another, challenging these amendments.

The Government is aware of the importance of the Act for the protection of the two most vulnerable social classes of our country. I suggest that the Writ Petition be forcefully and effectively countered by full preparation and briefing of the Attorney General (AG) regarding the socio-historical background of the extreme vulnerabilities of the SCs and STs over the centuries till today and the socio-historical background of the POA Act. Some of the points in the Annexure to my DO letter to you dated 22.03.2018 are relevant and useful in this regard. If the Ministry so desires, I can help with details and particulars of the socio-historical background I have mentioned here.

I also suggest that this opportunity be utilized

  • to place all these facts, including the socio-historical background, in fullness and correct perspective before the Supreme Court. This will be useful and necessary for the Supreme Court to have holistic picture in dealing with specific Writ Petitions and other Petitions that may arise before the Supreme Court and High Courts from time to time. Once it comes on the record of the Supreme Court, it can be utilized whenever there is an occasion.
  • to secure the expunction of various remarks, comments and observations made by the two-Member Bench of the Hon’ble Supreme Court in its judgment of 20.03.2018. For example, that Judgment has used pejorative remarks against the POA Act such as “abuse”, “misuse”, “rampant misuse”, “blackmail”, “personal vengeance” etc. These could not be corrected by the SC and ST (POA) Amendment Act 2018. The present is a good opportunity which should be utilized.
  • to get all such unwarranted remarks expunged as their remaining in record can be used by those officers who are biased in a manner which will be adverse to the legitimate interests of the protection of SCs and STs. Allowing such remarks to remain in the judgment and in the record is harmful.
  • to show the court how in large numbers of cases of massacres etc. the accused have been acquitted by High Courts, even where the trial courts have convicted them, and how appeals in such cases are pending since years in the Supreme Court.

In the proceedings of the Supreme Court, which led to the judgment of 20.03.2018, the counsel for the Union Government did not present these facts and socio-historical background in fullness and made erroneous and gratuitous admissions, which I have mentioned in the Annexure to my e-letter to you dated 22.03.2018. This should not be allowed to happen again.

I would also reiterate my earlier suggestion of 22.03.2018 that the POA Act and the Protection of Civil Rights (PCR) Act 1955 be placed in the Ninth Schedule. This will give considerable protection, even if not total protection, against judicial scrutiny. The inclusion of these Acts in the Ninth Schedule will give greater strength to its defence by the Central Government in case they are challenged even after their inclusion in the Ninth Schedule. This can be further strengthened by specifically invoking the directive principle of Article 46 and in particular its protection clause, in the light of Article 31C read with Article 31B.

I request you to kindly consider taking urgent action along these lines. It will also be useful to give a public statement expeditiously about Government’s intention to fight this Writ Petition forcefully and effectively. This will allay the anxiety of SCs and STs throughout the country who are very much worried about repeated attacks on the POA Act, which is vital for their protection.

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