By K Raveendran
By restoring the provision for summary arrest of people accused of atrocities against dalits and backward classes, the Modi government has solved a major political challenge to its credibility, but left open even a more serious judicial question: can a legal principle be applied selectively? The Supreme Court had struck down the law as ultra virus of the Constitution.
The Bill passed by both houses of parliament rules out anticipatory bail for any person accused of atrocities against SC/STs, notwithstanding any court order and provides that no preliminary inquiry will be required for registering a criminal case and arrests made under this law would not be subject to any approval. It is not clear what happens when one dalit attacks another dalit and which of the two gets protection under the rule. At least there is no explolitation angle in such a case.
It is certainly a good political move, given that the Supreme Court action had brought thedalits and backward classes together so as to challenge the prevailing political order, but, nevertheless, a bad legislative exercise as it seeks to solve a political problem using the judicial process, refusing to recognize that the two are not mutually substitutable, just as a judicial principle cannot be applied on a selective basis. The new law also strikes at the root of modern jurisprudence, which treats anyone as innocent until proven guilty.
There is no doubt that the dalits and backward classes deserve special protection as centuries of repression by the ruling elites have denied them their due. But the manner in which the Supreme Court strictures are sought to be overcome raises serious questions about the application of judicial principles.
If a law can be applied to a certain class of people, it also means that it applies to every individual who constitutes that class. And from this it follows that the same law cannot be applied to two individuals differently, whether from the same class or from another. It is obvious that the legal principles that drive the law applied to one class of people cannot be made to exclude another class. While dalits do deserve support, legal principles do not allow exclusion of their applicability to other classes simply because they were the beneficiaries of the system that had held the dalits back. This is an issue to be tackled politically and not through discriminating in the application of judicial principles.
In today’s context, deviating from the concept of ‘innocent until proven guilty’ may not be a bad idea at all, given the serious abuse of the principle. In practice, this dictum has been used more to shield the guilty rather than to protect the innocent. So a re-look may be quite in order. But it cannot be applied selectively.
A law that treats a crime as more heinous when committed against dalits than when the victim is from any other community is a bad law. A crime is a crime and has to be treated as such. The application of the law on the basis of who committed it amounts to applying the principles supposed to have been postulated by Manusmriti in the reverse order. Whichever way it is applied, the practice cannot be endorsed.
In fact, there is greater denial of justice in the case of undertrials languishing in jails, in many cases for no fault of theirs, but the government is showing no concern about them, although most of them also belong to dalits, backward classes and minorities. According to statistics quoted by senior Supreme Court Justice Ranjan Gogoi, in line to succeed Chief Justice Dipak Misra, in a recent lecture, 67 percent of India’s prison population are undertrials, mostly belonging to the underprivileged classes and 47 percent of them are between the age of 18 and 30 years. A recent Amnesty International India report, titled ‘Justice Under Trial’, estimated that marginalised communities of dalits, adivasis and Muslims formed the bulk of the undertrials population – 53 percent, although their ratio in the total population was only 39 percent. Most undertrials are poorly educated. Around 29 percent are illiterate and 42 percent have not completed secondary education. What about the denial of justice to these people? No government or political party seems to care.
The provisions of the new law passed by parliament this week ring a bell to the notorious 42nd Amendment of the Constitution, initiated by Indira Gandhi during Emergency. The amendment, necessitated by the specific situation of Indira Gandhi in the wake of the order by Supreme Court judge the Late V R Krishna Iyer putting a conditional stay on the Allahabad High Court judgment that unseated her as MP, gave the Prime Minister uncontrolled powers to act without judicial intervention.
The amendment snatched away several powers resting with the Supreme Court, making parliament the supreme authority and restrained any constitutional amendment from being ‘called into question in any court on any ground’. Also, it gave unlimited powers to parliament to amend the Constitution at any given point. It is testimony to the inherent strength of Indian democracy that the draconian amendment was undone in due course of time.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018, passed by both houses of parliament to restore the provisions of the law struck down by Supreme Court earlier, similarly precludes any court order regarding the grant of anticipatory bail for a person accused of atrocities against SC/STs and puts registration of criminal cases in such incidents beyond the scope of any approvals. Our legislative craft will definitely do better with some improvements. (IPA Service)
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