The 20 March judgment of the Supreme Court Bench comprising Justices Adarsh Goel and UU Lalit diluting the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act of 1989 which led to the loss of nine lives in nationwide protests is unfortunate. The case before the Bench was to quash a criminal case against Dr Subhash Mahajan, Director of Technical Education, Maharashtra, who is a public servant. It was declined by the High Court. The apex court found that none of the ingredients of any of the offences listed against the official were made out in the complaint.
The proper thing to do was to admit the appeal and dispose of the case. Instead, the Bench complicated the issue saying, “We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr NT Desai (supra)and clarify the judgments of this court in Balothia (supra) and Manju Devi (supra).In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the magistrate for permitting further detention.”
The Supreme Court is a court of record with all the power to interpret laws and to punish or acquit accused persons in accordance with existing laws. But it cannot change the laws which is the prerogative of Parliament. The SC/ST (Prevention of Atrocities) Act, 1989, was passed by Parliament and the President of India in his wisdom gave his assent to it.
The Bench of Justices Goel and Lalit observed that false and frivolous cases were made under the Act for personal motives and said that its interpretation should promote “constitutional values of fraternity and integration of society. This may require a check on the false implication of innocent citizens on caste lines.”If the Bench was convinced the case against Mahajan was false or frivolous, it could have accepted his appeal and quashed the case. Instead, it laid down guidelines for admissibility of atrocity cases which had the effect of deleting Section 18 of the Act.
It was this section that instilled a sense of protection among the 300 million SC/ST citizens of the country. It barred persons accused under the Act from seeking anticipatory bail and remained a deterrent from causing casteist injury and insult to the downtrodden castes.Mahajan, it may be recalled, was on anticipatory bail and there was no threat of his imminent arrest. The court laboured hard to make a case for diluting the Atrocities Act. Questions were inappopriately framed about the effect of arrest in false cases.
“We are of the view that cases under the Atrocities Act also fall in exceptional category where preliminary inquiry must be held. Such inquiry must be time-bound and should not exceed seven days in view of direction in Lalita Kumari (supre). Even if preliminary inquiry is held and case is registered, arrest is not a must. While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory,” the court ruled. Paragraphs from the Mandal Commission case were used to justify the verdict. Even Ambedkar was quoted in support of the court’s view.
The time has come for the higher judiciary to look inwards and ask why after 70 years of independence no High Court in the nation has a Chief Justice from the Scheduled Castes or the Scheduled Tribes who constitute 18 per cent of the population.Ever since Chief Justice KG Balakrishnan retired in the summer of 2010, no judge from the SC/ST castes has been elevated to the Supreme Court. CJI Balakrishnan tried to elevate High Court Judge Dinakaran to the Supreme Court but the legal fraternity pounced on him with all sorts of charges.
Can the entire higher judiciary claim it is above corruption? How the higher judiciary hounded out from their ranks CS Karnan, a Scheduled Caste lawyer from Chennai who was selected by the Collegium as a judge of the Madras High Court is a sad story. Discriminated against by some brother judges he became a loner. Shocked by corruption in the judiciary, he started exposing them. The Chief Justice wanted him out and New Delhi took the easy way out by transferring him to the Calcutta High Court.
One of the complaints against him was that he sat over judgments for months after reserving orders and that he had no respect for court timings. When a Supreme Court Bench sat over judgment in Jayalalitha’s disproportionate wealth case for more than a year no such complaint was made. If only it had been delivered in time, the political history of Tamil Nadu would have changed, and the State would not have become a laughing stock of the nation as it has.
The Calcutta High Court deprived Karnan of judicial and administrative work as a judge on orders from the Chief Justice of India. No one protested when the powers of the Calcutta High Court Chief Justice were assumed by the Supreme Court. Justice Karnan was made a mental wreck and ejected from the charmed circle of higher judiciary.
The government enacted the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, which came into effect from 13 April 2015. The Supreme Court, vide its judgment dated 16 October 2015, struck down both Acts as unconstitutional. The Collegium system of judges selecting judges is an extra-constitutional institution. It is perpetuating a male-dominated casteist circle of judges. Once Justice R Banumathi retires, the Supreme Court will have no women judges.
The low rate of conviction for crimes committed against the Scheduled Castes and the Scheduled Tribes is mainly due to caste biases in the judiciary which has no understanding of the oppression and violence the Dalits undergo in their everyday lives. In the Constituent Assembly, Allady Krishnaswamy Iyer warned against vesting untrammeled power in the judiciary which he feared could usurp the powers of the legislature. That is just what the Supreme Court has done in the Mahajan case.
If the Narendra Modi government is serious about reforming the judiciary, it should reintroduce the NJAC Bill in Parliament as the Supreme Court judgment has, in the words of Union Finance Minister Arun Jaitley, “diminished the basic structure of the Constitution, namely, parliamentary democracy. The majority opinion was understandably concerned with one basic structure, independence of judiciary. But to rubbish all other basic structures by referring to them as politicians and passing the judgment on the rationale that India’s democracy has to be saved from its elected representatives.”
Such arrogance is unbecoming of a free and fair judiciary. But the judiciary is able to get away with it because politicians seek its indulgence when it suits them. Judicial independence does not mean primacy in appointments. Merit should be the main criteria for selection of judges.
The government should also pay attention to the Law Commission’s 14th report on judicial reforms. It said that young judges would bring a freshness and vigour to constitutional courts. According to Ajit Prakash Shah, former Chief Justice of Delhi Court, a truly democratic judiciary must represent the people it judges. But Indian courts operate like closed country clubs. Diversity is as important as merit and ability.
The writer, a veteran journalist, was founder-director of the Statesman Print Journalism School