One of the first lessons in Civics at school is the doctrine of separation of powers, which assigns separate spheres to the three organs of government. This system of checks and balances, we are taught, keeps our democracy humming along smoothly. It is illogical, therefore, to demonise the Executive when the Judiciary exercises its powers in accordance with its constitutional mandate.
Interest groups and members of the Legislature have attempted to paint the government as ‘anti-Dalit’, in response to a Supreme Court order banning registration of criminal cases and automatic arrests under the SC/ST (Prevention of Atrocities) Act of 1989. Justices Adarsh K Goel and U U Lalit held that “The said Act cannot be converted into a charter of exploitation or oppression by any unscrupulous person or police for extraneous reasons against other citizens, as has been found on several occasions”.
Strangely, no such protests were staged when the Supreme Court stayed automatic arrests under the anti-dowry Section 498A of the IPC in 2014. The order held that “Section 498-A (has)…dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.”
It is obvious that gender injustice does not stoke the same passions as caste discrimination. Or perhaps, it’s just that this is an election year, so it is expedient to imply that the government in general and the ruling party in particular is responsible for the perceived ‘dilution’ of the SC/ST Act.
First of all, the law was enacted by Parliament and any dilution of its provisions is the preserve of the Legislature, not of the Executive or the Judiciary. The Supreme Court interprets the law, a function it has discharged by pointing out its abuse and misapplication. Insisting on constitutional safeguards for citizens accused of violating the law, like grant of bail, cannot be construed as ‘dilution’.
Yet, interest groups, including the Opposition, have been behaving as if the apex court has struck down the Act, stripping vulnerable communities of any protection whatsoever. That the SC/ST Act, like Section 498A, has frequently been misused is widely known. Equally, it is evident that in many cases, implementation of the Act against offenders has been lax.
The government, for its part, exercised its right to appeal against the ruling. The apex court heard the appeal immediately but refused to stay its order of March 20. The Legislature can now take recourse to amending the Constitution, so as to deny anticipatory bail and allow automatic arrest of citizens, including government servants, under certain Acts. Our answer to non-enforcement of laws is to pass more draconian laws! Such laws are subject to judicial review and can be struck down if they are found to violate the basic principles of the Constitution.
The Judiciary is not the handmaiden of the Executive. Nor does it consult the government before passing an order. To hold the government responsible for a judicial ruling is absurd. The Congress view that the government was in cahoots with the Supreme Court is laughable. And to use that ruling as fodder for a political campaign, thereby sparking off countrywide violence, is to subvert democracy.
There was a point in our judicial history when the apex court functioned as an adjunct of the Executive, but that was when the government arrogated to itself the power to influence judicial appointments. The Three Judges Cases put an end to government meddling in appointments and insulated the courts to a large extent from extraneous influences, through the Collegium system. An attempt was made to alter the system by setting up a National Judicial Appointments Commission, but the Supreme Court struck it down in 2015.
Can it be said that the government was in cahoots with the apex court in the NJAC verdict? Or the 2014 verdict in the coal scam case, cancelling 214 out of 218 coal blocks allocated since 1993? Or, for that matter, the Section 498A ruling? Can the centre, or the Karnataka state government, take credit for the Cauvery verdict, which seeks to ensure equitable sharing of riparian waters?
Interest groups are free to disagree with the Supreme Court, but of late, elements within the Legislature have sought to impugn its credibility, by seeking impeachment of the Chief Justice of India and implying that the apex court is under the government’s thumb. They may have the right to express their opinion, but are they being responsible?
Bhavdeep Kang is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.
