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 exploitation angle in such a case.
Strike at jurisprudence
It is certainly a good political move, given that the Supreme Court action had brought the dalits 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 recognise 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.
Law vs class of individuals
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.
In today’s context, deviating from the concept of ‘innocent until proven guilty’ may not be a bad idea, given the abuse of the principle. In practice, this dictum has been used more to shield the guilty rather than to protect the innocent.
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.
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, giving her uncontrolled powers to act without judicial intervention.
The amendment snatched away several powers resting with the SC, 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.
Legislation needs to do better
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 can do better.
RaGa asks Modi to wake up
Rahul Gandhi, on Saturday, lashed out at PM Modi and Amit Shah for atrocities against Dalit communities, and hoped they would wake up from their slumber.
“Mr 56’s best buddy, asked me to check my facts when I said the BJP fuels violence against Dalits and Adivasis”, tweeted Gandhi and added that BJP leaders should check facts from the news reports he is tagging along with the tweet. According to reports in 2016, Bihar, Rajasthan, MP constituted 38% of the atrocities against Dalits across India.
Paswan questions Opposition
Slamming opposition parties for ‘ignoring’ and ‘sidelining’ Dr BR Ambedkar and the Dalits when they were in power, Union minister Ram Vilas Paswan asked the Congress, Bahujan Samajwadi Party (BSP) and the Samajwadi Party (SP) why their actions were against the Dalit icon and the community’s interests.
The Lok Janshakti Party (LJP) chief came up with 14 posers for Congress Rahul Gandhi, including why the grand old party fought against Ambedkar in the elections and failed to confer upon him the ‘Bharat Ratna’ – the country’s highest and most prestigious civilian award.
67% of India’s prison population are undertrials, mostly belonging to the underprivileged classes
47% of these undertrials are between the age of 18 and 30 years, in accordance to data quoted by senior Supreme Court Justice Ranjan Gogoi
53% of the undertrials population belong to marginalised communities of dalits, adivasis and Muslims, says Amnesty International India report
39% of India’s prison population are undertrials, mostly belonging to the underprivileged classes
29% are illiterate and 42% have not completed secondary education. What about the denial of justice to these people? No government or political party seems to care.
(Author is a senior journalist)