The controversial judgment on the SC/ST Atrocities Act has yet again brought to the foreground the faultlines of our democracy. A cornered government, anticipating political repercussions, has moved the apex court for a review of the judgment. In its written submissions, it has stated that the judgment has created disharmony in society and violated the principle of “separation of powers”. A few BJP state governments, which had promptly implemented the apex court order, have now withdrawn their circulars and decided to file review petitions. Kerala too has filed a separate review petition. Prime Minister Narendra Modi has assured that dilution of the special provisions will not be permitted. There is a concerted effort to reach out to Dalits and appropriate Ambedkar, though the fact remains that the BJP-ruled states are the worst in terms of atrocities against Dalits.
The bench of Justice A K Goel and Justice U U Lalit, while admitting the review petition, reminded the Modi government that it had conceded during the regular hearing that the Act is being abused. The bench denied that its judgment has diluted the Act and reiterated that the judgment merely ensures compliance with due process and protects the liberties of the people. In 2014, more than 50 per cent seats reserved for Dalits were won by the BJP. In the likely scenario of the Court rejecting the review, minister Ram Vilas Paswan has hinted that the Modi government may bring in an ordinance.
It is nobody’s case that the court should recall its judgment because of public sentiment. But the court should also keep in mind that it has consistently maintained that “separation of powers” is the “basic structure” of the Constitution. The judiciary is not supposed to overtake legislative functions through the so-called “guidelines”, particularly on subjects where there is no legislative gap. Moreover, a two-judge bench rather than terming the judgment of another two-judge bench as per incuriam, should have ideally referred the matter to the Chief Justice of India for the constitution of a three-judge bench.
The perception that the Modi government is anti-Dalit is fast gaining ground — in an unprecedented move, five Dalit MPs from the BJP have written letters to the prime minister expressing their anguish on the marked deterioration in the condition of Dalits in the last four years. In the worst case scenario of the Court refusing to review the order, the government should promulgate an ordinance. Legally speaking, the government can bring in the ordinance even now. But can Parliament overturn a verdict of the Supreme Court? The answer is yes. Parliament, in exercise of its plenary powers, can undo any judgment or order of the court.
In fact, in its first seven months, the Modi government equalled Indira Gandhi’s dubious record of promulgating an ordinance every 28 days. After the then President Pranab Mukherjee’s advice, breaks were applied on the so-called ordinance raj. But now there is a just cause and an appropriate occasion to use this extraordinary power. The Modi government itself had brought in an ordinance followed by an Act to overturn the Supreme Court’s judgment on the enemy property law. The UPA, too, had brought in an ordinance in 2012 to overturn the Vodafone judgment. Innumerable cases can be cited where judgments were overturned through ordinance. But due to our prejudices, we merely remember the 1986 law enacted to overturn Shah Bano without realising that the new law in reality proved to be a boon for Muslim women, as it gives much greater protection to them than is available to divorcees of other communities.
The device of validating an ordinance/statute is used to adopt the law to meet the exigency of situations arising out of judgments. Thus, any problematic judgment or mandamus of court can be undone by the validating law. Such validating statutes generally state “notwithstanding anything contained in any judgment, order or decree.”
The validating law must answer the tests: Whether the subject of the validating law is within the competence of the concerned legislature; whether the validating law has removed the defect pointed out by the court and; whether the validating law is consistent with fundamental rights. Of course, Parliament cannot overturn a judgment by a mere declaration. It has to do more, that is, it must remove the basis of the judgment. To overturn the SC/ST judgment, the ordinance should clearly state that the so-called abuse of law has not been proved by any authentic research and reasons of high rate of acquittal were overlooked by the court. In Utkal Contractors (1987), the Supreme Court explicitly held that rendering judicial judgment ineffective through legislative powers by removing the basis of judgment is a well-known pattern of all validating laws. “Such an ordinance cannot be termed as encroachment of judicial power,” the Supreme Court said.
What to say of facts, Parliament may even create fictions. In Fakrusab Babusab Karanandi (1976), the apex court observed that “it is now settled law that when a legal fiction is enacted by the Legislature, the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it”. Here, arrest was made by an excise officer, later by a retrospective law, fiction was created adding words “or police officer” after excise officer.
Jawaharlal Nehru had brought in the first constitutional amendment to undo the seven-judge bench decision against reservation in Champakam Dorairajan (1951). The Congress government in 1995 amended the Constitution by the 77th amendment to undo the Mandal judgment in Indra Swahney (1992) on reservation in “promotions”.
Let the BJP government renew its commitment to Dalits by doing something more concrete than merely emphasising “Ramji” as Ambedkar’s middle name. Let it also promulgate ordinances to overturn apex court judgments on promotions and department rather than university being taken as the unit to reserve posts. Let us hope the Court will not prove Arun Jaitley right, who had said on the floor of Parliament that “judiciary is destroying Parliament brick by brick”.