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Pretence of neutrality

Deccan Herald
By Professor  

We witnessed in August the resolution of the tussle between the union government and the Supreme Court in Mahajan vs State of Maharashtra on the reading of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, commonly known simply as Atrocities Act. The Supreme Court’s reading of the Act appeared to be a ‘smoking gun’ of judicial activism. Legally speaking, Mahajan vs Maharashtra is a dispute about how to read a statute made by the legislature.

A similar debate had notably ensued between professors HLA Hart and Lon Fuller in 1958 at the Harvard Law School. That was the 20th century’s most enduring debate on the nature and application of law. Hart and Fuller had fought on the side of, respectively, positive law and natural law. The government-judiciary tussle in relation to the Atrocities Act mimics that Hart-Fuller conundrum. Fuller had rejected Hart’s theory of statutory interpretation. In 2018, the Indian government walked into Fuller’s shoes to reject the Supreme Court’s interpretation of the Atrocities Act.

According to the complainant in Mahajan vs Maharashtra, the ‘original accused’ was not competent to grant or refuse sanction as under the provincial law in Maharashtra. The state government alone could grant such sanction. Under the Atrocities Act, the ‘accused’ could not get anticipatory bail after an FIR (First Information Report).

The amicus submissions before the Supreme Court argued that under the scheme of the Atrocities Act, “one-sided version, before trial, cannot displace the presumption of innocence.” The amicus warned against the “misuse of power of arrest” on “mechanical” grounds. It further argued that the Atrocities Act “violates constitutional mandate under Articles 14 and 21 and is ultra vires the Constitution.”  Unless the Supreme Court “laid down appropriate guidelines”, the amicus submission said, “there will be no protection available against arbitrary arrests or false implications in violation of Article 21 of the Constitution.”

That amicus submission did not go uncontested, however. Another intervener, the convener of an SC/ST Workers Welfare Society, made an important submission about statutory interpretation in India. “Where law is clear,” he argued, “no guideline should be issued by the court.” He further argued that the Supreme Court “could not lay down guidelines in the nature of legislation.” The executive, through the Additional Solicitor General, echoed similar views.

Contrarily, Justice AK Goel, writing for the court, responded with wide strokes. He invoked the centrality of the Constitution, those dealing with fundamental rights, and the powers of the court over the executive. The cleavage of opinion on the role and extent of judicial review and statutory interpretation stands widened.

In the hands of Justice Goel, Articles 14 and 21 of the Constitution became, as it were, pliers for defanging the poison tooth of the Atrocities Act. He reminded all that the Supreme Court is “the ultimate interpreter of the Constitution” and that “Articles 14, 19 and 21 represent the foundational values which form the basis of the rule of law.” Needless to say, he added, “contents of the said rights have to be interpreted in a manner which enables the citizens to enjoy the said rights.”

Justice Goel was attempting to protect the “right to equality and life and liberty” of the members of the general category from what he thought was as “unreasonable procedure” actually “enacted by the legislature”. “This court”, Justice Goel emphatically wrote, “is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights”. He then moralised to blunt the edges of the Atrocities Act: “We are thus of the view that interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require check on false implications of innocent citizens on caste lines.” Of course, Justice Goel claims no knowledge of the actual data on caste atrocities.

The holding of the court in Mahajan vs Maharashtra, and indeed the judiciary’s approach to the interpretation of the SC/ST law, became a political potboiler. The executive, having to defend the statute, promised swift action.

Thewarchand Gehlot, the central Minister for Social Justice and Empowerment, said in the Lok Sabha that the “principles of criminal jurisprudence and Section 41 of the Code of Criminal Procedure, 1973, as interpreted in several judgements, implies that once the investigating officer has reasons to suspect that an offence has been committed, he can arrest an accused. This decision to arrest or not to arrest cannot be taken away from the investigating officer.”

On August 9, the government got passed the Prevention of Atrocities (Amendment) Act, 2018, in the Rajya Sabha, after the Lok Sabha had passed it earlier. The amended Act “provides that a preliminary enquiry will not be required for the registration of” an FIR “against a person accused under the Act.”

The Act, therefore, “seeks to clarify that this provision will apply despite any judgements or orders of a court that provide otherwise.” The Act also clarifies that an “accused of committing an offence under the Act cannot apply for anticipatory bail”.  The intention of the 2018 amendment is to restore the provisions of the law that the Mahajan ruling had eroded.

Even as the August 2018 Act mimics the Hart-Fuller debate on statutory reading, it does one thing differently. While Prof. Fuller had called out “the pretence of ethical neutrality” of the Nazi laws in Germany that Prof. Hart had invoked for his fidelity to law.

The 2018 amendment to the Atrocities Act called out the “pretence of ethical neutrality” of the natural law of judicial activism as practised by the Supreme Court.

(The writer is Associate Professor, Jindal Global Law School, Sonepat)