The Big Story: Judgemental judiciary

Nine people were killed on Monday as Dalits in several states took to the streets to protest a Supreme Court order last month diluting the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Exacerbating the situation was the Supreme Court refusal to consider an urgent hearing of a petition challenging the court’s order.

The Prevention of Atrocities act was significantly weakaned by the Supreme Court in an order released on March 20 removing the prohibition against anticipatory bail and allowing accused people to be arrested only after a senior official has granted permission. The Prevention of Atrocities act
is a key instrument to fight prejudice in a society in which brutal violence against Dalits and Adivasis is commonplace and often has political sanction.

In its order, the court has cited the low conviction rates under the act to infer that the stringent provisions in the law were being misused. As it so happens, this is also a common complaint by many upper caste groups. However, data from the National Crime Records Bureau shows that the proportion of false cases registered under the act has actually fallen. Moreover, the method of using conviction rates to evaluate whether a law is sound is fraught with danger. Given the upper-caste control of the law and order machinery, conviction rates in caste-related crimes will always be low. This can hardly be reason for removing or diluting the law itself. Even though anti-terror laws have low conviction rates, the courts gave never suggested that they be removed.

The controversy that this poorly argued decision has generated is yet another reminder that judicial overreach is harmful for India’s democracy. The country has an unusually powerful judicial system – it is the only democracy in the world where judges select judges without any input from the elected legislatures or executive. Using the device of the Public Interest Litigation – another device unique to India – the courts have wedged themselves into the sphere of the legislature and the executive, even going so far as to make laws. In recent years, Indian judges have ruled on river interlinking, placed restrictions on diesel cars, taken over cricket administration, forced the signing of the national anthem in theatres and even set the precise height limit for the human pyramids of Mumbai’s Gokulasthami festival (20 feet).

The courts are well suited to protecting rights and adjudicating on the law. However, given the complex social bargaining required to create law and implement policy, these tasks are best left to elected politicians. In the case of the Prevention of Atrocities act, almost every major political party, responding to Dalit concerns, has opposed its dilution. Monday’s violence could have been avoided if the courts had left the legislating up to the elected legislators.

The Big Scroll

  • Supreme Court says SC/ST Atrocities Act is misused. So what explains the low conviction rates, asks Aarefa Johari.
  • By diluting SC/ST Atrocities Act, Supreme Court undermines Dalit and Adivasi struggles for dignity, argue Suryakant Waghmare and Hugo Gorringe.

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Punditry

  • Unless the concerns of states are addressed, the fault lines in the Indian federation could grow deeper, argues Mathew Idiculla in the Hindu.
  • The Central Board of Secondary Education question paper leak has also thrown up questions on our attitude towards education, writes Rasheeda Bhagat in the Hindu Business Line.
  • West Bengal is seeing a sudden infusion of aggressive gods from the upper reaches of the Ganges, writes Jawhar Sircar in the Wire.

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Don’t Miss

Cheated by moneylenders, Dalits in Kerala fight against law used to evict them from their homes, reports TA Ameerudheen.

“Passed in 2002, the Sarfaesi Act gives banks and financial institutions the power to recover loans disbursed by them without interference from the courts.

A people’s movement against the Act started in Kerala in 2013 after a series of cases in which banks attached the property of the poor who claimed that they were cheated by their moneylenders with the connivance of bank officials.

PJ Manuel, one of the leaders of the group that is called the People’s Movement against Sarfaesi Act, said that the Act is the cruelest anti-people law in the country. ‘The Act gives power to banks to decide on loan recovery,’ he said. ‘It robs poor people’s right to live.’”