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Don't blunt SC by ordinance PDF Print E-mail
Friday, 20 April 2018 04:15
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Shobhana edit 

Should its review petition fail, the government should desist from promulgating an Ordinance to overturn the Supreme Court’s verdict that protects persons from immediate arrest if they are alleged to have committed atrocities on members of either scheduled castes (SC) or scheduled tribes (ST). The apex court had opined that the law to protect SC/ST individuals from casteist slurs and discrimination was being abused to “blackmail” innocent citizens and public servants. A two-member bench of the apex court, comprising Justices AK Goel and UU Lalit, felt the law was being used to exact “vengeance” and to realise vested interests. Following violent protests after the verdict, the government filed a review petition.

The government should respect the apex court’s view on the Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989, rather than trying to overrule it simply because it wants to appease a powerful vote bank. Ideally, the ministry of social justice and empowerment should not have filed a review petition, but that could be justified since it is the SC that will rule on it. However, if the SC rejects the petition the government should give in gracefully. Introducing an ordinance, and later a Bill in Parliament, to negate the apex court’s ruling—an option the government is believed to be considering—would be showing disregard for the court’s views.

In fact, on March 16, the SC held that the legislature cannot overrule judgments through retrospective amendments. It noted the legislature may have the power to remove the basis or foundation of the judicial pronouncement but the legislature cannot overturn or set aside the judgment, that too retrospectively by introducing a new provision. “The legislature is bound by the mandamus issued by the court,” Justice Deepak Gupta said in the March judgment.

In 2012, the then finance minister, Pranab Mukherjee, undid the SC judgment in the Vodafone tax case, amending the IT Act, 1962, retrospectively, thereby making it necessary for tax to be paid on capital gains earned from the sale of assets in India even if they involved companies overseas. Before that, in 1986, the then prime minister, Rajiv Gandhi, caved in to pressure from the Muslim orthodoxy and enacted a law—Muslim Women (Protection of Rights on Divorce) Act, 1986, to nullify the SC judgment, which granted Muslim women alimony even after the iddat period.

The Ninth Schedule, which was added to the Constitution by the Nehru government in 1951, was also aimed at protecting certain legislations from judicial scrutiny. While Nehru’s objective was to put to an end to zamindari, subsequent government have taken shelter in the Ninth Schedule for various legislations. For instance, the Tamil Nadu Reservation Act was placed in the Ninth Schedule. To be sure, the Ninth Schedule does not provide blanket immunity from judicial review of laws after the IR Coelho judgment in 2007, but that has not prevented governments from attempting to push through legislation to prevent judicial restraint.

 

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