The intent behind the stern posturing of the apex court's order in the 'Dr. Subhash Kashinath Mahajan vs State of Maharashtra (Criminal Appeal No. 416 of 2018)' cannot be doubted. The Supreme Court cannot turn a blind eye to the scourge of misuse of statutory rights and abuse of legal protection by indiscreet elements. However, what needs to be debated here is whether the exercise of plenary powers under Article 142 to issue these guidelines was worth the occasion, and whether the nature of exercise of such power is constitutionally justifiable.
The whole exercise reminds one of the oft quoted proverb that “to err is human”. This time, additionally, it is “a costly slip” and needs immediate course correction because the adverse impact would be of unimaginable proportions.
“The Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989”, was one in the series of measures in the process of providing social protection for the vulnerable section of the society, exploited for at least as long as documented history exists. The issue can no longer be overlooked as they form a major section of the society.
The legislation is aimed at not merely providing human dignity to such a large section of people. It is also an attempt to provide opportunities for this section of the society to enter into the mainstream. No nation can grow and develop if a number of its people remain backward, socially and economically.
One must note that the conclusion about the growing misuse of the law should not necessarily be inferred from the unusually high percentage of acquittals and the lack of convictions in all cases reported under the law. Such instances of acquittals and low convictions have more to do with the lack of initiative by the general administration and established police systems due to the influence exercised by the ruling political classes.
After years of efforts, police reforms have not happened and the general administration has acted—more often than not—as a handmaiden of the high and the mighty. Therefore, the obvious consequences would manifest itself in the lack of effectiveness of such reformist measures. Status quo suits only those who have been at the helm of affairs.
The caste assertion in the form of electoral mandate is one of the obvious consequences of the desperation of these marginalised classes. Therefore, any tweaking with the law requires much greater deliberation, not by the judiciary, but by the legislature which is mandated by the constitution to do so. After all, a judicial review has its own inherent limitation of not being assigned any direct role in governance.
Having said so, even on the first principles of law, this judgment is not sustainable. First, the lack of cogent and elaborate material in the judgment to conclusively declare gross misuse. Second, such directions as obtained in the form of added guidelines obstruct the course of legislative mandate reflected in the statute promulgated by the Parliament.
One is not suggesting that the Supreme Court cannot interfere in the face of abuse. It can rightfully interject by setting aside the law which violates the constitutional mandate, or, create statutory guidelines as in Vishakha judgment and in many other instances thereafter, primarily to fill the legislative vacuum. But what the apex court has done in this case is to supercede the mandate of legislative prerogative and make the statutory rights subservient to artificial pre-conditions not specifically provided in the statute.
This fittingly reminds one of a recent order of a larger bench of the Supreme Court in the matter of 'NGO Nayayadhar vs UOI (W.P Crl. 156 /2017), expressing disagreement with another judgment of a division bench of the Supreme Court, rendered in the case of 'Rajesh Kumar Sharma vs. State of UP (Crl. Appeal No. 1265 of 2017)” where certain guidelines were framed in matters relating to Section 498-A (violence against wife by husband or relatives). The larger bench observed that “the guidelines may be in legislative sphere”, as such exercise creates jurisdictions beyond the statute.
Such situations must be avoided, and the judgment presently rendered in the case of Subhash Kashinath Mahajan must be reviewed and the statutory order be restored.
(The writers are practicing lawyers in Supreme Court)