Reference Text

The Supreme Court may have the word 'Supreme' in its name but it is not supreme in our constitutional setup. Nor have we accepted the British concept of ‘supremacy of Parliament’. The Constitution alone is supreme and all authorities must honour the boundaries of their powers as defined by it. Thus innumerable judgments given by the apex court have been over-turned by Parliament such as Shah Bano, Vodaphone, enemy property. Jallikattu and minority character of AMU. In fact, the first constitutional amendment was passed to undo the apex court's judgment in Dorairajan (1950) where the court had quashed communal reservation in Madras. Several constitutional amendments were subsequently passed to overturn judgments on the question of 'promotion' in reservations. On March 20, a two-judge Bench of the court issued guidelines that (i) no FIR be registered without a preliminary probe by the investigating officer, (ii) no one is to be arrested without the approval of appropriate authority and, (iii) an accused is eligible for anticipatory bail. The Lok Sabha has now amended the SC/ST Act by inserting a new clause — Section 18 A — negating the Supreme Court's judgment on both the registration of FIR as well as arrest. The statement of the SC&ST Bill clearly recalls the special nature of the 1989 Act and apex court's judgment and then refers to the CrPC which mandates the registration of FIR without any preliminary inquiry and gives power to the investigating officer to arrest an accused if he has reason to suspect commission of crime by him. But Parliament cannot simply undo the judgment. It has to do more, It has to remove the ‘very basis’ of the judgment. In Utkal Contractors (1987), the apex court agreed that rendering judicial judgment ineffective through legislative powers by removing the basis of judgment is a well-known pattern of all validating laws. In Prithvi Cotton Mills (1969), the Supreme Court again upheld the exercise of legislative power and admitted that it is not in dispute that legislature can pass a validating statute even with retrospective effect. What was the basis of the Supreme Court's judgment that Parliament did not remove in this Bill? On the basis of few isolated earlier High court judgments, Justice Goel and Justice Lalit had concluded that 'We have seen working of Prevention of Atrocities Act over the last three decades and its abuse has been judicially acknowledged'.
 The Supreme Court may have the word 'Supreme' in its name but it is not supreme in our constitutional setup. Nor have we accepted the British concept of ‘supremacy of Parliament’. The Constitution alone is supreme and all authorities must honour the boundaries of their powers as defined by it. Thus innumerable

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