Discouraging the heart and soul of the Constitution

Constitution of India, Constitutional Oath
Constitution of India, Constitutional Oath

“If I was asked to name any particular article in this Constitution as the most important--an article without which this Constitution would be a nullity--I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance.”- Dr. B.R. Ambedkar, Chairman, Drafting Committee on Article 32 of The Constitution of India.

On 6th November 2020, while issuing notice to the Secretary of the Maharashtra Legislative Assembly for sending a letter to Mr. Arnab M. Goswami, the editor-in-chief of Republic TV, allegedly intimidating him for approaching the Court against the privilege notice issued by the Assembly, a bench headed by Hon’ble the CJI remarked

… No authority in the country can penalise somebody for coming to the court! What is Article 32 for! How dare this officer say all this! This is in the teeth of Article 32! 32 itself is a Fundamental Right! I've never seen an attitude like this.

On November 17th, a bench headed by Chief Justice S.A. Bobde observing that there has been a spate of petitions under Article 32 recently, the CJI remarkedWe are trying to cut down the Article 32 jurisdiction. We do not appreciate this’. The Court has been encouraging the parties to first approach the concerned High Court.

In the Fertilizer Corporation case [AIR 1981 SC 344] & Lokesh Katara v High Court of Gujarat [(2017) 2 SCC 427] it was held that Article 32 confers one of the ‘highly cherished rights’, and that the right of access to the Supreme Court under Article 32 is a Fundamental Right itself.

In Romesh Thappar v State of Madras [AIR 1950 SC 124], the Court emphasised that “this Court is thus constituted the protector and guarantor of the Fundamental Rights, and it cannot consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights.”

The Supreme Court has described the significance of Article 32 in the following words in Prem Chand Garg v Excise Commissioner, UP [AIR 1963 SC 996] (Per Gajendragadkar J.):

The Fundamental Right to move this Court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should regard itself ‘as the protector and guarantor of Fundamental Rights’… In discharging the duties assigned to it, this Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard it as its solemn duty to protect the said Fundamental Rights ‘zealously and vigilantly’.”

Article 32 is in itself a Fundamental Right and, therefore, the existence of an alternative remedy is no bar to the Supreme Court entertaining a petition under Article 32 for the enforcement of a Fundamental Right.

In Daryo v State of Uttar Pradesh [AIR 1961 SC 1457] it was held that, when once the Court is satisfied that the petitioner’s Fundamental Right has been infringed, it is not only its right but also its duty to afford relief to the petitioner, and he need not establish either that he has no other adequate remedy, or that he has exhausted all remedies provided by law, but has not obtained proper redress.

When a petitioner establishes infringement of his Fundamental Right, the Court has no discretion but to issue an appropriate writ in his favour.

However, in Kanubhai Brahmbhatt v State of Gujarat [AIR 1987 SC 1159] a division bench of the Supreme Court observed that a petitioner complaining of infraction of his Fundamental Right should approach the High Court first rather than the Supreme Court in the first instance, the reason for such an observation as given was that there was a huge backlog of cases pending before the Supreme Court.

Something similar appears to be happening today, owing to increased backlogs, the Court seems to be disinclined to entertain Article 32 petitions, and sending the petitioners first before the High Courts.

If such a decision, order or judgment is considered on its merits, it shall only defeat the purpose of having Article 32 in the first place.

Parties first approaching the High Courts for remedy and only thereafter approaching the Supreme Court for remedy shall create a situation where the apex Court would have to exercise its appellate jurisdiction and not the original writ jurisdiction because of the principle of res judicata, this in all probability will cause more delay and increase in cost of redressal, and shall also go against the Court’s position as the sentinel on the qui vive as held and affirmed in several other judgments.

This could never have been the intention of the framers of the Constitution as is evident from the statement of the Chairman of the Drafting Committee.

Also, Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as well.

Given the wider jurisdiction of High Court under Article 226, it is reasonable to expect petitioners to approach the High Court having locus other than enforcement of Fundamental Rights. This, in my opinion, makes the High Courts across the country more vulnerable to increase in backlogs and face the issue of greater pendency of matters.

As of August, 2019, there are over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts. Of these, subordinate courts account for over 87.3% pendency of cases, followed by 12.5% pendency before the 24 High Courts. The remaining 0.2% of cases are pending with the Supreme Court.

Though the Courts in their adjudicating capacity are not subject to exercise of writ jurisdiction for orders or judgments alleged to be in violation of Fundamental Rights, it is food for thought that whether discouraging Article 32 petitions and asking the parties to first approach the High Court under Article 226 is depriving the parties of their Fundamental Right to Constitutional Remedies and causing an infringement per se?

(The author is a law student at the New Law College, Bharati Vidyapeeth Deemed to be University, Pune)

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