The Supreme Court Should Protect The Heart And Soul Of The Constitution Of India

Dr. Lokendra Malik
21 Nov 2020 8:05 AM GMT
The Supreme Court Should Protect The Heart And Soul Of The Constitution Of India

A few days back the Hon'ble Chief Justice of India Mr. S A Bobde made certain observations about Article 32 ofthe Constitution. A three-judge Bench led by the Chief Justice was hearing an Article 32 petition filed by a Kerala-based journalist who was arrested by the U.P. Police at Hathras. Chief Justice Bobde expressed his reservation to entertain the petition and said that such petitions should be filed before the High Courts. "We are trying to discourage Article 32 petitions. Of late, we find a spate of Article 32 petitions", Chief Justice Bobde told this to Kapil Sibal, the counsel for the petitioner. Mr. Sibal argued that the Supreme Court was granting bail in Article 32 petitions and in this case, also, an extraordinary situation arose due to the arrest of a journalist who needs judicial protection. On this, Chief Justice Bobde said: "We are not commenting on the merits of the case. We are aware of similar orders in the past and the vast powers that this Court possesses under Article 32. We want to discourage this trend." The Court issued the notice and told Mr. Sibal that it was keen on ordering the petition to be heard by the Allahabad High Court. Again, on the very next day in a different case Chief Justice Bobde expressed his views and refused to entertain an Article 32 petition in an election matter. "We are trying to cut down the Article 32 jurisdiction", Chief Justice Bobde said to the counsel appearing in a writ petition. These remarks made by the Hon'ble Chief Justice of India have encouraged the constitutional pundits in the country to debate the constitutional aura and significance of Article 32 of the Constitution.

Article 32 is one of the constitutionally guaranteed fundamental rights that empowers people to move the Supreme Court for the enforcement of their fundamental rights by appropriate proceedings. The Constitution gives fundamental rights to the people against the state and its agencies as mentioned in Article 12. During the Constituent Assembly Debates in December 1948, Dr. B R Ambedkar, the Chief Architect of Indian Constitution, had narrated the significance of Article 32 of the Constitution in these beautiful words: "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 (Article 32). It is the very soul of the Constitution and the very heart of it." Article 32 is a guaranteed remedial right that provides people a right to approach the Supreme Court for protection of their fundamental rights guaranteed under Part 3 of the Constitution and this right cannot be suspended except during a period of emergency by the Presidential order. This is the most important provision in our fundamental rights chapter and without this provision, the enforcement of our fundamental rights is not possible at all. It is a matter of fact that the entire PIL or SAL jurisprudence (as eminent jurist Professor Baxi calls it) is built around this provision. If the use of this Article is deliberately discouraged, the entire PIL system would also be damaged badly. This provision makes the Supreme Court a guardian of the Constitution and a great protector of the fundamental rights. The Supreme Court has delivered many landmark judgments under this provision which have protected the rule of law, constitutionalism, and democracy in the country remarkably. There is a long list of such cases that demonstrate this fact. Article 13 which is the source of judicial review power can be activated through Article 32 by the Supreme Court. A great constitutional jurisprudence has been evolved by using this provision and it needs to be preserved.

Now after the Kesavananda Bharati case it is well-settled that Parliament cannot destroy the judicial review power under Article 368 amendment procedure as it is held to be a part of the basic structure of the Constitution. If Parliament cannot dilute this power, how can then the Supreme Court cut down this wonderful remedy? The Supreme Court has no power to add or cut any jurisdiction. Many cases like L Chandra Kumar etc describe the significance of this article in our constitutional scheme. It is different from Article 226 of the Constitution which empowers the High Courts to protect the fundamental rights and other legal rights of the people. Admittedly, the aura of Article 226 is wider than that of Article 32 but Article 226 should not be mixed with Article 32. Article 32 has its value and beauty as well. Nowadays whenever someone knocks on the doors of the Supreme Court under Article 32 jurisdiction, the top court does not hesitate to ask the petitioners to approach the High Court under Article 226. But there are some lucky people who get hearing under Article 32 in the Supreme Court directly. This is not a good practice at all. It disappoints the people who need timely justice. The Court should treat all petitioners equally. The people should be given a choice either to approach the Supreme Court or the High Courts as per their need.

Notably, the Constitution does not prescribe any such condition before approaching the Supreme Court under the Article 32 jurisdiction. Article 226 is not a fundamental right at all. It is a discretionary power of the High Court and the people should not be forced to give up their Article 32 remedy. This is a unique remedy that should be honoured by the top court. The High Courts are well-known for their slow disposal of cases. In many cases, people think it necessary to approach the Supreme Court directly as per the facts and circumstances of their cases. Needless to say, the Apex Court is facing a serious problem of arrears of cases which should be decided by making a good plan and increasing the working days and strength of the Court. Cutting down Article 32 jurisdiction is not a solution of this problem. It would disappoint people badly and would also undermine the faith of the people in the institution of the judiciary.

As mentioned earlier, recently in several cases the top court has discouraged the use of Article 32 jurisdiction. It is likely to affect the protection of the fundamental rights adversely during a difficult time when the personal liberties of the people are at stake. A great constitutional provision cannot be diluted like this. It should be enforced according to the letter and spirit of the constitutional scheme. Article 32 can be suspended only during the emergency with certain safeguards as provided by the 44th Constitutional Amendment Act, 1978. There is no other way to suspend this right. The people of India cannot forget the bad experience of the 1975 emergency. The Supreme Court should not repeat the ADM Jabalpur case moments. The people of India hold the Court in high esteem and the Court should always maintain this public trust. Nobody can deny the fact that it should also find out the solutions of arrears of cases. But there are ways to deal with such an issue. It should not discourage these kinds of great remedies provided in the Constitution. This is a disturbing trend for our constitutional democracy when the top court speaks in different voices on similar cases. Similar cases should be decided alike.

The Hon'ble Supreme Court is constitutionally duty-bound to hear Article 32 petitions and it cannot refuse entertaining such Article 32 applications straight away. However, the Court has full right to dismiss the petitions if such petitions lack merit but only after providing a reasonable hearing to the petitioner. The Court cannot return the people without giving them a reasonable hearing if they demand a hearing. 'Go to the High Court' should not be the norm. It can be a suggestion to the petitioner. The Court should at least hear the aggrieved persons and decide the matter as per the law. It cannot abdicate its constitutional duty of great importance. It has no justification to discourage or cut down Article 32 jurisdiction because the Court is not above the Constitution. The Court is created to administer justice in accordance with the constitutional norms. The Court cannot override the constitutional provisions. The Constitution is the supreme law of the land and all branches of the state including the Supreme Court are bound to act within the constitutional boundaries. No branch of the constitutional government including the Court can take away the fundamental rights of the people. These fundamental rights (except Articles 20 and 21) can be suspended only during a time of emergency by the presidential order. The Supreme Court has no power to suspend the fundamental rights of the people. The Court cannot amend the Constitution or dilute the constitutional provisions. It has to protect the rights of the people as per the constitutional scheme as it rightly said in the case of Romesh Thapar v. State of Madras, 1950: "This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights." This is what our great founding fathers had also envisioned about the Court when they gave us a great Constitution.

It would be apposite to cite some authorities of the Supreme Court that clearly demonstrate the significance of Article 32. A Constitution Bench of the Supreme Court, in Premchand v. Excise Commissioner, AIR 1963, SC 996, observed on this issue: "The fundamental right to move this Court can, therefore be appropriately described as the comer-stone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself "as the protector and guarantor of fundamental rights, "and should declare that "it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights." Again, in Kharak Singh v. State of U.P., AIR 1963, SC 1295, another Constitution Bench of the Supreme Court reiterated its stand in these words: "It is wholly erroneous to assume that before the jurisdiction of this Court under Art 32 could be invoked the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedies as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of this court that by State action the fundamental right of a petitioner under Art 32 has been infringed, it is not only the right but the duty of this Court to afford relief to him by passing appropriate orders in that behalf."

Let us hope that the Supreme Court does not forget these great words of our great judges who strengthened Article 32 jurisdiction. Needless to say, when someone approaches the Supreme Court under Article 32 the Court may suggest him/her to approach the High Court if he/she agrees but if the petitioner presses his petition the Court should hear him and grant him the appropriate relief if his/her petition contains merits. The Supreme Court should not force the people to give up their Article 32 right. It should be left to them either to choose Article 32 or Article 226 of the Constitution. The Supreme Court should maintain consistency in constitutional jurisprudence. Different benches of the Court should not speak differently on an important issue like Article 32. In some cases, the Court gives relief to the petitioners under Article 32 and in some other cases, the Court asks the petitioners to approach the High Court. It is very difficult to understand this practice. It certainly confuses the people. Justice should not only be done but it should also seen to be done. The Supreme Court lays down the law of the land under Article 141 of the Constitution and it should maintain consistency in its jurisprudence. There is no scope for inconsistency or selective application of constitutional provisions. The Supreme Court should protect the heart and soul of the Constitution in all situations despite the arrears of cases. Discouraging or cutting down this great remedy would give a wrong message to the people of the country and would also affect the integrity and credibility of the judicial branch. This is a difficult time when people need judicial protection from the executive excesses. Many people are languished in jail for expressing their dissenting views against the government. The judiciary is the last hope for the people and this hope should be honoured by the top court. This is why Article 32 should be promoted, protected, and preserved by the Court. There is no need to dilute or cut down this unique jurisdiction. If a petitioner makes out a case for the violation of his fundamental rights, the Supreme Court should hear him despite having an alternative remedy. The Court cannot be selective in its approach.

Views are personal.

(Author is a practicing Lawyer at the Supreme Court of India)

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