"We are trying to discourage Article 32 petitions," the Chief Justice of India SA Bobde recently told senior advocate Kapil Sibal who was representing Kerala journalist Siddique Kappan arrested by the Uttar Pradesh police under anti-terror charges.
The CJI said that the bench was not commenting on the merits of the plea but cited a "spate of petitions under Article 32" as a reason for doing so advising Kappan's counsels to move the Allahabad High Court for relief.
This is in stark contrast to the case of Republic TV Editor-in-Chief Arnab Goswami where the top court constituted a special vacation bench to adjudicate on a plea filed under the same Article 32.
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The Soul of the Constitution: BR Ambedkar
Article 32 forms Part III of the Constitution of India which gives people the right to move the Supreme Court seeking enforcement and protection of their fundamental rights. The rights under Article 32 cannot be amended; cannot be suspended unless the Constitution provides for it; empowers a citizen to bypass the lower courts and directly move the Supreme Court.
Article 32 ensures the Supreme Court as the guarantor as well as the protector of fundamental rights. "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 realized its importance," Dr. Babasaheb Ambedkar, the chairperson of the Constitution's drafting committee had said.
In 1986, a five-judge Constitution bench in S.P. Sampath Kumar observed that the powers of the apex court under Article 32 was part of the Constitution's basic structure. In 1997, a seven-judge Constitution bench in L. Chandrakumar observed that the jurisdiction conferred upon the Supreme Court under Article 32 of the Constitution was an essential and integral feature and "is part of the inviolable basic structure of our Constitution". This verdict reiterated Chief Justice of India PB Gajendragadkar's observation in a special reference case where he said that the judicial power conferred on the High Courts and this Court was "meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case."
Power of Article 32
Article 32 confers the power of writ jurisdiction on the apex court to enforce and protect fundamental rights. A Writ is simply a tool or a court order that directs individuals, officials or concerned authorities refraining them from acting in a way that would otherwise violate someone's fundamental rights.
The Supreme Court has the power to issue directions or orders under five writs:
Habeas corpus: A writ under Habeas Corpus—a Latin term that literally means "you have the body"—"requires a person under arrest of illegal detention to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention".
Mandamus: A writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.
Prohibition: A writ of prohibition is a command to prevent, forbid, stop an order passed by a lower court or a tribunal that is believed to have exceeded its jurisdiction or acting in a manner which is contrary to the rules of natural justice.
Certiorari: The SC/HC can issue a writ of certiorari—which means "to be certified" to quash an order passed by an inferior court, tribunal or quasi-judicial authority.
Quo warranto: A writ of quo warranto—which means "by what warrant" questions the legality of a claim made by a person or a public office. A Quo Warranto writ restrains a person or authority to act in a manner they are not entitled to and thus prevents the usurpation or undue assumption of a public office. This writ is applicable to the public offices only and private entities.
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A tale of two journalists
Two recent cases have highlighted the discrepancy with which the Supreme Court deals with petitions filed under Article 32. Even as Kappan failed to get relief under his habeas corpus plea, the top court reinforced its belief in the sanctity of Article 32 in Republic Editor-in-Chief Arnab Goswami's case. Goswami, who was arrested by the Maharashtra police in a two-year-old abetment to suicide charge, was granted interim bail on November 11 on filing a habeas corpus plea. Justice DY Chandrachud who led the special vacation bench had expressed his concern over deprivation of one's personal liberty and observed that if the court did not "intervene in this case today", then it would be "travelling down a path of destruction".
In a different but connected matter, the top court issued a showcause notice to an assistant secretary with the Maharashtra legislative assembly seeking an explanation on why it shouldn't initiate contempt proceedings against him for sending a letter that was allegedly meant to "intimidate" Goswami for approaching the SC challenging the alleged breach of privilege motion.
"We don't see that any authority in the country can penalise anybody for coming to this court. What is Article 32 meant for? How can this officer say so? I have never seen a letter like this," said CJI Bobde had said a fortnight ago.
CJI Bobde's observation in Kappan's case has invited many comments and observations. Advocate Dushyant said this meant the "CJI is discouraging access to justice," while Justice Madan Lokur, retired Supreme Court judge said, "the Supreme Court is attempting to off-load some of its work."
Dushyant told BOOM: "It (top court) is entertaining (Article) 32 petitions when it feels like it and now 'discouraging' them when it doesn't want to. It isn't surprising that the SC is being accused of class bias—the rich and the powerful are granted the full protection of the constitution while others aren't."
Commenting on the caseload, Justice Lokur said, "It is true that every case should not come to the Supreme Court, but if a litigant chooses to approach the Supreme Court under Article 32 in a matter of personal liberty, he/she should not be relegated to the High Court."
"Unfortunately, some publicity-seeking petitioners approach the Supreme Court at the drop of a hat and unnecessarily burden the existing docket," Justice Lokur added. "Such litigants should be discouraged. In other cases where there could be a dispute on the correctness of facts, it would be more appropriate to have a decision of the High Court under Article 226 of the Constitution, since the jurisdiction of the High Court is more expansive than of the Supreme Court. Access to justice must be understood and appreciated in a reasonable manner."
"Article 32 gives a citizen the right to approach the court, but that doesn't mean the court had to deal with it," senior advocate Sanjay Hegde reasoned. "IF the court has efficacious remedies, they may go with it. But this is possible only if the High Court is efficacious," he added.
"Not just Kappan, the students from Jamia (who were assaulted in the Jamia library during the anti-CAA stir), and paediatrician Kafeel Khan was also asked to go to the high court," Hedge added.
"So here there is institutional solidarity. But there must be a realistic appreciation of which institution is capable of performance, he added. "Rules to petition under Article 32 must be clearly defined and applicable to all. It cannot be in terms of a beauty contest," Hedge told BOOM.
Article 32 and the Emergency
In 1976, the five-judge bench in the historic ADM Jabalpur case aka knows as the habeas corpus case ruled provisions of Article 32 would remain suspended during a national emergency. This prevented citizens from moving the top court seeking enforcement or protection of their fundamental rights.
Justice HR Khanna was the sole dissenter in the ADM Jabalpur case. In his dissenting opinion, Justice Khanna observed: "The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive… What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute… Detention without trial is an anathema to all those who love personal liberty."
Two years later, the newly elected Janata Party passed the 44th Amendment to "restore the Constitution to the condition it was in before the Emergency". Overruling the top court's verdict, the amendment stated that changes to the Constitution's basic structure could only be done by way of a referendum with the participation of at least 51 per cent of the electorate.
"Unlike in 1975, it is no longer possible for the prime minister to unilaterally take a decision about the proclamation of an emergency without any written explanation," the amendment had said. However, the 44th Amendment allowed the president—under Article 359—to suspend a citizens' right to move court seeking enforcement of fundamental rights during a national emergency but made exceptions for Article 20 (protection for those convicted under offences) and 21 (right to life and liberty). At the same time, Article 359 was also amended to allow citizens to file habeas corpus writs during an emergency.
41-years later, Justice DY Chandrachud in the landmark 2017 KS Puttaswamy verdict overruled his father YV Chandrachud's verdict in the ADM Jabalpur case observing it was "seriously flawed". In the Puttaswamy judgement, Chandrachud junior wrote: "A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these most precious rights."