What is Article 32 & Can SC ‘Discourage’ Petitions Under It?

CJI Bobde says he wants to ‘discourage’ Article 32 petitions. Here’s what it allows, and why this may be impossible.

CJI SA Bobde has said that the Supreme Court is trying to discourage Article 32 petitions.

(Photo: Aroop Mishra/The Quint)

Chief Justice of India SA Bobde stirred up a controversy last week when he made an oral observation while hearing Kerala journalist Siddique Kappan’s habeas corpus plea, that the Supreme Court was “trying to discourage Article 32 petitions”.

The CJI suggested that the request by the Kerala Union of Working Journalists should have gone to the relevant high court instead of the apex court, a suggestion he made again that day in the Sameet Thakkar case.

He even repeated the comments the next day during another writ petition filed under Article 32 of the Constitution, saying, “We are trying to cut down the Article 32 jurisdiction, we do not appreciate this.”

Interestingly, just a few weeks earlier, CJI Bobde had issued a contempt notice to the Assistant Secretary of the Maharashtra Legislative Assembly for a notice sent by him to Republic TV’s Arnab Goswami, and during the hearing had said that the right of a citizen to approach the apex court is a fundamental right under Article 32 of the Constitution.

“There is no doubt that if a citizen of India is deterred in any way from moving the court in exercise of his right under Article 32, it would amount to a serious interference in the administration of justice in the country,” the CJI was reported to have said.

So what is Article 32 of the Constitution? Why does CJI Bobde have a problem with (some) petitions filed under it? And can the Supreme Court actually ‘discourage’ the invocation of this provision?

ARTICLE 32: THE 'HEART & SOUL' OF THE CONSTITUTION

Article 32 is one of the fundamental rights in Part III of the Constitution of India, which guarantees the right to move the Supreme Court for the enforcement of all the fundamental rights, including the right to equality (Article 14), the right against discrimination (Article 15), the right to freedom (Article 19) and the right to life and personal liberty (Article 21).

The right under Article 32 is available to anyone whose rights are being violated, not just citizens – the distinction is important because, for instance, while the right to freedom of speech in Article 19(1)(a) is provided to citizens, the right to life and personal liberty is guaranteed to all persons in India.

If a person’s fundamental rights are being violated – for instance because of illegal detention by the government – they (or someone on their behalf) can approach the Supreme Court for relief under Article 32.

The apex court can then issue directions or orders or writs to ensure that the detainee’s fundamental rights are protected – in that case likely using the writ of habeas corpus to have the person produced before them, and the reasons and legality for their detention examined.

There are other writs that can be invoked by the judges, such as that of mandamus (a direction to an official authority to take some specific action), prohibition, quo warranto (asking for the authority on the basis of which someone is exercising power), and certiorari (review of a decision of a lower court/tribunal).

Because Article 32 is what makes the fundamental rights not just some words on paper, but something enforceable, Dr BR Ambedkar, the man known as the Father of the Indian Constitution for his role as chairman of its drafting committee, considered it the most important provision in the whole document.

“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 BR Ambedkar, Constituent Assembly Debates, December 9, 1948, Vol. VII, p. 953

The right to approach the Supreme Court under Article 32 can only be suspended in times of an Emergency – and even then, not when it comes to the right to life and personal liberty.

HOW HAS THE SUPREME COURT PREVIOUSLY VIEWED THE RIGHT UNDER ARTICLE 32?

Ever since the Constitution came into force, Article 32 has been invoked for protection of fundamental rights. Just a few months later it was used by political prisoner AK Gopalan to seek his liberty (though this was denied), for instance.

The court also clarified that Article 32 was part of the Basic Structure of the Constitution in multiple cases, which means it cannot be removed or altered by regular constitutional amendments.

Over the years, major cases dealing with all the various fundamental rights have been taken to the apex court under Article 32 of the Constitution, including famous cases on the right to freedom of speech (such as the Sakal Papers case) and personal liberty (Maneka Gandhi’s case).

The famous Vishakha vs State of Rajasthan judgment of the court that saw the first guidelines against sexual harassment at the workplace was also based on an Article 32 writ petition to the apex court.

After the development of Public Interest Litigation (PIL) jurisprudence in the 1980s, Article 32 has also formed the basis for petitions for public welfare and interest where the petitioner themselves has not necessarily individually suffered a violation of their fundamental rights.

This has included the famous MC Mehta cases relating to environment protection, and cases on protection of children’s rights.

WHY DOES THE SUPREME COURT WANT TO DISCOURAGE ARTICLE 32 PETITIONS NOW???

There have been concerns for some time over the overburdening of the Supreme Court in hearing various matters, especially since the advent of the PIL, and that the pendency rates there need to be addressed by reducing the number of cases it hears when there is an alternative remedy available.

In 1987, in the case of PN Kumar vs Municipal Corporation of Delhi, for instance, the apex court dismissed a petition under Article 32 and urged the petitioner to go to the relevant high court instead, as

1. The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution.
2. The relief prayed for in the petition is one which may be granted by the High Court and any of the parties who are dissatisfied with the judgment of the High Court can approach this Court by way of an appeal.

The Supreme Court’s guidelines on filing of PILs also state that if a PIL is filed which can be dealt with by the high courts, it should be sent there instead.

The high courts also have the power to enforce protection of fundamental rights under Article 226 of the Constitution, including the same power to issue directions and writs. (However, while it is interesting to note that the apex court viewed the high courts’ powers as wider in 1987, at this time, the Supreme Court’s ability under Article 142 to pass any orders required to do justice has expanded its power beyond what the high courts can do.)

As a result, as pendency at the Supreme Court has kept increasing, judges at the court have often suggested to petitioners that they should approach the relevant high court first, and then come to the Supreme Court on appeal against the high court’s judgment if required (or then file an Article 32 petition).

Therefore, the comments by CJI Bobde last week are not exactly new. With many frivolous and irrelevant petitions filed in the apex court as well, the idea of discouraging huge numbers of Article 32 petitions also has a certain logic.

BUT CAN THE COURT ACTUALLY DISCOURAGE ARTICLE 32 PETITIONS?

In 1950 itself, the Advocate General of Madras raised a preliminary objection to an Article 32 petition filed by Romesh Thappar, the editor of a Bombay-based journal which was being banned in Madras.

The Advocate General argued before the court that as a matter of ordinary procedure, Thappar should have first gone to the Madras High Court under Article 226 and only then approached the court under Article 32.

He pointed to how the general procedure for appeals in the courts functioned where one first had to exhaust lower court remedies, and also argued that in the USA, for instance, the US Supreme Court wouldn’t normally hear matters until they had first been taken to one of the lower federal/state courts.

The Supreme Court, however, rejected this argument and held that:

“Article 32 provides a “guaranteed” remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. 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. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.”

Notwithstanding the decision in 1987 referred to earlier (where the parties agreed to the court’s suggestion), this was still the settled law on point for several decades.

In 2003, however, in Union of India vs Paul Manickam, the apex court held that if Article 32 was being invoked to approach the court directly, “it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court.”

If the petitioner fails to satisfy why they haven’t approached the high court first, then Justice Pasayat held that “filing of petition in such matters directly under Article 32 of the Constitution is to be discouraged.”

However, if this is the reason that CJI Bobde is saying he wishes to ‘discourage’ Article 32 petitions, this may not be the strongest of grounds. As advocate Prasanna S has pointed out in a recent column for Live Law, the Paul Manickam case hadn’t even been filed under Article 32 of the Constitution and was in fact an appeal against the decision of the Madras High Court.

Moreover, in that judgment, the Supreme Court did not actually offer any reasons as to why it was disagreeing with the precedent set down in Romesh Thappar and since, which had said there was no cause to discourage Article 32 petitions as this was a fundamental right, not some largesse of the State. The Constitution does not specify that a person has to first go to the high court and only then approach the Supreme Court, so if the court is going to take this view, it has to specify legally valid reasons for doing so.

Given the practical considerations for why this might by a useful approach, it is important for the Supreme Court to provide some clarity on the issue, and also maintain consistency on it.

If Article 32 petitions are to be discouraged when Article 226 can be invoked, this should be the case for every petitioner, and if there are a set of guidelines on what will be considered valid reasons to come to the top court directly, these should also then be clear and consistently applied in all cases.

Failure to do so will only deepen the confusion over this whole situation.