Remains of the day: Exploring some ideas from ‘Article 32: History and the Future’

A musing on some of the ideas and questions emanating from the programme on Article 32 organised by The Leaflet and the Society for Constitution and Social Democracy.

ON April 15, The Leaflet, in association with the Society for Constitution and Social Democracy, organised a programme on ‘Article 32: History and the Future’ to celebrate the 134th anniversary of B.R. Ambedkar.

Two Supreme Court judges, Justices B.R. Gavai and Abhay S. Oka, delivered lectures at the event, held at the Indian Society of International Law, New Delhi.

There was also a question-answer session towards the end of the event.

All in all, the lectures by the judges and the questions by the audience raised some important points, some of which deserve a more detailed analysis.

The concept note circulated by senior advocates Indira Jaising and Anand Grover, the co-founders of The Leaflet raised three questions for discussion namely

  1. Under what circumstances does the Supreme Court entertain Article 32 petitions and when not?
  2. What are the differences between jurisdiction under Article 32 and Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure? 
  3. What explains the fact that the Supreme Court has entertained Article 32 petitions in some cases and not in other cases?

Article 32 is in itself a fundamental right that confers the right upon the citizen to approach the Supreme Court directly against infringement of their fundamental rights under Part III of the Constitution.

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Ambedkar described Article 32, i.e., the right to Constitutional remedies, “the heart and soul of the Constitution”.

Justice Oka

Justice Oka, who spoke first, candidly said that all three questions were difficult and there were no easy answers, adding that the third question was the most dangerous, making the audience laugh.

Having said that, Justice Oka explained the practical difficulties in entertaining every Article 32 petition.

He underlined that the Supreme Court of India was not only a constitutional court but also an appellate court. He then pointed out the huge amount of pendency under which the Supreme Court is reeling and said it was a major reason why in many cases the Supreme Court redirected petitioners to approach high courts for relief instead of entertaining petitions directly under Article 32.

As per the latest data available, updated till March 15, 2024, a staggering 80,200 matters are pending before the Supreme Court, of which 61,154 are civil cases and 17,046 are criminal cases.

Special leave petitions (SLPs) are the commonest pending matter before the Supreme Court, with 25,434 civil and 6,658 criminal SLPs pending.

Justice Oka said, “We are not living in an ideal world. The pendency of cases in the Supreme Court is about 80,000. It is not merely a constitutional court but an appellate court. A quarter of the cases listed on a Monday or Friday are appeals against refusal to grant bail.”

Underscoring the need for making tough choices, he added, “We must fix priorities faced with such mounting arrears.”

Justice Oka referred to a decision of a Constitution Bench in Romesh Thappar versus State of Madras, in which the court held: “Article 32 does not merely confer power on this court, as Article 226 does on the high courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction.

In that case, it would have been more appropriately placed among Articles 131 to 139 which define that jurisdiction. 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.”

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Citing a series of judgments on Article 32, Justice Oka said there is no doubt that the right under Article 32 is “absolutely absolute”.

Justice Oka also said it is a subject matter of debate and discussion whether a test should be laid down to determine when the Supreme Court can entertain petitions under Article 32 of the Constitution of India. He, however, cautioned that such a test may itself circumvent the import of Article 32.

There are prisoners who have been denied permanent remission because of no remission policy in a state. There are appeals by accused who have been incarcerated for long. But then there are businessmen also who may come with a big team of lawyers consuming time of the court and arguing that their fundamental right under Article 19(1)(g) has been violated.

Then how do we bring equality between the common convict and the businessman? Should there be some test laid down which says that only if these tests are adhered to then Article 32 can be invoked.

Thus, this is a debatable topic as to whether such a test can be laid down by the Supreme Court, thereby restricting its own power,” Justice Oka expounded.

Thus, he underscored the need for allowing judicial discretion to do justice to the peculiarities of each case.

Justice Oka added that he “takes pride” in diverse opinions in decision making which, according to him, contributed significantly to the development of India’s constitutional law.

Justice Oka also referred to a decision of the Supreme Court in P.N. Kumar And Another versus Municipal Corporation Of Delhi, in which the court put down certain factors to be taken into consideration while entertaining petitions directly in the Supreme Court.

One of the factors is that if cases that may be filed in the high courts are filed in the Supreme Court, then it would affect the initiative of the high courts. It was also said in P.N. Kumar that the Supreme Court should preserve the dignity, majesty and efficiency of the high courts, adding that the taking-over by the Supreme Court of the work which the high courts can handle may undermine the capacity and efficiency of the high courts.

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Justice Oka also wondered whether there should be dedicated Benches to hear Article 32 petitions as is the case with environmental cases that are heard by what are called the “Green Benches”. He said he had only one comment to make on the issue, “This question has to be put before the Master of the Roster.”

Assignment of cases to judges is done by the Chief Justice of the concerned high court and the Chief Justice of India in the Supreme Court in their capacity of ‘Master of the Roster’. Rosters are designed based on the case category such as writ jurisdiction, criminal matters, civil matters, service matters, etc.

After the Supreme Court’s judgment in Ashwini Kumar Upadhyay versus Union of India, many high courts have been assigning criminal cases related to sitting or former members of Parliament or assemblies (MPs and MLAs) to specific judges.

Referring to Clause 3 of Article 32, which confers powers on the Parliament to enact a law empowering any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Article 32, Justice Oka said that could be a partial solution to the problem but “it is for for the Parliament to decide”.

The Constitution also confers power upon the high courts through Article 226 to issue certain writs, directions and Orders to any person or authority, including, in the appropriate cases, any government, for the enforcement of any of the rights conferred by Part III and for any other purpose.

The jurisdiction of the high court under Article 226 is wider than the jurisdiction of the Supreme Court under Article 32. While the former is also available in cases of infringement of any legal rights, the latter is available only if there is a violation of fundamental rights guaranteed by Part III of the Constitution.

Justice Oka called for a debate on the enforcement of fundamental rights by the courts and how far they have been successful in protecting fundamental rights.

Responding to a question about whether a “polyvocal” Supreme Court can devise a method to deal with issues of personal liberty in a uniform fashion, Justice Oka said that diversity was needed when it comes to judicial decisions because it helped the judiciary “evolve” its jurisprudence.

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He referred to the subsequent overruling of the judgments in A.K. Gopalan versus State of Madras and ADM Jabalpur, cases in which the court had taken a very narrow view of fundamental rights.

Justice Gavai 

Speaking on the origin of Article 32, Justice Gavai credited it to Dr B.R Ambedkar. He referred to a speech made by Dr Ambedkar on December 17, 1946 on Objectives Resolution in which he said: “The resolution suffers from certain other lacuna. I find that this part of the resolution, although it enunciates certain rights, does not speak of remedies.

All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded.” It was this speech, said Justice Gavai, which led to the enactment of Article 32.

Justice Gavai said that in the last 70 years, Article 32 and Article 226 have been invoked by the Supreme Court and the high courts respectively to provide social and economic justice.

He listed out a series of judgments decided by the Supreme Court under Article 32 to expand the fundamental rights of citizens in the Constitution to include the right to education, food, potable water, a clean environment and dignity of life under Article 21.

Justice Gavai referred to the Supreme Court entertaining a petition under Article 32 in Vineet Narain versus Union of India wherein it issued a slew of directions which included the manner and working of the Central Bureau of Investigation (CBI) director to ensure the independence of the agency.

He also referred to a decision in Bandhua Mukti Morcha versus Union of India in which the court came to the rescue of bonded labourers.

Justice Gavai said that the Parliament had also enacted various laws to further social and economic justice. He cited examples of the Protection of Civil Rights Act, 1955 and labour laws.

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Hailing Dr Ambedkar for enabling the marginalised communities to find their voice and make a mark in society, Justice Gavai said it was only because of Ambedkar that he could rise to become a judge of the Supreme Court.

It is only because of Dr B.R. Ambedkar that a person like me who studied in a semi-slum area at a municipal school could reach this position,” said Justice Gavai.

Referring to the inaction of the Supreme Court to act on the habeas corpus petitions filed by the leaders from Jammu and Kashmir in the aftermath of the termination of the special autonomous status guaranteed to the state under Article 370, a question was put to the judges from the audience as to how the Supreme Court would deal with the issue of personal liberty.

Justice Gavai chose not to answer the issue, adding that he would comment on “pending matters”.

The Leaflet