An Article of faith

Supreme Court's contrasting views on petitions under Article 32 raise the hackles of experts

Print edition : December 18, 2020

Lawyers of the District Bar Association in Nagpur protesting against the delay in the Judge B.H. Loya case in front of the District Court on December 19, 2019. In 2018, the Supreme Court transferred to itself the case involving the death of Judge Loya from the Bombay High Court. Photo: S. Sudarshan

Members of the Kerala Union of Working Journalists stage a candlelight vigil demanding the release of journalist Siddique Kappan in New Delhi on October 15. The Uttar Pradesh Police arrested Kappan and three others while they were on their way to Hathras to report on the alleged rape and murder of a Dalit girl. They were accused of having links with the Popular Front of India and its affiliate in Mathura. Photo: PTI

S.A. Bobde, Chief Justice of India. Photo: PTI

The Supreme Court’s recent decisions on petitions under Article 32 of the Constitution raises the question whether this fundamental right has been reduced to a selective remedy under the law.

ON November 16, hearing a habeas corpus petition seeking the release of the Kerala journalist Siddique Kappan, the Chief Justice of India S.A. Bobde said the court was trying to discourage petitions under Article 32. This triggered a spate of criticism from the legal community and scholars of law. On November 11, the apex court allowed a petition filed under Article 32 by Republic TV editor Arnab Goswami, and granted him interim bail. The court categorically maintained that the Supreme Court was there to protect the liberty of citizens. Justice Bobde said at the time that the right to approach the court under Article 32 was a fundamental right. “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,” he had said.

These contrasting observations made in the same week by the CJI led many to wonder whether the fundamental right of Article 32 was being reduced to a selective remedy under the law for a favoured few. Arnab Goswami was arrested in early November in a 2018 abetment to suicide case of an architect.

On November 6, Justice Bobde, while issuing a contempt notice to the Secretary of the Maharashtra Legislative Assembly for sending a letter to Arnab Goswami, allegedly intimidating him for approaching the court against the privilege notice issued by the Assembly, said: “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 have never seen an attitude like this.”
Also read: Supreme Court undermining Habeas corpus petitions 

But in Siddique Kappan’s case, the Chief Justice of India said there was a “spate of petitions” under Article 32 pending before the apex court and the court was trying to “discourage” them. Siddique was arrested by the Uttar Pradesh police on October 5while he was on his way to Hathras to report on the alleged rape and murder of a Dalit girl. He and three others were detained and charged with sedition and under the provisions of the Unlawful Activities Prevention Act (UAPA).

Senior Advocate Kapil Sibal, appearing on behalf of the Kerala Union of Working Journalists (KUWJ), pointed out that there was no concrete reason behind Kappan’s arrest. The first information report (FIR) did not name him and yet he was lodged in jail and not allowed to meet a lawyer or his family. Kapil Sibal said the circumstances were exceptional in this case. He said the court had granted bail in petitions filed under Article 32, and in this case, too, an extraordinary situation arose owing to the arrest of a journalist. But the Chief Justice of India refused to entertain the petition.

Some lawyers Frontline spoke to were of the opinion that the KUWJ was misinformed to approach the Supreme Court in this instance, and being “respectful” of the hierarchies of the courts, they should have approached the High Court first.

Said one lawyer who did not want to be named: “It is true that the Supreme Court is burdened with too many cases and it cannot go into the nitty gritty of each case. Petitioners must first go to the lower courts and once the facts of the case are well laid out, they can come to the Supreme Court.” Some other lawyers pointed out that the Supreme Court had been discerning in entertaining pleas under Article 32.
Also read: India's double standards on human rights

In 2019, in the matter of Prashant Kanojia, who was arrested for making “objectionable comments” against Uttar Pradesh Chief Minister Yogi Adityanath, the Supreme Court had ordered his immediate release when his wife Jagisha Arora approached it under Article 32. However, in the matter of the 81-year-old poet Varavara Rao, who is suffering from multiple medical conditions, his wife’s plea under Article 32 was not entertained. Solicitor General Tushar Mehta objected to the granting of bail on the grounds that every prisoner’s health was a matter of concern for the state and an order granting bail in the Varavara Rao case could make other prisoners seek relief on medical grounds. Varavara Rao was arrested in November 2018.The repeated denial of bail to him made legal observers wonder why the court had not transferred the case from the Bombay High Court to itself as it had in the case of Arnab Goswami.

Sameet Thakkar’s petition

Recently, the Supreme Court refused to entertain the petition filed by Sameet Thakkar, a Nagpur resident who was arrested from Gujarat for making “objectionable comments” on social media against Maharashtra Chief Minister Uddhav Thackeray and his son Aaditya Thackeray.

Sameet Thakkar had approached the Supreme Court under Article 32 seeking consolidation of three FIRs registered against him. He had also sought interim bail. The Chief Justice asked senior advocate Mahesh Jethmalani, who appeared for the petitioner, to approach the High Court. Jethmalani argued that Sameet Thakker was arrested despite the fact that all the charges against him were bailable offences. The CJI refused to hear Sameet Thakkar’s case even as the investigation had been completed in the case.

Mahesh Jethmalani later tweeted: “Article 32 of our Constitution is a constitutionally guaranteed right to enforce our fundamental rights. It cannot be undermined by any principle of alternative remedy in the High Court. The SC is obliged to at least hear a 32 petition: else it abdicates its constitutional duty.”

The apex court did not entertain pleas under Article 32 for the release of the Jawaharlal Nehru University (JNU) student Sharjeel Imam, the Jamia Millia Islamia students who were assaulted in the Jamia library during the protests against the Citizenship (Amendment) Act (CAA), and the paediatrician Kafeel Khan.
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The Supreme Court has in the past transferred cases from high courts to itself sometimes even without the petitioners making a request. The apex court took the case involving land use for the Central Vista project in Delhi from the Delhi High Court. In 2018, the court transferred to itself the case involving the death of Judge B.H. Loya from the Bombay High Court.

Former Supreme Court Judge, Justice (retired) Madan Lokur, while speaking in a virtual seminar on ‘defending liberties’ said that courts should be liberal when it came to dealing with petitions seeking writ of habeas corpus, especially when the case involved preventive detention.

At a seminar organised by the Delhi High Court Women Lawyers Forum and Women in Criminal Law Association, he said: “The Supreme Court, over the years, right from the 1950s onwards, has been very, very liberal in granting relief. There are very few cases where a person has not been given relief under the writ of habeas corpus. The courts have gone to the extent of saying that even if a petition for habeas corpus has been dismissed, another writ petition can be filed - may be with the same grounds, maybe with different grounds…. And that can be entertained. So it is not as if once the writ petition is dismissed, that is the end of the road. It has to be, and has always been given by the Supreme Court, a very liberal interpretation. And that is how I think it should be. The Supreme Court has also said, you don’t have to file a petition, you can send a post card…. It doesn’t have to be by the detenue, it can be by the next friend or relatives. There are various ways of invoking the jurisdiction of the court in a writ of habeas corpus.”

Provisions of Article 32

Under Article 32, an aggrieved party can approach the apex court for the enforcement and protection of their fundamental rights as guaranteed by the Constitution of India. Article 32 is a unique provision that empowers a citizen to bypass the lower courts and directly move the apex court. The rights under Article 32 cannot be amended or suspended unless the Constitution provides for it or except during a period of Emergency. Several legal scholars have opined that a right without a remedy is a meaningless formality. Therefore, the burden of enforcement of the rights guaranteed by the Constitution lies with the judiciary.

A writ is a constitutional weapon through which the High Courts or the Supreme Court can be approached for the protection of fundamental rights. It is a court order that directs individuals, officials or authorities refraining them from acting in a way that would otherwise violate someone’s fundamental rights.

There are five kinds of writs through which the Supreme Court can issue directions. Habeas corpus (an order to produce a person under unlawful detention or arrest before a judge or court), mandamus (a command to an inferior court or public official to perform a statutory duty), prohibition (an order by a superior court to prevent an inferior court from acting beyond its jurisdiction), certiorari (to review or quash an order passed by an inferior court, tribunal or quasi-judicial body) and quo warranto (an order to show by what warrant a person is holding public office).

Dr B.R. Ambedkar, who was Chairperson of the Constitution’s drafting committee, wanted a specific guarantee of fundamental rights expressly incorporated in the Constitution so that it could be enforced easily. He drafted Article 25, which later became the current Article 32.
Also read: Sorry decline of habeas corpus law

He had said: “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.”

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 Chandra Kumar reiterated 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”.

In 1999, writing in Economic & Political Weekly, Nirmalendu Bikash Rakshit said: “A mere enumeration of rights, even in the most elaborate and meticulously worded form, is not enough. What is needed, in addition to all this, is the provision for their enforcement (J.C. Johari, Indian Government and Politics, page 109). So, if and when a person feels that he is unduly deprived of any of the fundamental rights, he can, under Article 32 of our Constitution, move the Supreme Court for a legal remedy. In this sense, this Article is, really, novel one and as B.P. Gajendragadkar (Constitution of India, pages 60-62), a former Chief Justice of India, has observed, it is ‘a very distinguishing feature of the Constitution’. According to him, it is the ‘cornerstone of the democratic edifice raised by the Constitution’.”

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