Fundamental rights must be enforced

In this guest post, Shrutanjay Bhardwaj argues that a major challenge facing our Constitution is the Supreme Court’s aversion to Article 32 petitions. He discusses the evolution of this trend and recommends a way out.

“It is the remedy that makes a right real. If there is no remedy, there is no right of all, and I am therefore not prepared to burden the Constitution with a number of pious declarations which may sound as glittering generalities but for which the Constitution makes no provision by way of a remedy. It is much better to be limited in the scope of our rights and to make them real by enunciating remedies than to have a lot of pious wishes embodied in the Constitution.”
-Dr. Ambedkar in the Constituent Assembly on 9th December 1948

Dr. Ambedkar was referring to Article 32 of the Constitution, which says: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” The use of the word “guarantee” is significant. The word does not find mention in any other fundamental right-related provision. This guarantee, as one commentator remarks, is “a solemn promise made by our founding fathers more than 60 years ago” which “allows no exception and gives no quarter”; nobody has the right to breach this guarantee, “not even the Supreme Court”.

Yet, as many have lamented, fundamental rights petitions—and indeed, even other matters involving constitutional questions—are not a priority for the Court today. The Court has failed to decide several constitutional questions pending before it: the Article 370 petitions, the Electoral Bonds challenge, the CAA challenge, the Sabarimala Reference, etc. Its track record in human rights cases and habeas corpus cases is marred by abysmal delays.

Of the many challenges the Constitution faces today, the foremost is the Supreme Court’s aversion to Article 32 petitions. The Supreme Court feels that such petitioners must first approach the High Court under Article 226, because High Courts also have the power to redress rights violations. Consequently, Article 32 petitions are routinely dismissed in the Supreme Court “with liberty” to approach the High Court under Article 226. Former Chief Justice Sharad Bobde had reportedly remarked that judges of the Supreme Court are “trying to discourage Article 32 petitions”.

All this overlooks the fact that the Supreme Court’s primary function is to decide Article 32 petitions and interpret the Constitution. Dr. Ambedkar had famously said that Article 32 is the Constitution’s “heart” and “soul”. Many others in the Constituent Assembly agreed, remarking that fundamental rights would mean nothing without effective redressal at the Supreme Court level. When the Supreme Court was inaugurated, ‘The Hindu’ carried a full-page article on 29 January 1950 describing what the Court will do for the newly-independent India—”guardian of liberty”, “ensuring fundamental rights”, and “interpreting the Constitution” among others. While deciding one of its earliest Article 32 petitions in 1950, a 6-judge bench of the Supreme Court rejected the argument that the petitioner should be asked to first approach the High Court. The Court said it has been “constituted the protector and guarantor of fundamental rights”, and so it “cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.

But the Court seems to have changed its approach in the mid-late 1980s. Of course, the Supreme Court has an excuse. That is the huge backlog of other cases before it. Most of those cases are “Special Leave Petitions” filed under Article 136. Contrary to practice, such petitions are meant to be entertained rarely. The Supreme Court was never meant to be a court of appeal. As Justice Bhagwati had once remarked: “It is not every case where the apex court finds that some injustice has been done that it would grant special leave and interfere. That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate. We must realise that in the vast majority of cases the High Courts must become final even if they are wrong.” But legislators and judges have since ignored this warning, prompting comments that the Supreme Court has in fact become a court of appeal.

Perhaps we should take seriously what Justice Bhagwati suggested next: the setting up of a National Court of Appeal, allowing the Supreme Court to restrict itself to “questions of constitutional law and public law”. In 1984, the Law Commission of India gave a Report titled “Constitutional Division within the Supreme Court”, suggesting that the Court should be split up into a constitutional side and an appellate side. A similar suggestion came in 2009 in a Report titled “Need for division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai”. Former Attorney-General K.K. Venugopal has repeatedly demanded restoration of the Supreme Court’s status as a Constitutional Court.

It is time we took these suggestions seriously. The Supreme Court must spring back to being the sentinel on the qui vive that it once was. Former Chief Justice UU Lalit and present Chief Justice DY Chandrachud have taken some welcome steps towards reduction of backlog and giving primacy to deciding constitutional questions (see here and here). One hopes this zeal will continue.

Views are personal.

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