Right way: Article 32 petitions
When the Chief Justice of India expresses the Supreme Court’s decision to discourage petitions under Article 32, the reason must be weighty. For Article 32, which B.R. Ambedkar felt was the Constitution’s ‘soul’ and ‘heart’, allows citizens to approach the Supreme Court with appropriate proceedings in order to have enforced the fundamental rights enshrined in the Constitution. This Article, ensuring the right to constitutional remedies, enshrines a fundamental right too, like the right to life and personal liberty. Its importance cannot be emphasized enough at a time when dissidents and protesters are being arrested and bail is rare. The Supreme Court can always ask why petitioners should approach it under Article 32 without going first to high courts for the enforcement of rights under Article 226, a constitutional right. The managing director of a television channel who was given interim bail was an Article 32 petitioner; he had approached the high court first. The Supreme Court reportedly said in an allied context that deterring a citizen from approaching it under Article 32 was a serious interference in the administration of justice. It is in response to the petitions of a journalist arrested on his way to report on the Hathras rape and another person arrested for alleged defamation of the Maharashtra chief minister that the Supreme Court expressed its wish to discourage Article 32 petitions.
If everyone went to the Supreme Court under Article 32 in this season of continuing arrests, the court would be hard pressed for time to hear other cases. Yet it is also true that in high courts hearings are delayed because of piles of waiting cases. When the issue is of a violation of the right to personal liberty, the importance of which the Supreme Court reiterated recently, delay makes the petition meaningless. That the Supreme Court has found a spate of Article 32 petitions lately is, perhaps, a sign of the times. It would be reassuring to know that the Supreme Court, the supreme guarantor of fundamental rights, would consider each case in order to decide which needs to be heard directly, and that not all Article 32 petitions would be discouraged. The right under that Article cannot be suspended unless there is an Emergency or “except as otherwise provided for” by the Constitution. Neither has happened yet.