Justice can’t be selective: CJI Bobde is both right and wrong on Article 32

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November 19, 2020 5:45 AM

SC needs to keep in mind that while lower courts should be petitioned first, there is a big pendency that delays matters; and to the extent this means matters get delayed, this delays justice for those accused of a crime.

The CJI’s statement that SC was trying to “discourage Article 32” petitions was correct to the extent that if all petitioners appeal to SC before approaching the high courts, SC will have little time to deal with other matters. (File photo: IE)

Chief Justice of India SA Bobde’s observations at the hearing of a plea for the release of Siddique Kappan, the Malayali journalist arrested by the Uttar Pradesh government while on his way to report on the alleged rape and death of a Dalit girl, has stirred up a hornet’s nest.

The Supreme Court (SC) bench comprising CJI Bobde, and Justices AS Bopanna & V Subramanian was right in asking Kappan’s lawyers why they had not approached the High Court for bail and, instead, petitioned SC under Article 32. Article 32, or the fundamental right to Constitutional remedies, protects the right of a person to approach the constitutional courts like SC and various high courts, against the violation of any of the other fundamental rights; hardly surprising, then, that BR Ambedkar termed it the “heart and soul” of the Constitution.

The CJI’s statement that SC was trying to “discourage Article 32” petitions was correct to the extent that if all petitioners appeal to SC before approaching the high courts, SC will have little time to deal with other matters. That said, SC needs to keep in mind that while lower courts should be petitioned first, there is a big pendency that delays matters; and to the extent this means matters get delayed, this delays justice for those accused of a crime.

There are now more than 4.1 crore matters pending at the lower courts and the High Courts—while the SC has 63,000 pending cases. As this newspaper has pointed out earlier, the high number of pending cases—exacerbated by the pandemic and the various restrictions on the normal functioning of the courts—can be attributed to the chronic inadequacy of judiciary strength, apart from slow uptake of technological solutions (much of which were announced under the e-Courts mission mode programme of the National e-Governance Plan). Against a sanctioned strength of 1,079 judges, the High Courts have 673, while similarly, significant shortfall plagues the lower judiciary. No wonder, then, nearly a fifth of the cases pending in the lower courts have been in the balance for over five years.

This has resulted in a Kappan remaining jailed for months; he has been in prison since October 5, under the Unlawful Activities (Prevention) Act that likely has the most draconian incarceration provisions that can be invoked under Indian Law. Indeed, there are many prominent citizens (lawyer Sudha Bharadwaj, for instance) and ordinary ones languishing in jail as the due process translates into an undue delay. Also, the SC can’t be selective about the application of Article 32; it heard Republic TV’s Arnab Goswami’s plea under the same article though, it is true, Goswami approached the high court first. No matter how exasperated the CJI was with the spate of Article 32 representations, he has to keep in mind that the only situation in which the rights flowing from Article 32 ceases is if there is an Emergency or the Constitution is itself amended to allow this.

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