Justice Abhay Oka floated filtering Article 32 cases to tackle backlog. It’s tricky

Article 32 of the Constitution guarantees the right to directly approach the Supreme Court for fundamental rights, but a massive backlog is threatening its effectiveness.

Part III of the Constitution contains the Fundamental Rights guaranteed to all citizens of India | Image for representation| Photo: X

In the course of an insightful lecture recently, Supreme Court Justice Abhay Oka raised some compelling questions pertaining to Article 32 of the Constitution, which guarantees the right to directly approach the Supreme Court for the enforcement of one’s fundamental rights.

With a staggering pendency of 83,418 cases in the top court, Justice Oka pondered whether a filtering mechanism should be developed for writ petitions under Article 32. He mentioned the possibility of implementing “rational tests” to determine which cases under this provision should be entertained. This is an intriguing proposal and worth exploring, but first it is crucial to fully comprehend the significance of this provision.

To grasp the importance of Article 32, it is apt to recall the words of Dr BR Ambedkar during the Constituent Assembly Debate of 9 December 1948:  “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.”

Clearly, the framers of the Constitution placed Article 32 on a pedestal, and for good reason. The provision ‘guarantees’ the right to move the Supreme Court to enforce the fundamental rights conferred by the Constitution. Without an effective judicial remedy for enforcement, any declaration of rights would have remained hollow and devoid of real meaning. Therefore, Article 32 grants a broader jurisdiction to the Supreme Court of India than similarly-placed courts. It empowers the court to not only issue writs but also any other necessary directions and orders to effectively enforce fundamental rights. In one stroke, certain writs, which were hitherto subject to the whims of a legislature, became integral to the system of enforcement of fundamental rights.

In numerous subsequent constitutional cases in the ensuing two decades, the Supreme Court underscored the significance of protecting and enforcing fundamental rights to ensure they are not reduced to mere “play things of a special majority”. Subsequently, the 1970s ushered in a transformative era, with the Supreme Court adopting the novel mechanism of Public Interest Litigation (PIL) petitions under Article 32.

This paradigm shift discarded the notion that only those who were personally and directly affected by executive actions could seek redressal in courts. Consequently, this measure opened the gates of the highest court of our land to the most marginalised and needy.

However, this also has contributed to a situation where 2,912 writ petitions, 32,761 special leave petitions, and 25,228 appeals remain pending for hearing in the Supreme Court, as of 15 June 2023. Add to that the more than 60,000 letter petitions filed last year alone.

 

Is ‘filtering’ feasible?

It is worth contemplating whether a filtering mechanism for petitions under Article 32 is possible. And if so, what would this look like?

Potentially, the Supreme Court could establish criteria or tests to evaluate petitions for listing, considering factors such as urgency, the specific fundamental right violated, and the socio-economic demographic of the petitioner, or a combination of all three factors.

However, devising such criteria for Article 32 petitions presents enormous difficulties and complexities.

It is a tough task to prioritise and distinguish between cases of illegal arrest, eviction from housing, potential closure of minority educational institutions, caste-based discrimination, and bonded labour. Which among these issues is more urgent? For instance, is preserving cultural practices more pressing than preventing caste-based discrimination? Which fundamental right takes precedence and why? Should Article 32 petitions concerning privacy be prioritised over those involving illegal detention? Can the Supreme Court re-route such petitions to the high courts? These are complicated questions that need serious consideration before urgency or subject matter can be used as filtering tools.

Historically, marginalised communities have usually been at the end of the queue in accessing justice. Therefore, prioritising the socio-economic demographics of petitioners during the listing of Article 32 petitions could potentially accelerate access to justice for marginalised sections.

However, granting priority to one group over another could contravene the constitutional mandate of equal enforcement of fundamental rights to all through Article 32, irrespective of social status. After all, Article 32 is unlike any other provision. It ‘guarantees’ its protection to all, without any qualification or condition attached.

If criteria or tests for admitting petitions under Article 32 are to be developed, this should ideally happen only after addressing constitutional questions regarding the hierarchy of fundamental rights.

 

Some other ways forward

Even without a filtering mechanism, there could be alternate ways to address the pendency of cases. Some suggestions are as follows:

1. Establishing Courts of Appeals in different parts of India would relieve the burden the Supreme Court of India, allowing it to solely deal with references, disputes between the Centre and states, substantial questions of constitutional law, and Article 32 petitions.
2. Instituting special/designated benches solely tasked with hearing Article 32 petitions.
3. Exercising the power under Article 32(3) to empower alternative or newly established courts. I would call these institutions‘liberty courts’ or ‘freedom tribunals’. They would be empowered to issue necessary directions, orders, or writs for the enforcement of fundamental rights as delineated under Article 32. Even during Constituent Assembly debates, there were arguments about the unfairness of  expecting impoverished individuals, whose fundamental rights had been violated, to approach only the Supreme Court instead of the nearest available court. This argument compellingly advocates for the enforcement of fundamental rights by any court, not just the Supreme Court. Although Article 32(3) provides for such a power to be bestowed upon any other court, it is yet to be considered seriously.

Overall, the fundamental challenge lies in balancing the huge pendency without compromising on the quality of justice. While structural reforms or initiatives such as democratising access through ‘liberty courts’ offer potential solutions, it remains imperative to continue engaging meaningfully on this issue. Our goal should be to preserve the essence of Article 32 while addressing contemporary hurdles.

Kumar Ritwik is an advocate currently pursuing a judicial clerkship at the Supreme Court of India. He previously worked with the Election Commission of India and practiced before the Delhi and Patna High Courts. Views are personal. 

(Edited by Asavari Singh)