THE NEED FOR CLARITY ON JURISDICTION OF THE SUPREME COURT UNDER ARTICLE 32 OF THE CONSTITUTION
Refusal of the Supreme Court to entertain the petition of Sh. Hemant Soren has again brought to light the issue of scope of jurisdiction of the Supreme Court under Article 32 of the Constitution. The Constitution has granted several Fundamental Rights to citizens under Part III. Importance given to the Fundamental Rights can be appreciated from the fact that these rights cannot be abridged by State neither law inconsistent with the Fundamental Rights can be passed by Parliament or State Legislatures.
The Constitution has not only granted Fundamental Rights to citizens but also has granted right to every citizen to approach the Supreme Court under Article 32 for enforcement of these rights. Dr. Ambedkar described Article 32 as heart and soul of the Constitution. In fact, the words used by the Constitution is unequivocal and emphatic and needs reproduction herein.
32. Remedies for enforcement of rights conferred by this Part:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
It is evident from reading of Article 32 that the Constitution guarantees right to move to the Supreme Court for enforcement of Fundamental Rights. But it seems that even this constitutional guarantee has been lost in the procedural cobwebs of the judiciary.
RIGHT TO APPROACH SUPREME COURT ITSELF A FUNDAMENTAL RIGHT
The Supreme Court in Romesh Thapar Vs. State of Madras (1950 AIR 124 ) has held that right to approach the Supreme Court is “guaranteed” and is itself a fundamental right. The relevant para of the said judgment is as under :
We are of the opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this court as article 226 does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides “a guaranteed” remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.
THE NEED OF CLARITY
In recent years the Supreme Court has entertained certain petitions under Article 32 of the Constititon while certain petitions have been refused. The decision to entertain or not to entertain such petition depends on the facts and circumstance of the case and discretion of the Supreme Court.
This is not an ideal situation for litigants who want to approach the Supreme Court for enforcement of their Fundamental Rights. In such a scenario only those litigants who have sufficient resources to take a chance to approach the Supreme Court can approach the Supreme Court.
Any remedy under law should not be based on chance and uncertainty. There is need for detailed guidelines on this aspect so that a citizen can approach the Supreme Court under Article 32 jurisdiction with certainty.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.