On June 27, while taking up the petition filed under Article 32 of the Indian Constitution by the Eknath Shinde group of the Shiv Sena that is at loggerheads with the Uddhav Thackeray group, the Supreme Court asked its counsel why the petitioners didn’t approach the Bombay High Court under Article 226 of the Constitution instead. The learned Counsel for the petitioners Neeraj Kaul replied that they feared for their lives and hence chose to seek redress from the apex court itself.
To be sure, veiled and direct threats have been sent out to the rebels holed up in a Guwahati hotel, with Shiv Sena spokesperson Sanjay Raut mincing no words. But the honourable Supreme Court would have seen through the ostensible reason and found it hollow, because the petitioners admittedly did not personally turn up before the apex court either. In such matters, indeed the courts do not insist upon the personal appearance of the petitioners so long as their counsel is empowered to speak for them. In the event, had the same legal team approached the Bombay High Court on behalf of the Shinde group, no harm would have befallen their clients. Be that as it may.
The truth is, human tendency is to hedge one’s bets. When a real or perceived superior remedy is available why should I waste my amenities on the second best, is the logical reasoning especially when money is not a constraint. Moreover, a High Court order is appealable by the side not satisfied with it whereas normally there is finality and certainty to a SC verdict. Let us face it. Article 32 by itself is a fundamental right – right to constitutional remedies – whereas Article 226 is not a fundamental right. Article 32 prevails over Article 226, period. (Article 226 is a Constitutional right that empowers a High Court to issue writs, such as habeas corpus etc.)
It is not as if the apex court is not aware of this tendency to hedge one’s bets or, to put it more crudely, resort to forum shopping, so to speak. In November 2020, a Supreme Court Bench headed by Chief Justice of India S A Bobde observed that it was “trying to discourage” individuals from filing petitions under Article 32 of the Constitution. The observation came during the hearing of a petition seeking the release of journalist Siddique Kappan, who was arrested with three others while on their way to Hathras, Uttar Pradesh, to report on an alleged gangrape and murder.
But it seems to be disinclined to make a guideline for this purpose lest the whole thing is cast in stone, whereas the Constitution makers hailed Article 32 as the most fundamental of the fundamental rights and thereby impliedly made it the saviour of people from authoritarian highhandedness and whims. That they did so without saying in so many words is clearly discernible from the following extract from the Constituent Assembly debates:
During the Constituent Assembly debates in December 1948, a discussion on this fundamental right (in the draft, it is referred to as Article 25), Dr B R Ambedkar had said, “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…”
Dr Ambedkar was referring to Article 32. That he was the architect of the Indian Constitution has never been seriously challenged. So, he might very well have spoken for the entire Constituent Assembly.
While the apex court has not precipitated the matter by making a rigid code or guideline, it has been asking, wherever warranted, petitioners under Article 32 to seek remedy from the jurisdictional High Court. But then this approach, flexible and soft as it is, has its own downside – reducing the whole thing to be decided case by case with its implications of possible bending of rules for right people with right connections at the bureaucratic level for the right price. To its credit, the Supreme Court has also been trying to discourage private interest litigations masquerading as PILs without rocking the boat too much, but at the same time punishing the zealots with ulterior motives suitably. Be that as it may, again.
The Supreme Court however has not been left to choose the soft or flexible approach in matters where statutory hierarchy of appeals are clearly laid down. In income tax matters, appeals from the orders of the assessing officers lie with Commissioner (appeals) and from him to the Income Tax Appellate Tribunal (ITAT) which is the ultimate fact-finding authority. On issues of law, appeals lie from ITAT to the High Court and if still dissatisfied to the Apex Court. In tax matters especially when large amounts are at stake, the tendency is to approach the HC with a petition under article 226 alleging giving go-by to the principles of natural justice by the tax officials. The SC has denounced this tendency in a catena of cases and recently in Radha Krishan Industries v. State of Himachal Pradesh placing reliance on and reiterating its earlier verdicts in Whirlpool Corporation vs Registrar of Trade Marks, Mumbai and Harbanslal Sahnia vs Indian Oil Corp. Ltd.
The leitmotif of all these verdicts is the writ jurisdiction of the High Court under Article 226 cannot be trifled with, especially in the face of a statutory remedy or hierarchy of appeals. But that does not mean the writ courts would remain mute spectators when highhandedness and principles of natural justice are cast asunder or writ large on the facts of the case.
While the SC has come to the rescue of HCs by laying down in categorical terms that exhaustion of statutory remedies is the prerequisite for knocking at the doors of the HC with writ petition under Article 226, it is perhaps time for Parliament to help the apex court by suitably amending Article 32 after wide-ranging consultations, so that it is not flooded with direct petitions under Article 32 at the drop of a hat.
The author is a freelance columnist for various publications and writes on economics, business, legal, and taxation issues.
