Guest Post: Hemant Soren and the Supreme Court’s “Go to the HC” Jurisprudence

[This is a guest post by Rushil Batra.]

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Of late, the Supreme Court has been asking Petitioners to approach the High Court under Article 226 before they approach the Supreme Court directly under Article 32 for violation of fundamental rights. The latest victim of this ‘Go to the HC’ jurisprudence has been Hemant Soren – a sitting chief minister, who was arrested by the Enforcement Directorate [“ED”] and denied urgent relief by the Court. I refer to such cases collectively as ‘jurisprudence’ in itself because previous Chief Justices have highlighted how the Court is actively trying to ‘discourage’ such cases.

Practically the Court may have valid logistical and pragmatic concerns of petitioners bypassing the High Courts. However, the problem with that approach is that the text of the Constitution simply does not give any discretion to the Court to deny considering the case under Article 32. The Court, which otherwise seems to highlight the importance of separation of powers, cannot dilute a right ‘guaranteed’ to citizens based on pragmatic considerations

Thus, this post first analyses the bare text of the Constitution and argues that the Court cannot deny relief to petitioners even if they approach the SC directly. Second, it highlights the inconsistent approach of the Court in selectively sending some cases back to the HC while hearing others that happen to have political undertones. Lastly, it argues that the Court’s solution of ‘discouraging’ Article 32 cases may not align with the problem of backlog that it aims to solve.  

Back to the Basics: A Textual Reading of Article 32

Article 32 [(1) and (4)] reads as follows:

 “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution” (emphasis mine)

A plain reading of the text highlights how enforcement of fundamental rights under Article 32 is ‘guaranteed’ and cannot be suspended except as provided by the Constitution itself. Interestingly, such words as rights being ‘guaranteed’ are missing from 226. On a more philosophical level, Article 32 implicitly highlights what Henry Shue has argued, and what needs to be remembered now more than ever: that rights are worthless if they are not ‘socially guaranteed’ and lack enforcement.

The general response of the Court has been – as was in Soren’s case – that this would lead to opening up the floodgates where petitioners would bypass the High Courts and the SC would have to deal with more cases even as they deal with an already exploding docket. The idea is that High Courts are also ‘Constitutional Courts’ and have the power to deal with issues concerning fundamental rights, and thus the petitioners must exhaust all ‘alternative’ remedies before reaching the Court of last resort. In other words, the argument is one of public policy. The question is whether public policy considerations like these can be brought in when the text of the Constitution is manifestly clear on it.

Upendra Baxi has argued that the Supreme Court has no discretion in providing citizens with relief if a valid case is made out. Baxi argues that even if one assumes that the Court is right on public policy considerations, the question is whether the text of the Constitution allows it to import such considerations. The answer is a resounding no. Thus, the Court does not merely have the power to allow people to ‘move’ the Court – it also has a constitutional duty (i.e., a power coupled with a duty) to decide on such claims. Even if one argues that the writ is a discretionary remedy, the Court may have discretion in granting relief or not, but it must decide on merits to make that choice.

The concern that the State (inevitably) raises is that common citizens do not get the same treatment as political litigants do. There is a simple response to this. Political litigants – or more broadly persons in public service or limelight – do stand on a different footing than ordinary citizens in some contexts simply because of the skewed incentives when it comes to State prosecution. Khaitan has argued how democracy is a ‘self-defeating system,’ where whichever party is in power is likely to do everything to remain there. The most logical step then is to reduce opposition campaigning – especially when elections are around the corner. Once again, this is not something unique to one government, but is bound to be the case with all of them in the absence of an entrenched constitutional culture, which is all the more reason for the Court to consider such cases.

The argument here is not that the Court needs to decide only in a given way. Notwithstanding the recent concerns raised regarding the bench composition of certain cases, the question in this post is not even about who presides on the bench or what their inclinations are. The Court may very well deny the application on merits after going through the arguments advanced. The question here is a much basic one i.e., of judicial evasion. The Court must decide in one way or the other. Having of late emphasized the separation of powers, the Court should remember that the text of the Constitution does not permit it to deny entertaining claims regarding fundamental rights merely because the HC has concurrent jurisdiction to entertain such claims. At best, the Constitution must be amended to deal with such policy concerns, but until that is done, the Court cannot principally justify not hearing such cases on merits.

Are the High Court’s truly ‘Constitutional Courts’?

In sending Petitioners back to the High Courts, there is an interesting (and controversial) logic that underlines the Courts reasoning more broadly for Article 32 jurisprudence. The Court seems to suggest that High Courts being ‘Constitutional Courts’ have all powers that the Supreme Court has as far as interpreting the Constitution is concerned, including striking/reading down Central Acts – which is why Petitioners should approach it before coming to the Supreme Court. While the idea seems appealing – and even correct – once again the Supreme Court has been extremely inconsistent in actually applying this idea.

The Court generally is seen to have no problem when it comes to taking up politically sensitive matters – that also incidentally enure to the benefit of the political executive – under Article 32. A recent example where the Court had no hesitation in entertaining the case was of Vishal Tiwari v. Union of India, where the Court set up an expert committee to look at allegations of short-selling in the Adani-Hindenburg Case. Another example of using Article 32 is the Pegasus Case, where the Supreme Court took it upon itself to ensure that an SIT was formed only to keep their recommendations hidden in a ‘sealed cover’.

On the other hand, in the case of Popular Front of India v. Union of India, the Court declined to exercise its jurisdiction given the Petitioners had not approached the HC. Similarly, in the Manipur Internet Shutdown Case, the Court once again refused to exercise its powers under Article 32. This instance was more shocking as the Petitioner had actually approached the HC, but given the inaction by the HC, had to approach the SC under Article 32 – but this too seemed to be inadequate for the Court to consider the case. Thus, the ‘Go Back to HC jurisprudence’ goes much beyond bail or habeas corpus matters. The current trend seems to indicate that the Court selectively takes up some politically sensitive matters while refusing to do so in other cases.The quest for reasoning, let alone principled reasoning, seems elusive in this jurisprudence.

The SC also continues to undermine its own logic of HCs having as much power (and legitimacy) as the Supreme Court. This is most apparent when the SC selectively – and arbitrarily – in numerous instances, transfers petitions pending before High Courts to itself. A recent example of this could be seen in the Marriage Equality Case, where the Court transferred all petitions before HCs to itself (from the Delhi, Punjab, and Kerala HC). It remains unclear why the High Courts were not allowed to decide on the issue. One instant response could be the need to maintain uniformity in the law i.e., the unclear consequences of what happens when one HC strikes down a provision of a Central Act. While there is no ratio on this point, in the case of Kusum Ingots v. Union of India, in an obiter the Court had held:

“An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act” (emphasis mine)

This obiter has actually been adopted by several HCs. For instance, in Shiv Kumar v. Union of India, the Karnataka HC (with Nagarathna J – as she then was – speaking for the Court) found itself to be bound by a decision of the Kerala HC on reading down of Section 10 of the Divorce Act. In applying the read down version of the provision, it held:

“What follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of ‘two years’ has been read down to ‘one year’ in sub-section (1) of Section 10A of the Act. The Kerala High Court’s pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India.”

If the position of law today is that the striking down, or reading down, of a provision by the HC shall have effect pan-India, it remains highly unclear as to why the Supreme Court would ever find itself in a position to transfer cases, like it did in the Marriage Equality Case. The conclusion is simple: while High Courts are Constitutional Courts in some cases, they cease to be as important in others.

Debunking the Ostensible Basis for Denying Relief under Article 32

The concerns regarding approaching the HC first are not new. Going back to 1950, in Romesh Thapar v. State of Madras, a similar objection was made by the then Advocate General that the Petitioner must approach the HC first before coming under Article 32 before the SC. A five-judge bench of the Court responded in the following words:

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 1II. This Court…cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights”

This logic was followed in numerous cases in the 1950s, including other constitutional benches. However, over time, the Court’s approach has clearly changed. This can be visible from Union of India vs Paul Manickam in 2003 wherein the Court held “it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court” and in case of failure to satisfy this test, the Court must ‘discourage’ such petitioners. Prassana S highlights how Paul Manickam ignores Thapar, and its observations at best constitute obiter, and at worse ars per incuriam. Another problem that emerges from an unclear position of law – on something as basic as Article 32 – is that a polyvocal Court is bound to have differing views on it.

The only possible reason for a change in judicial approach to my mind can be the increasing backlog of cases. Once again, this may be a valid concern at first blush, but a closer analysis would highlight that it does little to solve the problem. We now have empirically backed claims that highlight that the court’s docket explosion is rarely due to fundamental rights claims. Aparna Chandra, Sital Kalantry, and William Hubbard, in their latest book Court on Trial, highlight how the bulk of the cases arise from SLPs. Their data-set highlights that as of March 2018, appeals, the bulk of them SLPs, comprised approximately 98.7% of the Court’s docket of pending cases (including cases pending admission). Simply put, even if the Court’s concern is of backlog, by disallowing Article 32 claims, they throw the baby out with the bathwater.

Conclusion

Thus, the Supreme Court’s ‘Go to the HC’ jurisprudence lacks both legal and principled basis. It remains unclear as to how the Supreme Court gets powers to go against Constitution bench decisions without first overruling them. This also means that being a polyvocal court, some benches allow claims of fundamental rights directly before the SC while some don’t. There is also a highly inconsistent approach where the Court selectively allows Article 32 cases in some instances, but not in others. Even if the Court in the future decides to reconsider Romesh Thapar, the Court cannot on a principled basis justify restricting Article 32 claims. If at all the problem of backlog needs to be dealt with, it must be based on empirical data where the solution matches the problem.