Balancer getting Disbalanced

Photo: live mint.com

By Mrgya V

During the constitutional assembly debates in December 1948, in a discussion on  fundamental rights, Dr. B.R. Ambedakar had said, “if I was asked to name any particular article in this constitution as the most important – An article without which the constitution would be nullity-i could not refer to any other except Article 32. Right to constitutional remedy is the heart and soul of the constitution.”

“It is a right fundamental to all  the fundamental rights guaranteed under the constitution,” said the Drafting committee.

Article 32, the constitutional remedy, authorises the Supreme court with special powers. It gives the Supreme Court the responsibility to correct the wrongs by legislature, executive, private entity or person and in fact judiciary itself through its direct actions as well as through its orders in the form of guidelines. The rights invested with the Supreme court through this article cannot be taken away unless the constitution itself is amended and hence it was “one of the greatest safeguard that can be provided for the safety and security of the individual.”

The Indian Constitution is a living as well as a balanced document. The constitution makers put lots of their energy in balancing the powers among different government organs. The three main organs – executive, judiciary and legislature balance the system by being accountable to each other for their actions. These three organs, along with a few autonomous constitutional bodies, are supposed to act as balancer of the polity of India. The executive has to answer to the Legislature, both are answerable to the judiciary which itself is autonomous but within the overarching functioning of the complete system. Thus a complex system of checks and balances has been established.

In a case Romesh Thapar vs state of Madras (1950), the Supreme court observed that article 32 provides a “guaranteed remedy for enforcement of fundamental rights. ”This court thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with responsibility so laid upon it, refuse to entertain applications seeking protection against the infringement of the same rights.” It was the case at that time and now Supreme court is passing similar statements.

exhorting the High courts to act, the Supreme court after granting bail to Arnab Goswami, owner of Republic TV said, “If constitutional courts do not interfere today then we are traveling the path of destruction. We must send a message to the High Court today that please exercise your jurisdiction to uphold liberty. Let’s send out a message that the Supreme court is there” .

There are critics on Supreme court granting bail to Arnab Goswami, it is heard that Arnab was granted bail by holding a special sitting immediately on the next day of his petition filed whereas a list of similar cases are pending in the court since months. Sometimes they are asked to go to the high court first before filing their petition to the supreme court. The recent case of such an event can be seen in Siddique kappan`s. He is a journalist from Kerala and he was arrested during his trip to UP to cover a rape case of minority girl in hathras.

There is a practise of maintaining a registry in the Supreme Court. Two eminent voices who have struck discordant notes about the functioning of registry. First, president of the supreme court bar association, Dushyant Dave, has alleged that the SC registry has been selectively listing matters and is currently working in offline mode only, even when the system is supposedly computerised. It is also said that there were many defects in Goswami`s petition. Even its Vakalatnama was unsigned. Yet it was listed on the day following its filing. Many in the legal fraternity feel that Goswami is receiving preferential treatment. Second, Justice Deepak Gupta of supreme court had also spoken about priority or lack of being accorded to certain cases in the matter of listing. The critics are of the view that big money and fancy law firms get dates in a few days only whereas people without any support of power and money do not get dates in 6 months also. 

The redeeming feature of bail order is the emphasis that the Supreme Court has laid on personal liberty of individuals and made observation to the effect that state governments are targeting individuals on the basis of ideology and differences of opinion. But the question that arises is that Arnab Goswami’s is not the only one whose petition was pending in Supreme Court  but there is a long list of such journalists such as Vijay Vineet, Subhash Rai, Siddharth Varadarajan, Prashant Kanojia, Supriya Sharma and many more, who are facing charges such as sedition or UAPA.

At this time a statement, “ why can’t you go to the high court “ remark made by a bench hearing a plea filed by the Kerala union of journalists challenging the journalist’s arrest, creates suspicion in the mind of consumers of justice. The same bench referred a similar  case invoking article 32- which involved Sameet Thakkar, a Nagpur resident who had challenged the multiple FIRs against Maharashtra CM Uddhav Thackeray and his ministers- to high court, observing that “even high courts can uphold fundamental rights”. When such a long list is pending for justice and the voices are pressured to talk only positive about the ruling dispensation, the judiciary is the only balancer. In such situations statements like “go to the High Court first” raises questions and gives the colour of favouritism in certain cases.

Has the influence of the ruling party reached to silence the courts ? If the people of a country are authorised to reach the highest court then maintaining the sanctity of the dictum “rule of law”, remains the duty of the honourable Courts. Influence and favouritism should not be suspected about them.

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