Under the Constitution, the Supreme Court (SC) is tasked with upholding fundamental rights and interpreting laws to ensure consistency in decision-making by the High Courts (HCs) and subordinate courts. Yet, on occasion, there have been divergent views and interpretations by judges. The consequences for litigants seeking justice range from delays in cases pending in HCs and subordinate courts to inconsistent decisions leading to multiple challenges till cases are settled.
Since the judges of the Indian apex court, unlike the United States (US) SC do not sit together, the conflicting views of India’s SC benches are resolved only by referrals of such conflicts to larger benches. In the past decade, successive Chief Justices have routinely constituted Constitution Benches (of five or more judges) to speed up pending references and bring about legal clarity.
The recent debate about the apparently conflicting views from different benches on issues of liberty is being erroneously portrayed by some as an example that the court does not speak with one voice in matters of liberty or on equality in access to justice and Article 32 of the Constitution.
Article 32 ensures the right of direct access to SC to ensure the enforcement of fundamental rights.
In recent years, SC has intervened in Article 32 petitions, often in Public Interest Litigations dealing with the rights of individuals in instances relating to free speech, the criminalisation of homosexuality and privacy. However, in the past few decades, a practice was developed in SC to routinely decline to entertain Article 32 petitions in the first instance, and send litigants to HCs under Article 226. The power of HCs to entertain writs being much wider, and not limited to grievances of deprivation of fundamental rights alone, was thought to be the preferred remedy.
Contemporaneous to the recent utterance of the Chief Justice to limit Article 32 petitions, was the case of Arnab Goswami. It was heard during the Diwali break, and arose out of a challenge to an interim order declining to grant him interim bail. Interim bail sought in writ jurisdiction, though legally tenable, is rarely granted, especially when remedies of bail under the relevant law are available. Though the SC rarely interferes with interim orders, being a matter of personal liberty, it granted him release from custody.
For the ordinary litigant, who anxiously waits to get his matter listed, it is not the grant of relief to Arnab Goswami that is the issue, but the apparent fast-tracking and listing of his petition during the Diwali vacation. The principle of equality is a fundamental right, and there cannot, and ought not to be different standards for access to the court depending on who you are.
For a lay person, the two issues — one, whether Article 32 petitions ought to be discouraged when HCs, being constitutional courts are equally empowered under Article 226, and, two, simultaneous interference in a case where an HC had declined interim relief under Article 226 — have become obfuscated subject to differing interpretations.
The pressing issue which the Arnab Goswami case throws up is that there is a need to ensure equal and speedy access to justice for all litigants, particularly in matters relating to personal liberty. The need for speedy justice delivery has so far been primarily addressed in the commercial sphere with the establishment of commercial courts, alternative dispute resolution mechanisms, and increased tribunalisation of justice delivery. However, the focus on liberty has not received adequate attention from the executive which continues to frame harsh and restrictive laws to restrict liberty. Even within the judicial process, there are concerns that speedy and equal access to justice, where an individual’s liberty has been curtailed, is not always accessible.
We have come a long way from the technological limitations since March 2020. There is a systematic reopening of physical hearings of courts in many parts of the country. Yet, there are valid concerns among those whose cases have not been heard till date and who continue to languish in custody, as they are not covered by suo motu directions of release from custody by SC and HCs (in light of the pandemic).
In 1989, in the Ayya Alias Ayub v. State of UP case, SC had recognised that liberty being precious, matters seeking bail or habeas corpus have to have priority over all others. This philosophy and the precedent of Arnab Goswami’s case must now be cast in stone and pervade through the corridors of not only SC, but of each and every court in the country.
Liberty is our most basic right. The ordinary citizen looks to the courts as the only resort for redress for their anguish and agitation at the harshness of the State’s agencies. The trend of the last few decades, which have witnessed increasing enactment of laws providing for reverse burden at the stage of bail and more stringent laws and punishments, constitute an assault on the right to liberty.
It is only the courts that can curtail such repeated incursions on liberty by State agencies to ensure that Article 21 of the Constitution retains its glory as it did in the libertarian decade of the 1980s.
Ketaki Goswami and Sidharth Luthra are lawyers based in Delhi
The views expressed are personal