Criteria Needed to Invoke Article 32? : Justice Abhay S Oka Raises the Question

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Justice Oka reflected on the unequal treatment of individuals in accessing legal recourse, highlighting how wealthy petitioners with powerful legal representation often benefit from invoking Article 19(1)(g), while ordinary convicts face challenges which prompted him to question the invocation of writ jurisdiction under Article 32

Justice Abhay S Oka of the Supreme Court, delivering a lecture recently on “Article 32 : History and the Future”, raised a thought-provoking proposition, suggesting the initiation of a discourse among stakeholders to explore the necessity of establishing a criterion for the acceptance of petitions under Article 32 of the Constitution of India. This article empowers citizens to directly approach the Supreme Court to safeguard their fundamental rights.

Justice Oka deliberated on the disparity between individuals, citing instances where affluent petitioners with formidable legal teams invoke Article 19(1)(g), contrasting with common convicts. This prompted him to ponder “Should there be some test laid down which say that only if these tests are adhered to then article 32 can be invoked?”

Acknowledging the influx of such cases inundating the Supreme Court, Justice Oka highlighted the court's tendency to redirect many petitioners to the respective High Courts due to the overwhelming volume. He emphasised the adverse impact of high case pendency, which impedes the Court's ability to entertain all petitions efficiently. “Some may argue that SC should entertain all article 32 plea without sending them to high court. But we are not living in an ideal world and if there was no pendency of cases then the scene would have been different. There are 80,000 cases pending in SC. We are not only a constitutional court but also an appellate court,” Justice Oka said.

Speaking at the Ambedkar Memorial Lecture, Justice Oka advocated for open discussions on constitutional matters and welcomed constructive critique of the judiciary. He underscored the pressing need for dialogue on the effective enforcement of fundamental rights by the Court.

Regarding the proposal for a specialised Bench to handle such cases, Justice Oka deferred to the Chief Justice of India, saying “This question has to be before the master of roster and no one else.”

Responding to queries about establishing a standardised approach for personal liberty petitions, Justice Oka embraced the diversity of judicial perspectives within the Bench. He emphasised the dynamic nature of legal interpretation, contrasting it with the certainties of mathematics. He said, “We need such diversity when it comes to judicial views. AK Gopalan was corrected, and ADM Jabalpur too was corrected. And today we say something and later it can be corrected.”

“We must invite a debate on the enforcement of fundamental rights by our court and how far have we been successful in this,” Justice Oka said concluding his address.