A citizen’s right to move the Supreme Court under Article 32 of the Constitution has been given such importance because the State, if left without checks and balances, has the potential to become a “tyrannical institution” that can take the civil and individual liberties of its people for granted, a top court judge has said.
Supreme Court judge Justice Krishna Murari made these observations while delivering a split verdict in a case where a question arose about whether an individual can approach the top court under Article 32 for settlement of a dispute under the Customs Act.
Article 32 gives individuals the right to move the Supreme Court for justice when they feel their fundamental rights have been infringed.
The other judge of the bench, Justice Sanjay Karol, who disagreed with Justice Murari, held a recourse to the right to approach the top court can only be permitted where the fundamental rights of an individual have been infringed. He said, in the present case, no such infringement was made out and other statutory remedies were available.
The bench, in view of the divergence of opinion between the two judges, directed the registry to list the matter before the Chief Justice for appropriate orders.
Justice Murari said the writ petition, filed under Article 32, raises an issue of huge importance of personal liberty, granted under Article 21 of the Constitution of India, regarding the right of an accused under the Customs Act, 1962 to settle the dispute as per the provisions of the Customs Act itself.
The case involved a Non-Resident Indian (NRI), who was arrested on October 4, 2022 at the Delhi International Airport for allegedly trying to smuggle high value goods, mainly watches, through the green channel in order to avoid paying customs duty.
After the arrest, the NRI filed a writ petition seeking home cooked food. The NRI also filed an application seeking direction to the settlement commission to initiate settlement proceedings as he was unable to travel outside India after October, 2022.
The customs department raised preliminary objections with regard to maintainability of the writ petition on the ground that there were other statutory remedies available to the petitioner under law.
Dealing with the applicability of Article 32, Justice Murari said, “The reason why Article 32 is given such importance is because the State as an organ, if left without checks and balances, has the potential to become a tyrannical institution that can take the civil and individual liberties of its people for granted”.
He said, “To curb this inclination of the State at its very roots, the constitutional scheme envisaged an organ within the state machinery, namely the judicial organ, which is vested with the powers to interfere with the tyrannical tendencies of the State”.
Justice Murari said the apex court functions within the State, but in cases of violation of fundamental rights, also combats it.
“Further, the Constitution of India, amongst all the other rights conferred by it, has placed civil and individual liberties at the highest pedestal. These civil and individual liberties that act as a sword and a shield against the State, find their translation from ideal to enforceable rights through Part III of the Constitution”, he said.
Justice Murari said one such right under Part III of the Constitution, which shields its people from the tyranny of the state, is Article 32 of the Constitution, which in itself is a fundamental right falling within part III of the Constitution that exists to protect other fundamental rights.
“By way of Article 32, any action of the State that violates the fundamental rights of a person, or causes harm to civil or individual liberties is within the purview of scrutiny of the Court”, he said.
Justice Murari rejected preliminary objections raised by the customs department regarding maintainability of the writ petition on “mere technicalities” and said if an application of settlement is filed by the NRI petitioner, the same shall be dealt with by the Settlement Commission on its own merits and in accordance with law and the procedure prescribed under the Customs Act.
Justice Karol, in his separate opinion, said the Customs Act, 1962 is a law to sternly and expeditiously deal with smuggled goods and curbs the dents on the revenue.
On applicability of Article 32 in the present case, Justice Karol said it is well settled law that the apex court has wide powers when violation of fundamental rights is alleged under Article 32.
“However, such intervention must be made on a case-by-case basis and only when a fundamental right question arises,” he said and noted the NRI petitioner approached the court through writ praying only for the grant of a direction for home cooked food for under trial prisoners and, only subsequently, an interlocutory application was filed seeking direction to the customs authority for settlement under Section 127B of the Customs Act, 1962.
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“This approach taken by the Petitioner, in my view, is unwarranted and undesirable if not malafide for not exhausting the appropriate alternative remedies. Under the garb of relief purportedly relating to fundamental rights, the relief sought in the instant IA, is statutory in nature under the Act i.e. for an application of settlement to be decided,” he said.
Justice Karol said, “recourse to the fundamental right to approach this Court has to be permitted in cases where the fundamental rights of the Petitioner have been infringed. Herein, no such infringement is made out. No material has been brought on record displaying that the Customs Department has proceeded in a manner contravening the Constitutional mandate.”
He accepted the preliminary objections raised by the customs departments on the maintainability of the writ petition and dismissed the NRI’s application for direction to customs department to settle the dispute.
“Therefore, given the above, the present application is liable to be dismissed on maintainability. It is also to be noted that the practice of circumventing the well established principles for the exercise of the power of Article 32 should not be encouraged,” he said.
