Supreme Court Of India - Far From The Constitution Of India And Its Spirit?

While refusing to entertain writ petitions under Article 32 against hate Speech against Muslims by Assam CM Mr Himanta Biswa, Chief Justice of India, speaking for the Bench, also comprising Justices Bagchi and Pancholi made surprising and somewhat shocking observations during the hearing,

"Whenever election comes, this Court becomes a political battleground",

"Entire effort is to undermine the High Courts which is not acceptable to us",

"This is absolutely a disturbing trend that every matter lands in this Court".

How wrong were these:-

First, every time elections come, ruling party at the center and its High Functionaries including the Prime Minister and its many Chief Ministers indulge in proactive speeches against secular principles of the Constitution. Though citizens have been seeing this, unfortunately not the Judges. Despite Supreme Court in Ashwini Kumar Upadhyay versus Union of India, W.P (Civil) 943 of 2021 has said that hate speech would amount to contempt of Court.

Second, Article 32 is included in Part 3 of the Constitution conferring Fundamental Rights on Citizens and categorically says,

" The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed."

Third, Bench presided by the CJI and Supreme Court in general have entertained many petitions under Article 32 before and after the disposal of Assam CM hate speech matter including in matters relation to Digital Personal Date Prevention Act, Bar Council election and representation of women lawyers, West Bengal SIR, Creamy Layers in Reservation, UGC Regulations etc.

So why does this consistently inconsistent exercise of fundamental constitutional power occur in the highest Court?

Mainly because the Judges have not really absorbed the reason behind inclusion of Article 32 in Part 3. Dr Ambedkar, the most revered of our National Heroes and Spirit behind framing of this great document in his first speech in the Constituent Assembly gave it,

"I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded. I find complete a complete absence of remedies."

Thus was born 32 which according to this Great Jurist was,

"Heart and Soul of the Constitution" without which Constitution would be a "nullity."

While discussing old article 103, now 124, creating the very Supreme Court, Members expressed many misgivings about independence of Judges and sought to amend the provision. Again Dr Ambedkar reassured them saying,

"There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself."

He added, "And as I have said that the relation between the executive and judiciary are so separate and distinct that the executive has hardly any chance of influencing the judgement of the judiciary."

He put so much faith in both the organs of the state little realising that with times to come he will be proved wrong. Even after rewriting Article 124, and giving primacy to the opinion first of the CJI and later the hybrid Collegium system, independence of the court as feared remains a challenge.

Court is not able to fathom and follow that Political democracy is worthless without Social democracy meaning a way of life which recognises liberty, equality and fraternity as Principles of Life. To Dr Ambedkar they formed a Trinity and all needed to be followed. No wonder he had said," If there is anybody who has in his mind the project if solving Hindu- Muslim problem by force, which is another name of solving it by war, in order that the Muslims May be subjugated and made to surrender to the Constitution that might be prepared without their consent, this country would be involved in perpetually conquering them."

Constitution was prepared by consensus, yet in 2026 a Constitutional functionary of the Party in power at center and in Assam, chooses to ignore this warning and wants to target Muslims. The video for political campaign is the most illegal, unconstitutional, shameful and atrocious piece of Hate Speech. Undoubtedly, it violates over 200 million Citizens right to life, liberty, dignity and honour. This action is clearly uncalled for and unwarranted in world 's largest democracy. And as usual, it comes at a crucial time in democracy, election, which must be fair and free including from fear. Criminal laws and even stringent UAPA stand attracted to such act.

Clearly the SC took a rather uncharitable view of the whole matter and its seriousness.

And what is the point in sending citizens to HC s when acting in administrative capacity, these very CJI along with former CJI and three other senior most judges sent warning signals to HCs when they transferred Justice Atul Sreedharan, for his bold steps against people in power, from MP High Court to first Chhattisgarh HC and then at instance of the very government to Allahabad so that he even loses chance to be in Collegium for years? And what that brave judge did was only to remind a Minister in MP govt who had used unspeakable words against Col Qureshi, a serving Indian Army Officer who was showcased by Modi Govt with another Sikh Officer from Air Force to show ideal secularism with power of women in India. Minister has so far continued while the Judge has been punished. So will Judges in Assam HC or other HC s be not concerned about their fate should they act against powerful politicians even if they are guilty of violating the laws and the Constitution?

One is reminded of very powerful words of Justice Brennan who once said,

"Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only rich can enjoy the law, as a doubtful luxury, and the poor need it the most cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but real, because Democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness."

Judges are under pressure of work. That is understandable. But then they are partly responsible for converting the Constitutional Court in to a regular appeal court.They must remember that there are serious violations of constitutional rights on a daily basis, thanks to strong executive in position. Court must take on the Executive on behalf of citizens or all that Freedom struggle and its fighters achieved after huge sacrifices will be lost forever.

Supreme Court should have been mindful of the feelings of these 200 plus million Citizens, who happen to be Muslims. After all, it has time and again called itself protector of fundamental rights of citizens. It needs to remind itself of its past , its pronouncements, its assurances and its own judgements laying down law on this very issues. It needs to introspect and ensure that the Constitution and its morality are followed by all including those in power. After all, judicial review as also Article 32 are Basic Structure of the Constitution, or at least that is what was declared by it earlier.

Let us not forget that Article 32 is not merely a discretionary power but a bound in duty and a solemn obligation to protect the rights of citizens which allows direct access to the Supreme Court for the enforcement of rights acting as a 'sentinel' on the qui vive.

Author is a Senior Advocate and Former President of the Supreme Court Bar Association. Views are personal