The Supreme Court shifts the onus

LAST year, Delhi was flooded. The Yamuna swelled. Roads disappeared. Water crept up to the very gates of the Supreme Court. Soon, the memes followed. One of them showed the Court peering down at the floodwaters and saying, politely, “Please approach the high court first.” It was funny. It was sharp. The joke worked because it captured something people had begun to notice. A pattern. A reflex. A new judicial courtesy note: wrong forum.

Earlier this week, the Supreme Court asked petitioners seeking an FIR against Assam Chief Minister Himanta Biswa Sarma for alleged hate speech targeting Miya Muslims to approach the high court instead, while requesting the latter to expedite the matter. On paper, this sounds reasonable. High courts are constitutional courts. Article 226 gives them wide powers. They can enforce fundamental rights. They can issue writs. They can even strike down laws. So why complain?

Because Article 32 is not a matter of convenience. It is a guarantee. The Constitution says the right to move the Supreme Court for enforcement of fundamental rights is guaranteed. Guaranteed. Not suggested. Not subject to prior exhaustion of remedies. Not conditional on docket pressure. BR Ambedkar called Article 32 the heart and soul of the Constitution. He did not describe it as a matter to be routed elsewhere.

When citizens approach the Supreme Court alleging that a sitting CM has engaged in speech targeting a vulnerable minority community, they invoke that guarantee. They ask the Court to stand between power and prejudice. The Court can reject the plea. It can hold that no offence is made out. It can find the speech protected. That is its role. But to decline to hear the matter at all, because another court exists, shifts the ground.

The defence is familiar. The Supreme Court cannot become a court of first instance in every case. Litigants must not bypass high courts. The docket is exploding. All of this may be true. None of it appears in Article 32. The text contains no requirement to first approach the high court. It contains no clause that says the right shrinks when the cause list grows longer.

We have seen this reasoning before. It has been analysed in critiques of what is now called the Supreme Court’s “Go to the high court” jurisprudence. The central point remains simple: the Constitution does not grant the Court the discretion to refuse to entertain a petition alleging violation of fundamental rights merely because another forum has concurrent power. Concurrent jurisdiction does not erase guaranteed jurisdiction. There is more discomfort here. The Supreme Court’s approach has not been consistent.

In politically sensitive matters, the Court has not always insisted on prior recourse to high courts. It has entertained petitions directly under Article 32. It has constituted committees. It has monitored investigations. It has taken control of cases with national consequences. Yet, in other politically charged cases, it invokes alternative remedy and steps back. This selective restraint raises questions.

If high courts are fully competent constitutional courts, then let them decide. But then why transfer matters from multiple high courts to the Supreme Court when the issue is deemed important enough? Why centralise some controversies and decentralise others? Uniformity cannot explain everything. Convenience cannot explain everything.

The Sarma case concerns alleged hate speech against Miya Muslims, a Bengali-origin community in Assam that has faced sustained political hostility. Words matter in such contexts. When the head of a state government speaks, the speech carries the weight of office. It shapes public discourse. It signals to law enforcement. It influences social attitudes. When citizens allege that such speech crosses the line into criminal incitement, and that authorities have failed to act, the issue is not technical. It goes to equality before the law.

Would an ordinary citizen be subjected to swift police action for comparable speech? That question lurks beneath the petition. The Supreme Court’s response was to ask the petitioners to move the high court and to request the latter to hear the matter expeditiously. Expedition is welcome. But expedition is not engagement.

Article 32 was designed precisely for moments when the violation of fundamental rights demands direct recourse to the highest court. It was meant to be a shield against state excess. If the Court treats Article 32 as a remedy to be “discouraged,” it alters its character. The right remains in the text, but its force diminishes in practice.

The Court understood this in its early years. When objections arose that petitioners should first move the high courts, the Supreme Court made it clear that it could not refuse to entertain applications seeking protection against fundamental rights. It recognised that Article 32 was itself a fundamental right. Over time, the tone has changed. The Court now speaks of discouragement. It asks why the high court was not approached. It treats direct invocation of Article 32 as an exception rather than a norm.

Perhaps the pressure of arrears explains this shift. The docket is heavy. The institution is strained. But constitutional guarantees do not recede when the workload increases. If anything, they matter more when the political temperature rises. Cases involving allegations against powerful political actors are not routine service disputes. They implicate democratic accountability. They test the resilience of institutions.

In such moments, symbolism matters. When the Supreme Court hears a petition against a sitting CM, it affirms that no office is above constitutional scrutiny. When it declines to hear it, even politely, the signal is more muted. This is not a plea for judicial activism. It is a plea for judicial responsibility. The Court need not grant relief. It need not order an FIR. It need not pronounce on guilt. But it should hear the matter. It should examine the allegations. It should give reasons. Avoidance erodes confidence faster than an adverse ruling.

The meme about the floodwaters was funny because it imagined the Court speaking to water like King Canute. But floodwaters do not have fundamental rights. Citizens do. When citizens allege that those in power have targeted a vulnerable community, and that the law has failed to respond, they knock on the Court’s door invoking a constitutional promise.

Article 32 does not say, “Subject to convenience.” It does not say, “After exhausting other forums.” It says the right to move the Supreme Court is guaranteed. If that guarantee becomes conditional in practice, we must ask what remains of its original force. The Supreme Court stands at the apex not merely to correct errors, but to embody constitutional assurance as a sentinel on the qui vive. The framers of the Constitution did not design Article 32 as a procedural maze. They designed it as a direct path.

Last year, the floodwaters stopped at the gates. The meme imagined them being turned away. This year, petitioners alleging hate speech by a CM have been told to go elsewhere first. The Constitution deserves better than a punchline.