The SC should exercise judicious restraint in admitting cases of ‘public importance’ under its Art. 32 jurisdiction
Finally, the Supreme Court seems to have acknowledged the limited nature of its jurisdiction under Art. 32 in Manohar Lal Sharma v. Narendara Darmodass Modi, albeit in an ad-hoc and unprincipled manner. The dispute pertains to the alteration of price structure, procurement of the number of planes, and substitution of Hindustan Aeronautical Limited with Reliance Defence as the Indian Offset Partner (IOP). Broadly, the writ petition of the instant case sought the following reliefs:
“investigation into the reasons for “cancellation of earlier deal” and… a scrutiny of the Court into the alteration of pricing and, above all, how a ‘novice’ company i.e. Reliance Defence came to replace the HAL as the Offset Partner. Cancellation of Inter-Governmental Agreement and registration of an FIR has also been prayed for.”
The Court concluded: “…our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.” (¶34)
However, much earlier in the judgment, it also noted:
“It is in the backdrop of the above facts and the somewhat constricted power of judicial review that, we have held,
would be available in the present matter that we now proceed to scrutinise the controversy raised in the writ petitions which raise three broad areas of concern, namely, (i) the decisionmaking process; (ii) difference in pricing; and (iii) the choice of IOP.” (¶15)
Therefore, even at the threshold requirement to determine the maintainability of the petition or jurisdiction of the court under Art. 32, the court entertained the case on merits.
At the outset, there is a significant dissonance between the reliefs sought by the petitioners and the conclusion of the court. Where the relief sought was registration of FIR, the court concluded that there was no “commercial favouritism” in selection of Reliance Defence as the IOP (¶33). Such a conclusion is irrelevant and wholly unnecessary for the purpose of only determining its jurisdiction under Art. 32. It precludes any contrary conclusion by any other authority with appropriate jurisdiction to investigate this issue.
The appropriate question for the court would have been to consider is whether contents of the petition disclose a prima facie case to register a First Information Report [FIR], in other words, that the facts mentioned therein if uncontroverted, would disclose the commission of a cognisable offence. This is a bare minimum standard under section 154 of the Code of Criminal Procedure, 1973 upon which it becomes incumbent upon an investigating officer to register an FIR to trigger criminal proceedings.
Even if this bare minimum standard is satisfied, the more significant question is whether the court has the jurisdiction under Art. 32 to issue such a direction in the first place. Art. 32 contemplates constitutional remedies for the enforcement of fundamental rights. Admittedly, non-registration of FIR does result in injury of a legal right since it is mandatory for the police to register an FIR once the conditions mentioned above are satisfied. Then, the question is whether the refusal of registration of an FIR result in itself results in violation of a fundamental right. Such violation maybe traced to Art. 14 and Art. 21 since the abstract formulation of such articles results in broad-based conception of rights and extremely low standard of scrutiny for admission of such a petition under Art. 32.
Such broad-based conception effaces the difference between statutory and non-Fundamental constitutional right on one hand and Fundamental Right on the other hand since potentially every violation of a statutory right may have Art. 14 and Art. 21 ramifications. Such an interpretation erodes the difference in the jurisdiction of the High Court under Art. 226 and the Supreme Court under Art. 32. Consequently, every case of violation of a statutory right veiled as fundamental right can be agitated before Supreme Court, burgeoning its docket with cases which can be appropriately adjudicated only by High Court.
It is appropriate to note that under Art. 139, the Parliament may confer power on the Supreme Court to issue writs for the purpose other than enforcement of Fundamental Right. Parliament has not enacted any such law. This further buttresses the point that there is a sharp distinction between matters which can be agitated before the High Court and the Supreme Court such that some matters cannot be agitated before the Supreme Court in the first instance at all. Wherein the cause of action is only pertaining to violation of statutory right simpliciter, the case ought to be raised at High Court in the first instance. The importance or the stakes of a case ought not to determine the jurisdiction of the Supreme Court.
This has resulted in a significant shift in the role of the Supreme Court vis-à-vis High Court as to question of forum to agitate matters which arise from violation of a statutory right simpliciter. Perhaps, strategy-wise, the best way to approach the instant case wherein there has been a denial of registration of FIR is to directly file a complaint before the Magistrate under Section 200 and Section 202. There exists a doctrinal manner in which High Court and Supreme Court may examine the refusal of Magistrate Court to take cognisance of an offence arising out of a set of facts. In such cases, the right is statutory and, upon satisfaction of certain conditions, mandatory. On the other hand, the nature of the remedy under writ jurisdiction is highly discretionary. Resultantly, even when the petitioners are able to demonstrate that the statute allows for registration of FIR, the Court may refuse to grant relief.
As regards the potential scrutiny by the court into alteration of the prices of Rafale planes and cancellation of the Inter-Governmental Agreement, the court has correctly stated that it cannot examine viability of a price or of an IGA and its scrutiny of the deal is limited to examining the decision-making process (¶7). However, it has undertaken this analysis in a problematic manner, which is reliance on contradictory assertions of the parties in court. This problem arises out of the sui generis nature of procedure of the constitutional courts since the Indian Evidence Act is not applicable to the writ proceedings.
Therefore, wherein a rival set of facts are asserted by the parties, it becomes impossible for the court to assess the veracity of the assertions to conclude the existence of impropriety since it is purely a question of fact. Further, there is no resolution of such a situation except to a hold a trial of facts in accordance with the principles of evidence, which constitutional courts are incompetent to undertake. Significantly, it has been pointed out earlier that the court relied on certain assertions –inter alia CAG report on Rafale pricing and its examination by the Public Accountability Committee of the Parliament – have no foundation in fact. Such a situation would not occur if these documents were relied on only with requisite proof under Evidence Act.
This case raises a significant question about the limited jurisdiction of the Supreme Court under Art. 32. It also underscores the limitation of the Supreme Court in adjudicating a case wherein the final relief is heavily dependent upon the proof of facts, and there are rival facts asserted by both the parties. It requires a re-look at the procedure of the constitutional court to fits such cases.
Rishav Ambastha is a 5th year student at National Law School of India University, Bengaluru.
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