The Shrinking Guarantee, Why the Supreme Court’s “Go to High Court” Refusal Raises Constitutional Questions
Last year, Delhi flooded. The Yamuna swelled, roads disappeared, and water crept up to the very gates of the Supreme Court. Soon after, a meme began circulating: an image of the Court peering down at the floodwaters, saying politely, “Please approach the high court first.” It was funny because it captured something many had begun to notice—a pattern, a reflex, a new judicial courtesy note: wrong forum.
This week, that meme took on a more serious resonance. The Supreme Court refused to entertain petitions seeking an FIR against Assam Chief Minister Himanta Biswa Sarma for alleged hate speech targeting Miya Muslims. Instead, the Court asked the petitioners to approach the high court first, while requesting that court to expedite the matter. On paper, this sounds reasonable. High courts are constitutional courts with wide powers under Article 226. They can enforce fundamental rights, issue writs, and even strike down laws. So why complain?
Because Article 32 of the Constitution is not a matter of convenience. It is a guarantee. As senior advocate Sanjay Hegde argues in a pointed critique, the right to move the Supreme Court for enforcement of fundamental rights is guaranteed—not suggested, not subject to prior exhaustion of remedies, not conditional on docket pressure. When citizens invoke that guarantee, they ask the highest court to stand between power and prejudice. To decline to hear the matter at all, because another court exists, shifts the constitutional ground.
Article 32: The Heart and Soul of the Constitution
B.R. Ambedkar called Article 32 the heart and soul of the Constitution. He did not describe it as a procedural formality or a remedy to be routed elsewhere. The article itself is stark in its simplicity: “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
Guaranteed. Not discretionary. Not conditional. Guaranteed.
This was a deliberate choice by the framers. In a newly independent nation scarred by Partition and committed to democratic transformation, they wanted a direct path to the highest court for those whose fundamental rights were violated. They did not want citizens to navigate a labyrinth of lower courts before reaching the apex. They wanted the Supreme Court to be a sentinel on the qui vive—always watchful, always accessible.
Yet over time, that vision has eroded. The Court now speaks of “discouraging” direct invocation of Article 32. It asks why petitioners did not first approach the high court. It treats direct access as an exception rather than a norm. The text of the Constitution has not changed, but its force in practice has diminished.
The Sarma Case: A Test of Constitutional Assurance
The case against Himanta Biswa Sarma involves alleged hate speech targeting 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, signals to law enforcement, and 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 the heart of equality before the law.
Would an ordinary citizen be subjected to swift police action for comparable speech? That question lurks beneath the petition. It is precisely the kind of question that Article 32 was designed to address—an allegation that those in power are above the law, and that fundamental rights are being violated with impunity.
The Supreme Court’s response was to ask the petitioners to move the high court and to request that court to hear the matter expeditiously. Expedition is welcome, but expedition is not engagement. The Court did not examine the allegations, did not give reasons, did not pronounce on whether a case was made out. It simply declined to hear the matter at all.
The Inconsistency Problem
What makes this refusal particularly troubling is its inconsistency. In politically sensitive matters, the Supreme Court has not always insisted on prior recourse to high courts. It has entertained petitions directly under Article 32. It has constituted committees, monitored investigations, and taken control of cases with national consequences. It has transferred matters from multiple high courts to itself when the issue was deemed important enough.
Yet in other politically charged cases, it invokes alternative remedy and steps back. This selective restraint raises uncomfortable questions. If high courts are fully competent constitutional courts, then let them decide. But then why centralize some controversies and decentralize others? Why intervene directly in some matters while refusing to hear others?
Uniformity cannot explain everything. Convenience cannot explain everything. The pattern suggests a degree of discretion that sits uneasily with the constitutional guarantee.
The Docket Defence
The defence of the Court’s approach is familiar and not without merit. The Supreme Court cannot become a court of first instance in every case. Litigants must not bypass high courts. The docket is exploding, the institution is strained, and some filtering mechanism is necessary.
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 long. 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 chief minister, it affirms that no office is above constitutional scrutiny. When it declines to hear it, even politely, the signal is more muted.
The Floodwaters and the Fundamental Rights
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 is not required to grant relief in every case. It can reject a petition on the merits. 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, to turn petitioners away without examination, is something else. It is a refusal to exercise the very jurisdiction that the Constitution guarantees.
The Way Forward
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 framers of the Constitution did not design Article 32 as a procedural maze. They designed it as a direct path. They wanted citizens to have a guaranteed right to approach the highest court when fundamental rights were violated. That guarantee should not be allowed to wither through benign neglect or institutional convenience.
The Supreme Court stands at the apex not merely to correct errors, but to embody constitutional assurance. In the Sarma case, petitioners invoked that assurance. They deserved a hearing, not a redirection. The Constitution deserves better than a punchline.
Q&A: Unpacking the Article 32 Debate
Q1: What is Article 32, and why is it considered so important?
A: Article 32 of the Indian Constitution guarantees the right to move the Supreme Court for the enforcement of fundamental rights. B.R. Ambedkar called it the “heart and soul” of the Constitution because it provides a direct, guaranteed remedy for citizens whose fundamental rights are violated. Unlike other remedies that may require exhausting lower court options first, Article 32 was designed to be a direct path to the highest court, ensuring that constitutional guarantees are not hollowed out by procedural barriers.
Q2: What happened in the case involving Assam Chief Minister Himanta Biswa Sarma?
A: Petitioners approached the Supreme Court under Article 32 seeking an FIR against the Chief Minister for alleged hate speech targeting Miya Muslims, a vulnerable minority community in Assam. They alleged that the speech crossed the line into criminal incitement and that authorities had failed to act. The Supreme Court declined to hear the petition directly and instead asked the petitioners to approach the high court first, while requesting that court to expedite the matter.
Q3: Why is the Court’s refusal to hear the petition controversial?
A: The refusal is controversial because Article 32 guarantees the right to directly approach the Supreme Court for enforcement of fundamental rights. The text contains no requirement to first approach a high court. Critics argue that by redirecting petitioners, the Court is effectively reading a condition into the constitutional guarantee that does not exist. The inconsistency with past practice—where the Court has directly entertained politically sensitive matters—adds to the concern. The signal sent is that even serious allegations against powerful figures may not receive direct scrutiny from the highest court.
Q4: What is the “docket pressure” argument, and is it valid?
A: The “docket pressure” argument holds that the Supreme Court cannot be a court of first instance in every case because its workload is already overwhelming. Litigants should first approach high courts, which are also constitutional courts with wide powers. While this is a practical reality, critics argue that it cannot override a constitutional guarantee. Article 32 makes no exception for docket pressure. Moreover, cases involving allegations against powerful political actors are precisely the kind that may require the symbolic and substantive assurance of direct Supreme Court scrutiny.
Q5: What does the floodwaters meme have to do with this case?
A: The meme, which imagined the Supreme Court politely telling floodwaters to “approach the high court first,” captured a growing perception that the Court has developed a reflex of redirecting petitioners rather than engaging with their claims. The Sarma case gives that meme a serious dimension. Citizens invoking a fundamental right to approach the highest court were turned away without examination of their allegations. The meme was funny because it imagined an absurd scenario; the reality, critics argue, is not so different. The Constitution, they say, deserves better than a punchline.
