Arnab Goswami and others: The discontents of adjudicating criminal procedure under article 32

Suresh, Sandeep and Gupta, Aashna (2022) Arnab Goswami and others: The discontents of adjudicating criminal procedure under article 32. NUJS Law Review, 15 (3-4). pp. 1-18. ISSN 0975 - 0207

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There is an increasing trend of litigants approaching the Supreme Court of India (‘SCI’) directly under Article 32 with writ petitions to claim bail, anticipatory bail, quashing of First Information Reports (‘FIRs’), etc. This paper examines this litigation trend and its judicial handling and critique it at various levels. The primary argument is that such a trend nullifies the relevance of statutory remedies under the Code of Criminal Procedure 1973 (‘CrPC’), that are specifically tailored for settling criminal procedure claims. This has two further adverse implications. One, there are certain conditions and tests curated into the CrPC provisions that one must satisfy to succeed, for instance, in their anticipatory bail applications. However, adjudication of such claims under Article 32 has enabled litigants to dodge such warranted statutory thresholds. Second, it also leads to asymmetric dispersal of justice since not every similar litigation for criminal procedural claims under the writ jurisdiction is entertained. This paper builds upon these findings by studying several litigations under Article 32 between 2020 and 2023 that point towards the vagaries of the trend in question. The paper proceeds to suggest an adjudicatory framework based on norms of judicial review, like judicial minimalism and constitutional avoidance, to reverse the critiqued trend. The recommended model advocates that the SCI should not entertain its writ jurisdiction when the deserved remedy can be effectively granted through statutory routes of litigation before the ‘magistrates, sessions courts, and High Courts’ (‘CrPC courts’), that the CrPC purposefully designates to settle criminal procedural disputes in the first instance. To conclude, if this trend is allowed to go unregulated, it will further entrench the existing institutional concerns, such as the historical distrust and subordination of the CrPC courts and the top heaviness of the Indian judiciary.

Item Type: Article
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 15 Aug 2023 05:40
Last Modified: 15 Aug 2023 05:40
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