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Can Supreme Court rules violate fundamental rights?

In the case of Naresh v. State of Maharashtra

In a suit for. Defamation against the editor of a weekly newspaper, field on the original side
of the High Court, one of the witnesses prayed that the Court may order that
publicity should not be given to his evidence in the press as his business would be affected.
After hearing arguments, the trial Judge passed an oral order prohibiting the publication of
the evidence of the witness. A reporter of the weekly along with other journalists moved
this Court under Art. 32 challenging the validity of the order. . It was contended that:

(i) the High Court did not have inherent power to pass the order;
(ii) The impugned order violated the fundamental rights of the petitioner’s UnderArt.
19(1)(a);
(iii) The order was amenable to the writ jurisdiction of this Court under Art. 32. The
court held that

The order commits a breach of the fundamental right of freedom of speech and expression.
The Chapter on Fundamental Rights indicates that Judges acting in their judicial capacity
were not intended to be outside the reach of fundamental rights. The word “State" in Arts.
12 and 13 includes “Courts" because. Otherwise courts will be enabled to make rules which
take away or abridge fundamental rights. And a judicial decision based on such a rule would
also offend fundamental rights. A Judge ordinarily decides controversies between the
parties, in which controversies he does not figure, but occasion may arise collaterally
where the matter may be between the Judge and the fundamental rights of any Person by
reason of the Judge's action.

Basically The Court held that the fundamental right is not infringed by the order of the Court
and no writ can be issued to High Court. However, in yet another case, it was held that High
Court Judge is as much a part of the State as the executive.

But, in the same case, the Supreme Court also observed that it is plain that if a party desires to
challenge any of the Rules framed by the Supreme Court in exercise of its powers under Article
145 on the ground that they are invalid, because they illegally contravene his fundamental
rights, it would be open to the party to move the Supreme Court under Article 32. It was further
held that such a challenge is not against any decision of the Supreme Court, but against a Rule
made by it in pursuance of its rule-making power.
Can laws declared by courts be challenged under article 13 of the constitution?

In Rati Lal v. State of Bombay, it was held that Judiciary is not State for the purpose of Article
12. But Supreme Court in cases of A.R. Antulay v. R.S. Nayak and N. S. Mirajkar v/s State of
Maharashtra, it has been observed that when rulemaking power of Judiciary is concerned it is
State but when exercise of judicial power is concerned it is not State.

In Amirabbas v. State of M.B., the Court made the following observation: Denial of equality
before the law or the equal protection of the laws can be claimed against executive or legislative
process but not against the decision of a competent tribunal.

The scope of challenging a judicial decision on the ground of contravention of the fundamental
right is much narrower in India, for several reasons:

1) There being no ‘Due Process’ clause, there is no scope for challenging a judicial decision
on a constitutional ground of unfairness

2) The decisions of the Supreme Court being binding upon all Courts within the territory of
India [Art. 141], there is no scope for a decision of the Supreme Court being challenged as
violative of a fundamental right. But there is no reason why the decision or order of a
subordinate court shall not be open to be questioned on the ground that it contravenes a
fundamental right.

In fact, so far as the guarantee of equal protection in Article 14 is concerned, our Supreme
Court, in the early case held that any State action, executive, legislative or judicial, which
contravenes Article 14, is void.

But the Supreme Court limited the application of Article 14 to judicial decisions by the
qualification that they will hit by the Article only when they involved a ‘willful and purposeful
discrimination’.

However, In the landmark case of Rupa Ashok Hurra v Ashok Huna[xxii], the Constitution
Bench of five judges examined whether a writ petition can be maintained under Article 32 to
question the validity of a judgment of this Court after the review petition has been dismissed.
Firstly, it was contended that there would be a re-examination of the case only where the
judicial order was passed without jurisdiction, in violation of the principles of natural justice,
in violation of fundamental rights or where there had been a gross injustice, under the inherent
jurisdiction of the Court. It was admitted that, in the rarest of rare cases, a petition under Article
32 could be entertained where even a review petition had been rejected.

The “corrective jurisdiction” of the Court, it was argued, arose from those provisions of the
Constitution conferring power on the Supreme Court such as Article 32 and Articles 129-40.
Secondly, the remedy for the above rare cases was, since no appeal lies from the order of the
Apex Court, an application under Article 32, if senior counsel were able to discern some
permissible ground for the same. In this case, Justice Syed Shah Mohammed Quadri pointed
out that Article 32 can be invoked only for the purpose of enforcing the fundamental rights
conferred in Part III and that no judicial order passed by any superior court in judicial
proceedings can be said to violate any of the fundamental rights, since superior courts of justice
do not fall within the ambit of State or other authorities under Article 12 of the Constitution.

The Court adopted an unusual unanimous approach by holding that even after exhausting the
remedy of review under Article 137 of the Constitution, an aggrieved person might be provided
with an opportunity to seek relief in cases of gross abuse of the process of the Court or gross
miscarriage of justice, because the judgment of the Supreme Court is final. It was held that the
duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty
of judgment.

Several grounds were laid down whereby a “curative petition” could be entertained and a
petitioner is entitled to relief ex debito justitiae. It could be used, for example, in cases of
violation of principles of natural justice, where the interested person is not a party to the lies
and wherein the proceedings a Judge failed to disclose his connection with the subject-matter
or the parties giving scope for apprehension of bias. The petitioner would have to specifically
mention the grounds on which he was filing the curative petition.
Drawing comparison: the judiciary as state in United States

U.S. Supreme court in Commonwealth of Virginia V. rives shows that a judicial decision is
included within the scope of state action for the purposes of the 14th amendment of the
constitution. It has been held in Brinkerhoff-fairs trust & saving co. v. hill that a decision that
deprives a person of his/her existing remedy without offering him/her opportunity to be heard
would be violative of the “Due Process” clause. From the substantive point of view, it has been
held that a common law inconsistent with a fundamental right, if it is enforced, would result in
the Supreme Court issuing a certiorari to the authority. Hence judicial officers cannot
discriminate in their judicial capacity, either in enforcing common law or even private
arguments. Through the agency of the courts, the state should not be guilty of discrimination,
this does not necessarily entail that decision would remain uniform or free from error. As was
held in fay v. people of the state of New York, a conviction could be quashed if the aggrieved
party can prove that the method of their trail denied them to equal protection of the law.

What is noteworthy as regards the American position is the clarity regarding both
substantive and procedural aspects of the 14th amendment. The examples used herein clearly
shows that it is not “fanciful speculation”, as Seervai puts it, to think that judicial officers acting
in their judicial capacity can prejudice the fundamental rights of a citizen. Hence, an explicit
recognition of the judiciary as state under article 12 seems in order.
NCRWC Recommendations: Following Article 12 and judiciary

The national commission to review the working of the constitution (“NCRWC”) has put
forward the recommendation that an explanation should be added to article 12 wherein it would
be mentioned that the expression ‘other authorities’ of a public nature. Since the raison d’ etre
for the establishment of court was to decide and interpret the law – a function that clearly relates
to the public sphere – the judiciary and its officers would fall within the scope of “other
Authorities” as defined in article 12. In a consultation paper on “enlargement of fundamental
rights” prepared under the guidance of soli Sorabjee, several facets of the debate was
elucidated. Referring to section 6(3)(b) of the U.K. Human Rights Act 1998 wherein the
definition of public authority includes “any person certain of whose function are function of a
public nature”, it was noted that the same definition included “a court or a tribunal”. The other
alternative proposed was the judiciary as a state should be confined under article 21, since it is
“article 21 which is the most invoked in the case of judicial orders.” Parallels can be drawn
between the U.K. Human rights Act, 1998 and Part 3 of the Indian constitution, since both are
concerned with rights of fundamental nature. Although the final report does not mention
anything about the judiciary as state, the explanation, if added to the article, would facilitate
the development in this era.

Conclusion

The administrative side and the quasi-legislative (rule-making) side of the judiciary are “state”
within the meaning of Article 12 of the Constitution of India. However, the judicial side of the
judiciary is NOT “state” within the meaning of Article 12 of the Constitution.

The supreme court of India, by bringing a vast plethora of entities under the purview of “other
authority” as mentioned in the article 12 has served the constitutional.

However, bringing the judiciary under the same is a much more contentious issue. The case
like Prem chand garg to rupa ashok hurra shows that the trend is mostly tited in favour of
rectifying mistakes that it had made, under a writ petition under article 32, even if it is after
issuing a categorical statement to the effect that judicial decision which have achieved finality
are not open to question. Hence, it can be inferred that since it has been recognized that judicial
orders may contravene fundamental rights, the judiciary too come implied within the meaning
of state under article 12. It is also widely accepted that certain fundamental rights have been
held to be applicable in the case of judiciary as well.
It is noticed that the judiciary is averse to being considered state, possible because it would
hamper their “Independent Character”. They are sensitive to issue which directly come to bear
upon their decision or discretion in matters. Even the judges may go wrong and therefore, it is
only fair, and in keeping with the constitutional idea that these errors be corrected when brought
to their attention. The irony in this discussion is that If at all, the judiciary has to be included
within the article 12, it will have to be done through the interpretation of the court themselves,
since it is not part of the text of the constitution. The reluctance of the judiciary to expand the
scope of article 12 stems from its hesitation to voluntarily subjecting itself to scrutiny and
criticism.

The judiciary is a governing institution and an organ of state. In this era of judicial activism,
judicial legislation and wide ranging capability to review matters, the judiciary wields immense
political power. Since the fundamental rights in their creation were to be used against centers
of power, it is high time that in appropriate matters, the judiciary too, is subject to the rigours
of part 3 of the constitution.

It is therefore eminently desirable to bring the judiciary, itself a creature of the constitution,
under the purview of part 3 of the constitution of India.