Shiva Kant Jha

This article examines the correctness of the view of the Constitution Bench of the Hon’ble Supreme Court of India that the decisions of the Superior Courts are not amenable to the Writ Jurisdiction (Art. 32 of the Constitution of India). The approach of the author is wholly academic, and with highest regards for the Hon’ble Supreme Court.

1. As “the ultimate touchstone of constitutionality is the Constitution itself and not what we [court] have said about it” (per Frankfurter J quoted with approval in Bengal Immunity AIR1955 SC 661 at 671 para 13 ), and as our Constitution provides a long and detailed instrument of government not leaving to the judiciary the wide discretionary power which was left to the judiciary of the U.S., and as the intention of the Constitution is to be drawn from the words and expressions of the Constitution, it is submitted that the core question answered in Rupa’s Case stands negatived by the words of Arts 12, 13 and 32 of our Constitution. These provisions were not subjected to close examination in any of the decisions[1] except in the dissenting judgment of Rajagopala Ayyangar J in Ujjam Bai [AIR 1962 SC 1621 para152 at p. 1678] wherein the concept of ‘State’ under Art 12 was examined which was quoted with approval by the Constitution Bench in Rajasthan Electricity Board v. Mohan Lal [AIR1967 SC1857 para6 pp. 1863-64] decided just within a year of Naresh [AIR 1967 SC 1]. This led the Const. Bench to formulate a constitutionally sound principle articulated crisply by Subba Rao CJI thus: “These decisions of the Court support our view that the expression “other authorities” in Art 12 will include all constitutional and statutory authorities on whom powers are conferred by law”. “ A Court is certainly a ‘constitutional or statutory authority on whom powers are conferred by laws and must, therefore, come under Art 32.”[2]As the observation in Rupa, that “the superior Courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution”, is mere ex cathedra ipse dixit, it is worth focusing first on the key terms of Art.12,13 & 32 of our Constitution.

This author’s analysis has led him to the conclusion that both on principles, textual examination, travaux preperatoires (preparatory work), semasiological analysis, and precedents the aforementioned obiter in Rupa is ex facie unsound and unfair: vide para 2 infra.

In Art 13 the term ‘laws’ is generic in import as it erects bar against breaches of fundamental rights through all state acts, judicial acts not excluded. Art 13 (4) of the Constitution states: ‘Nothing in this article shall apply to any amendment of this Constitution made under article 368’. There is no exclusion for the decisions of the superior courts. There is nothing stated to chime with this sort of exclusion by inserting a clause like this.: ‘Nothing in this article shall apply to any decision or order of the superior courts.’ Munshi’s Note on Draft Articles on Fundamental Rights on Constitutional Remedies had specifically excluded the Supreme Court from prohibitory reach[3], but this was not accepted by the Assembly. This point is mentioned merely to highlight, by drawing on an external aid to construction, that under our constitutional suppositions, the judiciary was not conceived to be beyond the pale of Art 12. The superior judiciary, as an organ of the State, is subject to the same constitutional obligations duties and limitations to which other organs are subject.

By enacting Art.32 the Constitution created a new fundamental right, namely, the right to move the Sup. Ct by appropriate proceedings for the enforcement of the rights conferred by Part III.[4] The Constitution has given us guaranteed rights: as a matter of inevitable corollary, it grants effective and guaranteed rights [5] for their enforcement. Ubi jus ibi remedium. This principle would help determine the frontiers of the remedies specified in Art 32(2). ‘This is the more so because Art 32 shows that in our Constitution right and duties go together’[6]. As the Constitution makes the fundamental right inhere in citizens, the State (and its organs including Judiciary) are subject to the correlative Duty.[7] The expression ‘appropriate proceedings’ has an express referent to Art 32(2). The expression ‘power’ in Art 32(2) reinforces through a counterpoint the concept of Duty as public power of this sort is always coupled with duty.[8] ‘Directions’ or ‘orders’ or ‘writs’ are comprehensive enough to constitute a larger Set of which ‘writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari’ is ex facie a narrower sub-Set leaving much space for judicial creativity to mould remedy to render the enforcement of rights effective, and to enable this Hon’ble Court to evolve new dimensions of the specified remedies[9]. Baron Martin said[10], of course in the context of Mandamus,:

If this Hon’ble Court takes the superior court out of the reach of Art 32 (1) & (2), it virtually inserts a new sub-Article 32(5) into the Const. with the following content:

The Judiciary wields no constituent power to amend the Constitution as contemplated under Art. 368 of the Constitution.

2. If the Judiciary comes in “the State” as defined in Art. 12, it must conform to fundamental right conferred by Part III of our Constitution. As this issue has not been decided after considering the constitutional variables in any of the reported decision, not even in Rupa where the issue was at the heart of the matter, this author r makes his following short submissions to underscore that our Supreme Court’s decision on this point, in Rupa, is patently per incuriam:

(i) Under our Constitution the right question to ask is: whether the Judiciary is “the State” as defined in Art. 12 ? The plain language of Art. 12 of the Constitution shows that the ‘judiciary’ is an essential organ of the “State”. The Article uses the expression “includes”, not “comprises”[11]. There are good reasons for mentioning specifically “Parliament” or “Legislature”; but for not mentioning “Judiciary.” Many States in many phases of history existed without legislature in modern sense. Thomas Hobbes, in his Leviathan, considered Judicature an organ of the State (civitas). He did not refer to legislature as at that time it didn’t exist. In his “The Law of Free Monarchies”, James I held that judicial and executive powers inhered in the King alone who was God’s vice-regent on the earth. This legal position still continues in England: “In the contemplation of the law the Sovereign is always present in the court….”.[12] But even in the U.K and Australia judicial powers is an exercise of the State’s sovereign power. Lord Scarman said:“ I would identify a court in (or ‘of’) law, i.e. a court of judicature, as a body established by law to exercise either generally or subject to defined limits, the judicial power of the state…”[13]. Examining the British constitutional history, Bertrand Russell observes that “the judiciary became a third independent branch of government alongside of the legislature and the executive.”[14] It deserves to be kept in mind that only an unlimited government (“L’Etat,c’est moi”) can afford to have a judicature with unlimited jurisdiction, as in Britain. A state under constitutional limitations, as in the USA and India, subjects all its organs to the constitutional limitations and discipline. Hence the borrowings from British constitutional history demands high discrimination and critical sense.

(ii) The American Constitution, which provided us with a model of a written constitution with fundamental rights and the borrowings wherefrom are so evident in our Constitution (especially in Art 14), provides an appropriate perspective for comprehending constitutional issues under our Constitution. The Attorney-General, addressing the court in the Five Knights’ Case ( one of the state trials of Stuart England ) for the Crown asked, “Shall any say, The King cannot do this? No, we may only say, He will not do this.”[15] It was precisely to ensure that in the American system one would be able to say, “The State cannot do this,” that the people in America enacted written Constitution containing basic limitations upon the powers of government[16]. We have done precisely the same under our Const. Art. 14 is much more entitled to the American gloss than Art 21 where juristic transmutation has produced virtually an ersatz version of the American due process “due process” in our country. [On the American position: Constitution of the United States of America 4^th ed (Congressional Ed.); Shelley v. Kraemer334 US 1 C(1948); Ex p. Virginia (1880) 100 U.S. 339 (347); Bridges v. California (1941) 314 US 252 H.N. 4 ]

(iii) In England the Superior Courts are answerable, as Holdsworth says, “Only to God and the King”[17], but we have done away with King or Queen. Then, to whom are our superior courts answerable? Our Constitution knows no Grand Mughal. Our superior courts are, on reasonable reflection, answerable to the high institution of Judiciary itself. If a judgment causes gross miscarriage of justice, or it fails to protect and/or sustain fundamental rights, justice can be demanded under Art 32 of the Constitution. In providing such remedies against their own orders the Superior Courts are answerable to themselves as institutions, bound by the very inherent logic of their existence itself to do complete justice.[18] Mathew J, M.L.Sethi’s case, missed the point in following Lord Denman’s dictum in R. v Bolton (1841) 1 Q.B. 66 that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. The view is no longer valid vide para 6(vii)(f) infra.

(iv) All political theorists consider judiciary an element of ‘State’. Art. 1(3) of the German Constitution states:

“The following basic rights are binding on legislature, executive, and judiciary as directly enforceable law.”

Art. 20(2) mentions ‘judiciary’ as one of the specific organs of the state. It says:

‘All State authority emanates from the people. It is being exercised by the people through elections and voting and by specific organs of the legislature, the executive power, and judiciary.”

Art 92 sets up Court Organization. It vests judicial power in the Judges. Art. 97 declares the Judges independent and subject only to law. Art 98(1) provides for the legal status of judges in the Federation and the States. Art. 98(2) runs as under:

“Where a Federal Judge, in his official capacity or unofficially, infringes the principles of this Constitution or the constitutional order of a State, the Federal Constitutional Court may decide by two-thirds majority, upon the request of the House of Representatives, that the Judge be given a different office or retired. In a case of intentional infringement, his dismissal may be ordered.”

(v) Under modern English Usage, using Lord Simon’s test in Maumsell v. Olins[19] ‘State’ includes Judiciary.

-Jean Dreze and Amartya Sen, India; Economic Development and Social Opportunity. p. 17.

(vi) Under International Law it is settled principle that all the organs of the state, including judiciary, are bound to fulfill the State’s international obligations. After a masterly analysis Oppenheim mentions that even in exercise of judicial functions the judiciary is one of the organs of the state.

(vii) Many Articles in Part III of the Constitution of India are clearly binding on the judiciary also. These are obviously Articles 20, 21, and 22 of our Constitution in which freedoms are declared in absolute terms. Their terms and implications are inexorable pointers to the fact that judiciary as an organ of the ‘State’.

(vii) The actual decision in Naresh and Antulay, in effect, do not hold anywhere that judiciary is not an organ of the State. In Naresh the majority judgment held that the scope of the jurisdiction of this Court dealing with writ petitions under Art. 32 was examined by a Special Bench of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh 1963-l SCR 778: (AIR 1962 SC 1621). The decision would show that it was common ground before the Court that in three classes of cases a question of the enforcement of the fundamental rights may arise; and if it does arise, an application under Art. 32 will lie. These cases are: (1) where action is taken under a statute which is ultra vires the Constitution (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quasi judicial authority under an obligation to act judicially passes an order in violation of the principles of natural justice. In Antulay this Court acknowledged that the Appellant’s fundamental rights had been breached (para 49 p. 1549 of A 1988 SC 1531).In Antulay the Court said “But that is not to say that this Court can make an order, which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution.”[20] In effect the 7-Judges decision in Antulay held that even a superior Court cannot claim the jurisdiction to ride roughshod over fundamental rights.

These two decisions, by express implication, accept that judiciary is under the constitutional limitations; to say what is obvious, under the limitations of fundamental rights. It is submitted that the decision in Rupa on this point, to the extent it makes a departure from Naresh and Antulay, holding that judiciary is not an organ of the State, is per incuriam, beside being without jurisdiction by going counter to a larger Bench decision in breach of a rule of law vide para 6(vii)(b).

(viii)To resort to a reduction ad absurdum. It is possible to conceive, as it was done during the infamous Emergency, to hive off the High Court’s jurisdiction, investing that in myriad tribunals, to turn it into an insignificant court of residuary jurisdiction. Part XIV-A of the Constitution, inserted by the Constitution (Forty-second) Amendment Act, 1976, was a move in that direction. If, perish the thought, some day such things happen, will such bodies cease to be under the discipline of fundamental rights on the ground as they are the substitutes for the High Court? This apprehension would surely not survive if we accept what Lord Bridge L.J. said in Goldsmith v. Sperrings Ltd[21] that there was no reason for the superior courts not to stand the test of scrutiny to which is subjected the inferior courts:

“Hence there is a breach of the rule of audi alteram partem which applies alike to issues of law as to issues of fact. In a court of inferior jurisdiction this would be ground for certiorari; and I do not think that this Court should adopt in its own procedure any lower standards than those it prescribes for others.”[22]

Fundamental rights are mandatory directions to all tribunals, including courts stricto sensu, irrespective of the fact that the issues relate to matters going to jurisdiction, or are in exercise of jurisdiction.

(ix) After analyzing all the relevant decisions, and taking into account all relevant points, our experts have observed:

(i) “The Author is definitely of opinion that reason of the word ‘includes’ the definition in Art. 12 enables the Indian Supreme Court tom include within the definition all the three organs of the State (executive, legislative, and judicial) as well as other authorities which have been included within the concept of State action in the U S A, and that any narrowing down of the ambit of the definition would be defeating the object of inserting the definition in Art. 12.” Basu, Commentry on the Const. of India A/1 (1996) p. 243

(ii) “..the judiciary wields the judicial power of the State, and Art 144 emphasises the fact that judgments would be worth little if the full authority of State were not exerted to give effect to them. …in the United States it is settled that the judiciary is within the prohibition of the 17^TH Amendment…….This is all the more so, in view of the fact that the inclusion of the writ of certiorari in Art 32 clearly shows that some fundamental rights can be violated by Courts stricto sensu.” Seervai, Const.Law 4^th ed. p.394 para 7.107

(iii) “There is no justifiable reason why the Judiciary should not be included in the inclusive definition of the ‘State’ under Article 12 of the Constitution.” V.G Ramchandran in his Law of Writs 5^th ed pp.47- 56

(iv)H. M. Serervai for a forceful argument that judiciary is ‘the State’ even in the exercise of its judicial functions. This would also seem the view taken by Mukharji J. in A R Antulay v. R S Nayak[23] (1988) 2 SCC602” Prof. V.N.Shukla, Constitution of India, (10^th ed. at p. 26.)

(a) The superior Courts of justice do not fall within the ambit of State or other authorities under Article 12 of the Constitution.

(b)A final judgment/order passed by this Court cannot be assailed in an application under Article 32 by an aggrieved person as this remedial Jurisdiction cannot be invoked after exhausting the remedy of review under Article 137.

(c)Having carefully examined the historical background and the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts/Tribunals, on principle, a writ of certiorari cannot be issued to co-ordinate Courts and a fortiorari to superior Courts.

(d) Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction, the High Courts are not constituted as inferior Courts.

(e) That no judicial order passed by any superior Court can be said to violate any of the fundamental rights enshrined in Part III.

4. Exposition of Point (a) vide para 2 supra would show that even the superior Courts of justice do fall within the ambit of ‘State’ under Article 12 of the Constitution.

5. Apropos Point (b) the remedy under Art. 32 can be solicited, as the proceedings under Art 32 and those under Art 136 are materially different: viz.

Art. 32 Remedies for enforcement of fundamental rights conferred by this Part. ----The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed; however, the Supreme Court will not enforce that right if the petitioner under Art. 32(1) if he has availed of remedy provided under Art 136 or that granted under the judicially devised Curative Procedure.

6. The Point (c ) supra: in making the afore-quoted observation, the Court erred both in history and at law.

(i) The “historical background” is neither correct nor comprehensive as the Court missed an immanent feature of British constitutional history that it always devises effective remedies to respond to the challenges of changing times[24]. In CCSU v. Minister for the Civil Service Lord Brightman, Lord Fraser and Lord Roskill held that the contrary view, though good law in the days of Coke and Blackstone, has become ‘archaic’ as a result of the modern development of judicial reviewso succinctly explained by Lord Roskill who observed:

“Historically the use of the old prerogative writs of certiorari, prohibition and mandamus was designed to establish control by the Court of King’s Bench over inferior courts or tribunals. But the use of those writs, and of their successors, the corresponding prerogative orders, has become far more extensive.”

(ii) Now we have reached a point when Lord Bridge L.J. in Goldsmith v.Sperrings Ltd[25] could say that there was no reason for the superior courts not to stand the test of scrutiny to which it subjects other tribunals in course of the proper administration of justice. National Textiles ~Workers’ Union v. P.R. Ramakrishnan, held that a judgment by any court in violation of natural justice was a nullity. Bhagwati J observed: “The audi alteram partem rule which mandates that no one shall be condemned unheard is one of the basic principles of natural justice and if this rule has been held to be applicable in a quasi-judicial or even in an administrative proceeding involving adverse civil consequences, it would, a fortiori, apply in a judicial proceeding such as a petition for winding up of a company.” Chinnappa Reddy J. adopted the same view by observing: “Courts even more than the administrators must observe natural justice.”[26] Under the U.S jurisprudence this rule of justice expresses itself in the view that a conviction without granting an opportunity of being heard is contrary to “the immutable principles of justice”[27], and amounts, in effect, to an impermissible ‘judicial usurpation’[28].

(iii) In the United Kingdom itself many technicalities pertaining the writs have been done away with. “Writs ceased to be issued in the name of the Crown after June 3, 1980: R.S.C. (Writ and Appearance) 1979 (S.I 1716). The reform was said to make writs less obscure and to ensure that they presented no obstacle to national susceptibilities when served outside the jurisdiction.”[29] Hence in our country there is no reason why the technical rules of the writs should rule us from the grave: this is what this Court has itself said[30].

(iv) It is well settled that conventionally, in historical perspective, the High Court, exercised the King’s/Queen’s supervisory jurisdiction in issuing the writ of certiorari. And the supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise. In such writs three elements are conspicuous: (a) the technicalities of procedure, (b)the content and the reach of the writ, and ( c) the target of operation of the writ. The account of the writ of certiorari given in Rupa’s Case is inapt in the context of our Constitution as there is no need to attach importance to (a) and (c). Procedural technicalities are esoteric to the British constitutional history which we are not bidden by our Constitution to import in the administration of justice. It is well settled that the technical rules of the Law of Evidence do not apply in the income-tax proceedings but the principles of evidence essential for the fair administration of law are always operative. Same analogy is apt here too.

(v) Our courts, which have made a plenty of judicial innovations by departing from the British practice, should make a creative response of the sort suggested by Lord Bridge L.J. in Goldsmith v. Sperrings Ltd[31] vide point (ii) supra. We have our precedents for innovations. In A. R. Antulay v. R. S. Nayak this Court struck a note of originality when it said:

“The principle in England that the size of the Bench does not matter is clearly brought out in the decision of Evershed M.R. in the case of Morelle v. Wakeling, (1955 (1) All ER 708) (supra). The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here, where larger Benches overrule smaller Benches…”

Prerogative in England is now itself controlled by law. The chief prerogative writs were habeas corpus, prohibition, mandamus, certiorari,and quo warranto; but of these only the first remains a writ, the last has been abolished, and others are now orders. Mukherjea J in T.C. Basappa v. T. Nagappa AIR 1954 SC 440 realised that the common law in England was constantly adjusting itself to new situations, and at times rediscovering powers which have remained unused. In 1949 Lord Denning said in his public lecture (Freedom under the Law p. 126): “Just as pick and shovel is no longer suitable for winning of coal, so the procedure of mandamus, certiorari and actions on case are not suitable for the winning of freedom in the new age.” The creative quest led to the new procedure of Judicial Review. Lord Roskill was led to observe in CCSU v Minister for the Civil Service [1984]3 All ER 935 at 953 g-h: “Today it is perhaps commonplace to observe that as a result of series of judicial decisions since about 1950 both in this House and the Court of Appeal there has been a dramatic and indeed, a radical change in the scope of judicial review.” This Court also discerned a difference when it said: “It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them.”[32] The power conferred by Clause (2) of Article 32 is in the widest terms. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights.[33] Certiorari evolved both in the U S and the U K its own interesting way, for the reason thus stated by Justice Black in Bridges v. California:

“In any event it need not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief that “one of the objects of the Revolution was to get rid of the English common law on liberty of speech and the press.”.

We too, when we made our tryst with destiny with Independence, embarked on a new

odyssey no less adventurous than what they did on the wreck of the British power in America.

In the footnote 7a Justice Black referred to what James Buchanan said (quoted in Stansbury, Trial of James H. Peck, 434):

“At the Revolution we separated ourselves from the mother country, and we have established a republican form of government, securing to the citizens of this country other and grater personal rights, than those enjoyed under the British monarchy.”

Many common law doctrines have undergone sea change in the Common Law countries: viz. the United Kingdom, Australia, Canada (except Quebec), and the United States (except Louisiana). Life and jurisprudence attests what Tennyson said:

(vii) The irrelevance of the concepts of inferior or superior courts for the present purpose:

(a) That the High Court or a smaller Bench of the Supreme Court is surely not a sub-ordinate court vis-à-vis others but must be treated “inferior” for the purpose granting remedies under Art 32. The whole confusion emanates from focusing more on the secondary meaning of the word “inferior” rather than its primary meaning. “It is submitted that the correct question to ask is whether the High Courts are inferior courts vis-à-vis the Supreme Court for the purpose of issuing writs of certiorari and other appropriate writs under Article 32. That the Supreme Court and the High Courts are not co-ordinate courts is clear from the fact that an appeal in all civil and criminal matters lies to the Supreme Court and even where no appeal are provided, the Supreme Court has power under Art. 136 to entertain an appeal from any determination by the High Courts at any stage.”[34]

(b) In A. R. Antulay v. R. S. Nayak[35] Sabyasachi Mukharji, J., speaking for the majority, said: “There is a hierarchy within the Court itself here, where larger Benches overrule smaller Benches”. Shetty J. in Triveniben v. State of Gujarat[36] observed: “This practice has been held to be a crystallised rule of law in a recent decision by a Special Bench of seven learned Judges.” As it is a a rule of law, it cannot be unsettled by any practice statement forming no part of the decision of any dispute.[37]

(c) The “division of the courts into superior and inferior courts for other purposes is not relevant to the issue of the writ of certiorari or prohibition. One of the lines dividing superior courts from inferior courts is that nothing is outside the jurisdiction of superior court unless it is shown to be so, and nothing is within the jurisdiction of an inferior court unless it clearly so appears on the face of the proceedings. But this definition is irrelevant to the issue of a writ of prohibition and , it is submitted, to the writ of certiorari. For, according to this definition, the ecclesiastical courts in England and the Judicial Committee of the Privy Council when hearing ecclesiastical appeals are superior courts, yet a writ of prohibition lies to them; and it is settled law that the writ of prohibition issues from a superior to an inferior court, that is to say, for the purpose of issuing the writ.”[38] Under written constitutions, whether in India or the USA, writs have been issued to superior courts: true, in the USA regularly, in India off and on.

(d) The Supreme Court has to carry out the mandate given to it under Art. 32 which alone is a guaranteed remedy to oversee that no organ of the State rides roughshod over fundamental rights, not even the superior courts. On this point it fundamentally differs from Art 226.The constitutional role of the Supreme Court is clearly supervisory, the term ‘supervision’ not used in technical common law sense, but in the sense it carries in English prose: “If you supervise an activity or process you ensure that it is done correctly and legally.” [Collins Cobuild Dict. ], “Superintend the execution or performance of a task, operation etc.; to oversee the action or work of a person. [New SOD]. It holds an immanent and entrenched jurisdiction which can neither be diluted or detracted by Art 226.

(e) There is no real resemblance between the scheme of courts under our Constitution and the courts in England. Obviously, no prerogative writ of the Queen can go to a court in which the Queen herself is supposed to be present. This limitation has no significance with us. Since there is no real correspondence between the courts in the two countries the question can only be decided by considering if there is any good reason for excluding High courts from the area of the writ jurisdiction of the Supreme Court.[39] The King’s court wields original jurisdiction.. The general jurisdiction of the Court of Appeal to hear and determine appeals from any order of the High Court is conferred by s. 27(1) of the Supreme Court of Judicature (Consolidation) Act 1925. The High Court has supervisory jurisdiction. The House of Lords has appellate jurisdiction. In India our system is different. For purposes of the enforcement of fundamental rights our Supreme Court rolls into one an original jurisdiction ( of the British High Court) and an appellate jurisdiction of the Court of Appeal and the House of Lords: a situation wonderfully unique and sui generis. The High Court in England exercises the power of the King/Queen, the Supreme Court exercises under Const. the sovereign power of “We, the people”. I.A. Richards rightly points out that the corrective is “a closer contact with reality” (Practical Criticism p. 251): and the ‘reality’ is the Constitution as it is, without any hangover from Britain’s past or its present.

(f) Ujjam Bai relied on Rex v. Boltan, (1841) 1 QB 66 at p. 74 which held that the question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion, of the inquiry. de Smith observes that in the Anisminic members of the House of Lords emphatically rejected the idea that the jurisdiction of a tribunal was determinable only at the outset of its inquiry.[40] Naresh and Rupa continue, though without reference, this line of thinking stated by this Court in Ujjam Bai vide para 15p. 1629 of AIR 1962 sc 1621. Lord Denning considered Bolton in O’Reilly v. Mackman [1983] 2 AC 237 at 253 ‘ a black-out against any development of administrative law’. Wade has criticized this case, and has aptly observed:

“But it does not in the least follow that no sort of error made in course of the proceedings can affect jurisdiction. Some questions may arise which the tribunal is incompetent to determine; or some point may be decided in bad faith or in breach of natural justice or on irrelevant grounds, or unreasonably, all of which faults go to jurisdiction and render the proceedings a nullity.”[41]

This new perspective deserves to be acknowledged. Besides, the “principle that a tribunal which has initial jurisdiction to decide a matter does not lose its jurisdiction by coming to a wrong conclusion, whether in law or fact, has no application where it is alleged and established that the Constitution has been violated, for, no tribunal can claim an initial jurisdiction to make a decision which offends the ‘higher law’ of the land.”[42]

7. As to Point (d): The view that the judgments/orders of High Courts are liable to be corrected by the Supreme Court only in exercise of its appellate jurisdiction is, it is submitted, unsound for reasons inter alia these:

This deserves to be given a local habitation under the raw realities of our constitutional jurisprudence.

(b) The assumption that even when the fundamental right of an individual is affected by a judicial decision, the only remedy of the aggrieved party is by way of appeal ignores the patent fact that Art 32 is an overriding; and is an additional constitutional remedy which takes no account of appeal or other remedies, even though appeal to the Supreme Court has been separately provided for." The right to move the Supreme Court for the enforcement of a fundamental right is guaranteed by Art. 32. But an appeal under Art. 136 is by special leave which is in the discretion of the Court and which cannot, therefore, be a substitute of the ‘guaranteed’ remedy under Art. 32. It is nowhere laid down in the Constitution that Art 136 will exclude Art 32.”

“An analogous assumption that a court has the jurisdiction to decide right or wrong is an obsession following from the English notions about the status and functions of the courts. But the position must have changed after the adoption of the written constitution with a Bill of Rights….The jurisdiction of the Court is limited by the Constitution; it cannot, therefore, have jurisdiction to decide contray to the provisions of the Constitution. Where a decision contravenes a fundamental right, it is not a case of mere wrong decision. A decision overriding a constitutional limitation is without jurisdiction and a nullity”

(c ) Dr Basu’s criticism of Gajendragadkar CJI’s “approach” in Naresh applies with equal force to the Court’s “approach” in Rupa:

“ Apart from all this, the very approach of Gajendragadkar CJI, on this point,is oblivious of the fact that the Court was dealing with the Constitution of India. To start with the deficiencies of the English prerogative writ of certiorarito curtail the guaranteed right under Art 32 , was to put the cart before the horse.” Basu, Commentry Vol A/1 (1996) p. 261 at p. 263

(d) It is surely a point res nova to reflect on a pertinent question of contextual relevance:

What happens if there is no right of appeal, and the matter is brought before the Supreme Court under Art 32? Would the Court refuse relief on the ground that it would not interfere with an error in the decision unless the error is apparent on the face of the record; or should the Court, as the guardian of Fundamental Rights, perform its constitutional duty by reversing the decision which has become a nullity owing to its being founded on a void law ?

(e) This issue can be closed by a short submission that there can be cases, of course rare, when the validity of the Judgment of this Court is itself under question on the ground that it stands in breach of fundamental rights. A review under Art 137 is not appeal. Besides, it is disposed of by the same judges who had decided the case, and that too by circulation in chamber. This can be considered an appeal. Then what is the remedy left? The British courts do not enforce fundamental rights, so they can never conceive of an issue of this sort. The U.S Supreme Court issues certiorari to the Supreme Courts of the States to uphold fundamental rights. At times, it issues writ to set right even its earlier orders. The British courts have shown readiness to mend themselves by adopting different ways. Lord Hailsham L C observed in R v. Shivpuri, which reversed Anderton v Ryan[43] decided on May 19, 1985, approving the dictum of Lord Bridge: “If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better’. This consideration must be of all the greater force when the error is, as in the present case, to be corrected by a palinode composed by one of the original authors of the majority judgment.” In such cases remedy is granted ex debito justitiae (meaning as of right).[44] It is to be noted that the reach of the doctrine of ex debito justitiae is very wide in reach, and its benefit is obtained as a matter of right.

8. Apropos Point (e) “That no judicial order passed by any superior Court can be said to violate any of the fundamental rights enshrined in Part III.” this author would submit that he would be delighted if it happens so always. It did not happen in Antulay, and it did not happen in many other cases vide para 9 infra. But Dr. D. D. Basu has made an illuminating comment thus:

“The assertion in the concurring judgment of Sarkar, J. [(1966) S C R 744 at p.774], that “a legally valid act cannot offend a fundamental right”, offends against the very foundation of constitutional jurisprudence.”[45]

To hold that that fundamental rights cannot be affected by a judicial decision is not

correct either in USA or India. ]. In Bridges v. California the US Sup. Court annulled a conviction for contempt of court where it was inconsistent with the freedom of expression. In India it is specified as an exception under Art 19(2) but the exception would be available only where the act has a tendency to undermine the administration of justice. A mere scurrilous attack on a judge cannot be punished as ‘contempt of court ( Sodhi Shamsher v. State of Punjab AIR 1956 SC 541). This clause authorizes the State to impose restriction s upon the freedom of speech only on certain specified grounds so that if , in a particular case, the restrictive law cannot rationally be shown to relate to any of these specified grounds, the law must be held to be void.[ Sodhi Shamsher v State of Pepsu AIR 1954 SC 276; Romesh Thapar v State of Madras (1950) S.C.R. 594]. A 3-Judges Bench allowed a joint Writ Petition and quashed a judicial order of Rajasthan High Court which had directed a death sentence to be executed by public hanging, on the ground, inter alia, that such direction would violate Art 21 [AG. V. Lachima AIR 1986 SC 467 at 468 ].

9. In Rupa, this Court was not correct in holding that Supreme Court Bar Association v. Union of India [ AIR 1998 SC 1895 C.B.] and M. S. Ahlwat v. State of Haryana [AIR 2000 SC 168 (a three-Judge Bench) ], which had quashed, on Writ Petitions under Art 32, certain earlier decisions of this Court, couldn’t be read as authority for the proposition that a writ of certiorari under Art. 32 would lie to challenge an earlier final judgment of this Court as in “those cases no one joined issue with regard to the maintainability of the writ petition under Art. 32 of the Constitution.” This view is clearly erroneous for the reasons some of them are these:

(i) In both the aforementioned Writ Petitions, the Petitioners, Respondents, and the Court could not have proceeded without a conscious decision that this Court had jurisdiction to intervene to provide remedy under Art 32. This point was obvious: it must be taken for granted that all must have known. What was obvious to the players in the game, needed no disputation, required no forensic polemics.

(ii) Issues are never “joined” when neither the Petitioner nor the Respondent, nor the Court labours under any doubt as to the rightful jurisdiction for granting remedy.

(iii) The Constitution Bench in Supreme Court Bar Association Case shows that Antulay’s Case was uppermost in its judicial consciousness. It is reasonable to presume that the Court was of the view that Antulay did not lay down any law to prevent it from exercising jurisdiction. The Court was right in feeling that the subject-matter of the case required for actual decision was something else. Observations on certiorari were mere judicial musings. In M. S. Ahlwat this Court refers to Supreme Court Bar Association ; and thus, by inevitable implication, shows an awareness of Antulay, and of all that was said therein. This Court granted remedy under Art 32 with the full knowledge of the past requiring no more judicial inquest. In Rupa this Court missed the right perspective; hence went patently wrong.

(iv) In both the aforementioned decisions this Court has shown a specific concern to explore the rightful frontiers of its constitutional jurisdiction. It was a right thing to do as under our Constitution even this Court is a Court of limited jurisdiction. If it travels beyond its constitutional jurisdiction its act is a nullity, hence void (of course, valid till reversed by it ). A concern for right jurisdiction , in our country, is as much a concern of the courts stricto sensu, as of other tribunals. In England the judicial system is the by-product of her politico-constitutional history: in India it is an architecture designed and determined by our Constitution under its parameters. Our Sup. Court has commendably devised the right approach in the aforementioned cases (as also in Antulay where this Court realized the propriety of granting a constitutional remedy; of course, the remedy granted to the full satisfaction of the Petitioner was by invoking the doctrine of ex debito justitiae in exercise of the Court’s inherent power). The observation of Rajendra Babu J., speaking for the Court, in M.S. Ahlawat (para 15):

“To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience”

reminds one the commendation by Lord Hailsham of St. Marylebone L.C in R v. Shivpuri[46] of Lord Bridge’s view:

“But there is obviously much to be said for the view about to be expressed by my noble and learned friend that “If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better’.”

The silence, in the abovementioned two cases on the issue with which this author is concerned here is, to say in the words of D G Rossetti: “’Tis visible silence”. Let us not, to quote Baron Anderson in R v. Hodge[47], “supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.”

10. In Rupa’s Case decided the issue under consideration on the “concession” by counsels of both the sides which had the effect of blurring the forensic focus by extinguishing the heat and light that a CONTEST inevitably generates. Salmond thus states the correct legal position:

“For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides…In course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him…. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision[48].”

--Also London Hospital v. I.R.C[49] & Cordell v. Second Clanfield Properties (1969) 2 Ch 10

Naresh S Mirajkar[50] & Antulay,[51]: their rationes and relevance to the points under consideration

On the correct analysis of the cases discussed by the Court it is seen that none of the cases discloses any ratio to support the Court’s aforementioned view. This author is driven to this view after a most careful analysis of the cases analyzed by applying the standard technique for determining the ratio of a case, whether of Professor Wambaugh’s “reversal” test or of Dr Goodhart’s “material facts” test.

11.(i) In Rupa, this Court erred in stating that in Naresh a “Bench of nine learned Judges of this Court considered the question whether the impugned order violated fundamental rights of the petitioners under Article 19(1)(a) and if so, whether a writ under Article 32 of the Constitution would issue to the High Court. The Bench was unanimous on the point that an order passed by this Court was not amenable to the writ jurisdiction of this Court under Article 32 of the Constitution.” In fact the majority judgment and the concurring judgments, expressly limit their decision to the violation of fundamental rights under Art 19(1) [vide para 16 at p. 7; para 18 at p. 8 of AIR 1967 SC 1]. As the Court held that Gowda’s fundamental right under Art 19(1) had not been breached, there was no occasion to consider the consequent and subsequent question whether it is amenable to jurisdiction of this Court under Art 32 of the Constitution. “The majority view that a writ did not lie, is clearly obiter because the point did not call for decision on the finding that fundamental rights were not violated. But apart from being obiter, these observations are unfortunate, because the majority judgment and concurring judgments expressly confined themselves to the violation of Art 19 and did not consider whether it could never have been intended that fundamental rights directed to judiciary could be set at naught by the judiciary and the party affected by such violation should be left to the expensive procedure and hazard of successive appeals or driven to appeal to the discretionary power of the Supreme Court under Art 136.”[52]

(ii) It would be unwise to think that Naresh decided what this Court in Rupa thinks it decided. The decision in Naresh did not even refer to Articles 12 and 13 of the Constitution, nor it examined the terms of Art 32. The observations are at best casual dicta. This Court itself observed in Naresh: “ Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them: but this requirement becomes almost compulsive when the Court is dealing with constitutional matters.” [para 16 at p. 7].

In Ranchhoddas Atmaram v Union this Court held that the observations in three of its decisions, were not binding because :the question was never required to be decided in any of the cases and could not, therefore have been, or be treated as decided by this Court.”[53]

(iii) It is submitted that unless the High Courts or Division Benches of this Court were clearly excluded from the writ jurisdiction of the Supreme Court, the provisions of Art. 14, 20, 21, and 22 show that an appropriate writ would be available against the action of a judge who violated the rights contained in these Articles.

(iv) This Court in Naresh was misled by a passage in Halsbury (Vol. 11 pp 129-30) to say erroneously:

“The ultimate proposition is set out in the terms: "Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction". These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.”

Unfortunately the attention of this Court was not drawn by any one of the eminent counsels to the Supplement to Halsbury (1965) which showed that the statement quoted above was not correct and that a writ to quash the decision of an inferior court did lie, vide H M Seervai, Const Law pp 396-97. It is regrettable that the statement made as early as Jan. 1963 in Vol. 3 (p.519) of the Fourth Edition of Dr. Basu’s Commentry on the Const. , citing two decisions of 1959-60, was not brought to the notice of the Court in Naresh’s Case.

(v) In Naresh, Gajendragadkar CJI formulated a constitutionally untenable proposition, though, of course, obiter:

“But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19 (1).What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more.

“ But, apart from the fact that the exclusion of a judicial decision emasculates the concept of ‘State action’ as embodied in Art 12, it is not supportable either on juristic principles or on the very text of Art 12 itself; and the minority judgment of Hidayatullah, J. is preferable.”

The Commentator analysed the proposition by Gajendragadkar CJI and set forth detailed

reasons to show that the judicial view is unsound [ Basu, Commentry /1 (1996) pp 259-261.This led the learned Author to conclude at p. 262:

“ Once we reach the conclusion that a judicial decision which contravenes a fundamental right is without jurisdiction and void, there would remain no other reason why such a void decision of an inferior court Court cannot be quashed by a collateral proceeding under Art 32, apart from appeal”

(vi) It is not relevant to consider whether the court is a court of record or not, because the county courts in England are by statute constituted courts of record Halsbury Vol 9, p 346 and fn(i). The courts of record are those whose acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony, and which have power to fine or imprison for contempt. (Black’s Law Dict.;3 Bl. Comm. 24). The concept has no relevance in the context of the issue under consideration.

(vii) Nowhere this Court in Naresh articulated an appropriate decision for which Rupa considers it an authority. The question to ask is whether the High Courts are inferior courts vis-vis the Supreme Court for the purposes of issuing writs of certiorari and other appropriate writs under Art 32. Dean Pound. Said: “ Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude.” --H M Seervai, Const Law 4^th ed p 398 para 7.114

(viii)The reference made in the majority judgment to Daryao v UP which applied the doctrine of res judicata to petitions under Art 32 is based on considerations much different from those relevant to the question under consideration.

(ix) In Naresh, Mr. Setalvad has conceded that if a Court of competent jurisdiction makes an order in a proceeding before it, and the order is inter partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Art 32.[54] Like Rupa, this issue in Naresh had been decided on the counsel’s concession, hence is exposed to same criticism which has been made vide para 10 supra.

(x) After a careful analysis of Naresh, H M Seervai comments (at p. 399 para 7.116);

“It is submitted that the dissenting judgment of Hidayatullah J. is correct on all the three questions raised in the petitions. It is to be hoped that the large number of obiter dicta in Mirajkar’s Case will hereafter be treated as such by the Supreme Court and rejected, or will be buried by being ‘strictly confined to the facts of that case’”

It is most respectfully submitted that this Hon’ble Court should treat this criticism by an eminent jurist the way the House of Lords treated the article written by Professor Glanville Williams entitled “The Lords and Impossible Attempts, or Quis Custodiet Iposos Custodies? [1986] CLJ 33 which led the House of Lords in R v. Shivpuri to overrule a decision of the House given only a year back.

(i) In Rupa this Court, it is submitted, erred in its view of what constitutes the ratio in A. R. Antulay v. R. S. Nayak and Anr[55]. The material question was thus formulated:

“The main question involved in this appeal, is whether the directions given by this Court on 16th Feb. 1984, as reported in R.S. Nayak v. A.R. Antulay, (1984) 2 SCR 495 at p. 557: (AIR 1984 SC 684 at p. 718) were legally proper. The next question is whether the action and the trial proceedings pursuant to those directions are legal and valid. Lastly, the third consequential question is, can those directions be recalled or set aside or annulled in these proceedings in the manner sought for by the appellant”.

Other observations in Antulay are all obiter open to the same criticism which is deserved by

(ii) This Court held in Antulay, with a majority of 6:1, that the directions given by it in 1984 were given without jurisdiction as the directions had the effect of violating Antulay’s fundamental right under Art. 14 of the Constitution of India. The Court granted him remedy ex debito justitiae. In A. R. Antulay. v. R. S. Nayak and Anr remedy sought by the Writ Petitioner was granted by the Court through a direction given ex debito justitiae which removed the petitioner’s grievance fully. For him it hardly mattered whether his grievance was settled by resorting to a writ or order under Art. 32, or by a decision Ex debito justitiae. Hence this Case did not provide an appropriate occasion for exploring law under the white-heat of the forensic process.

(iii) Antulay’s matter which was referred to a Bench of 7 Judges was on appeal. Mukharji articulates the two questions involved in the appeal in para 19 at p. 1542 of AIR 1988 SC 1531. The terms of Articles 12 or 13, or even 32 were nowhere examined in any of the judgment delivered in the case. The Court adopted the tradition of the British Court by setting aside the impugned order by power ex debito justitiae. It is the procedure which is adopted in appropriate cases in the U.K.: vide Isaacs v. Robertson [1984] 3 All ER 140. Rupa has unfairly emasculated even this doctrine by turning it into a discretionary doctrine of judicial grace terribly constricted, shorn of its wide legitimate dimensions. The point is not being pursued here.

(iv) This Court decided Supreme Court Bar Association v. Union of India and M. S. Ahlwat v. State of Haryana with the full consciousness of Antulay ( and by express implication, Naresh) It noticed nothing therein to decline a remedy under Art 32. This Court noticed the frontiers of actual decision (and emanating ratio ) of Antulay with a precision and insight conspicuously absent in Rupa.

13. In the end, this author submits, with humility, that the decision in Rupa’s Case is not correct, and deserves a re-consideration by the Hon’ble Court in an appropriate proceeding.

[1] Budhan Chowdhury v. Bihar A. 1955 sc 191; Ujjam Bai v. UP A 1962 SC 1621; Naresh Sridhar v Maharashtra A.1967 SC 1; A.R. Antulay v. R.S. Nayak A 1988 SC1532.; Rupa Ashok Hurra vs. Ashok Hurra & Anr. (2002 (4)S.C.C.388)

[5] ‘Whenever law giveth any thing, it gives a Remedy for the same.’Tomlins Law Dict.

[8] When power gets coupled with duty : vide Julius v. Bishop of Oxford (1880)5 App. Cas.214,223 Quoted by H. M Seervai , Constitutional Law of India, VOL II 4^TH ed. p. 1494.

[9] “The Constitution designedly used a wide language in describing the the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England, but the scope of those writs also is widened by the use of the expression” nature”, for the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them…´[Dwarka Nath v ITO AIR 1966 SC 81 at p 84 para 4]

[10] Rochester Corp v. R. cited with approval in Comptroller & Auditor-General of India A I R 1987 SC 537 , 545

[11] “When two words such as include and comprise have roughly the same meaning, examination will generally reveal a distinction; and distinction between the present two seems to be that comprise is appropriate when the content of the whole is in question, and include only when the admission or presence of an item is in question: good writers say comprise when looking at the matter from the point of view of the whole, include from that of the part. With include, there is no presumption (though it is often the fact) that all or even most of the components are mentioned: with comprise, the whole of them are understood to be in the list.” New Fowler’s Modern English Usage 3^rd ed by R W Burchfield

[14] Bertrand Russell, History of Western Philosophy Chapter XIV “Locke’s Political Philosophy.’ p. 615

[17] It is this line of thinking which made Prof. Holdsworth to recognize the theoretical impossibility of a judgment of a superior Court being a nullity, even if it had acted coram-non-judice, as “there is no legal tribunal to enforce that liability.” History of English Law Vol. 6 page 239

[18] --Hood Phillips’ Constitutional and Adminis. Law p.371; - Holdsworth, Hist. of English Law Vol 6 p. 238; --for Indian tradition: Valmikiya Ramayan WP p. para

[23] “In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution. ….The directions have been issued without observing the principle of audi alteram partem.” Per Sabyasachi Mukharji J. (for himself, G. L. Oza and S. Natarajan JJ. Majority view) .

[24] -- Per Lord Roskill, CCSU v. Minister for the Civil Service [1984] 3 All ER 935 at 955 H.L; -Cosgrove, The Rule of Law: A.v. Dicey:Victorian Jurist (1980) p. 177

[37] The distinction between the rule of practice and the rule of law. Dias,Jurisprudence 5^th Ed p.132

[38] -H M Seervai, Const Law 4^th Ed p. 397; -- Wade, Administrative Law 7^th ED p. 639;

[42] Basu, Commentry A/1 (1996) p. 269; Seervai, Const. Law pp 724-5 para10.47; Bridges v. California (1941) 314 US 252 Headnote 4]

[44] R v. Shivpuri [1986] 2 All ER H.L. 334; -Isaacs v Robertson [1984] 3 All ER 140 at p 143d-e.

[46] [1986] 2 All ER H.L. 334 Lord Hailsham of St. Marylebone L C ,, lord Elwyn-Jones, Lord Scarman, , Lord Bridge of Harwich and Lord Mackay of Clashfern.

[50] Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr. [AIR 1967 SC 1]

Rupa Ashok Hurra vs. Ashok Hurra, it is submitted, was wrongly decided

By Shiva Kant Jha