Professional Documents
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Whether Judiciary Is State
Whether Judiciary Is State
Guarding the Guards: The Judiciary as State within the meaning of Article 12 of the
Constitution
Author(s): Kalyani Ramnath
Source: Student Bar Review, Vol. 18, No. 2 (2006), pp. 75-94
Published by: Student Advocate Committee
Stable URL: https://www.jstor.org/stable/44306656
Accessed: 10-07-2019 07:15 UTC
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Guarding the Guards: The Judiciary as State
WITHIN THE MEANING OF ARTICLE 12 OF THE
Constitution
Kalyani Ramnath*
This note deals with the possible inclusion of the Judiciary within
the meaning of Article 12 of the Indian Constitution. This would
clear the way to hold judges in their judicial capacity accountable
for violation of fundamental rights. In the light of the recent decision
of the Supreme Court allowing for " curative petitions ", there are
avenues to challenge a judicial decision which has achieved finality,
under the writ jurisdiction of superior courts on the basis of violation
of Fundamental Rights, remains open to debate. The article focuses
on the discussion of case law upto the decision in the Rupa Ashok
Hurra case. Further, arguments for treating the Judiciary as State
are considered, by drawing comparisons with the United States
Constitution. Finally, the recommendations of the National
Commission to Review the Working of the Constitution are
considered. The author argues that precedents amply illustrate that
the Judiciary is capable of violating Fundamental Rights, and
therefore it should be brought within the ambit of Article 12.
I. Introduction
B. Fundamental R
through Writs?
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Vol. 18(2) Student Bar Review 2006
Power?
IV. Conclusion
I. Introduction
On the one hand, the Judiciary is the organ of the State that decides the
contours of the Fundamental Rights. Their determination, of whether an a
violates the same, can be right or wrong. If it is wrong, the judicial decision cann
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The Judiciary as State
This note, in the first part, looks at the development of case law in India
pertaining to the Judiciary as State. In spite of the fact that Justice Hidayatullah's
judgement in Naresh Mirajkar v. State of Maharashtra4 remains the only positive
authority, it appears that while the courts have time and again emphasized their
unwillingness to extend their support to this proposition, the remedies that they
recommend seem to indicate the opposite. In the second part, this note attempts
to make out a case for Judiciary being considered "State" for the purposes of
Article 12. This is done using parallels from the U.S. Constitutional Law and further
analyzing the recommendations of the National Commission to Review the
Working of the Constitution in this regard.
(2) Subject to the provisions of any law made in this behalf by Parliament,
the Supreme Court shall, as respects the whole of the territory of India,
have all and every power to make any order for the purpose of securing
the attendance of any person, the discovery or production of any
documents, or the investigation or punishment of any contempt of itself.
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Vol. 18(2) Student Bar Review 2006
Article 12 defines "State" for the purposes of Part III of the Consti
does not expressly mention the Judiciary. However, through judicial
interpretation, it is possible to bring it under "other authorities" mentioned in the
Article. A reading of the Constituent Assembly Debates regarding Article 12 shows
that there was reasonable apprehension regarding the wide scope afforded to the
term "authority" as used in Draft Article 7. It was felt that "...a magistrate or even
a petty officer in authority (could) rightly claim under this article to have the
authority to abridge a citizen's (fundamental) rights."6 The apprehension that
those wielding judicial power could violate the rights guaranteed by Part III was
evident even then. Dr. Ambedkar proceeded to define "authority" as "every
authority which has the power to make laws or the power to have discretion
vested in if. 7 [emphasis added.] Although it is a point of contention, whether the
term "discretion" here refers to administrative or judicial discretion, it is possible,
reading it together with the reference to magistrates, that the Constitution makers
meant to bring the Judiciary under Article 12. This is further supported by the
fact that the definition is clearly inclusive and not exhaustive.
To discern the position of the Judiciary vis-à-vis Article 12, inferences have
to be drawn from its stance on whether or not judicial decisions or orders can
violate the fundamental rights of the citizens and whether the same can be remedied
by resorting to the writ jurisdiction of the superior courts, hence bringing it under
the purview of Part III of the Constitution.
Definition: In this part, unless the context otherwise requires, "the State"
includes the Government and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of
India.
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The Judiciary as State
within the ambit of Article 12. Before discussing Mirajkar , a preliminary review of
prior cases shows a definite trend in this direction.
The case does not directly deal with the question of whether the Judiciary
falls within Article 12. However, it does raise several interesting points of debate.
Firstly, agreeing upon the harmonious construction of Articles 32 and 142, it is
clearly concluded that complete justice should not entail the loss of fundamental
rights, notwithstanding the subjective nature of what constitutes "complete
justice", as is seen in the majority and dissenting judgments in this case. In fact,
9 A.I.R. 1963 S.C. 996. The Court, in this case, directed that the petitioners should
deposit a security of Rs. 2,500/- in cash within six weeks under Rule 12, Order 35 of
the Supreme Court Rules, 1966. The petitioners found it difficult to raise this amount
and subsequently moved the Court, contending that the impugned Rule, in so far as
it related to the giving of security, was ultra vires , because it contravened the
Fundamental Right under Article 32 of the Constitution.
10 Constitution of India, 1950, Article 145:
Rules of Court etc. - (1) Subject to the provisions of any law made by
Parliament, the Supreme Court may from time to time, with the approval
of the President, make rules for regulating generally the practice and
procedure of the Court including -
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The Judiciary as State
14 Mirajkar, id . at 12.
15 Mirajkar, supra note 13, at 28.
16 Mirajkar, supra note 13, at 29.
17 Mirajkar, supra note 13, at 33, 34.
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The Judiciary as State
The majority judgment held that since the offences could be triable by Special
Judges only, the order transferring the cases to the High Court was unauthorized
by law. By its directions, the Supreme Court could not confer jurisdiction on the
High Court, such power being purely legislative. A superior court could always
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The Judiciary as State
relevant statutory provisions and binding precedents had been ignored. In such
"extraordinary" circumstances, the only way out was resort to Article 32, itself a
fundamental right. This implicitly leads one to infer that since the Judiciary is
willing to be subject to Article 32 by reconsidering its decision, it is subject to
fundamental rights. Therefore, it would follow that the Judiciary needs to be
explicitly brought within the meaning of State under Article 12, and not resort to
terming it "an inherent jurisdiction" or by citing legal maxims.
The dissenting judgment in this case holds that inherent privilege in judicial
decision making gives it leeway to make an erroneous decision, which may violate
fundamental rights. The judgment is right insofar as it says that the binding power
of a judgment or the jurisdiction of the Court should not depend upon the
correctness of its exercise. However, to say that allowing writ petitions under
Article 32 would open "unprecedented procedural floodgate. ..enabling]
repetitive challenge"26 and unsettle the law seems to be an exaggerated prediction
of consequences. The "unattainable ideal" of correctness of judicial decisions
which Venkatachaliah, J. talks about in his dissenting opinion is based on the
fallibility of any Court.27 But it is this very fallibility which necessitates the need
for bringing in the Judiciary under Article 12.
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The Judiciary as State
Firstly, the Court had awarded a punishment which was not recognized or
accepted, i.e. under contempt powers, to suspend an advocate's license and debar
him from practicing. The powers to do so are vested with the Disciplinary
Committees of the Bar Councils if professional misconduct is proved. Under the
Supreme Court Rules, the Court could withdraw his privilege to practice as an
Advocate-on-Record, but this did not amount to* revoking the licence of the
advocate. Secondly, the power to do complete justice under Article 142 is a
corrective power, but usurping the jurisdiction of the Bar Council would be violative
of due process. Article 142 could be used as a "residual source" of power to prevent
"clogging or obstruction of the stream of justice", but the same cannot be used to
violate substantive rights of a litigant. As Justice Anand eloquently put it, "Article
142, even with the width of its amplitude, cannot be used to build a new edifice
where none existed earlier."37
The Court observed in the instant case that it was its duty to make statutory
bodies and other organs of the State perform their functions, but that it could not
take over the functions of these bodies. Here, by suspending the licence of the
contemner, the Court had violated "procedure established by law" and hence
Article 21 of the contemner. The majority judgment does admit that an error was
made. Here, although expressly recognizing the nature of the error made, the
Court still does not consider itself State, but only as a body monitoring the State.
But in this function too, as a regulatory body, there might be instances where the
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The Judiciary as State
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.41
Although Antulay , Supreme Court Bar Association and Mirajkar had talked
in terms of grave errors being rectified by the inherent powers of the Court, this
case gives concrete expression to the same. Definite guidelines have been laid
down whereby a curative petition would be entertained. Although the Judiciary
has once again been said to be not part of Article 12, it seems evident from the
reasoning in this case that judicial orders can be questioned on the grounds of
[T]hough Judges of the highest Court do their best, subject of course to the
limitation of human fallibility, yet situations may arise, in the rarest of
the rare cases, which would require reconsideration of a final judgment to
set right miscarriage of justice complained of. In such case it would not
only be proper but also obligatory both legally and morally to rectify the
error.
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Vol. 18(2) Student Bar Review 2006
The Supreme Court in the case of Union of India v . Azadi Bachao Andolan 46
upheld the validity of circular issued by the Central Board of Direct Taxes regarding
the Indo-Mauritius Tax Treaty, regarding the certificate of residence issued by
Mauritius regulatory authority, which would allow them to gain important tax
exemptions. A curative petition was filed on the grounds that the decision
sanctions the concept of "treaty shopping" and that it has gone against the
Constitution since delegated powers of the Government had been granted privilege
over statutes. A five-judge bench had been set up to consider whether it should be
admitted,47 and was subsequently dismissed.48
Firstly, as one of the "three great departments of the State", the Jud
should also be included within the meaning of Article 12. If it were not, th
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The Judiciary as State
making powers of the Court could violate fundamental rights with impunity.51 The
dicta of Justice Frankfurter in Snowden v. Hughes' * is relevant as he states "...if
the highest Court of a State should candidly deny to one litigant a rule of law which
it concededly would apply to all other litigants in similar situation, could it escape
condemnation as an unjust discrimination and therefore a denial of the equal
protection of the laws?"
56 100 U.S. 313, 318 (1880) cited from D.D.Basu, A Commentary On The Constitution Of
India 142 (1970) [hereinafter Basu]. In this case, it was observed:
It is doubtless true that a State may act through different agencies - either
by its legislative, its executive, or its judicial authorities; and the
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The Judiciary as State
could be quashed if the aggrieved party can prove that the method of their trial
denied them the equal protection of the laws.
IV. Conclusion
64 M.N. Venkatachaliah et al., Report Of The National Commission To Review The Working Of
The Commission (2002).
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