The judiciary is not specifically mentioned in the Constitution's Article 12 description of "State." As a result, there is a lot of debate about its position in relation to Part III of the Constitution. The judiciary would be considered capable of acting against Fundamental Rights if it were to fall under the purview of Article 12. It is well established that in its non-judicial functions, the Judiciary does come within the meaning of State.1 It is still up for debate whether it is appropriate to appeal a judgement that has become final under the writ jurisdiction of superior courts on the grounds of a violation of basic rights.

On the one hand, the State's Judiciary is the institution that determines the boundaries of the Fundamental Rights. They may or may not be correct in their assessment of whether a certain action breaches the same. Even if the ruling is incorrect, it is rare to claim that it violates a person's fundamental rights. If this were permitted, there would inevitably be a party that was not satisfied, which would result in protracted and possibly unnecessary litigation. On the other side, disallowing judicial review could result in a serious injustice that goes unreported simply because the fallibility of the Judiciary is not recognizes.

Despite the fact that Justice Hidayatullah's decision in Naresh Mirajkar v. State of Maharashtra 2 is the only positive decision, it appears that while the courts have repeatedly stated that they are hesitant to back this claim, the solutions they provide seem to suggest the reverse.

An examination through case laws

For the purpose of Part III of the Constitution, Article 123 specifies what a "State" is. The judiciary is not specifically mentioned in it. However, it is conceivable to bring it under the "other authorities" indicated in the Article by judicial interpretation. Reading the Article 12 debates in the Constituent Assembly reveals that there was legitimate concern about the expansive definition of "authority" in the 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 rights.4 Even then, it was clear that there was concern that persons in positions of judicial authority might infringe the rights protected by Part III. Dr. Ambedkar defined "authority" as "every authority which has the power to make laws or the power to have discretion vested in it."5

Although it is debatable whether the word "discretion" in this context refers to judicial or administrative discretion, it is probable that the Constitution's framers intended to include the judiciary within Article 12 by reading it in conjunction with the reference to magistrates. The fact that the definition is obviously inclusive and not exhaustive serves as additional evidence for this.

Inferences about the judiciary's position with regard to Article 12 must be made from its stance on whether or not judicial decisions or orders can violate citizens' fundamental rights and whether such violations can be rectified by turning to the superior courts' writ jurisdiction, bringing them under the purview of Part III of the Constitution.

Can Supreme Court Rules violate Fundamental Rights?

The majority in Prem Chand Garg v. Excise Commissioner6 ruled that the right to file petition in the Supreme Court under Article 32 is an absolute fundamental right that cannot be restricted for any reason. In this case, it was claimed that Rule 12 of Order 35 of the Supreme Court Rules, which required the petitioner to provide security for the respondents' expenses, infringed upon the petitioner's rights under Article 32, a fundamental right.

It was held that court could not make an order inconsistent with rights provided in Part III and any substantive statutory provision. Neither the Supreme Court would be able to disregard Article 32 due to its rule- making authority under Article 1457. However, the minority opinion maintained that the contested Rule merely acknowledged the Court's authority to issue an order requiring security, for which competence is provided by Article 142. It was argued that the fundamental rights should not be given a higher status because Article 142(1) and Article 32 will be interpreted in harmony.

The issue of whether the judiciary is covered by Article 12 is not specifically addressed in this case. But it does bring up some worthwhile discussion issues. First, despite the subjective aspect of what constitutes "full justice," as is evident in both the majority and minority opinions in this case, it is conclusively determined that the loss of fundamental rights should not result from the harmonious construction of Articles 32 and 142. Second, because the Court has the option to order the payment of the security or the case would not be continued, the contested rule actually has an indirect negative impact on Article 32 rights. This is the start of a pattern that illustrates how the judiciary may also infringe upon fundamental rights.

Fundamental Rights and Judicial discretion: A Remedy through Writs?

In this regard, the case of Naresh Shridhar Mirajkar v. State of Maharashtra is a milestone one. The journalist who filed the petition claimed that the Trial Judge's order prohibiting the press from publishing the evidence of the defence witness in a particular case violated his fundamental rights. It was urged before the Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare.8

No witness could claim protection from publicity on the ground that if the evidence is published, it might adversely affect his business.9 The arguments were outright dismissed. The petition was denied by the High Court on the grounds that a court order was not subject to writ jurisdiction. The Supreme Court raised the following points after admitting the petition under Article 32 alleging that the Trial Judge's judicial order violated the plaintiff's fundamental rights under Articles 19(1)(a) and 19(1)(g) of the Constitution: "firstly, whether a judicial order suppressing evidence of a witness on the grounds that his business would suffer, breaches the fundamental right to freedom of speech and expression, entitling the petitioner to invoke Article 32 and secondly, whether the Supreme Court could issue a writ to the High Court in this instance."10

According to the majority, it was necessary to suppress the evidence in question in order to uphold justice and guarantee a "fair trial." Additionally, it was said that the challenged order would not be in violation of Article 19(1)(a), as Article 19(2) protects both the right to hold an in-camera trial and the right to withhold publication. The use of such powers may have an impact on third party rights, but they must be subordinate to the "effective administration of justice." Moreover, since the freedom of speech was affected only incidentally and indirectly, there was no violation of fundamental rights.11

Dissenting opinion of Hidayatullah, J is very noteworthy, who states that:

The word "State" in Articles 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.12

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.13

The majority concluded that because the decree was a judicial order and hence amenable to writ jurisdiction, it should be challenged under Article 136 rather than Article 32. Because the High Courts were not intended to be subordinate to the Supreme Court under the Constitution, their rulings could not be overturned by a writ of certiorari issued by the Supreme Court. If the High Court erroneously assumes jurisdiction and persons are prejudiced by any order, the proper course is to apply to the Court to "lift the ban".14

The dissenting opinion held that even assuming that the impugned order meant a temporary suppression of evidence, the Trial Judge had no jurisdiction to pass the order.15 Hidayatullah, J. held that evidence could not be barred indefinitely in this regard. Judges may offend the fundamental rights under Articles 14, 15, 19, 20, 21 and 22 and in such cases an appeal to the Supreme Court would be the only logical solution.16 Since there is no exception in Article 32 relating to the High Courts, it is assumed that High Courts are not excluded from the writ jurisdiction of the supreme court.17

In this case, it is obvious that the petitioner's fundamental rights were violated by the oral order.

Firstly, the majority judgment says that a trial may be held in camera if the Court so desires and that curbing the publication of the proceedings would be an extension of the same inherent powers.18 Only one witness is testifying in camera in this case, and the whole trial is not being held in camera.

Second, the Court is not required to defend the commercial interests of witnesses who testify in front of it, and particularly not at the expense of a transparent and fair administration of justice.

Thirdly, what would be the "appropriate" remedy against a final decision of a Court which is prima facie violative of fundamental rights?19 In particular, if due process has not been followed, Hidyatullah, J.'s justification for bringing the judiciary under Article 12 seems reasonable.

The arguments raised in this case have broad repercussions. The question of freedom of expression, one of the fundamental rights that the judiciary may regularly potentially breach, is the subject of this case. The judgement does, however, make mention of the other fundamental rights that the judiciary may violate. Justice Hidayatullah's decision makes a reference to two ways in which such violation may take place - firstly, through the Court assuming jurisdiction to make rules, and decisions based upon such rules being flawed and secondly, saying that the Judge's action (not the judicial decision itself) could be violative of fundamental rights.20

As a result, many of the aforementioned violations are due to procedural issues. In turn, this procedure must be in accordance with the fundamental rights themselves, such as Article 21's "procedure established by law." With the expansive manner in which "life" and "liberty" are being interpreted (even in their restricted senses), judicial decision-making processes could attract fair amounts of criticism.21

A.R. Antulay Case

The Apex Court's decision to suo motu transfer a case to the High Court was challenged in the case of A.R. Antulay v. R.S. Nayak 22. The appellant's contention that only a Special Judge could hear the case was denied. The writ petition challenging the legality of this Court's order and verdict was deemed a nullity by the Supreme Court. The appellant filed a Special Leave Petition with the Supreme Court challenging the Special Judge's authority to hear the matter in breach of his fundamental rights guaranteed by Articles 14 and 21 and the Criminal Law Amendment Act of 1952. The Special Judge was a serving judge of the High Court.

According to the majority opinion, the order transferring the cases to the High Court was illegal because only Special Judges had the authority to hear the offences. According to its directives, the Supreme Court could not grant the High Court jurisdiction because such authority was strictly legislative. A superior court could always correct its own error brought to its notice either by way of petition or ex debito justitiae.23 The singling out of the appellant for a speedier trial by the High Court for an offence where it lacked jurisdiction to try persons under the Act was unwarranted.24

In the present case, the Court disregarded important legal provisions as well as the binding precedent set by the ruling in Anwar Ali Sarkar25. Therefore, the directions were false legally. By creating a Special Court for him, the Court violated Articles 14 and 21 of the Constitution considering that avenues for revision and appeal had been close to him.26 According to the concurring opinion, the injustice should be made right by following the actus curiae neminem gravabit principle.

This case was not filed under Article 32 but rather was considered as a Special Leave Petition under Article 136. The Court did, however, consider whether a writ petition may be permitted under Article 32 to challenge a ruling by the court. In this case, it was evident that the Supreme Court had granted the High Court jurisdiction that it was not authorised to grant. It was also acknowledged that relevant legislative formalities and authoritative precedents had been disregarded. The only option under such "extraordinary" conditions was to use Article 32, which is a fundamental right in and of itself. 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.27

Curative Petitions

The Constitution Bench of five judges considered whether a writ petition can be maintained under Article 32 to challenge the legitimacy of a decision of this Court after the review petition has been denied in the landmark case of Rupa Ashok Hurra v. Ashok Hurra 28.

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 gross injustice, under the inherent jurisdiction of the Court.29 It was acknowledged that, in the most exceptional of circumstances, a petition under Article 32 might be considered even in cases where a review petition had been denied.

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 - 40.30 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.31

In this case, Justice Syed Shah Mohammed Quadri emphasised that Article 32 can only be used to enforce the fundamental rights granted in Part III and that no judicial order issued by any superior court in a judicial proceeding can be interpreted as violating any fundamental right because superior courts of justice are not subject to the jurisdiction of the 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.32 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.33

A "curative petition" may be considered on a number of grounds, and the petitioner is entitled to relief ex debito justitiae. It could be applied, for instance, where there has been a violation of the natural justice principles, when a person with an interest is not a party, and when a judge has been accused of bias because he has neglected to reveal his relationship with the parties or the subject of the proceedings. The grounds for the curative petition would need to be stated in detail by the petitioner. It shall have to be certified by a Senior Advocate to the above effect.34 The petition must first be distributed to a Bench consisting of the three judges with the most experience and the judges who rendered the ruling.

The same Bench would hear the case if the majority felt that it was appropriate to reconsider it. Exemplary costs would have to be imposed if the petition was found to be frivolous.35 A separate but concurring judgement was written by Justice Umesh Banerjee. He posed a question as to whether it can be said that the binding nature of an Order of this Court, cannot thus be ever be corrected even if it causes insurmountable difficulty and immense public injury.36 He observed: "Flexibility of the law Courts presently are its greatest virtue and as such justice-oriented approach is the need of the day to strive and forge ahead in the 21st century."37

Although Antulay and Mirajkar had spoken of serious mistakes being corrected by the Court's inherent powers, this case offers that idea tangible form. There are several rules that must be followed before a curative petition can be considered. 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 being violative of fundamental rights, even if it has not been so articulated in the majority judgment.38 Only a perusal of developments subsequent to this case would show whether the guidelines laid down in this case are adequate or whether they encourage frivolous litigation and therefore need consideration.39

A case for concerning Judiciary as State

First off, the judiciary should be included in the definition of state since it is one of the "three great departments of the State." If it were not, the rule-making powers of the Court could violate fundamental rights with impunity.40 In Snowden v. Hughes, Justice Frankfurter's remarks are significant because 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?"41

Secondly, in light of the decision of the Supreme Court in Ujjam Bai v. Union of India,42 a writ of certiorari could also lie to bodies which are under an obligation to act judicially or quasi judicially. Since such a writ is available, it follows that there are some fundamental rights which can be violated by a judge acting judicially in a court. Since the binding power of any judgment of the Supreme Court is based on the fact that it is backed by State which has the power and necessary resources to enforce, it would only be logical that the Judiciary itself be considered part of the State.43

Conclusion
The Supreme Court has done the Constitution well by bringing a huge number of entities under the jurisdiction of "other authorities" as indicated in Article 12. Bringing the Judiciary under the same umbrella is far more problematic, though. A review of cases ranging from Prem Chand Garg to Rupa Ashok Hurra reveals that, even after issuing a categorical declaration that judicial decisions that have attained finality are not subject to challenge, the trend is generally in favour of correcting errors that it had made through a writ petition under Article 32.

Therefore, it can be deduced that the Judiciary also implicitly falls within the concept of State under Article 12 as it has been acknowledged that judicial orders may violate fundamental rights. It is also generally acknowledged that some fundamental rights have been determined to apply to the judiciary as well.

It has been observed that the judiciary objects to being viewed as state, probably because it would undermine their "independence." They pay close attention to factors that have an immediate impact on their judgement or discretion. Even judges can make mistakes, thus it is only fair and in accordance with the principles of the constitution that these mistakes are addressed when they are brought to their knowledge. The irony in this topic is that since the judiciary is not mentioned in the Constitution's text, it will have to be interpreted by the courts themselves if it has to be included within the bounds of Article 12. The judiciary is reluctant to willingly expose itself to examination and criticism, which is why it is reluctant to broaden the scope of Article 12.

The judiciary is a state organ and a governing body. The Judiciary now possesses enormous political influence due to judicial activism, judicial legislation, and a wide range of review powers. It is time for the judiciary to be subject to the demands of Part III of the Constitution in suitable cases as the fundamental rights were intended to be utilised against centres of power when they were first created.

In order to achieve the highest constitutional goals, it is therefore extremely essential to bring the judiciary, which is a product of the Constitution itself, under the purview of Part III.

End-Notes:

1. Ujjam Bai v. State of Uttar Pradesh, AIR. 1966 S.C. 1971.
2. Naresh Mirajkar v. State of Maharashtra, A.I.R. 1967 S.C. 1.
3. Constitution of India, 1950, Article 12.
4. Constituent Assembly Debate, 1950.
5. Ibid
6. A.I.R. 1963 S.C. 996.
7. Constitution of India, 1950, Article 145.
8. Ramnath K, "Guarding the Guards: The Judiciary as State within the Meaning of Article 12 of the Constitution" (2006) 18 Student Bar Review 75 www.jstor.org/stable/44306656
9. Ibid
10. Ibid
11. Naresh Mirajkar v. State of Maharashtra, A.I.R. 1967 S.C. 1.
12. Ibid.
13. Ibid.
14. Supra Note 8.
15. Supra Note 8.
16. Supra Note 11.
17. Supra Note 11.
18. Supra Note 8.
19. Supra Note 11
20. Supra Note 8.
21. Supra Note 8.
22. A.R. Antulay v. R.S. Nayak, (1988) 2 S.C.C. 602.
23. Supra Note 8.
24. Supra Note 8.
25. State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75.
26. Supra Note 22.
27. Supra Note 8.
28. Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 S.C.C. 388.
29. Supra Note 8.
30. Supra Note8.
31. Supra Note 8.
32. Supra Note 8.
33. Supra Note 28.
34. Supra Note 28.
35. Supra Note 28.
36. Supra Note 8.
37. Supra Note 28.
38. Supra Note 8.
39. Supra Note 8.
40. H.M. Seervai, Constitutional Law of India.
41. Snowden v. Hughes, 321 U.S. 1 (1944).
42. Ujjam Bai v. Union of India, A.I.R. 1962 S.C. 1621.
43. Supra Note 8.