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VOLUME III ISSUE I

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WHETHER JUDICIARY WILL COME UNDER THE AMBIT OF
ARTICLE 12 OR NOT?

Deepsikha Choudhury, KIIT School of Law, Bhubaneswar

Divya Prakash Singh, KIIT School of Law, Bhubaneswar

“The judicial system is the most expensive machine ever invented for finding out what
happened and what to do about it” - Irving R.kaufman

ABSTRACT

This article is all about a debatable matter "about the inclusion of judiciary within the ambit
of Article 12 of the Indian Constitution. This will make it more clear about the Judge's
judicial capacity for the violation of the fundamental rights. Considering the decision of the
Supreme court regarding the allowance for a curative petition. There are ways in which
judicial decisions can be challenged even after the decision has been taken. But about the writ
jurisdiction of superior courts with regard to violation of the Fundamental rights still remain
to be a debatable matter. This article also discusses the case law to the decision given in the
case of Rupa Ashok Hurra. Here we also discussed it by making a comparison with United
States Constitution.

Lastly, we considered the recommendation given by the National Commission for the
purpose of reviewing the Constitutions work. In this article, we argued about how the
precedents have ample illustrations which state that the Judiciary have the capability of
violating Fundamental Rights and hence it should be considered within the ambit of Article
12.

Keywords: Constitution ,Article 12 , Fundamental Right , Judiciary, Violation.

WHETHER JUDICIARY WILL COME UNDER THE AMBIT OF ARTICLE 12 OR
NOT?

The definition of the state as mentioned in article 12 of the Indian Constitution does not
include judiciary clearly. So, there is a big amount of controversy going on about its status in
part 3 of the constitution of India. If we will bring the judiciary under the ambit of Article 12
then it will become capable of acting against the Fundamental Rights. However, it is clear in
the current time that it comes within the ambit of Article 12 while performing its functions
other than judicial functions for example administrative function. Hence, Judiciary does come
within the ambit of Article 12. But still, the matter of challenging any judicial decision which
is stated to be final by the way of writ jurisdiction of the superior courts in regard to the
violation of fundamental rights is a matter of debate. The other function of the Judiciary is
that it is the state's organ and it decides the boundaries of Fundamental Rights. Their findings
of whether that act in question violates Fundamental Rights can be either correct and
incorrect. In case the finding is incorrect then the decision given cannot be stated as it
violates Fundamental Rights. If we could say those decision to be in violation of
Fundamental Rights then it will take longer than usual which would be necessary and as we
know that there is always an unhappy and unsatisfied party left at the end. But if we will not
allow these decision to be challenged and to be put in question then there is a probability that
miscarriage of justice could occur and this will result in ignorance of the fault because the
propensity of the judiciary to make mistakes is not recognized.

The question over here arises that "is this the intention of constitution-makers about judiciary
to fulfil?", "what are the perks we can achieve if we will include judiciary in the ambit of
Article 12?", "will including Judiciary under this the ambit of Article 12 will ensure
Complete justice as mentioned in Article 142?".

INTERPRETATION OF JUDICIARY ON WHETHER JUDICIARY COMES UNDER

THE AMBIT OF STATE:

The "State" is defined in Article 12 under Part 3 of the Constitution. Judiciary is not
expressly mentioned in Article 12. we can consider Judiciary under "other authorities" which
is given in the article. A debate that happened in the Constituent Assembly about Article 12
express that there is a reasonable apprehension showing the scope which is there for the word
"authority" as used under Article 7. The term authority was defined by Dr BR Ambedkar as
he said that "every authority have the power to make laws and to have discretion indulged in
it". However, it is a point to rethink about that whether the word discretion refers to judicial
or administrative.

To identify the position of Judiciary under the ambit of article 12, some points were
considered from the same about whether the judicial decision can result in violation of the
fundamental rights and if the remedy for that could be by issuing writ jurisdiction of the
superior courts by considering it under the ambit of Part 3 of the Constitution of India.

RULES MADE BY SUPREME COURT CAN VIOLATE FUNDAMENTAL RIGHTS

OR NOT?

In Naresh Mirajkar v. State of Maharashtra1, Justice Hidayatullah gave a decision that was
clearly in favour of including Judiciary within the ambit of Article 12. Before his decision,
many previous cases showed that this intends to bring Judiciary under Article 12.

In Prem Chand Garg v. Excise Commissioner2 case, it was stated that the right given under
Article 32 is an absolute right. In this case, it was held that the court cannot give orders which
is inconsistent with substantive statutory provisions or Part 3 of the constitution of India. Nor
Supreme Court's power under Article 145 for the purpose of making rules allows it to go
against Article 32.

This case is not directly questioning the presence of the Judiciary within Article 12. But this
does consists of some very interesting points which is debatable. Like favouring the
construction of Article 142 and 32 stating that complete justice should not result in loss of
fundamental rights.

The challenged rule does impact article 32 indirectly because the court's discretionary power
can allow declaring that the case will not be tried any further.

1
A.I.R. 1967 S.C. 1 (India)
2
A.I.R. 1963 S.C. 996 (India)
In the Budhan Choudhry v. State of Bihar3 case, the main issue was that "can judiciary
violate Article 14 or not. However, it was suggested that whether it is executive, legislature or
judiciary, any of them could be guilty of violating article 14.

A REMEDY THROUGH WRITS:

The landmark case for remedy through writs is Naresh Shridhar Mirajkar v. State of
Maharashtra4.In this case, a journalist was the petitioner who argued about the order given
by the Trial Judge to the press. The order was restricting the press to publish witness of
defence's testimony in a case which was violating their fundamental rights. It was pleaded
before the judge that the fundamental principle for administering justice was to make it open
in public. No witness could seek protection from publicity for the publication of evidence as
it might affect his business. The argument was rejected. The petition was dismissed stating
that the judicial order is manageable by the way of writ jurisdiction.

The Supreme court took the petition under article 32 because the fundamental right was
getting violated under Article 19(1)(a) and 19(1)(g) by the judicial order of the Trial Judge.
This violation brought up some issues which are:-

if the order given is suppressing the pieces of evidence stating that the business would suffer

breach of the right to freedom of speech and expression which is a fundamental right

allowing the petitioner to invoke Article 32

Does the Supreme Court have the capability to issue a writ to the High Court in this regard?

It was stated by a majority that suppression of evidence which was brought in question was
necessary in order to provide the reason of justice i.e. "fair trial". It was believed that the
questionable order would not result in violation of Article 19(1)(a) as the powers to hold a
camera trial or to hold the publication were protected because of Article 19(2).

But the third party may get affected by the exercise of powers like these. Anyways, the top
most important thing to be considered is the effective administration of justice and all these

3
A.I.R. 1955 S.C. 191 (India)
4
A.I.R. 1967 S.C. 1 (India)
will be secondary. And as the freedom of speech got affected by mistake hence no
fundamental right got violated.

As the willingness of the judiciary to jurisdiction, it was held that the order will not be
challenged under article 32 but it will be challenged under article 136. Our constitution didn't
think about the high court to be inferior to the supreme court hence the decision will not say
to be suppressed because of the issuance of writ by the supreme court. If in any case High
court falsely assumes jurisdiction and a person suffered an injury because of any order then
there is a process to be executed in the Court to lift the ban. The contradicting opinion stated
that even assuming about the questionable order means suppression of evidence, the trial
judge had no jurisdiction to pass the order.

Hidayatullah stated that pieces of evidence cannot be prohibited permanently. In some

Articles, judges can violate the fundamental rights those are:- Article 14, 15, 19, 20, 21 and
22 and in these cases appealing to the supreme court will be the only sensible solution left. As
there is no exception given in Article 32 with regard to the High court so it is assumed that
the High courts are not excluded from the writ jurisdiction of the Supreme court.

In the Naresh Shridhar Mirajkar case, the oral orders given was clearly violating the
fundamental rights of the petitioner.

Most of the judgement stated that a trial can be held in camera if the court wants it to be held
like that and this restriction on the publication of proceedings can say to be an extension of
the same power. Here, a trial is not held on camera but the testimony of only one person.

The court is not responsible to ensure about the business interest of the witness is protected
and also does not care about the cost incurred in the administration of open and fair justice.

What will be the remedy against the decision of the court which is in violation of
fundamental right? The logic behind Hidyatullah J.'s argument for bringing the judiciary
under the ambit of Article 12 seems to be correct and justified, especially when the due
process is not obeyed. The consequence of the argument that happened, in this case, was far-
reaching. This case deals with the issue of freedom of expression which is frequently violated
by the judiciary. Still, the decision of the case does consider other fundamental rights which
the judiciary might violate. Justice Hidayatullah's decision referred to two ways in which the
violation may occur:The courts assume jurisdiction to make rules and decisions taken on the
basis of such rules consist of some flaws the decision taken by the Judge could be in violation
of fundamental rights Therefore, the majority of the violations happened in the procedural
matter. That's why the fundamental right.

THE FATE OF FINAL DECISION: OPEN TO CHALLENGE?

In the case of A.RAntulay v. R.S.Nayak5, the Supreme Court's decision to suo motu transfer a
case to the High Court turned into a challenge. The objection was raised by the appellant that
the case can be attempted best by using a Special Judge, which was rejected. The Supreme
Court observed that the writ petition which challenged the judgement and order of the court
was turned into nullity. in this case, a special leave petition was filed by The appellant before
the apex court about special judges jurisdiction who was a high court's sitting judge for the
purpose to try those cases which are in violation of fundamental rights which is granted under
article 14 and 21 of the Indian constitution and the provisions of the Criminal Law
Amendment Act, 1952.

The majority judgment held that since the offenses could be triable especially by the Special
Judges, the order of shifting the case to the High Court was unauthorized via law. The
supreme court cannot confer jurisdiction on the high court by giving its direction, such power
is purely vested with a legislative body. An advanced court may want to constantly correct its
very own error introduced to its observe either by means of way of petition or ex debito
justitiae(as a matter of right). The singling out of the appellant for a speedier trial by means of
the High Court for an offence wherein it lacked jurisdiction to try the persons under the Act
turned into unwarranted. In the instantaneous case, the Court had disregarded applicable
provisions of the law and the decision in Anwar Ali Sarkar, which became a binding
precedent. The instructions have been for this reason legally wrong. By the way of creating a
Special Court, the Court violated Articles 14 and 21 of the Constitution thinking that the way
of approaching the court for reviewing the judgement and appeal had been closed to him The
concurring judgement held that the injustice accomplished ought to be corrected with the aid
of applying the principle of actus curiae nemine gravabit which means an act of court shall
prejudice no one.

This case became entertained below a Special Leave Petition under Article 136,

5
A.I.R. 1988 S.C. 1531 (India).
and turned into no longer filed underneath Article 32. the issue about the allowance of a writ
petition below article 32 to challenge the court's decision was considered by the court. Here,
the Supreme Court had truly conferred upon the High Court, jurisdiction which the former
had no authority to confer. It was additionally conceded that binding precedents and relevant
statutory provisions had not been noted. In such "top-notch" instances, the most effective
manner out was motel to Article 32. Therefore, the judiciary needs to be added within the
ambit of the state which is mentioned under article 12.

The dissenting judgment, in this case, holds that inherent privilege in judicial decision
making offers its scope to make an inaccurate choice, which may additionally violate
fundamental rights. The judgment is right insofar as it says that the binding power of a
judgment or the jurisdiction of the Court must not depend on the correctness of its exercising.
However, to mention that allowing writ petitions under Article 32 might open "remarkable
procedural floodgate. Allowing repetitive challenge " and unsettle the law seems to be an
exaggerated prediction of outcomes. The "unattainable ideal " of the correctness of judicial
decisions which Venkatachaliah, J. Talks approximately in his dissenting opinion is based
totally on the fallibility of any Court. But it is this very fallibility that necessitates the want
for bringing judiciary within the ambit of article 12.

CAN THE SUPREME COURT REASSESSMENT ON DEATH PENALTY?

In Smt. Triveniben v. the State of Gujarat6, the accused contended that, pursuant to being
convicted beneath Section 302 of the Indian Penal Code, there was a long delay in the
executing the punishment of death penalty and that the dehumanizing nature of the same was
violating article 12 of the Indian constitution. The decision of the Court contemplated the
opinion that it becomes settled that a judgment of court couldn't be challenged for violation of
fundamental rights. This choice may be contrasted with that of the Court in Harbans Singh
v.State of Uttar Pradesh7. On a utility under Article 32 of the Constitution filed after the
dismissal of Special Leave Petition and the review, the Court reconsidered its judgment. The
petitioner becomes convicted underneath Section 302, Indian Penal Code and sentenced death
penalty. Convicts death penalty along with him had their sentence commuted to life
imprisonment. The Court in this case stayed the death sentence of the petitioner. The Court

6
A.I.R. 1989 S.C. 1335 (India)
7
A.I.R. 1982 S.C. 849 (India)
determined that although special leave petition, review petition and clemency petitions to the
President had been brushed off, "very extensive powers have been conferred for due and
proper management of justice." The overarching concept becomes that of inherent power and
jurisdiction of the Court to deal with "terrific" conditions in the "large interest" of justice. In
this case, the reasoning of the Court seems to be based totally on the truth that persons
situated in similar occasions had now not been dealt with similarly that is The petitioner was
denied the clemency extended to the others. Hence, the Judiciary's decision seems to be
violative of Article 14 of the Indian constitution. Similarly, in Attorney-General v. Lachma
Devi8, the High Court gave a decision that the accused need be sentenced to death by public
hanging. Upon a writ petition filed by using the Attorney General in the Supreme Court under
Article 32, an order was given in opposition to the judgment. It becomes held via the
Supreme Court that hanging in public contravened Article 21. It appears that the Supreme
Court is very selective in making an allowance for judicial orders to be set apart. Hence,
Lachma Devi diagnosed a patent violation of the right to dignity assured to every person.
However, within the case of Triveniben, it becomes held, at the records of the case, that the
decision could not be set apart, whereas Harbans Singh took awareness of the reality that the
prisoner was to be handled at par with the others convicted of the identical crime. However,
the fact that the Judiciary is to be bought under the ambit of state under Article 12 is not yet
started, although the judgements themselves seem to have violated fundamental rights and
subsequently, the petitioners had approached the Court under Article 32.

In Supreme Court Bar Association v. Union of India &Anr9, a writ petition has been filed
via the Supreme Court Bar Association, praying that the Court's decision in Re:Vinay
Chandra Mishra be reconsidered. In the earlier decision, the Court had found the lawyer
guilty of committing criminal contempt of court and suspended him from practising for three
years. It changed into argued that that best the disciplinary committees of the Bar Councils
set up beneath the Advocates Act, 1961 had jurisdiction to inquire in a case of suspending or
debar a lawyer. It was proposed that neither the supreme court nor the high court has such
original jurisdiction to suspend or debar a lawyer . The Constitution Bench held that the
supreme court exercised contempt powers beneath their inherent jurisdiction and that it
changed into essential to enable courts to administer justice consistent with law in a normal,
orderly and effective manner. Firstly, the Court had offered a punishment which turned into

8
(1989) S.C.C. 413 (India)
9
AIR 1998 SC 1895
no longer recognized, i.E. Underneath contempt powers, to suspend a lawyers license and
debar him from training. The powers to accomplish that are vested with the Disciplinary
Committees of the Bar Councils if professional misconduct is proved. Under the Supreme
Court Rules, the Court ought to withdraw his privilege to exercise as an Advocate-on-Record,
but this did not quantity to revoking the licence of the advocate. Secondly, the power to do
complete justice beneath Article 142 is a corrective power, but usurping the jurisdiction of
the Bar Council might be violative of due procedure. Article 142 will be used as a "residual
source" of power to stop "clogging or obstruction of the stream of justice", however, the
identical can't be used to violate the substantive rights of a litigant. As Justice An and placed
it in a persuasive manner "Article 142, despite the width of its amplitude, can not be used to
construct a new edifice in which none existed earlier." The Court observed in the various
cases that it become its responsibility to make statutory bodies and different organs of the
State carry out their features, however, that it couldn't take over the functions of these
bodies. Here, by way of suspending the licence of the advocate, the Court had violated
"procedure established by law" and hence Article 21 of the advocate . The majority judgment
does admit that an error is made. Here, even they have recognized the nature of the error
made but they still did not consider itself to be fall under the definition of state and has only
considered as a body monitoring the state , But on this characteristic too, as a regulatory
body, there might be times had been the fundamental rights are violated. As the Court stated
in M.S Ahlwat v. the State of Haryana10, "to perpetuate a mistake become no distinctive
feature however to correct it changed into a compulsion of judicial sense of right and wrong."
In most of the above cases, "procedure established by law" has faltered, and has caused a
direct infringement of Article 21. Therefore, the discussions made by the debate centres not
around accurate decisions, but on accurate decision-making processes, both at formal and
substantive levels.

IN THE CASE OF CURATIVE PETITION:

A five judges bench has examined that whether or not a writ petition can be maintained
under article 32 to challenge the judgement after the review petition has been rejected, in the
landmark case of Rupa Ashok hurra v. Ashok hurra11. It was contended that there should be

10
1998 6 SCC 686 (India)
11
A.I.R. 2002 S.C. 1771 (India)
a re-examination of the case which the judgement or judicial orders surpassed without their
jurisdiction where it can clearly be seen that there is a violation of fundamental rights,
concept of natural justice or where it is clear as crystal that some injustice has been made
below the vested jurisdiction of the court. And it was held that even the review petition has
been rejected but it is essential the decision need to be corrected then in this instance the
petition under article 32 can be entertained.

In this case, it was pointed article 32 can be taken into consideration when the motive of
implementing the fundamental rights guaranteed under Part III of the Indian constitution and
that no judgement passed by any of the higher courts can be blamed for the violation of
fundamental rights, considering the fact that apex courts of justice do no longer fall within
the definition of State or other authorities defined in article 12 of the Indian constitution, by
justice Syed shah Mohammed Quadri . The Court followed an unlawful means by
preserving that even after exhausting the remedy of review under Article137 of the
Constitution, an aggrieved party is probably supplied with an opportunity to seek relief in
cases of a gross miscarriage of justice because the judgment of the Supreme Court is final. It
held that the obligation to do justice in those rarest of the rare case shall have to prevail over
the policy of certainty of judgment.

Although in the above-mentioned cases the judiciary has again mentioned that it does not fall
within the ambit of article 12 while making a judicial decision, but the reasoning given in the
case seems evident that judicial orders can also be questioned when it violates the
fundamental rights .

An ex-Chief Justice of India has hailed this decision as an ideal balance between the finality
of judgments of the Court of the last resort and setting miscarriage of justice .

WHY IS IT IMPORTANT TO CONSIDER JUDICIARY AS A STATE ?

The judiciary is one of the three main departments of the state which interprets the law. So it
should also be considered as a state within the definition mentioned in article 12 of the Indian
constitution , and if it is not considered as a state while functioning judicial functions then the
decision making power of the court may violate fundamental rights with impunity . And
hence it must consider being a state when it makes decisions .
WHAT IS THE STAND OF JUDICIARY AS A STATE IN THE UNITED STATES :

The case, Commonwealth of Virginia v. Rives12 which is a landmark judgement given by the
U.S supreme court has started to show that a judicial decision is covered inside the scope of
state action for the purpose of the 14th amendment to the constitution. It was held that if a
decision deprives of person who has not given the opportunity to be heard would be violative
of the "due process"clause . and held that a common-law inconsistent with the fundamental
rights if brought into existence then it would result in the supreme court can review the order
that is tired in a lower court hence judges cannot discriminate in their judicial ability in both ,
neither in enforcing common law nor in private laws. which was decided in Brinkerhojf-
Fairs trust &saving co. v . hill13 .

Further, in the case of Fay vs. People of State of New York14, it was held that a convicted
person could be quashed if the victim can prove that the method of the trial by the court is
infringing the right to equal protection of the law.

Hence we can see that in the above-mentioned cases that even the judiciary can be questioned
when it infringes the fundamental rights of a person. Hence an express identification of the
Judiciary as a state under Article 12 appears so as.

SOME RECOMMENDATIONS MADE BY NCRWC :

According to NCRWC ( the national commission to review the working of the constitution ),
there is some explanation which is missing in article 12 which should be added where it is
mentioned other authorities should include any person whose relation is to perform any kind
of public nature and as the judiciary clearly related to public functions so the judicial officials
and the judiciary should fall under the scope of other authorities with the ambit of article 12
of the Indian constitution. And sated that it article 21 which is most invoked in the most of
the judicial decision. even it was not clearly mentioned the judiciary as a state or not but it

12
100 U.S. 313 (1880)
13
281 U.S. 673 (1930)
14
332 U.S. 261 (1947)
may be considered someday and this information may help in development of law in this
particular area . so we can compare the bill of rights Act , 1998 and part 3 of the Indian
constitution as they are parallel to each other .

CONCLUSION

As we can see that the supreme court has assisted the constitution in an ideal manner by
bringing a massive plethora of entities under the ambit of other authorities as stated in article
12 . However, bringing the Judiciary underneath the equal is a miles greater controversial
trouble.

Prem Chand Garg to Rupa Ashok Hurra cases which had served as "precedents" that the
trend is more often than against of mending mistakes that it had made, under a writ petition
as mentioned in Article 32, in spite of issuing an express declaration to the effect that
judicial decisions which have executed finality do not have the right to 'interpellate'.
Therefore, it has been identified that judicial orders can also violate fundamental rights in
some cases , the Judiciary comes tacitly under the meaning of State which is mentioned in
Article 12 when it carries out judicial functions.

It is observed that the Judiciary is against being considered State, likely due to the fact it may
hamper its independent nature . They are not likely to face Problems that immediately come
to bear upon their discretionary powers. in matters, Even the judges may be wrong and
therefore, it can be justified when it is corrected when the mistake is bought in their purview .
the main point of this article is that the judiciary must be covered within the ambit of Article
12, and it can be accomplished via interpretation of the Courts itself since it isn't a part of
the textual content of the Constitution.

The consideration of the Judiciary to enlarge the scope of Article 12 stems from its
hesitation to voluntarily subjecting itself to scrutiny and complaint. Judiciary is an important
part of the State . In this period of judicial activism, judicial law and wide-ranging capability
to review cases , the Judiciary wields gigantic political powers. So it can be said that the
judiciary must fall under article 12, under the purview of part III of the constitution, in order
which the best of constitutional ideals can be realized.