Remediless, Should A Judicial Order Violate Your Fundamental Rights?

Significantly for the present article, the Supreme Court stated in no uncertain terms that "(w)hen a litigant complains of miscarriage of justice by exercise of powers of this Court which is without jurisdiction or not after following due procedure resulting in his incarceration in a prison losing valuable liberty for a period with the attendant catastrophe descending on his career and life we have no option but to examine the correctness of his contention".

Does it not follow that the Supreme Court, by entertaining the writ petition that challenged its judicial order in a concluded matter for contravening the fundamental right of personal liberty, has conceded by necessary implication that a writ petition is maintainable under Article 32 against a judicial order for violating fundamental rights and that the judiciary, being the authority that passed the judicial order, does fall within the definition of 'State' under Article 12 of the Constitution for the purposes of such violation?

But then, the five Judge decision of the Supreme Court in 2002 in Rupa Ashok Hurra^[1] has held that "it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III" of the Constitution and that "the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution" – a position that the Court maintains till date.

My article, Could a judicial decision violate your Fundamental Rights?,^[2] examined the first proposition - that is, whether a judicial order passed by any superior court in judicial proceedings can be said to violate a fundamental right - and concluded that it certainly could, particularly in light of the authoritative pronouncements made by the Supreme Court itself. This article first considers the latter proposition laid down in Rupa Ashok Hurra,^[3] namely, that the judiciary is not 'State' under Article 12, and then discusses the remedy of a 'curative petition' conceived by the Court in this case – a remedy that is hardly likely to come to the rescue of a litigant who complains that a judicial decision of the Supreme Court has offended his fundamental rights.

That the judiciary is 'State' under Article 12 while exercising its administrative or rule making powers is well settled. Way back on 6 November 1962, the Supreme Court in Prem Chand Garg^[4] struck down as unconstitutional its own Rule that required the petitioner, seeking to move the Supreme Court under Article 32, to first furnish security for the costs of the respondent. The Court reasoned that "(i)f a rule or an order imposes a financial liability on the petitioner at the thresh-hold of his petition and that too for the benefit of the respondent, and non-compliance with the said rule or order brings to an end the career of the said petition, that must be held to constitute an infringement of the fundamental right guaranteed to the citizens to move this Court under Art. 32".

The question really is whether the judiciary is 'State' under Article 12 while exercising judicial function. My article, Could a judicial decision violate your Fundamental Rights?,^[5] asserted that the judicial function has always involved the making of law. Article 13(2) of the Constitution mandates that the State shall not make any law which takes away or abridges fundamental rights, and that any law made in contravention of this clause shall, to the extent of the contravention, be void. Judge-made law would necessarily be included in the term 'law' under Article 13(2) and consequently be void to the extent it infringes fundamental rights. Since the judiciary, being a creation of the Constitution, is subject to constitutional mandates, the judiciary surely cannot disclaim responsibility if the judge-made law offends fundamental rights.

Then there may be instances where it is the failure of the judiciary to perform its judicial function that violates fundamental rights. Is not the judiciary routinely infringing the fundamental rights of personal liberty and speedy trial guaranteed by Article 21 to thousands of undertrial prisoners leading wasted lives for years in Indian jails, often for no crime other than their poverty? If the court, as an institution, is not in a position to secure speedy prosecution of undertrial prisoners, does it have the legal or moral legitimacy to detain them for cruelly long periods of time without trial. Should not the judiciary be made accountable in the event of it failing to perform the very judicial function for which it is created?

My article, Could a judicial decision violate your Fundamental Rights?,^[6] also gave the instance of the U.S., where the actions of courts and judicial officers in their official capacities have been viewed more than a century ago as actions of the State. That implies that there is nothing conceptually or jurisprudentially incoherent about treating the judiciary as 'State' under Article 12 while exercising judicial function. Indeed, a bare perusal of Article 141 read with Article 144 of the Constitution makes it clear that the Supreme Court, at the apex of the judicial system, wields the judicial power of the Indian State to declare the law and requires the State machinery to "aid" the observance of judicial decisions.

Let us consider the issue of the judiciary being 'State' from the standpoint of the litigants - after all, Courts are made for the litigants and not the litigants for the Courts. When a litigant is detained in violation of his fundamental right, it matters little to him whether his detention is pursuant to an illegal order passed by the executive branch of government or the judicial branch of government. If it is open to the litigant to impugn the detention order of the executive by filing a writ petition under Article 32, there is no reason, at least in law, for holding that he cannot file a writ petition under Article 32 to impugn the judicial order of the court for offending his fundamental right. Moreso, when Article 32 guarantees in absolute terms the right to move the Supreme Court for the enforcement of fundamental rights. The language of Article 32 does not contain any qualification that a writ petition cannot lie from a judicial decision of the High Court or even the Supreme Court in the event of the violation of a fundamental right. In fact, the wide language of Article 32 confirms that its invocation is not limited even by the history of writs in English law (Basappa^[7]) or the existence of an adequate, alternative legal remedy (Kocchuni^[8]).

Coming to the definition of 'State' under Article 12, the definition is inclusive and subject to the requirement of context. Article 12 defines 'State' for the purposes of Part III of the Constitution (which lists the various fundamental rights) and provides that "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".

Hidayatullah J., in his dissenting Opinion in the 1966 decision of the Supreme Court in Naresh Mirajkar,^[9] explained why the definition did not consider it necessary to expressly say that courts and judges are included :

"The reason is made obvious at once if we consider Art.13(2). There the word 'State' must obviously include 'courts' because otherwise 'courts' will be enabled to make rules which take away or abridge fundamental rights. …Again Art. 20, which speaks of convictions for offences, punishments and testimonial compulsion is addressed as much to courts as to executive and other authorities, and I venture to think that the worst offenders would be the courts if they went against this prescription. Article 22(1) is addressed to courts where it says that no person, who is arrested, shall be denied the right to be defended by a legal practitioner of his choice. If the High Court had, for example, insisted on the defendant in a criminal case to take a counsel of its choice, the trial would have been vitiated. Why? Because of the breach of the fundamental right in Art. 22(1). The remedy would not have been to wait till the end of the trial and then to bring the matter up by appeal on a certificate or to ask for special leave against the order but to ask for a writ compelling the observance of the Constitution. These provisions show that it cannot be claimed as a general proposition that no action of a Judge can ever be questioned on the ground of breach of fundamental rights. The Judge no doubt functions, most of the time, to decide controversies between the parties in which controversies the Judge 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. It is true that Judges, as the upholders of the Constitution and the laws, are least likely to err but the possibility of their acting contrary to the Constitution cannot be completely excluded. In the context of Arts. 14, 15(1)(b) and (19) (a) and (d) it is easy to visualize breaches by almost any one including a Judge. A court room is a place dedicated to the use of the general public…. (The Judge) cannot exclude a section of the public on the ground of race, religion or community without offending fundamental rights…. If a Judge, without any reason, orders the members of, say, one political party out of his court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge…Other cases can easily be imagined under Arts. 14, 15, 19, 20, 21 and 22 of the Constitution in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will not only be not practicable but also quite an ineffective remedy".

I believe that the Majority Opinion in Naresh Mirajkar^[10] was plainly wrong in arriving at its conclusions for the reasons given in my article, Could a judicial decision violate your Fundamental Rights?.^[11] Interestingly, Shah J., while broadly concurring with the Majority Opinion in Naresh Mirajkar,^[12] took pains to qualify that he did not find it necessary to express an opinion "on the question whether action taken by a Court which is prohibited under Arts. 20, 21 & 22 may form the subject-matter of a petition under Art. 32 of the Constitution".

Seven years later, in 1973, Mathew J., in the thirteen Judge decision of the Supreme Court in Keshavananda Bharti,^[13] had no difficulty in holding that "judicial process is also 'State Action'" and that "Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under Article 32 should lie to quash the order". Mathew J., in fact, approved the view taken by Hidayatullah J., in his dissenting Opinion in Naresh Mirajkar,^[14] that judiciary is 'State' under Article 12.

Two years later, in 1975, Mathew J. reiterated his view in the seven Judge decision of the Supreme Court in N.M. Thomas,^[15] which was the majority view though given separately. Again, Ganguly J., in the 2010 decision of the Supreme Court in Harjinder Singh,^[16] relied upon Keshavananda Bharti^[17] and N.M. Thomas^[18] to hold that the definition of 'State' under Article 12 encompasses the judiciary. Regrettably, the Supreme Court in Rupa Ashok Hurra^[19] did not even refer to Keshavananda Bharti^[20] or N.M. Thomas,^[21] and instead erroneously held that "the superior courts of justice" do not fall within the ambit of 'State' under Article 12.

In Rupa Ashok Hurra,^[22] the Court inter alia recorded that all the counsel for the parties "at the close of the hearing of these cases conceded that the jurisdiction of this Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review…". Having done so, the Court observed that its concern "now is whether any relief can be given to the petitioners who challenge the final judgment of this Court, though after disposal of review petitions, complaining of the gross abuse of the process of Court and irremedial injustice". The Court found itself "faced with competing principles - ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court". The Court took the view that "to prevent abuse of its process and to cure a gross miscarriage of justice" the Court "may re-consider its judgments in exercise of its inherent power" - a proposition that had been laid down over the decades by the Supreme Court in numerous decisions, notably Antulay^[23] and Supreme Court Bar Association.^[24]

The Court thereafter innovated the concept of a curative petition under its inherent power – a petition that may be filed, post the disposal of the review petition, on grounds similar to the ones indicated above. The Court was "of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders". Unsurprisingly, the Court held that "(i)n the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner".

Such curative petition is clearly no substitute for a writ petition under Article 32 - not only because it can be only filed at the risk of suffering exemplary costs and on very limited grounds and after exhausting the remedy of review, but more crucially, because it is to be heard by a Bench which includes the same judges who passed the offending judgement in the first instance and then disposed of its review. The salutary principle that 'no one is a judge in his own cause' taints the curative jurisdiction. Rather, the curative jurisdiction detracts from the very notion of governance under a Constitution – it has long been said that the creation of constitutional government, which is the most significant mark of distrust of human beings in human nature, signalizes a profound conviction, born of experience, that human beings vested with authority must be restrained by something more potent than their own notions of fair play and discretion.

Many could argue that should a writ petition lie under Article 32 to challenge a judicial decision for contravening a fundamental right, as suggested in this article to be the correct position in law, every disgruntled litigant would file such petition resulting in endless litigation. The fallacy in such argument lies in ignoring the purpose and scope of the writ jurisdiction. The writ jurisdiction does not create another forum of appeal but merely provides the writ court with an opportunity to examine whether the impugned action – and in this case, the judicial decision – is vitiated for being in contravention of a fundamental right. The Supreme Court has itself clarified in Khatri^[25] that when it proceeds to try a writ petition, the purpose and scope of the proceedings is only to enquire into the issue of whether the fundamental right of the petitioner has been violated and nothing more. Further, as Hidayatullah J. observed in his dissenting Opinion in Naresh Mirajkar^[26]:

"Decisions of the courts have been subjected to statutory appeals and revisions but the losing side has not charged the Judge with a breach of fundamental rights because he ordered attachment of property belonging to a stranger to the litigation or by his order affected rights of the parties or even strangers. This is because the people understand the difference between normal proceedings of a civil nature and proceedings in which there is a breach of fundamental rights…The power and jurisdiction of this Court is so narrow that nothing on the merits of a controversy of a civil case can ever come up before it under Art. 32. It is unlikely that this Court will torture cases to fit them into Art. 32…It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient a case under Art. 32 can be made out… "

Dissenting opinions rarely have an influence in the cases in which they are pronounced, though the persuasive ones do have the uncanny habit to resurface and shape, if not alter, the course of law when the time is ripe. Hughes CJ. had wisely said in 1928 that "(a) dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed". And one hopes that it is only a matter of time when a later decision of the Supreme Court comes to correct the error in its Majority Opinion in Naresh Mirajkar^[27] and in Rupa Ashok Hurra.^[28]