The question whether a judicial or a
quasi-judicial can be challenged as violative of the fundamental rights of a
person, is a little difficult one to answer. Ordinarily one would not readily
accept the contention that a judicial or a quasi-judicial order can infringe
the fundamental rights of a person. However, if the constitutional scheme and
certain judgments of the Supreme Court on this point are closely examined, it
will make the issue clear that the judicial order or quasi-judicial order can
in a given circumstance violate the fundamental rights of a person. [1]“In
such a situation the person aggrieved can file a petition under Article 226 or
32 of the Constitution if the facts are undisputed and the infringement of the
fundamental right is patent. In other cases the contention of the violation of the
fundamental right can be examined in an appeal or a revision as the case may
be.” The Supreme Court in the case of [2]Ujjambai
v. State of UP
In
the case of [5]Budhan
Chaudhari v. State of Bihar
“It is suggested that discrimination may be
brought about either by the Legislature or the Executive or even the Judiciary
and the inhibition of Article 14 extends to all actions of the State denying
equal protection of the laws whether it be the action of anyone of the three
limbs of the State.
It has, however, to be remembered that, in the
language of Frankfurter, J., in -[6]Snowden
v. Hughes
"the Constitution does not assure
uniformity of decisions or immunity from merely erroneous action, whether by
the Courts or the executive agencies of a State."
The judicial decision must of necessity depend on the
facts and circumstances of each particular case and what may superficially
appear to be an unequal application of the law may not necessarily amount to a
denial of equal protection of law unless
there is shown to be present in it an element of intentional and purposeful discrimination
(emphasis of the writer)
It may be mentioned at once that in the
present case there is no suggestion whatever that there has been at any stage any intentional or purposeful discrimination
(emphasis of the writer) as against the appellants by the Sub-Divisional
Magistrate or the District Magistrate or the Section 30 Magistrate who actually
tried the accused. Further, the discretion of judicial officers is not
arbitrary and the law provides for revision by superior Courts of orders passed
by the Subordinate Courts. In such circumstances, there is hardly any ground
for apprehending any capricious discrimination by judicial tribunals.”
The above stated observations lead to the
conclusion that if there is an element of intentional or purposeful
discrimination in the judicial or quasi-judicial order, it can be challenged as
contrary to the fundamental right of equality. In [7]Ujjambai
v. State of UP
“There can be no question of the
enforcement of a fundamental right if the order challenged is a valid and legal
order, in spite of the allegation that it is erroneous... These authorities
show (1) that if a statute is intra vires then a competent order under it by an
authority acting as a quasi-judicial authority is equally intra vires (2) that
the decision whether right or wrong is not violative of any fundamental right
and (3) that if the order is erroneous then it can be questioned only under the
provisions of that statute because the order will not amount to an infringement
of a fundamental right as long as the statute is constitutional. In appropriate
cases it may be challenged under Art. 226 and in both cases an appeal lies to
this Court... Though this Court is the guardian of all fundamental rights the
Constitution has not taken away the right of the ordinary courts or of
quasi-judicial tribunals administering a variety of laws to exercise their
existing jurisdiction and to determine matters falling, within their purview.
If by reason of the decision of a tribunal a person, for instance, loses his
right to occupy a house, or has to pay a tax, that decision cannot be thrown to
the winds and a complaint made to this Court that a fundamental right has been
violated. The decision being one made in exercise of a judicial power and in
performance of a duty to make it is a valid adjudication though as a result of
it a person may not be able to occupy his house or may have to pay a tax. The
decision may be a right one or a wrong one. If it is not a nullity when it is
right I fail to see how it can be said to be a nullity because it is erroneous,
so long of course, as the law is a
good law, the decision is of an authority
competent to act under the law, the
procedure followed by it is as prescribed by the law and the error does not
pertain to jurisdiction. (Emphasis of the writer) The error may lie in the
construction placed upon a statute by the tribunal. If it is that and no more,
such erroneous construction cannot render the action taken there under
arbitrary or unauthorized. The error has to be corrected in the manner
permitted by law or the Constitution and until it is so corrected it would not
be open to the party to say that its fundamental right is violated... (1) The
question of enforcement of a fundamental right will arise if a tax is assessed
under a law which is (a) void under Art. 13 or (b) is ultra vires the
Constitution or (c) where it is a subordinate legislation; it is ultra vires
the law under which it is made or inconsistent with any other law in force.
(2) A
similar question (the question of enforcement of a fundamental right) will also
arise if the tax is assessed and/or levied by an authority (a) other
than the one empowered to do so under the taxing law or (b) in violation of the
procedure prescribed by the law or (c) in colourable exercise of the powers
conferred by the law. (emphasis of the writer)
(3) No fundamental right is breached and
consequently no question of enforcing a fundamental right arises where a tax is
assessed and levied bona fide by a
competent authority under a valid law by
following the procedure laid down by that law, even though it be based upon
an erroneous construction of the law except
when by reason of the construction placed upon the law a tax is assessed and
levied which is beyond the competence of the legislature or is violative of the
provisions of Part III or of any other provisions of the Constitution.
(emphasis of the writer)
(4) A mere misconstruction of a provision
of law does not render the decision of a quasi-judicial tribunal void (as being
beyond its jurisdiction). It is a good and valid decision in law until and
unless it is corrected in the appropriate manner.”
In the case of [8]A
R Antulay v. R S Nayak the Supreme Court was concerned with the order passed by
it earlier which was challenged as violative of the fundamental rights of the
petitioner. The court held:
“In the aforesaid view of the matter and
the principle reiterated, it is manifest that the appellant has not been
ordered to be tried by a procedure mandated by law, but by a procedure which
was violative of Article 21 of the Constitution. That is violative of Articles
14 and 19 of the Constitution also, as is evident from the observations of the
7 Judge Bench judgment in Anwar Ali Sarkar's case (1952 SCR 284: AIR 1952 SC
75) (supra) where this Court found that even for a criminal who was alleged to
have committed an offence, a special trial would be per se illegal because it
will deprive the accused of his substantial and valuable privileges of defence
which, others similarly charged, were able to claim... We are of the opinion
that in view of the clear provisions of section 7(2) of the Criminal Law
Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these
directions were legally wrong... 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.(emphasis of
the writer) The appellant has been treated differently from other
offenders, accused of a similar offence in view of the provisions of the Act of
1952 and the High Court was not a Court competent to try the offence. It was
directed to try the appellant under the directions of this Court, which was in
derogation of Article 21 of the Constitution. The directions have been issued
without observing the principle of audi alteram partem... We are of the opinion
that this Court is not powerless to correct its error which has the effect of
depriving a citizen of his fundamental rights and more so, the right to life
and liberty. It can do so in exercise of its inherent jurisdiction in any
proceeding pending before it without insisting on the formalities of a review
application. Powers of review can be exercised in a petition filed under
Article 136 or Article 32 or under any other provision of the Constitution if
the Court is satisfied that its directions have resulted in the deprivation of
the fundamental rights of a citizen or any legal right of the petitioner...
Though Article 142(l) empowers the Supreme Court to pass any order to do
complete justice between the parties, the
Court cannot make an order inconsistent with the fundamental rights guaranteed
by Part III of the Constitution... We
are clearly of the opinion that the right of the appellant under Article 14
regarding equality before the law and equal protection of law in this case has
been violated. The appellant has also a right not to be singled out for
special treatment by a Special
Court 16th February, 1984 this
Court had also unintentionally caused the appellant the denial of rights under
Article 14 of the Constitution by denying him the equal protection of law by
being singled out for a special procedure not provided for by law.”
In the following cases the Supreme Court took the view
that where properly constituted tribunal or court or quasi-judicial authority
passed any order, it cannot be challenged as violating the fundamental right of
the person against whom such order was passed even though the order may be
wrong or erroneous.
[9]“It is said that in the circumstances of
this case, as a co-operative society the petitioner was entitled to preference
over the Government, considered as an individual owner, and had not been given
that preference... It is contended that thereby the provisions of Art. 14 had
been infringed. This contention is in our view clearly untenable. The decision
of respondent No. 1 may have been right or wrong and as to that we say nothing,
but we are unable to see that that decision offends Art. 14 or any other
fundamental right of the petitioner. The respondent No. 1 was acting as a
quasi-judicial body and if it has made any mistake in its decision there are
appropriate remedies available to the petitioner for obtaining relief. It
cannot complain of a breach of Art. 14.”
[10]“...denial of equality before the law or
the equal protection of the laws can be claimed against executive action or
legislative process but not against the decision of a competent tribunal. The
remedy of a person aggrieved by the decision of a competent judicial tribunal
is to approach for redress a superior tribunal, if there be one.”
[11]“When a Judge deals with matters brought
before him for his adjudication, he first decides questions of fact on which
the parties are at issue, and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are right or wrong, and
whether the conclusion of law drawn by him suffers from any infirmity, can be
considered and decided if the party aggrieved by the decision of the Judge
takes the matter up before the appellate Court. 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.
If this basic and essential aspect of the judicial process is borne in mind, it
would be plain that the judicial verdict pronounced by Court in or in relation
to a matter brought before it for its decision cannot be said to affect the
fundamental rights of citizens. Just as an order passed by the Court on the
merits of the dispute before it can be challenged only in appeal and cannot be
said to contravene the fundamental rights of the litigants before the Court so
could a judicial order collateral to proceedings but directly connected with
the proceedings be challenged in appeal under Art. 136 of the Constitution, but
it cannot be said to affect the fundamental rights of the petitioners. The
character of the judicial order remains the same whether it is passed in a
matter directly in issue between the parties or is passed incidentally to make
the adjudication of the dispute between the parties fair and effective.
If the test of direct effect and object
which is sometimes described as the pith and substance test, is applied in
considering the validity of legislation, it would not be inappropriate to apply
the same test to judicial decisions. If a judicial order is passed by the Court
in exercise of its inherent jurisdiction and its sole purpose is to help the
administration of justice then any incidental consequence which may flow from
the order will not introduce any constitutional infirmity in it.
In this connection, it is necessary to
refer to another aspect of the matter and that has relation to the nature and
extent of the Supreme Court's jurisdiction to issue writs of certiorari under
Art. 32 (2). It is well settled that the powers of this Court to issue writs of
certiorari under Art. 32 (2) as well as the powers of the High Courts to issue
similar writs under Art 226 are very wide. In fact, the powers of the High
Courts under Art. 226 are, in a sense, wider than those of the Supreme Court,
because the exercise of the powers of the Supreme Court to issue writs of
certiorari are limited to the purposes set out in Art 32 (1). There is yet
another aspect of this matter to which it is necessary to refer. The High Court
is a superior Court of Record under Art 215. If the decision of a superior
Court on a question of its jurisdiction is erroneous, it can, of course, be
corrected by appeal or revision as may be permissible under the law; but until
the adjudication by a superior Court on such a point is set aside by adopting
the appropriate course, it would not be open to be corrected by the exercise of
the writ jurisdiction of the Supreme Court. If questions about the jurisdiction
of superior Courts of plenary jurisdiction to pass orders like the impugned
order are allowed to be canvassed in writ proceedings under Art. 32, logically,
it would be difficult to make a valid distinction between the orders passed by
the High Courts inter partes, and those which are not inter partes in the sense
that they bind strangers to the proceedings. Therefore, having regard to the
fact that the impugned order has been passed by a superior Court of Record in
the exercise of its inherent powers, the question about the existence of the said
jurisdiction as well as the validity or propriety of the order cannot be raised
in writ proceedings taken out by the petitioners for the issue of a writ of
certiorari under Art. 32.”
[12]“The petitioner's incarceration is the
result of a valid judicial order and, therefore there can be no valid claim to
the infringement of any fundamental right which alone can be the foundation for
a writ under Article 32 of the Constitution.”
[13]“As pointed (out) above that Article 32 can
be invoked only for the purpose of enforcing the fundamental rights conferred
in Part III and 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. It may further be noted that the
superior Courts of justice do not also fall within the ambit of State or other
authorities under Article 12 of the Constitution... On the analysis of the
ratio laid down in the aforementioned cases, we reaffirm our considered view
that a final judgment/order passed by this Court cannot be assailed in an
application under Art. 32 of the Constitution of India by an aggrieved person
whether he was a party to the case or not.” This judgment re-established the
law laid down in the case of Naresh v. State (supra). However, in this case it
was held that the Supreme Court in exceptional circumstance in exercise of its
inherent jurisdiction reconsider its previous judgment/order upon curative
petition and pass appropriate order to do complete justice.
Conclusions:
[14]From the foregoing discussion it can be
seen that it is not possible to accept as an absolute proposition of law that the
judicial or quasi-judicial order cannot violate the fundamental rights of a
person. One has to make out a very clear case for alleging the infringement of
a fundamental right by a judicial or a quasi-judicial order.
Further, ordinarily such a contention can be examined
by the superior authority or tribunal or court in exercise of appellate or
revisional jurisdiction. Under Article 32 or Article 226 of the Constitution of
India the court apply self-imposed restrictions not to entertain a petition
that requires the court to examine disputed questions of facts. Therefore, where any court, tribunal or
quasi-judicial authority passes any order, it is ordinarily based on the facts
presented and contentions raised by the parties to the dispute and after
applying relevant law. Hence, the writ remedy under Article 32 or 226 is not a
proper remedy to examine the merits of a judicial or quasi-judicial decision on
the ground that such decision violates the fundamental right. However, if the
judicial or quasi-judicial decision is without jurisdiction or based on clear
misconstruction of the constitutional or statutory provision and thereby
manifestly infringes the fundamental right of a person and the facts are
undisputed, a person aggrieved can file a writ petition and the court must
examine the issue of the violation of the fundamental right of a person by such
judicial or quasi-judicial decision. Here also the aggrieved person should keep
in mind the law relating to contempt of court which requires that one can not
attribute malice to the judicial officer who in discharge of his duty passes
any order. Thus, where the court or quasi-judicial authority fails to provide
equal protection of the substantive or procedural law, or clearly misinterprets
statutory or constitutional provision, acts without jurisdiction and thereby
violates the fundamental right of the party to the proceeding, or
incidentally/collaterally violates the fundamental rights of a stranger, such a
grievance can be examined by the superior court in a proper proceeding. The
aggrieved person in such a case is entitled to urge the contention that his
fundamental right had been infringed in a writ petition or other regular
remedy. The following illustrations would make this
point clear:
(a) [15]The
fundamental right of equality will be violated where the court without
following mandatory procedure prescribed for the adjudication of a particular
dispute adjudicates the said dispute.
(b) The question of enforcement of a fundamental right
will also arise if the tax is assessed and/or levied by an authority (i) other
than the one empowered to do so under the taxing law or (ii) in violation of
the procedure prescribed by the law or (iii) in colourable exercise of the
powers conferred by the law or not bon-fide. See Ujjambai’s case supra
(c) Where in
clear disregard to the provisions of S.4 and 7 of the Contempt of Courts Act, 1971,
the court passes an order prohibiting publication of the court proceeding of a
particular case. In fact Naresh Shridhar Mirajkar’s case is a classic example
of the infringement of the freedom of speech and expression where the judge
passed oral order prohibiting publication of the deposition of one of the
witnesses of the trial. Unfortunately in that case the court did not appreciate
the law properly.
(d) The fundamental right of freedom of movement may
be infringed if in the bail order concerning a very minor offence the liberty
of an accused is curtailed disproportionately e.g. for an offence concerning
the law and order of a small village the accused is directed to live outside
the State. The law does empower the court to impose any condition while exercising
the discretion of bail but the condition must have reasonable nexus with the
object sought to be achieved and it can not be disproportionate. For other such
instances of the infringement of the fundamental rights see- dissenting opinion
of M. Hidayatullah, J. in [16]Naresh
v. State of Maharashtra” Recently it is learnt from the news report that a
petition agitating the question that a judicial order can violate fundamental
right of a person has been admitted by the Supreme Court. It is therefore hoped
that the Supreme Court will set at rest this controversy very soon.
[5] Budhan Choudhry v.
State of Bihar AIR Maharashtra
AIR
[6] Snowden v. Hughes (1943) 321 US 1
[7] Ujjam Bai v. State
of U.P. AIR 1962 SC 1621 (para
21,38,182,184 the majority view was expressed by S.K Das J, Kapur J, Sarkar J,
Hidaytullah J,Mudholkar J), (See also- para 154 Ayangar J, para 93 also Subba Rao J., both dissenting
and expressing a minority view.) Note:
The court did not examine the wider issue whether an order passed by the
properly constituted court could violate fundamental right or not.
[8] A R Antulay v. R S
Nayak AIR 1988 SC 1531 ( Sabyasachi
Mukharji J with Oza and Natarajan JJ Majority view para 43,44,49,50,52,60,83)
[9] Parbhani Transport
Co-operative Society Ltd. v. Regional Transport Authority, Aurangabad AIR 1960
SC 801 (para 17) Distinguished in Naresh Shridhar Mirajkar v. State of Maharashtra AIR
[11] Naresh Shridhar
Mirajkar v. State of Mahahrashtra AIR 1967 SC 1 (Paras 38,39,43, 52, 53, 60,
62) (For dissenting opinion of M. Hidayatullah, J., see Paras 99, 100, 102,
103, 108, 116, 117, 118, 119, 122, 123).
[14]Writer’s
personal view- See also
dissenting opinion of M. Hidayatullah, J. in Naresh v. State of Maharashtra AIR
1967 SC 1 Paras 99, 100, 102, 103, 108, 116, 117, 118, 119, 122, 123, the view of noted jurist and author Shri HM
Seervai in his monumental work ‘Constitutional Law of India’ Sliver Jubilee
Edition Volume 1, Paragraphs 7.99 to 7.116, the discussion and the view of learned author V G Ramchandran in his book
‘Law of Writs’ Sixth Edition-year 2006
revised by Hon’ble Justice C K Thakkar page 69 to 79
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