Anthony Fernando, a Y.M.C.A employee, filed a workers compensation claim with the Deputy Commissioner of Worker’s Compensation in respect of injuries he had suffered as a result of a fall. On rejection of the claim, Fernando filed successive motions in the Supreme Court. On 27 November 2002, the Supreme Court considered the first two motions jointly and dismissed them. On 30 January 2003, Fernando filed a third motion, claiming that the first two motions should not have been heard jointly, and that their consolidation violated his constitutional right to a “fair trial”. On 14 January 2003, this motion was dismissed. On 5 February 2003, Fernando filed a fourth motion, claiming that the Chief Justice and the two other judges who had considered his third motion should not have done so, as they were the same judges who had consolidated and considered the first two motions. During the hearing of this motion on 6 February 2003, Fernando was summarily convicted of contempt of court and sentenced to one year’s “rigorous imprisonment” (that is, he would be compelled to perform hard labour). He was imprisoned on the same day. About two weeks later, a “second” contempt order was issued by the Chief Justice stating inter alia that Fernando had been informed during the hearing that he could not keep filing applications without any basis, and that he had, at that stage, raised his voice and, instead of apologizing, insisted upon his right to pursue the application. Fernando was held to be guilty of contempt of court for this reason as well.
These facts have been culled out from U.N. Doc. CCPR/C/83/D/1189/2003 (2005), being the Views of the Human Rights Committee established under the International Covenant on Civil and Political Rights (ICCPR). Fernando was a Sri Lankan national. The Supreme Court that had been so generous in exercising its contempt powers was the Supreme Court of Sri Lanka. The Views were expressed by the Committee on 31 March 2005 pursuant to the Communication made by Fernando (the author) against Sri Lanka (the State party) under the Optional Protocol to the ICCPR. The Committee held that Sri Lanka had violated Article 9, paragraph 1 of the ICCPR, which is in similar terms as Article 21 of our Constitution. Article 9, paragraph 1 of the ICCPR states that “(e)veryone has the right to liberty and security of person”, that “(n)o one shall be subjected to arbitrary arrest or detention” nor “deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” The Committee noted :
“that courts notably in Common Law jurisdictions have traditionally enjoyed authority to maintain order and dignity in court debates by the exercise of a summary power to impose penalties for “contempt of court.” But here, the only disruption indicated by the State party is the repetitious filing of motions by the author, for which an imposition of financial penalties would have evidently been sufficient, and one instance of “rais[ing] his voice” in the presence of the court and refusing thereafter to apologize. The penalty imposed was a one year term of “Rigorous Imprisonment”. No reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted, in the exercise of a court’s power to maintain orderly proceedings. Article 9, paragraph 1, of the Covenant forbids any “arbitrary” deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of article 9, paragraph 1 is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole. The Committee concludes that the author’s detention was arbitrary, in violation of article 9, paragraph 1.”
It follows from this case that the Supreme Court of Sri Lanka, the judicial branch of government, was found to have violated Fernando’s human right of personal liberty; that is, a judicial decision passed by a superior court in judicial proceedings was found to be capable of violating the fundamental right of an individual. Indeed, this proposition has been long accepted, for example, in the U.S.. The Fourteenth Amendment to the U.S. Constitution, like Article 14 of our Constitution, guarantees “equal protection of laws”. It was held way back on 16 April 1900 by the U.S. Supreme Court in Carter v. Texas (177 U.S. 442) that “whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or colour, from serving as…jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied”. The U.S. Supreme Court asserted on 3 May 1948 in Shelley v. Kraemer (334 U.S. 1) that actions of state courts and judicial officers in their official capacities are actions of the states within the meaning of the Fourteenth Amendment
Our Supreme Court, however, declared on 10 April 2002 in its five Judge decision in Rupa Ashok Hurra 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. The Supreme Court added in good measure that “the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution”.
It would be interesting to examine how the Supreme Court arrived at such a startling conclusion, which, in my view, is plainly wrong on both counts. And if this was not odd enough, we learnt in Rupa Ashok Hurra that we, in India, could have a somewhat novel remedy in the form of a ‘curative petition’ – a remedy that could leave the hapless litigant worse off than the disease.
The propositions in Rupa Ashok Hurra will be discussed in two articles. This article considers the first proposition as to whether a judicial decision could violate a fundamental right. The latter proposition as to whether the judiciary, while exercising judicial functions, is ‘State’ under Article 12 of the Constitution, as also the infirmities that I believe taint the curative jurisdiction, are being analysed in a separate article. I confess that there is an artificial disconnect in dealing with these obviously inter-linked issues in two articles, but given how the views of our courts have meandered over the decades, it has perhaps become necessary to do so.
As a point of departure, let us consider the 1966 decision of nine Judges of the Supreme Court in Naresh Mirajkar – a case that stands out for being premised, at least in part, on a concession and the want of a precedent. In a defamation suit filed in the Bombay High Court against the editor of a weekly newspaper, one of the witnesses had sought, and was granted, an order that publicity should not be given to his evidence in the press as his business would be affected. A reporter of the weekly along with other journalists moved the Supreme Court by way of a writ petition under Article 32 of the Constitution challenging such judicial order as violating their fundamental right of speech and expression under Article 19(1) thereof. Article 32, it may be noted, guarantees in absolute terms that the right to move the Supreme Court for enforcement of fundamental rights and empowers the Supreme Court to issue directions, orders or writs for such enforcement.
Naresh Mirajkar has a Majority Opinion, three broadly concurring Opinions and a dissenting Opinion. The Majority Opinion recorded the concession of the counsel for the petitioners in this case that “if a court of competent jurisdiction makes an order in a proceeding before it, and the order is inter-partes, its validity cannot be challenged by invoking the jurisdiction of this Court under Art. 32, though the said order may affect the aggrieved party’s fundamental rights”. The Majority Opinion dismissed the contention that “the impugned order affects the fundamental rights of a stranger to the proceedings before the Court” which “justifies the petitioners in moving this Court under Art. 32”. Shah J., in his concurring Opinion, reasoned that “(i)f, as is accepted, and rightly, a judicial determination of the rights, privileges, duties and obligations of the parties before the Court does not attract the jurisdiction of this Court under Art. 32 of the Constitution for enforcement of the fundamental rights under Art. 19, it is difficult to appreciate on what grounds that jurisdiction may be attracted where a person other than the party to the proceeding is aggrieved by an order of the Court made for ensuring an effective adjudication of the dispute”.
The Majority Opinion further observed that the proposition that a judicial order passed by the High Court can become the subject-matter of writ jurisdiction of the Supreme Court under Article 32 is not “fortified by any judicial decision of this Court” and that “no precedent has been cited before us” in support of the “claim that a judicial order of the kind with which we are concerned in the present proceedings has ever been attempted to be challenged or has been set aside under Art. 32 of the Constitution”.
The Majority Opinion held that the writ petition was based on “a complete misconception about the true nature and character of judicial process and of judicial decisions”, inter alia as
“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….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”.
Such reasoning that the judge only finds and applies the law is, to say the least, baffling. Almost 250 years earlier, on 31 March 1771, Bishop Benjamin Hoadly had, in a sermon before King George I, preached that “(w)hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver, to all intents and purposes, and not the person who first wrote or spoke them.”
In Keshavananda Bharti – a case decided in 1973 by thirteen Judges, the largest Bench strength in the history of the Supreme Court – Mathew J. examined the true nature and character of judicial process and of judicial decisions. Mathews J. found that the court does not “merely formulate already existing law although it is generally asserted to be so”, that “(i)t does not only ‘seek’ and ‘find’ the law existing previous to its decision” and that “it does not merely pronounce the law which exists ready and finished prior to its pronouncement”. Rather, the judicial function is “both creation and application of law” and “Courts are creators of general legal norms”. Mathews J. recalled the words of Lord Reid reported in 1972 to the effect that:
“(t)here was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdin’s Cave, there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame…. But we do not believe in fairy tales anymore”.
Then came the decision in N.M. Thomas in 1975 decided by seven Judges of the Supreme Court, including Mathew J. whose viewwas the majority view though given separately. Mathew J. reiterated in N.M. Thomas that the courts do make law, even though “interstitially from the molar to the molecular”.
In an article in the Delhi Law Review in 1995, I had argued that courts do much more – the entire common law tradition cannot be characterized as mere interstitial or molecular legislation. Rather, such tradition is a shining example of judicial law making. ‘Precedents’ or ‘rules of statutory construction’ are examples of judge-made law. I had referred to the 1990 decision of five Judges of the Supreme Court in Delhi Transport Corporation, in which Mukharji CJI. had observed:
“we must do away with ‘the childish fiction’ that law is not made by the judiciary. This Court under Article 141 of the Constitution is enjoined to declare law. The expression ‘declared’ is wider than the words ‘found or made’. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country”.
Now, Article 13(2) of the Constitution mandates that the “State shall not make any law which takes away or abridges the rights conferred by this Part (the fundamental rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void”. Article 13(3) provides that ‘law’ inter alia includes any order or rule. That the judiciary is indeed ‘State’ is being considered separately in another article. Once it is conceded that judicial orders or decisions are not babies brought by constitutional storks, judge-made law would necessarily be included in the term ‘law’ in Article 13(3), and such law would necessarily be subject to fundamental rights in terms of Article 13(2) and consequently be void to the extent it infringes fundamental rights.
I had, in yet another article, this time in the Journal of Bar Association of India in 1997, given illustrations of how a judicial decision may offend a fundamental right. These include situations where the judicial decision has been delivered in violation of constitutional or statutory prescriptions or, say, principles of natural justice. Interestingly, the Supreme Court had, in the first ever PIL, Hussainara Khatoon (1979), imposed a constitutional obligation on every magistrate in the country to ensure that an undertrial has access to legal aid at State expense, and had further held that if “free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21”. Suk Das (1981), and more recently, Anokhilal (2019) are instances where the Supreme Court set aside the conviction on account of no or inadequate legal aid being made available to the accused. Is it not implicit in these instances that the nature and character of the judicial process, as also of the judicial decision of conviction culminating from such judicial process, was such that they infringed the fundamental right of the accused guaranteed by Article 21?
In Rupa Ashok Hurra (2002), the Supreme Court relied on the Majority Opinion in Naresh Mirajkar (1966) and other cases decided along similar lines to hold that a judicial decision cannot be said to affect fundamental rights. Sadly, the Supreme Courtdid not even refer to, let alone consider, the abovementioned view taken by it in Keshavananda Bharti (1973)or in N.M. Thomas (1975). But then, the Supreme Court has subsequently done so in its 2010 decision in Ramdeo Chauhan to hold that “instances of this Court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen”. The Court, after reminding itself of its infamous decision in ADM Jabalpur (1976) to the effect that during an Emergency, a person in preventive detention did not have the remedy of moving a writ petition to challenge an illegal order depriving him of personal liberty, declared that this decision indeed “violated the fundamental rights of a large number of people in this country”.
Given such pronouncements by the Supreme Court, the view taken in the Majority Opinion in Naresh Mirajkar and followed in Rupa Ashok Hurra to the effect that a judicial order cannot violate a fundamental right is patently erroneous. It would only add to the credibility and legitimacy of the judiciary should this view be corrected, and that too, sooner rather than later.
Now, a judicial decision that offends a fundamental right may be void when judged under the Constitution, but it still binds the parties till it is set aside. This raises the question of the maintainability of a writ petition under Article 32 to have such judicial decision set aside. Writ petitions are invariably filed against the State, and this, in turn, raises the issue as to whether the judiciary, while exercising judicial function, is ‘State’ under Article 12 of the Constitution. That would take us to a discussion on Article 12 and Article 32, which can be found in my separate article on this point in LiveLaw.
Dr. Aman Hingorani practices law in the Supreme Court of India and has authored the book, Unravelling the Kashmir Knot, www.kashmirknot.com