Is Article 32 available against the judiciary?

There is no reference anywhere in the 18 paragraphs of H.M. Seervai’s discussion on the issue to the Constituent Assembly debates which clearly demonstrate that the judiciary is not part of the State under Article 12 of the Indian Constitution.

I n the previous piece, this author had demonstrated through application of principles of interpretation and with the aid of Constituent Assembly Debates (CAD) that the Judiciary does not fall within the meaning of “the State” for the purposes of Article 12. This effectively leads to the conclusion that the Judiciary does not have the Constitutional mandate to interfere with fundamental rights on the ground of either constitutional morality or public morality, both not being the same, in the absence of State action. The judiciary’s preserve is limited to examining the constitutional validity of State action when it is challenged either under Articles 32 or 226 for abridgement of fundamental rights. This also means that while the remedies under Articles 32 and 226 are available against the State since the State can interfere with fundamental rights, the same remedy is not available against the Judiciary when it discharges judicial functions. Does this mean that the Judiciary falls within the definition of State when it discharges executive functions in the exercise of its rule-making powers?

H.M. Seervai has discussed the question of whether the Judiciary attracts the definition of “the State” in 18 Paragraphs (Paragraphs 7.99-7.116) in Volume 1 of the Fourth Edition of Constitutional Law of India from Pages 389-399. His basic premise is that if the Judiciary forms part of the State, it must conform to Article 14 of the Constitution which mandates that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. He has contended that since the language of Article 14 has been largely borrowed from the 14th Amendment to the US Constitution, one must consider whether the Judiciary forms part of the State under US law. To make his case, Seervai has cited a textbook on the US Constitution published by the US Congress wherein it has been stated as follows: “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way…”

Surprisingly, while Seervai has referred to a textbook issued by the US Congress to support his position that the Judiciary forms part of the State, he did not refer to any judgement of the US Supreme Court to make good this position. In any case, primacy must be given to Indian legislative history. Independent of the history of the US Constitution, the second limb of Seervai’s argument is based on his reliance on the inclusive nature of the definition of State under Article 12 to claim that it does not exclude the Judiciary.

However, an inclusive definition too has its own rules of interpretation which, in this case, do not help Seervai’s argument since the absence of any express reference to an important organ such as the Judiciary, despite express references to the Legislature and the Executive at the Union and the State levels, in Article 12 speaks volumes of the legislative intent.

Interestingly, there is no reference anywhere in the 18 Paragraphs of his discussion on the issue to the Constituent Assembly Debates which clearly demonstrate that the Judiciary is not part of the State under Article 12 of the Indian Constitution. After all, one of the rules of interpretation is that if there is ambiguity in a provision and the internal aids of interpretation do not put the ambiguity to rest, reference may be had to external aids such as the history of the provision, in particular legislative debates. The Constituent Assembly Debate of November 25, 1948, which this author had discussed in detail in his previous piece, finds no mention in Seervai’s analysis on the topic. Even the footnotes do not remotely refer to the CAD.

The third limb of Seervai’s argument is that if the highest Court of the land delivers a judgement which violates Article 14, an affected party would be without remedy to challenge the outcome invoking Article 32 if the Judiciary were not to be treated as State under Article 12. To justify this concern, Seervai has quoted the following passage by Justice Frankfurter in Snowden v. Hughes, a judgement delivered by the US Supreme Court in 1944 on the 14th Amendment to the US Constitution:

“And 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?”

To answer this question, Seervai has referred to the judgement of a nine-Judge Bench of the Indian Supreme Court delivered in Naresh Shridhar Mirajkar v. State of Maharashtra (1966) wherein eight of the nine Judges held that a judicial order is not open to challenge under Article 32. Only Justice Hidayatullah, in his dissenting judgement, takes a contrary view, which is endorsed by Seervai.

However, the fact remains, that the law laid down by the majority is that a judicial order is not capable of being challenged under Article 32. In fact, in the very same Mirajkar judgement, a reference has been made to a previous decision of a Constitution Bench of the Supreme Court in Premchand Garg v. Exercise Commissioner, U.P (1963) wherein a rule made by the Supreme Court exercising its rule-making power under Article 145 was the subject of a writ petition under Article 32. The fact that this judgement only proves that the exercise of a rule-making power by the Judiciary constitutes a non-judicial action which is capable of being challenged under Article 32, is not lost on either Seervai or Justice Hidayatullah in the Mirajkar case. In fact, they acknowledge this important distinction. And yet, Seervai’s position and that of Justice Hidayatullah is based on a normative approach to Article 32 as opposed to a strictly legal approach which is consistent with legislative history.

Critically, the position in Mirajkar has been followed inA.R.Antulay vs. R.S. Nayak and another (1988), Smt. Triveniben vs. State of Gujarat (1989), Ajit Kumar Barat vs. Secretary, Indian Tea Association and others, and Rupa Ashok Hurra vs Ashok Hurra & Anr (2002), making it abundantly clear that the law as it stands does not treat judiciary in exercise of judicial powers as State, and therefore does not permit a challenge under Article 32 to judicial verdicts.

What is even more pertinent is that in the Antulay Judgement as well as in the Rupa Judgement, the Supreme Court has addressed the specific concern raised by Seervai. The Court has held that in the event the verdict of the highest Court of the land suffers from any form of infirmity or errors, the power of review under Article 137 has been expressly provided by the Constitution to precisely address such exigencies. In other words, Article 32 need not be invoked against judicial orders when the power of review under Article 137 is available. In Rupa, the Supreme Court drew attention to the fact that the width of its inherent powers to do justice have been adequately captured by the language of Order XLVII, Rule 6 of the Supreme Court Rules which have been framed in relation to exercise of the power of review under Article 137. Extracted below is the said Rule 6:

“6. Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

Clearly, in view of the above, there is no need or basis to stretch the limits of the definition of State under Article 12 or the scope of remedies available under Article 32 to challenge judicial orders which warrant revisitation. What is noteworthy is that Seervai has not commented on the adequacy or otherwise of the remedy of review under Article 137 in his discussion on whether Article 32 is available against the Judiciary.

What follows from this discussion is that, State action which violates Part III is open to judicial review under Articles 32 and 226, whereas judicial verdicts are subject to appeals, revisions, references, special leave petitions and review petitions, all of which provide a basket of remedies to aggrieved litigants. Assuming that even the outcome in the ultimate remedy before the Supreme Court results in abridgement of fundamental rights, the remedy lies in moving the wheels of the Executive and the Legislature, subject to a few qualifications and riders.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.