Whether Judiciary Is State

Student Advocate Committee
Guarding the Guards: The Judiciary as State within the meaning of Article 12 of the
Constitution
Author(s): Kalyani Ramnath
Source: Student Bar Review, Vol. 18, No. 2 (2006), pp. 75-94
Published by: Student Advocate Committee
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Guarding the Guards: The Judiciary as State
WITHIN THE MEANING OF ARTICLE 12 OF THE
Constitution
Kalyani Ramnath*
This note deals with the possible inclusion of the Judiciary within
the meaning of Article 12 of the Indian Constitution. This would
clear the way to hold judges in their judicial capacity accountable
for violation of fundamental rights. In the light of the recent decision
of the Supreme Court allowing for " curative petitions ", there are
avenues to challenge a judicial decision which has achieved finality,
under the writ jurisdiction of superior courts on the basis of violation
of Fundamental Rights, remains open to debate. The article focuses
on the discussion of case law upto the decision in the Rupa Ashok
Hurra case. Further, arguments for treating the Judiciary as State
are considered, by drawing comparisons with the United States
Constitution. Finally, the recommendations of the National
Commission to Review the Working of the Constitution are
considered. The author argues that precedents amply illustrate that
the Judiciary is capable of violating Fundamental Rights, and
therefore it should be brought within the ambit of Article 12.
I. Introduction
II. Judicial interpretations on the Judiciary as State : An examination

THROUGH CASE LAW
A. Contentious Beginnings: Can Supreme Court Rules violate

Fundamental Rights?
B. Fundamental R
through Writs?
C. The Fate of a Final Decision: Open to Challenge?
* II year, B.A. LL.B. (Hons.), Nation

would like to thank Ms. Aditi Mittal
note.
75
Vol. 18(2) Student Bar Review 2006
D. Clemency for Criminals: Can the Supreme Court rethink Death

Sentences?
E. Complete Justice and Contempt of Court: Trammeling Plenary
Power?
F. The Genesis of the Curative Petition: Judicial Creativity or

Judicial Folly?
G. The Era of 'Curative Jurisprudence': Subsequent Developments
III. A Case For Considering Judiciary as "State"
A. Drawing Comparisons: The
B. NCRWC Recommendations: Following English Law
IV. Conclusion
I. Introduction
Parties are not permitted to begin fresh litigations because of new

they may entertain of the law of the case, or new versions which they pr
what should be a proper apprehension by the Court of the legal result..
were permitted litigation would have no end, except when legal ing
exhausted.1
The definition of State under Article 12 of the Constitution does not

explicitly mention the Judiciary. Hence, a significant amount of controver
surrounds its status vis-à-vis Part III of the Constitution. Bringing the Judiciar
within the scope of Article 12 would mean that it is deemed capable of acting in
contravention of Fundamental Rights. It is well established that in its non-judic
functions, the Judiciary does come within the meaning of State.2 However
challenging a judicial decision which has achieved finality, under the writ
jurisdiction of superior courts on the basis of violation of fundamental righ
remains open to debate.
On the one hand, the Judiciary is the organ of the State that decides the
contours of the Fundamental Rights. Their determination, of whether an a
violates the same, can be right or wrong. If it is wrong, the judicial decision cann
1 Hoystead & Ors v. Commissioner of Taxation, L.R. 1926 A.C. 155.

2 Ujjam Bai v. State of Uttar Pradesh, AI.R. 1966 S.C. 671; Pioneer Traders v. C.C
Exports and Imports, AI.R. 1963 S.C. 734.
76
The Judiciary as State
ordinarily be said to be a violation of fundamental rights. If this were allowed, it

would involve protracted and perhaps unnecessary litigation, for in every case,
there is necessarily an unsatisfied party. On the other hand, not allowing a decision
to be challenged could mean a grave miscarriage of justice could occur, and go
unheeded, merely because the fallibility of the Judiciary is not recognized. Is this
the role that the Constitution-makers intended the Judiciary to fulfill? What is to
be gained from bringing the Judiciary under the scope of Article 12? Will bringing
upon the Judiciary an added responsibility through such means ensure, as Article
1423 says, "complete justice" in every case? Or will it, as the quote at the head of
the article suggests, lead only to fruitless litigation?
This note, in the first part, looks at the development of case law in India
pertaining to the Judiciary as State. In spite of the fact that Justice Hidayatullah's
judgement in Naresh Mirajkar v. State of Maharashtra4 remains the only positive
authority, it appears that while the courts have time and again emphasized their
unwillingness to extend their support to this proposition, the remedies that they
recommend seem to indicate the opposite. In the second part, this note attempts
to make out a case for Judiciary being considered "State" for the purposes of
Article 12. This is done using parallels from the U.S. Constitutional Law and further
analyzing the recommendations of the National Commission to Review the
Working of the Constitution in this regard.
3 Constitution of India, 1950, Article 142:
Enforcement of decrees and orders of Supreme Court and orders as to

discovery, etc.-(i) The Supreme Court in the exercise of its jurisdiction
may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed
or order so made shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner
as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament,
the Supreme Court shall, as respects the whole of the territory of India,
have all and every power to make any order for the purpose of securing
the attendance of any person, the discovery or production of any
documents, or the investigation or punishment of any contempt of itself.
4 A.I.R. 1967 S.C. 1.
77
II. Judicial interpretations on the Judiciary as

State : An examination through case law
Article 12 defines "State" for the purposes of Part III of the Consti
does not expressly mention the Judiciary. However, through judicial
interpretation, it is possible to bring it under "other authorities" mentioned in the
Article. A reading of the Constituent Assembly Debates regarding Article 12 shows
that there was reasonable apprehension regarding the wide scope afforded to the
term "authority" as used in Draft Article 7. It was felt that "...a magistrate or even
a petty officer in authority (could) rightly claim under this article to have the
authority to abridge a citizen's (fundamental) rights."6 The apprehension that
those wielding judicial power could violate the rights guaranteed by Part III was
evident even then. Dr. Ambedkar proceeded to define "authority" as "every
authority which has the power to make laws or the power to have discretion
vested in if. 7 [emphasis added.] Although it is a point of contention, whether the
term "discretion" here refers to administrative or judicial discretion, it is possible,
reading it together with the reference to magistrates, that the Constitution makers
meant to bring the Judiciary under Article 12. This is further supported by the
fact that the definition is clearly inclusive and not exhaustive.
To discern the position of the Judiciary vis-à-vis Article 12, inferences have
to be drawn from its stance on whether or not judicial decisions or orders can
violate the fundamental rights of the citizens and whether the same can be remedied
by resorting to the writ jurisdiction of the superior courts, hence bringing it under
the purview of Part III of the Constitution.
A. Contentious Beginnings: Can Supreme Court Rules

molate Fundamental Rights?
The decision of Justice Hidayatullah in Naresh Mirajkar v. State of

Maharashtra8 directly buttresses the argument that the Judiciary must be brought
5 Constitution of India, 1950, Article 12, states:
Definition: In this part, 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.
6 VII Constituent Assembly Debates 609 (1950).

7 Id . at 610.
8 A.I.R. 1967 S.C. 1. [hereinafter Mirajkar ]
78
within the ambit of Article 12. Before discussing Mirajkar , a preliminary review of
prior cases shows a definite trend in this direction.
In Prem Chand Garg v . Excise Commissioner ,9 it was held by the majority,

that the right to move the Supreme Court under Article 32 is an absolute
fundamental right which cannot be impaired on any ground. In this case, Rule 12
of Order 35 of the Supreme Court Rules that mandated that the petitioner furnish
security for the costs of the respondents was alleged to be obstructing the
petitioner's rights under Article 32, a fundamental right. The Court, it was held,
could not make an order in a case inconsistent with Part III of the Constitution or
substantive statutory provisions. Neither would the Supreme Court's power to
make rules, under Article 145, 10 allow it to flout Article 32. The dissenting judgment,
however, held that the impugned Rule merely recognized the jurisdiction of the
Court to make an order demanding security, such legitimacy being granted by
Article 142. It was argued that since Article 142(1) and Article 32 would be read
harmoniously, no superior place need be afforded to the fundamental rights.
The case does not directly deal with the question of whether the Judiciary
falls within Article 12. However, it does raise several interesting points of debate.
Firstly, agreeing upon the harmonious construction of Articles 32 and 142, it is
clearly concluded that complete justice should not entail the loss of fundamental
rights, notwithstanding the subjective nature of what constitutes "complete
justice", as is seen in the majority and dissenting judgments in this case. In fact,
9 A.I.R. 1963 S.C. 996. The Court, in this case, directed that the petitioners should
deposit a security of Rs. 2,500/- in cash within six weeks under Rule 12, Order 35 of
the Supreme Court Rules, 1966. The petitioners found it difficult to raise this amount
and subsequently moved the Court, contending that the impugned Rule, in so far as
it related to the giving of security, was ultra vires , because it contravened the
Fundamental Right under Article 32 of the Constitution.
10 Constitution of India, 1950, Article 145:
Rules of Court etc. - (1) Subject to the provisions of any law made by
Parliament, the Supreme Court may from time to time, with the approval
of the President, make rules for regulating generally the practice and
procedure of the Court including -
(a) rules as to the persons practicing before the Court;

(b) rules as to the procedure for hearing appeals, and other matters
pertaining to appeals including the time within which appeals to
the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of
the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under Article 139-A."
79
the various interpretations given to "com

comprise a study in itself. Secondly, in effe
impact Article 32 rights, as the discretionary
to declare that the security must be paid or t
This marks the beginning of a trend that ref
could violate the fundamental rights.
In Budhan Choudhary v. State of Bihar,"

14 could be violated by the Judiciary was
was opined that any of the three limbs of th
Judiciary could be guilty of violating Article
Snowden v. Hughes'2 was cited, which held t
ensure uniformity of decisions or immunity
Although prima facie a decision may appear
law", there would be no violation of Article
discrimination" could be proved.
B. Fundamental Rights and Judicial (In)discretion: A

Remedy through Writs?
Naresh Shridhar Mirajkar v. State of Maharashtra13 is a landmark case in

this respect. The petitioner, a journalist, argued that the Trial Judge's order to the
press, restricting them from publishing the testimony of the defence witness in a
particular case was violative of his fundamental rights. It was urged before the
Judge that the fundamental principle in the administration of justice was that it
must be open to the public and that exceptions to such public administration of
justice were rare. No witness could claim protection from publicity on the ground
that if the evidence is published, it might adversely affect his business. The
arguments were summarily rejected. The High Court dismissed the petition on
the ground that a judicial order was not amenable to writ jurisdiction. The Supreme
Court, which admitted the petition under Article 32 for violation by the Trial
Judge's judicial order of fundamental rights under Articles i9(i)(a) and i9(i)(g)
of the Constitution brought up the following issues - firstly, whether a judicial
order suppressing evidence of a witness on the grounds that his business would
suffer, breaches the fundamental right to freedom of speech and expression,
entitling the petitioner to invoke Article 32 and secondly, whether the Supreme
Court could issue a writ to the High Court in this instance.
" A.I.R. 1955 S.C. 191.

12 321 U.S. i (1944)-
13 A.I.R. 1967 S.C. 1.
80
The majority held that suppression of evidence in question was necessary

to serve the cause of justice, that is, to ensure "fair trial". It was also opined that
the impugned order would not violate Article i9(i)(a), since the power to withhold
publication or to hold an in camera trial were both protected by Article 19(2).
Third party rights may be affected by the exercise of such powers, however, they
must be of secondary importance to the "effective administration of justice".
Moreover, since the freedom of speech was affected only incidentally and
indirectly, there was no violation of fundamental rights.14
Of particular interest is the dissenting opinion delivered by Hidayatullah,

J. who states that:
The word "State" in Articles 12 and 13 includes courts because otherwise

courts will be enabled to make rules which take away or abridge fundamental
rights and a judicial decision based on such a rule would also offend
fundamental rights.15
A Judge ordinarily decides controversies between the parties, in which

controversies he 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.16
As regarding the amenability of the Judiciary to writ jurisdiction, the

majority held that the order was to be challenged under Article 136 and not Article
32, it being a judicial order. The Constitution did not contemplate the High Courts
to be inferior to the Supreme Court and therefore, their (the High Courts') decisions
would not be liable to be quashed by a writ of certiorari issued by the Supreme
Court. If the High Court erroneously assumes jurisdiction and persons are
prejudiced by any order, the proper course is to apply to the Court to "lift the
ban". The dissenting opinion held that even assuming that the impugned order
meant a temporary suppression of evidence, the Trial Judge had no jurisdiction
to pass the order. In this regard, Hidayatullah, J. held that evidence could not be
prohibited perpetually. Judges may offend the fundamental rights under Articles
14, 15, 19, 20, 21 and 22 and in such cases an appeal to the Supreme Court would
be the only logical solution.17 Since there is no exception in Article 32 relating to
14 Mirajkar, id . at 12.
15 Mirajkar, supra note 13, at 28.
16 Mirajkar, supra note 13, at 29.
17 Mirajkar, supra note 13, at 33, 34.
81
the High Courts, it is assumed that High Co

jurisdiction of the Supreme Court.18
In this case, the oral order was clearly in

of the petitioner. Firstly, the majority judg
camera if the Court so desires and that cur
would be an extension of the same inherent
held in camera , but only the testimony of
bound to ensure that the business interests
protected and certainly not so at the cost o
justice. Thirdly, what would be the "approp
of a Court which is prima facie violative of
Hidyatullah, J.'s argument to bring the Ju
appropriate, especially if due process has
18 A peripheral issue in this case was with re

inherent jurisdiction to issue the said order. T
impugned order was to prevent the publication
the course of the trial and not thereafter and
justice, it was within the inherent power
dissenting, opined that a Court which was h
public was not excluded, cannot suppress the p
heard not in camera but in open Court, on the
will suffer. Mirajkar, supra note 13, at 26, 2
19 Seervai has expounded upon the issue taki
argues that it is strange that the majority jud
as being valid only during the course of the tr
the witness's business interests, it would be
injunction was ordered, as Hidayatullah, J
judgment argued that just as a judge's order
same applied to a third party. The judge's deci
appeal. It was also argued that the infring
incidental and not direct. H.M. Seervai , Const
20 Mirajkar, A.I.R. 1967 S.C. 1, 34. Addressin
opinion, Hidayatullah, J. observed:
It was suggested that the High Courts might

to other High Courts and one Judge or Be
Supreme Court might issue a writ to anothe
Court. This is an erroneous assumption. T
cannot issue a writ to the Supreme Court be
not up. Similarly, a High Court cannot issue
The writ does not go to a court placed on an
jurisdiction.
82
The arguments brought up in this case are of far reaching consequence.

This case deals with the freedom of expression issue, the one fundamental right
that is potentially violated by the Judiciary frequently. However, the decision
does make references to the other fundamental rights that could be violated by
the Judiciary. Justice Hidayatullah's decision makes a reference to two ways in
which such violation may take place - firstly, through the Court assuming
jurisdiction to make rules, and decisions based upon such rules being flawed and
secondly, saying that the Judge's action (not the judicial decision itself) could be
violative of fundamental rights. Hence, much of the said violations arise from
procedural matters. This procedure, in turn, needs to be aligned with fundamental
rights themselves, for example, with Article 21's "procedure established by law".
With the expansive manner in which "life" and "liberty" are being interpreted
(even in their restricted senses), judicial decision making processes could attract
fair amounts of criticism.
C. The Fate of a Final Decision: Open to Challenge?

In the case of A.RAntulay v. R.S.Nayak,21 the Apex Court's decision to suo
motu transfer a case to the High Court (with the request to the presiding Chief
Justice to assign these two cases to a sitting Judge of the High Court, apparently to
expedite the trial of the appellant) was challenged.22 The appellant raised an
objection that the case could be tried only by a Special Judge, which was rejected.
The Supreme Court observed that the writ petition challenging the validity of the
order and judgment of this Court was a nullity. The appellant filed a Special Leave
Petition before the Supreme Court questioning the jurisdiction of the Special Judge
who was a sitting judge of the High Court to try the case in violation of the appellant's
fundamental rights conferred by Articles 14 and 21 and the provisions of the
Criminal Law Amendment Act, 1952.
The majority judgment held that since the offences could be triable by Special
Judges only, the order transferring the cases to the High Court was unauthorized
by law. By its directions, the Supreme Court could not confer jurisdiction on the
High Court, such power being purely legislative. A superior court could always
" (1988) 2 S.C.C. 602. [hereinafter Antulay ]

" The appellant was the Chief Minister of Maharashtra when he resigned that office in
~~ deference to a High Court decision against him. The respondent was a member of a
political party who filed a complaint before a Special Judge against the appellant for
various offences under the Indian Penal Code and the Criminal Law Amendment
Act, 1952. The notified Special Judge, who was to try the under § 6(1) of the Act,
discharged the appellant, holding that a member of the Legislative Assembly was a
public servant and there was no valid sanction for prosecuting him. The Supreme
Court set aside this order.
83
correct its own error brought to its notice

justitiae . The singling out of the appellant fo
an offence where it lacked jurisdiction t
unwarranted. In the instant case, the Court
of the law and the decision in Anwar Ali Sar
The directions were thus legally wrong. By
Court violated Articles 14 and 21 of the Con
revision and appeal had been closed to him
the injustice done should be corrected by
neminem gravabit.
The dissenting opinion, however, was

interpreted the law, in light of the very nat
another could not sit in judgment upon the
the course of a review petition. The existen
depend on the correctness of its exercise. Th
making was indispensable to every judicial fu
decision would be open to ridicule. The max
had no application to "conscious conclusio
did it confer power to reassess a final decis
This case was entertained under a Special

and was not filed under Article 32. However
whether a writ petition could be allowed un
of the Court. Here, the Supreme Court had c
jurisdiction which the former had no powe
23 State of West Bengal v. Anwar Ali Sarkar

24 Antulay , supra note 21, at 654. It was observ
This Court is not powerless to correct its

depriving a citizen of his fundamental right
and liberty. It can do so in exercise of its
proceeding pending before it without insistin
application. Powers of review can be exer
Article 136 or Article 32 or under any other
if the Court is satisfied that its directions h
of the fundamental rights of a citizen or an
[emphasis added.]
25 Literally translated, this means "an act of th

the decision in a case is prolonged on account o
or from the complexities of the questions of l
to enter up his judgment so as to ensure justice
(6th ed. 1990).
84
relevant statutory provisions and binding precedents had been ignored. In such
"extraordinary" circumstances, the only way out was resort to Article 32, itself a
fundamental right. This implicitly leads one to infer that since the Judiciary is
willing to be subject to Article 32 by reconsidering its decision, it is subject to
fundamental rights. Therefore, it would follow that the Judiciary needs to be
explicitly brought within the meaning of State under Article 12, and not resort to
terming it "an inherent jurisdiction" or by citing legal maxims.
The dissenting judgment in this case holds that inherent privilege in judicial
decision making gives it leeway to make an erroneous decision, which may violate
fundamental rights. The judgment is right insofar as it says that the binding power
of a judgment or the jurisdiction of the Court should not depend upon the
correctness of its exercise. However, to say that allowing writ petitions under
Article 32 would open "unprecedented procedural floodgate. ..enabling]
repetitive challenge"26 and unsettle the law seems to be an exaggerated prediction
of consequences. The "unattainable ideal" of correctness of judicial decisions
which Venkatachaliah, J. talks about in his dissenting opinion is based on the
fallibility of any Court.27 But it is this very fallibility which necessitates the need
for bringing in the Judiciary under Article 12.
D. Clemency for Criminals: Can the Supreme Court rethink

Death Sentences?
In Smt. Triveniben v. State of Gujarat,28 the accused contende

pursuant to being convicted under Section 302 of the Indian Penal Co
was a long delay in the executing the punishment of death sentence and
dehumanizing aspect of the same was violative of Article 21. The decision
Court reflected the opinion that it was settled that a judgment of court
be challenged for violation of fundamental rights.29 The only solutio
challenge the subsequent events after the final judicial verdict is pronou
was categorically stated that a judicial order cannot violate fundamental
26 Antulay, (1988) 2 S.C.C. 602, 692 (per Venkatachaliah, J.)

27 Antulay , (1988) 2 S.C.C. 602, 700.
28 (1989) 1 S.C.C. 678.
29 Id. at 697, 699 relying on Antulay and Mirajkar.
30 While it was conceded that undue delay in execution of capital punishment may
amount to a violation of Article 21, it was held that only the period beginning from
the judgment of the Apex Court till the execution of the punishment can constitute
delay that is violative of fundamental rights. Prolonged judicial process, i.e. trial or
appeal does not violate Article 21. Triveniben, supra note 28, at 694.
85
This decision can be contrasted with that

State of Uttar Pradesh.31 On an application
filed after the dismissal of Special Leave
reconsidered its judgment. The petitione
Indian Penal Code and sentenced to death
with him had their sentence commuted to l
case stayed the death sentence of the petiti
special leave, review and clemency petitions
"very wide powers had been conferred fo
justice."32 The overarching idea was that of i
Court to deal with "extraordinary" situation
In this case, the reasoning of the Court appea
situated in similar circumstances had not be
had been denied the clemency extended t
actions seem to be violative of Article 14.
Similarly, in Attorney General v . Lachm

the accused should be sentenced to death by
filed by the Attorney General in the Suprem
passed against the judgment. It was held by t
was a cruel and barbaric practice and cont
It appears that the Supreme Court is ver

orders to be set aside. Hence, Lachma Devi
right to dignity assured to every human bei
it was held, on the facts of the case, that
whereas Harbans Singh took cognizance of
treated at par with the others convicted of t
the Judiciary is to be brought under Articl
the decisions themselves seem to have violated fundamental rights and
subsequently, the petitioners had approached the Court under Article 32.
31 (1982) 2 S.C.C. 101.

32 Id. at 107, 108.
33 Id.
34 A.I.R. 1986 S.C. 467.
86
E. Complete Justice and Contempt of Court: Trammeling

Plenary Power?
In Supreme Court Bar Association v . Union of India &Anr,35 a writ petition

was filed by the Supreme Court Bar Association, praying that the Court's decision
in Re: Vinay Chandra Mishra 36 be reconsidered. In the earlier decision, the Court
had found the advocate guilty of committing criminal contempt of court and
suspended him from practicing for three years. It was argued that that only the
disciplinary committees of the Bar Councils set up under the Advocates Act, 1961
had jurisdiction to inquire into, suspend or debar an advocate. It was submitted
that neither the Supreme Court nor the High Court had such original jurisdiction.
The Constitution Bench held that Courts of record exercised contempt powers
under their inherent jurisdiction and that it was essential to enable courts to
administer justice according to law in a regular, orderly and effective manner.
Firstly, the Court had awarded a punishment which was not recognized or
accepted, i.e. under contempt powers, to suspend an advocate's license and debar
him from practicing. The powers to do so are vested with the Disciplinary
Committees of the Bar Councils if professional misconduct is proved. Under the
Supreme Court Rules, the Court could withdraw his privilege to practice as an
Advocate-on-Record, but this did not amount to* revoking the licence of the
advocate. Secondly, the power to do complete justice under Article 142 is a
corrective power, but usurping the jurisdiction of the Bar Council would be violative
of due process. Article 142 could be used as a "residual source" of power to prevent
"clogging or obstruction of the stream of justice", but the same cannot be used to
violate substantive rights of a litigant. As Justice Anand eloquently put it, "Article
142, even with the width of its amplitude, cannot be used to build a new edifice
where none existed earlier."37
The Court observed in the instant case that it was its duty to make statutory
bodies and other organs of the State perform their functions, but that it could not
take over the functions of these bodies. Here, by suspending the licence of the
contemner, the Court had violated "procedure established by law" and hence
Article 21 of the contemner. The majority judgment does admit that an error was
made. Here, although expressly recognizing the nature of the error made, the
Court still does not consider itself State, but only as a body monitoring the State.
But in this function too, as a regulatory body, there might be instances where the
35 (1998) 4 S.C.C. 409.

36 (1995) 2 S.C.C. 584.
37 (1998) 4 S.C.C. 409, 432.
87
fundamental rights are violated. As the C

of Haryana,38 "to perpetuate an error
compulsion of judicial conscience."39
In many of the above cases, "procedu

and has led to a direct infringement of A
not around correct decisions, but on corr
formal and substantive levels.
F. The Genesis of the Curative Petition: Judicial Creativity

or Judicial Folly?
In the landmark case of RupaAshok Hurra v . Ashok Hurra,40 the Constitution

Bench of five judges examined whether a writ petition can be maintained under
Article 32 to question the validity of a judgment of this Court after the review
petition has been dismissed. Firstly, it was contended that there would be a re-
examination of the case only where the judicial order was passed without
jurisdiction, in violation of the principles of natural justice, in violation of
fundamental rights or where there had been gross injustice, under the inherent
jurisdiction of the Court. It was admitted that, in the rarest of rare cases, a petition
under Article 32 could be entertained where even a review petition had been
rejected. The "corrective jurisdiction" of the Court, it was argued, arose from
those provisions of the Constitution conferring power on the Supreme Court such
as Article 32 and Articles 129 - 40. Secondly, the remedy for the above rare cases
was, since no appeal lies from the order of the Apex Court, an application under
Article 32, if senior counsel were able to discern some permissible ground for the
same.
In this case, Justice Syed Shah Mohammed Quadri poin

32 can be invoked only for the purpose of enforcing t
conferred in Part III and that no judicial order passed by a
judicial proceedings can be said to violate any of the fun
superior courts of justice do not fall within the ambit of St
under Article 12 of the Constitution. The Court adopted
approach by holding that even after exhausting the remedy
137 of the Constitution, an aggrieved person might be provi
38 (2000) 1 S.C.C. 278.

39 Id. at 285.
40 (2002) 4 S.C.C. 388.
88
to seek relief in cases of gross abuse of the process of the Court or gross miscarriage
of justice, because the judgment of the Supreme Court is final. It was held that the
duty to do justice in these rarest of rare cases shall have to prevail over the policy
of certainty of judgment.41
Several grounds were laid down whereby a "curative petition" could be

entertained and a petitioner is entitled to relief ex debito justitiae . It could be
used, for example, in cases of violation of principles of natural justice, where an
interested person is not a party to the lis and where in the proceedings a Judge
failed to disclose his connection with the subject-matter or the parties giving
scope for an apprehension of bias. The petitioner would have to specifically
mention the grounds on which he was filing the curative petition. It shall have to
be certified by a Senior Advocate to the above effect.42 The petition has to be first
circulated to a Bench of the three senior-most Judges and the Judges who passed
the judgment. If the majority saw it fit to review the case, the same Bench would
hear the matter. Exemplary costs would have to be imposed if the petition was
found to be frivolous.43 Justice Umesh Banerjee recorded a separate but
concurring judgment. He posed a question as to whether it can be said that the
binding nature of an Order of this Court, cannot thus be ever be corrected even if
it causes insurmountable difficulty and immense public injury. He observed:
"Flexibility of the law Courts presently are its greatest virtue and as such justice
oriented approach is the need of the day to strive and forge ahead in the 21st
century."44
Although Antulay , Supreme Court Bar Association and Mirajkar had talked
in terms of grave errors being rectified by the inherent powers of the Court, this
case gives concrete expression to the same. Definite guidelines have been laid
down whereby a curative petition would be entertained. Although the Judiciary
has once again been said to be not part of Article 12, it seems evident from the
reasoning in this case that judicial orders can be questioned on the grounds of
41 Id. at 413, 414. Quadri, J. observed:
[T]hough Judges of the highest Court do their best, subject of course to the
limitation of human fallibility, yet situations may arise, in the rarest of
the rare cases, which would require reconsideration of a final judgment to
set right miscarriage of justice complained of. In such case it would not
only be proper but also obligatory both legally and morally to rectify the
error.
42 Supra note 40, at 417.

89
being violative of fondamental rights, eve

majority judgment. Only a perusal of dev
show whether the guidelines laid down in
encourage frivolous litigation and there
Justice of India has hailed this decision
judgments of the Court of the last resort
G. The Era of 'Curative Jurisprudence Subsequent

Developments
The Supreme Court in the case of Union of India v . Azadi Bachao Andolan 46
upheld the validity of circular issued by the Central Board of Direct Taxes regarding
the Indo-Mauritius Tax Treaty, regarding the certificate of residence issued by
Mauritius regulatory authority, which would allow them to gain important tax
exemptions. A curative petition was filed on the grounds that the decision
sanctions the concept of "treaty shopping" and that it has gone against the
Constitution since delegated powers of the Government had been granted privilege
over statutes. A five-judge bench had been set up to consider whether it should be
admitted,47 and was subsequently dismissed.48
If the filing of a curative petition is but another opportunity for the

appreciation of evidence, then the Court has on many an occasion dismissed the
petition. The disapproval of frivolous curative petitions has also been spoken of
disapprovingly by the Court.49 On occasion, however, the Court has allowed the
review petitions to be converted into curative petitions, taking account of the
decision in the Hurra case.50
III. A Case For Considering Judiciary as "State"
Firstly, as one of the "three great departments of the State", the Jud
should also be included within the meaning of Article 12. If it were not, th
45 Justice R.C.Lahoti, Speech on Law Day (2005) 2 S.C.C. (J.) 1.

46 (2004) 10 S.C.C. 1.
47 Taxing Times , The Economic Times, Jun. 5, 2005.
48 Id.
49 Sumer v. State of Uttar Pradesh, (2005) 7 S.C.C. 220.

50 Zakarius Lakra and Ors v. Union of India and Anr., (2005) 3 S.C.C. 161.
90
making powers of the Court could violate fundamental rights with impunity.51 The
dicta of Justice Frankfurter in Snowden v. Hughes' * is relevant as he states "...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?"
Secondly, in light of the decision of the Supreme Court in Ujjam Bai v.

Union of India,53 a writ of certiorari could also lie to bodies which are under an
obligation to act judicially or quasi judicially. Since such a writ lies, it follows that
there are some fundamental rights which can be violated by a judge acting
judicially in a court. Since the binding power of any judgment of the Supreme
Court is based on the fact that it is backed by State which has the power and
necessary resources to enforce, it would only be logical that the Judiciary itself
be considered part of the State. An oft-quoted example is that of a judge, who
denies the entry of an "untouchable" into his courtroom. He/she would be guilty
of violating Article 17. If a judge compels someone to answer incriminating
questions, he is guilty of violating Article 20(3). A trial under such conditions
should be stopped and a petition filed in the superior courts under their writ
jurisdiction.54 Thirdly, to ensure the same, it must be proved that the Supreme
Court can issue writs to the High Courts. The majority opinion in Mirajkar that a
writ did not lie is dismissed as obiter. It was suggested that the aggrieved should
be "left to the expensive procedure and hazard of successive appeals or be driven
to appeal to the discretionary power of the Supreme Court under Article 136."55
A. Drawing Comparisons: The Judiciary as State in the

United States
The decision of the U.S. Supreme Court in Commonwealth of Virgini

Rives56 is often cited to show that a judicial decision is included within the
51 H.M.Seervai, Constitutional Law of India 393 (1999).

52 321 U.S. 1 (1944).
53 A.I.R. 1962 S.C. 1621.
55 Id.
56 100 U.S. 313, 318 (1880) cited from D.D.Basu, A Commentary On The Constitution Of
India 142 (1970) [hereinafter Basu]. In this case, it was observed:
It is doubtless true that a State may act through different agencies - either
by its legislative, its executive, or its judicial authorities; and the
91
of State action for the purposes of the 14th A

been held in Brinkerhojf-Fairs Trust & Savi
deprives a person of his/her existing re
opportunity to be heard would be violative
substantive point of view, it has been held
fundamental right, if enforced, would r
certiorari to the authority.59 Hence judicial
judicial capacity, either in enforcing commo
Through the agency of the courts, the State s
this does not necessarily entail that decision
error.62 As was held in Fay v . People of th
prohibitions of the Amendment extend to al

equal protection of the laws, whether it be a
or by another.
57 Basu, supra note 56, at 142.

58 281 U.S. 673 (1930). The plaintiff was denied relief in equity from discrimination
in tax on the basis that he had not sought an administrative remedy in the first
place. He was subsequently deprived of property. In this case, the administrative
remedy was never available. It was clearly stated that the federal guarantee of due
process extends to state action through judicial as well as through legislative,
executive, or administrative branch of government.
59 Griffin v. Illinois, 351 U.S. 12 (1955).
60 Basu, supra note 56, at 142, 143.
61 Basu, supra note 56, at 142, 143.
62 Basu, supra note 56, at 142. The U.S. Supreme Court has annulled decisions where
common law rules have gone against the freedom of religion or when contempt of
court infringes the freedom of expression. It has also been used where a particular
race, African Americans for example, were deliberately excluded from jury service
in a trial involving an African American.
63 332 U.S. 261 (1947). The defendants in this case were officers of labor and craft
unions and sought to establish that New York statute providing for selection of a
"blue ribbon" jury panel was so administered as to deny due process, and that dual
system of jury panels as administered denied equal protection of the laws. It was
contended that laborers, operatives, craftsmen, foremen and service employees were
systematically, intentionally, and deliberately excluded. It was held that where the
composition of a jury is questioned, a mere showing that a class was not represented
in a particular jury is not enough, and there must be a clear showing that its absence
was caused by discrimination. It was held that the alleged exclusion from special
jury panel used by state courts in the state and county of New York, of laborers,
craftsmen, service employees, and others of like occupation, amounting to the
exclusion of an economic class, did not deprive defendants, who were officers of labor
and craft unions, of due process guaranteed by the Fourteenth Amendment. The
Fourteenth Amendment was an aid to protect "integrity of the trial process."
92
could be quashed if the aggrieved party can prove that the method of their trial
denied them the equal protection of the laws.
What is noteworthy as regards the American position is the clarity regarding

both substantive and procedural aspects of the 14th Amendment. The examples
used herein clearly show that it is not "fanciful speculation", as Seervai puts it, to
think that judicial officers acting in their judicial capacity can prejudice the
fundamental rights of a citizen. Hence, an explicit recognition of the Judiciary as
State under Article 12 seems in order.
B. NCRWC Recommendations: Following English Law
The National Commission to Review the Working of the Constitution

("NCRWC") has put forward the recommendation that an Explanation should be
added to Article 12 wherein it would be mentioned that the expression "other
authorities" shall include any person in relation to such of its functions which are
of a public nature.64 Since the raison ď etre for the establishment of Courts was to
decide and interpret the law - a function that clearly relates to the public sphere
- the Judiciary and its officers would fall within the scope of "other authorities" as
defined in Article 12. In a consultation paper on "Enlargement of Fundamental
Rights" prepared under the guidance of Sri. Soli Sorabjee, several facets of the
debate was elucidated. Referring to section 6(3)(b) of the U.K. Human Rights Act
1998 wherein the definition of public authority includes "any person certain of
whose functions are functions of a public nature", it was noted that the same
definition included "a court or a tribunal". The other alternative proposed was
that the Judiciary as State should be confined to Article 21, since it is "Article 21
which is most invoked in the case of judicial orders." Parallels can be drawn between
the U.K. Human Rights Act, 1998 and Part III of the Indian Constitution, since
both are concerned with rights of fundamental nature. Although the final report
does not mention anything about the Judiciary as State, the Explanation, if added
to the Article, would facilitate the development of law in this area.
IV. Conclusion
The Supreme Court, by bringing a vast plethora of entities under the p

of "other authorities" as mentioned in Article 12 has served the Constitution well.
64 M.N. Venkatachaliah et al., Report Of The National Commission To Review The Working Of
The Commission (2002).
93
However, bringing the Judiciary under t

issue. A perusal of cases from Prem Chand G
the trend is mostly tilted in favour of rectif
a writ petition under Article 32, even if it is
the effect that judicial decisions which ha
question. Hence, it can be inferred that sinc
orders may contravene fundamental rights,
within the meaning of State under Article 12
fundamental rights have been held to be app
well.
It is noticed that the Judiciary is averse

because it would hamper their "independe
issues which directly come to bear upon the
Even the judges may go wrong and therefore, it
constitutional ideals, that these errors b
attention. The irony in this discussion is t
included within the contours of Article 12,
interpretation of the Courts themselves, sin
Constitution. The reluctance of the Judiciar
stems from its hesitation to voluntarily subj
The Judiciary is a governing institution a

judicial activism, judicial legislation and wide
the Judiciary wields immense political po
their creation were to be used against cente
appropriate matters, the Judiciary too, is s
Constitution.
It is therefore eminently desirable to bring the Judiciary, itself a creature

of the Constitution, under the purview of Part III, so that the highest of
constitutional ideals are realized.
94

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Student Advocate Committee

II. Judicial interpretations on the Judiciary as State : An examination

A. Contentious Beginnings: Can Supreme Court Rules violate

C. The Fate of a Final Decision: Open to Challenge?

* II year, B.A. LL.B. (Hons.), Nation

D. Clemency for Criminals: Can the Supreme Court rethink Death

E. Complete Justice and Contempt of Court: Trammeling Plenary

F. The Genesis of the Curative Petition: Judicial Creativity or

G. The Era of 'Curative Jurisprudence': Subsequent Developments

III. A Case For Considering Judiciary as "State"

A. Drawing Comparisons: The

B. NCRWC Recommendations: Following English Law

Parties are not permitted to begin fresh litigations because of new

The definition of State under Article 12 of the Constitution does not

1 Hoystead & Ors v. Commissioner of Taxation, L.R. 1926 A.C. 155.

ordinarily be said to be a violation of fundamental rights. If this were allowed, it

3 Constitution of India, 1950, Article 142:

Enforcement of decrees and orders of Supreme Court and orders as to

4 A.I.R. 1967 S.C. 1.

II. Judicial interpretations on the Judiciary as

A. Contentious Beginnings: Can Supreme Court Rules

The decision of Justice Hidayatullah in Naresh Mirajkar v. State of

5 Constitution of India, 1950, Article 12, states:

6 VII Constituent Assembly Debates 609 (1950).

8 A.I.R. 1967 S.C. 1. [hereinafter Mirajkar ]

In Prem Chand Garg v . Excise Commissioner ,9 it was held by the majority,

(a) rules as to the persons practicing before the Court;

the various interpretations given to "com

In Budhan Choudhary v. State of Bihar,"

B. Fundamental Rights and Judicial (In)discretion: A

Naresh Shridhar Mirajkar v. State of Maharashtra13 is a landmark case in

" A.I.R. 1955 S.C. 191.

The majority held that suppression of evidence in question was necessary

Of particular interest is the dissenting opinion delivered by Hidayatullah,

The word "State" in Articles 12 and 13 includes courts because otherwise

A Judge ordinarily decides controversies between the parties, in which

As regarding the amenability of the Judiciary to writ jurisdiction, the

the High Courts, it is assumed that High Co

In this case, the oral order was clearly in

18 A peripheral issue in this case was with re

It was suggested that the High Courts might

The arguments brought up in this case are of far reaching consequence.

C. The Fate of a Final Decision: Open to Challenge?

" (1988) 2 S.C.C. 602. [hereinafter Antulay ]

correct its own error brought to its notice

The dissenting opinion, however, was

This case was entertained under a Special

23 State of West Bengal v. Anwar Ali Sarkar

This Court is not powerless to correct its

25 Literally translated, this means "an act of th

D. Clemency for Criminals: Can the Supreme Court rethink

In Smt. Triveniben v. State of Gujarat,28 the accused contende

26 Antulay, (1988) 2 S.C.C. 602, 692 (per Venkatachaliah, J.)

This decision can be contrasted with that

Similarly, in Attorney General v . Lachm

It appears that the Supreme Court is ver

31 (1982) 2 S.C.C. 101.

34 A.I.R. 1986 S.C. 467.

E. Complete Justice and Contempt of Court: Trammeling

In Supreme Court Bar Association v . Union of India &Anr,35 a writ petition

35 (1998) 4 S.C.C. 409.

fundamental rights are violated. As the C

In many of the above cases, "procedu