Naresh Shridhar Mirajkar & Ors Vs.
State of Maharashtra & ANR  INSC 64 (3 March 1966)
03/03/1966 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) SARKAR, A.K.
CITATION: 1967 AIR 1 1966 SCR (3) 744
CITATOR INFO :
RF 1967 SC1643 (274) RF 1973 SC 106 (105) RF
1973 SC1461 (1717) D 1974 SC 532 (12) R 1978 SC 597 (41,66,67) R 1980 SC 898
(56) RF 1981 SC 917 (11,12) RF 1981 SC2198 (21) R 1985 SC 61 (7) R 1986 SC 180
(31) R 1988 SC1531 (184) RF 1988 SC1883 (206) F 1989 SC1335 (22,26) R 1991
Practice and Procedure-Inherent jurisdiction
of High CourtPower to stop publication of proceedings of a trial-Order if
violates fundamental right under Art. 19(1)(a)-If amenable to proceedings under
Art. 32 of the Constitution.
In a suit for. defamation against the editor
of a weekly newspaper, field on the original side of the High Court, one of the
witnesses prayed that the Court may order that publicity should not be given to
his evidence in the press as his business would be affected. After hearing
arguments, the trial Judge passed an oral order prohibiting the publication of
the evidence of the witness. A reporter of the weekly along with other
journalists moved this Court under Art. 32 challenging the validity of the
It was contended that : (i) the High Court
did not have inherent power to pass the order; (ii) the impugned order violated
the fundamental rights of the petitioners under Art. 19(1) (a); and (iii) the
order was amenable to the writ jurisdiction of this Court under Art. 32.
HELD:(i) (Per Gajendragadkar C. J., Wanchoo,
Mudholkar, Sikri, Bachawat and kainaswami, JJ.) : As the impugned order must be
held to prevent the publication of the evidence of the witness during the
course of the trial and not thereafter. and the order was passed to help the
administration of justice for the purpose of obtaining true evidence in the
case, the order was within the inherent power of the High Court. [754 A-B; 759
C] The High Court has inherent jurisdiction to hold a trial in camera if the
ends of justice clearly and necessarily require the adoption of such a course.
Section 14 of the Official Secrets Act, 1923 in terms recognises the existence
of such inherent powers in its opening clause, and s. 151, Code of Civil
Procedure, saves the inherent power of the High Court to make such orders as
may be necessary for the ends of justice or to prevent abuse of the process of
the Court. Such a power includes the power to hold a part of the trial in
camera or to prohibit exessive publication of a part of the proceedings at such
trial. (755 F; 759 C, G; 760 C] Scott v. Scott,  1 A.C. 417 and
Moosbrugger v. Moosbrugger, (1912-13) 29 T.L.R. 658, referred to.
Per Sarkar J. : The High Court has inherent
power to prevent publication of the proceedings of a trial. The power to
prevent publication of proceedings is a facet of the power to hold, a trial in
camera and cm from it. [776 C] Scott v. Scoot  A.C. 417, explained.
Per Shah J. : The Code of Civil Procedure
contains no express provision authorising the to hold its proceedings in
camera, but if 745 excessive publicity itself operates as an instrument of
injustice, the Court has inherent jurisdiction to pass an order excluding the
public when the nature of the case necessitates such a course to be adopted An
order made by a court in the course of a proceeding which it has jurisdiction
to entertain-whether the order relates to the substance of the dispute between
the parties or to the procedure, or to the rights of other persons, is not
without jurisdiction, merely because it is erroneous. [804 B, C. F] Per
Hidayatullah J. (dissenting): A Court which was holding a public trial from
which the public was not excluded, cannot suppress the publication of the
deposition of a witness, heard not in camera but in open Court, on the request
of the witness that his business will suffer. [783 H, 789 D] Section 151 C.P.C.
cannot be used to confer a discretion on the to turn its proceedings which
should be open and public into a private affair. A trial in camera can only be
used when a strong case exists for holding it in camera and inherent powers can
only be reconised on well recognised principles. Where the legislature felt the
special need it provided for it. It is not right to assume from s. 14 of the
Official Secrets Act, 1923, that courts possess a general or inherent power of
dispensing with open and public trials. [787 E, F, G, H; 789 C] English cases
(ii)(Per Gajendragadkar C.J., Wanchoo,
Mudholkar, Sikri and Ramaswami, JJ.) : Just as an order passed by the Court on
the merits of the dispute before it cannot be said to contravene the
fundamental rights of the litigants before the Court, so the impugned order,
which is also a judicial order, cannot be said to affect the fundamental rights
of the petitioners. It was directly connected with the proceedings before the
Court inasmuch as the Court found that justice could not be done between the
parties and that the matter before it could not be satisfactorily decided
unless publication of the evidence was prohibited pending the trial. if
incidentally, the petitioners were not able to report what they. heard in
Court, that cannot be said to make the impugned order invalid under Art. 19(1)
(a). [761 D-F; 762 F-G] A. K Gopalan v. State of Madras,  S.C.R. 88, 101,
Ram Singh v. State,  1 S.C.R. 451 and The Parbhani Transport Cooperative
Society Ltd. v. The RTA Aurangabad,  3 S.C.R. 177, followed.
Budhan Chowdhry v. State of Bihar,  1
S.C.R. 1045, explained.
Per Sarkar J. : The impugned order does not
violate the fundamental right of the petitioners to freedom of speech and
expression conferred by Art. 19(1) (a-. [777 D] If a judicial tribunal makes an
order which it has jurisdiction to maim by applying a law which is valid in all
respects, the order cannot offend a fundamental right. An order is within the
jurisdiction of the tribunal which made it, if the tribunal had jurisdiction to
decide the matters that were litigated before it and if the law which it,
applied in making the order was a valid law. A tribunal having this
jurisdiction does not act without jurisdiction if it makes an error in the
application of the law. The impugned order is a judicial order within the
jurisdiction of the Judge making it even though it restrained the petitioners
who were not. parties to the proceedings. [774 F-G; 775 B, F-G; 776 B; 779 B,
C] Ujjam Bai v. State of U.P.  1 S.C.R. 778, followed.
Sup Cl/66-2 746 Further, the order is based
on a good and valid law. The power to prohibit publication of proceedings is
essentially the same as the power to hold a trial in camera and the law
empowering a trial in camera is a valid law and does not violate the
fundamental right in regard to liberty of speech because, the person restrained
is legally prevented from entering the Court and hearing the proceedings, and
the liberty of speech is affected only indirectly. Moreover, the law empowering
:a Court to prohibit publication of its proceedings is protected by Art. 19(2),
because, the law relates to contempt of Court and the restriction is reasonable
as it is based on the principle that publication would interfere with the
course of justice and its due administration. [777 E-G; 778 C-E, G] The
Parbhani Transport Cooperative Society Ltd. v. RTA Aurangabad,  3 S.C.R.
and A. K. Gopalan v. State,  1 S.C.R. 88, followed.
Budhan Chowdhry v. The State,  1 S.C.R.
Per Shah J. : Jurisdiction to exercise these
powers which may affect rights of persons other than those who are parties to
the litigation is either expressly granted to the Court by the statute or
arises from the necessity to regulate the course of proceedings so as to make
them an effective instrumentfor the administration of justice. An order made
against a stranger in aid of administration of justice between contending
parties or for enforcement of its adjudication does not directly infringe any
fundamental right under Art. 19 of the person affected thereby, for it is
founded either expressly or by necessary implication upon the nonexistence of
the right claimed. Such a determination of the disputed question would be as
much exempt from the jurisdiction of his Court to grant relief against
infringement of a fundamental right under Art. 19, as a determination of the
disputed question between the parties on merits or on procedure. [803 C-D,;
F-H] Per Bachawat J. : The law empowering the High Court to restrain the
publication of the report of its proceedings does not infringe Art. 19(1) (a),
because it affects the freedom of speech only incidentally and indirectly. [808
G, H] A.K. Gopalan v. Stare of Madras,  S.C.R. 88 and Ram Singh v. State,
 S.C.R. 451, followed.
Per Hidayatullah J.(dissenting ) : The order
commits a breach of the fundamental right of freedom of speech and expression.
[789 E; 792 A) The Chapter on Fundamental Rights indicates that Judges acting
in their judicial capacity were not intended to be outside the reach of
fundamental rights. The word "State" in Arts. 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. 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. [789
G-H; 790 A-B; 791 C] Prem Chand Garg V. The Excise Commissioner,  Supp. 1
S.C.R. 885, referred to.
(iii)(Per Gajendmgadkar C.T., Wanchoo,
Mudholkar, Sikri and Ramaswami,JJ.) : The High Court is a superior court of
Record and it is for itto consider whether any matter falls within its
jurisdiction or 747 not. The order is a judicial order and if it is erroneous a
person aggrieved by it, though a stranger, could move this Court under Art. 136
and the order can be corrected in appeal; but 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 under Art. 32.
[770 H; 772 EJ Ujjam Bai v. State,  1
S.C.R. 778, referred to.
Prem Chand Garg v. Excise Commissioner, U.P.
 Supp. I S.C.R. 885, explained.
Per Sarkar J. : This Court has no power to
issue a certiorari to the High Court. [782 H] When the High Court has the power
to issue the writ of certiorari, it is not, according to the fundamental
principles of certiorari an inferior court or a court of limited jurisdiction.
The Constitution does not contemplate the High Courts to be inferior courts so
that their decisions would be liable to be quashed by a writ of certiorari
issued by the Supreme Court. [782 F-H] Per Shah, J : In the matter of issue of
a writ of certiorari against the order of any Court, in the context of the
infringement of Fundament rights, even orders made by subordinate , such as the
District Court or of subordinate Judge, are as much exempt from challenge in
enforcement of an alleged fundamental right under Art. 19 by a petition under
Art. 32 as orders of the High Court which is a superior Court of Record. It is
not necessary to decide for the purpose of these petitions whether an order
made by a High Court may infringe any of the rights guaranteed by Arts. 20, 21
& 22(1) and may on that account form the subject-matter of a petition under
Art. 32. Art. 19, on the one hand and Arts. 20, 21 & 22(1) are differently
Art. 19 protects personal freedoms of
citizens against state action except where the 'action falls within the
Arts. 20, 21 & 22 impose direct
restrictions upon the power of authorities. [805 E-F; 806 C; 807 A, B; 808 A-B]
Per Bachawat J. : The High Court has jurisdiction to decide if it could
restrain the publication of any document or information relating to the trial
of a pending suit or concerning which the suit is brought. If it erroneously
assumes a jurisdiction not vested in it, its decision may be set aside in
appropriate proceedings, but the decision is not open to attack under Art. 32
on the ground that it infringes the fundamental right under Art. 19(1)(a). If a
stranger is prejudiced by an order forbidding the publication of the report of
any proceeding, his proper course is only to apply to the Court to lift the
ban. [808 F; 810 A-B] Per Hidayatullah J. (dissenting) : Even assuming the
impugned order means a temporary suppression of the evidence of the witness the
trial Judge had no jurisdiction to pass the order. As he passed no recorded
order the appropriate remedy (in fact the only effective remedy) is to seek to
quash The order by a writ under Art. 32. [792 E-F; 801 E] There may be action
by a Judge which may offend the fundamental rights under Arts. 14, 15, 19, 20,
21 and 22 and an appeal to this Court will not only be not practicable but will
also be an ineffective remedy and this Court can issue a writ to the High Court
to quash its order, under Art. 32 of the Constitution. Since them is no
exception in Art. 32 in of the High Courtís there is a presumption that the
High Court are not excluded. Even with the enactment of Art. 226 the power
which is conferred on the High Courtís is not in every sense a coordinate and
the implication of reading Arts. 32, 136 and 226 together is 748 that there is
no sharing of the powers to issue the prerogative writs processed by this
Court. Under the total scheme of the Constitution the subordination of the High
Courts to the Supreme Court is not only evident but is, logical. [794F; 797
G-H; 799 D-E]
ORIGINAL JURISDICTION : W.Ps. Nos. 5 and 7 to
9 of 1965.
Petition under Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
M. C. Setalvad, R. K. Garg, R. C. Agarwal, D.
P. Singh and M. K. Ramamurthi, for petitioner (in W.P. No. 5 of 1965).
A.K. Sen, R. K. Garg, S. C. Agrawal, D. P.
Singh and M. K. Ramamurthi, for the petitioner (in W.P. No. 7 of 1965).
V.K. Krishna Menon, R. K. Garg, S. C. Agrawal,
D. P. Singh and M. K. Ramamurthi, for the petitioner (in W.P. No. 8 of 1965).
N. C. Chatterjee, R. K. Garg, S. C. Agrawal,
D. P. Singh, and M. K. Ramamurthi, for the petitioners (in W. P. No. 9 of
C. K. Daphtary, Attorney-General, B. R. L. Iyengar
and B. R. G. K. Achar, for the respondents (in all the petitions).
The Judgment of GAJFNDRAGADKAR C.J., WANCHOO,
MUDHOLKAR, SIKRI and RAMASWAMI, JJ. was delivered by GAJENDRA-GADKAR C.J.
SARKAR, SHAH and BACHAWAT JJ. delivered separate Opinions. HIDAYATULLAH, J.
delivered a dissenting Opinion.
Gajendragadkar, C.J. The petitioner in Writ
Petition No. 5 of 1965--Naresh Shridhar Mirajkar, who is a citizen of India,
serves as a Reporter on the Staff of the English Weekly "Blitz",
published in Bombay and edited by Mr. R. K.
Karanjia. It appears that Mr. Krishnaraj M.
D. Thackersey sued Mr. R. K. Karanjia (Suit No. 319 of 1960) on the Original
Side of the Bombay High Court, and claimed Rs. 3 lakhs by way of damages for
alleged malicious libel published in the Blitz on the 24th September, 1960,
under the caption "Scandal Bigger Than Mundhra". This suit was tried
by Mr. Justice Tarkunde.
One of the allegations which had been made in
the said article was to the effect that China Cotton Exporters, of which Mr.
Thackersey was a partner, had obtained licences for import of art silk yarn on
condition that the same would be sold to handloom weavers only; and that in
order to sell the said silk yarn in the black market with a view to realise
higher profits, three bogus handloom factories were created on paper and bills
and invoices were made with a view to create the impression that the condition
on which the, licences had been granted to China Cotton Exporters, had been
complied with. Mr. Thackersey's concern had thus sold the said yarn in the
black-market and thereby concealed from taxation' 749 the large profits made in
that behalf. These allegations purported to be based on the papers filed in
Suits Nos. 997 and 998 of 1951 which had been instituted by China Cotton
Exporters against National Handloom Weaving Works, Rayon Handloom Industries,
and one Bhaichand G. Goda. The said Bhaichand G. Goda was alleged to have been
the guarantor in respect of the transactions mentioned in the said suits.
The said Bhaichand Goda had, in the course of
insolvency proceedings which had been taken out in execution of the decrees
passed against him, made an affidavit which seemed to support the main points
of the allegations made by the Blitz in its article "Scandal Bigger Than Mundhra".
During the course of the trial, the said
Bhaichand Goda was called as a defence witness by Mr. Karanjia. In the
witness-box, Mr. Goda feigned complete ignorance of the said transactions; and
under protection given to him by the learned Judge who was trying the action,
he repudiated every one of the allegations he had made against Mr. Thackersey's
concern in the said affidavit. Thereupon, Mr. Karanjia applied for permission
to cross-examine Mr. Goda and the said permission was granted by the learned
Accordingly, Mr. Goda came to be
cross-examined by Mr. Karanjia's counsel.
Later, during the course of further
proceedings, it was discovered that Mr. Goda had made several statements before
the Income-tax authorities in which he had reiterated some of the statements
made by him in his affidavit on which he was cross examined. From the said
statements it also appeared that he had alleged that in addition to the invoice
price of the transactions in question, he had paid Rs. 90,000/as "on money"
to China Cotton Exporters. As a result of the discovery of this material, an
application was made by Mr. Karanjia before the learned Judge for permission to
recall Mr. Goda and confront him with the statements which he had made before
the Income-tax authorities. The learned Judge granted the said application.
On Friday, the 23rd October, 1964, Mr. Goda
stepped. into the witness-box in pursuance of the order passed by the learned
Judge that he should be recalled for further examination. On that occasion he
moved the learned Judge that the latter should protect him against his evidence
being reported in the press. He stated that the publication in the press of his
earlier evidence had caused loss to him in business; and so, he desired that
the evidence which he had been recalled to give should not be published in the
papers. When this request was made by Mr. Goda, arguments were addressed before
the learned Judge and he orally directed that the evidence of Mr. Goda should
not be published. It was pointed out to the learned Judge that the daily press,
viz., 'The Times of India' and 750 'The Indian Express' gave only brief
accounts of the proceedings before the Court in that case, whereas the 'Blitz'
gave a full report of the said proceedings. The learned Judge then told Mr.
Zaveri, Counsel for Mr. Karanjia that the petitioner who was one of the
reporters of the 'Blitz' should be told not to publish reports of Mr. Goda's
evidence in the 'Blitz'. The petitioner had all along been reporting the
proceedings in the said suit in the columns of the 'Blitz'.
On Monday, the 26th October, 1964, Mr. Chari
appeared for Mr. Karanjia and urged before the learned 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, such as that of a case where a child is a victim of a sexual offence, or
of a case relating to matrimonial matters where sordid details of intimate
relations between spouses are likely to come out, and proceedings in regard to
official secrecy. Mr. Chari further contended that no witness could claim
protection from publicity on the ground that if the evidence is published it
might adversely affect his business. Mr. Chari, therefore, challenged the
correctness of the said order and alternatively suggested to the learned Judge
that he should pass a written order forbidding publication of Mr. Goda's
evidence. The learned Judge, however, rejected Mr. Chari's contentions and
stated that he had already made an oral order forbidding such publication, and
that no written order was necessary. He added that he expected that his oral
order would be obeyed.
The petitioner felt aggrieved by the said
oral order passed by Mr. Justice Tarkunde and moved the Bombay High Court by a
Writ Petition No. 1685 of 1964 under Art. 226 of the Constitution. The said
petition was, however, dismissed by a Division Bench of the said High Court on
the 10th November, 1964 on the ground that the impugned order was a judicial order
of the High Court and was not amenable to a writ under Art. 226. That is how
the petitioner has moved this Court under Art. 32 for the enforcement of his
fundamental rights under Art. 19(1)(a) and (g) of the Constitution.
Along with this petition, three other
petitions have been filed in this Court; they are Writ Petitions Nos. 7 , 8 and
9 of 1965. Mr. P. R. Menon, Mr. M. P. Iyer, and Mr. P. K. Atre, the three
petitioners in these petitions respectively, are Journalists, and they have
also challenged the validity of the impugned order and have moved this Court
32 of the Constitution for enforcement of
their fundamental rights under Art. 19(1)(a) and (g). It appears. that these
three petitioners were present in court at the time when the impugned order was
passed and they were directed not to.
publish the evidence given by Mr. Goda in
their respective papers.
751 All the petitioners challenge the
validity of the impugned order on several grounds. They urge that the
fundamental rights of citizens guaranteed by Art. 19(1) are absolute,' except
to the extent that they are restricted by reasonable restrictions imposed by
law within the limitations prescribed by clauses (2) to (6) of Art. 19.
According to them, it is doubtful whether even the Indian Legislatures have the
power to ban publication of faithful reports of proceedings in the
Legislatures, much less can the courts have power to ban such publication. They
also allege that a restriction imposed in the interests of the witness cannot be
held to be justified under Art. 19(2), and that in passing the impugned order,
the learned Judge had exceeded his jurisdiction. It is plain that the basic
assumption on which the petitions are founded, is that the impugned order
infringes their fundamental rights under Art. 19(1) and that it is not saved by
any of the provisions contained in clauses (2) to (6). To these petitions, the
State of Maharashtra and Bhaichand Goda have been impleaded as respondents I
and 2 respectively.
Respondent No. I has disputed the correctness
and the validity of the contentions raised by the petitioners in support of
their petitions under Art. 32. In regard to factual matters set out in the
petitions, respondent No. I has naturally no personal knowledge; but for the
purpose of these petitions, it is prepared to assume that the facts alleged in
the said petitions are correct. According to respondent No. 1, the impugned
order was passed by the learned Judge in exercise of his general and inherent
powers and he was justified in making such an order, because in his opinion,
the excessive publicity attendant upon the publication of Mr. Goda's evidence
would have caused annoyance to the witness or the parties, and might have led
to failure of justice. It urges that it is for the Judge trying the suit to
consider whether in the interests of the administration of justice, such
publication should be banned or not. According to respondent No. 1, the
impugned order cannot be said to affect the petitioners' fundamental rights
under Art. 19(1); and that even otherwise, it is protected under Art. 19(2).
Respondent No. I also contends that the High Court being a superior Court of
Record, is entitled to determine questions of its own jurisdiction; and orders
like the impugned order passed by the High Court in exercise of its inherent
jurisdiction are not amenable to the writ jurisdiction of this Court under Art.
32(2) of the Constitution. That, broadly stated, is the nature of the
allegations made by the respective parties in the present proceedings.
At the hearing of these petitions, the
arguments advanced before us on both the sides have covered a very large field.
It has been urged by Mr. Setalvad who argued
the case of the petitioner in Writ Petition No. 5 of 1965, that Art. 32(1) is
very wide in its sweep and no attempt should be made to limit or circumscribe
its scope and width. The right conferred on the citizens of this country by 752
Art. 32(1) is itself a fundamental right; and so, he argues that as soon as it
is shown that the impugned order has contravened his fundamental rights under
Art. 19(1), the petitioner is entitled, as a matter of guaranteed
constitutional right, to move this Court under Art. 32. Mr. Setalvad also urges
that the extent of the jurisdiction of this Court to issue a writ of certiorari
must be determined in the light of the width of the guaranteed right conferred
on the citizens by Art. 32(1). The power to issue writs conferred on this Court
by Art. 32(2) is a very wide power, and it includes the power to issue not only
the writs therein specified, but also directions or orders in the nature of the
said specified writs. The test in exercising the power under Art. 32(2)
inevitably has to be: if the fundamental right of a citizen has been breached,
which is the appropriate writ, direction, or order that should issue to remedy
the said breach? According to Mr. Setalvad, the fundamental rights guaranteed
to the citizens by Part III are very wide in their scope;
and the right to move this Court by an
aggrieved citizen is not limited to his right to move only against the
Legislature or the Executive. If an individual citizen contravenes the
fundamental rights of another citizen, the aggrieved citizen can, according to
Mr. Setalvad, move this Court for an appropriate writ under Art. 32(1) &
(2). As illustrations supporting this proposition, Mr. Setalvad referred us to
the fundamental rights guaranteed by Articles 17, 23 and 24. Article 17
abolishes 'untouchability'. If in spite of the abolition of 'untouchability' by
constitutional provision included in Part III, any private shop-keeper, for
instance, purports to enforce untouchability against a Harijan citizen, the
said citizen would be entitled to move this Court for a proper order under Art.
32(1) & (2). Similar is the position in regard to fundamental rights
guaranteed by Articles 23 and 24.
Art. 23 prohibits traffic in human beings and
forced labour, whereas Art. 24 prohibits employment of children to work in any
factory or mine or their engagement in any other hazardous employment.
In regard to judicial orders passed by
courts, Mr. Setalvad says that the said orders cannot claim immunity from being
challenged under Art. 32, because some of the fundamental rights guaranteed are
clearly directed against courts. In support of this contention, he relies on
the fundamental rights guaranteed by Art. 20(1) & (2), Art. 21, and Art.
22(1). These Articles refer to protection in
respect of conviction for offences, protection of life and personal liberty,
and protection against arrest and detention in certain cases, respectively.
Read Art. 32(1) and (2) together in this broad perspective, says Mr. Setalvad,
and it would follow that if a judicial order contravenes the fundamental rights
of the citizen under Art. 19(1), he must be held entitled to move this Court
under Art. 32(1) and (2).
753 On the other hand, the learned
Attorney-General contends that the scope of Art. 32(1) is not as wide as Mr.
Setalvad suggests. He argues that in determining the scope and width of the fundamentals
rights guaranteed by Part 111, with a view to decide the extent of the
fundamental right guaranteed by Art. 32(1), it is necessary to bear, in mind
the definition prescribed by Art. 12. Under Art. 12, according to the learned
Attorney-General, "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. He elaborated his point by suggesting that the
reference to the Government and Parliament of India and the Government and the
Legislature of each of the States specifically emphasises the fact that the
Judicature is intended to be excluded from the said definition. He argues that
the fundamental rights guaranteed by Articles 17, 23 and 24 on which Mr.
Setalvad relies, are, no doubt, of paramount importance; but before a citizen
can be permitted to move this Court under Art. 32(1) for infringement of the
said rights, it must be shown that the said rights have been; made enforceable
by appropriate legislative enactments. In regard to Articles 20, 21 and 22, his
argument is that the protection guaranteed by the said Articles is intended to
be available against theLegislature and the Executive, not against courts. That
is how he seeks to take judicial orders completely out of the scope of Art.
32(1) According to him, private rights, though fundamental in character,,
cannot be enforced against individual citizens under Art. 32(1).
We have referred to these respective
arguments just to indicate the extent of the field which has been covered by
learned counsel who assisted us in dealing with the present petitions. As this
Court has frequently emphasised, in dealing with constitutional matters, it is
necessary that the decision of the Court should be confined to the narrow
Points which a particular proceeding raises it. Often enough, in dealing with
the very narrow point raised by a writ petition, wider arguments are urged
before the Court;
but the Court should always be careful not to
cover ground which is strictly not relevant for the purpose of deciding the
petition before it. Obiter observations and discussion of problems not
,directly involved in any proceeding should be avoided by courts in dealing
with all matters brought before them; but this requirement becomes almost
compulsive when the Court is dealing with constitutional matters. That is Why
we do not propose to deal with the larger issues raised by the learned counsel
in the present proceedings, and we wish to confine our decision to the narrow
points which these petitions raise.
Let us, therefore, indicate clearly the scope
of the enquiry in the present proceedings. The impugned order has been passed
by the learned Judge in the course of the trial of a suit before him after 754
hearing the parties; and having regard to the circumstances under which the
said order was passed, and the reasons on which it is presumably based, we are
inclined to hold that what the order purports to do is to prohibit the
publication of Mr. Goda's evidence in the Press during the progress of the
trial of the suit. We do not read this order as imposing a permanent ban on the
publication of the said evidence.
On these facts, the question which arises for
our decision is whether a judicial order passed by the High Court prohibiting
the publication in newspapers of evidence given by a witness pending the
hearing of the suit, is amenable to be corrected by a writ of certiorari issued
by this Court under Art. 32(2). This question has two broad facets; does the
impugned order violate the fundamental rights of the petitioners under Art.
19(1)(a), (d) and (g); and if it does, is it amenable to the writ jurisdiction
of this Court under Art. 32(2)? Thus, in the present proceedings, we will limit
our discussion and decision to the points which have a material bearing on the
broad problem posed by the petitions before us.
Let us begin by assuming that the petitioners
who are Journalists, have a fundamental right to carry on their occupation
under Art. 19(1)(g); they have also a right to attend proceedings in court
under Art. 19(1)(d); and that the right to freedom of speech and .expression
guaranteed by Art. 19(1) (a) includes their right to publish as Journalists a
faithful report of the proceedings which they have witnessed and heard in
court. In Sakal Papers (P) Ltd., and Others v. The Union of India' , it has
been held by this Court that the freedom of speech and expression guaranteed by
Art. 19(1)(a) .includes the freedom of press.
That being so, the question which we have to
does the impugned order contravene the
petitioners' fundamental rights to which we have just referred? Before dealing
with this question, it is necessary to refer to one incidental aspect of the
matter. It is well-settled that in general, all cases brought before the
Courts, whether civil, criminal, or others, must be heard in open Court. Public
trial in open court is undoubtedly essential for the healthy, objective and fair
administration of justice. Trial held subject to the public scrutiny and gaze
naturally acts as a check against judicial caprice or vagaries, and serves as a
powerful instrument for creating confidence of the public in the fairness,
objectivity, and impartiality of the administration of justice. Public
confidence in the administration of justice is of such great significance that
there can be no two opinions on the broad proposition that in discharging their
functions as judicial Tribunals, courts must generally hear causes in open and
must permit the public admission to the court-room. As Bentham has observed:
(1)  3 S. C. R. 842.
755 .lm15 "In the darkness of secrecy
sinister interest, and evil in every shape, have full swing. Only in proportion
as publicity has place can any of the checks applicable to judicial injustice
operate. Where there is no publicity there is no justice. Publicity is the very
soul of justice.
It is the keenest spur to exertion, and
surest of all guards against improbity. It keeps the Judge himself while trying
under trial (in the sense that) the security of securities is publicity".
(Scott v. Scot(1) Having thus enunciated the universally accepted proposition
in favour of open trials, it is necessary to consider whether this rule admits
of any exceptions or not. Cases may occur where the requirement of the
administration of justice itself may make it necessary for the court to hold a
trial in camera. While emphasising the importance of public trial, we cannot
overlook the fact that the primary function of the Judiciary is to do justice
between the parties who bring their causes before it. If a Judge trying a cause
is satisfied that the very purpose of finding truth in the case would be
retarded, or even defeated if witnesses are required to give evidence subject
to public gaze, is it or is it not open to him in exercise of his inherent
power to hold the trial in camera either partly or fully ? If the primary
function of the court is to do justice in causes brought before it, then on
principle, it is difficult to accede to the proposition that there can be no
exception to the rule that all causes must be tried in open court. If the
principle that all trials before courts must be held in puplic was treated as
inflexible and universal and it is held that it admits of no exceptions
whatever, cases may arise where by following the principle, justice itself may
be defeated. That is why we feel no hesitation in holding that the High Court
has inherent jurisdiction to hold a trial in camera if the ends of justice
clearly and necessarily require the adoption of such a course. Er It is hardly
necessary to emphasise that this inherent power must be exercised with great
caution and it is only if the court is satisfied beyond a doubt that the ends
of justice themselves would be defeated if a case is tried in open court that
it can pass an order to hold the trial in camera;
but to deny the existence of such inherent
power to the court would be to ignore the primary object of adjudication itself
The principle underlying the insistence on hearing causes in open court is to
protect and assist fair, impartial and objective administration of justice; but
if the requirement of justice itself sometimes dictates the necessity of trying
the case in camera, it cannot be said that the said requirement should be
sacrificed because of the principle that every trial must be held in open
In this connection it is essential to
remember that public trial of causes is a means, though important and valuable,
to ensure fair administration of justice; it is a means, not an end. It is the
fair administration of (1)  All E.R. 1, 30.
756 justice which is the end of judicial
process, and so, if ever a real conflict arises between fair administration of
justice itself on the one hand, and public trial on the other, inevitably,
public trial may have to be regulated or controlled in the interest of
administration of justice.
That, in our opinion, is the rational basis
on which the conflict of this kind must be harmoniously resolved.
Whether or not in the present case such a
conflict did in fact arise, and whether or not the impugned order is justified
on the merits, are matters which are irrelevant to the present enquiry.
Whilst we are dealing with this question , it
would be useful to refer to the decision of the House of Lords in Scott v.
Scott.[ In that case a Judge of the Divorce Court had made an order that a
petition for a decree of nullity of marriage should be heard in camera, but
after the conclusion of the proceedings, one of the parties published to third
parties a transcript of the evidence given at the hearing of the suit; and the
question which arose for decision was whether by such publication, the party
concerned had committed contempt. The House of Lords held that assuming that
the order for hearing the case in camera was valid, it was not effective to
enjoin perpetual silence on all persons with regard to what took place at the
hearing of the suit, and, therefore, the party publishing the evidence was not
guilty of contempt of Court.
Dealing with the question about the power of
an ordinary court of justice to hear in private, Viscount Haldane, L.C.,
observed that whatever may have been the power of the ecclesiastical courts,
the power of an ordinary court of justice to hear in private cannot rest merely
on the discretion of the Judge or on his individual view that it is desirable
for the sake of public decency or morality that the hearing should take place
in private. If there is any except-ion to the broad principle which requires
the administration of justice to take place in open court, that exception must
be based on the application of some other and over-riding principle which
defines the field of exception and does not leave its limits to the individual
discretion of the Judge.
Looking at the problem from another point of
view, Viscount Haldane, L.C. observed that while the broad principle is that
the courts of this country must, as between parties, administer justice in
public, this principle is subject to apparent exceptions. By way of
illustration, reference was made to two cases of wards of court and of lunatics
where the court is really sitting primarily to guard the interest of the ward
or the lunatic. In such matters, the jurisdiction of the court was in a sense,
parental and administrative. That is how the broad principle which ordinarily
governs open public trial, yields to the paramount duty which is the care of
the ward or the lunatic.
Similarly, in regard to litigation as (1) 
All E.R . 1.
757 to a secret process, where the effect of
publicity would be to destroy the subject-matter, trial in camera would be
justified, because in such a case, justice could not be done at all if it had
to be done in public.(1) In other words, unless it be strictly necessary for
the attainment of justice, there can be no power in the court to hear in camera
either a matrimonial cause or any other where there is a contest between
parties. He who maintains that by no other means than by such a hearing can
justice be done may apply. for an unusual procedure. But he must make out his
case strictly, and bring it up to the standard which the underlying principle
requires. He may be able to show that the evidence can be effectively brought
before the court in no other fashion. In either case, he must satisfy the court
that by nothing short of the exclusion of the public can justice be done It
would thus be noticed that according to Viscount Haldane, L.C., though it is of
the essence of fair and impartial administration of justice that all causes
must be tried in open court, cases may arise where the court may be satisfied
that evidence can be effectively brought before it only if the trial is held in
camera; and in such cases, in order to discharge its paramount duty to
administer justice, the court may feel compelled to order a trial in camera.
The same principle has been enunciated by the
other Law Lords, though they have differed in their approach as well as in
their emphasis. We do not propose to refer to the statements made in the
speeches of the other Law Lords, because it is clear that on the whole, the
principles laid down by Viscount Haldane, L.C., appear to have received general
approval from the other Law Lords. There are, no doubt, certain observations in
the speeches of some Law Lords which seem to suggest that there would be no
power in the court to hear a case in camera, except in the recognised cases of
exceptional character to which Viscount Haldane referred. Lord Shaw, for
instance, observed that "I am of opinion that the order to hear this case
in camera was beyond the power of the Judge to pronounce. I am further of
opinion that, even on the assumption that such an order had been within his
power, it was beyond his power to impose a suppression of all reports of what
passed at the trial after the trial had come to an end".(p. 29). It must
be remembered that the order with which the House of Lords was dealing, had
imposed a perpetual prohibition against the publication of the proceedings in
court; and naturally, there was unanimity in the view expressed by the House of
Lords that such a drastic order was not justified. That is why the conclusion
of the House of Lords was that by publishing the proceedings at the end of the
trial, the party concerned had not committed contempt of court. It would thus
be clear from the decision of the House of (1) All E.R. pp. 8-9.
758 Lords in Scott v. Scott(1) that courts of
justice have no power to hear cases in camera even by consent of the parties,
except in special cases in which a hearing in open court might defeat the ends
of justice. Therefore, as a bare proposition of law, it would be difficult to
accede to the argument urged by the petitioners before us that the High Court
had no jurisdiction to pass the impugned order.
This question has been considered by English
Courts on several occasions. In Moosbrugger v. Moosbrugger and Moosbrugger v.
Moosbrugger and Martin,(2) where in a divorce proceeding it, was urged before
the President that if the case was heard in public, it would become almost
impossible for the lady to give her evidence and in that case justice would or
might be defeated, on being satisfied that the plea thus made on behalf of the
witness was well-founded, the President directed that the evidence of the
witness shall be that recorded in camera. The Court was thereupon cleared and
the witness gave evidence in camera. It is significant that the case had been
opened in public and was being tried in public; only a part of the trial was,
however, held in camera, because the President was satisfied that unless the
witness was allowed to depose in camera, she would not be able to disclose the
Similarly, in Re Green (a bankrupt), Ex Parte
The Trustee,(3) Jenkins, L.J., was moved to hear a bankruptcy petition in
camera. After hearing arguments, he was satisfied that the interests of justice
required that the application for hearing the case in camera wag justified.
Accordingly the application was heard in
We have referred to these decisions by way of
illustration to emphasise the point that it would be unreasonable to hold that
a court must hear every case in public even though it is satisfied that the
ends of justice themselves would be defeated by such public trial. The
overriding consideration which must determine. the conduct of proceedings
before a court is fair administration of justice. Indeed, the principle that
all cases must be tried in public is really and ultimately based on the view
that it is such public trial of cases that assists the fair and impartial
administration of justice. The administration of justice is thus the primary
object of the work done in courts; and so, if there is a conflict between the
claims of administration of justice itself and those of public trial, public
trial must yield to administration of justice. In none of the cases to which we
have referred was it expressly held that the court does not possess inherent
jurisdiction to hold a trial in camera if it is satisfied that the ends of
justice required the adoption of such a course.
(1)  All. E. R. pp. 8-9.
(2) (1912-13) 29 T.L.R. 658.
(3) 2 All E. R. 57 759 If the High
Court thus had inherent power to hold the trial of a case in camera, provided,
of course, it was satisfied that the ends of justice required such a course to
be adopted, it would not be difficult to accept the argument urged by the
learned Attorney General that the power to hold a trial in camera must include
the power to hold a part of the trial in camera, or to prohibit excessive
publication of a part of the proceedings at such trial. What would meet the
ends of justice will always depend upon the facts of each case and the
requirements of justice. In a certain case, the Court may feel that the trial may
continue to be a public trial, but that the evidence of a particular witness
need not receive excessive publicity, because fear of such excessive publicity
may prevent the witness from speaking the truth. That being so, we are unable
to hold that the High Court did not possess inherent jurisdiction to pass the
impugned order. We have already indicated that the impugned order, in our
opinion, prevented the publication of Mr. Goda's evidence during the course of
the trial and not thereafter.
Before we part with this topic, we would like
to refer to certain statutory provisions which specifically deal with the topic
of holding trials in camera.
Section 53 of Act 4 of 1869 which was passed
to amend the law relating to Divorce and Matrimonial Causes in India provides
that the whole or any part of any proceeding under this Act may be heard, if
the Court thinks fit, with closed doors.
Similarly, section 14 of the Indian Official
Secrets Act, 1923 (No. 19 of 1923) provides that in addition and without
prejudice to any powers which a Court may possess to order the exclusion of the
public from any proceedings if, in the course of proceedings before a Court
against any person for an offence under this Act or the proceedings on appeal,
or in the course of the trial of a person under this Act, application is made
by the prosecution, on the ground that the publication of any evidence to be
given or of any statement to be made in the course of the proceedings would be
prejudicial to the safety of the State, that all or any portion of the public
shall be excluded during any part of the hearing, the Court may make an order
to that effect, but the passing of sentence shall in any case take place in
public. It would be noticed that while making a specific provision authorising
the court to exclude all or any portion of the public from a trial, s.14 in
terms recognises the existence of such inherent powers by its opening clause.
Section 22(1) of the Hindu Marriage Act, 1955
(No. 25 of 1955) likewise lays down that a proceeding under this Act shall be
/conducted in camera if either party so desires or if the court so, thinks fit
to do, and it shall not be lawful for any person to print or 740 publish any
matter in relation to any such proceeding except with the previous permission
of the court.
The proviso to s. 352 of the Code of Criminal
Procedure, 1898, prescribes that the presiding Judge or Magistrate may, if he
thinks fit, order at any stage of any inquiry into, or trial of, any particular
case, that the public generally, or any particular person, shall not have
access to, or be or remain in the room or building used by the Court.
The last provision to which we may refer in
this connection is s. 151 of the Code of Civil Procedure, 1908. This section
provides that nothing in this Code shall be deemed to limit or otherwise affect
the inherent power 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.
These statutory provisions merely illustrate
how the power of the Court to hold certain trials in camera, either fully or
partially, is inevitably associated with the administration of justice itself.
The next question which calls for our decision
is: does the impugned order contravene the fundamental rights of the
petitioners under Art. 19(1) ? In dealing with this question, it is essential
to bear in mind the object with which the impugned order has been passed. As we
have already indicated, the impugned order has been passed, because the learned
Judge was satisfied that the interests of justice required that Mr. Goda should
not be exposed to the risk of excessive publicity of the evidence that he would
give in court. This order was passed by the learned Judge after hearing
arguments from both the parties to the suit. Thus, there is no doubt that the
learned Judge was satisfied that in order to be able to do justice between the
parties before him, it was ,essential to grant Mr. Goda's request for
prohibiting the publication of his testimony in the newspapers from day to day.
The question is: can it be said that an order which has been passed directly
and solely for the purpose of assisting the discovery of truth and for doing
justice between the parties, infringes the fundamental rights of the
petitioners under Art. 19(1) ? The argument that the impugned order affects the
fundamental rights of the petitioners under Art. 19(1), is based on a complete
misconception about the true nature and character of judicial process and of
judicial decisions. 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 761
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 under
The impugned order is, in a sense, an order
of a collateral nature; it has no direct relation with the decision of the
dispute which had been brought before the Court in the proceedings between the
parties. The learned Judge however, thought that in order that he should be
able to do full justice between the parties it was necessary to pass the
impugned order. Thus, though the order in a sense is collateral to the
proceedings which were pending before the Court, it was directly connected with
the said proceedings inasmuch as the learned Judge found that he could not do
justice between the parties and decide the matter satisfactorily unless the
publication of Mr. Goda's evidence was prohibited pending the trial. The order
is not collateral in the sense that the jurisdiction of the Judge to pass that
order can be challenged otherwise than by a proceeding in appeal. 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 the impugned order 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. On this view of the
matter, it seems to us that the whole attack against the impugned order based
on the assumption that it infringes the petitioners' fundamental rights under
Art. 19(1), must fail.
Assuming, however, that the impugned order
can be said incidentally and indirectly to affect the fundamental rights of the
petitioners under Art. 19(1), can such incidental and indirect effect of the
order justify the conclusion that the order itself infringes Art. 19(1) ? It is
well-settled that in examining the validity of legislation, it is legitimate to
consider whether the impugned legislation is a legislation directly in respect
of the subject covered by any particular article of the Constitution, or
touches the said article only incidentally 762 or indirectly. In A.K. Gopalan
v. The State of Madras(1), Kania C. J., had occasion to consider the validity
of the argument -that the preventive detention order results in the detention
of the applicant in a cell, and so, it contravenes his fundamental rights
guaranteed by Art. 19(1) (a), (b), (c), (d), (e) and (g). Rejecting this
argument, the learned Chief Justice observed that the true approach in dealing
with such a question is only to consider the directness of the legislation and
not what will be the result of the detention otherwise valid, on the mode of
the detenu's life.
On that ground alone, he was inclined to
reject the contention that the order of detention contravened the fundamental
rights guaranteed to the petitioner under Art.
19(1). He thought that any other construction
put on the article would be unreasonable.
It is true that the opinion thus expressed by
Kania, C. J., in the case of A. K Gopalan(1) had not received the concurrence
of the other learned Judges who heard the said case. Subsequently, however, in
Ram Singh and Others v. The State of Delhi and Another(2), the said
observations were cited with approval by the Full Court. The same principle has
been accepted by this Court in Express Newspapers (Private) Ltd., and Anr. v.
The Union of India and Others(1), and by the majority judgment in Atiabari Tea
Co., Ltd. v. The State of Assam and Others(4).
If the test of direct effect and object which
is sometimes described as the pith and substance test, is thus applied in
considering the validity of legislation, it would not be inappropriate to apply
the same test to judicial decisions like the one with which we are concerned in
the present proceedings. As we have already indicated, the impugned order was
directly concerned with giving such protection to the witness as was thought to
be necessary in order to obtain true evidence in the case with a view to do
justice between the parties. If, incidentally, as a result of this order, the
petitioners were not able to report what they heard in court, that cannot be
said to make the impugned order invalid under Art. 19 (1)(a). It is a judicial
order passed by the Court in exercise of it-, inherent jurisdiction and its
sole purpose is to help the administration of justice. Any incidental
consequence which may flow from the order will not introduce any constitutional
infirmity in it.
It is, however, urged by Mr. Setalvad that
this Court has held in Budhan Choudhry and Others v. The State of Bihar(5) that
judicial orders based on exercise of judicial discretion may contravene Art. 14
and thereby become invalid. He contends that just as a judicial order would
become invalid by reason of the fact (1)  S.C.R. 88, 101.
(2)  S.C.R.451, 456.
(3)  S.C.R. 12,129,130.
(4)  1 S.C.R. 809,864.
(5) 1 S.(-.R. 1045.
763 that it infringes the fundamental right
guaranteed by Art.
14, so would the impugned order in the
present case be invalid because it contravenes Art. 19(1). It is, therefore,
necessary to examine whether this contention is well-founded.
In the case of Budhan Choudhry(1), the matter
had come to this Court by way of appeal under Art. 132(1) of the Constitution.
The appellants had been tried by a Magistrate, 1st Class, exercising powers
under s. 30 of the Code of Criminal Procedure on charges under ss. 366 and 143
of the Indian Penal Code, and each one of them was convicted under both the
sections and sentenced to rigorous imprisonment for five years under s. 366,
whereas no separate sentence was imposed under s. 143. They then challenged the
correctness and validity of the order of their conviction and sentence by
preferring anappeal before the Patna High Court. The appeal was first heard by
a Bench consisting of S. K. Das and C. P. Sinha, JJ. There was, however, a
difference of opinion between the two learned Judges as to the
constitutionality of s. 30, Cr.
P.C. Das, J. took the view that the impugned
section did not bring about any discrimination, whereas Sinha, J. was of the
opinion that the impugned section was hit by Art, 14. The appeal was then heard
by Reuben, C. J., who agreed with Das, J., with the result that the order of
conviction and sentence passed against the appellants was confirmed. The
appellants then obtained a certificate from the said High Court under Art. 132
(1) and with that certificate they came to this Court.
Naturally, the principal contention which was
urged on their behalf before this Court was that s. 30, Cr.P.C. infringed the
fundamental right guaranteed by Art. 14, and was, therefore, invalid. This
contention was repelled by this Court. Then, alternatively, the appellants
argued that though the section itself may not be discriminatory, it may lend
itself to abuse bringing about a discrimination between persons accused of
offences of the same kind, for the police may send up a person accused of an
offence under s. 366 to a section 30 Magistrate and the police may send another
person accused of an offence under the same section to a Magistrate who can
commit the accused to the Court of Session. This alternative contention was
examined and it was also rejected. That incidentally raised the question as to
whether the judicial decision could itself be said to offend Art. 14. S. R.
Das, J., as he then was, who spoke for the Court, considered this contention,
referred with approval to the observations made by Frankfurter, J., and Stone,
C.J., of the Supreme Court of the United States in Snowden v. Hughes(2), and
observed that 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 (1) 1 S.C.R. 1045.
(2) (1944) 321 U.S. 1: 88 Led. 497.
764 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. Having made this observation which
at best may be said to assume that a judicial decision may conceivably
contravene Art. 14, the learned Judge took the precaution of adding that 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.
It is thus clear that though the observations
made by Frankfurter, J. and Stone, C. J. in Snowden v. Hughes(1) had been cited
with approval, the question as to whether a judicial order can attract the
jurisdiction of this Court under Art.
32(1) and (2) was not argued and did not fall
to be considered at all. That question became only incidentally relevant in
deciding whether the validity of the conviction which was impugned bythe
appellants in the case of Budhan Choudhry and Others(2) could be successfully
assailed on the ground that the judicial decision under s. 30, Cr. P. C.
was capriciously rendered against the
appellants. The scope of the jurisdiction of this Court in exercising its writ
jurisdiction in relation to orders passed by the High Court was not and could
not have been examined, because the matter had come to this Court in appeal
under Art. 132(1); and whether or not judicial decision can be said to affect
any fundamental right merely because it incidentally and indirectly may
encroach upon such right, did not therefore call for consideration or decision
in that case. In fact, the closing observations made in the judgment themselves
indicate that this Court was of the view that if any judicial order was sought
to be attacked on the ground that it was inconsistent with Art. 14, the proper
remedy to challenge such an order would be an appeal or revision as may be provided
by law. We are, therefore, not prepared to accept Mr. Setalvad's assumption
that the observations on which he bases himself support the proposition that
according to this Court, judicial decisions rendered by courts of competent
jurisdiction in or in relation to matters brought before them can be assailed
on the ground that they violate Art. 14. It may incidentally be pointed out
that the decision of the Supreme Court of the United States in Snowden v.
Hughes(1) was itself not concerned with the validity of any judicial decision
On the other hand, in The Parbhani Transport
Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad and
Others,(3), Sarkar, J. speaking for the Court, has observed that the decision
of the Regional Transport Authority which was challenged before the Court may
have been right or wrong, but that they (1)321 U.S. 1.
(2)  1 S.C.R. 1045 (3) 3 S.C.R.
765 were unable to see how that decision
could offend Art. 14 or any other fundamental right of the petitioner. The
learned Judge further observed that the Regional Transport Authority 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. It is true that in this case also the
larger issue as to whether the orders passed by quasi judicial tribunals can be
said to affect Art. 14, does not appear to have been fully argued. It is clear
that the observations made by this Court in this case unambiguously indicate
that it would be inappropriate to suggest that the decision rendered by a
judicial tribunal can be described as offending Art. 14 at all. It may be a
right or wrong decision, and if it is a wrong decision it can be corrected by
appeal or revision as may be permitted by law, but it cannot be said per se to
contravene Art. 14.
It is significant that these observations
have been made while dealing with a writ petition filed by the petitioner, the
Parbhani Transport Co-operative Society Ltd. under Art.
32; and in so far as the point has been
considered and decided the decision is against Mr. Setalvad's contention.
In support of his argument that a judicial
decision can be corrected by this Court in exercise of its writ jurisdiction
under Art. 32(2), Mr. Setalvad has relied upon another decision of this Court
in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad(e). In that case, the
petitioner Prem Chand Garg had been required to furnish security for the costs
of the respondent under r. 12 of OXXXV of the Supreme Court Rules. By his
petition filed under Art. 32, he contended that the rule was invalid as it
placed obstructions on the fundamental right guaranteed under Art. 32 to move
the Supreme Court for the enforcement of fundamental rights. This plea was
upheld by the majority decision with the result that the order requiring him to
furnish security was vacated. In appreciating the effect of this decision, it
is necessary to bear in mind the nature of the contentions raised before the
Court in that case. The Rule itself, in terms, conferred discretion on the
Court, while dealing with applications made under Art. 32, to impose such terms
as to costs and as to the giving of security as it thinks fit. The learned
Solicitor-General, who supported the validity of the Rule, urged that though
the order requiring security to be deposited may be said to retard or obstruct
the fundamental right of the citizen guaranteed by Art. 32(1), the Rule itself could
not be effectively challenged as invalid, because it was merely discretionary;
it did not impose an obligation on the Court to demand any security; and he
supplemented his argument by contending that under Art. 142 of the
Constitution, the powers of this Court were wide enough to impose any term or
condition subject to which proceedings before (1) [1963) Supp. 1 S.C.R. 885.
766 this Court could be permitted to be
conducted. He suggested that the powers of this Court under Art. 142 were not
subject to any of the provisions contained in Part III including Art. 32(1). On
the other hand, Mr. Pathak who challenged the validity of the Rule, urged that
though the Rule was in form and in substance discretionary, he disputed the
validity of the power which the Rule conferred on this Court to demand
security. According to Mr. Pathak, Art 142 had to be read subject to the
fundamental right guaranteed under Art. 32; and so, when this Court made Rules
by virtue of the powers conferred on it by Art. 145, it could not make any Rule
on the basis that it could confer a power on this Court to demand security from
a party moving this Court under Art. 32(1), because such a term would obstruct
his guaranteed fundamental right. It is on these contentions that one of the
points which had to be was whether Art. 142 could be said to override the
fundamental rights guaranteed by Part 111. The majority view of this Court was
that though the powers conferred on this Court by Art. 142 were very wide, they
could not be exercised against the fundamental rights guaranteed by the
Constitution, not even against definite statutory provisions. Having reached
this decision, the majority decision was that though the Rule was
discretionary, the power to demand security which it purported to confer on the
Court in a given case, was itself inconsistent with the fundamental right
guaranteed by Art.
32(1) and as such, the Rule was bad. The
minority view differed in that matter and held that the Rule was not invalid.
It would thus be seen that the main
controversy in the case of Prem Chand Garg(1) centered round the question as to
whether Art. 145 conferred powers on this Court to make Rules, though they may
be inconsistent with the constitutional provisions prescribed by Part III .
Once it was held that the powers under Art. 142 had to be read subject not only
to the fundamental rights, but to other binding statutory provisions, it became
clear that the Rule which authorised the making of the impugned order was
invalid. It was in that context that the validity of the order had to be
incidentally ,examined. The petition was made not to challenge the order as
such but to challenge the validity of the Rule under which the order was made.
Once the Rule was struck down as being invalid, the order passed under the said
Rule had to be vacated. It is difficult to see how this decision can be pressed
into service by Mr. Setalvad in support of the argument that a judicial order
passed by this Court was held to be subject to the writ jurisdiction of this
Court itself. What was held by this Court was that Rule made by it under its
powers conferred by Art. 145 which are legislative in ,character, was invalid;
but that is quite another matter.
It is plain that if a party desires to
challenge any of the Rules framed by this Court in exercise of its powers under
Art. 145 on (1)  Supp. I S.C.R. 885.
767 the ground that they are invalid because
they illegally contravene his fundamental rights, it would be open to the party
to move this Court under Art. 32. Such a challenge is not against any decision
of this Court, but against a Rule made by it in pursuance of its rule-making
power. If the Rule is struck down as it was in the case of Prem Chand Garg(1),
this Court can review or recall its order passed under the said Rule. Cases in
which initial orders of security passed by the Court are later reviewed and the
amount of security initially directed is reduced, frequently arise in this
Court; but they show the exercise of this Court's powers under Art. 137 and not
under Art. 32.
Therefore, we are not satisfied that Mr.
Setalvad is fortified by any judicial decision of this Court in raising the
contention that a judicial order passed by the High Court in or in relation to
proceedings brought before it for its adjudication, can become the
subject-matter of writ jurisdiction of this Court under Art. 32(2). In fact,
no_ precedent has been cited before us which would support Mr.
Setalvad's 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
In this connection, it is necessary to refer
to another aspect of the matter, and that has relation to the nature and extent
of this Court's jurisdiction to issue writs of certiorari under Art. 32(2) Mr.
Setalvad has conceded 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. His whole
argument before us has been that the impugned order affects the fundamental
rights of a stranger to the proceedings before the Court; and that, he
contends, justifies the petitioners in moving this Court under Art. 32. It is
necessary to examine the validity of this argument.
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 this Court, because the exercise of the powers of this Court to issue writs
of certiorari are limited to the purposes set out in Art. 32(1). The nature and
the extent of the writ jurisdiction conferred on the High Courts by Art. 226
was considered by this Court as early as 1955 in T.C. Basappa v. T. Aragappa
and Anr.(2). It would be useful to refer to some of the points elucidated in
this judgment. The first point which was made clear by Mukherjea, J., who spoke
for the Court, was that "in view of the express provisions in our
Constitution, we need not now look back (1)  Supp. I S.C.R. 885.
(2)  1 S.C.R. 250, at pp. 256-8.
768 to the early history or the procedural
technicalities of these writs in English law, nor feel oppressed by any
difference or change of opinion expressed in particular cases by English
Judges. We can make an order or issue a writ in the nature of certiorari in all
appropriate cases and in appropriate manner, so long as we keep to the broad
and fundamental principles that regulate the exercise of jurisdiction in the
matter of granting such writs in English law." One of the essential
features of the writ, according to Mukherjea, J., is "that the control
which is exercised through it over judicial or quasi-judicial tribunals or
bodies is not in an appellate but supervisory capacity. In granting a writ of
certiorari, the superior Court does not exercise the powers of an appellate
tribunal. It does not review or reweigh the evidence upon which the
determination of the inferior tribunal purports to be based. It demolishes the
order which it considers to be without jurisdiction or palpably erroneous but
does not substitute its own views for those of the inferior tribunal. The
supervision of the superior Court exercised through writs of certiorari goes to
two points, one is the area of inferior jurisdiction and the qualifications and
conditions of its exercise; the other is the observance of law in the course of
its exercise. Certiorari may fie and is generally granted when a Court has
acted without or in excess of its jurisdiction. The want of jurisdiction may
arise from the nature of the subject-matter of the proceeding or from the
absence of some preliminary proceeding or the Court itself may not be legally
constituted or suffer from certain disability by reason of extraneous
circumstances. When the jurisdiction of the Court depends upon the existence of
some collateral fact, it is well-settled that the Court cannot by a wrong
decision of the fact give it jurisdiction which it would not otherwise
possess." It is in the light of these principles which have been consistently
followed by this Court in dealing with the problem relating to the exercise of
the writ jurisdiction by the High Courtís under Art. 226 or by this Court under
Art. 32, that we must now proceed to deal with the point before us.
The scope of the jurisdiction of this Court
in dealing with writ petitions under Art. 32 was examined by a Special Bench of
this Court in Sint. Ujjam Bai v. State of Uttar Pradesh(1). This decision would
show that it was common ground before the Court that in three classes of cases
aquestion of the enforcement of the fundamental rights may arise; and if it
does arise, an application under Art. 32 will lie. These cases are: (1) where
action is taken under a statute which is ultra vires the Constitution; (2)
where the statute is intra vires but the action taken is without jurisdiction;
and (3) where the action taken is procedurally ultra vires as where a
quasijudicial authority under an obligation to act judicially passes an order
in violation of the principles of natural justice.
769 According to the majority decision in the
case of Ujjam Bai,(1) it appears that where a quasi-judicial authority makes an
order in the undoubted exercise of its jurisdiction in pursuance of a provision
of law which is intra vires, an error of law or fact committed by that
authority cannot be impeached otherwise than on appeal, unless the erroneous
determination relates to a matter on which the jurisdiction of that body
depends, and the relevant law does not confer on that body jurisdiction to
determine that matter.
This last category of cases often arise in
relation to tribunals which have been given jurisdiction to try certain issues
under certain conditions. It is only if the condition prescribed by the statute
is satisfied that the tribunal derives jurisdiction to deal with the matter.
Proof of such a condition is regarded as the
proof of a collateral fact, and an erroneous decision of the tribunal as to the
existence of this collateral fact is not regarded as binding on the parties and
can be challenged by a writ proceeding under Art. 226. But in cases where the
Tribunal is given jurisdiction to deal with certain matters, then its decision
on those matters cannot be regarded as a decision on collateral facts. This
aspect of the matter came to 'he considered by a Special Bench of this Court in
Mls. Kamala Mills Ltd. v. The State of Bombay(2) and there it has been held
that the appropriate authority set up under the relevant Sales-tax Act had been
given jurisdiction to determine the nature of the transaction and to proceed to
levy a tax in accordance with its decision on the first issue, and so, the
decision of the said authority on the first issue cannot be said to be a
decision on a collateral issue, and even if the said issue is erroneously
determined by the said authority, the tax levied by it in accordance with its
decision cannot be said to be without jurisdiction.
In Aniyoth Kunhamina Umma v. Ministry of
Rehabilitation and' Others(3) the petitioner had moved this Court under Art. 32
contending that her fundamental rights under Art. 19(1)(f) and Art. 31 were
infringed by the order of the Assistant Custodian which had declared that the
husband of the petitioner was an evacuee and his property was evacuee property.
The petitioner had appealed to the Deputy Custodian against the said order, and
when she failed before the Deputy Custodian, she had moved the
Custodian-General by revision; but the said revision application also was
dismissed. At this stage, she moved this Court under Art.
32. This Court rejected her petition on the
ground that it was incompetent as no question of violation of any fundamental
right arose in the case. The decision of the authority of competent
jurisdiction, it was held, had negatived the existence of the legal right
alleged by the petitioner, and unless the decision was held to be a nullity or
could be otherwise got rid of,. the petitioner could not complain of any, (1)
 1 S.C.R. 778.
(2)  1 S.C.R. 64.
(3)  1 S.C.R. 505.
770 infringement of a fundamental right. The
main questions were .Whether the petitioner's husband was an evacuee or not,
and whether his property was evacuee property or not.
The decision of those -questions had become
final, and no lack of jurisdiction was involved.
While referring to the decision of this Court
in the case of Smt. Ujjam Bai(1), We have already indicated that it was not
disputed before the Court in that case that where the action taken against a
-citizen is procedurally ultra vires, the aggrieved party can move this ,Court
under Art. 32. As an illustration, we may refer to the decision of this Court
in Sinha Govindji v. The Deputy Chief Controller -of lmports and Exports and
Others(2). In that case, the Court was .satisfied that there was a clear
violation of the requirements of clause 10 of the Imports (Control) Order,
1955, which embodied the principles of natural justice, and that made the
impugned orders constitutionally invalid.
That is how the jurisdiction of this Court
,under Art. 32 can be invoked if the impugned order has been passed .by
adopting a procedure which is ultra vires.
We have referred to these decisions to
illustrate how the jurisdiction to issue writs of certiorari has been exercised
either by the High Courts under Art. 226 or by this Court under Art. 32.
Bearing these principles in mind, let us enquire whether the order impugned in
the present proceedings can be said to be amenable to the jurisdiction of this
Court under Art. 32. We have already seen that the impugned order was passed by
the learned Judge after hearing the parties and it was passed presumably
because he was satisfied that the ends of justice required that Mr. Goda should
be given protection by prohibiting the publication of his evidence in the
newspapers during the course of the trial. This matter was directly related to
the trial of the suit; and in exercise of his inherent power, the learned Judge
made the order in the interests of justice. The order in ,one sense is
inter-partes, because it was passed after hearing arguments on both the sides.
In another sense, it is not inter-partes inasmuch as it prohibits strangers
like the petitioners from publishing Mr. Goda's evidence in the newspapers. In
fact, an order of this kind would always be passed after hearing parties before
the -,Court and would in every case affect the right of strangers like the
petitioners who, as Journalists, are interested in publishing court proceedings
in newspapers. Can it be said that there is such a difference between normal
orders passed inter-partes in judicial proceedings, and the present order that
it should be open to the strangers -are who affected by the order to move this
Court under Art. 327. The order, no doubt, binds the strangers; but,
nevertheless, it is a judicial order and a person aggrieved by it, though a
stranger, can move this Court by appeal under Art. 136 of the Constitution.
Principles -of Res judicata have been applied by this Court in dealing with (1)
 1 S.C.R. 778.
(2)  1 S.C.R. 540.
771 petitions filed before this Court under
Art. 32 in Daryao and Others v. The State of U. P. and Others(1). We apprehend
that somewhat similar considerations would apply to the present proceedings. If
a judicial order like the one with which we are concerned in the present
proceedings made by the High Court binds strangers, the strangers may challenge
the order by taking appropriate proceedings in appeal under Art. 136. It would,
however, not be open to them to invoke the jurisdiction of this Court under
Art. 32 and contend that a writ of certiorari should be issued in respect of
it. The impugned order is passed in exercise of the inherent jurisdiction of
the Court and its validity is not open to be challenged by writ proceedings.
There is yet another aspect of this matter to
which it is necessary to refer. The High Court is a superior Court of Record
and under Art. 215, shall have all powers of such a Court of Record including
the power to punish contempt of itself. One distinguishing characteristic of
such superior courts is that they are entitled to consider questions of their
jurisdiction raised before them. This question fell to be considered by this
Court in Special Reference No. I of 1964(2). In that case, it was urged before
this Court that in granting bail to Keshav Singh, the High Court had exceeded
its jurisdiction and as such, the order was a nullity. Rejecting this argument,
this Court observed that in the case of a superior Court of Record, it is for
the court to consider whether any matter falls within its jurisdiction or not.
Unlike a court of limited jurisdiction, the superior Court is entitled to
determine for itself questions about its own jurisdiction. That is why this
Court did not accede to the proposition that in passing the order for interim
bail, the High Court can be said to have exceeded its jurisdiction with the
result that the order in question was null and void. In support of this view,
this Court cited a passage from Halsbury's Laws of England where it is observed
that "primafacie, no matter is deemed to be beyond the jurisdiction of a
superior court unless it is expressly shown to be so, while nothing is within
the jurisdiction of an inferior court unless it is expressly shown on the face
of the proceedings that the particular matter is within the cognizance of the particular
Court."(3) 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 this Court.
The basis of Mr. Setalvad's argument is that
the impugned order is not an order interpartes, as it affects the fundamental
rights (1)  1 S.C.R. 574.
(2)  1 S.C.R. 413 AT p. 499.
(3) Halsbury's Laws of England, Vo 1. 9,
772 of the strangers to the litigation, and
that the said order is without jurisdiction. We have already held that the impugned
order cannot be said to affect the fundamental rights of the petitioners and
that though it is not interpartes in the sense that it affects strangers to the
proceedings, it has been passed by the High Court in relation to a matter
pending before it for its adjudication and as such, like other judicial orders
passed by the High Court in proceedings pending before it, the correctness of
the impugned order can be challenged only by appeal and not by writ
proceedings. We have also held that the High Court has inherent jurisdiction to
pass such an order.
But apart from this aspect of the matter, we
think it would be inappropriate to allow the petitioners to raise the question
about the jurisdiction of the High Court to pass the impugned order in
proceedings under Art. 32 which seek for the issue of a writ of certiorari to
correct the said order. 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 interpartes in the sense that they
bind strangers to the proceedings. Therefore, in our opinion, 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.
Whilst we are dealing with this aspect of the
matter, we may incidentally refer to the relevant observations made by Halsbury
on this point. "In the case of judgments of inferior courts of civil
jurisdiction," says Halsbury in the footnote, "it has been suggested
that certiorari might be granted to quash them for want of jurisdiction [Kemp
v. Balne (1844), 1 Dow. & L. 885, at p. 887], inasmuch as an error did not
lie upon that ground. But there appears to be no reported case in which the
judgment of an inferior court of civil jurisdiction has been quashed on
certiorari, either for want of jurisdiction or on any other ground."(1)
The ultimate proposition is set out in the terms: "Certiorari does not lie
to quash the judgments of inferior courts of civil jurisdiction." These
observations would indicate that in England the judicial orders passed by civil
courts of plenary jurisdiction in or in relation to matters brought before them
are not held to be amenable to the jurisdiction to issue writs of certiorari.
In -Rex. v. Chancellor of St. Edmundsburry
and Ipswich Diocese Exparte White(2) the question which arose was whether
certio(1) Halsbury Laws of England Vol. I 1, pp. 129, 130.
(2)  1 K.B.D. 195 at pp. 205-206.
773 rari would lie from the Court of King's
Bench to an ecclesiastical Court; and the answer rendered by the Court was that
certiorari would not lie against the decision of an ecclesiastical court. In
dealing with this question, Wrottesley, L. J. has elaborately considered the
history of the writ jurisdiction and has dealt with the question about the
meaning of the word "inferior" as applied to courts of law in England
in discussing the problem as to the issue of the writ in regard to decisions of
certain courts. "The more this matter was investigated," says
Wrottesley, L. J., "the clearer it became that the word
"inferior" as applied to courts of law in England had been used with at
least two very different meanings. If, as some assert, the question of
inferiority is determined by ascertaining whether the court in question can be
stopped from exceeding its jurisdiction by a writ of prohibition issuing from
the King's Bench, then not only the ecclesiastical Courts, but also Palatine
courts and Admiralty courts are inferior courts. But there is another test,
well recognised by lawyers, by which to distinguish a superior from an inferior
court, namely, whether in its proceedings, and in particular in its judgments,
it must appear that the court was acting within its jurisdiction. This is the
characteristic of an inferior court, whereas in the proceedings of a superior
court it will be presumed that it acted within its jurisdiction unless the
contrary should appear either on the face of the proceedings or aliunde."
Mr. Sen relied upon this decision to show that even the High Court of Bombay
can be said to be an inferior court for the purpose of exercising jurisdiction
by this Court under Art. 32(2) to issue a writ of certiorari in respect of the
impugned order passed by it. We are. unable to see how this decision can
support Mr. Sen's contentions.
We are, therefore, satisfied that so far as
the jurisdiction of this Court to issue writs of certiorari is concerned, it is
impossible to accept the argument of the petitioners that judicial orders
passed by High Courts in or in relation to proceedings pending before them, are
amenable to be corrected by exercise of the said jurisdiction. We have no doubt
that it would be unreasonable to attempt to rationalise the assumption of
jurisdiction by this Court under Art. 32 to correct such judicial orders on the
fanciful hypothesis that High Courts may pass extravagant orders in or in
relation to matters pending before them and that a remedy by way of a writ of
certiorari should, therefore, be sought for and be deemed to be included within
the scope of Art. 32. The words used in Art. 32 are no doubt wide; but having
regard to the considerations which we have set out in the course of this
judgment, we are satisfied that the impugned order cannot be brought within the
scope of this Court's jurisdiction to issue a writ of certiorari under Art. 32;
to hold otherwise would be repugnant to the well-recognised limitations 774
within which the jurisdiction to issue writs of certiorari can be exercised and
inconsistent with the uniform trend of this Court's decisions in relation to
the said point.
The result is, the petitions fail and are
dismissed. There would be no order as to costs.
Sarkar, J. Tarkunde J. of the High Court at
Bombay, while hearing a suit in the exercise of the ordinary original civil
jurisdiction of that Court, passed an order prohibiting publication of a part
of the proceedings. The four petitioners, who are reporters and otherwise
connected with newspapers, have moved this Court under Art. 32 of the
Constitution, each by a separate petition, for a writ of certiorari to bring up
the records of the order and to quash them. They allege that the order violates
their fundamental right to freedom of speech and expression conferred by subcl.
(a) of cl. (1) of Art. 19 of the Constitution, I think these petitions should
First, it seems to me that this case is
covered by the judgment of this Court in Ujjam Bai v. State of Uttar
Pradesh(1). That was a case in which a petition had been moved under Art. 32
for quashing an order passed by an assessing officer acting judicially under a
taxing statute, valid in all respects, assessing the petitioner to tax on a
construction of the statute alleged to be erroneous and that petition was
dismissed. It was held that the validity of an order made by a judicial
tribunal, acting within its jurisdiction, under an Act which was intra vires
and good law in all respects was not liable to be questioned by a petition
under Art. 32 even though the provisions of the Act had been misconstrued and
that such an order could not violate any fundamental right and no question of
this Court enforcing any violation of fundamental right thereby could arise The
principle accepted appears to be that a legally valid act cannot offend a
fundamental right. I think the same principle applies to this case. The
conditions of the applicability of the principle laid down in that case are that
a judicial tribunal should have made an order which it had the jurisdiction to
make by applying a law which is valid in all respects. I think both these
conditions are fulfilled in this case and it is irrelevant to enquire whether
Tarkunde J. had made the order on an erroneous view of the law he was applying.
I proceed now to examine the case from this point of view.
First, had Tarkunde J. exceeded his
jurisdiction in making the order ? It was said that he had, because the
inherent power of the Court did not authorise the prevention of the publication
of the proceedings in the circumstances of the case. As I understood (1)
1 S. C. R. 778.
775 learned counsel, they did not contend
that Tarkunde J. had no power to prevent publication at all but only said that
he had misused that power, and misapplied the law which gave the power to the
facts of the case before him and thereby exceeded his jurisdiction. I think,
for reasons to be later stated, he had such a power and that power was based on
a valid law. I will assume for the present purpose that the learned Judge had
committed the error imputed to him. But I am unable to agree that he had
thereby exceeded his jurisdiction in the sense in which that word was used by
this Court in Ujjam Bai's(1) case. Our attention was drawn to certain
observations in some of the speeches in the House of Lords, in Scott v.
Scott.(2) That was a case in which the trial of matrimonial case was ordered by
a learned Judge of the High Court of England, trying the case as a court of
first instance, to be held in camera. The House of Lords on appeal held that
the order was completely invalid and might be disobeyed with impunity. Some of'
the learned Lords observed that the order was without jurisdiction and it was
on this that the petitioners founded themselves.
It seems to me that this argument is based on
a misconception of what was said by these learned Lords. All that they meant to
say was that the law as to camera trial did not justify the order that bad been
made. It was not said that it was beyond the jurisdiction of the learned Judge,
who made the order, to consider what that law was and whether it justified the
order that he made. The House of Lords was only concerned with the legality of
the order, Indeed, in England the High Court is a court of universal
jurisdiction and except where provided by statute, its jurisdiction is, I
believe,, unlimited. The House of Lords was not concerned with any statutory
limit of the jurisdiction of the High Court.
When this Court observed in Ujjam Bai's(1)
case that the order had to be within the jurisdiction of the tribunal which
made it, it really meant that the tribunal had to have jurisdiction to decide
matters that were litigated before it and to apply the law which it, in fact,
applied in making the order. It was not saying that the tribunal having this
jurisdiction acts without jurisdiction if it makes an error in the application
of the law. In coming to its conclusion in Ujjam Bai's(1) case, this Court
assumed that the assessing authority misinterpreted the law which it had
jurisdiction to apply, but held that nonetheless he had acted within his
jurisdiction and was not acting without jurisdiction. This view is based on a
well recognised principle. An order passed by a court without jurisdiction in
the sense that I have mentioned, is a nullity. It cannot be said of such an
order that it is a legal act which cannot result in a wrong. On the other hand,
an order passed with jurisdiction but wrongly, is a legal act for it is well
known that a court has jurisdic(1)  1 S.C.R. 778.
(2)  A.C. 417.
776 tion to decide rightly as well as
wrongly. This, I believe, is the principle on which the condition as to
jurisdiction was formulated in Ujjam Bai's.(1) I find no difficulty, therefore,
in holding that Tarkunde J. was acting within jurisdiction in making the order
which he did, even if he had committed an error in applying the law under which
he made it.
I turn now to the question whether the law
which Tarkunde J.
had applied was a valid law. It is said that
it is not a valid law .as it offends the fundamental right to freedom of speech
conferred by Art. 19(1)(a). Now that law is the inherent power of a High Court
to prevent publication of the proceedings of a trial. The question is: Does
this power offend the liberty of speech ? it seems to me beyond dispute that
the power to prevent publication of proceedings is a facet of the power to hold
a trial in camera and stems from it. Both are intended to keep the proceedings
Suppose a court orders a trial in camera and
assume it had a valid power to do so. In such a case the proceedings are not
available to persons not present at the trial and cannot, for that reason at
least, be published by them. Can any such person complain that his liberty of
speech has been infringed ? I do not think so. He has no right to hear the
proceedings. Indeed, there is no fundamental right to hear.
If he has not, then it should follow that his
liberty of speech has not been affected by the order directing a trial in
Though it was not disputed, I will consider
for myself whether a law empowering a trial in camera is a valid law.
An order directing a trial to be held in
camera prohibits entry into the court but I do not think that it can be said
that it thereby offends the right to move freely throughout India which is
given by sub-cl. (d) of cl. ,(I) of Art. 19.
1 would put this view on two grounds. I would
first say that the law providing for trials being held in camera, even if it
trespasses on the liberty of movement, would be protected under cl. (5) of Art.
19 which permits laws to be made imposing reasonable restrictions on that right
in the interests of the general public. Now it is well recognised that the
power to hold trials in camera is given in the interests of administration of
justice. I suppose there can be no doubt that administration of justice is a
matter of public interest. Then it seems to me indisputable that the
restrictions that the exercise of the power to hold trials in camera imposes on
the liberty of movement are reasonable.
It is circumscribed by strict limits; see
Scott. V. Scott.(2) It is unnecessary to discuss these limits for it has not
been contended that the restrictions are not reasonable.
Secondly, I would say that that law does not
violate any fundamental right to free movement. A court house is not such a
place (1)  1 S.C.R 778.
(2) [19131 A.C. 417.
777 into which the public have an
unrestricted right of entry.
The public no doubt have a right to be
present in court and to watch the proceedings conducted 'there. But this is not
a fundamental right. It is indeed not a personal right of a citizen which, I
conceive, a fundamental right must be. It is a right given to the public at
large in the interests of the administration of justice. It cannot exist when
the administration of justice requires a trial to be held in camera for in such
a case it is not in the interest of justice that the public should be present.
That right to be present in a court must be subject to the control of the Judge
administering the business of the court. If it were not so, it would be
impossible to carry on work in acourt.
I should suppose that one cannot complain of
the breachof the liberty of movement if he is prevented by law from entering a
private property. For analoguous reasons, I think a person cannot complain of a
breach of that liberty when his entry to a court room is prohibited. In neither
case he is entitled to a free right of entry to the place concerned.
Now the exercise of the power to hold trial
in camera no doubt has the effect incidentally of preventing a citizen from
publishing proceedings of the trial, for he is by, it prevented from hearing
them; what he cannot hear, he cannot, of course, publish. I do not think this
restriction on the liberty of speech is a violation of the fundamental right in
regard to it. First, the liberty of speech is affected only indirectly and it
has been held by this Court in many cases beginning with A. K. Gopalan v. The
State(1) that when a law which, though it violates a fundamental right is
nonetheless good under any of the cls. (2) to (5) of Art. 19, indirectly
affects another fundamental right for which no protection can be claimed under
these clauses, no grievance can be founded on the indirect infringement.
Secondly, all that the law does is to legally prevent a person from entering
the court and hearing the proceedings. Really, there is no such thing as an
absolute right to hear. A person cannot complain of an infringement of the
liberty of speech when all that is done is to prevent access to something which
he intends to publish. As I have earlier said the power to prohibit publication
of proceedings is essentially the same as the power to hold trial in camera. If
the power to prevent publication of proceedings does not exist, it would be
futile to give a power to hold a trial in camera. I should suppose that if the
law giving the latter power is a good law, as I think it is, everything
involved in that law and stemming from it must equally be good. It would follow
that the power to prohibit publication of proceedings cannot also amount to any
infringement of the liberty of speech.
When it is said that a proceeding shall not
be published, what is in fact said is that persons will be permitted to hear
what they have no right to hear, on the condition that they do not publish what
they hear. The order preventing publication is really a form (1)  S.C.R.
M12Sup.Cl/66-4 778 of holding trial in
camera. If a person taking advantage of such an order publishes it, he is
certainly committing a wrong. I cannot imagine the Constitution contemplating a
fundamental right based on a wrong.
I conceive the position would be the same if
a person stealthily and wrongfully gets possession of a copy of the proceedings
of a trial held in camera and publishes them.
He has no fundamental right to liberty of
speech in respect of such publication because that putably good law. Suppose A
has a copyright in a poem and B steals it and makes it over to C. It Would be
absurd if C can take shelter under the liberty of speech when he is restrained
by an injunction against a threatened publication of the poem by him. I should
suppose that liberty of speech is not available to do harm to others. Clearly a
right cannot be based on a wrong.
Therefore, I think that a law empowering a
court to prohibit publication of its proceedings does not affect the
fundamental right of speech. It cannot be said to be bad on the ground that it
infringes any such right.
It also seems to me that the law empowering a
court to prohibit publication of its proceedings is protected by cl.
(2) of Art. 19. That clause says that a law
may validly impose reasonable restrictions on the liberty of speech, if it is
in relation to contempt of court. Now a law in relation to contempt of court in
the present context is a law which says that. certain statements uttered or
published will be a contempt of court. Their utterance or publication is
prohibited. The principle on which the law is based is that the utterance or
publication would interfere with the course of justice and its due
administration. As I have already said, the law preventing publication of the
court's proceedings is based on the same principle. The publication is prohibited
only because it interferes with the course of justice. An obstruction to the
course of justice will of course be a contempt of court. That obstruction may
take various forms. There is obstruction when comments on the merits of a case
pending in a court are made. Such comments are prohibited by law and that law
relates to contempt of court. Likewise an obstruction to the course of justice
occurs when a court in the interests of justice prohibits publication of the
proceedings and that prohibition is disobeyed. Such publication is prohibited
by law and the law empowering the prohibition equally relates to contempt of
court. That law is concerned with the powers of the court alone and does not
purport to confer rights on persons. Such a law would be a good law under cl.
(2) of Art. 19 if the restrictions which it imposes are reasonable.
What I have earlier said in connection with
the reasonableness of the restrictions imposed by the law providing for a trial
to be held in camera will apply to this case also. The restrictions which this
law empowers to be imposed 779 have to be confined within the strict limits and
are plainly reasonable.
I will refer now to another aspect of the
matter. As I understood learned counsel for the petitioners, they conceded that
the order was a good order in so far as it concerned the parties to the case
heard by Tarkunde J. who could not, therefore, complain of any violation of
their liberty of speech by it. But it was contended that the order was not a
valid order in so far as it restrained persons like the petitioners who were
not parties to the proceedings. It is true that the petitioners were not
parties, but I am unable to see that that makes any difference. The case will
still be covered by the principle laid down in Ujjam Bai's(1) case It would
still be a judicial order made within the jurisdiction of the Judge making it
and based on a good law. It would still be a legal act. It cannot, therefore,
violate anyone's fundamental right whether he is a party to the proceedings or
not. The person affected can always approach the court for relief even if he
was not a party to, the proceedings.
The jurisdiction of the Court does not depend
on who the person affected by its order, is. Courts often have to pass orders
which affect strangers to the proceedings before them. To take a common case,
suppose a court appoints a receiver of a property about which certain persons
are litigating but which in fact belongs to another. That person is as much
bound by the order appointing the receiver as the parties to it are. His remedy
is to move the court by an application pro interesse suo. He cannot by force
prevent the receiver from taking possession and justify his action on the
ground that the order was without jurisdiction and,. therefore violated his
fundamental right to hold property. It would be an intolerable calamity if the
law were otherwise.
Therefore, it seems to me that on the
authority and the principle of Ujjam Bai's (1) case it must be held that the
order of Tarkunde J. did not violate any fundamental right of the petitioners
and the petitions must fail.
I would now refer to two judgments of this
Court to which our attention was drawn. I find nothing in them which conflicts
with the principle enunciated in Ujjam Bai's(1) case. The first is Budhan
Chowdury v. The State of Bihar(2). In that case there is an observation
indicating that a judicial decision will not amount to denial of equal
protection of law unless there is shown to be present in it an element of
intentional and purposeful discrimination. An argument was based on this
observation that this Court contemplated that a judical order might in certain
circumstances violate a fundamental right. But that observation must be related
to the facts of the case. The case dealt with the power of a magistrate to (1)
 1 S.C.R. 778.
(2) 1 S.C.R. 1045.
780 decide whether a matter was to be heard
by him or by a Court of Sessions. Such an order is hardly a judicial order of
the kind that was dealt with in Ujjam Bai's case(1). All that was said in
Budhan Chowdury's(2) case was that the power given to the magistrate to
decide-by whom the case would be heard, did not offend Art. 14 and one of the
reasons given to support that view was that the magistrate had to act judicially.
There was no question there of a magistrate acting as a tribunal. Besides this,
in Ujjam Bai's(1) case it was held that where a judicial officer acts against
the principles of natural justice, he acts without jurisdiction. This is the
kind of thing that was perhaps in the mind ,of the learned Judges who decided
Budhan Chowdhury's(1) case. Indeed in Parbhani Transport Cooperative Society
Ltd. v. The Regional Transport Authority, Aurangabad(3). this Court observed
that ,decisions of quasi judicial tribunals, however wrong, could not ,offend
The other case is that of Prem Chand Garg v.
Excise Commissioner Uttar Pradesh(4). My lord the Chief Justice has dealt ,with
this case very fully and I have nothing to add to what he has -said. For the
reasons stated by him, it must be held that there is, nothing in that case
which is in conflict with Ujjam Bai's case(1).
There is one other reason why, in my view,
the petitions should fail. The petitions ask for a writ of certiorari.
We are, therefore, concerned only with that
writ. The difficulty that at once arises is. Does a certiorari lie to remove,
for the purpose of quashing, the order of a High Court, which the order of
Tarkunde J. undoubtedly was? I am confining myself only to a writ of certiorari
for quashing a judicial order made by a High Court. The Constitution does not
say what a writ of certiorari is. As certiorari is a technical word of English
law and had its origin in that law, for determining its scope and contents we
have necessarily to resort to English law. I am not unmindful that we are not
to look back to the procedural technicalities of the writ as obtaining in
English law. Nonetheless however we have to keep to the broad and fundamental
principles that 'regulate the exercise of the jurisdiction to issue the writ in
Now one of the fundamental principles
concerning the issue of the writ is that it issues to an inferior court. The
inferior court conceived in English law in this context is a court of limited
jurisdiction: Rex v. Chancellor of St.
Edmundabury(6). The origin of this test of an
inferior court appears to have been this. In English theory, all judicial power
is vested in the King. It was earlier ,exercised by the Court of King's Bench
because the King, initially in (1) 1 S.C.R. 778.
(2)  1 S.C.R. 1045.
(3)11969] 3 S.C.R. 177.
(4)  Supp. 1 S.C.R. 885.
(5) 1 S.C.R. 250.
(6)  1 K.B. 195.
781 person and later in theory, sat there. In
course of time as the 'Court in which the King sat, actually or in theory, was
not enough to meet the needs of the people, a number of other courts had to be
set up. The instruments creating such other courts always defined their
jurisdiction. The King, however, retained his right to see that these courts did
not encroach upon the royal prerogative of dispensing justice, that is,
entertained cases which were beyond their jurisdiction as limited by the
instruments creating them and thereby decided cases which the King had the
right to decide. In England the King was the court of universal jurisdiction
and he, therefore, issued the writ to the courts of limited jurisdiction to
keep them within the limits prescribed for them. The King's prerogative to
issue the writ is now vested in the High Court of England by statute. I am
referring to this aspect of the matter only for the principle and origin of the
rule that a certiorari could be issued only to inferior courts.
In our country there is no court of universal
jurisdiction in the sense in which the High Court of England is. The
jurisdiction of our Supreme Court is prescribed by the Constitution. The
Constitution also provides how the jurisdiction of High Courts is to be
Jurisdiction of other courts is to be found
in the statutes setting them up. Thus, in our country all courts are in the
sense, courts of limited jurisdiction. Nonetheless, however, I find great
difficulty in thinking of the High Courts as courts of inferior jurisdiction.
Certain other tests for deciding what a court of inferior jurisdiction is, have
been suggested but none of them, in my view, can support the conclusion that a
High Court is an inferior court. I proceed to discuss these tests first.
It was said that the High Courts were
inferior courts as appeals lie from them to the Supreme Court. This argument is
really based on the theory that an inferior court is one from which an appeal
lies to another court. Now, there are many tribunals from which no appeal lies
to a High Court upon which the Constitution has conferred the power to issue a
writ of certiorari. If appealability was the test, then the High Courts would
not be able to issue writs of certiorari to such tribunals as they would not
then be inferior courts. In. that case, a High Court's power to issue the writ
would only be confined to courts from which appeals lie to it. It would be
strange if this was what the Constitution contemplated when it provided that
the High Courts would have the power to issue writs of certiorari. I am not
prepared to adopt a test which produces such a result. Nor do I think that the
Constitution intended it.
With the growing number of these tribunals
and the increasing scope of their activity covering a large part of an average
citizen's life, property and work, it is of the utmost importance that the
citizens should have the quick and effective remedy of a writ of certiorari by
approaching the High Courts for such writs. I am 782 hot prepared to accept a
test which would affect that right in any way. Besides this aspect of the
matter, the power to issue a writ of certiorari is most valuable and most
needed where an appeal does not lie from a decision of a tribunal and that
decision is sought to be called in question. A test which would prevent the
writ from lying in a case where it is most needed is not acceptable to me. I
may add that in England where a writ of error a form of appeal lay, the
certiorari does not appear to have issued.
Another test suggested was that the inferior
court was one over which the superior court issuing the writ had a supervisory
jurisdiction. This test would fail for the same reason as the test of appeal
ability. The Supreme Court has no supervisory jurisdiction over any court
though it has power to issue the writ, nor have the High Courtís over many to
which it is necessary that they should issue the writ and have in fact been
doing so all along with great beneficial results. This test will not,
therefore, work in our country. That is not a test in England either. No doubt,
in England it is said that the High Court exercises supervision over the
inferior courts by the issue of the writ but that is so because the power to
issue the writ carried with it the power to supervise and not because the writ
is issued as there is a power to supervise. The power to issue the writ arises
from what was once the royal prerogative and not from what is only a power to
I confess the question is of some haziness.
That haziness arises because the courts in our country which have been given
the power to issue the writ are not fully analogous to the English courts
having that power. We have to seek a way out for ourselves. Having given the
matter my best consideration, I venture to think that it was not contemplated
that a High Court is an inferior court ,,even though it is a court of limited
jurisdiction. The Constitution ,gave power to the High Courts to issue the
writ. In England an inferior court could never issue the writ. I think it would
be abhorrent to the principle of certiorari if a court which can itself issue
the writ is to be made subject to be corrected by a writ issued by another
court. When a court has the power to issue the writ, it is not, according to
the fundamental principles of certiorari, an inferior court or a court of
limited jurisdiction. It does not cease to be so because another court to which
appeals from it lie, has also the power to issue the writ.
That should furnish strong justification for
saying that the Constitution did not contemplate the High ,Courts to be
inferior courts so that their decisions would be liable to be quashed by writs
issued by the Supreme Court which also had been given the power to issue the
writs. Nor do I think that the cause of justice will in any manner be affected
if a High Court is not made amenable to correction by this Court by the issue
of the writ. In my opinion, therefore, this Court has no power to issue a
certiorari to a High Court.
783 I would, for these reasons, dismiss the
Hidayatullah, J. Questions of far-reaching
importance to our system of administration of justice are involved in these
petitions arid as I have reached the conclusion that these petitions should be
allowed, I consider it necessary to state my reasons fully. The facts are
In a sensational libel suit, on the original
side of the High Court of Bombay, between one Mr. Krishnaraja M.D. Thakersey
and Mr. R.K. Karanjia, Editor of the "Blitz" (an English weekly
newspaper of Bombay), one Bhaichand Goda was cited as a witness for the
defence. In a different proceeding Goda had earlier made an affidavit of facts
which were considered relevant to the libel suit, but as witness he did not
adhere to them. Mr. Karanjia was, therefore, permitted to cross-examine him
with reference to his earlier statement. When the trial of the suit proceeded
some other material came on record which indicated that Goda had, in some other
proceedings, repeated what he had stated in his affidavit. At the request of
Mr. Karanjia, Goda was recalled for further cross-examination in relation to
the new matter. On his second appearance Goda made a request to the presiding
Judge (Mr. Justice Tarkunde) to withhold his evidence from newspaper reporters
on the ground that publication of reports of his earlier deposition had caused
loss to him in his business. After hearing arguments Mr. Justice Tarkunde
orally ordered that Goda's deposition should not be reported in newspapers. The
Blitz was giving verbatim reports of the trial and the other newspapers were
also publishing brief accounts. The oral order of the learned Judge was not
recorded. The minutes of the Court also do not mention it. In fact we have not
seen that order. No one can say what the nature of the prohibition was, namely,
whether it was a temporary or a perpetual suppression of publication. As the
intention was to save Goda's business from harm, it is reasonable to think that
the prohibition was perpetual and that is how the matter appears to have been
understood by all concerned because no report of his deposition has since
appeared in any newspaper.
These four petitions under Art. 32 of the
Constitution were filed to question the order (such as it was) on the ground
that the fundamental rights under Art. 19(1)(a) of the Constitution of the four
petitioners (who are all journalists) have been violated by the said order.
They raise important questions and I shall mention them at once.
They are: (i) can a court, which is holding a
public trial from which the public is not excluded suppress the publication of
the deposition of a witness heard not in camera but in open court on the
request of the witness that his business will suffer; (ii) does such an order
breach fundamental right of freedom of speech and expression entitling persons
affected to invoke Art. 32;
784 and (iii) if so, can this Court issue a
writ to a High Court? answer these questions in the affirmative and in favour
of the petitioners.
Before I discuss the order in this case I
shall state the nature of hearings in the trial of cases in our courts. As we
have fortunately inherited the English tradition of holding trials (with a few
exceptions to which I shall refer later) in public, I shall begin with the
It has always been the glory of the English
system as opposed to the Continental that all trials are held ostiis apertis, that
is, with open doors. This principle is old and according to Hallam it is a
direct guarantee of civil liberty and it moved Bentham to say that it was the
soul of Justice and that in proportion as publicity had place, the checks on
judicial injustice could be found. Except for trials before the Council all
trials in England, including those before the notorious Star Chamber, were
public and with observance of the law terms. It is because English trial has
not known the Letters de cachet of Louis XIV and all its state trials were
public, that the Selden Society has been able to collect the cases of the Star
Chamber and we have the verbatim reports of almost all state trials. As Emlyn
in his preface to the State Trials says proudly :
"In other countries the courts of
Justice are held in secret; with us publicly and in open view; there the
witnesses are examined in private, and in the prisoner's absence; with us face
to face, and in the prisoner's presence." He was no doubt speaking of
criminal trials but the principle (with a few exceptions) is applicable to
civil cases also.
This attachment to an open trial is not a
rule of practice with the English, but is an article of their Great Charter and
Judges view with great concern any departure from it.
Whenever, a Judge departed from it he defined
the 'field of exception' and stated ' the overriding principle' on which his
decision was based. No Judge passes an order which is not recorded in the
minutes and a question of this kind is not dealt with by the Judge as within
his mere discretion as to what he considers expedient or convenient. As
illustration of the seriousness of the question I shall permit myself an
instance which concerns one of the greatest legal luminaries of English law. In
Malan v. Young(1) (in the Sherborne School libel case) Lord Denman (then Denman
J.) with the consent of the parties made an order for hearing in camera and a
part of the case was so heard. Then a lawyer protested and Mr. Justice Denman,
on a reconsideration of the matter, invited the parties the decide whether they
would take the risk of a case in camera or would begin de novo in open court.
The parties agreed to have the case (1) (1889) 6 T.L.R. 38.
785 heard before him as an arbitrator. A
decision of a case in camera, even if parties agree, is voidable (as was
decided by the Judicial Committee in Mc. Pherson v. Mc Pherson(1)) and Lord
Denman was apprehensive of such a result. This attitude to the trial in open
was summed up by Viscount Haldane L.C. in Scott v. SCott(2) by saying that a
Judge could only depart from the principle that the trial must be in public
(except for some narrow exceptions) by demitting his capacity as a Judge and
sitting as an arbitrator. The exceptions to the general rule which Viscount
Haldane mentioned are cases of lunatics and wards of courts, of trade secrets,
and nullity cases in which the Ecclesiastical Courts granted trials in camera.
But even these are viewed very narrowly and the principle on which each
exception is made to rest, differs. The cases of lunatics and wards are so
viewed because the court exercises over them a quasipaternal Jurisdiction on
behalf of the Queen as the parent patriae. These cases are considered private
or domestic with which the public have no concern. The cases of trade secret
are so viewed because secret processes (which are property) must be protected
and unless secrecy from public view is maintained justice itself must fail in
The last are kept away from publicity because
they involve sordid details of domestic life and therefore embarrass deponents.
Even the last rule does not apply to all matrimonial cases as is evident from
Scott. v. Scott referred, to earlier.
In Scott v. Scott (2) there are certain
observations which proceed upon a dictum of Sir Francis Jenne in D. v D. (3)
that the court possesses an inherent jurisdiction to hear any case in private
when the administration of justice requires or with the consent of parties.
This is the principle which has been stressed in the judgment of my lord the
Chief Justice and I shall say a few words about it.
Viscount Haldane did not dissent from that
dictum, "provided that the principle is applied with great care and is not
stretched to cases where there is not a strict necessity for invoking it."
These observations were really made in relation to the three exceptions he was
considering and he did not intend by them to give a wide. discretion to the
judge. He himself stated:
"But unless it be strictly necessary for
the attainment of justice, there can be no power in court to hear in camera
either a matrimonial cause or any other where there is contest between parties.
He who maintains that by no other means than by such a hearing can justice be
done may apply for an unusual procedure. But he must make out his case
strictly, and bring it up to the standard which the underlying (1) L. R. 
(2) L. R.  A.C. 417 at 436.
(3)  P. 144.
786 principle requires. He may be able to
show that the evidence can be effectively brought before the court in no other
fashion." (emphasis added) With profound respect for the eminent Judge I
think the principle, so stated, is too wide and Rex. v Clement(1) which he uses
to illustrate his point has no relevance. I respectfully agree with the Earl of
Halsbury, who in the same case, commented upon the width of the Lord
Chancellor's language and with Lord Atkinson who pointed out that in Clement's
case there were many persons being tried for high treason and as the challenges
to the jury were different, a large number of trials with common witnesses had
to be held and publication was withheld so that others might not be prejudiced.
The Earl of Halsbury observed as follows:
".......... I wish to guard myself
against the proposition that a judge may bring a case within the category of
enforced secrecy because he thinks that justice cannot be done unless it is
heard in secret..............
I am not venturing to criticise your
Lordship's language, which, as your Lordship understands it, and as I venture
to :say I myself understand it, is probably enough to secure the observance of
the rule of public hearing, but what I venture to point out is that it is not
so definite in its application but that an individual judge might think that,
in his view, the paramount object could not be attained without a secret
hearing. Although I am very far from saying that such a case may not arise, I
hesitate to accede to the width of the language, which, as I say, might be
applied to what, in my view, would be an unlawful extension." "(pp.
442/443)." (emphasis added) The Earl of Halsbury also expressed amazement
that a single Judge (Sir Francis Jeune) should overrule "three such
learned Judges as Sir Cresswell, Williams J. and Bramwell B." who in H
(falsely called C) v C.(2) had expressed different opinion in relation to
hearing in camera on their quest of parties Lord Shaw of Dunfermline also
called the dictum of Sir Francis Jeune in D. v. D. "to be historically and
legally indefensible' Earl Loreburn, however, agreed with the principle as
enunciated and was in favour of its being exercised liberally. The head-note in
the law report sets out the views of Viscount Haldane and Earl Loreburn
separately from the main decision.
(1) 4B & Ald. 218. (2) 1 SW & Tr.
787 In Scott v. Scott(1) the question had
arisen in connection with a nullity suit and the main decision was that the
Probate, Divorce and Admiralty Division had no power, either with or without
the consent of the parties, to hear a nullity suit or other matrimonial suit in
camera in the interest of public decency. The order of hearing in camera which
led to a suppression of publication of the proceedings in perpetuity was held
to be bad. So strong is this principle of open trial that even where this rule
is departed from on the ground that interest of justice would suffer the Judges
always remember to remind themselves that the order cannot be made as a matter
of course. Thus it was that in Moosbrugger v. Moosbrugger and Moosbrugger v. Moosbrugger
and Martin(2) (which were two cross suits between spouses for divorce), Evans
P., while ,acceding to the request of the wife for privacy because of the
horrible details of her case, repeated again and again that the trial was
public and should not be thought not to be so. He was apprehensive that the
lady's case would suffer if the sordid details were asked to be divulged in
public and, therefore, heard only that part in private to give her confidence.
In India the position is not different.
Public hearing of cases before courts is as fundamental to our democracy and
system of justice as to any other country. That our legal system so understands
it is quite easily demonstrable. We have several statutes in which there are
express provisions for trials in camera. Section 53 of Act 4 of 1869 dealing
with matrimonial causes, s. 22 of the Hindu Marriage Act, 1955, s.352 to the
Code of Criminal Procedure, 1898 and s. 14 of the Indian Official Secrets Act,
1923, allow the court a power to exclude the public. Where the Legislature felt
the special need it provided for it. Section 14 of the Official Secrets Act,
however, needs some comment because an argument is knit from it. That section
recites "without prejudice to any powers which a court may possess to
order the exclusion of the public" and it is suggested that this
recognizes the existence of inherent powers spoken of by Sir Francis Jeune.
From this recital alone it is not right to assume that courts possess a general
or inherent power of dispensing with open and public trials. This recital is
necessary to be stated lest it may be thought that unless the prosecution
applies to have the public excluded for reasons arising under the Official
Secrets Act, other power derivable from any other source such as s. 352 of the
Code of Criminal Procedure cannot be exercised. For this reason the other
powers are expressly mentioned and preserved. The above statutes do not only
confer power to hold trials in camera, but in a way they show that trials under
laws which do not contain such enabling provisions must be open and public
unless a strong case exists for holding them in camera. Inherent powers can
only be exercised on well(1)  A.C. 417. (2) (1913) 29 T.L.R. 658.
788 recognized principles and they cannot be
assumed to exist where they do not and I see none on the facts of this case.
The libel suit against the Editor of Blitz
opened in public and proceeded in public. Goda's deposition on the first
occasion was taken in open court and it was reported in newspapers. On his
second appearance the trial as well as his examination was in open court but
the reporting of his evidence was banned. Now the rule about reporting of cases
in court is this: what takes place in court is public and the publication of
the proceedings merely enlarges the area of the court and gives to the trial
that added publicity which is favoured by the rule that the trial should be open
and public. It is only when the public is excluded from audience that the
privilege of publication also goes because the public outside then have no
right to obtain at secondhand what they cannot obtain in the court itself. If
the matter is already published in open court, it cannot be prevented from
being published outside the court room provided the report is a verbatim or a
fair account. Accurate publication of reports is insisted upon so that the
proceedings are not misrepresented. The above rules were stated by Lord
Halsbury L.C. in Macdougall v. Knight(1) thus:
"My Lords, the ground on which the
privilege of accurately reporting what takes place in a court of justice is
based is that judicial proceedings are in this country public, and that the
publication of what takes place there, even though matters defamatory to an
individual may thus obtain wider circulation than they otherwise would, is
allowed because such publication is merely enlarging the area of the court, and
communicating to all that which all had the right to know." I (emphasis
In our case the learned Judge by an order
(which we have not seen and which parties could not produce because it was
nowhere recorded) ordered that the deposition of Goda should not be published.
Whether this order is to apply in perpetuity or for the duration of the trial,
only the learned Judge can say. If it is to apply in perpetuity then it is bad
because if there was unanimity on any one point in Scott v. Scott it was on
this point. Even otherwise the order is indefensible. Having held the trial in
open court, the learned Judge could not curtail the publication of the report
of the trial and the reason which he accepted as sufficient, is one which the
courts have not recognised and should not recognise. I know of no case to
support the astounding proposi(1) 14 A.C. 194.
789 tion that a witness can not seek
protection because his truthful statement would harm his own business; nor has
the industry of counsel discovered any such case. I do not think such a
principle exists at all. If it did a witness might with as good or as bad
reason claim that he would depose only under a veil of secrecy because his
domestic relations or his friendships or the relations with his employer would
otherwise suffer. I imagine that a cunning rogue might ask for such secrecy to
harm and wound another with impunity or to save his face when contradicted by
his many prevarications. It is not sufficient to say that the witness is bound
to speak the truth if so protected for he might well use the occasion to tell
lies. It is clear to me from this case that the warning given by the Earl of
Halsbury against the width of the language of Viscount Haldane was necessary.
Section 151 of the Code of Civil Procedure, on which great reliance is placed,
in spite of its very generous and wide language, cannot be used to confer a
discretion on the court to turn its proceedings which should be open and public
into a private affair. I am of opinion that the order of Mr. Justice Tarkunde imposing
suppression of the reporting of the deposition of Goda was illegal and without
jurisdiction. It was not in his power to make such an order on the ground he
was moved and further because the order either purports to impose a perpetual
ban or leaves the matter in doubt, thus placing those concerned with the
publication of the report under a virtual sword of Damocles, the order cannot
The next question which arises is whether
such an order breaches the fundamental right to freedom of speech and
expression. This question is tied to another and it is whether a petition under
Art. 32 can at all lie against a Judge in respect of any action performed by
him while in the seat of justice. To determine these questions it is necessary
to start with the second limb because unless it is answered in the affirmative
the first limb may not fall for consideration. In making the enquiry on the
second limb, I do not confine my attention to the consideration of Art.
19(1)(a) alone, for that does not enable me
to see the fundamental rights in their true perspective vis-a-vis the action of
Judges. While I do not detract from the proposition that judicial effort should
be restrained and should never attempt an exposition of the law at large and
outside the range of the facts on which a case in hand is founded, I venture to
think that (remedy apart) the chapter on fundamental rights, when examined
carefully in its several parts, gives many indications that Judges were not
intended to be outside its purview, Certain articles address themselves to
courts in common with other authority and some more to courts than to other
authorities. Unless we read these other articles with Art. 19(1)(a) and
consider them together, we are likely to have but a partial view of the problem.
7 90 To begin with we have the definition of
'State' in Art. 12.* That definition does not say fully what may be included in
the word 'State' but, although it says that the word includes certain
authorities, it does not consider it necessary to say that courts and Judges
are excluded. The reason is made obvious at once. if we consider Art. 13(2).**
There the word 'State must obviously include 'courts' because otherwise
'courts' will be enabled to make rules which take away or abridge fundamental rights.
Such a case in fact arose in this Court when Rule 12 of Order XXXV of the
Supreme Court Rules was struck down. [See Premchand Garg v. Excise
Commissioner, U.P., Allahabad](1). That rule required the furnishing of
security in petition under Art.
32 and it was held to abridge the fundamental
rights. But it is said that the rule was struck down and not the judicial
decision which was only revised. That may be so.
But a judicial decision based on such a rule
is not any better and offends the fundamental rights just the same and not less
so because it happens to be a judicial order. If here be no appropriate remedy
to get such an order removed because this Court has no superior, it does not
mean that the order is made good. When judged of under the Constitution it is
still a void order although it may bind parties unless set aside. Procedural
safeguards are as important as other safeguards.
Again Art. 20, which speaks of convictions
for offences, punishments and testimonial compulsion is addressed as much to
courts as to executive and other authorities, and I venture to think that the
worst offenders would be the courts if they went against this prescription.
Article 22(1) is addressed to courts where it says that no person, who is
arrested, shall be denied the right to be *"12. 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." **"13 (2) The State
shall not make any law which takes away or abridges the rights conferred by
this part and any law made in contravention of this clause shall, to the extent
of the contravention, be void." (1)  Supp. 1 S.C.R. 885.
"20 (1) No person shall be convicted of
any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.
(2) No person shall be prosecuted and
punished for the same offence more than once.
(3) No person accused of any offence shall be
compelled to be a witness against himself" 22(1) No person who is arrested
shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be
defended by a legal practitioner of his choice.
791 defended by a legal practitioner of his
choice. If the High Court had, for example, insisted on the defendant in a
criminal case to take a counsel of its choice, the trial would have been
vitiated. Why? Because of the breach of the fundamental right in Art. 22(1).
The remedy would not have been to wait till the end of the trial and then to
bring the matter up by appeal on a certificate or to ask for special leave
against the order but to ask for a writ compelling the observance of the
These provisions show that it cannot be
claimed as a general proposition that no action of a Judge can ever be
questioned on the ground of breach of fundamental rights. The Judge no doubt
functions, most of the time, to decide controversies between the parties in
which controversies the Judge does not figure but occasion may arise
collaterally where the matter may be between the Judge and the fundamental
rights of any person by reason of the Judge's action. It is true that Judges,
as the upholders of the Constitution and the laws, are least likely to err but
the possibility of their acting contrary to the Constitution cannot be
completely excluded. In the context of Arts. 14, 15(1)(b) and (19) (a) and (d)
it is easy to visualize breaches by almost anyone including a Judge. A court
room is a place dedicated to the use of the general public. This means that a
person who goes there has not to seek anybody's permission to enter it provided
he either has business there or as a spectator behaves himself. The work of the
court is done in public and no one is excluded who wishes to enter the court
room to watch it. In a suitable case the public may, of course, be excluded by
the Judge. But he cannot exclude a section of the public on the ground of race,
religion or community without offending fundamental rights. The right to carry
on the profession of law may be enforced against a Judge within the precincts
of his court as much as the carrying on of other professions may be enforced
outside. It is, however, said that a Judge possesses a dual character, that in
his administrative capacity he may be within the reach of the chapter on
fundamental rights but not in his judicial capacity. I venture to think that
sitting in the seat of justice hardly makes a difference. It may be that his
judicial orders normally are subject to appeals, revisions and reviews but
where none of these can be invoked and fundamental rights are involved recourse
to the guaranteed remedy may become necessary. Because Judges decide matters
objectively and because almost all their orders are capable of correction by
way of appeals, revisions or reviews, does not lead to the conclusion that
every order made by a Judge may only be treated as a wrong order and not as one
guilty of breach of fundamental rights. If a Judge, without any reason, orders
the members of, say, one political party out of his court, those so ordered may
seek to enforce their fundamental rights against him and it should make no
difference that the order is made while he sits as a Judge.
Even if appeal lies against 79 2 Such an
order, the defect on which relief can be claimed, is the breach of fundamental
rights. I am, therefore, of opinion that Judges cannot be said to be entirely
out of the reach of fundamental rights.
The fundamental right here claimed is the
freedom of speech and expression. In Sakal Papers (P) Ltd. v. The Union of
India(1) this Court holds that the freedom of speech and expression guaranteed
by Art. 19(1) (a) includes freedom of press. A suppression of the publication
of the report of a case conducted in open court, for a reason which has no
merit, ex facie offends that freedom. Just as the denial without any reason to
a person of the right to enter ,a court is to deprive him of several
fundamental freedoms, denial of the right to publish reports of a public trial
is also to deny the freedom of the press which is included in the freedom of
speech and expression. Suppose for a moment that a Judge singles out some
newspapers for discriminatory treatment. The order would indubitably offend the
equality clause. Assuming that no remedy exists against such an order, the
person affected, if he disobeys it, can at least claim immunity in a proceeding
for contempt by pleading breach of his fundamental rights by the Judge. In my
judgment Mr. Justice Tarkunde, having held a public trial, could not curtail
the liberty of the press by suppressing the publication of the reports. This
was not a matter of deciding anything in a lis but of regulating his court and
procedure. As the Judge passed no recorded order, the appropriate remedy (in
fact the only effective remedy) is to seek to quash the order by a writ under
Art. 32 of the Constitution;
I have disposed of the second question but
some of the reasons which strengthen that view were not mentioned because they
can be more appropriately mentioned in connection with the third question which
is: Can this Court issue a writ under Art. 32 of the Constitution to a High
Court? This is a difficult and an important question which I would have gladly
reserved for a more suitable case. Had I been of the view that the order of Mr.
Justice Tarkunde was proper, I would not have attempted it because it would
have been a futile exercise but I am compelled to answer this question firstly
because the matter is considered in the judgments of ,my lord the Chief Justice
and of my other brethren and, secondly, because on my answers to the first two
questions it perhaps arises ,more in my judgment than in others.
The submission of the Attorney-General is
that in no case can writs of mandmus, certiorari or prohibition go to a
Division Court ,or to a single Judge of the High Court whether sitting in banc
or in chambers. He is not so sure about the writ of quo warran to ,and wishes
it to be considered as a separate question. It is, how-ever, clear that the
last writ must either issue here or in the High (1)  3 S.C.R. 842.
793 Court if a Judge becomes incompetent,
say, by reason of superannuation and does not demit his office and, I think
,the Attorney-General is right in not mixing up this writ with a consideration
of the others. In respect of the other writs, the argument of the
Attorney-General is that the High Court in England issues these writs to
inferior courts but not to courts of coordinate jurisdiction or superior courts
and the High Court as a Court of Record and a superior court, itself being able
to issue these writs in our country, must be treated as a court of coordinate
jurisdiction in this matter and not regarded as an inferior court. He also
contends that the decisions of the High Courts are capable of being corrected
by appeals only and writs cannot lie. I do not accept these arguments.
Nothing turns on the fact that the High Court
is a court of record because the writ of certiorari issues to several courts of
record-(see Halsbury's Laws of England (3rd Edn.) Vol. II, page 124. Para 230).
Similarly "Ecclesiastical courts are superior courts in the sense that it
need not appear in any proceeding or judgments of these courts that the court
was acting within its jurisdiction but they are regarded as inferior courts in
the sense that they can be stopped from exceeding their jurisdiction by an
order of prohibition" (see Halsbury ibid., Vol. 9, P. 348 Para 817).
Nothing much can turn upon phrases such as 'court
of record', 'superior and inferior courts' borrowed from English law.
We have to guide ourselves by our
Constitution which lays down the powers of this Court in Art. 32 thus:
"32. Remedies for enforcement of rights.
(1) The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
(2) The Supreme Court shall have power to
issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred
on the Supreme Court by clauses (1) and (2), Parliament may by law empower any
other court to exercise within the local limits of its jurisdiction all or any
of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article
shall not be suspended except as otherwise provided for by this Constitution."
M12 Sup. C. 1./66-5 794 The powers of the High Court are stated in Art. 226
which may also be get out here for comparison:
"226. Power of High Courts to issue
(1) Notwithstanding anything in article 32,
every High Court shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or authority, including
in appropriate cases any Government within those territories directions,
orders, or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement
of any of the rights conferred by Part III and for any other purpose.
(1A) The power conferred by clause (1) to
issue directions, orders or writs to any Government, authority or person may
also be exercised by any High Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories.
(2) The power conferred on a High Court by
clause (1) or clause (IA) shall not be in derogation of the power conferred on
the Supreme Court by clause (2) of Article 32." Article 32 makes no
exception in favour of the High Court.
It refers to the writs of certiorari and
prohibition which lie only in respect of judicial acts and although they lie
also to bodies and persons who are not courts stricto sensu, they always lie to
courts. As these writs are mentioned in Art. 32 and there is no exception in
respect of the High Courtís we start with a presumption that the High Court may
not be excluded. The writ of mandamus may also be issued to courts and that
does not detract from the presumption. The writ of quo warranto, as stated
earlier, may concededly be held to apply to a High Court Judge.
It will be noticed that both the articles in
speaking of the power say that it is to issue writs "in the nature
of" the writs of habeas corpus, mandamus, certiorari, prohibition and quo
warranto. The phrase "in the nature of" is not the same as the other
phrase "of the nature of". The former emphasises the essential nature
and the latter is content with mere similarity. As a result we have to consider
this controversy from two angles: (i) how far does the essential nature of the
writs taken with the special history of courts in England throw any light upon
the subject and (ii) what assistance do we derive from the language and scheme
of Arts. 32 and 226? 1 shall deal with these matters in the same order.
795 We are concerned with high prerogative
writs. They do not issue like the ordinary writs which are of strict right, but
only at the discretion of a court entitled to issue them.
The writ of prohibition issues from the
Queen's Bench properly but it was also issued from the Chancery, Common Pleas
and Exchequer Courts returnable to the Queen's Bench or Common Pleas (now
merged in the Queen's Bench Division).
It is, however, not granted to a court which
exercises the powers of the High Court. The writ is issued to Judges and
parties in an inferior court to cease from prosecuting a case in which their
jurisdiction, either originally or collaterally, is wanting. Prohibition lies
to a Judge as of right when the want of jurisdiction is patent. Since the
Judicature Acts an appeal now lies against the writ, to the Court of Appeal and
thence to the House of Lords, but before that the writ could only be questioned
under a Writ of Consultation. The Judge to whom the writ went consulted with
the Queen's Justices and if the writ of prohibition was not proper, a
consultation was granted.
Certiorari issues to Judges and officers of
inferrior courts and' jurisdictions, from the Queen's Bench (now the Queen's
Bench Division) to certify or send proceedings so that the legality of the,
proceedings may be examined. But if the other court exercises the powers of the
High Court the writ is refused (see Skinner v. Northallerton County Court Judge
A.C. 439). Certiorari also lies to remove a cause or matter into the High Court
if fair and impartial trial in the inferior court is not possible or questions
of law of unusual difficulty are likely to arise. The writ also issues from the
House of Lords to remove an indictment for felony found by a grand jury against
a Peer. The Earl of Russell was tried for bigamy by the King in Parliament
before 160 peers and all the Judges of the High Court after removal thereof the
case by certiorari (see The Trial of Earl Russell(1). The Crown gets the writ
of certiorari as of absolute right but the subject at the discretion of the
court. No certiorari goes from one branch of the High Court to another nor to
another superior court. This writ cannot be avoided by the Judge by not writing
an order in the case before him. Even if the Judge has not recorded the order
the High Court will order the inferior court to record its decision and then to
transmit the record to it. (Halsbury, 3rd Edn, Vol XI, page 135, para 251).
Certiorari lies only in respect of judicial, as distinguished from
Mandamus lies for the enforcement of legal
rights when there is no other specific remedy or the other available remedy is
not so effective. It often issues to a court to hear and determine a matter
pending before it. Such a writ issued also from the Chancery when judgments
were delayed, but returnable to the Queen's Bench.
(1)  A.C.446.
796 As Halsbury tersely puts it (3rd ed. Vol.
XI, p. 53, para 109) the three writs of mandamus, prohibition and certiorari
are used as a means of controlling inferior courts and those who have legal
authority to determine questions affecting the rights of subjects and having to
act judicially. By these three writs inferior courts were compelled to do ample
and speedy justice and were kept within their jurisdiction.
The root principle, says Halsbury (ibid.,
Vol. IX, p. 351, para 823) is that the Judges stand in the place of the Queen
and the Queen is supposed to be present in her royal courts. Of the Courts of
Common Law at Westminster which have dispensed justice for upward of seven
centuries in the Queen's name, only one exercised general jurisdiction in civil
causes. This court was established by Henry 11 in 1178 A.D. and was known as
the Common Bench. Cases of special difficulty were heard by the Sovereign with
the advice of her wise men. This court was spoken of by the Sovereign as our
Justices at Westminster". In accordance with Article XVII of the Great
Charter, Westminster was chosen as a "certain place" and till the
idea of taking justice to the people arose and assizes came into existence, the
court never stirred from that place 'The court was known as the Upper Bench or
the Queen's Bench where the Sovereign was present (curia ad placita corem Rege
tenenda). The Upper Bench or the Banc Royal dealt with matters of special
interest to the sovereign, viz. the 'prerogative' writs of certiorari,
prohibition etc. The Court of Exchequer (which was the third court) dealt with
cases in the course of collection of revenue.
Some writs which issued from these courts
were original or judicial. They were regarded as mere machinery writs and were
writs of right and issued on payment of the necessary fee to commence
litigation or something incidental to it.
Prerogative 'writs were different and they
issued with the special leave of the Court. By these prerogative writs the
Queen's Bench superintended the other courts and tribunals.
The distinction between superior and in ferrior
courts is this. No matter is deemed to be beyond the jurisdiction of a superior
court unless expressly shown on the face of the proceedings to be beyond it, or
established aliunde. In the case of an inferior court it has to appear in the
proceedings or in its judgment that the matter is within its jurisdiction.
Another test is whether proceedings in the court can be stopped by a writ of
prohibition issuing from the Queen's Bench and in this sense the Ecclesiastical
Courts and even the Judicial Committee hearing appeals in ecclesiastical
matters and the Admiralty Courts are inferior (see Rex. v. Chancellor of St.
Edmunsbury and Ipswich Diocese) (1).
(1)  1 K.B. 195 at 205.
797 I make no excuse for this excursion into
the history of English, law and institutions because we have chosen to put down
in Arts. 32 and 226 of the Constitution that the Supreme Court and the High
Courts will exercise the power to issue writs 'in the nature of' mandamus,
certiorari, prohibition and quo warranto the Supreme Court for the enforcement
of fundamental rights only and the High Courts for that purpose and for other
purposes. The question is who takes the place of the Queen's Bench Division in
England and whether the Supreme Court in India has no power to issue a writ to
enforce fundamental rights when breached by the High Courtís? There is no real
resemblance between the scheme of courts under our Constitution and the courts
in England. Obviously, no prerogative writ of the Queen can go to a court in
which the Queen herself is supposed to be present. This limitation has no
significance with us. The analogy of superior and inferior courts breaks down
in England itself when we consider the Ecclesiastical Courts and the Privy
Council hearing appeals in ecclesiastical matters. They are superior courts but
prohibition. issues to them. That our High Courts are courts of record is not,
a fact of much significance either because prerogative writs do issue to
several courts of record in England. As there is no real correspondence between
the courts in the two countries we can only decide the question by considering
if there is any good reason for excluding the High Court Judges from the area
of the powers of this Court or conversely for holding that they are so
In the draft Constitution the jurisdiction
and power to issue prerogative writs to governments etc. was entrusted to this
Court only by implication. The inclusion of this power in Art. 226 came by way
of amendment. It was perhaps considered that enabling the making of a law under
32(3) might not be an adequate provision to
provide for investing the High Courtís with similar powers because such a law
might never be passed. It was considered difficult for this Court single-handed
to enforce the fundamental rights throughout the territories of India and
accordingly Art. 226 was amended to confer jurisdiction on the High Courtís
within the territories in relation to which they exercise jurisdiction to issue
such writs. The fundamental rights are, however, more strongly entrenched in
the Constitution through Art. 32 than through Art. 226. Even with the amendment
of Art. 226 the power which is conferred on the High Courtís is not in every
sense a coordinate power and the Constitution furnishes several reasons in
support of this statement. The first indication is that the right to move the
Supreme Court for the enforcement of these rights is guaranteed but there is no
such guarantee in Art. 226.
Again cl. (3) of Art. 32 enables Parliament
to empower by law any other court to exercise within local limits of its
jurisdiction all or any of the powers exercisable by this Court under Art. 32
but without 798 prejudice to the powers of the Supreme Court under Cls. (1) and
(2) of Art. 32. There is no such saving in favour of the powers of the High
Courts. The mention of the first two clauses of Art. 32, particularly cl. (1),
indicates the importance of the guarantee.
Although the amendment of Art. 32 has been
held to be a less difficult process than the amendment of Art. 226, the
guarantee in Art. 32(1) seems to be real till it is repealed or annulled. The
provisions of Art. 226 themselves indicate this. Art. 226 begins by saying
"Notwithstanding anything in article 32" which shows that the whole
of the power must otherwise be with this Court. It indicates an intention to
carve out an area for local action by the High Court. This might have made the
exercise of the power by the High Court equal to its exercise by this Court but
for the existence of cl. (2) which says that the power conferred on the High
Court is not in derogation of the powers conferred on the Supreme Court. The
word derogation must receive its full meaning. It shows that the entirety of
the powers possessed by this Court is still intact in spite of the High Court's
ability to ,exercise similar powers in local areas within their jurisdiction.
If the powers were coordinate why include cf. (2) in Art. 226 ? In these
circumstances can we say that the High Court possesses coordinate powers ? I
say no. A person need not go to the' High Court at all before moving this
There is really no provision that when a
person has moved the High Court and failed he cannot again move this Court
although on the ground of comity this Court expects in such circumstances an
appeal against the decision of the High Court and not a direct approach. This
Court is not only a court of appeal in civil, revenue and criminal proceedings
from judgments of the High Court but by Art. 136 it is empowered to bring
before it any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.
The implication of this is quite clear to me when I read Art. 136 in
Conjunction with Arts. 32 and 226. That implication is that there is no sharing
of the powers to issue the prerogative writs possessed by this Court. The whole
of the power is still with this Court under a guarantee and only analogous
powers for local enforcement are given to the High Courts. Under the total
scheme of the Constitution the subordination of High Courts to the Supreme
Court is not only evident but is logical.
Art. 32 is concerned with fundamental rights
and fundamental rights only. It is not concerned with breaches of law which do
not involve fundamental rights directly. The ordinary writs of certiorari,
mandamus and prohibition can only issue for enforcement of fundamental rights.
A clear-cut case of breach of fundamental rights alone can be the basis for the
exercise of the power. I have 799 already given examples of actions of courts
and Judges which are not instances of wrong judicial orders capable of being
brought before this Court only by appeal but of breaches of fundamental rights
pure and simple. Denial of equality, as for example, by excluding members of a
particular party or of a particular community from the public courtroom in a
public hearing without any fault when others are allowed to stay on, would be a
case of breach of fundamental rights of equal protection given by the
Constitution. Must an affected person in such case, ask the Judge to write down
his order so that he may appeal against it? Or is he expected to ask for
special leave from this Court? If a High Court Judge in England acted
improperly there may be no remedy because of the limitation on the rights of the
subject against the Crown. But in such circumstances in England the hearing is
considered vitiated and the decision voidable. This need not arise here. The
High Court in our country in similar circumstances is not immune because there
is a remedy to move this Court for a writ against discriminatory treatment and
this Court should not in a suitable case shirk to issue a writ to a High Court
Judge who ignores the fundamental rights and his obligations under the
Constitution. Other cases can easily be imagined under Arts. 14, 15, 19, 20, 21
and 22 of the Constitution in which there may be action by a Judge which may
offend the fundamental rights and in which an appeal to this Court will not
only be not practicable but also quite an ineffective remedy.
We need not be dismayed that the view I take
means a slur on the High Courts or that this Court will be flooded with
petitions under Art. 32 of the Constitution. Although the High Courtís possess
a power to interfere by way of high prerogative writs of certiorari, mandamus
and prohibition, such powers have not been invoked against the normal and
routine work of subordinate courts and tribunals. The reason is that people
understand the difference between an approach to the High Court by way of
appeals etc. and an approach for the purpose of asking for writs under Art.
Nor have the High Court spread a Procrustean
bed of high prerogative writs for all actions to lie. Decisions of the courts
have been subjected to statutory appeals and revisions but the losing side has
not charged the Judge with a breach of fundamental rights because he ordered
attachment of property belonging to a stranger to the litigation or by his
order affected rights of the parties or even strangers.
This is because the people understand the
difference between normal proceedings of a civil nature and proceedings in
which there is a breach of fundamental rights. The courts' acts, between
parties and even between parties and strangers, done impersonally and
objectively are challengeable under the ordinary law only. But acts which
involve the court with a fundamental right are quite different.
800 The power and jurisdiction of this Court
is so narrow that nothing on the merits of a controversy of a civil case can
ever come up before it under Art. 32. It is unlikely that this Court will
torture cases to fit them into Art. 32. A person may try but he will find this
a Sisyphean task. It cannot be brought here by pleading breach of fundamental
rights. It is only when a Judge directly acts in some collateral matter so as
to cause a breach of a fundamental right that the ordinary process of appeals
being unavailable or insufficient a case under Art. 32 can be made out. If
there is a decision in a civil proceeding, an appeal is the only appropriate
remedy. When the, High Court Judge acts collaterally to cause a breach of
fundamental right I am clear that an approach to this Court is open under Art.
The Supreme Court of America has not
hesitated to interfere with breaches of Civil Rights Acts on the part of the
courts in the States by treating the action of State courts and of judicial
officers in their official capacities as State action. (see Shelly v. Kraemer,
(1) Virginia v. Rives(2) and Hurd v. Hodge)(3). I think we should not hesitate
to extend our protection to the fundamental rights in our country even if they
be breached by the High Courts.
I may dispose of a few results which it was
suggested, might flow from my view that this Court can issue a high prerogative
writ to the High Court for enforcement of fundamental rights. It was suggested
that the High Courts might issue writs to this Court and to other High Courts
and one Judge or Bench in the High Court and the Supreme Court might issue a
writ to another Judge or Bench in the same Court. This is an erroneous
assumption. To begin with the High Courtís cannot issue a writ to the Supreme
Court because the writ goes down and not up. Similarly, a High Court cannot
issue a writ to another High Court. The writ does not go to a court placed on
an equal footing in the matter of jurisdiction. Where the county court
exercised the powers of the High Court, the writ was held to be wrongly issued
to it (see In re The New Par Consols, Limited.)(4) The following observations
of the Earl of Halsbury L.C. in Skinner v. the Northallerton County Court Judge
(5) represent my view:
"The absurdity of that is that the
statute itself has made the county court the High Court for this purpose. You
might just as well argue that a warrant defective in form, issued by the Court
of Queen's Bench could be set right by certiorari. Of course this is absurd.
This is the High Court for this purpose.......... If there was any irregularity
or inaccuracy in point of form in the warrant that did issue, that could be put
right by (1) 92 L. ed. 1161:334 U. S. 1.
(2) 25 L. ed. 667 at 669.
(3) 92 L. ed. 1187. (4)  I.Q.B. 669.
(5)  A.C. 439.
801 proper proceedings, but the proper
proceedings would be in that court itself, and not proceedings by certiorari'
in the Court of Queen's Bench." I must hold that this English practice of
not issuing writs in the same court is in the very nature of things. One High
Court will thus not be able to issue a writ to another High Court nor even to a
court exercising the powers of the High Court. In so far as this Court is
concerned, the argument that one Bench or one Judge might issue a writ to
another Bench or Judge, need hardly be considered. My opinion gives no support
to such a view and I hope I have said nothing to give countenance to it. These
are imaginary fears which have no reality either in law or in fact.
I am of opinion that if this Court is
satisfied that a fundamental right has been trampled upon it is not only its
duty to act to correct it but also its obligation to do so.
In the present case, I am satisfied that the
order passed by Mr. Justice Tarkunde was an erroneous and illegal order. I
cannot assume that it suppresses publication temporarily because Goda's
business was sought to be protected and Goda's business, it is to be presumed,
was expected to outlast the trial. A permanent suppression on publication would
certainly be without jurisdiction. Even assuming the order meant a temporary
suppression of the publication of Goda's testimony I am quite clear that the
learned Judge had no jurisdiction to pass such an order when the trial he was
holding was a public trial for the reason accepted by him.
That being so his order involved a breach of
the freedom of speech and expression guaranteed as a fundamental right and took
away from the press its liberty to report a case conducted in open court. I
would, accordingly, quash the order of Mr. Justice Tarkunde and declare that
Goda's testimony is capable of being reported in extenso in any newspaper in
Shah, J. Article 19(1) of the Constitution
declares certain personal freedoms in cls. (a) to (g) as guaranteed rights of
citizens, and cls. (2) to (6) define restrictions which may be lawfully imposed
by any existing or future law on those rights. Guarantee of personal freedoms
subject to restrictions which are or may be imposed is in terms absolute, but
since the rights are enforceable only against State action and not against
private action, infringement of the personal freedoms by non-State agencies
cannot be made a ground for relief under Art. 32. It is said however that the
Courts are State agencies and infringement of fundamental rights guaranteed by
Art. 19 by an order of a Court may found a petition under Art. 32 of the
Constitution. It is necessary therefore to appreciate the manner in which a
judicial determination which is alleged to infringe a fundamental right of a
citizen operates. In dealing with this question, I propose to restrict the
discussion only to.
802 determinations by Courts strictly
so-called-Courts which are invested with plenary power to determine civil
disputes, or to try offences. Quasi-judicial, or administrative tribunals, or
tribunal$ with limited authority are not within the scope of the discussion.
By Art. 32(2) this Court is invested with
jurisdiction to issue writs, directions or orders for the enforcement of
fundamental rights. Implicit in the claim for invoking this jurisdiction are
two components: that the claimant has the fundamental freedom which is
guaranteed by Part III of the Constitution, and that the freedom is directly
infringed by the agency against whose action the protection is given.
When it is claimed that an order made
pursuant to a judicial determination of a disputed question of law or fact
infringes a fundamental right under Art. 19, the claimant has to establish that
he has the right claimed, and that by the order made the Court has directly
infringed that right.
But the function of the Court is to determine
facts on which claim to relief is founded, to apply the law to the facts so
found, and to make an appropriate order concerning the rights, liabilities and
obligations of the parties in the light of the appropriate law. In granting
relief to a party claiming to be aggrieved or in punishing an offender, the
Court in substance declares that the party who claims that he is aggrieved has
or has not a certain right and that the right was or was not infringed by the
action of the other party, or that the offender by his action did or did not
violate a law which prohibited the action charged against him. Such a
determination by a Court therefore will not operate to infringe a fundamental
right under Art. 19. The Court may in the ascertainment of facts or application
of the law err: in the very mechanism of judicial determination that
possibility cannot be ruled out, but until the determination is set aside by
resort to the appropriate machinery set up in that behalf for rectification, a
party to a proceeding cannot ignore that determination and seek relief on the
footing that he has the right which has been negatived by the Court. Since the
first postulate, of a plea of infringement of a fundamental right under, Art.
19 is the existence of the right claimed and breach thereof by a State agency,
a plea cannot be set up in a petition under Art. 32 contrary to an adjudication
by a Court competent in that behalf.
Counsel for the petitioners conceded that
against a judicial determination of the rights, liabilities or obligations in a
proceeding and enforcement thereof according to law, a party thereto may not
maintain a petition under Art. 32 on the plea that by an erroneous judicial
determination a fundamental right of the petitioner under Art. 19 is infringed,
but they submitted that where the ,order of a Court dealing with a dispute inter
partes infringes the fundamental right under Art. 19 of a stranger to the
proceeding, the order may in appropriate cases be challenged in a petition
under Art. 32. In my view there is no warrant for the reservation stated 803 in
that form. A Court in adjudicating upon a dispute has power for arriving at an
effective and just decision to take all incidental steps for ensuring
regularity and decorum in the conduct of its proceedings, and such steps may
incidentally affect persons who are strangers to the litigation. The Court may
issue a warrant to compel attendance of witnesses, attach property in the hands
of strangers to the proceeding, correct mistakes in its proceedings even after
rights of third parties have come into existence, set aside Court proceedings
in contravention of its directions or procured by fraud, recall invalid orders
which cause injustice, take contempt proceedings against witnesses and others
who act in violation of the orders of the Court or otherwise obstruct
proceedings of the Court directly. or indirectly, and generally pass orders
which may be necessary in the ends of justice to prevent abuse of the process
of law. Jurisdiction to exercise those powers which may affect rights of
persons other than those who are parties to the litigation is either expressly
granted by statute or arises from the necessity to regulate the course of its
proceeding so as to make them an effective instrument for the administration of
justice. If, 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,.
Even when the rights under Art. 19 of a third
party are affected by an order made by a Court in a judicial proceeding, there
is in a sense a disputed question which is raised before it about the right of
that third person not to be dealt with in the manner in which the Court has
acted or proposes to act, and the Court proceeds upon determination of that
disputed question. Such a determination of the disputed question would be as
much exempt from the jurisdiction of this Court to grant relief against
infringement of a fundamental right under Art. 19, as a determination of the
disputed question between the parties on merits or on procedure. An order made
against a stranger in aid of administration of justice between contending
parties or for enforcement of its adjudication does not directly infringe any
fundamental right under Art. 19 of the person affected thereby, for it is
founded either expressly or by necessary implication upon the non-existence of
the right claimed and so long as the order stands, it cannot be made the
subjectmatter of a petition under Art. 32 of the Constitution.
It was then urged by counsel for the
petitioners that Tarkunde, J., had no jurisdiction to make the order
prohibiting publication of the evidence of the witness Bhaichand Goda, and on
that account 804 the order was liable to be challenged in a petition under Art.
32 of the Constitution. Indisputably when a Judge makes an order, not as a
Judge but in some other capacitybut as an authority of the State-it may be open
to challenge by a petition under Art. 32. But an order made by a Court in the
course of a proceeding which it has jurisdiction to entertain-whether the order
relates to the substance of the dispute between the parties or to the procedure
or to the rights of other person, it is not without jurisdiction, merely
because it is erroneous.
The Code of Civil Procedure contains no
express provisions authorising a Court to hold its proceedings in camera : but
the Court has inherent jurisdiction to pass an order excluding the public when
the nature of the case necessitates such a course to be adopted. Hearing of
proceedings in open Court undoubtedly tends to ensure untainted. administration
of justice and departure from that course may be permitted in exceptional
circumstances, when the Court is either by statutory injunction compelled, or
is in the exercise of its discretion satisfied, that unless the public are
excluded from the courtroom, interests of justice may suffer irreparably. An
order, for hearing of a trial 'in camera is only intended to prevent excessive
publication of the proceedings of the Court, if such excessive publication may,
it is apprehended, cause grave harm either to the public interest or to the
interests of the parties or witnesses, which cannot be offset by the interest
which it is the object of a trial in open Court to serve. Hearing in open Court
of causes is of the utmost importance for maintaining confidence of the public
in the impartial administration of justice : it operates as a wholesome check
upon judicial behaviour as well as upon the conduct of the.
contending parties and their witnesses. But
hearing of a cause in public which is only to secure administration of justice
untainted must yield to the paramount object of administration of justice. If
excessive publicity itself operates as an. instrument of injustice, the Court
may not be slow, if it is satisfied that it is necessary so to do to put such
restraint upon publicity as is necessary to secure the Court's primary object.
Trial in closed session is generally ,ordered to prevent publicity which is
likely to deter parties or their witnesses from giving evidence, on account of
the nature of the evidence such as intimate details of sexual behaviour,
matters relating to minors and lunatics, matters publication of which may harm
the interests of the State or the public at large, for instance, disclosure of
official secrets, or matters which lead to publication of secret processes,
publication of which would destroy the very basis of the claim for relief etc.
In these cases the Court may hold a trial in closed session and wholly exclude
the public throughout the trial or a part thereof. Circumstances may also
justify imposition of a partial ban on publicity in the interests of justice
and the Court may instead of holding a trial in camera 805 and thereby
excluding all members of the public who are not directly concerned with the
trial, restrain publication of the evidence'. Such an order may, having regard
to the nature of the dispute and evidence given, be within the jurisdiction of
the Court. Whether in a particular case, an order holding a trial after
excluding the public or preventing publication of evidence should be made will
depend upon the discretion of the Court, which must of necessity be exercised
sparingly and with great circumspection and only in cases where the Court is
satisfied that prevention of excessive publication is the only course by resort
to which justice may effectively be administered in the case. Exercise of that
discretion is always subject to rectification by a superior Court. I may
'hasten to add that I express no opinion on the question whether Tarkunde J.,
was right in making the order that he did. I am only endeavouring to emphasize
that he had, in appropriate cases where he was satisfied that justice of the
case demanded such a course, jurisdiction to make an order preventing
publication in newspapers of the evidence.
Whether Tarkunde, J., erred in making the
impugned order is a question apart, and does not fall to be determined in these
I am unable however to agree that in the
matter of exercise of powers of this Court to issue writs against orders of
Courts which are alleged to infringe a fundamental right under Art. 19, any
distinction between the High Court and subordinate Courts may be made. In my
view orders made by subordinate courts, such as the District Court or Courts of
Subordinate Judges which are Courts of trial and Courts of plenary jurisdiction
are as much exempt from challenge in enforcement of an alleged fundamental
right under Art. 19 by a petition under Art. 32 of the Constitution as the
orders of the High Courts are. The argument that a writ of certiorari is an
appropriate writ for correcting errors committed by an "inferior"
authority or tribunal exercising judicial power, and that the High Court is not
an "inferior Court" cannot in my judgment prevail. No adequate test
of inferior status which would support a valid distinction between the High
Court and other Courts or Tribunals would stand scrutiny. If the investment of
appellate power in this Court is a valid test, all Courts and Tribunals (except
the Courts and Tribunals constituted by and under the law relating to the Armed
Forces or the Forces charged with the maintenance of public order within the
territory of India) are inferior to this Court, and if the grounds which I have
set out in some detail earlier for holding that a petition does not lie to this
Court under Art. 32 against an alleged infringement of rights by an
adjudication of a Court or by an order of a Court against a stranger to the
proceeding, such order being made in aid of determination of the dispute
between the parties before the Court, be not true, the order of the High Court
would be as much subject to jurisdiction 806 of this Court under Art, 32 as an
adjudication of any other subordinate Court such as the District Court or the
Subordinate Judge Courts. If the test of inferiority is to be found in the
investment of supervisory jurisdiction, this Court is not invested with that
jurisdiction over any Court, be it the High Court, or the District Court or the
Subordinate Judge's Court. It is unnecessary to enter upon a discussion about
the procedural law in the United Kingdom relating to the issue of writs of
certiorari in considering whether jurisdiction under Art. 32 of the
Constitution may be exercised. This Court is competent to issue an appropriate
writ including a writ in the nature of a writ of certiorari. If it be granted
that the fundamental right under Art. 19 may be infringed by an adjudication of
a Court-civil or criminal-because the Court had come to an erroneous
conclusion, I see no ground for making a distinction between adjudications of
the High Court which is a superior Court of Record and of Courts which are
subject to the appellate jurisdiction of the High Court. It is true that the
High Courts are invested with the power under Art.
226 of the Constitution to issue writs in
enforcement of fundamental rights. The power to issue a writ in respect of the
territory over which the High Court has jurisdiction in enforcement of
fundamental rights is co-extensive with the power which this Court possesses.
But if this Court possesses authority to issue a writ in respect of an adjudication
by a Court, the circumstance, that the High Court has also power to issue a
writ of certiorari which may be issued by this Court in enforcement of a
fundamental right whereas the subordinate Courts have not, will not warrant the
distinction sought to be made on behalf of the respondents. I am therefore
unable to agree that in the matter of issue of a writ of certiorari against the
order of any Court, a distinction may be made between the order of the District
Court or the Subordinate Court and an order of the High Court.
The argument that the inherent power of this
Court which may have existed prior to the Constitution must still be tested in
the light of Art. 19(2) of the Constitution does not require any serious
consideration. If a plea of infringement of a fundamental right under Art. 19
against infringement by a judicial determination may not be set up, in petition
under Art. 32, it would not be necessary to consider whether on the footing
that such a right is infringed by a judicial determination of the rights of the
parties or an order made in aid of determination that the law which confers
such inherent power of the Courts is within Art. 19(2). The function of Art.
19(2) is to save laws-existing laws or laws to be made by the State in
future-which otherwise infringe the rights under Art. 19.
Where the action is such that by its very
nature it cannot infringe the rights in Art. 19(1) of the Constitution, an
investigation whether the law which authorises the action falls within cl.(2)
of Art. 19 may not be called for.
It was urged that the-view which I have
expressed may involve serious repercussions on the enforcement of fundamental
rights guaranteed by Arts. 20, 21 and 22 (1) of the Constitution. Whether
orders made by the Courts may violate the guarantees under Arts.. 20, 21 &
22(1) and on that account be subject to the jurisdiction under Art. 32 does not
fall to be determined in this case. The Attorney General appearing on behalf of
the State of Maharashtra contended that the freedoms guaranteed by Arts. 20, 21
& 22 are only in respect of laws made which seek prejudicially to affect
persons in the manner indicated in those Articles.
It was urged by counsel on behalf of the
petitioner that these Articles grant protection not only against legislative
and executive action but also against orders made by Courts.
I refrain from expressing any opinion on this
question. The area of fundamental freedoms guaranteed or declared by the
various Articles of the Constitution must be determined in the light of the
nature of the right conferred thereby, and the extent of protection granted,
the agency against the action of which they are protected and the relief which
may be claimed against infringement of those rights. Considerations which may
be material or relevant in considering the nature of the right conferred or
guaranteed by one Article cannot be projected into considerations which may be
material or relevant in dealing with the infringement of a fundamental right
guaranteed by another Article. Article 19 and Arts. 20, 21 & 22 are
differently worded. Article 19 in terms protects certain personal freedoms of
citizens only against invasion by the State otherwise than by law existing 'or
to be made in future and falling strictly within the limits prescribed by cls.
(2) to (6): Arts. 20, 21 & 22(1) impose directly restrictions upon the
power of authorities.
Declaration of rights in favour of citizens
as well as noncitizens under Arts. 20, 21 & 22(1) arises by implication of
the prohibition against action of the authorities concerned to deal with them,
and it would not be permissible to equate the guaranteed rights declared by
implication in all respects with the specific personal freedoms enumerated in
Art. 19. It is somewhat striking that the Personal freedoms in Art. 19 are
subject to reasonable restrictions which may be imposed by law, but the
prohibitions in Arts. 20, 21 & 22 are absolute in terms. By enunciating the
personal freedoms, under Art. 19(1) and setting up machinery for imposition of
reasonable restrictions thereon, balance is sought to be maintained between the
enforcement of specific rights of the citizens and the larger interest of the
public. The freedoms declared by the implication of Arts.
20, 21 & 22 are on the other hand not
liable to be tested on the touchstone of reasonableness. Our
Constitution-makers thought that certain minimum safeguards in proceedings criminal
808 and quasi-criminal-Cannot in the larger interests of the public be
permitted to be whittled down under any circumstances and on that account made
the protection of Arts. 20, 21 & 22(1) absolute. The form in which the
rights under Arts. 20, 21 & 22(1) are guaranteed and the absolute character
of the injunctions against the authorities clearly emphasize the distinct and
special character of those rights. I do not find it necessary in this case to
record my opinion on the question whether action taken by a Court which is
prohibited under Arts. 20, 21 & 22 may form the subject-matter of a
petition under Art. 32 of the Constitution.
The petitions therefore fail and are
Bachawat, J. Counsel for the petitioners
submitted that the High Court had no power to affect the right of the
petitioners to publish reports of the deposition of Bhaichand Goda by an order
passed in a proceeding to which they were not parties, and if there is a law
which confers this power, such a law is repugnant to Art. 19 (1)(a) of the
Constitution. I do not accept either of these contentions.
In agreement with the learned Chief Justice,
I hold that the High Court in the exercise of its inherent powers can, in
exceptional cases, pass an order restraining the publication of any matter in
relation to any proceeding pending before it. The inherent powers of the Court
are preserved by s. 151 of the Code of Civil. Procedure.
If a stranger to the proceeding feels
aggrieved by the order, he may take appropriate steps for setting it aside, but
while it lasts, it must be obeyed. Take a case where a Court appoints a
receiver over a property in a suit concerning it. If a stranger interested in
the property is prejudiced by the order, his proper course is to apply to the
Court to enforce his right, and the Court will then examine his claim and give
him the relief to which he may be entitled. Similarly, if a stranger is
prejudiced by an order forbidding the publication of the report of any
proceeding, his proper course is to apply to the Court to lift the ban. But
while the order remains in force, he must obey it. Wilful disobedience of the
order is punishable as a contempt of Court, and it is not a defence that he was
not a party to the proceeding in which the order was passed.
The law empowering the high court to restrain
the publication The law empowering the High Court to restrain the public of the
report of its proceedings does not infringe Art. 19 (1) (a). If a law is
attacked on the ground that it is repugnant to Art. 19 (1) (a), its true
nature, object and effect should be closely examined. If the law directly
abridges the freedom of speech, it is repugnant to Art. 19 (1) (a) and must be
struck down. On the other band, if it affects the freedom of speech only
incidentally and indirectly, it does not infringe Art. 19 (1) (a). This test
was 809 first laid down by Kania, C. J. in A. K. Gopalan v. State of Madras(1)
and has been subsequently adopted in numerous decisions of this Court. See Ram
Singh v. State of Delhi(2) Express Newspapers (Private) Ltd. v. The Union of
India(3), Hamdard Dawakhana Wakf v. Union of India(4). Many laws incidentally
encroach on the freedom of speech, but, judged by the test of the directness of
the legislation, they do not infringe Art. 19 (1) (a). Section 54 of the Indian
Specific Relief Act, 1877, empowers the Court to grant a perpetual injunction
to prevent the breach of an obligation, and illustrations (h), (i), (v), (y)
and (z) to the section show that the Court may restrain the publication of
documents and information in breach of the fiduciary obligations of a legal or
medical adviser, or an employee, the piracy of a copyright and other
publications infringing the proprietary rights of the owner. Order 39, r. 1 of
the Code of Civil Procedure, 1908, empowers the Court to grant a temporary
injunction restraining the defendant from publishing documents in breach of his
obligation under a contract or otherwise during the pendency of a suit for
restraining the breach. Section 22 of the Hindu Marriage Act, 1955, makes it
unlawful for any person to print or publish any matter in relation to any
proceeding, under the Act conducted in camera without the previous permission
of the Court. Under the rule of practice prevailing in the Bombay High Court,
it is not permissible to print or publish in the press a report of any
proceeding heard in chambers without the leave of the Judge, see Purushottam
Hur wan v. Navnitlal Hurgovandas.(5) so also, the law relating to the inherent
powers of the Court preserved by s. 151 of the Code of Civil Procedure enables
the Court in the ends of justice to pass orders restraining the publication of
the report of its proceeding during the pendency of the litigation. fudged by
the test of the directness of the legislation, none of these laws infringes
Art. 19 (1) (a). Instances may be multiplied. The law relating to discovery and
interrogatories, the law which punishes a witness for giving false evidence,
the law which compels the assessee to furnish a true return of his income and
forbids the disclosure of the statements in the return are all outside the
purview of Art. 19 (1) (a).
It follows that the impugned order was passed
by a Court of competent jurisdiction under a valid law. Whether the High Court
should have passed the order is another question.
The propriety of the order cannot be
challenged in a writ application under Art. 32. Until the order is set aside in
appropriate proceedings, it conclusively negatives the right of the petitioners
to publish reports of the deposition of Bhaichand Goda. The petitioners cannot,
therefore, complain that their fundamental right under Art. 19 (1) (a) has been
(1)  S.C.R. 88, 101. (2)  S.C.R.
(3)  S.C.R. 12,129-133.(4)  2
S.C.R. 671, 690691, (5)  I.L.R. 50 Bom. 275.
C.1./66-6 810 The High Court was competent to
pass the impugned orders, but assuming that it exceeded its jurisdiction, the
order does not infringe Art. 19 (1) (a). The High Court has jurisdiction to
decide if it has jurisdiction to restrain the publication of any document or
information relating to the trial of a pending suit or concerning which the
suit is brought. If it erroneously assumes on this matter, a jurisdiction not
vested in it by law, its decision may be set aside in appropriate proceedings,
but the decision is not open to attack on the ground that it infringes the
fundamental right under Art. 19 (1) (a).
I must not be taken to say that I approve of
the impugned order. A Court of justice is a public forum. It is through
publicity that the citizens are convinced that the Court renders evenhanded
justice, and it is, therefore, necessary that the trial should be open to the
public and there should be no restraint on the publication of the report of the
Court proceedings. The publicity generates public confidence in the
administration of justice. In rare and exceptional cases only, the Court may
hold the trial behind closed doors, or may forbid the publication of the report
of its proceedings during the pendency of the litigation.
Long ago, Plato observed in his Laws that the
citizen should attend and listen attentively to the trials. Hegel in his
Philosophy of Right maintained that judicial proceedings must be public, since
the aim of the Court is justice, which is a universal belonging to all. The
ancient idea found its echo in the celebrated case of Scott v. Scott(1). Save
in exceptional cases, the proceedings of a Court of justice should be open to
The petitions are not maintainable, and are
ORDER In accordance with the opinion of the
majority these Writ Petitions are dismissed. No order as to costs.