State the contents of judgment?
5TH AUGUST, 2012
(CIVIL & CRIMINAL)
1. 2. State
the contents of judgment?
Answer:
INTRODUCTION
Fundamental rights are
only available against the State. So the need to expand the definition of State
under Article 12 is necessary. The word „State‟ under Article 12 as to be
interpreted as per the changing times and which ensures that Part-III be
applied to a larger extent. Article 12 defines the term “State” as used in
different Articles of Part III of the Constitution. It says that unless the
context otherwise requires the term “State” includes the following:-
Judiciary is the
prominent organ of the State. Legislature frames the law and executor organ
implements them and enjoys vast power of delegated legislat
ion as well. One of the
most important functions of Judiciary is to check invasion of fundamental right
by these two organs and their instrumentality. The definition of State under
Article 12 of the Constitution does not explicitly mention the Judiciary.
Hence, a significant amount of controversy surrounds its status vis-a-vis Part
III of the Constitution.
DEFINITION UNDER ARTICLE 12: INCLUSIVE IN
NATURE BUT NOT EXHAUSTIVE
Some take up the stand
that since judiciary has not been specifically mentioned in Article 12, it is
not State. To begin with we have the definition of 'State' in Article 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 nature of the
definition in Article 12 is expressly inclusive but not exhaustive.
CONSIDERING ARTICLE 13:
STATE INCLDUES JUDICIARY
The reason is made
obvious at once, if we consider Article 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. 2 In the Constituent
Assembly, concerns regarding the textual ambiguities in Article 12, and in
particular, the meaning of the phrase „other authorities‟ were raised. It was
suggested that leaving judicial bodies out of the purview of Article 12 may
lead to the conclusion that “even a Magistrate… might pass an order, or make a
notification abridging the rights that are conferred under sub-clause (a) of
clause (1) of Article 13.” 3
JUDICIARY PERFORMS THE
ROLE OF THE STATE: RULE MAKING POWER AND OTHER NON-JUDICIAL FUNCTIONS
Although there is no
specific mention of judiciary in Article 12, the Supreme Court has the power to
make rules (to regulate practice & procedure of courts), appoint its staff
and decide its service conditions (as mentioned in Articles 145 and 146 of the
Indian Constitution). Hence, it performs the role of a State. To understand the
expanded meaning of the term "other authorities" in Article 12, it is
necessary to trace the origin and scope of Article 12 in the Indian
Constitution. Present Article 12 was introduced in the Draft Constitution as
Article 7. While initiating a debate on this Article in the Draft Constitution
in the Constituent Assembly, Dr. Ambedkar described the scope of this Article
and the reasons why this Article was placed in the Chapter on fundamental
rights as follows :-
POSSIBILITY OF
VIOLATING THE FUNDAMENTAL RIGHTS BY THE JUDICIARY AND THE NEED TO BRING WITHIN
THE AMBIT OF ARTICLE 12
Judiciary is the organ
of the State that decides the contours of the Fundamental Rights. Their determination,
of whether an act violates the same, can be right or wrong. If it is right then
the Citizen‟s right is safeguard and what happens if it is wrong? Does this not
affect the fundamental rights of the citizen?. In the changing time, it is not
wrong to say that the Judiciary is capable of acting in contravention of
Fundamental Rights. So, the argument is that the judiciary should be brought
under the ambit of State. This would clear the way to hold judges in their
judicial capacity to be held accountable for violation of the Fundamental
Rights. The FR can be violated only by the State. In the light of this fact,
two decided case laws can explain and describe the status of court, thus
leading to above inference. In the decided case of Naresh v State of Maharashtra,
5 it has been held that even if a Court is a State (under Article 12) the High
Court cannot be issued a writ under Article 32 against its judgment for it is
presumed that such a judgment won't violate FR.
“In our opinion, we are
not debarred from re-opening this question and giving proper directions and
correcting the error in the present appeal, when the said directions on 16th
February, 1984, were violative of the limits of jurisdiction and the directions
have resulted in deprivation of the fundamental rights of the appellant,
guaranteed by Articles 14 and 21 of the Constitution.”
JUDICIAL ORDERS ARE NOT
SUBJECT TO SCRUTINY ON PART III GROUNDS: VIOLATING THE CONSTITUTIONAL REMEDY
The Constitution bench
of the Supreme in Ashok Rupa Hurra9 felt no hesitation in concluding with
little reasoning that “superior courts of justice do not also fall within the
ambit of State or other authorities under Article 12 of the Constitution.” If
this is correct, it must follow that the judiciary is incapable of violating
Part III rights. Challenging a judicial decision which has achieved finality,
under the writ jurisdiction of superior courts on the basis of violation of
fundamental rights is a constitutional remedy. If the fundamental rights of a
person are being violated by any decision of the Supreme court then he has the
right to file a case under article 32 of the Constitution. If the citizen wins,
then the Supreme court is mandated to revert its decision regarding the
individual.
PART III IS MADE
NUGATORY IF JUDICIARY IS NOT INCLUDED WITHIN STATE
Finally, it appears
that many provisions in Part III are, at least in part, directed at judicial
bodies. A good example is the power of the Supreme Court under Article 32 to
issue the writ of certiorari. Since that power can only be exercised against
judicial or quasi-judicial bodies, the view that judicial orders fall outside
the purview of Part III renders it nugatory17 . Another set of similar examples
may be found in the rights guaranteed by Article 20 of the Constitution.
Consider for instance, the right not to be “convicted of any offence except for
violation of a law in force at the time of the commission.” Since conviction
cannot but be by a judicial authority, it is clear that the addressee of the
right under Article 20(1) is the judiciary.
JUDICIARY AS STATE IN
UNITED STATES
The decision of the
U.S. Supreme Court in Commonwealth of Virginia v. Rives18 is often cited to
show that a judicial decision is included within the scope of State action for
the purposes of the 14th Amendment to the Constitution. It has been held in
Brinkerhoff-Fairs Trust & Savings Co. v. Hill19 that a decision that
deprives a person of his/her existing remedy without offering him/her an
opportunity to be heard would be violative of the “Dude Process” clause. From
the substantive point of view, it has been held that a common law inconsistent
with a fundamental right, if enforced, would result in the Supreme Court
issuing a certiorari to the authority. Hence judicial officers cannot discriminate
in their judicial capacity, wither in enforcing common law or even private
agreement. Through the agency of the courts, the State should not be guilty of
discrimination; this does not necessarily entail that decisions would remain
uniform or free from error. As was held in Fay v. People of the State of New
York20, a conviction could be quashed if the aggrieved party can prove that the
method of their trial denied them the equal protection of the laws.
NCRWC RECOMMENDATIONS
The National Commission to Review the Working
of the Constitution (NCRWC) has put forward the recommendation that an
Explanation should be added to Article 12 wherein it would be mentioned that
the expression “other authorities” shall include any person in relation to such
of its functions which are of a public nature”. Since the raison d‟ etre for ht
establishment of Courts was to decide and interpret the law- a function that
clearly relates to the public sphere- the Judiciary and its officers would fall
within the scope of “other authorities” as defined in Article 12.
CONCLUSION
In the light of these
reasons, it is submitted that the mere fact that “judiciary” does not find
express mention in Article 12 should not lead one to the contrary conclusion. A
perusal of cases from Prem Chand Garg22 to Rupa Ashok Hurra23 show that the
trend is mostly titled in favour of rectifying mistakes that it had made, under
a writ petition under Article 32, even if it is after issuing a categorical
statement to the effect that judicial decisions which have achieved finality
are not open to question. Hence, it can be inferred that since it has been
recognized that judicial orders may contravene fundamental rights, the
Judiciary too comes implicitly within the meaning of State under Article 12. It
is also widely accepted that certain fundamental rights have been held to be
applicable in the case of Judiciary as well. It is therefore eminently
desirable to bring the Judiciary, itself a creature of the Constitution, under
the purview of Part III, so that the highest of constitutional ideals are
realized.
0 Comments: