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Practice and Procedur-Inherent jurisdiction of High Court- Power 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 order. . 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, [1913] 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 [1913] 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 wellrecognised 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 referred to. (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, [1950] S.C.R. 88, 101, Ram Singh v. State, [1951] 1 S.C.R. 451 and The Parbhani Transport Cooperative Society Ltd. v. The RTA Aurangabad, [1960] 3 S.C.R. 177, followed. Budhan Chowdhry v. State of Bihar, [1955] 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. [1963] 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, [1960] 3 S.C.R. and A. K. Gopalan v. State, [1950] 1 S.C.R. 88, followed. Budhan Chowdhry v. The State, [1955] 1 S.C.R. 1045, explained. 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 instrument- for 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, [1950] S.C.R. 88 and Ram Singh v. State, [1951] 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, [1963] 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, [1963] 1 S.C.R. 778, referred to. Prem Chand Garg v. Excise Commissioner, U.P. [1963] 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 worded. Art. 19 protects personal freedoms of citizens against state action except where the ‘action falls within the exceptions. 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 Courts 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 Courts 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] =1967 AIR 1, 1966( 3 )SCR 744, , ,

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PETITIONER:


NARESH SHRIDHAR MIRAJKAR AND ORS.

Vs.

RESPONDENT:
STATE OF MAHARASHTRA AND ANR.

DATE OF JUDGMENT:
03/03/1966

BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
SARKAR, A.K.
WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
MUDHOLKAR, J.R.
SIKRI, S.M.
BACHAWAT, R.S.
RAMASWAMI, V.

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 SC2176 (38)
ACT:
Practice and Procedur-Inherent jurisdiction of High Court
Power 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.

HEADNOTE:
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 order. .
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, [1913] 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 [1913] 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 wellrecognised
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 referred to.
(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, [1950] S.C.R. 88, 101, Ram
Singh v. State, [1951] 1 S.C.R. 451 and The Parbhani
Transport Cooperative Society Ltd. v. The RTA Aurangabad,
[1960] 3 S.C.R. 177, followed.
Budhan Chowdhry v. State of Bihar, [1955] 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. [1963] 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, [1960] 3 S.C.R. and A. K. Gopalan v. State,
[1950] 1 S.C.R. 88, followed.
Budhan Chowdhry v. The State, [1955] 1 S.C.R. 1045,
explained.
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 instrument- for 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, [1950] S.C.R. 88 and Ram
Singh v. State, [1951] 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, [1963] 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, [1963] 1 S.C.R. 778, referred to.
Prem Chand Garg v. Excise Commissioner, U.P. [1963] 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 worded.
Art. 19 protects personal freedoms of citizens against state
action except where the ‘action falls within the exceptions.
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 Courts 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 Courts 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]

JUDGMENT:
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 1965).
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, MUDHOL- KAR,
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 Judge.
Accordingly, Mr. Goda came to be cross-examined by Mr.
Karanjia’s counsel.
Later, during the course of further proceedings, it was dis-
covered 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
crossexamined. 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 Cons-
titution.
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 under Art.
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 vali-
dity 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 un-
touchability 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 cer-
tain 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 the-
Legislature 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 consider is:
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) [1962] 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 court.
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) [1911] 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 commit-
ted 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) [1911] 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)[1911] 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 whole truth.
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 camera.
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) [1911] All. E. R. pp. 8-9.
(2) (1912-13) 29 T.L.R. 658.
(3)[1958] 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 AttorneyGeneral 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 Art.
19(1).
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 in-
cidentally 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 administra-
tion 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) [1950] S.C.R. 88, 101.
(2) [1951] S.C.R.451, 456.
(3) [1959] S.C.R. 12,129,130.
(4) [1961] 1 S.C.R. 809,864.
(5)[1955] 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 an- appeal
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) [1955]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 Frank-
furter, 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 by- the 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 at all.
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) [1955] 1 S.C.R. 1045
(3) [1960]3 S.C.R. 177.
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 O-
XXXV 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 fundamen-
tal 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) [1963] 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 Constitution.
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 juris-
diction 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) [1963] Supp. I S.C.R. 885.
(2) [1955] 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 Courts 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) [1963] 1 S.C.R. 778.
(2) [1966] 1 S.C.R. 64.
(3) [1962] 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) [1963] 1 S.C.R. 778.
(2) [1962] 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 juris-
diction, 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 inter-partes, as it affects the
fundamental rights
(1) [1962] 1 S.C.R. 574.
(2) [1965] 1 S.C.R. 413 AT p. 499.
(3) Halsbury’s Laws of England, Vo 1. 9, p.249.
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 inter-
partes 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 inter-
partes 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.
32.
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) [1945] 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 sub-
cl. (a) of cl. (1) of Art. 19 of the Constitution, I think
these petitions should fail.
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) [1963]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) [1963] 1 S.C.R. 778.
(2) [1913] 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 secret.
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 camera.
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) [1963] 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) [1950] S.C.R. 88.
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
personaffected by its order, is. Courts often have to
pass orders whichaffect 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 con-
templated 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) [1953] 1 S.C.R. 778.
(2) [1955]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 Art. 14.
The other case is that of Prem Chand Garg v. Excise Commis-
sioner 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 technicali-
ties 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 that law:
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)[1963] 1 S.C.R. 778.
(2) [1955] 1 S.C.R. 1045.
(3)11969] 3 S.C.R. 177.
(4) [1963] Supp. 1 S.C.R. 885.
(5)[1955] 1 S.C.R. 250.
(6) [1948] 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 prescribed.
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 appealability. The Supreme Court has
no supervisory jurisdiction over any court though it has
power to issue the writ, nor have the High Courts 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 supervise.
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 petitions.
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 these:
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 English practice.
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 quasi-
paternal 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 its purpose.
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. [1936] A.C. 177.
(2) L. R. [1913] A.C. 417 at 436.
(3) [1903] 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 there
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. 605.
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) [1913] 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 second-
hand 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 pro-
vided 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
added).
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) [1889]14 A.C. 194.
789
tion that a witness can 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 pre-
varications. 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 be sustained.
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) [1963] 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 Constitution.
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 any one
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 warranto ,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) [1962] 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 certain
writs.
(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
Courts 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-
[1889] 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
administrative, acts.
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) [1901] 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 inferrior 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) [1948] 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 Courts? 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 included.
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 Art.
32(3) might not be an adequate provision to provide for
investing the High Courts 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 Courts 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 Courts 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 Court.
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 ceriortari, 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 Courts 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. 226.
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. 32.
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 Courts 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) [1898] I.Q.B. 669.
(5) [1899] 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 India.
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 juris-
diction 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 subject-
matter 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 capacity-
but 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 writ petitions.
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 ad-
judication 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
investiga-
807
tion 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. Considera-
tions 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 non-
citizens 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 dismissed.
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 infringed.
(1) [1950] S.C.R. 88, 101. (2) [1951] S.C.R. 451.
(3) [1959] S.C.R. 12,129-133.(4) [1960] 2 S.C.R. 671, 690-
691,
(5) [1925] 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 public.
The petitions are not maintainable, and are dismissed.
ORDER
In accordance with the opinion of the majority these Writ
Petitions are dismissed. No order as to costs.
(1) [1913] A.C. 417,
811

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