(We all know the old chestnut – the Supreme Court is not final because it is right, but it is right because it is final. But if it is the Constitution that is truly the supreme law of the land, then is it possible for a Supreme Court decision to be unconstitutional? More specifically, if the Supreme Court is part of the “State”, one of the three wings of government under classic separation of powers doctrine – and there seems to be no prima facie reason in political philosophy against that proposition – then surely it too, under the terms of Article 13, is subject to Part III and the Bill of Rights? But is a Supreme Court decision “law” within the meaning of Article 13? And if that is so, where lies the remedy? If it is to the Court, then we raise the specter of infinite regress – each Supreme Court judgment appealed again on the ground that it violates someone’s fundamental rights. This is a veritable minefield of thorny issues of constitutional principle and policy. In this series of guest posts, Krishnaprasad K.V., M.Phil candidate at the University of Oxford, examines this fascinating and under-explored area)
Much has been said, on this blog and elsewhere, about the Indian Supreme Court’s decision in Naz v Koushal. Some thought has also been given to the larger implications of that decision, notably, from the point of view of separation of powers and the meaning of ‘equality’. My point of departure however, is a question posed by Arghya Sengupta in his insightful piece in The Hindu:
“It is imperative that the Court is taken to task, not only for this decision, but for all its other decisions whose results we might agree with as citizens, but whose reasoning is inexplicable at best and absurd at worst… the Court has made a judgment that is value-laden and based on a particular worldview that many disagree with… If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges?” (emphasis mine)
I will argue that at least one set of standards to which judges must be held accountable, are those found within Part III of the Constitution. In practical terms, (without going into the (in)correctness of Naz v Koushal) this means that the Supreme Court in Naz may have infringed the “so-called [fundamental] rights” of what the Court deemed “a miniscule fraction of the country’s population.”
This result is however, seemingly precluded by precedent; so much so that a Constitution bench of the Supreme in Ashok Rupa Hurra felt no hesitation in concluding with little reasoning that “superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.” If this is correct, it must follow that the judiciary is incapable of violating Part III rights.
In Part I, I will demonstrate that, contrary to the assumption in Ashok Rupa Hurra, precedents are far from conclusive on this point. Part II will then ask what the answer must be on principle.
Almost consistently, courts have dismissed petitions that attempt to impugn judicial orders under Art. 32. Prima facie, this must mean that judicial orders are not subject to scrutiny on Part III grounds. One of the earliest illustrations is the decision of a seven-judge bench of the Supreme Court in Ujjam Bai v State of Uttar Pradesh. There, a quasi-judicial determination of tax liability by a Sales tax officer was challenged under Art. 32. The court held that a petition of this nature was not maintainable unless:
(a) the action is under an ultra vires statute or;
(b) the action taken is without jurisdiction; or
(c) where the action is procedurally ultra vires.
A nine-judge bench in N. S. Mirajkar v State of Maharashtra followed this decision. A petition under Art. 32 challenging a gag order passed by Mr. Justice Tarkunde of the Bombay High Court was held to be not maintainable in that case. This trend is also evidenced by Triveniben v State of Gujarat. Dismissing a petition under Art. 32, the Court there opined that “it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner.” It is unnecessary to duplicate other instances here, but further affirmation of this view may be found in Krishna Swami v Union of India, Mohd. Aslam v Union of India, Khoday Distilleries Ltd. v Registrar General, Supreme Court of India, and P. Ashokan v Union of India. All of these were attempts to challenge judicial orders by way of petitions under Art. 32.
A. R. Antulay v R. S. Nayak appears as a lone instance taking the contrary view. The question there was whether directions issued by the High Court singling out the petitioner’s prosecution for speedier trial violated his Art. 14 and Art. 21 rights. Seemingly departing the trend evidenced above, the Court held:
“In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution.” (emphasis mine)
However, at least three other Constitution benches of the Supreme Court (here, here and here) have taken the view that Antulay must be “confined to the peculiar circumstances of that case.” It is hard to see this as anything other than a euphemism for ‘Antulay was incorrectly decided’.
This consistent judicial stance is however, almost entirely thrown into reverse by cases that consider the judiciary’s role in advancing the goals set out in Part IV. Mathew J.’s decision in Kesavananda Bharati is an excellent example. There, “it seemed clear” to Mathew J. that “judicial process is also State action.” Later, in State of Kerala v N. M. Thomas, the majority held that Part IV goals must “inform and illuminate” the Court’s interpretational task. Notably, even this conclusion was pegged on view that courts are “State” under Art. 12:
“Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court when it makes a decision as the Court also is ‘state’ within the meaning of Article 12 and makes law even though interstitially from the molar to the molecular.” (emphasis mine)
A relatively recent Constitution bench decision of the Supreme Court in Harjinder Singh v Punjab Warehousing Corporation goes one step further. There, the “authoritative pronouncements” in N. M. Thomas and Kesavananda Bharati led the court to conclude that courts are “State.” The Court cited with approval Hidayatullah J’s minority judgment in N. S. Mirajkar making no mention whatever of the majority’s view in that case. High Courts (here and in On The Death of Tilckansa Phukan his heirs and Legal representatives v Lalit Chandra Borbakuah, (1985) 2 GLR 376, for example) have followed suit.
In sum, the near-consistent judicial stand (for an exception, see Budhan Chowdhury v State of Bihar) has been as follows – judiciary assumes the role of “State” in advancing Part IV goals; judicial orders are however, not subject to challenge on Part III grounds. Put differently, judiciary is “State” for Part IV purposes, but not so under Part III. With respect, it is unnecessary to engage in long-drawn-out legal reasoning to establish that this distinction is unsustainable. Even a cursory reading of Art. 36 should suffice:
“In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.”
Interestingly, Mathew J.’s judgment in Kesavananda Bharati, which formed the basis of much of the later jurisprudence recognising the court’s obligations under Part IV, admits this conclusion. Mathew J. held, “the definition of the word ‘State’ both for the purpose of Part III and Part IV is the same.”
It is difficult to escape the conclusion that in this area of the law, it is the concern about practical consequences rather than principle that has dictated legal results. The unanimous judicial view suggests that under Part IV, courts assume similar obligations as other organs of the “State”. However, the Supreme Court has stopped short of taking this result to its logical conclusion – that judicial orders are also subject to Part III scrutiny. One of the concerns that may have motivated this double standard is the fear that the contrary view may open the floodgates to Art. 32 petitions. Is this fear legitimate? In any case, are there sufficiently strong reasons of principle that dictate a contrary result? Part II will consider these questions.