[This is the second – and concluding – guest post by Krishnaprasad K.V., an M.Phil candidate at the University of Oxford, and formerly of NLSIU Bangalore (2012)]
Part I in this series of posts attempted to survey the precedent. The crux of the argument there was this – contrary to the assertion of a Constitution bench of the Supreme Court in Ashok Rupa Hurra, the proposition that judicial orders may be subject to Part III scrutiny is not foreclosed by precedent. I will make two further points here. First, there are strong reasons in principle for concluding that judicial orders must indeed be scrutinised on the basis of Part III standards. Second, the seemingly worrying consequences of this proposition (some of which were highlighted by responses to the previous post) are capable of resolution through other means. I will consider each of these in turn.
There are at least three reasons in principle that, in my view, dictate the conclusion that judiciary does fall within the purview of “State” as defined by Art. 12 of the Constitution.
First, Art. 12 adopts an institutional (as opposed to a functional) classification. The scope of Art. 12 must therefore be determined on the basis of the nature of the entity concerned, not the function it performs. A literal reading of Art. 12 should suffice to vindicate this claim:
“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.”
This conclusion when read in light of the Constitution bench decision of the Supreme Court in P. C. Garg v Excise Commissioners provides powerful support for the view that I advance here. In P. C. Garg, the petitioners challenged the validity of one of the rules made by the Supreme Court in exercise of its powers under Art. 145. The impugned rule provided that the Court may impose such conditions as to costs and security as it deems fit, including in petitions under Art. 32. Holding that these rules were indeed capable of violating Part III norms, Gajendragadkar J. reasoned as follows:
“If any of the provisions of such a law were to contravene any of the fundamental rights guaranteed by Part III, they would be struck down as being unconstitutional. Similarly, there can be no doubt that if in respect of petitions under Art. 32 a law is made by Parliament as contemplated by Art. 145(1), and such a law, in substance, corresponds to the [impugned provision], it would be struck down on the ground that it purports to restrict the fundamental right guaranteed by Art. 32. The position of an order made either under the rules framed by this Court or under the jurisdiction of this Court under Art. 142(1) can be no different.” (emphasis mine)
It may be argued that, in the light of the nature of the impugned provision in P. C. Garg, that decision must be confined to legislative actions by judicial bodies. However, as noted above, this argument sits uneasily with the wording of Art. 12. It is difficult to see how a functional distinction of this nature can be accommodated within the clearly institutional classification adopted by Art. 12.
Secondly, it is now clear that textual ambiguities in the Constitution may be resolved by reference to Constituent Assembly debates (authority for this proposition may be found here, here and here). The view advanced here draws strong support from the Constituent Assembly Debates. In the Constituent Assembly, concerns regarding the textual ambiguities in Art. 12, and in particular, the meaning of the phrase ‘other authorities’ were raised. It was suggested that leaving judicial bodies out of the purview of Art. 12 may lead to the conclusion that “even a Magistrate… might pass an order, or make a notification abridging the rights that are conferred under sub-clause (a) of clause (1) of article 13.” [Constituent Assembly Debates, Vol. VII, p. 609 (1950)]. In response to this concern, Dr. B. R. Ambedkar clarified that “authority” for the purposes of Art. 12 subsumed within its scope “every authority which has got either power to make laws or the power to have discretion vested in it” [Constituent Assembly Debates, Vol. VII, p. 610 (1950)]. It is indisputable that courts fall within the purview of the latter category. (The research on Constituent Assembly Debates is sourced from Ms. Kalyani Ramnath’s article in the National Law School of India Review, available here). Notably, in recognition of the intention of the framers, the National Commission to Review the Working of the Constitution headed by Justice M. N. Venkatachaliah also made the following recommendation:
The definition of ‘the State’ in article 12 being an ‘inclusive’ one, courts have ruled that where there is pervasive or predominant governmental control or significant involvement in its activity, such bodies, entities and organizations fall within the definition of ‘the State’. It is recommended that in article 12 of the Constitution, the following Explanation should be added:- ‘Explanation – In this article, the expression “other authorities” shall include any person in relation to such of its functions which are of a public nature.’ (emphasis mine)
Finally, it appears that many provisions in Part III are, at least in part, directed at judicial bodies. A good example is the power of the Supreme Court under Art. 32 to issue the writ of certiorari. Since that power can only be exercised against judicial or quasi-judicial bodies, the view that judicial orders fall outside the purview of Part III renders it nugatory. [H. M. Seervai, Constitutional Law of India: A Critical Commentary, 4th edn., p. 394]. Another set of similar examples may be found in the rights guaranteed by Art. 20 of the Constitution. Consider for instance, the right not to be “convicted of any offence except for violation of a law in force at the time of the commission.” Since conviction cannot but be by a judicial authority, it is clear that the addressee of the right under Art. 20(1) is the judiciary. Similar is the case with the right not to be “prosecuted and punished for the same offence more than once” and the right of an accused to not be “compelled to be a witness against himself.” These rights are inexplicable on the view that judicial orders fall outside the purview of Part III.
In the light of these reasons, it is submitted that the mere fact that “judiciary” does not find express mention in Art. 12 should not lead one to the contrary conclusion. This is especially so since the nature of the definition in Art. 12 is expressly inclusive.
Bringing judicial orders within the purview of Part III scrutiny may give rise to several seemingly worrying consequences. If orders made by the Supreme Court are capable of offending Part III rights, does that mean that those orders can be infinitely challenged by way of Art. 32 petitions? Are the Court’s decisions on those Art. 32 petitions then amenable to further challenge? If yes, when will this lead to a final resolution? In my view, the answer to these questions must be found in the proposition that the right guaranteed by Art. 32 is not an absolute right. The right to move the Supreme Court to enforce rights guaranteed by Part III, must itself be subject to reasonable restrictions.
It may objected that the text of Art. 32 (in contrast to Art. 19, for example) does not expressly make it subject to such restrictions. In my view, however, this is not conclusive. An interesting analogy in favour of this view may be found in the Supreme Court’s jurisprudence on Art. 26(c). That provision reads:
“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right: …(c) to own and acquire movable and immovable property.”
In Acharya Narendra Prasadji v. State of Gujarat (AIR 1974 SC 2098), the Court had occasion to consider an interesting argument concerning the scope of permissible restrictions on this right. Admittedly, the impugned legislation in that case, the Gujarat Devasthan Inams Abolition Act, 1969, did not relate to public order, morality or health which are the express grounds listed in Art. 26(c). Despite this, it was argued that the Gujarat Act imposed a reasonable restriction on the right under Art. 26(c). This argument was upheld by a Constitution bench of the Supreme Court. It was held that:
“The question, therefore, arises whether the right under Article 26(c) is an absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denominations. No rights in an organised society can be absolute. Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others.”
If this is true for Art. 26(c), it must equally be true for Art. 32. This is especially so since, in contrast to Art. 26(c) Art. 32 only guarantees the right to move the Supreme Court “by appropriate proceedings.” This phrase is capable of being interpreted as embodying an inherent restriction on the scope of that right.
Further vindication of this view may be found in a recent line of decisions of the Supreme Court that take the view that, at least under some circumstances, the Supreme Court may exercise its discretion to not entertain Art. 32 petitions when the alternative remedy in the form of Art. 226 is available. Consider for instance, the decision in State of West Bengal v Ratnagiri Engineering Pvt. Ltd. There, a division bench of the Supreme Court held:
This writ petition has been filed under Article 32 of the Constitution for declaring the amendment brought about in the West Bengal Land Reforms Act, 1955… as unconstitutional…. In our opinion, the petitioner can file a writ petition before the High Court under Article 226 of the Constitution for this purpose. Hence, we are not inclined to entertain this writ petition under Article 32 of the Constitution.
The same approach was adopted by the Supreme Court in Satish Chandra v Registrar of Cooperative Societies, Delhi and Mohammed Ishaq v S. Kazam Pasha. In my view, the best rationalisation of these decisions is that, the court’s exercise of discretion in not entertaining these petitions constitutes a reasonable restriction on the scope of the right guaranteed by Art. 32.**
In sum, there are strong reasons in principle for concluding that judiciary must be held accountable to Part III norms. However, admittedly, accepting this view may lead to the result that Art. 32 petitions will now be filed in circumstances under which they were not previously available. In my view, an approach that addresses these consequences head-on is preferable to one that turns a blind-eye to the principled reasons that dictate a contrary conclusion. However, I have not attempted to exhaustively define how each of the circumstances under which Art. 32 petitions may be filed, can be dealt with. My attempt is only to suggest that the correct methodology for dealing with the ‘infinite regress’ problem may lie in the recognition that the right under Art. 32 is itself subject to reasonable restrictions.
** This is not to suggest that these decisions are correct in result though. In my view, they are not. In the interests of clarity, I will briefly explain why. As per the decision in Daryao v State of U.P. it is clear that decisions of High Courts while dismissing petitions under Art. 226 constitute res judicata for the purposes of subsequent petitions under Art. 32. Thus, once a petition under Art. 226 has been dismissed by a High Court, a subsequent petition under Art. 32 will succeed only if the ground on which the former petition was dismissed is not a ground applicable to Art. 32 petitions. Now, consider this result in the light of the above decisions. This leads one to the conclusion that Art. 32 will be available to the petitioner in extremely restrictive circumstances i.e. only when the previous petition under Art. 226 was dismissed on a ground that is inapplicable to Art. 32. In more general terms, the reason why this line of decisions in wrong is not because Art. 32 is an absolute right, but because the restriction that these case impose is not a reasonable one.