Challenges To The Functions Of The Organs Of The State

Judiciary A State: Myth Or Reality

VIKASH CHANDRA SHUKLA* AND NEHA TRIPATHI The recent judgment of Ramdeo Chauhan v. Bani Kant Das [Review Petition no.1378 0f 2009 decided on 19th November 2010] has re-opened the Debate, whether the Judiciary can be considered to be State under the scope and ambit of Article 12 while performing Judicial Functions. As early as 1954 in Budhan Choudhary and Others v. State of Bihar [AIR1955SC191] the court has made an observation that, It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the judiciary and the inhibition of article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State. Mr. H.M. Seervai, in his locus classicus Constitutional Law of India, A Critical Commentary has consistently maintained that the definition of State, under Article 12 of the Constitution of India, includes Judiciary as well, even for performance of judicial functions. In Ram Deo Chauhans case the court seems to be indicating towards the same view point. This paper examines the correctness of this position in the light of the other decisions of the Supreme Court of India as well as the positions in other jurisdictions of the world.

Judiciary A State: Myth Or Reality

Justice Douglas (the judge with the longest tenure on the US Supreme Court) recalls in his autobiography that when he first assumed office in 1939, his chief justice said to him, Justice Douglas, you must remember one thing. At the constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predictions. The young William Douglas was shocked. But after thirty six years on bench he records that he found no exaggeration in the statement! (Tribune, Chandigarh, 14 April 2006).Justice Cardozo too had rightly stated: The great tides and currents which engulf the rest of the men do not turn aside their course and pass the judges by.

Introduction
The Fundamental rights are incorporated in part III of the Constitution of India. Now the impugned question is against whom the violation of Fundamental Rights can be claimed and then comes in the picture Article 12 which says, In this part, unless the context otherwise requires, the state includes the Govt. and Parliament of India and the Govt. 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 Govt. of India. This definition of State is inclusive because of the American experience, wherein the First Amendment said, Congress shall make no Law. To not face such a controversy they gave an inclusive definition of state. It meant generally to include in its ambit legislative and executive functions, but the word executive is not defined in the Constitution. Chief Justice Mukherjee in a leading decision said: Ordinarily, the executive power
The author is a student of B.B.A, L.L.B, 4th Semester in School of Law, KIIT University and can be contacted at vikash.shukla154@gmail.com. The author is a student of B.B.A,L.L.B, 4th Semester in School of Law, KIIT University and can be contacted at rupalli.neha@gmail.com.

Justice P.B.Gajendragadkar, Indian Democracy:Its major Imperatives, Bomaby: B.I.Publicationss,1975,p.43.

connotes the residue of governmental functions which are left after the legislative and judicial functions are taken away. Article 12 which defines state for the purpose of part III, does not expressly exclude the judiciary, and though Article 12 does not expressly include the judiciary, it is submitted that judiciary, with the legislature and the executive, is included in the ordinary meaning of a State. Also in Article 12 they mean the same as previous. This conclusion is supported by Art.13 which declares that any law, rule, regulation and the like, which violates fundamental rights, is void. The judiciary in India has rule-making powers and if it were not the state for the purposes of part III, rules made by courts could not be impugned as violating fundamental rights. The fundamental rights guaranteed to the citizens by Part III are very wide in their scope; and the right to move to 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 move this Court for an appropriate writ under Article 32. To support this view we will refer to fundamental rights guaranteed by Article 17, 23 and 24. Article 17 abolishes 'untouchability'. If in spite of the abolition of 'untouchability' by constitutional provision included in Part III, any private shop-keeper, for instance, purports to enforce untouchability against a Harijan citizen, the said citizen would be entitled to move this Court for a proper order under Article 32. Similar is the position in regard to fundamental rights guaranteed by Articles 23 and 24. Article 23 prohibits traffic in human beings and forced labour, whereas Article 24 prohibits employment of children to work in any factory or mine or their engagement in any other hazardous employment. This shows that the application of Article 32 is not limited to the legislative and executive functions only but is inclusive of other functions as well.

Judicial Pronouncements in India:

In Budhan Chowdhary v State of Bihar** the Supreme Court said, It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the judiciary and the inhibition of Article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State. It has however, to be remembered that, in the language of Frankfurter, J., in Snowden v. Hughes, "the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State". 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 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. This is a seven judge bench decision which says that an action against judicial decisions can be brought for the violation of Article 14. This makes it clear that there is definitely a scope that Judiciary can be brought under the scope and ambit of Article 12, but subsequent decisions have created a chaos on the issue. The distinction on the basis of function, whether while acting under the administrative or judicial? and that happens because of Article 13(3)(a) which says, law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Now the Supreme Court has rule making power and because of this it easily qualifies to be a state for administrative functions. In Prem Chand Garg v Excise commission the Supreme Court said that while performing its judicial functions the judiciary cannot violate the Fundamental Rights and it can do so while performing its administrative functions. Then came an interesting twist to this debate
Ram Jawaya Kapur v. State of Punjab, (1995) 2 S.C.R. 225 at p.235. AIR 1955 SC 191. (1944) 321 U.S. 1. AIR 1963 SC 996.
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where justice Gajendragadkar opined that, A judicial decision cannot be brought under the scope and ambit of Article 12 for violation of Fundamental Rights because: I. Judiciary is well aware of the Fundamental Rights and hence how can it violate it? II. Even if a particular decision has an impact on the Fundamental Rights. This impact is extremely inconsequential or incidental. III. The net effect is, that there is no violation of Fundamental Rights when a judicial decision is pronounced. The majority opinion in this case was that even though the decision of the inferior court is inconsistent with the Fundamental Right, the person whose guaranteed right is invaded, shall have no remedy if the law of procedure provides for no appeal or if he fails to prefer an appeal on time. This plainly makes a mockery of Article 12 as well as Article 32. Lord Diplock in a Guyana case gave an opinion in contrast with the opinion of the judges in Mirajkar Case and said, Even where there is no specific provision in the Constitution as to the forum for redress in case of a fundamental right, the aggrieved person should have unhindered access to the High Court. I acknowledge the authority of this case but with most respect I would differ and say that Justice Gajendragadkar had some misconception about the role of Fundamental Right. When I say this, I believe that fundamental Rights work as a negative obligation on the power of state of which Executive, Legislative and Judiciary are the organs. Article 13(2) says that any state action violating Fundamental Rights will be inconsistent and to the extent of such inconsistency. Any action violating the Fundamental Right of an individual directly or indirectly has to be nullified. If that being the scenario then, why can not a judgment indirectly violating some ones Fundamental Right can be challenged. In the U.S.A., it is well settled that when a Court enforces a statute or even a common law rule which offends against a Fundamental Right, the judicial decision itself becomes State action violative of the guarantee, and must, therefore, be struck down. ***

Functions of Judiciary:
A more interesting stand taken by the apex court in A.R.Antulay v R.S. Nayak, where the court gave relief for the violation of Article 21 and that too when the appeal was under Article 136. The Judges by giving relief against their own decision have proved that the Supreme Court realizes that it can also violate the Fundamental Rights of its citizens even while acting under its judicial functions. When the Judiciary in several cases have admitted appeals for review of the judgment that, whether they violate Fundamental Rights or not? A new practice and procedure was invented by the Supreme Court of India in Rupa Ashok Hurra v Ashok Hurra by way of Curative Petition and has laid down, Nevertheless we think that a petitioner is entitled to relief ex debitio justitiae if he establishes violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceeding and the matter proceeded as if has noticed. Now this shows that the court realizes that there is sheer probability of Fundamental Rights getting violated through judicial pronouncements and hence devised the tool of Curative petition to meet the situation like this. The judgment said that no miscarriage of justice shall be done and just to avoid injustice they decided it in a way which is tough to understand and also said that this kind of remedy will be available in extra-ordinary cases. This case cites S.Nagaraj & Ors. vs. State of Karnataka & Anr.,
Naresh Sridhar mirajkar v. State, AIR 1967 SC 1. Reid v Covert, (1957) 354 US 1. AIR 1988 SC 1531. (2002) 4 SCC 388, para 50. 1993 Suppl.(4)SCC 595.
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where Justice Sahai said, "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of staredecisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice." In this case they have not only cited this but applied the logic of Justice Sahai regarding justice.

Other Constitutions:
The American Courts have been very expressive regarding the equality clause and have said in catena of cases that any judicial decision will be vitiated if it is discriminatory. **** A judicial proceeding may violate the guarantee of due process. Under the Constitution of U.S.A., and of countries which have adopted the American model, it is established that the doctrine of State action postulates that the State includes the Judiciary, against which fundamental Rights have been guaranteed by the Constitution. There is nothing in Article 12 of the Indian Constitution to deviate from that doctrine because, even though Article 12 specifically mentions the Legislature and the executive, it is only an inclusive, and not an exhaustive definition. The American saying that, A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision (14th Amendment), therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within the jurisdiction the equal protection of the laws. As we have seen that in U.S.A it is well settled principle that the Judiciary is within prohibition of the 14th Amendment and Article 14 in our Constitution gets light from that provision. So there shall be no difficulty in applying U.S. Supreme Court Judgments in our country on this issue.

Conclusion: In a recent Judgment Ramdeo Chauhan v. Bani Kant Das justice Ganguly opined, there is no doubt
that the majority judgment of this court in A.D.M. Jabalpur v Shivakant Shukla***** case violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be confined to the dustbin of history. This judgment very expressly excepts that the Fundamental Right of an individual can be violated by the judiciary as well and hence it can be brought under the scope and ambit of Article 12. Also this seems to concur with the dissenting views of justice Hidayatullah in Mirajkar case (supra), where he said, the judiciary was subject to fundamental rights mentioned in part III. Legendary H.M. Seervai wrote if a writ of certiorari lies under Article 32 for the enforcement of fundamental rights, it must be follow that there are some fundamental rights which can be violated by a judge acting judicially in a court stricto senso.

Washington v. Davis, (1976) 426 US 229. Section 1(a) of the Constitution of Trinidad and Tobago, 1962. Ex Party Virginia, (1880)100 US 339. Review Petition no.1378 0f 2009. ***** (1976) 2 SCC 521.

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