Writing Sample
Writing Sample
Writing Sample
The definition of State under Article 12 of the Constitution does not explicitly mention the Judiciary.
Hence, a significant amount of controversy surrounds its status vis-a-vis Part III of the Constitution.
Bringing the Judiciary within the scope of Article 12 would mean that it is deemed capable of acting
in contravention of Fundamental Rights. It is well established that in its non-judicial functions, the
Judiciary does come within the meaning of State. However, challenging a judicial decision which has
achieved finality, under the writ jurisdiction of superior courts on the basis of violation of
fundamental rights, remains open to debate.
On the one hand, the Judiciary is the organ of the State that decides the contours of the Fundamental
Rights. Their determination, of whether an act violates the same, can be right or wrong. If it is wrong,
the judicial decision cannot ordinarily be said to be a violation of fundamental rights. If this were
allowed, it would involve protracted and perhaps unnecessary litigation, for in every case, there is
necessarily an unsatisfied party. On the other hand, not allowing a decision to be challenged could
mean a grave miscarriage of justice, and go unheeded, merely because the fallibility of the Judiciary is
not recognized.
The erroneous judgment of subordinate Court is subjected to judicial review by the superior courts
and to that effect, unreasonable decisions of the Courts are subjected to the tests of Article 14 of the
Constitution.
The Bombay High Court expressed the view that the Judgment of the Court cannot be challenged for
violation of Fundamental Rights.
In the case of Naresh v. State of Maharashtra, the issue posed before the Supreme Court for
consideration whether judiciary is covered by the expression ‘State’ in Article 12 of the Constitution.
The Court held that the fundamental right is not infringed by the order of the Court and no writ can be
issued to High Court. However, in yet another case, it was held that High Court Judge is as much a
part of the State as the executive.
In Rati Lal v. State of Bombay, it was held that Judiciary is not State for the purpose of Article 12. But
Supreme Court in cases of A.R. Antulay v. R.S. Nayak and N. S. Mirajkar v/s State of Maharashtra, it
has been observed that when rule making power of Judiciary is concerned it is State but when exercise
of judicial power is concerned it is not State.
In Amirabbas v. State of M.B., the Court made the following observation: Denial of equality before
the law or the equal protection of the laws can be claimed against executive or legislative process but
not against the decision of a competent tribunal.
The scope of challenging a judicial decision on the ground of contravention of fundamental right is
much narrower in India, for several reasons:
1) There being no ‘Due Process’ clause, there is no scope for challenging a judicial decision on a
constitutional ground of unfairness
2) The decisions of the Supreme Court being binding upon all Courts within the territory of
India [Art. 141], there is no scope for a decision of the Supreme Court being challenged as
violative of a fundamental right. But there is no reason why the decision or order of a
subordinate court shall not be open to be questioned on the ground that it contravenes a
fundamental right.
In fact so far as the guarantee of equal protection in Article 14 is concerned, our Supreme Court, in
the early case held that any State action, executive, legislative or judicial, which contravenes Article
14, is void.
But the Supreme Court limited the application of Article 14 to judicial decisions by the qualification
that they will hit by the Article only when they involved a ‘willful and purposeful discrimination’.
However, in the landmark case of Rupa Ashok Hurra v Ashok Hurra, the Constitution Bench of five
judges examined whether a writ petition can be maintained under Article 32 to question the validity of
a judgment of this Court after the review petition has been dismissed. Firstly, it was contended that
there would be a re- examination of the case only where the judicial order was passed without
jurisdiction, in violation of the principles of natural justice, in violation of fundamental rights or
where there had been gross injustice, under the inherent jurisdiction of the Court. It was admitted that,
in the rarest of rare cases, a petition under Article 32 could be entertained where even a review
petition had been rejected. The “corrective jurisdiction” of the Court, it was argued, arose from those
provisions of the Constitution conferring power on the Supreme Court such as Article 32 and Articles
129-40. Secondly, the remedy for the above rare cases was, since no appeal lies from the order of the
Apex Court, an application under Article 32, if senior counsel were able to discern some permissible
ground for the same. In this case, Justice Syed Shah Mohammed Quadri pointed out that Article 32
can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and that
no judicial order passed by any superior court in judicial proceedings can be said to violate any of the
fundamental rights, since superior courts of justice do not fall within the ambit of State or other
authorities under Article 12 of the Constitution. The Court adopted an unusual unanimous approach
by holding that even after exhausting the remedy of review under Article 137 of the Constitution, an
aggrieved person might be provided with an opportunity to seek relief in cases of gross abuse of the
process of the Court or gross miscarriage of justice, because the judgment of the Supreme Court is
final. It was held that the duty to do justice in these rarest of rare cases shall have to prevail over the
policy of certainty of judgment.
Several grounds were laid down whereby a “curative petition” could be entertained and a petitioner is
entitled to relief ex debito justitiae. It could be used, for example, in cases of violation of principles of
natural justice, where interested person is not a party to the cause and where in the proceedings a
Judge failed to disclose his connection with the subject-matter or the parties giving scope for an
apprehension of bias. The petitioner would have to specifically mention the grounds on which he was
filing the curative petition.