Is the Judiciary "State"?

Held. By the majority, the order was within the inherent power of the High Court. A court has inherent jurisdiction to hold a trial in camera where the ends of justice clearly and necessarily require it, and the power to prohibit excessive publication of part of the proceedings is a facet of that power; section 151 of the Code of Civil Procedure saves the inherent power to make such orders as are necessary for the ends of justice.

On the constitutional question, the principle that has been carried forward was put by Sarkar J.: if a judicial tribunal makes an order which it has jurisdiction to make, by applying a law which is valid in all respects, the order cannot offend a fundamental right. An order is within jurisdiction if the tribunal had jurisdiction to decide the matters litigated before it and the law it applied was valid, and a tribunal having that jurisdiction does not act without jurisdiction if it makes an error in the application of the law. The order was a judicial order within the jurisdiction of the judge who made it, even though it restrained persons who were not parties. He added that the law empowering a court to prohibit publication of its proceedings is in any event protected by article 19(2), relating as it does to contempt of court.

Hidayatullah J. dissented, holding that a court which had heard a witness in open court could not suppress publication of that evidence on the witness's request that his business would suffer, and that section 151 could not be used to turn proceedings which should be open into closed ones.

Why it matters. It is the authority for the proposition that a judicial order of a competent court is not challengeable under article 32 as violating a fundamental right. Note carefully what the reasoning is: not that the judiciary is outside article 12, but that an order within jurisdiction applying valid law cannot by definition contravene Part III, and that an error of law within jurisdiction is not a constitutional violation. The remedy for an erroneous order is appeal or review, not article 32.

Where the line actually runs

Three refinements are worth having.

An order without jurisdiction is a different case. Mirajkar's reasoning depends on the order being within jurisdiction. Where a court acts wholly without jurisdiction, or where the law it applies is itself invalid, the reasoning does not apply, and the order may be attacked.

A judicial order can be corrected by the Supreme Court on its own account. The Court has recognised a jurisdiction to reconsider its own final judgment where a gross miscarriage of justice or a violation of natural justice has occurred, exercised by a petition heard by a Bench of senior judges. That is a self-correcting mechanism inside the judicial hierarchy, not an application of article 12, and the decisions establishing it are in the case bank's queue and are named here without citations.

A court that violates natural justice is amenable to correction. Where a court makes an order affecting a person without hearing him, the objection is real, but it is taken by appeal, review or the Supreme Court's own corrective jurisdiction, and not by treating the court as a violator of Part III.

Article 12 and the judiciary in other jurisdictions

Worth one sentence in an answer, because the comparison sharpens the Indian position.

In the United States the constitutional guarantees are treated as binding on the courts as organs of the State, and a judicial order enforcing a private discriminatory agreement has been held to be state action. India has not gone that way. The reason is structural: the Indian Constitution provides an integrated hierarchy with appeals to the Supreme Court and article 136 special leave over every court and tribunal in the country, so the machinery for correcting judicial error already exists and does not need to be built out of article 12.

A worked example

A High Court, on its administrative side, frames a rule for recruitment to the subordinate judiciary which a candidate says discriminates on a prohibited ground. In a separate matter, a district judge passes an order in a civil suit which a stranger to the suit says violates his right under article 19(1)(a). Both petitioners move the Supreme Court under article 32.

The recruitment rule. Here the High Court is acting administratively, under article 235 in relation to control over the subordinate courts, and its rule-making power under article 227(2). In that capacity it is treated as State: the rule is subordinate legislation, it is "law" for article 13, and articles 14 and 16 apply to it as they would to any public employer. The petition is maintainable.

The judicial order. Different in kind. On Mirajkar, if a judicial tribunal makes an order which it has jurisdiction to make, by applying a law valid in all respects, the order cannot offend a fundamental right; and a tribunal does not act without jurisdiction merely because it errs in applying the law. The order in Mirajkar bound journalists who were not parties, and that did not change the analysis.

So what must the stranger show? Not that the order was wrong. He must show either that the court acted wholly without jurisdiction, or that the law it applied was itself invalid. Neither is an ordinary complaint about an erroneous order.

What is his remedy? Appeal, revision or review within the hierarchy, and in an extreme case the Supreme Court's own corrective jurisdiction over its final judgments.

The reasoning to notice. It is not that the judiciary is outside article 12. It is that an order within jurisdiction applying valid law cannot by definition contravene Part III.

Quick revision

• Article 12 does not mention the judiciary, and because the definition is inclusive the omission does not settle the question.
• On its rule-making and administrative sides, including employment under articles 229 and 235, the judiciary is treated as State.
• Mirajkar: an order made by a court within its jurisdiction, applying valid law, cannot offend a fundamental right, and an error within jurisdiction is not a constitutional violation.
• The reasoning is about the nature of a judicial order, not about the judiciary being outside article 12.
• The remedy for an erroneous judicial order is appeal, review or the Supreme Court's corrective jurisdiction, not article 32.
• India has not adopted the American state-action approach to judicial orders, because the integrated hierarchy and article 136 already supply the correction.

Test yourself

1. Why would it be unacceptable to hold that the judiciary is State for all purposes? And why unacceptable to hold that it is never State?

2. Distinguish the three capacities in which the judiciary acts, and give the article that governs the second.

3. State the principle in Mirajkar in Sarkar J's words, and say what Hidayatullah J. held.

4. In what circumstances does Mirajkar's reasoning not apply to a judicial order?

5. Why has India not followed the American state-action approach to judicial orders?