Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr.  , 1966 SCR (3) 744  

CASE NAME	Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr.
CITATION	1966 SCR (3) 744
COURT	Supreme court
CASE TYPE	Writ petition
PETITION	Naresh Shridhar Mirajkar
RESPONDENT	State of Maharashtra
BENCH	Hon’ble Chief Justice P.B. Gajendragadkar, Hon’ble Justice A.K. Sarkar, Hon’ble Justice K.N. Wanchoo, Hon’ble Justice M. Hidayatullah, Hon’ble Justice J.C. Shah, Hon’ble Justice J.R. Mudholkar, Hon’ble Justice S.M. Sikri, Hon’ble Justice R.S. Bachawat, Hon’ble Justice VS Ramaswami
JUDGEMENT DAY	3rd March,1996

INTRODUCTION:

The framers of The Indian constitution have provided certain fundamental rights in part III from Articles 12 to 35. Fundamental rights are the basic rights that guarantee the country’s democracy and are protected by all three organs of the democracy that is executive, judiciary, and legislature. In case of infringement of these fundamental rights, the constitutional remedy has been provided under Article 32 by which they can directly approach to the Supreme Court of India. The same provision related to the constitutional remedy has been provided to go before High courts under Article 226 of the Indian constitution. Under Article 32 and Article 226 of the Indian constitution, they have the power to issue a writ petition. A writ petition means a written order which is issued by the Supreme Court and High courts to enforce constitutional remedy in case of infringement of fundamental rights of people. There are five writs that have been provided mandamus which means “we command”, habeas corpus means “to present a body”, prohibition means “to prohibit”, certiorari means “to be certified or informed”, quo-warranto means “by what authority or warrant”.

FACTS OF THE CASE:

Mr. Thackersey who was a partner of the company named China Cotton Exporters had obtained a license for the import of art silk yarn on only one condition it would be only sold to handloom weavers. They created three bogus handloom factories on papers to get higher profits in the said silk yarn by selling them to black paper. In the suit, Bhaichand G. Goda was supposed to be a guarantor of the provided transactions and was a defense witness in the defamation suit. Mr. Goda had made the allegations against Mr. Thackersay in an affidavit that was published in the ‘ Blitz’ paper edited by Mr. R.K Karanjia. R. K Karanjia is one of the parties in the original defamation suit under the article ‘ Scandal Bigger than Mudhra’. During the period of trial, Mr. Bhaichand Gida was presented as a defense witness by Mr. Karanjia. During the examination of Mr. Goda, he completely refused the matter related to the transactions. The protection given to him by the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr. Thackersey’s concern. After that, Mr. Karanjia asked permission to cross-examine Mr. Goda, and the learned judge granted the permission. On 23rd October 1964, Mr. Goda moved the application of protection against his evidence being reported in the press. He further added that his publication in the press has caused him a great loss in the business and he also requested that the evidence he has been recalled to provide will not be published in the papers. The learned judge orally directed that the evidence provided by Mr. Goda should not be published anywhere and also directed Mr. Karanjia to not publish reports on the given evidence. Mr. Karanjia urged before the court that it is the fundamental principle to get access to the documents to the public and to challenge the correctness of the order in the administration of justice. Therefore, he suggested that the order related to forbidding the publication of Mr. Goda’s evidence should be in writing. The court rejected the arguments of Mr. Karanjia and stated that the court has already made an oral order so, written order in respect of this matter is not necessary. The court further stated that the objective of the order is compliance of it and the court expects that the oral order would be obeyed. The petitioner was not satisfied by the judgment pronounced by the court and moved a writ petition under Article 226 of the Indian Constitution before the Bombay High Court. But the petition was dismissed by the Division Bench of that High Court on the ground that the impugned order was a judicial order of the high court and it was not amenable to a writ petition under Article 226. After that, the petitioner moved to the Supreme Court under Article 32 for the enforcement of his right under Article 19(1) (a) and (g) of the Indian constitution.

ISSUES OF THE CASE:

1. Whether the High Court had Inherent power to pronounce the impugned order or not?

2. Whether the impugned order violate the basic fundamental rights of the petitioners under Article 19(1) (a), (d), and (g) of the Indian constitution?

3. Whether the writ jurisdiction of the Supreme Court under Article 32 (2) is amenable or not?

CONTENTIONS OF THE PETITIONER:

The petitioners argued that the fundamental rights provided to the citizens are absolute but certain reasonable restrictions can be imposed by law within the limitations provided under clause (2) to (6) of Article 19 of the Indian constitution. He further argued that it is not clear that the Indian legislatures have the power to ban any publication of faithful reports with respect to the proceedings in the legislatures and that much less power can have a court to ban such publication. He also alleged that the restrictions that were imposed by the court is not justified in the interests of the witness under Article 19(2), and the pronounced judgment exceeded his jurisdiction. Further, the petitioner stated that in part III of the Indian constitution which is fundamental rights provided to the citizens the wider scope and right to move before the Supreme Court of India by the aggrieved citizen is not limited and also cannot be restricted. He has the right to move to the Apex Court against the legislature and the executive body. Article 32 of the Indian constitution has a very wide scope and no restrictions have to be imposed under any circumstances to limit the scope of the mentioned article. The right that has been provided under Article 32 is only conferred to the citizens of India and as soon as the fundamental right has been violated under Article 19(1) of the petitioner, he is entitled to get a constitutional remedy under Article 32 through the supreme court of India. The power to issue writ petition has been provided to the High courts and the supreme court of India under Articles 226 and 32 of the Indian constitution respectively. The remedy does not include only the power to issue a writ but also orders or directions in the nature of the said specified writs.

The judgment pronounced by the High Court does not prohibit taking remedy under Article 32 of the Indian constitution because the court has a duty to guarantee the protection of fundamental rights by also going against the judgment of the courts. After reading 1 and Clause 2 of Article 32 jointly, it provides a concept, according to which in case of infringement of fundamental rights of the people of India Under Article 19(1), by any judgmental or final order of the court that person is entitled to move to the Apex court under Article 32 of the Indian constitution. To support his arguments, he further mentioned Article 20(1) & (2), Article 21, and Article 22(1) which refer to the protection in respect of conviction for offenses, protection of life and personal liberty, and protection against detention and arrest in certain matters.

CONTENTIONS OF THE RESPONDENT:

The respondent has argued that the judgment delivered by the court was justifiable and is within the inherent power of the court. The reasoning behind the judgment was that if the evidence produced by Mr. Goda has been published then it would have caused annoyance to the witness or to the parties and it might also lead to a failure of justice. He further added that the court was trying to consider in the interest of the administration of justice if such publication should be banned or not. And the judgment provided does not violate the petitioner’s fundamental right but on the other hand, it has protected their right under Article 19(2). Respondent further mentioned that the High Court is also a court of record and is entitled to decide the question related to the matter of his own jurisdiction. The order passed by the High Court in the matter related to his own jurisdiction cannot be amended by a writ petition under Article 32(2) of the Indian constitution. He further contradicted the statement of the petitioner by stating that the scope of Article 32 is not as wide as the petitioner suggested. He argues that determining the scope of the fundamental right mentioned in part III of the Indian constitution depends upon the definition

provided under Article 12 of the constitution. According to Article 12, ” The State” consists of the government, Parliament, and legislatures of the states and all local or other authorities which is funded or governed by the state and central government within the territory of India. He also added that while going through the definition of Article 12 of the Indian constitution the judiciary is not included in this definition and to challenge before the court any infringed fundamental right the concerned party has to show that the other party falls under the scope of this definition. In respect of Articles 20,21 and 22 of the Indian constitution, he argued that the protection provided by these articles is provided against the legislature and the executive but not against the judiciary or the courts. Further, the fundamental right under Article 32(1) cannot be enforced against individual citizens.

RATIO DECIDENDI:

Mr. Justice Tarkunde’s Bombay Supreme Court order to suppress Goda’s deposition reporting was invalid and lacked jurisdiction. The order cannot be sustained because it either purports to impose a perpetual ban or leaves the matter uncertain, placing those who are concerned about the publication of the report under a virtual sword of Damocles. He had no power to create such an order, but he had been moved. The rule for reporting cases in court is that what happens in court is public, so publishing the proceedings just makes the court bigger and gives the trial more publicity, which is good because the rule says the trial should be open to everyone. The privilege of publication applies only to the general public because the general public outside of the audience has no right to induce second-hand information that they cannot obtain within the court itself. It was decided that because the Judge did not make a written order; the suitable cure (as a matter of fact the main successful cure) is to chase to suppress the request by a writ under Article 32 of the Constitution. The subordination of the High Courts to the Supreme Court is not only obvious but also logical within the framework of the Constitution as a whole.

OBITER DICTA:

The main objective of the court is to provide justice to the people and the society but sometimes the pronounced judgment arises the issue related to the violation of other rights of administration of justice, especially as related to a public trial. If any court has provided the power to conduct any trial privately then there is a reasoning behind it. Because the court has many more objectives like restoring the right of the victims, stopping any further infringement of his/her right during the duration of the trial, and to also protect the victims. Therefore, the court does not hesitate by passing an order to hold a trial privately or to prohibit the publication of any documents in the proceedings of the trial.

JUDGEMENT:

The Hon’ble Court refuted the contentions of both parties and stated that the exercised power of the High Court is in his inherent power which can be used in exceptional cases or circumstances. The High Court can pass any order to impede the publication of any material or situation which is pending before the court. This power has been provided to the court through section 151 of the Code of civil procedure. Court further stated that the power exercised by the High Court does not violate Article 19(1)(a) of the Indian constitution. Within the Jurisdiction of the High Court, he has the power to impede the publication of any document or information related to the cases pending or being tried by the court. If on any matter it comes out that the particular matter does not come under the jurisdiction or is not vested by law then that decision may be set aside but the decision will not be claimed as the violation of the fundamental right as in this matter related to the Article 19(1)(a) of Indian constitution.

The court stated that a court of justice is a public forum which means a place where important social problems and issues are raised and reasonable and logical solutions are derived by utmost consideration of the societal structure. The reason behind the open trial is to give a message to the people that there is no restraint on the publication of the report of the court proceedings and the court does not provide justice evenhanded. This publicity originates public confidence in the administration of justice. There are some cases in which the court conduct closed doors trial or may forbid the publication of report or documents of the proceedings during the trial of the case. This is done for the sole purpose to make the trial fair without any pressure and to protect the victims and their rights or in sensitive cases which has gained too much recognition in the society. Thus, the court has not entertained this petition. The majority of these types of petitions got dismissed on the same ground by the court.

CONCLUSION:

Through this case, the Supreme Court of India stated that no court has jurisdiction or authority to issue a certiorari writ against the High Court or the same bench court under Article 32 of the Indian constitution unless the judgment is ultra virus. The aggrieved party has always the power to appeal the judgment before the appellate court. And, for that reason, the certiorari writ cannot be issued against the High Court except under certain situations or circumstances. Further, the court has stated that if the court has prohibited certain documents to ban or not being published then that order cannot be considered an infringement of a fundamental right if the court is providing reasonable reasoning being it. Fair trial and prevailing of justice are two important objectives of the court for which they can take certain steps. The interpretation of the fundamental rights, in this case, has provided a limit to the scope of Article 19(2) of the Indian constitution.

THIS ARTICLE IS WRITTEN BY RISHU ANAND, LAW COLLEGE DEHRADUN, DEHRADUN (VIII SEMESTER, AN INTERN UNDER LEGAL VIDHIYA