Naresh Shridhar Mirajkar Vs State of Maharashtra (1966 SCR (3) 744)
|Naresh Shridhar Mirajkar Vs State of Maharashtra
|1966 SCR (3) 744
|Writ petition Nos. 5 and 7 to 9 of 1965
|Naresh Shridhar Mirajkar and others
|State of Maharashtra and Another
|Hon’ble Chief Justice P.B. Gajendragadkar, Hon’ble Justice K.N. Wanchoo, Hon’ble Justice A.K. Sarkar, Hon’ble Justice J.C. Shah, Hon’ble Justice S.M. Sikri, Hon’ble Justice J.R. Mudholkar, Hon’ble Justice VS Ramaswami, Hon’ble Justice R.S. Bachawat. Minority Judgement– Hon’ble Justice M. Hidayatullah.
|Date of Judgement delivered
|March 3, 1966
The makers of the Indian Constitution have put the individual’s rights at the core of the Indian constitution implying their extreme significance. Due to this reason, the concept of fundamental rights and their enforcement mechanisms have gained a lot of importance in the country. Writ system as defined in article 226 and article 32 of the Indian Constitution is one of the most effective ways to receive constitutional remedy in case of infringement of a fundamental right. It allows a citizen to approach the doors of the judiciary whenever his fundamental right is hurt by anyone, especially state under article 12 for that matter. However, it is quite difficult to imagine a person filing a writ petition challenging a court’s order implying their breach of fundamental right by the same judiciary in which justice is granted. The following case explicates about such a situation wherein various questions of law emerged pertaining to the definition of state, true implication of justice, powers of judiciary, scope of filing the writ petitions, appeals and revision petitions etc.
Naresh Shridhar Mirajka was a journalist and writer at a weekly published magazine namely, Blitz, in Bombay eventually published by Mr. R.K. Karanjia. On the other hand, Mr Krishnaraj M.D. Thackersey was a cotton exporter and partner of a Chinese factory, in this regard, he issued directions to import the silk yarn on the precedent condition of selling them solely to the handloom weavers. This news was labelled in Blitz magazine as motivated by unreasonable profit making from fabrication of relevant documents and with the intention of misusing it in the black market to evade taxes. This malicious label was criticised by Mr. Thackersey and as a result he filed this suit (Suit No. 319 of 1960). Mr. Bhaichand G. Goda was appointed as a witness of the alleged corrupted transactions and made a statement in favour of the content published in the magazine in its article, “Scandal bigger than Mundhra.” He however, asked the court to not publish his statement in the magazine Blitz which reported every moment of the proceedings, publicly despite the whole trial being the open trial. He gave justification that he was facing losses in his business due his involvement in this manner as a defence witness. The court obeyed his request and forbade the publication of any statement of report by Mr. Karanjia of the statements purported by Mr. Goda. On being asked to give this order in writing by Mr. Karanjia, the court denied and asked them to obey the said oral orders in light of justice to the defence witness Mr. Goda. Journalists contended the breach of their fundamental right of freedom to press under domain of free speech and expression and filed a writ against the order in the high court which quashed the petition saying article 226 cannot operate over orders of the courts. Finally, the petitioners, Mr. Karanjia, other journalists and editors of the magazine Blitz in addition to other bona fide publishers approached the apex court under Article 32 for the enforcement of his rights under Article 19(1)(a) and (g) of the Indian constitution, challenging the impugned order and jurisdiction of the high court to pass such an order to restrict the publication of the statements of Mr. Goda and subsequent denial of information to the public domain and the justice itself.
Issues of the case
1. Whether the impugned ruling termed as judicial order of the court is amenable to the writ petitions or not and thus are the current petitions maintainable?
2. Whether the High court has the jurisdiction to call for such an impugned order directing the above command?
2. Whether the impugned order of the concerned division bench of the high court violates fundamental right of speech and expression under article 19 as claimed?
Contentions of the petitioner
Petitioners included Mr. Karanjia and other journalists alleging the orders of the court to restrict the publication of witness’ statements into the public domain to be invalid. Mr. Setalvad advanced the petitioners’ arguments as elucidated issue wise below;
1) It is well known that the constitutional remedy under 32 of the Indian constitution is available to the citizens to seek justice in case of breach of fundamental rights by the state specifically. Article 12 and 13 specifies a state which clearly covers the judiciary in itself. Mr. Setalvad argued that article 32(1) is wide in scope and no attempt should be made to circumscribe its scope or limit its application. He argued that the moment the impugned order overpowered the fundamental right of the journalists and breached their article 19(1), they became entitled to sue against the said order and claim constitutional remedy to protect their rights. Through detailed arguments, he advanced that the fundamental rights have a broad ambit which covers their breach also by the courts, for example, article 20, 21 and 22(1) are specifically directed against the courts. Article 32(1) and 32(2) when read together points to the fact that courts cannot claim immunity from the writ petitions filed against their orders violating any fundamental rights of the petitioners. Here, in the present case the filing of writ of certiorari should be determined according to the width and ambit of article 32 (1) and cannot be put as a reasonable restriction thereof. Therefore, it is finally submitted that the impugned judicial order cannot be immune from the writ petition in this case and the petitions are valid and maintainable.
2) While issue 2 in this regard is taken into account, the counsel, Mr. Setalvad, on behalf of the petitioners contended that the said order of the division bench of the high court violated article 19(1) of the Indian Constitution. He explains that the said right is absolute in nature barring the reasonable restrictions laid down between article 19(2) to article 19(6). In the present proceedings, it cannot be justified to keep the impugned order as a reasonable restriction on the fundamental rights on lawful grounds. They wonder whether there are any existing powers and jurisdiction of the courts as well as the legislatures when it comes to the restrictions imposed in favour of the witness. The essential assumption on which the petitions are based is that the challenged judicial order violates their fundamental rights under Article 19(1) and is not preserved by any of the protections included in paragraphs (2) to (6). Respondents 1 and 2 in these petitions are the State of Maharashtra and Bhaichand Goda.
3) As far as issue 3 is concerned, the petitioners well contended that the said bench of the high court did not have the jurisdiction and valid grounds to comply with the requests of Mr. Goda who in the veil of excuses did not allow full disclosure of information to the public. Restricting publication of certain parts of the proceedings in an open trial has nowhere been defined in the constitution or any subsequent statute. The court’s justification of providing equal justice and benefit of the statements for the present case in favour of Mr. Goda are invalid as they are solely on grounds of loss of business of Mr. Goda and justice to him as a defence witness. Judiciary as a powerful organ seems to be implicitly subordinate to the statements of Mr. Goda and thus complying with his unreasonable conditions of giving the requisite statements. Thus, the impugned order of the high court does not stand valid in the eyes of law due to lack of any provisions and the reasonable justifications supporting it.
Contentions of the respondents
The impleaded respondents in the present petitions are the state of Maharashtra as respondent no.1 and Mr. Bhaichand G. Goda as respondent no. 2. The counsel on behalf of the respondents has maintained that the contentions raised in the petitions are non- maintainable. The said counsel countered the petitioners’ arguments in an explanatory manner as below;
1. As far as the issue 1 is concerned pertaining to the maintainability of the writ of certiorari against the impugned judicial orders passed by Justice Tarkunde, the attorney general advanced certain exhaustive arguments on non- maintainability of the said petitions. He argued that the writs are supposed to be against the breach of fundamental rights by state or any citizen of India and the judiciary, being the house of justice and an independent organ of the government does not fall into the ambit of the said article 32(1). He based his contentions on the definition of article 12 which calls for the people who can be termed as “state” and since article 32 in itself is a fundamental right, it can be claimed only against the state according to article 13 of the constitution. Under Article 12, as per the learned Attorney-General, “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 implied, according to him, that this specific reference to the government and parliament of India and legislature clearly indicates the exclusion of judiciary from the definition of “the State”. He says inclusion of articles 17, 23 and 24 as argued by Mr Setalvad being of significance is nonetheless not relevant to the present case and can only be claimed if they are suitably enforced by legislative enactments. As far as articles 20, 21 and 22 are concerned, the said articles cannot be claimed against courts and exist only against legislature and the executive. This way, therefore, the counsel on behalf of the respondents disputed the correctness of the petitions and put the judicial orders totally out of the ambit of article 32(1) contending such rights can only be claimed against the state whose definition clearly excludes the judicial orders.
2) Basically, state of Maharashtra as respondents 1, assuming the facts in the petitions to be correct argued on the lines of technicalities and amenability of a writ petition against the judicial orders. They contended that the learned judge has the inherent jurisdiction to pass such an order as he did, in his general capacity as a judge and his conduct of passing the impugned orders was held to be true on the base of providing fair play and justice to the witness of the case whose statement holds relevance in the impugned case. He said has the order not been passed, it would have caused injustice and annoyance to the witness who is also a citizen in good faith. Thus, they claim that Justice Tarkunde was legally sound to pass the impugned order restricting publication of statements of Mr. Goda who was the defence witness as the said publication could bring him defamation and losses in his business serving him none other than injustice in a fair open trial.
3) According to the respondents, the impugned order did not violate their fundamental right under article 19(1) as this right is not absolute and is posed with reasonable restrictions under clauses (2) to (6) of article 19. The said restriction on the publication of certain witness’ statements into the public domain has been done with the intention to serve justice and comfortability to the witness so that the true statements can be recorded for the better proceedings of the case. This comes under the ambit of reasonable restrictions which is done in public interest as it is preventing public unrest which may be caused against Mr. Goda, the said defence witness. Furthermore, the judicial orders are made in the inherent and general capacity of the bench to provide justice and mere restriction of certain publication does not render the whole impugned order as invalid. Freedom of press, falling under freedom of speech and expression(article19) is in itself not absolute and it is the court’s discretion to decide the ambit of reasonable restrictions put on it. The impugned order, therefore, has been done to maintain the confidentiality of the statements so as to provide the witness safe space to open up about the true facts of the case and help build up the proceedings in a just manner to serve ultimate justice to the parties.
The underlying course of judgement of the supreme court was to refute both sides of the contentions and laid down that the orders of Justice Tarkunde exceeded its jurisdiction and was thus illegal as it tends to impose a perpetual ban on publication leaving the audience of the proceedings confused and in vain. Thus, the orders cannot be sustained. It is being maintained in the course of law that the statements in an open trial are recorded to be put into the public domain so as to bring transparency in the serving of justice to the masses. However, these statements put for publication have to be recorded in writing to enable it to pass the test of being considered orders itself. In the present case, since the order to restrict the publication was not recorded and primarily the discretion of the judge in its general capacity being merely an oral proceeding, the writs are not maintainable. Moreover, the restriction put in the impugned orders do not necessarily violate the fundamental rights of the petitioners considering the fact that mere wrongfulness or invalidity of the orders does not imply breach of fundamental rights in itself. Additionally, it was agreed among the nine-judge bench of the supreme court that subordination of the high courts to the supreme courts are well justified and logical rendering the dismissal of following petitions valid. Therefore, it was decided that the best course of action which is also constitutionally valid would be to initiate the quashing of the said writ petitions.
The basic goal of the court is to bring justice to the people and society, but occasionally the announced judgement raises the problem of a breach of other rights of administration of justice, particularly in the case of a public trial. If a judge grants the authority to conduct a trial secretly, there is a cause for it. Because the court has many additional goals, such as restoring victims’ rights, preventing further violations of his/her rights throughout the trial, and protecting victims. As a result, the court does not hesitate to issue an order ordering a secret trial or prohibiting the release of any papers in the trial procedures.
The nine-judge bench of the apex court concluded their observations on various points of the facts and the law. Firstly, they observed that since the ban on publication of Mr. Goda’s statements on the proceedings is done during the regular course of proceedings, it can be said that it does not amount to permanent ban on the publication of the said evidence. In crux, the court set out many precedents supporting its stance on the case. After hearing contentions of both the parties, the court found the respondents’ side to be on a stronger side. It basically affirmed that the power exercised by the hon’ble high court is within its jurisdiction when it prohibited the ban on publication of the said evidence in the public domain to protect Mr. Goda from loss of reputation in business and ensure him justice as he demands. They referred to the cases such as, “Moosbrugger v. Moosbrugger” to emphasize the point that it would be irrational to hold that a court must hear every matter in public even if it is persuaded that doing so would undermine the goals of justice. Hence, the overriding factor of ensuring transparent public trials would be to compromise it in the fair administration of justice. As a result, whenever there is a contradiction between the claims of administration of justice and those of public trial, public trial must yield to administration of justice. In none of the examples cited, it was specifically stated that the court lacks inherent jurisdiction to convene a trial in camera if it is convinced that the objectives of justice necessitate it.
Secondly, on the question whether the impugned order violates the fundamental rights of the petitioners under article 19 1 (a), the bench looked into various facets of different precedents and concluded that the regular test of pith and substance applied to find out the validity of the legislation cannot apply to judicial decisions. In this implication, the contention of the petitioners that the impugned order violates their fundamental rights and thus not application does not hold water. It is the only existing case when the said order is not in its jurisdiction or out of the power vested by law, the decision of the court can be questioned. However, in this case too, the said order can only be set aside by an appeal, review petition or a revision petition and not by a writ of certiorari as in the present case. Writs are developed to protect the citizens’ rights committed by the state and judiciary marking its separate importance and working does not come under definition of the state. Even in the cases wherein any part of the order (but still not the whole order) is inconsistent with any principles of law or any of the fundamental rights, the said decision can be challenged in the apex court only by an appeal or revision petition. A decision of the court could be a wrong decision but it cannot be said to be contravening any fundamental rights as it destroys the very purpose of long drawn judgements and the judicial process in totality. Thus, the present petition stands disposed of, in both the scenarios. Moreover, It was held that the present matter was heard in inter-partes manner wherein both the parties were heard well before coming to a decision. If a court order issued by the High Court, such as the one at issue in the current proceedings, binds strangers (such as the journalists /petitioners in the present case), the strangers may dispute the order by filing an appeal under Article 136. It would not, however, be available to them to exercise this Court’s authority under Article 32 and request a writ of certiorari. The impugned order was issued in the exercise of the Court’s inherent power, and its legitimacy cannot be contested through writ proceedings. It is observed that there has been just an incidental encroachment on the basic rights by the impugned decision. Moreover, there is no such law as right to absolute hearing and thus violation of liberty of speech cannot be claimed against it. The clause 2 of article 19 in itself calls for reasonable restrictions in the “public interest” and since fair administration of justice is a matter of public interest, the impugned order stands still good in law and the result is these petitions fall and are dismissed. To support its contention, the court also proved its jurisdiction to pass such impugned orders good in the eyes of law as Budhan Chowdury v. Bihar State, a statement in the case states that until an element of intentional and purposeful discrimination is established, a court verdict will not amount to denial of equal protection under the law. The majority judgement passed it in favour of the respondents with the above justifications on their plate. However, Justice Hidyatullah delivered a minority judgement in favour of the petitioner which calls for such decision of the high court in an open trial to be illegal and can be challenged. He justifies that courts are not a separate entity and part of the country which binds them into the laws of the nation. Here, in this case Mr. Goda was the defence witness and made a request which the court obeyed blindly. This power which is generally exceptional for the courts was exercised quite easily in the present case, the hon’ble justice explained the possibility of this power of the court, if used frequently to get taken advantage of by the witty individuals of the society for the tampering of the evidence in any proceeding or just lying to the courts.
Various principles of law were cleared and laid down well through this comprehensive judgement of the nine-judge bench of the supreme court. It made it clear that the judicial orders are not subject to the writ petitions and can be questioned on the grounds of violating fundamental rights of the parties. They can be set aside through an appeal or a revision petition on the grounds of wrongfulness but not void. It also stated that no court of the same authority or the same bench have the jurisdiction to issue any writ of certiorari against the questioned decision of the other court except when the matter is ultra vires. Thus, the imposition of invoking writ jurisdiction of any high court cannot be initiated except in certain circumstances. It finally held that the ban on the publication of evidence should be first figured out as a perpetual or a temporary ban and only in case of a perpetual ban the court can be questioned. However, with the clear objective of fair justice or any matter of public interest, if any court has decided to hold any part of the trial in camera with reasonable justifications, it cannot be said to have made an invalid decision and no question on its jurisdiction can be invoked. Moreover, the incidental encroachment on any third party’s right too does not give him the rights to issue a writ petition against the said court and only the filing of appeal can be initiated if necessary.
written by Suhani Sharma intern under legal vidhiya.