Protector or Violator: Position of Judiciary under Article 12

Authored by Aaditya Vardhan Singh Rathore, 3rd-year law student at the Indian Institute of Management, Rohtak

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Introduction

Judiciary is one of the three pillars of a State, an independent Judiciary to be more accurate, along with the Legislature and the Executive. Talking about the Constitution, the State is defined under Article 12, which explicitly mentions the other two pillars but skips the Judiciary or maybe includes it implicitly under “other authority”. The term “Other Authority” has experienced continuous expansion in meaning and its ambit owing to numerous litigation and judicial interpretations. A question arose in front of the court as to “Whether Judiciary falls within the purview of Article 12?”. Gaining the status of a State makes an entity responsible and accountable for breaches of fundamental rights of citizens and non-citizens that result from its actions. Consequently, a judicial decision that allegedly contravenes a person's fundamental rights can be challenged on such grounds under Articles 32 and 226 at the Supreme Court and the High Court, respectively.

Judicial actions can be classified into two parts: substantive and procedural. The substantive part of the judicial process involves the application and interpretation of substantive law, possibly in contravention of fundamental rights. In contrast, the procedural part concerns the rules and methods by which courts handle civil and criminal cases. The judiciary also exercises administrative and rule-making powers in addition to its judicial role. The law is settled that judicial decisions are not within the ambit of Article 12, but the courts' administrative and rule-making power does fall within its ambit. The proposition that the Judiciary, in its entirety, should be classified as a State is concerning for several reasons, including a potential increase in litigation, weakening trust in the Judiciary, the question of who would regulate the Apex Court, and threats to the concept of the “finality of order”. However, do these challenges justify keeping the judiciary unaccountable and unresponsive to the public? If not the Apex Court, can at least the trial courts be kept under the purview of the State through reasonable classification?

Are The Present Remedies Sufficient?

It seems paradoxical that the Supreme Court provides increasing avenues to challenge its own decisions via “SLP” and “Curative Petitions” yet resists holding itself publicly accountable.

Present remedies against an order of Supreme Court include Writ petitions, Review Petitions, Special Leave Petitions and last Curative Petitions. Let us assume a criminal case where the High court order was challenged in the Supreme Court and the Supreme Court violated a fundamental right in its judicial proceedings and the aggrieved person files a writ for violation of his fundamental right which is not entertained because Judiciary do not fall under the ambit of “State” and cannot violate the fundamental rights of a person while acting under their judicial capacity. Thereafter, the aggrieved party files a review petition to the Supreme Court which shall pass the same bench of the Supreme Court who passed the decision. In India, including both Civil and Criminal, almost more than 25000 review petitions have been filed from 2011 to 2020 out of which only 57 applications were accepted by the Supreme Court and out of which how many of the decisions were amended or overturned is not available. But 57 out of 25000 gives us almost 0.2% as statistics. Supreme Court, being the epitome of justice, is assumed to be the most rational in its decision-making process but a deviation of 0.2% is still acceptable for which the right of review petition is available but is it efficient? Is the “patently gross unjust” decision addressed? The Mathura rape case doesn’t depict such a picture. An irrational judgment which was publicly criticized, and the legal fraternity accepts the mistake that has been committed by Supreme Court while attempting to deliver justice. Even an open letter was addressed to the Supreme Court, but no steps were taken for the same. Curative petition is nothing but “second-review petition” to the Supreme Court and since the inception of this concept in 2002 by Ashok Hurra case, 568 curative petitions have been filed by the litigants against the order of Supreme Court, taking the litigation to the final door.

The basic duty assigned to the judiciary is to enforce the fundamental rights of a person aggrieved and thereby protect their rights guaranteed under the Constitution. However, the judiciary itself falling under the state would mean it is equally capable of violating the fundamental rights of the person, which it is bound to protect. Theoretically, both cannot co-exist, i.e. being the protector as well as the violator of the same.

What If the Judiciary is a “State”?

Being a state means your actions can be challenged for violating fundamental rights guaranteed under Part III of the Constitution. Today, any act passed by the legislature or any executive action can be challenged in the courts for violation of fundamental rights through Article 32 writs, which allow approaching the Supreme Court directly. Article 32 is a fundamental right which can be exercised against the state.

A state operates under its three pillars: the Legislature, the Executive, and the Judiciary. The judiciary has the power to interpret and amend the law, a power it derives from the Constitution itself. Falling under the ambit of the state would change the current machinery of justice, i.e., a person would have a fundamental right to challenge a judicial decision on the ground of a violation of fundamental rights, rights presumed to be protected by the judiciary itself. This raises serious questions about who the Supreme Court will be accountable to as the highest authority, and who will oversee and address people's grievances regarding its decisions.

Challenge to the Finality of the Order

The order of Apex court binds person because their order constitutes finality of judgment” which cannot be challenged further. If we look at the present scenario, apart from a regular appeal that is submitted challenging a high court order or judgment on basis of “law”, there exists a fundamental right to appeal to Supreme Court on basis of violation of fundamental rights of the person due to actions of the state. Apart from that, the constitution provides a right to file for review of the order to the same bench of the Supreme Court that passed the order, only on grounds of “gross and patent injustice”, which is at the discretion of the Supreme Court to accept or not. Even though it is not explicitly mentioned in the Constitution, “Curative petitions” is a remedy developed by the judiciary itself to cater for the cases of such gross injustice which were not addressed in the earlier stages.

Such actions of the Apex Court of the country imply their acceptance that there might be cases where the Supreme Court itself could fail to deliver “Complete Justice” and therefore a remedy for such cases is provided. Advocating that the Judiciary itself should fall under “Article 12”, providing a ground to challenge the decision of the Apex court for violation of fundamental rights, seems redundant and does not serve any additional benefit. Doing so would extinguish the attribute of “finality of order” of the apex court, and there would be no end to the same, as there will always be an aggrieved party.

But on the other side, is the reason “finality of order” sufficient to deny the scope of challenge of judicial decision on the basis of the fundamental right of a person. The sleek possibility that fundamental rights of a person being denied should itself be sufficient ground to address the underlying problem, because after all, there is nothing grosser than the denial of fundamental rights enshrined in the Constitution.

Where There is a Right, There is a Remedy

The same argument of “finality of order”, standing alone as an insufficient reason, can be substantiated with the popular phrase “Ubi Jus Ibi Remedium”, meaning “Where there is a right, there is a remedy”. A state cannot deny a citizen's rights simply because the current system is unable to provide a remedy. The phrase doesn’t work vice versa, implying that right can only exist when there is a remedy. It is the duty of the state to provide a remedy to one whose rights have been infringed. Applying this analogy to the present discussion, just because the state cannot come up with an effective mechanism for addressing the problem of “finality of order”, that shouldn’t imply the absence of the right to approach the Supreme Court for violation of fundamental rights by a Judicial decision.

Conclusion

The relationship between the judiciary and Article 12 requires a careful balance between accountability and institutional finality. The principle demands that every organ whose actions deprive a person of constitutional rights should be answerable. Practical realities caution against transforming the judiciary into a source of endless litigation and eroding the finality that gives the justice system its stability. Judicial decisions as acts of adjudication have generally been kept outside Article 12, while administrative and rulemaking functions of courts have been subjected to scrutiny. That distinction should not become a blanket exemption for conduct that gravely infringes fundamental rights.

Empirical gaps in remedial efficacy illustrate the need for reform. The tiny proportion of review petitions accepted by the Supreme Court and the limited relief available through extraordinary remedies expose litigants to protracted uncertainty. Simultaneously, automatic inclusion of the entire judiciary under Article 12 would create procedural chaos, undermine the finality of the apex court's orders, and raise difficult questions about who supervises the apex forum. What is sought are active steps by the state to eliminate the 0.2% deviation in the current system and to provide aggrieved parties with a suitable mechanism for protecting their rights. It is emphasised that just because a suitable mechanism is not in force today, it doesn’t mean that there cannot be one.