Name of the judgment: Naresh Shridhar Mirajkar and Ors. vs. State of Maharashtra and Anr.

Citation: 1967 AIR, 1 1966 SCR (3) 744

Date of Judgment: 3^rd March, 1966

Court Name: Supreme Court of India

Bench: P.B. Gajendragadkar (CJ), A.K. Sarkar (J), K.N. Wanchoo(J), M. Hidayatullah (J), J.C. Shah (J), J.R. Mudholkar (J), S.M. Sikri (J), R.S. Bachawat (J), and V. Ramaswami, (J).

Relevant Articles: Articles 14, 19 (1), 32, 136, 215 and 226 of the Indian Constitution.

 Summary of Facts: China Cotton Exporters, of which Mr. Thackersey was a partner, had obtained licences for import of art silk yarn on condition that the same would be sold to handloom weavers only. In order to sell the said silk yarn in the black market with a view to realise higher profits, three bogus handloom factories were created on paper. Bhaichand G. Goda was alleged to have been the guarantor in respect of the transactions mentioned in the said suits and was a defence witness in the libel suit.  The allegations made by Mr. Goda against Mr. Thackersay in an affidavit were published in the paper ‘Blitz’ edited by Mr. R. K. Karanjia, one of the parties in the original libel suit under article “Scandal Bigger than Mundhra”.

During the course of the trial, the said Bhaichand Goda was called as a defence witness by Mr. Karanjia. In the witness-box, Mr. Goda feigned complete ignorance of the said transactions; and under 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. Thereupon, Mr. Karanjia applied for permission to cross-examine Mr. Goda and the said permission was granted by the learned Judge. On Friday, the 23rd October, 1964, Mr. Goda stepped into the witness-box and on that occasion he moved the learned Judge that the latter should protect him against his evidence being reported in the press. He stated that the publication in the press of his earlier evidence had caused loss to him in business; and so, he desired that the evidence which he had been recalled to give should not be published in the papers. When this request was made by Mr. Goda, arguments were addressed before the learned Judge and he orally directed that the evidence of Mr. Goda should not be published. The learned Judge then told the counsel for Mr. Karanjia that ‘Blitz’ should be told not to publish reports of Mr. Goda’s evidence.

Mr. Karanjia had urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and challenged the correctness of the said order and alternatively suggested to the learned Judge that he should pass a written order forbidding publication of Mr. Goda’s evidence. The learned Judge, however, rejected Mr.Karanjia’s contentions and stated that he had already made an oral order forbidding such publication, and that no written order was necessary. He added that he expected that his oral order would be obeyed. The petitioner felt aggrieved by the said oral order passed by the High Court Justice and moved the Bombay High Court by a Writ Petition under Art. 226 of the Constitution. The said petition was, however, dismissed by a Division Bench of the said High Court on the ground that the impugned order was a judicial order of the High Court and was not amenable to a writ under Art. 226. That is the reason the petitioner moved the Supreme Court under Art. 32 for the enforcement of his fundamental rights under Art. 19(1) (a) and (g) of the Constitution.

Issues before the Court: The question which arises from the above facts is whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari issued by the Supreme Court under Art. 32 (2). This question has two broad facets:

a)      Does the impugned order violate the fundamental rights of the petitioners under Art. 19(1) (a), (d) and (g);

b)      If it does, is it amenable to the writ jurisdiction of the Supreme Court under Art. 32 (2)?

Arguments by the Petitioner: The petitioners urge that the fundamental rights of citizens guaranteed by Art. 19(1) are absolute, except to the extent that they are restricted by reasonable restrictions imposed by law within the limitations prescribed by clauses (2) to (6) of Art. 19. According to them, it is doubtful whether even the Indian Legislatures have the power to ban publication of faithful reports of proceedings in the Legislatures, much less can the courts have power to ban such publication. They also allege that a restriction imposed in the interests of the witness cannot be held to be justified under Art. 19 (2), and that in passing the impugned order, the learned Judge had exceeded his jurisdiction.

The petitioner also urges that the fundamental rights guaranteed to the citizens by Part III of the Constitution are very wide in their scope; and the right to move the Supreme Court by an aggrieved citizen is not limited to his right to move only against the Legislature or the Executive. Art. 32(1) is very wide in its sweep and no attempt should be made to limit or circumscribe its scope and width. The right conferred on the citizens of this country by Art. 32(1) is itself a fundamental right; and so as soon as it is shown that the impugned order has contravened his fundamental rights under Art. 19(1), the petitioner is entitled, as a matter of guaranteed constitutional right, to move the Supreme Court under Art. 32. The power to issue writs conferred on the Supreme Court of India by Art. 32(2) is a very wide power, and it includes the power to issue not only the writs therein specified, but also directions or orders in the nature of the said specified writs.

The said order by the High court cannot claim immunity from being challenged under Art. 32, because some of the fundamental rights guaranteed are clearly directed against courts. In support of this contention, he relies on the fundamental rights guaranteed by Art. 20 (1) & (2), Art. 21, and Art. 22 (1). These Articles refer to protection in respect of conviction for offences, protection of life and personal liberty, and protection against arrest and detention in certain cases, respectively. Read with Art. 32(1) and (2) together in this broad perspective and it would follow that if a judicial order contravenes the fundamental rights of the citizen under Art. 19(1), he must be held entitled to move this Court under Art. 32(1) and (2).

Arguments by the Respondent: According to the respondent, the impugned order was passed by the learned Judge in exercise of his general and inherent powers and he was justified in making such an order, because in his opinion, the excessive publicity attendant upon the publication of Mr. Goda’s evidence would have caused annoyance to the witness or the parties, and might have led to failure of justice. It urges that it is for the Judge trying the suit to consider whether in the interests of the administration of justice, such publication should be banned or not. According to the respondent, the impugned order cannot be said to affect the petitioners’ fundamental rights under Art. 19(1); and that even otherwise, it is protected under Art. 19 (2).

Respondent No. I also contends that the High Court being a superior Court of Record, is entitled to determine questions of its own jurisdiction; and orders like the impugned order passed by the High Court in exercise of its inherent jurisdiction are not amenable to the writ jurisdiction of this Court under Art. 32 (2) of the Constitution. It was contended that the scope of Art. 32(1) is not as wide as the petitioner suggests. He argues that in determining the scope and width of the fundamentals rights guaranteed by Part III of the Constitution, with a view to decide the extent of the fundamental right guaranteed by Art. 32(1), it is necessary to bear in mind the definition prescribed by Art. 12. Under Art. 12, “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. He specifically emphasises the fact that the Judicature is intended to be excluded from the said definition. Before a citizen can be permitted to move this Court under Art. 32(1) for infringement of certain fundamental rights, it must be shown that the said rights have been made enforceable by appropriate legislative authority.

In regard to Articles 20, 21 and 22, the respondent’s argument is that the protection guaranteed by the said Articles is intended to be available against the Legislature and the Executive, not against courts. That is how he seeks to take judicial orders completely out of the scope of Art. 32 (1). According to him, private rights, though fundamental in character, cannot be enforced against individual citizens under Art. 32 (1).

Majority Judgment:  Regarding the first question of law, it was held that the argument that the impugned order affects the fundamental rights of the petitioners under Art. 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. It is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19(1). Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Art. 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners’ fundamental rights under Art. 19(1), must fail.

Obiter dicta: The administration of justice is the primary object of the work done in courts; and so, if there is a conflict between the claims of administration of justice itself and those of public trial, public trial must yield to administration of justice. If the High Court thus had inherent power to hold the trial of a case in camera, provided, of course, it was satisfied that the ends of justice required such a course to be adopted, it would not be difficult to accept the argument urged by the Respondent that the power to hold a trial in camera must include the power to hold a part of the trial in camera, or to prohibit excessive publication of a part of the proceedings at such trial. Moreover, the impugned order prevented the publication of Mr. Goda’s evidence during the course of the trial and not thereafter.

Regarding the second question of law, if a judicial order made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Art. 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Art. 32. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings.  It was also held that the High Court is a superior Court of Record and under Art. 215, shall have all powers of such a Court of Record including the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to consider questions of their jurisdiction raised before them. So far as the jurisdiction of the Supreme Court to issue writs of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. The words used in Art. 32 are no doubt wide; but having regard to the considerations which has been set out in the course of this judgment, the Hon’ble Judges were satisfied that the impugned order cannot be brought within the scope of this Court’s jurisdiction to issue a writ of certiorari under Art. 32. The result is, the petitions fail and are dismissed.

Obiter dicta: It was not disputed that where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move this Court under Art. 32.

Dissenting Judgment: Justice Hidayatulla held that the order of Mr. Justice Tarkunde of Bombay High Court imposing suppression of the reporting of the deposition of Goda was illegal and without jurisdiction. It was not in his power to make such an order on the ground he was moved and further because the order either purports to impose a perpetual ban or leaves the matter in doubt, thus placing those concerned with the publication of the report under a virtual sword of Damocles, the order cannot be sustained. It is not right to assume that courts possess a general or inherent power of dispensing with open and public trials. The rule about reporting of cases in court is this: what takes place in court is public and the publication of the proceedings merely enlarges the area of the court and gives to the trial that added publicity which is favoured by the rule that the trial should be open and public. It is only when the public is excluded from audience that the privilege of publication also goes because the public outside then have no right to obtain at second- hand what they cannot obtain in the court itself. Mr. Justice Tarkunde, having held a public trial, could not curtail the liberty of the press by suppressing the publication of the reports.

Regarding the second point it was laid down that as the Judge passed no recorded order; the appropriate remedy (in fact the only effective remedy) is to seek to quash the order by a writ under Art. 32 of the Constitution. Under the total scheme of the Constitution the subordination of High Courts to the Supreme Court is not only evident but is logical. Therefore the Supreme Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights.

Effect of the Judgment: The majority judgment about the power of the Supreme Court to issue a writ Article 32 to the High Court or another bench of the same Court was upheld in a number of judgments in the later years such as in A.R.Antulay vs. R.S. Nayak and Anr. (1988)[1] where this judgment was relied upon by the Apex Court to hold that the judicial proceedings in this Court are not subject to the writ jurisdiction under Article 32 of the Constitution and that is so on account of the fact that Benches of this Court are not subordinate to larger Benches thereof and certiorari is not admissible thus for quashing of the Orders made on the judicial side of the court. The same was upheld by the Supreme Court again in Ajit Kumar Barat vs. Secretary, Indian Tea Association and Ors (2001)[2] and many other subsequent cases. So in that regard this particular judgment has become a landmark judgment.

The judgment on the publication of media reports of trial has led to the fact that usually publications in media regarding an ongoing trial can be held as a contempt of court if it prejudices judicial proceeding or interferes with administration of justice. In the 200th Law Commission Report (2016) on "Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)” it was proposed that publication which are prejudicial towards the accused should be held as contempt of court even before a charge sheet is filed and right from the time an arrest is made.[3] The Hon'ble Supreme Court in the case of R.K. Anand vs. Registrar, Delhi High Court (2009)[4] upheld journalistic freedom and the freedom of speech of the media unless it is in contempt of court under the Contempt of Courts Act, 1971.  However, in Inspector Anil Kumar vs. M/S. I Sky B (2016)[5] it was held that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings. It is unthinkable to allow destroying the essential power and duty to protect fair trial of persons accused of crimes because this is an extreme form of 'trial by media' who usurps the function of the Court without the safeguards of procedure, right to cross-­examine etc. and such publications prejudge the facts and influence the Court, witnesses and others.

Case Comment: The judgment that the Supreme Court of India does not have the jurisdiction to issue a writ of certiorari to the High Court or another bench of the same Court under Article 32, unless the judgment is ultra-vires, has become a well established principle of Indian law. The majority decision had been right in the matter for the reason that the learned judges pass any order after much careful consideration and an aggrieved party always has the path of appeal open to it. Therefore the question of issuing a writ of certiorari does not arise except under extreme circumstances.

The Apex Court’s majority judgment that if publication in media of facts and evidence regarding an ongoing trial is prohibited then it does not breach the fundamental right of freedom of speech is actually right as has been proved by subsequent legislations and case laws. Fair trial and justice is of foremost importance and therefore anything that may prejudice or interfere with the course of justice should not be held to be a contempt of court as is also laid down in Article 19 (2). The scope for this needs to be widened in light of the current circumstances of media trial in the Sushant Singh Rajput case.