Naresh Shridhar Mirajkar and Ors. Vs State of Maharasthra

MANU/SC/0044/1966
Equivalent Citation: AIR1967SC 1, [1966]3SC R744
IN THE SUPREME COURT OF INDIA

W.Ps. Nos. 5 and 7 to 9 of 1965
Decided On: 03.03.1966
Appellants: Naresh Shridhar Mirajkar and Ors.
Vs.
Respondent: State of Maharashtra and Ors.
Hon'ble Judges/Coram:
P.B. Gajendragadkar, C.J., A.K. Sarkar, J.C. Shah, J.R. Mudholkar, K.N. Wanchoo, M.
Hidayatullah, R.S. Bachawat, S.M. Sikri and Vaidynathier Ramaswami, JJ.
Case Note:
Constitution - writ against judicial Order - Order 35 Rule 12 and Order 39
Rule 1 of Code of civil Procedure, 1908 - in a defamation case instituted
against publisher of English Weekly "Blitz" Judge made oral Order forbidding
publication of evidence of a witness - such Order was passed to prevent
witness from risk of excessive publicity - aggrieved by said Order petitioners
who were reporters filed writ petition before High Court which was dismissed
on ground that impugned Order was judicial Order of High Court and was not
amenable to writ under Article 226 - petitioners then moved Supreme Court
under Article 32 for enforcement of fundamental rights under Article 19 (1)
(a) and (g) of Constitution - impugned Order prevented publication of
evidence of witness during course of trial and not thereafter - Courts possess
inherent jurisdiction to hold trial in camera if satisfied that ends of justice so
require - pith and substance of impugned Order was to give protection in
order to obtain true evidence with a view to do justice - its incidental effect
does not invalidate it under Article 19 (1) (g) - when judicial Order made by
High Court binds strangers they may challenge Order in appeal under Article
136 but not under writ proceedings - judicial Orders of High Court are not
amenable to be corrected by Supreme Court by issuing writ of certiorari -
petition dismissed.
JUDGMENT
P.B. Gajendragadkar, C.J.
1 . The petitioner in Writ Petition No. 5 of 1965 - Naresh Shridhar Mirajkar, who is a
citizen of India, serves as a Reporter on the Staff of the EnglishWeekly "Blitz" published
in Bombay and edited by Mr. R. K. Karanjia. It appears that Mr. Krishnaraj M. D.
Thackersey sued Mr. R. K. Karanjia (Suit No. 319 of 1960) on the Original Side of the
Bombay High Court, and claimed Rs. 3 lakhs by way of damages for alleged malicious
libel published in the Blitz on the 24th September, 1960, under the caption "Scandal
Bigger Than Mundhra". This suit was tried by the Mr. Justice Tarkunde.
2. One of the allegations which had been made in the said article was to the effect that
China Cotton Exporters, of the which Mr. Thackersey was a partner, had obtained
licences for import of art silk yarn on condition that the same would be sold to
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handloom weavers only; and that 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
the paper and bills and invoices were made with a view to create the impression that
the condition on which the licences had been granted to China Cotton Exporters, had
been complied with Mr. Thackersey's concern had thus sold the said yarn in the black-
market and thereby concealed from taxation the large profits made in that behalf. These
allegations purported to be based on the papers filed in Suits Nos. 997 and 998 of 1951
which had been instituted by China Cotton Exporters against National Handlooms
Weaving Works, Rayon Handloom Industries, and one Bhaichand G. Goda. The said
Bhaichand G. Goda was alleged to have been the guarantor in respect of the
transactions mentioned in the said suits.
3 . The said Bhaichand Goda had, in the course of insolvency proceedings which had
been taken out in execution of the decrees passed against him, made an affidavit which
seemed to support the main points of the allegations made by the Blitz in its article
"Scandal Bigger Than Mundhra".
4 . 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 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 in the said affidavit. Thereupon, Mr. Karanjia applied for
permission to cross-examine Mr. Goda and the said permission was granted by the
learned Judge. Accordingly, Mr. Goda came into to be cross-examined by Mr. Karanjia's
counsel.
5. Later, during the course of further proceedings, it was discovered that Mr. Goda had
made several statements before the Income-tax authorities in which he had reiterated
some of the statements made by him in his affidavit on which he was cross-examined.
From the said statements it also appeared that he had alleged that in addition to the
invoice price of the transactions in question, he had paid Rs. 90,000/- as "on money" to
China Cotton Exporters. As a result of the discovery of this material, an application was
made by Mr. Karanjia before the learned Judge for permission to recall Mr. Goda and
confront him with the statements which he had made before the Income-tax authorities.
The learned Judge granted the said application.
6 . On Friday, the 23rd October, 1964, Mr. Goda stepped into the witness-box in
pursuance of the order passed by the learned judge that he should be recalled to further
examination. 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. It was pointed out to the learned Judge that the daily press viz., 'The Times
of India' and 'The Indian Express' gave only brief accounts of the proceedings before
the Court in that case, whereas the 'Blitz' gave a full report of the said proceedings. The
learned Judge then told Mr. Zaveri, Counsel for Mr. Karanjia that the petitioner who was
one of the reporters of the 'Blitz' should be told not to publish reports of Mr. Goda's
evidence in the 'Blitz'. The petitioner had all along been reporting the proceedings in
said suit in the columns of the 'Blitz'.
7. On Monday, the 26th October, 1964, Mr. Chari appeared for Mr. Karanjia and urged

before the learned Judge that the fundamental principle in the administrations of justice
was that it must be open to the public and that exceptions to such public administration
of justice were rare, such as that of a case where a child is a victim of a sexual offence,
or of a case relating to matrimonial matter where sordid details of intimate relations
between spouses are likely to come out, and proceedings in regard to official secrecy.
Mr. Chari further contended that no witness could claim protection from publicity on the
ground that if the evidence is published it might be adversely affect his business. Mr.
Chari, therefore, 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. Chari'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.
8 . The petitioner felt aggrieved by the said oral order passed by Mr. Justice Tarkunde
and move the Bombay High Court by a Writ Petition No. 1685 of 1964 under Art. 226 of
the Constitution. The said petition was, however, dismissed by a Division Bench of the
said High Court on the 10th November, 1964 on the ground that the impugned order
was judicial order of the High Court and was not amenable to a writ under Art. 226.
That is how the petitioner has moved this Court under Art. 32 for the enforcement of his
fundamental rights under Art. 19(1)(a) and (g) of the Constitution.
9. Along with this petition, three other petitions have been filed in this Court; they are
Writ Petitions Nos. 7, 8, and 9 of 1965. Mr. P. R. Menon, Mr. M. P. Iyer, and Mr. P. K.
Atre, the three petitioners in these petitions respectively, are Journalists, and they have
also challenged the validity of the impugned order and have moved this Court under
Art. 32 of the Constitution for enforcement of their fundamental rights under Art. 19(1)
(a) and (g). It appears that these three petitioners were present in court at the time
when the impugned order was passed and they were directed not to publish the
evidence given by Mr. Goda in this respective papers.
10. All the petitioners challenge the validity of the impugned order on several grounds.
They 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 clause (2) to (6) of Art. 19. According to them, it is
doubtful whether even the Indian Legislatures have the power to ban publication of the
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 the passing the
impugned order, the learned Judge had exceeded his jurisdiction. It is plain that the
basic assumption on which the petitions are founded, is that the impugned order
infringes their fundamental rights under Art. 19(1) and that it is not saved by may of
the provisions contained in clause (2) to (6). To these petitions, the State of
Maharashtra and Bhaichand Goda have been impleaded as respondents 1 and 2
respectively.
11. Respondent No. 1 has disputed the correctness and the validity of the contentions
raised by the petitioners in support of their petitions under Art. 32. In regard to factual
matters set out in the petitions, respondent No. 1 has naturally no personal knowledge;
but for the purpose of these petitions, it is prepared to assume that the facts alleged in
the said petitions are correct. Accordingly to respondent No. 1, 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 respondent No. 1, 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. 1 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. That, broadly stated, is
the nature of the allegations made by the respective parties in the present proceedings.
12. At the hearing of these petitions, the arguments advanced before us on both the
sides have covered a very large field. It has been urged by Mr. Setalvad who argued the
case of petitioner in Writ Petition No. 5 of 1965, that 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, he argues that 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 this Court under Art. 32. Mr. Setalvad also
urges that the extent of the jurisdiction of this Court to issue a writ of certiorari must be
determined in the light of the width of the guaranteed right conferred on the citizens by
Art. 32(1). The power to issue writs conferred on this Court by Art. 32(2) is 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 test in exercising the
power under Art. 32(2) inevitably has to be : if the fundamental right of a citizen has
been breached, which is the appropriate writ, direction, or order that should issue to
remedy the said breach ?
13. According to Mr. Setalvad, the fundamental rights guaranteed to the citizens by Part
III are very wide in the their scope; and the right to move this Court by an aggrieved
citizen is not limited to his right to move only against the Legislature or the Executive.
If an individual citizen contravenes the fundamental rights of another citizen, the
aggrieved citizen can, according to Mr. Setalvad, move this Court for an appropriate writ
under Art. 32(1) & (2). As illustrations supporting this proposition, Mr. Setalvad
referred us to the fundamental rights guaranteed by Articles 17, 23 and 24. Article 17
abolishes 'untouchability'. If in spite of the abolition of 'untouchability' by constitutional
provision included in Part III, any private shop-keeper, for instance, purports to enforce
untouchability against a Harijan citizen, the said citizen would be entitled to move this
Court for a proper order under Art. 32(1) & (2). Similar is the position in regard to
fundamental rights guaranteed by Articles 23 and 24. Art. 23 prohibits traffic in human
beings and forced labour, whereas Art. 24 prohibits employment of children to work in
any factory or mine or their engagement in any other hazardous employment.
1 4 . In regard to judicial orders passed by courts, Mr. Setalvad says the said order
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 Art. 32(1) and (2) together in this broad perspective,
says Mr. Setalvad 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) & (2).
15. On the other hand, the learned Attorney-General contends that the scope of Art.
32(1) is not as wide as Mr. Setalvad suggests. He argues that in determining the scope
and width of the fundamental rights guaranteed by Part III, 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, according to 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. He
elaborated his point by suggesting that the reference to the Government and Parliament
of India and the Government and the Legislature of each of the States specifically
emphasises the fact that the Judicature is intended to be excluded from the said
definition. He argues that the fundamental rights guaranteed by Articles 17, 23 and 24
on which Mr. Setalvad relies are, no doubt, of paramount importance; but before a
citizen can be permitted to move this Court under Art. 32(1) for infringement of the said
rights, it must be shown that the said rights have been made enforceable by the
appropriate legislative enactments. In regard to Articles 20(1), 21 and 22, his argument
is that the protection guaranteed by the said Article 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).
16. We have referred to these respective arguments just to indicate the extent of the
field which has been covered by learned counsel who assisted us in dealing with the
present petitions. As this Court has frequently emphasised, in dealing with
constitutional matters, it is necessary that the decision of the Court should be confined
to the narrow points which a particular proceeding raises before it. Often enough, in
dealing with the very narrow point raised by a writ petition, wider arguments are urged
before the Court; but the Court should always be careful not to cover ground which is
strictly not relevant for the purpose of deciding the petition before it. Obiter
observations and discussion of problems not directly involved in any proceeding should
be avoided by courts in dealing with all matters brought before them; but this
requirement becomes almost compulsive when the Court is dealing with constitutional
matters. That is why we do not propose to deal with the larger issues raised by the
learned counsel in the present proceedings, and we wish to confine our decision to the
narrow points which these petitions raise.
1 7 . Let us, therefore, indicate clearly the scope of the enquiry in the present
proceedings. The impugned order has been passed by the learned Judge in the course
of the trial of a suit before him after hearing the parties; and having regard to the
circumstances under which the said order was passed, and the reasons on which it is
presumably based, we are inclined to hold that what the order purports to do is to
prohibit the publication of Mr. Goda's evidence in the Press during the progress of the
trial of the suit. We do not read this order as imposing a permanent ban on the
publication of the said evidence.
1 8 . On these facts, the question which arises for our decision 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 this Court under Art. 32(2). This question has two broad
facets; does the impugned order violate the fundamental rights of the petitioners under

Art. 19(1)(a), (d) and (g); and if it does, is it amenable to the writ jurisdiction of this
court under Art. 32(2) ? Thus, in the present proceedings, we will limit our discussion
and decision to the points which have a material bearing on the broad problem posed
by the petitions before us.
1 9 . Let us begin by assuming that the petitioners who are Journalists, have a
fundamental right to carry on their occupation under Art. 19(1)(g); they have also a
right to attend proceedings in court under Art. 19(1)(d); and that the right to freedom
of speech and expression guaranteed by Art. 19(1)(a) includes their right to publish as
Journalists a faithful report of the proceedings which they have witnessed and heard in
court. In Sakal Papers (P) Ltd. and Others v. The Union of India MANU/SC/0090/1961 :
[1962]3SCR842 , it has been held by this court that the freedom of speech and
expression guaranteed by Art. 19(1)(a) includes the freedom of press. That being so,
the questions which we have to consider is : does the impugned order contravene the
petitioners fundamental rights to which we have just referred ?
20. Before dealing with this question, it is necessary to refer to one incidental aspect of
the matter. It is well-settled that in general, all cases brought before the Courts,
whether civil, criminal, or others, must be heard in open Court.
Public trial in open court is undoubtedly essential for the healthy, objective and fair
administration of justice. Trial held subject to the public scrutiny and gaze naturally acts
as a check against judicial caprice or vagaries, and serves as a powerful instrument for
creating confidence of the public in the fairness, objectivity, and impartiality of the
administration of justice. Public confidence in the administration of justice is of such
great significance that there can be no two opinions on the broad proposition that in
discharging their functions as judicial Tribunals, courts must generally hear causes in
open and must permit the public admission to the court room.
As Bentham has observed :
"In the darkness of secrecy sinister interest, and evil in every shape, have full swing.
Only in proportion as publicity has place can any of the checks applicable to judicial
injustice operate. Where there is no publicity there is no justice. Publicity is the very
soul of justice. It is the keenest spur to exertion, and surest of all guards against
improbity. It keeps the Judge himself while trying under trial (in the sense that) the
security of securities is publicity". (Scott v. Scott (1911) All. E.R. 1, 30))
2 1 . Having thus enunciated the universally accepted proposition in favour of open
trials, it is necessary to consider whether this rule admits of any exceptions or not.
Cases may occur where the requirement of the administration of justice itself may make
it necessary for the court to hold trial in camera. While emphasising the importance of
public trial, we cannot overlook the fact that the primary function of the Judiciary is to
do justice between the parties who bring their cause before it. If a Judge trying a cause
is satisfied the very purpose of finding truth in the case would be retarded, or even
defeated if witnesses are required to give evidence subject to public gaze, is it or is it
not open to him in exercise of his inherent power to hold the trial in camera either
partly or fully ? If the primary function of the court is to do justice in causes brought
before it, then on principle, it is difficult to accede to the proposition that there can be
no exception to the rule that all causes must be tried in open court. If the principle that
all trial before courts must the be held in public was treated as inflexible and universal
and it is held that it admits of no exception whatever, cases may arise where by
following the principle, justice itself may be defeated. That is why we feel no hesitation
in holding that the High Court has inherent jurisdiction to hold a trial in camera if the

ends of justice clearly and necessarily require the adoption of such a course. It is hardly
necessary to emphasise that this inherent power must be exercised with great caution
and it is only if the court is satisfied beyond the doubt that the ends of justice
themselves would be defeated if a case is tried in open court that it can pass an order to
hold the trial in camera; but to deny the existence of such inherent power to the court
would be to ignore the primary object of adjudication itself. The principle underlying
the insistence on hearing causes in open court is to protect and assist fair, impartial and
objective administration of justice; but if the requirement of justice itself sometimes
dictates the necessity of trying the case in camera, it cannot be said that the said
requirement should be sacrificed because of the principle that every trial must be held
in open court. In this connection it is essential to remember that public trial of causes is
a means, though important and valuable, to ensure fair administration of justice; it is a
means, not an end. It is the fair administration of justice which is the end of judicial
process, and so, if ever a real conflict arises between the fair administration of justice
itself on the one hand, and public trial on the other, inevitably, public trial may have to
be regulated or controlled in the interest of administration of justice. That, in our
opinion, is the rational basis on which the conflict of this kind must be harmoniously
resolved. Whether or not in the present case such a conflict did infact arise, and
whether or not the impugned order is justified on the merits, are matters which are
irrelevant to the present enquiry.
22. Whilst we are dealing with this question it would be useful to refer to the decision
of the House of Lords in Scott v. Scott (1911) All. E.R. 1. In that case a Judge of the
Divorce Court had made an order that a petition for a decree of nullity of marriage
should be heard in camera, but after the conclusion of the proceedings, one of the
parties published to third parties a transcript of the evidence given at the hearing of the
suit; and the question which arose for decision was whether by such publication, the
party concerned had committed contempt. The House of Lords held that assuming that
the order for hearing the case in camera was valid, it was not effective to enjoy
perpetual silence on all persons with regard to what took place at the hearing of the
suit, and, therefore, the party publishing the evidence was not guilty of contempt of
Court.
23. Dealing with the question about the power of an ordinary court of justice to hear in
private, Viscount Haldane, L.C., observed that whatever may have been the power of the
ecclesiastical court, the power of an ordinary court of justice to hear in private cannot
rest merely on the discretion of the Judge or on his individual view that it is desirable
for the sake of public decency or morality that the hearing should take place in private.
If there is any exception to the broad principle which requires the administration of
justice to take place in open court, that exception must be based on the application of
some other and over-riding principle which defines the field of exception and does not
leave its limits to the individual discretion of the Judge.
2 4 . Looking at the problem from another point of view, Viscount Haldane, L.C.
observed that while the broad principle is that the courts of this country must, as
between the parties, administer justice in public, this principle is subject to apparent
exceptions. By way of illustration, reference was made to two cases of wards of court
and of lunatics where the court is really sitting primarily to guard the interest of the
ward or the lunatic. In such matters, the jurisdiction of the court was in a sense,
parental and administrative. That is how the broad principle which ordinarily governs
open public trial, yields to the paramount duty which is the care of the ward or the
lunatic. Similarly, in regard to litigation as to a secret process, where the effect of
publicity would be to destroy the subject-matter, trial in camera would be justified,

because in such a case, justice could not be done at all if it had to be done in public
(1911) All. E.R. 8. In other words, unless it be strictly necessary for the attainment of
justice, there can be no power in the court to hear in camera either a matrimonial cause
or any other where there is a contest between parties. He who maintains that by no
other means than by such a hearing can justice be done may apply for an unusual
procedure. But he must make out his case strictly, and bring it up to the standard which
the underlying principle requires. He may be able to show that the evidence can be
effectively brought before the court in no other fashion. In either case, he must satisfy
the court that by nothing short of the exclusion of the public can justice be done.
25. It would thus be noticed that according to Viscount Haldane, L.C., though it is of
the essence of fair and impartial administration of justice that all causes must be tried
in open court, cases may arise where the court may be satisfied that evidence can be
effectively brought before it only if the trial is held in camera; and in such cases, in
order to discharge its paramount duty to administer justice, the court may feel
compelled to order a trial in camera.
26. The same principle has been enunciated by the other Law Lords, though they have
differed in their approach as well as in their emphasis. We do not propose to refer to
the statements made in the speeches of the other Law Lords, because it is clear that on
the whole, the principles laid down by Viscount Haldane, L.C., appear to have received
general approval from the other Law Lords. There are, no doubt, certain observations in
the speeches of some Law Lords which seem to suggest that there would be no power
in the court to hear a case in camera, except in the recognised cases of exceptional
character to which Viscount Haldane L.C. referred. Lord Shaw, for the instance,
observed that
I am of opinion that the order to hear this case in camera was beyond the
power of the Judge to pronounce. I am further of opinion that, even on the
assumption that such an order had been within his power, it was beyond his
power to impose a suppression of all reports of what passed at the trial after
the trial had come to an end". (p. 29).
It must be remembered that the order with which the House of Lord was dealing, had
imposed a perpetual prohibition against the publication of the proceedings in court; and
naturally, there was unanimity in the view expressed by the House of Lords that such a
drastic order was not justified. That is why the conclusion of the House of Lords was
that by publishing the proceedings at the end of the trial, the party concerned had not
committed contempt of court. It would thus be clear from the decision of the House of
Lords in Scott v. Scott (1911) All. E.R. 8 that courts of justice have no power to hear
cases in camera even by consent of the parties, except in special cases in which a
hearing in open court might defeat the ends of justice. therefore, as a bare proposition
of law, it would be difficult to accede to the arguments urged by the petitioners before
us that the High Court had no jurisdiction to pass the impugned order.
2 7 . This question has been considered by English Courts on several occasion. In
Moosbrugger v. Moosbrugger and Moosbrugger v. Moosbrugger and Martin, (1912) 29
T.L.R. 658 where in a divorce proceeding it was urged before the President that if the
case was heard in public, it would become almost impossible for the lady to give her
evidence and in that case justice would or might be defeated, on being satisfied that the
plea thus made on behalf of the witness was well-founded, the President directed that
the evidence of the witness shall be that recorded in camera. The court was thereupon
cleared and the witness gave evidence in camera. It is significant that the case had been

opened in public and was being tried in public; only a part of the trial was, however,
held in camera, because the President was satisfied that unless the witness was allowed
to depose the in camera, she would not be able to disclose the whole truth.
28. Similarly, in Re Green (a bankrupt), Ex Parte The Trustee (1958) 2 All.E.R. 57,
Jenkins, L.J. was moved to hear a bankruptcy petition in camera. After hearing
arguments, he was satisfied that the interests of justice required that the application for
hearing the case in camera was justified. Accordingly the application was heard in
camera.
29. We have referred to these decisions by way of illustration to emphasis the point the
that it would be unreasonable to hold that a court must hear every case in public even
though it is satisfied that the ends of justice themselves would be defeated by such
public trial. The overriding consideration which must determine the conduct of
proceedings before a court is fair administration of justice, Indeed, the principle that all
cases must be tried in public is really and ultimately based on the view that it is such
public trial of cases that assists the fair and impartial administration of justice. The
administration of justice is thus 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. In none of the cases to
which we have referred was it expressly held that the court does not possess inherent
jurisdiction to hold a trial in camera if it is satisfied that the ends of justice required the
adoption of such a course.
30. 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 learned
Attorney General 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. What would meet the ends of justice will always depend upon
the facts of each case and the requirements of justice. In a certain case, the Court may
feel that the trial may continue to be a public trial, but that the evidence of a particular
witness need not receive excessive publicity, because fear of such excessive publicity
may prevent the witness from speaking the truth. That being so, we are unable to hold
that the High Court did not posses inherent jurisdiction to pass the impugned order. We
have already indicated that the impugned order, in our opinion, prevented the
publication of Mr. Goda's evidence during the course of the trial and not thereafter.
31. Before we part with this topic, we would like to refer to certain statutory provisions
which specifically deal with the topic of holding trials in camera.
32. Section 53 of Act. 4 of 1869 which was passed to amend the law relating to Divorce
and Matrimonial Causes in India provides that the whole or any part of any proceeding
under this Act may be heard, if the Court thinks fit, with closed doors.
3 3 . Similarly, section 14 of the Indian Official Secrets Act, 1923 (No. 19 of 1923)
provides that in addition and without prejudice to any powers which a Court may
possess to order the exclusion of the public from any proceedings if, in the course of
proceedings before a Court against any person for an offence under this Act or the
proceedings on appeal, or in the course of the trial of a person under this Act,
application is made by the prosecution, on the ground that the publication of any
evidence to be given or of any statement to be made in the course of the proceedings
would be prejudicial to the safety of the State, that all or any portion of the public shall

be the excluded during any part of the hearing, the Court may make an order to that
effect, but the passing of sentence shall in any case take place in public. It would be
noticed that while making a specific provision authorising the court to exclude all or any
portion of the public from a trial, s. 14 in terms recognises the existence of such
inherent powers by its opening clause.
34. Section 22(1) of the Hindu Marriage Act, 1955 (No. 25 of 1955) likewise lays down
that a proceeding under this Act shall be conducted in Camera if either party so desires
or if the court so thinks fit to do, and it shall not be lawful for any person to print or
publish any matter in relation to any such proceeding except with the previous
permission of the court.
35. The proviso to s. 352 of the Code of Criminal Procedure, 1898, prescribed that the
presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry
into, or trial of, any particular case, that the public generally, or any particular person,
shall not have access to, or be or remain in the room of building used by the Court.
36. The last provision to which we may refer in this connection is s. 151 of the Code of
civil Procedure, 1908. This section provides that nothing in this Code shall be deemed
to limit or otherwise affect the inherent power of the Court to make such orders as may
be necessary for the ends of justice or to prevent abuse of the process of the Court.
These statutory provisions merely illustrate how the power of Court to hold certain trials
in camera, either fully or partially, is inevitably associated with the administration of the
justice itself.
3 7 . The next question which calls for our decision is : does the impugned order
contravene the fundamental right of the petitioners under Art. 19(1) ? In dealing with
this question, it is essential to bear in mind the object with which the impugned order
has been passed. As we have already indicated, the impugned order has been passed,
because the learned Judge was satisfied that the interests of justice required that Mr.
Goda should not be exposed to the risk of excessive publicity of the evidence that he
would give in court. This order was passed by the learned Judge after the hearing
arguments from both the parties to the suit. Thus, there is no doubt that the learned
Judge was satisfied the that in order to be able to do justice between the parties before
him, it was essential to grant Mr. Goda's request for prohibiting he publication of his
testimony in the newspapers from day to day. The questions is : can it be said that an
order which has been passed directly and solely for the purpose of assisting the
discovery of truth and for doing justice between the parties, infringes the fundamental
rights of the petitioners under Art. 19(1) ?
38. 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. When a Judge deals
with matters brought before him for his adjudication, he first decides questions of facts
on which the parties are at issue, and then applies the relevant law to the said facts.
Whether the findings of fact recorded by the Judge are right or wrong, and whether the
conclusion of law drawn by him suffers from any infirmity, can be considered and
decided if the party aggrieved by the decision of the Judge takes the matter up before
the appellate Court. But 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). What the judicial decision purports to do is to decide the controversy between
the parties brought before the court and nothing more. If this basic and essential aspect

of the judicial process is borne in mind, it would be plain that the judicial verdict
pronounced by court or in relation to a matter brought before it for its decision cannot
be said to affect the fundamental rights of citizens under Art. 19(1).
39. The impugned order is, in a sense, an order of a collateral nature; it has no direct
relation with the decision of the dispute which had been brought before the Court in the
proceedings between the parties. The learned Judge however, thought that in order that
he should be able to do full justice between the parties it was necessary to pass the
impugned order. Thus, though the order in a sense is collateral to the proceedings
which were pending before the Court, it was directly connected with the said
proceedings inasmuch as the learned Judge found that he could not do justice between
the parties and decide the matter satisfactorily unless the publication of Mr. Goda's
evidence was prohibited pending the trial. The order is not collateral in the sense that
the jurisdiction of the Judge to pass that order can be challenged otherwise than by a
proceeding in appeal. 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.
40. Assuming, however, that the impugned order can be said incidentally and indirectly
to affect the fundamental rights of the petitioners under Art. 19(1), can such incidental
and indirect effect of the order justify the conclusion that the order itself infringes Art.
19(1) ?
41. It is well-settled that in examining the validity of legislation, it is legitimate to
consider whether the impugned legislation is a legislation directly in respect of the
subject covered by any particular article of the Constitution, or touches the said article
only incidentally or indirectly. In A. K. Gopalan v. The State of Madras
MANU/SC/0012/1950 : 1950CriL J1383 , Kania C.J., had occasion to consider the
validity of the argument that the preventive detention order results in the detention of
the applicant in a cell, and so, it contravenes his fundamental rights guaranteed by Art.
19(1)(a), (b), (c), (d), (e) and (g). Rejecting this argument, the learned Chief Justice
observed that the true approach in dealing with such a question is only to consider the
directness of the legislation and not what will be the result of the detention otherwise
valid, on the mode of the detenu's life. On that ground alone, he was inclined to reject
the contention that the order of detention contravened the fundamental rights
guaranteed to the petitioner under Art. 19(1). He thought that any other construction
put on the article would be unreasonable.
4 2 . It is true that the opinion thus expressed by Kania, C.J., in the case of A. K.
Gopalan MANU/SC/0012/1950 : 1950CriL J1383 had not received the concurrence of the
other learned Judges who heard the said case. Subsequently, however, in Ram Singh
and others v. The State of Delhi and Another MANU/SC/0005/1951 : [1951]2SCR451 ,
the said observations were cited with approval by the Full Court. The same principle has
been accepted by this Court in Express Newspapers (Private) Ltd., and Anr. v. The
Union of India and Others (1959) S.C.R. 128, and by the majority judgment in Atiabari
Tea Co., Ltd. v. The State of Assam and Others MANU/SC/0030/1960 : [1961]1SCR809

.
43. If the test of direct effect and object which is sometimes described as the pith and
substance test, is thus applied in considering the validity of legislation, it would not be
inappropriate to apply the same test to judicial decisions like the one with which we are
concerned in the present proceedings. As we have already indicated, the impugned
order was directly concerned with giving such protection to the witness as was thought
to be necessary in order to obtain true evidence in the case with a view to do justice
between the parties. If, incidentally, as a result of this order, the petitioners were not
able to report what they heard in court, that cannot be said to make the impugned order
invalid under Art. 19(1)(a). It is a judicial order passed by the Court in exercise of its
inherent jurisdiction and its sole purpose is to help the administration of justice. Any
incidental consequence which may flow from the order will not introduce any
constitutional infirmity in it.
44. It is, however, urged by Mr. Setalvad that this Court has held in Budhan Choudhry
and Others v. The State of Bihar MANU/SC/0047/1954 : 1955CriL J374 that judicial
orders based on exercise of judicial discretion may contravene Art. 14 and thereby
become invalid. He contends that just as a judicial order would become invalid by
reason of the fact that it infringes the fundamental right guaranteed by Art. 14, so
would the impugned order in the present case be invalid because it contravenes Art.
19(1). It is, therefore, necessary to examine whether this contention is well-founded.
45. In the case of Budhan Choudhry MANU/SC/0047/1954 : 1955CriL J374 , the matter
had come to this Court by way of appeal under Art. 132(1) of the Constitution. The
appellants had been tried by a Magistrate, 1st Class, exercising powers under section 30
of the Code of Criminal Procedure on charges under sections 366 and 143 of the Indian
Penal Code, and each one of them was convinced under both the sections and sentenced
to rigorous imprisonment for five years under section 366, whereas no separate
sentence was imposed under section 143. They then challenged the correctness and
validity of the order of their conviction and sentence by preferring an appeal before the
Patna High Court. The appeal was first heard by a Bench consisting of S. K. Das and C.
P. Sinha, JJ. There was, however, a difference of opinion between the two learned
Judges as to the constitutionality of section 30, Cr. P. C. Das, J. took the view that the
impugned section did not bring about any discrimination, whereas Sinha, J. was of the
opinion that the impugned section was hit by Art. 14. The appeal was then heard by
Reuben, C.J., who agreed with Das, J., with the result that the order of conviction and
sentence passed against the appellants was confirmed. The appellants then obtained a
certificate from the said High Court under Art. 132(1) and with that certificate they
came to this Court.
4 6 . Naturally, the principal contention which was urged on their behalf before this
Court was that section 30, Cr. P.C. infringed the fundamental right guaranteed by Art.
14, and was, therefore, invalid. This contention was repelled by this Court. Then,
alternatively, the appellants argued that though the section itself may not be
discriminatory, it may lend itself to abuse bringing about a discrimination between
persons accused of offences of the same kind, for the police may send up a person
accused of an offence under section 366 to a section 30 Magistrate and the police may
send another person accused of an offence under the same section to a Magistrate who
can commit the accused to the Court of Session. This alternative contention was
examined and it was also rejected. That incidentally raised the question as to whether
the judicial decision could itself be said to offend Art. 14. S.R. Das, J., as he then was,
who spoke for the Court, considered this contention, referred with approval to the

observations made by Frankfurter, J., and Stone, C.J., of the Supreme Court of the
United States in Snowden v. Hughes (1944) 321 U.S. 1 : 88 L.ed. 497), and observed
that the judicial decision must of necessity depend on the facts and circumstances of
each particular case and what may superficially appear to be an unequal application of
the law may not necessarily amount to a denial of equal protection of law unless there
is shown to be present in it an element of intentional and purposeful discrimination.
Having made this observation which at best may be said to assume that a judicial
decision may conceivably contravene Art. 14, the learned Judge took the precaution of
adding that the discretion of judicial officers is not arbitrary and the law provides for
revision by superior Courts of orders passed by the subordinate Courts. In such
circumstances, there is hardly any ground for apprehending any capricious
discrimination by judicial tribunals.
47. It is thus clear that though the observations made by Frankfurter, J. and Stone, C.J.
in Snowden v. Hughes 321 U.S. 1 had been cited with approval, the question as to
whether a judicial order can attract the jurisdiction of this Court under Art. 32(1) and
(2) was not argued and did not fall to be considered at all. That question became only
incidentally relevant in deciding whether the validity of the conviction which was
impugned by the appellants in the case of Budhan Choudhry and Others
MANU/SC/0047/1954 : 1955CriL J374 could be successfully assailed on the ground that
the judicial decision under section 30, Cr. P.C. was capriciously rendered against the
appellants. The scope of the jurisdiction of this Court in exercising its writ jurisdiction
in relation to orders passed by the High Court was not and could not have been
examined, because the matter had come to this Court in appeal under Art. 132(1); and
whether or not judicial decision can be said to affect any fundamental right merely
because it incidentally and indirectly may encroach upon such right, did not therefore
call for consideration or decision in that case. In fact, the closing observations made in
the judgment themselves indicate that this Court was of the view that if any judicial
order was sought to be attacked on the ground that it was inconsistent with Art. 14, the
proper remedy to challenge such an order would be an appeal or revision as may be
provided by law. We are, therefore, not prepared to accept Mr. Setalvad's assumption
that the observations on which he bases himself support the proposition that according
to this Court, judicial decisions rendered by courts of competent jurisdiction in or in
relation to matters brought before them can be assailed on the ground that they violate
Art. 14. It may incidentally be pointed out that the decision of the Supreme Court of the
United States in Snowden v. Hughes 321 U.S. 1 was itself not concerned with the
validity of any judicial decision at all.
4 8 . On the other hand, in The Parbhani Transport Co-operative Society Ltd. v. The
Regional Transport Authority, Aurangabad and Others, (1960) 4 S.C.R.177 Sarkar, J.
speaking for the Court, has observed that the decision of the Regional Transport
Authority which was challenged before the Court may have been right or wrong, but
that they were unable to see how that decision could offend Art. 14 or any other
fundamental right of the petitioner. The learned Judge further observed that the
Regional Transport Authority was acting as a quasi judicial body and if it has made any
mistake in its decision there are appropriate remedies available to the petitioner for
obtaining relief. It cannot complain of a breach of Art. 14. It is true that in this case
also the larger issue as to whether the orders passed by quasi judicial tribunals can be
said to affect Art. 14, does not appear to have been fully argued. It is clear that the
observations made by this Court in this case unambiguously indicate that it would be
inappropriate to suggest that the decision rendered by a judicial tribunal can be
described as offending Art. 14 at all. It may be a right or wrong decision, and if it is a
wrong decision it can be corrected by appeal or revision as may be permitted by law,

but it cannot be said per se to contravene Art. 14. It is significant that these
observations have been made while dealing with a writ petition filed by the petitioner,
the Parbhani Transport Co-operative Society Ltd. under Art. 42; and in so far as the
point has been considered and decided the decision is against Mr. Setalvad's contention.
49. In support of his argument that a judicial decision can be corrected by this Court in
exercise of its writ jurisdiction under Art. 32(2), Mr. Setalvad has relied upon another
decision of this Court in Prem Chand Garg v. Excise Commissioner, U. P. Allahabad(e).
In that case, the petitioner Prem Chand Garg had been required to furnish security for
the costs of the respondent under r. 12 of O. XXXV of the Supreme Court Rules. By his
petition filed under Art. 32, he contended that the rule was invalid as it placed
obstructions on the fundamental right guaranteed under Art. 32 to move the Supreme
Court for the enforcement of fundamental rights. This plea was upheld by the majority
decision with the result that the order requiring him to furnish security was vacated. In
appreciating this effect of this decision, it is necessary to bear in mind the nature of the
contentions raised before the Court in that case. The Rule itself, in terms, conferred
discretion on the Court, while dealing with applications made under Art. 32, to impose
such terms as to costs and as to the giving of security as it thinks fit. The learned
Solicitor-General, who supported the validity of the Rule, urged that though the order
requiring security to be deposited may be said to retard or obstruct the fundamental
right of the citizen guaranteed by Art. 32(1), the Rule itself could not be effectively
challenged as invalid, because it was merely discretionary; it did not impose an
obligation on the Court to demand any security; and he supplemented his argument by
contending that under Art. 142 of the Constitution, the powers of this Court were wide
enough to impose any term or condition subject to which proceedings before this Court
could be permitted to be conducted. He suggested that the powers of this Court under
Art. 142 were not subject to any of the provisions contained in Part III including Art.
32(1). On the other hand, Mr. Pathak who challenged the validity of the Rule, urged that
though the Rule was in form and in substance discretionary, he disputed the validity of
the power which the Rule conferred on this Court to demand security. According to Mr.
Pathak, Art. 142 had to be read subject to the fundamental right guaranteed under Art.
32; and so, when this Court made Rules by virtue of the powers conferred on it by Art.
145, it could not make any Rule on the basis that it could confer a power on this Court
to demand security from a party moving this Court under Art. 32(1), because such a
term would obstruct his guaranteed fundamental right. It is on these contentions that
one of the points which had to be decided was whether Art. 142 could be said to
override the fundamental rights guaranteed by Part III. The majority view of this Court
was that though the powers conferred on this Court by Art. 142 were very wide, they
could not be exercised against the fundamental rights guaranteed by the Constitution,
not even against definite statutory provisions. Having reached this decision, the
majority decision was that though the Rule was discretionary, the power to demand
security which it purported to confer on the Court in a given case, was itself
inconsistent with the fundamental right guaranteed by Art. 32(1) and as such, the Rule
was bad. The minority view differed in that matter and held that the Rule was not
invalid.
50. It would thus be seen that the main controversy in the case of Prem Chand Garg
MANU/SC/0082/1962 : (1963) 1 S.C.R. 885 centered round the question as to whether
Art. 145 conferred powers on this Court to make Rules, though they may be inconsistent
with the constitutional provisions prescribed by Part III. Once it was held that the
powers under Art. 142 had to be read subject not only to the fundamental rights, but to
other binding statutory provisions, it became clear that the Rule which authorised the
making of the impugned order was invalid. It was in that context that the validity of the

order had to be incidentally examined. The petition was made not to challenge the order
as such, but to challenge the validity of the Rule under which the order was made. Once
the Rule was struck down as being invalid, the order passed under the said Rule had to
be vacated. It is difficult to see how this decision can be pressed into service by Mr.
Setalvad in support of the argument that a judicial order passed by this Court was held
to be subject to the writ jurisdiction of this Court itself. What was held by this Court
was that Rule made by it under its powers conferred by Art. 145 which are legislative in
character, was invalid; but that is quite another matter.
51. It is plain that if a party desires to challenge any of the Rules framed by this Court
in exercise of its powers under Art. 145 on the ground that they are invalid, because
they illegally contravene his fundamental rights, it would be open to the party to move
this Court under Art. 32. Such a challenge is not against any decision of this Court, but
against a Rule made by it in pursuance of its rule-making power. If the Rule is struck
down as it was in the case of Prem Chand Garg MANU/SC/0082/1962 : (1963) Supp. 1
S.C.R. 885, this Court can review or recall its order passed under the said Rule. Cases
in which initial orders or security passed by the Court are later reviewed and the
amount of security initially directed is reduced, frequently arise in this Court; but they
show the exercise of this Court's powers under Art. 137 and not under Art. 32.
therefore, we are not satisfied that Mr. Setalvad is fortified by any judicial decision of
this Court in raising the contention that a judicial order passed by the High Court in or
in relation to proceedings brought before it for its adjudication, can become the
subject-matter of writ jurisdiction of this Court under Art. 32(2). In fact, no precedent
has been cited before us which would support Mr. Setalvad's claim that a judicial order
of the kind with which we are concerned in the present proceedings has ever been
attempted to be challenged or has been set aside under Art. 32 of the Constitution.
52. In this connection, it is necessary to refer to another aspect of the matter, and that
has relation to the nature and extent of this Court's jurisdiction to issue writs of
certiorari under Art. 32(2) Mr. Setalvad has conceded that if a court of competent
jurisdiction makes an order in a proceeding before it, and the order is inter-parties, its
validity cannot be challenged by invoking the jurisdiction of this Court under Art. 32,
though the said order may affect the aggrieved party's fundamental rights. His whole
argument before us has been that the impugned order affects the fundamental rights of
a stranger to the proceedings before the Court; and that, he contends, justifies the
petitioners in moving this Court under Art. 32. It is necessary to examine the validity of
this argument.
53. It is well-settled that the powers of this Court to issue writs of certiorari under Art.
32(2) as well as the powers of the High Courts to issue similar writs under Art. 226 are
very wide. In fact, the powers of the High Courts under Art. 226 are, in a sense, wider
than those of this Court, because the exercise of the powers of this Court to issue writs
of certiorari are limited to the purposes set out in Art. 32(1). The nature and the extent
of the writ jurisdiction conferred on the High Courts by Art. 226 was considered by this
Court as early as 1955 in T. C. Basappa v. T. Nagappa and Anr. MANU/SC/0098/1954 :
[1955]1SCR250 . It would be useful to refer to some of the points elucidated in this
judgment. The first point which was made clear by Mukherjea, J., who spoke for the
Court, was that
in view of the express provisions in our Constitution, we need not now look
back to the early history or the procedural technicalities of these writs in
English law, nor feel oppressed by any difference or change of opinion
expressed in particular cases by English Judges. We can make an order or issue

a writ in the nature of certiorari in all appropriate cases and in appropriate
manner, so long as we keep to the broad and fundamental principles that
regulate the exercise of jurisdiction in the matter of granting such writs in
English law." One of the essential features of the writ, according to Mukherjea,
J., is that the control which is exercised through it over judicial or quasi-
judicial tribunals or bodies is not in an appellate but supervisory capacity. In
granting a writ of certiorari, the superior Court does not exercise the powers of
an appellate tribunal. It does not review or reweigh the evidence upon which
the determination of the inferior tribunal purports to be based. It demolishes
the order which it considers to be without jurisdiction or palpably erroneous but
does not substitute its own views for those of the inferior tribunal. The
supervision of the superior Court exercised through writs of certiorari goes to
two points, one is the area of inferior jurisdiction and the qualifications and
conditions of its exercise; the other is the observance of law in the course of its
exercise. Certiorari may lie and is generally granted when a Court has acted
without or in excess of its jurisdiction. The want of jurisdiction may arise from
the nature of the subject-matter of the proceeding or from the absence of some
preliminary proceeding or the Court itself may not be legally constituted or
suffer from certain disability by reason of extraneous circumstances. When the
jurisdiction of the Court depends upon the existence of some collateral fact, it
is well-settled that the Court cannot by a wrong decision of the fact give it
jurisdiction which it would not otherwise possess.
It is in the light of these principles which have been consistently followed by this Court
in dealing with the problem relating to the exercise of the writ jurisdiction by the High
Courts under Art. 226 or by this Court under Art. 32, that we must now proceed to deal
with the point before us.
54. The scope of the jurisdiction of this Court in dealing with writ petitions under Art.
32 was examined by a Special Bench of this Court in Smt. Ujjam Bai v. State of Uttar
Pradesh MANU/SC/0101/1961 : [1963]1SCR778 . This decision would show that it was
common ground before the Court that in three classes of cases a question of the
enforcement of the fundamental rights may arise; and if it does arise, an application
under Art. 32 will lie. These cases are : (1) where action is taken under a statute which
is ultra vires the Constitution; (2) where the statute is intra vires but the action taken is
without jurisdiction; and (3) where the action taken is procedurally ultra vires as where
a quasi judicial authority under an obligation to act judicially passes an order in
violation of the principles of natural justice.
55. According to the majority decision in the case of Ujjam Bai MANU/SC/0101/1961 :
[1963]1SCR778 , it appears that where a quasi-judicial authority makes an order in the
undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra
vires, an error of law or fact committed by that authority cannot be impeached
otherwise than on appeal, unless the erroneous determination relates to a matter on
which the jurisdiction of that body depends, and the relevant law does not confer on
that body jurisdiction to determine that matter.
56. This last category of cases often arise in relation to tribunals which have been given
jurisdiction to try certain issues under certain conditions. It is only if the condition
prescribed by the statute is satisfied that the tribunal derives jurisdiction to deal with
the matter. Proof of such a condition is regarded as the proof of a collateral fact, and an
erroneous decision of the tribunal as to the existence of this collateral fact is not
regarded as binding on the parties and can be challenged by a writ proceeding under

Art. 226. But in cases where the Tribunal is given jurisdiction to deal with certain
matters, then its decision on those matters cannot be regarded as a decision on
collateral facts. This aspect of the matter came to be considered by a Special Bench of
this Court in M/s. Kamala Mills Ltd. v. The State of Bombay MANU/SC/0029/1965 :
[1965]3SCR173 and there it has been held that the appropriate authority set up under
the relevant Sales-tax Act had been given jurisdiction to determine the nature of the
transaction and to proceed to levy a tax in accordance with its decision on the first
issue, and so, the decision of the said authority on the first issue cannot be said to be a
decision on a collateral issue, and even if the said issue is erroneously determined by
the said authority, the tax levied by it in accordance with its decision cannot be said to
be without jurisdiction.
5 7 . In Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others,
MANU/SC/0010/1961 : [1962]1SCR505 the petitioner had moved this Court under Art.
32 contending that her fundamental rights under Art. 19(1)(f) and Art. 31 were
infringed by the order if the Assistant Custodian which had declared that the husband of
the petitioner was an evacuee and his property was evacuee property. The petitioner
had appealed to the Deputy Custodian against the said order, and when she failed
before the Deputy Custodian, she had moved the Custodian-General by revision; but the
said revision application also was dismissed. At this stage, she moved this Court under
Art. 32. This Court rejected her petition on the ground that it was incompetent as no
question of violation of any fundamental right arose in the case. The decision of the
authority of competent jurisdiction, it was held, had negatived the existence of the legal
right alleged by the petitioner, and unless the decision was held to be a nullity or could
be otherwise got rid of, the petitioner could not complain of any infringement of a
fundamental right. The main questions were whether the petitioner's husband was an
evacuee or not, and whether his property was evacuee property or not. The decision of
those questions had become final, and no lack of jurisdiction was involved.
5 8 . While referring to the decision of this Court in the case of Smt. Ujjam Bai
MANU/SC/0101/1961 : [1963]1SCR778 , we have already indicated that it was not
disputed before the Court in that case that where the action, taken against a citizen is
procedurally ultra vires, the aggrieved party can move this Court under Art. 32. As an
illustration, we may refer to the decision of this Court in Sinha Govindji v. The Deputy
Chief Controller of Imports and Exports and Others MANU/SC/0032/1961 :
[1962]1SCR540 . In that case, the Court was satisfied that there was a clear violation of
the requirements of clause 10 of the Imports (Control) Order, 1955, which embodied
the principles of natural justice, and that made the impugned orders constitutionally
invalid. That is how the jurisdiction of this Court under Art. 32 can be invoked if the
impugned order has been passed by adopting a procedure which is ultra vires.
59. We have referred to these decisions to illustrate how the jurisdiction to issue writs
if certiorari has been exercised either by the High Courts under Art. 226 or by this Court
under Art. 32. Bearing these principles in mind, let us enquire whether the order
impugned in the present proceedings can be said to be amenable to the jurisdiction of
this Court under Art. 32. We have already seen that the impugned order was passed by
the learned Judge after hearing the parties and it was passed presumably because he
was satisfied that the ends of justice required that Mr. Goda should be given protection
by prohibiting the publication of his evidence in the newspapers during the course of
the trial. This matter was directly related to the trial of the suit; and in exercise of his
inherent power, the learned Judge made the order in the interests of justice. The order
in one sense is inter-parties, because it was passed after hearing arguments on both the
sides. In another sense, it is not inter-parties inasmuch as it prohibits strangers like the

petitioners from publishing Mr. Goda's evidence in the newspapers. In fact, an order of
this kind would always be passed after hearing parties before the Court and would in
every case affect the right of strangers like the petitioners who, as Journalists, are
interested in publishing court proceedings in newspapers. Can it be said that there is
such a difference between normal orders passed inter-parties in judicial proceedings,
and the prevent order that it should be open to the strangers are who affected by the
order to move this Court under Art. 327. The order, no doubt, binds the strangers; but
nevertheless, it is a judicial order and a person aggrieved by it, though a stranger, can
move this Court by appeal under Art. 136 of the Constitution. Principles of Res judicata
have been applied by this Court in dealing with petitions filed before this Court under
Art. 32 in Daryao and Others v. The State of U.P. and Others MANU/SC/0012/1961 :
[1962]1SCR574 . We apprehend that somewhat similar considerations would apply to
the present proceedings. If a judicial order like the one with which we are concerned in
the present proceedings 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 and contend that a writ of certiorari should be issued in respect of it. 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.
60. There is yet another aspect of this matter to which it is necessary to refer. 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. This question fell to be considered by this Court in
Special Reference No. 1 of 1964 (1965) 1 S.C.R. 413. In that case, it was urged before
this Court that in granting bail to Keshav Singh, the High Court had exceeded its
jurisdiction and as such, the order was a nullity. Rejecting this argument, this Court
observed that in the case of a superior Court of Record, it is for the court to consider
whether any matter falls within its jurisdiction or not. Unlike a court of limited
jurisdiction, the superior court is entitled to determine for itself questions about its own
jurisdiction. That is why this Court did not accede to the proposition that in passing the
order for interim bail, the High Court can be said to have exceeded its jurisdiction with
the result that the order in question was null and void. In support of this view, this
Court cited a passage from Halsbury's Laws of England where it is observed that
prima facie, no matter is deemed to be beyond the jurisdiction of a superior
court unless it is expressly shown to be so, while nothing is within the
jurisdiction of an inferior court unless it is expressly shown on the face of the
proceedings that the particular matter is within the cognizance of the particular
Court." (Halsbury's Laws of England, Vol. 9, p. 349).
If the decision of a superior Court on a question of its jurisdiction is erroneous, it can,
of course, be corrected by appeal or revision as may be permissible under the law; but
until the adjudication by a superior Court on such a point is set aside by adopting the
appropriate course, it would not be open to be corrected by the exercise of the writ
jurisdiction of this Court.
61. The basis of Mr. Setalvad's argument is that the impugned order is not an order
inter-parties, as it affects the fundamental rights of the strangers to the litigation, and
that the said order is without jurisdiction. We have already held that the impugned
order cannot be said to affect the fundamental rights of the petitioners and that though
it is not inter-parties in the sense that it affects strangers to the proceedings, it has

been passed by the High Court in relation to a matter pending before it for its
adjudication and as such, like other judicial orders passed by the High Court in
proceedings pending before it, the correctness of the impugned order can be challenged
only by appeal and not by writ proceedings. We have also held that the High Court has
inherent jurisdiction to pass such an order.
62. But apart from this aspect of the matter, we think it would be inappropriate to allow
the petitioners to raise the question about the jurisdiction of the High Court to pass the
impugned order in proceedings under Art. 32 which seek for the issue of a writ of
certiorari to correct the said order. If questions about the jurisdiction of superior courts
of plenary jurisdiction to pass orders like the impugned order are allowed to be
canvassed in writ proceedings under Art. 32, logically, it would be difficult to make a
valid distinction between the orders passed by the High Courts inter-parties, and those
which are not inter-parties in the sense that they bind strangers to the proceedings.
therefore, in our opinion, having regard to the fact that the impugned order has been
passed by a superior Court of Record in the exercise of its inherent powers, the
question about the existence of the said jurisdiction as well as the validity or propriety
of the order cannot be raised in writ proceedings taken out by the petitioners for the
issue of a writ of certiorari under Art. 32.
63. Whilst we are dealing with this aspect of the matter, we may incidentally refer to
the relevant observations made by Halsbury on this point. "In the case of judgments of
inferior courts of civil jurisdiction," says Halsbury in the footnote,
it has been suggested that certiorari might be granted to quash them for want
of jurisdiction (Kemp v. Balne (1844), 1 Dow. & L. 885, at p. 887), inasmuch
as an error did not lie upon that ground. But there appears to be no reported
case in which the judgment of an inferior court of civil jurisdiction has been
quashed on certiorari, either for want of jurisdiction or on any other ground."
(Halsbury Laws of England Vol. 11, pp. 129, 130).
The ultimate proposition is set out in the terms : "Certiorari does not lie to quash the
judgments of inferior courts of civil jurisdiction." These observations would indicate
that in England the judicial orders passed by civil courts of plenary jurisdiction in or in
relation to matters brought before them are not held to be amenable to the jurisdiction
to issue writs of certiorari.
6 4 . In Rex. v. Chancellor of St. Edmundsburry and Ipswich Diocese Ex parte White
(1945) 1 K.B.D. 195 the question which arose was whether certiorari would lie from the
Court of King's Bench to an ecclesiastical Court; and the answer rendered by the Court
was that certiorari would not lie against the decision of an ecclesiastical court. In
dealing with this question, Wrottesley, L.J. has elaborately considered the history of the
writ jurisdiction and has dealt with the question about the meaning of the word
"inferior" as applied to courts of law in England in discussing the problem as to the
issue of the writ in regard to decisions of certain courts. "The more this matter was
investigated," says Wrottesley, L.J., "the clearer it became that the word "inferior" as
applied to courts of law in England had been used with at least two very different
meanings. If, as some assert, the question of inferiority is determined by ascertaining
whether the court in question can be stopped from exceeding its jurisdiction by a writ of
prohibition issuing from the King's Bench, then not only the ecclesiastical Courts, but
also Palatine Courts and Admiralty courts are inferior courts. But there is another test,
well recognised by lawyers, by which to distinguish a superior from an inferior court,
namely, whether in its proceedings, and in particular in its judgments, it must appear

that the court was acting within its jurisdiction. This is the characteristic of an inferior
court, whereas in the proceedings if a superior court it will be presumed that it acted
within its jurisdiction unless the contrary should appear either on the face of the
proceedings or aliunde." Mr. Sen relied upon this decision to show that even the High
Court of Bombay can be said to be an inferior court for the purpose of exercising
jurisdiction by this Court under Art. 32(2) to issue a writ of certiorari in respect of the
impugned order passed by it. We are, unable to see how this decision can support Mr.
Sen's contentions.
65. We are, therefore, satisfied that so far as the jurisdiction of this 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. We have no
doubt that it would be unreasonable to attempt to rationalise the assumption of
jurisdiction by this Court under Art. 32 to correct such judicial orders on the fanciful
hypothesis that High Courts may pass extravagant orders in or in relation to matters
pending before them and that a remedy by way of a writ of certiorari should, therefore,
be sought for and be deemed to be included within the scope of Art. 32. The words
used in Art. 32 are no doubt wide; but having regard to the considerations which we
have set out in the course of this judgment, we are 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; to hold otherwise would be repugnant to the well-organised
limitations within which the jurisdiction to issue writs of certiorari can be exercised and
inconsistent with the uniform trend of this Court's decision in relation to the said point.
66. The result is, the petitioners fail and are dismissed. There would be no order as to
costs.
67. Sarkar, J. Tarkunde J. of the High Court at Bombay, while hearing a suit in the
exercise of the ordinary original civil jurisdiction of that Court, passed an order
prohibiting publication of a part of the proceedings. The four petitioners, who are
reporters and otherwise connected with newspapers, have moved this Court under Art.
32 of the Constitution, each by a separate petition, for a writ of certiorari to bring up
the records of the order and to quash them. They allege that the order violates their
fundamental right to freedom of speech and expression conferred by sub-clause(a) of
clause(1) of Art. 19 of the Constitution. I think these petitions should fail.
68. First, it seems to me that this case is covered by the judgment of this Court in
Ujjam Bai v. State of Uttar Pradesh MANU/SC/0101/1961 : [1963]1SCR778 . That was a
case in which a petition had been moved under Art. 32 for quashing an order passed by
an assessing officer acting judicially under a taxing statute, valid in all respects,
assessing the petitioner to tax on a construction of the statute alleged to be erroneous
and that petition was dismissed. It was held that the validity of an order made by a
judicial tribunal, acting within its jurisdiction, under an Act which was intra vires and
good law in all respects was not liable to be questioned by a petition under Art. 32 even
though the provisions of the Act had been misconstrued and that such an order could
not violate any fundamental right and no question of this Court enforcing any violation
of fundamental right thereby could arise. The principle accepted appears to be that a
legally valid act cannot offend a fundamental right. I think the same principle applies to
this case. The conditions of the applicability of the principle laid down in that case are
that a judicial tribunal should have made an order which it had the jurisdiction to make
by applying a law which is valid in all respects. I think both these conditions are
fulfilled in this case and it is irrelevant to enquire whether Tarkunde J. had made the

order on an erroneous view of the law he was applying. I proceed now to examine the
case from this point of view.
69. First, had Tarkunde J. exceeded his jurisdiction in making the order ? It was said
that he had, because the inherent power of the Court did not authorise the prevention of
the publication of the proceedings in the circumstances of the case. As I understood
learned counsel, they did not contend that Tarkunde J. had no power to prevent
publication at all but only said that he had misused that power, and misapplied the law
which gave the power to the facts of the case before him and thereby exceeded his
jurisdiction. I think, for reasons to be later stated, he had such a power and that power
was based on a valid law. I will assume for the present purpose that the learned Judge
had committed the error imputed to him. But I am unable to agree that he had thereby
exceeded his jurisdiction in the sense in which that word was used by this Court in
Ujjam Bai's MANU/SC/0101/1961 : [1963]1SCR778 case. Our attention was drawn to
certain observations in some of the speeches in the House of Lords in Scott v. Scott.
(1913) A.C. 417. That was a case in which the trial of matrimonial case was ordered by
a learned Judge of the High Court of England, trying the case as a court of first
instance, to be held in camera. The House of Lords on appeal held that the order was
completely invalid and might be disobeyed with impunity. Some of the learned Lords
observed that the order was without jurisdiction and it was on this that the petitioners
founded themselves.
70. It seems to me that this argument is based on a misconception of what was said by
these learned Lords. All that they meant to say was that the law as to camera trial did
not justify the order that had been made. It was not said that it was beyond the
jurisdiction of the learned Judge, who made the order, to consider what that law was
and whether it justified the order that he made. The House of Lords was only concerned
with the legality of the order. Indeed, in England the High Court is a court of universal
jurisdiction and except where provided by statute, its jurisdiction is, I believe unlimited.
The House of Lords was not concerned with any statutory limit of the jurisdiction of the
High Court.
71. When this Court observed in Ujjam Bai's MANU/SC/0101/1961 : [1963]1SCR778
case that the order had to be within the jurisdiction of the tribunal which made it, it
really meant that the tribunal had to have jurisdiction to decide matters that were
litigated before it and to apply the law which it, in fact, applied in making the order. It
was not saying that the tribunal having this jurisdiction acts without jurisdiction if it
makes an error in the application of the law. In coming to its conclusion in Ujjam Bai's
MANU/SC/0101/1961 : [1963]1SCR778 case, this Court assumed that the assessing
authority misinterpreted the law which it had jurisdiction to apply, but held that
nonetheless he had acted within his jurisdiction and was not acting without jurisdiction.
This view is based on a well recognised principle. An order passed by a court without
jurisdiction in the sense that I have mentioned, is a nullity. It cannot be said of such an
order that it is a legal act which cannot result in a wrong. On the other hand, an order
passed with jurisdiction but wrongly, is a legal act for it is well known that a court has
jurisdiction to decide rightly as well as wrongly. This, I believe, is the principle on
which the condition as to jurisdiction was formulated in Ujjam Bai's.
MANU/SC/0101/1961 : [1963]1SCR778 . I find no difficulty,therefore, in holding that
Tarkunde J. was acting within jurisdiction in making the order which he did, even if he
had committed an error in applying the law under which he made it.
72. I turn now to the question whether the law which Tarkunde J. had applied was a
valid law. It is said that it is not a valid law as it offends the fundamental right to

freedom of speech conferred by Art. 19(1)(a). Now that law is the inherent power of a
High Court to prevent publication of the proceedings of a trial. The question 6 is : Does
this power offend the liberty of speech ? It seems to me beyond dispute that the power
to prevent publication of proceedings is a facet of the power to hold a trial in camera
and stems from it. Both are intended to keep the proceedings secret. Suppose a court
orders a trial in camera and assume it had a valid power to do so. In such a case the
proceedings are not available to persons not present at the trial and cannot, for that
reason at least, be published by them. Can any such person complain that his liberty of
speech has been infringed ? I do not think so. He has no right to hear the proceedings.
Indeed, there is no fundamental right to hear. If he has not, then it should follow that
his liberty of speech has not been affected by the order directing a trial in camera.
73. Though it was not disputed, I will consider for myself whether a law empowering a
trial in camera is a valid law. An order directing a trial to be held in camera prohibits
entry into the court but I do not think that it can be said that it thereby offends the right
to move freely throughout India which is given by sub-clause(d) of clause(1) of Art. 19.
I would put this view on two grounds. I would first say that the law providing for trials
being held in camera, even if it trespasses on the liberty of movement, would be
protected under clause(5) of Art. 19 which permits laws to be made imposing
reasonable restrictions on that right in the interests of the general public. Now it is well
recognised that the power to hold trials in camera is given in the interests of
administration of justice. I suppose there can be no doubt that administration of justice
is a matter of public interest. Then it seems to me indisputable that the restrictions that
the exercise of the power to hold trials in camera imposes on the liberty of movement
are reasonable. It is circumscribed by strict limits; see Scott. v. Scott. (1913) A.C. 417.
It is unnecessary to discuss these limits for it has not been contended that the
restrictions are not reasonable.
74. Secondly, I would say that the law does not violate any fundamental right to free
movement. A court house is not such a place into which the public have an unrestricted
right of entry. The public no doubt have a right to be present in court and to watch the
proceedings conducted there. But this is not a fundamental right. It is indeed not a
personal right of a citizen which, I conceive, a fundamental right must be. It is a right
given to the public at large in the interests of the administration of justice. It cannot
exist when the administration of justice requires a trial to be held in camera for in such
a case it is not in the interest of justice that the public should be present. That right to
be present in a court must be subject to the control of the Judge administering the
business of the court. If it were not so, it would be impossible to carry on work in a
court. I should suppose that one cannot complain of the breach of the liberty of
movement if he is prevented by law from entering a private property. For analogous
reasons, I think a person cannot complain of a breach of that liberty when his entry to a
court room is prohibited. In neither case he is entitled to a free right of entry to the
place concerned.
7 5 . Now the exercise of the power to hold trial in camera no doubt has the effect
incidentally of preventing a citizen from publishing proceedings of the trial, for he is by
it prevented from hearing them; what he cannot hear, he cannot, of course, publish. I
do not think this restriction on the liberty of speech is a violation of the fundamental
right in regard to it. First, the liberty of speech is affected only indirectly and it has
been held by this Court in many cases beginning with A. K. Gopalan v. The State
MANU/SC/0012/1950 : 1950CriL J1383 that when a law which, though it violates a
fundamental right is nonetheless good under any of the cls. (2) to (5) of Art. 19,
indirectly affects another fundamental right for which no protection can be claimed

under these clauses, no grievance can be founded on the indirect infringement.
Secondly, all that the law does is to legally prevent a person from entering the court
and hearing the proceedings. Really, there is no such thing as an absolute right to hear.
A person cannot complain of an infringement of the liberty of speech when all that is
done is to prevent access to something which he intends to publish. As I have earlier
said the power to prohibit publication of proceedings is essentially the same as the
power to hold trial in camera. If the power to prevent publication of proceedings does
not exist, it would be futile to give a power to hold a trial in camera. I should suppose
that if the law giving the latter power is a good law, as I think it is, everything involved
in that law and stemming from it must equally be good. It would follow that the power
to prohibit publication of proceedings cannot also amount to any infringement of the
liberty of speech. When it is said that a proceeding shall not be published, what is in
fact said is that persons will be permitted to hear what they have no right to hear, on
the condition that they do not publish what they hear. The order preventing publication
is really a form of holding trial in camera. If a person taking advantage of such an order
publishes it, he is certainly committing a wrong. I cannot imagine the Constitution
contemplating a fundamental right based on a wrong.
76. I conceive the position would be the same if a person stealthily and wrongfully gets
possession of a copy of the proceedings of a trial held in camera and publishes them.
He has no fundamental right to liberty of speech in respect of such publication because
that alleged right would then be originating from a breach of an indisputably good law.
Suppose A has a copyright in a poem and B steals it and makes it over to C. It would be
absurd if C can take shelter under the liberty of speech when he is restrained by an
injunction against a threatened publication of the poem by him. I should suppose that
liberty of speech is not available to do harm to others. Clearly a right cannot be based
on a wrong. therefore, I think that a law empowering a court to prohibit publication of
its proceedings does not affect the fundamental right of speech. It cannot be said to be
bad on the ground that it infringes any such right.
77. It also seems to me that the law empowering a court to prohibit publication of its
proceedings is protected by clause(2) of Art. 19. That clause says that a law may validly
impose reasonable restrictions on the liberty of speech, if it is in relation to contempt of
court. Now a law in relation to contempt of court in the present context is a law which
says that certain statements uttered or published will be a contempt of court. Their
utterance or publication is prohibited. The principle on which the law is based is that
the utterance or publication would interfere with the course of justice and its due
administration. As I have already said, the law preventing publication of the court's
proceedings is based on the same principle. The publication is prohibited only because
it interferes with the course of justice. An obstruction to the course of justice will of
course be a contempt of court. That obstruction may take various forms. There is
obstruction when comments on the merits of a case pending in a court are made. Such
comments are prohibited by law and that law relates to contempt of court. Likewise an
obstruction to the course of justice occurs when a court in the interests of justice
prohibits publication of the proceedings and that prohibition is disobeyed. Such
publication is prohibited by law and the law empowering the prohibition equally relates
to contempt of court. That law is concerned with the powers of the courts alone and
does not purport to confer rights on persons. Such a law would be a good law under
clause(2) of Art. 19 if the restrictions which it imposes are reasonable. What I have
earlier said in connection with the reasonableness of the restrictions imposed by the law
providing for a trial to be held in camera will apply to this case also. The restrictions
which this law empowers to be imposed have to be confined within the strict limits and
are plainly reasonable.

78. I will refer now to another aspect of the matter. As I understood learned counsel for
the petitioners, they conceded that the order was a good order in so far as it concerned
the parties to the case heard by Tarkunde J. who could not, therefore, complain of any
violation of their liberty of speech by it. But it was contended that the order was not a
valid order in so far as it restrained persons like the petitioners who were not parties to
the proceedings. It is true that the petitioners were not parties, but I am unable to see
that that makes any difference. The case will still be covered by the principle laid down
in Ujjam Bai's MANU/SC/0101/1961 : [1963]1SCR778 case. It would still be a judicial
order made within the jurisdiction of the Judge making it and based on a good law. It
would still be a legal act. It cannot, therefore, violate anyone's fundamental right
whether he is a party to the proceedings or not. The person affected can always
approach the court for relief even if he was not a party to the proceedings. The
jurisdiction of the court does not depend on who the person affected by its order, is.
Courts often have to pass orders which affect strangers to the proceedings before them.
To take a common case, suppose a court appoints a receiver of a property about which
certain persons are litigating but which in fact belongs to another. That person is as
much bound by the order appointing the receiver as the parties to it are. His remedy is
to move the court by an application pro interesse suo. He cannot by force prevent the
receiver from taking possession and justify his action on the ground that the order was
without jurisdiction and, therefore violated his fundamental right to hold property. It
would be an intolerable calamity if the law were otherwise.
79. therefore, it seems to me that on the authority and the principle of Ujjam Bai's
MANU/SC/0101/1961 : [1963]1SCR778 case it must be held that the order of Tarkunde
J. did not violate any fundamental right of the petitioners and the petitions must fail.
80. I would now refer to two judgments of this Court to which our attention was drawn.
I find nothing in them which conflicts with the principle enunciated in Ujjam Bai's
MANU/SC/0101/1961 : [1963]1SCR778 case. The first is Budhan Choudhry v. The State
of Bihar MANU/SC/0047/1954 : 1955CriL J374 . In that case there is an observation
indicating that a judicial decision will not amount to denial of equal protection of law
unless there is shown to be present in it an element of intentional and purposeful
discrimination. An argument was based on this observation that this Court contemplated
that a judicial order might in certain circumstances violate a fundamental right. But that
observation must be related to the facts of the case. The case dealt with the power of a
magistrate to decide whether a matter was to be heard by him or by a Court of
Sessions. Such an order is hardly a judicial order of the kind that was dealt with in
Ujjam Bai's MANU/SC/0101/1961 : [1963]1SCR778 case. All that was said in Budhan
Choudhry's MANU/SC/0047/1954 : 1955CriL J374 case was that the power given to the
magistrate to decide by whom the case would be heard, did not offend Art. 14 and one
of the reasons given to support that view was that the magistrate had to act judicially.
There was no question there of a magistrate acting as a tribunal. Besides this, in Ujjam
Bai's MANU/SC/0101/1961 : [1963]1SCR778 case it was held that where a judicial
officer acts against the principles of natural justice, he acts without jurisdiction. This is
the kind of thing that was perhaps in the mind of the learned Judges who decided
Budham Chowdhry's MANU/SC/0047/1954 : 1955CriL J374 case. Indeed in Parbhani
Transport Cooperative Society Ltd. v. The Regional Transport Authority, Aurangabad
MANU/SC/0248/1960 : [1960]3SCR177 . This Court observed that decisions of quasi
judicial tribunals, however wrong, could not offend Art. 14.
81. The other case is that of Prem Chand Garg v. Excise Commissioner Uttar Pradesh
MANU/SC/0082/1962 : (1963) Supp. 1 S.C.R. 885. My lord the Chief Justice has dealt
with this case very fully and I have nothing to add to what he has said. For the reasons

stated by him, it must be held that there is, nothing in that case which is in conflict with
Ujjam Bai's case MANU/SC/0101/1961 : [1963]1SCR778 .
82. There is one other reason why, in my view, the petitions should fail. The petitions
ask for a writ of certiorari. We are, therefore, concerned only with that writ. The
difficulty that at once arises is. Does a certiorari lie to remove, for the purpose of
quashing, the order of a High Court, which the order of Tarkunde J. undoubtedly was? I
am confining myself only to a writ of certiorari for quashing a judicial order made by a
High Court. The Constitution does not say what a writ of certiorari is. As certiorari is a
technical word of English law and had its origin in that law, for determining its scope
and contents we have necessarily to resort to English law. I am not unmindful that we
are not to look back to the procedural technicalities of the writ as obtaining in English
law. Nonetheless however we have to keep to the broad and fundamental principles that
regulate the exercise of the jurisdiction to issue the writ in that law : T. C. Basappa v.
T. Nagappa MANU/SC/0098/1954 : [1955]1SCR250 .
83. Now one of the fundamental principles concerning the issue of the writ is that it
issues to an inferior court. The inferior court conceived in English law in this context is
a court of limited jurisdiction : Rex v. Chancellor of St. Edmundabury (1948) 1 K.B.
195. The origin of this test of an inferior court appears to have been this. In English
theory, all judicial power is vested in the King. It was earlier exercised by the Court of
King's Bench because the King, initially in person and later in theory, sat there. In
course of time as the Court in which the King sat, actually or in theory, was not enough
to meet the needs of the people, a number of other courts had to be set up. The
instruments creating such other courts always defined their jurisdiction. The King,
however, retained his right to see that these courts did not encroach upon the royal
prerogative of dispensing justice, that is, entertained cases which were beyond their
jurisdiction as limited by the instruments creating them and thereby decided cases
which the King had the right to decide. In England the King was the court of universal
jurisdiction and he, therefore, issued the writ to the courts of limited jurisdiction to
keep them within the limits prescribed for them. The King's prerogative to issue the writ
is now vested in the High Court of England by statute. I am referring to this aspect of
the matter only for the principle and origin of the rule that a certiorari could be issued
only to inferior courts.
84. In our country there is no court of universal jurisdiction in the sense in which the
High Court of England is. The jurisdiction of our Supreme Court is prescribed by the
Constitution. The Constitution also provides how the jurisdiction of High Courts is to be
prescribed. Jurisdiction of other courts is to be found in the statutes setting them up.
Thus, in our country all courts are in the sense, courts of limited jurisdiction.
Nonetheless, however, I find great difficulty in thinking of the High Courts as courts of
inferior jurisdiction. Certain other tests for deciding what a court of inferior jurisdiction
is, have been suggested but none of them, in my view, can support the conclusion that
a High Court is an inferior court. I proceed to discuss these tests first.
85. It was said that the High Courts were inferior courts as appeals lie from them to the
Supreme Court. This argument is really based on the theory that an inferior court is one
from which an appeal lies to another court. Now, there are many tribunals from which
no appeal lies to a High Court upon which the Constitution has conferred the power to
issue a writ of certiorari. If appealability was the test, then the High Courts would not
be able to issue writs of certiorari to such tribunals as they would not then be inferior
courts. In that case, a High Court's power to issue the writ would only be confined to
courts from which appeals lie to it. It would be strange if this was that the Constitution

contemplated when it provided that the High Courts would have the power to issue writs
of certiorari. I am not prepared to adopt a test which produces such a result. Nor do I
think that the Constitution intended it. With the growing number of these tribunals and
the increasing scope of their activity covering a large part of an average citizen's life,
property and work, it is of the utmost importance that the citizens should have the quick
and effective remedy of a writ of certiorari by approaching the High Courts for such
writs. I am not prepared to accept a test which would affect that right in any way.
Besides this aspect of the matter, the power to issue a writ of certiorari is most valuable
and most needed where an appeal does not lie from a decision of a tribunal and that
decision is sought to be called in question. A test which would prevent the writ from
lying in a case where it is most needed is not acceptable to me. I may add that in
England where a writ of error - a form of appeal - lay, the certiorari does not appear to
have issued.
86. Another test suggested was that the inferior court was one over which the superior
court issuing the writ had a supervisory jurisdiction. This test would fail for the same
reason as the test of appealability. The Supreme Court has no supervisory jurisdiction
over any court though it has power to issue the writ, nor have the High Courts over
many to which it is necessary that they should issue the writ and have in fact been
doing so all along with great beneficial results. This test will not, therefore, work in our
country. That is not a test in England either. No doubt, in England it is said that the
High Court exercises supervision over the inferior courts by the issue of the writ but
that is so because the power to issue the writ carried with it the power to supervise and
not because the writ issued as there is a power to supervise. The power to issue the
writ arises from what was once the royal prerogative and not from what is only a power
to supervise.
87. I confess the question is of some haziness. That haziness arises because the courts
in our country which have been given the power to issue the writ are not fully
analogous to the English courts having that power. We have to seek a way out for
ourselves. Having given the matter my best consideration, I venture to think that it was
not contemplated that a High Court is an inferior court even though it is a court of
limited jurisdiction. The Constitution gave power to the High Courts to issue the writ. In
England an inferior court could never issue the writ. I think it would be abhorrent to the
principle of certiorari if a court which can itself issue the writs is to be made subject to
be corrected by a writ issued by another court. When a court has the power to issue the
writ, it is not, according to the fundamental principles of certiorari, an inferior court or
a court of limited jurisdiction. It does not cease to be so because another court to which
appeals from it lie, has also the power to issue the writ. That should furnish strong
justification for saying that the Constitution did not contemplate the High Courts to be
inferior courts so that their decisions would be liable to be quashed by writs issued by
the Supreme Court which also had been given the power to issue the writs. Nor do I
think that the cause of justice will in any manner be affected if a High Court is not made
amenable to correction by this Court by the issue of the writ. In my opinion, therefore,
this court has no power to issue certiorari to a High Court.
88. I would, for these reasons, dismiss the petitions.
8 9 . Hidayatullah, J. Questions of far-reaching importance to our system of
administration of justice are involved in these petitions and as I have reached the
conclusion that these petitions should be allowed, I consider it necessary to state my
reasons fully. The facts are these :

9 0 . In a sensational libel suit, on the original side of the High Court of Bombay,
between one Mr. Krishnaraja M. D. Thakersey and Mr. R. K. Karanjia, Editor of the
"Blitz" (an English weekly newspaper of Bombay), one Bhaichand Goda was cited as a
witness for the defence. In a different proceeding Goda had earlier made an affidavit of
facts which were considered relevant to the libel suit, but as witness he did not adhere
to them. Mr. Karanjia was, therefore, permitted to cross-examine him with reference to
his earlier statement. When the trial of the suit proceeded some other material came on
record which indicated that Goda had, in some other proceedings, repeated what he had
stated in his affidavit. At the request of Mr. Karanjia, Goda was recalled for further
cross-examination in relation to the new matter. On his second appearance Goda made
a request to the presiding Judge (Mr. Justice Tarkunde) to withhold his evidence from
newspaper reporters on the ground that publication of reports of his earlier deposition
had caused loss to him in his business. After hearing arguments Mr. Justice Tarkunde
orally ordered that Goda's deposition should not be reported in newspapers. The Blitz
was giving verbatim reports of the trial and the other newspapers were also publishing
brief accounts. The oral order of the learned Judge was not recorded. The minutes of
the Court also do not mention it. In fact we have not seen that order. No one can say
what the nature of the prohibition was, namely, whether it was a temporary or a
perpetual suppression of publication. As the intention was to save Goda's business from
harm, it is reasonable to think that the prohibition was perpetual and that is how the
matter appears to have been understood by all concerned because no report of his
deposition has since appeared in any newspaper.
91. These four petitions under Art. 32 of the Constitution were filed to question the
order (such as it was) on the ground that the fundamental rights under Art. 19(1)(a) of
the Constitution of the four petitioners (who are all journalists) have been violated by
the said order. They raise important questions and I shall mention them at once. They
are : (i) can a court, which is holding a public trial from which the public is not
excluded suppress the publication of the deposition of a witness heard not in camera
but in open court on the request of the witness that his business will suffer; (ii) does
such an order breach fundamental right of freedom of speech and expression entitling
persons affected to invoke Art. 32; and (iii) if so, can this Court issue a writ to a High
Court ? I answer these questions in the affirmative and in favour of the petitioners.
92. Before I discuss the order in this case I shall state the nature of hearings in the trial
of cases in our courts. As we have fortunately inherited the English tradition of holding
trials (with a few exceptions to which I shall refer later) in public, I shall begin with the
English practice. It has always been the glory of the English system as opposed to the
Continental, that all trials are held ostiis apertis, that is, with open doors. This principle
is old and according to Hallam it is a direct guarantee of civil liberty and it moved
Bentham to say that it was the soul of Justice and that in proportion as publicity had
place, the checks on judicial injustice could be found. Except for trials before the
Council all trials in England, including those before the notorious Star Chamber, were
public and with observance of the law terms. It is because English trial has not known
the Letters de cachet of Louis XIV and all its state trials were public, that the Selden
society has been able to collect the cases of the Star Chamber and we have the verbatim
reports of almost all state trials. As Emlyn in his preface to the State Trials says proudly
:
"In other countries the courts of Justice are held in secret; with us publicly and
in open view; there the witnesses are examined in private, and in the prisoner's
absence; with us face to face, and in the prisoner's presence."

He was no doubt speaking of criminal trials but the principle (with a few exceptions) is
applicable to civil cases also.
93. This attachment to an open trial is not a rule of practice with the English, but is an
article of their Great Charter and Judges view with great concern any departure from it.
Whenever, a Judge departed from it he defined the 'field of exception' and stated 'the
overriding principle' on which his decision was based. No judge passes an order which
is not recorded in the minutes and a question of this kind is not dealt with by the Judge
as within his mere discretion as to what he considers expedient or convenient. As
illustration of the seriousness of the question I shall permit myself an instance which
concerns one of the greatest legal luminaries of English law. In Malan v. Young (1889)
6 T.L.R. 38 (in the Sherborne School libel case) Lord Denman (then Denman J.) with
the consent of the parties made an order for hearing in camera and a part of the case
was so heard. Then a lawyer protested and Mr. Justice Denman, on a reconsideration of
the matter, invited the parties to decide whether they would take the risk of a case in
camera or would begin de novo in open court. The parties agreed to have the case
heard before him as an arbitrator. A decision of a case in camera, even if parties agree,
is voidable (as was decided by the Judicial Committee in Mc. Pherson v. Mc. Pherson
I.L.R.(1936) A.C. 177 and Lord Denman was apprehensive of such a result. This attitude
to the trial in open was summed up by Viscount Haldane L.C. in Scott v. Scott I.L.R.
(1913) A.C. 417 by saying that a Judge could only depart from the principle that the
trial must be in public (except for some narrow exceptions) by demitting his capacity as
a Judge and sitting as an arbitrator. The exceptions to the general rule which Viscount
Haldane mentioned are cases of lunatics and wards of courts, of trade secrets, and
nullity cases in which the Ecclesiastical Courts granted trials in camera. But even these
are viewed very narrowly and the principle on which each exception is made to rest,
differs. The cases of lunatics and wards are so viewed because the court exercises over
them a quasi-paternal jurisdiction on behalf of the Queen as the parens patriae. These
cases are considered private or domestic with which the public have no concern. The
cases of trade secret are so viewed because secret processes (which are property) must
be protected and unless secrecy from public view is maintained justice itself must fail in
its purpose. The last are kept away from publicity because they involve sordid details of
domestic life and therefore embarrass deponents. Even the last rule does not apply to
all matrimonial cases as is evident from Scott v. Scott referred to earlier.
9 4 . In Scott v. Scott I.L.R. (1913) A.C. 417 there are certain observations which
proceed upon a dictum of Sir Francis Jeune in D. v. D. (1903) P. 144 that the court
possesses an inherent jurisdiction to hear any case in private when the administration
of justice requires or with the consent of parties. This is the principle which has been
stressed in the judgment of my lord the Chief Justice and I shall say a few words about
it. Viscount Haldane did not dissent from that dictum, "provided that the principle is
applied with great care and is not stretched to cases where there is not a strict necessity
for invoking it." These observations were really made in relation to the three exceptions
he was considering and he did not intend by them to give a wide discretion to the
Judge. He himself stated :
"But unless it be strictly necessary for the attainment of justice, there can be
now power in court to hear in camera either a matrimonial cause or any other
where there is contest between parties. He who maintains that by no other
means than by such a hearing can justice be done may apply for an unusual
procedure. But he must make out his case strictly, and bring it up to the
standard which the underlying principle requires. He may be able to show that
the evidence can be effectively brought before the court in no other fashion."

With profound respect for the eminent Judge I think the principle, so stated, is too wide
and Rex v. Clement 4B Ald. 218 which he uses to illustrate his point has no relevance. I
respectfully agree with the Earl of Halsbury, who in the same case, commented upon
the width of the Lord Chancellor's language and with Lord Atkinson who pointed out
that in Clement's case there were many persons being tried for high treason and as the
challenges to the jury were different, a large number of trials with common witnesses
had to be held and publication was withheld so that others might not be prejudiced. The
Earl of Halsbury observed as follows :
"........ I wish to guard myself against the proposition that a judge may bring a
case within the category of enforced secrecy because he thinks that justice
cannot be done unless it is heard in secret.". . . . . .
I am not venturing to criticize your Lordship's language, which, as your
Lordship understands it, and as I venture to say I myself understand it, is
probably enough to secure the observance of the rule of public hearing, but
what I venture to point out is that it is not so definite in its application but that
an individual judge might think that, in his view, the paramount object could
not be attained without a secret hearing. Although I am very far from saying
that such a case may not arise, I hesitate to accede to the width of the
language, which, as I say, might be applied to what, in my view, would be an
unlawful extension." "(pp. 442/443)."
The Earl of Halsbury also expressed amazement that a single Judge (Sir Francis Jeune)
should overrule "three such learned Judges as Sir Cresswell Cresswell, Williams J. and
Bramwell B." who in H (falsely called C) v. C. 1 SW Tr. 605 had expressed different
opinion in relation to hearing in camera on the request of parties. Lord Shaw of
Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. "to be historically
and legally indefensible." Earl Loreburn, however, agreed with the principle as
enunciated and was in favour of its being exercised liberally. The head-note in the law
report sets out the views of Viscount Haldane and Earl Loreburn separately from the
main decision.
95. In Scott v. Scott (1913) A.C. 417 the question had arisen in connection with a
nullity suit and the main decision was that the Probate, Divorce and Admiralty Division
had no power, either with or without the consent of the parties, to hear a nullity suit or
other matrimonial suit in camera in the interest of public decency. The order of hearing
in camera which led to a suppression of publication of the proceedings in perpetuity
was held to be bad. So strong is this principle of open trial that even where this rule is
departed from on the ground that interest of justice would suffer the Judges always
remember to remind themselves that the order cannot be made as a matter of course.
Thus it was that in Moosbrugger v. Moosbrugger and Moosbrugger v. Moosbrugger and
Martin (1913) 29 T.L.R. 658 (which were two cross suits between spouses for divorce),
Evans P., while acceding to the request of the wife for privacy because of the horrible
details of her case, repeated again and again that the trial was public and should not be
thought not to be so. He was apprehensive that the lady's case would suffer if the
sordid details were asked to be divulged in public and, therefore, heard only that part in
private to give her confidence.
96. In India the position is not different. Public hearing of cases before courts is as
fundamental to our democracy and system of justice as to any other country. That our

legal system so understands it is quite easily demonstrable. We have several statutes in
which there are express provisions for trials in camera. Section 53 of Act 4 of 1869
dealing with matrimonial causes, section 22 of the Hindu Marriage Act, 1955, section
352 to the Code of Criminal Procedure, 1898 and section 14 of the Indian Official
Secrets Act, 1923, allow the court a power to exclude the public. Where the Legislature
felt the special need it provided for it. Section 14 of the Official Secrets Act, however,
needs some comment because an argument is knit from it. That section recites "without
prejudice to any powers which a court may possess to order the exclusion of the public"
and it is suggested that this recognizes the existence of inherent powers spoken of by
Sir Francis Jeune. From this recital alone it is not right to assume that courts possess a
general or inherent power of dispensing with open and public trials. This recital is
necessary to be stated lest it may be thought that unless the prosecution applies to have
the public excluded for reasons arising under the Official Secrets Act, other power
derivable from any other source such as section 352 of the Code of Criminal Procedure
cannot be exercised. For this reason the other powers are expressly mentioned and
preserved. The above statutes do not only confer power to hold trials in camera, but in
a way they show that trials under laws which do not contain such enabling provisions
must be open and public unless a strong case exists for holding them in camera.
Inherent powers can only be exercised on well recognized principles and they cannot be
assumed to exist where they do not and I see none on the facts of this case.
97. The libel suit against the Editor of Blitz opened in public and proceeded in public.
Goda's deposition on the first occasion was taken in open court and it was reported in
newspapers. On his second appearance the trial as well as his examination was in open
court but the reporting of his evidence was banned. Now 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. If the matter is already published in open court, it
cannot be prevented from being published outside the court room provided the report is
a verbatim or a fair account. Accurate publication of reports is insisted upon so that the
proceedings are not misrepresented. The above rules were stated by Lord Halsbury L.C.
in Macdougall v. Knight (1889) 14 A.C. 194 thus :
"My Lords, the ground on which the privilege of accurately reporting what takes
place in a court of justice is based is that judicial proceedings are in this
country public, and that the publication of what takes place there, even though
matters defamatory to an individual may thus obtain wider circulation than they
otherwise would, is allowed because such publication is merely enlarging the
area of the court, and communicating to all that which all had the right to
know."
98. In our case the learned Judge by an order (which we have not seen and which
parties could not produce because it was nowhere recorded) ordered that the deposition
of Goda should not be published. Whether this order is to apply in perpetuity or for the
duration of the trial, only the learned Judge can say. If it is to apply in perpetuity then it
is bad because if there was unanimity on any one point in Scott v. Scott it was on this
point. Even otherwise the order is indefensible. Having held the trial in open court, the
learned Judge could not curtail the publication of the report of the trial and the reason
which he accepted as sufficient, is one which the courts have not recognised and should
not recognise. I know of no case to support the astounding proposition that a witness

can seek protection because his truthful statement would harm his own business; nor
has the industry of counsel discovered any such case. I do not think such a principle
exists at all. If it did a witness might with as good or as bad reason claim that he would
depose only under a veil of secrecy because his domestic relations or his friendships or
the relations with his employer would otherwise suffer. I imagine that a cunning rogue
might ask for such secrecy to harm and wound another with impunity or to save his face
when contradicted by his many prevarications. It is not sufficient to say that the witness
is bound to speak the truth if so protected for he might well use the occasion to tell
lies. It is clear to me from this case that the warning given by the Earl of Halsbury
against the width of the language of Viscount Haldane was necessary. Section 151 of
the Code of Civil Procedure, on which great reliance is placed, in spite of its very
generous and wide language, cannot be used to confer a discretion on the court to turn
its proceedings which should be open and public into a private affair. I am of opinion
that the order of Mr. Justice Tarkunde 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.
99. The next question which arises is whether such an order breaches the fundamental
right to freedom of speech and expression. This question is tied to another and it is
whether a petition under Art. 32 can at all lie against a Judge in respect of any action
performed by him while in the seat of justice. To determine these questions it is
necessary to start with the second limn because unless it is answered in the affirmative
the first limb may not fall for consideration. In making the enquiry on the second limb,
I do not confine my attention to the consideration of Art. 19(1)(a) alone, for that does
not enable me to see the fundamental rights in their true perspective vis-a-vis the
action of Judges. While I do not detract from the proposition that judicial effort should
be restrained and should never attempt an exposition of the law at large and outside the
range of the facts on which a case in hand is founded, I venture to think that (remedy
apart) the chapter on fundamental rights, when examined carefully in its several parts,
gives many indications that Judges were not intended to be outside its purview. Certain
articles address themselves to courts in common with other authority and some more to
courts than to other authorities. Unless we read these other articles with Art. 19(1)(a)
and consider them together, we are likely to have but a partial view of the problem.
100. To begin with we have the definition of 'State' in Art. 12. (In this part unless the
context otherwise requires "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."). That definition does not say fully what may be included in the word 'State' but,
although it says that the word includes certain authorities, it does not consider it
necessary to say that courts and Judges are excluded. The reason is made obvious at
once, if we consider Art. 13(2). ("13(2) The State shall not make any law which takes
away or abridges the rights conferred by this part and any law made in contravention of
this clause shall, to the extent of the contravention, be void."). There the word 'State'
must obviously include 'courts' because otherwise 'courts' will be enabled to make rules
which take away or abridge fundamental rights. Such a case in fact arose in this Court
when Rule 12 of Order XXXV of the Supreme Court Rules was struck down, (See
Premchand Garg v. Excise Commissioner, U. P., Allahabad) MANU/SC/0082/1962 :
(1963) Supp. 1 S.C.R. 885. That rule required the furnishing of security in petition
under Art. 32 and it was held to abridge the fundamental rights. But it is said that the

rule was struck down and not the judicial decision which was only revised. That may be
so. But a judicial decision based on such a rule is not any better and offends the
fundamental rights just the same and not less so because it happens to be a judicial
order. If here be no appropriate remedy to get such an order removed because this
Court has no superior, it does not mean that the order is made good. When judged of
under the Constitution it is still a void order although it may bind parties unless set
aside. Procedural safeguards are as important as other safeguards.
1 0 1 . Again Art. 20(1) which speaks of convictions for offences, punishments and
testimonial compulsion is addressed as much to courts as to execute and other
authorities, and I venture to think that the worst offenders would be the courts if they
went against the prescription. Article 22(1) (No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by a legal
practitioner of his choice.) is addressed to courts where it says that no person, who is
arrested, shall be denied the right to be defended by a legal practitioner of his choice. If
the High Court had, for example, insisted on the defendant in a criminal case to take a
counsel of its choice, the trial would have been vitiated. Why ? Because of the breach of
the fundamental right in Art. 22(1). The remedy would not have been to wait till the end
of the trial and then to bring the matter up by appeal on a certificate or to ask for
special leave against the order but to ask for a writ compelling the observance of the
Constitution.
102. These provisions show that it cannot be claimed as a general proposition that no
action of a Judge can ever be questioned on the ground of breach of fundamental
rights. The Judge no doubt functions, most of the time, to decide controversies between
the parties in which controversies the Judge does not figure but occasion may arise
collaterally where the matter may be between the Judge and the fundamental rights of
any person by reason of the Judge's action. It is true that Judges, as the upholders of
the Constitution and the laws, are least likely to err but the possibility of their acting
contrary to the Constitution cannot be completely excluded. In the context of Arts. 14,
15(1)(b) and (19)(a) and (d) it is easy to visualize breaches by almost any one
including a Judge. A court room is a place dedicated to the use of the general public.
This means that a person who goes there has not to seek anybody's permission to enter
it provided he either has business there or as a spectator behaves himself. The work of
the court is done in public and no one is excluded who wishes to enter the court room
to watch it. In a suitable case the public may, of course, be excluded by the Judge. But
he cannot exclude a section of the public on the ground of race, religion or community
without offending fundamental rights. The right to carry on the profession of law may
be enforced against a Judge within the precincts of his court as much as the carrying on
of other professions may be enforced outside. It is, however, said that a Judge
possesses a dual character, that in his administrative capacity he may be within the
reach of the chapter on fundamental rights but not in his judicial capacity. I venture to
think that sitting in the seat of justice hardly makes a difference. It may be that his
judicial orders normally are subject to appeals, revisions and reviews but where none of
these can be invoked and fundamental rights are involved recourse to the guaranteed
remedy may become necessary. Because Judges decide matters objectively and because
almost all their orders are capable of correction by way of appeals, revisions or reviews,
does not lead to the conclusion that every order made by a Judge may only be treated
as a wrong order and not as one guilty of breach of fundamental rights. If a Judge,
without any reason, orders the members of, say, one political party out of his court,
those so ordered may seek to enforce their fundamental rights against him and it should
make no difference that the order is made while he sits as a Judge. Even if appeal lies

against such an order, the defect on which relief can be claimed, is the breach of
fundamental rights. I am, therefore, of opinion that Judges cannot be said to be entirely
out of the reach of fundamental rights.
103. The fundamental right here claimed is the freedom of speech and expression. In
Sakal Papers (P) Ltd. v. The Union of India MANU/SC/0090/1961 : [1962]3SCR842 this
Court holds that the freedom of speech and expression guaranteed by Art. 19(1)(a)
includes freedom of press. A suppression of the publication of the report of a case
conducted in open court, for a reason which has no merit, ex facie offends that
freedom. Just as the denial without any reason to a person of the right to enter a court
is to deprive him of several fundamental freedoms, denial of the right to punish reports
of a public trial is also to deny the freedom of the press which is included in the
freedom of speech and expression. Suppose for a moment that a Judge singles out
some newspapers for discriminatory treatment. The order would indubitably offend the
equality clause. Assuming that no remedy exists against such an order, the person
affected, if he disobeys it, can at least claim immunity in a proceeding for contempt by
pleading breach of his fundamental rights by the Judge. In my judgment Mr. Justice
Tarkunde, having held a public trial, could not curtail the liberty of the press by
suppressing the publication of the reports. This was not a matter of deciding anything in
a lis but of regulating his court and procedure. 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.
104. I have disposed of the second question but some of the reasons which strengthen
that view were not mentioned because they can be more appropriately mentioned in
connection with the third question which is : Can this Court issue a writ under Art. 32 of
the Constitution to a High Court ? This is a difficult and an important question which I
would have gladly reserved for a more suitable case. Had I been of the view that the
order of Mr. Justice Tarkunde was proper, I would not have attempted it because it
would have been a futile exercise but I am compelled to answer this question firstly
because the matter is considered in the judgments of my lord the Chief Justice and of
my other brethren and, secondly, because on my answers to the first two questions it
perhaps arises more in my judgment than in others.
105. The submission of the Attorney-General is that in no case can writs of mandamus,
certiorari or prohibition go to a Division Court or to a single Judge of the High Court
whether sitting in bane or in chambers. He is not so sure about the writ of quo warranto
and wishes it to be considered as a separate question. It is, however, clear that the last
writ must either issue here or in the High Court if a Judge becomes incompetent, say,
by reason of superannuation and does not demit his office and, I think, the Attorney-
General is right in not mixing up this writ with a consideration of the others. In respect
of the other writs, the argument of the Attorney-General is that the High Court in
England issues these writs to inferior courts but not to courts of coordinate jurisdiction
or superior courts and the High Court as a Court of Record and a superior court, itself
being able to issue these writs in our country, must be treated as a court of coordinate
jurisdiction in this matter and not regarded as an inferior court. He also contends that
the decisions of the High Court are capable of being corrected by appeals only and writs
cannot lie. I do not accept these arguments.
106. Nothing turns on the fact that the High Court is a court of record because the writ
of certiorari issues to several courts of record - (see Halsbury's Laws of England (3rd
Edn.) Vol. II, page 124 para 230). Similarly "Ecclesiastical courts are superior courts in
the sense that it need not appear in any proceedings or judgments of these courts that

the court was acting within its jurisdiction but they are regarded as inferior courts in the
sense that they can be stopped from exceeding their jurisdiction by an order of
prohibition" (see Halsbury ibid., Vol. 9, p. 348 para 817). Nothing much can turn upon
phrases such as 'court of record', 'superior and inferior courts' borrowed from English
law.
107. We have to guide ourselves by our Constitution which lays down the powers of
this Court in Art. 32 thus :
"32. Remedies for enforcement of rights.
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses
(1) and (2), Parliament may by law empower any other court to exercise within
the local limits by its jurisdiction all or any of the powers exercisable by the
Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution."
The powers of the High Court are stated in Art. 226 which may also be set out here for
comparison :
"226. Power of High Courts to issue certain writs.
(1) Notwithstanding anything in article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate cases any Government
within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.
(1A) The power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding
that the seat of such Government or authority or the residence of such person is
not within those territories.
(2) The power conferred on a High Court by clause (1) or clause (1A) shall not
be in derogation of the power conferred on the Supreme Court by clause (2) of
Article 32."
108. Article 32 makes no exception in favour of the High Court. It refers to the writs of
certiorari and prohibition which lie only in respect of judicial acts and although they lie
also to bodies and persons who are not courts stricto sensu, they always lie to courts.
As these writs are mentioned in Art. 32 and there is no exception in respect of the High

Courts we start with a presumption that the High Court may not be excluded. The writ
of mandamus may also be issued to courts and that does not detract from the
presumption. The writ quo warranto, as stated earlier, may concededly be held to apply
to a High Court Judge.
109. It will be noticed that both the articles in speaking of the power say that it is to
issue writs "in the nature of" the writs of habeas corpus, mandamus, certiorari,
prohibition and quo warranto. The phrase "in the nature of" is not the same as the other
phrase "of the nature of". The former emphasises the essential nature and the latter is
content with mere similarity. As a result we have to consider this controversy from two
angles : (i) how far does the essential nature of the writs taken with the special history
of courts in England throw any light upon the subject and (ii) what assistance do we
derive from the language and scheme of Arts. 32 and 226 ? I shall deal with these
matters in the same order.
110. We are concerned with high prerogative writs. They do not issue like the ordinary
writs which are of strict right, but only at the discretion of a court entitled to issue
them. The writ of prohibition issues from the Queen's Bench properly but it was also
issued from the Chancery, Common Pleas and Exchequer Courts returnable to the
Queen's Bench or Common Pleas (now merged in the Queen's Bench Division). It is,
however, not granted to a court which exercises the powers of the High Court. The writ
is issued to Judges and parties in an inferior court to cease from prosecuting a case in
which their jurisdiction, either originally or collaterally, is wanting. Prohibition lies to a
Judge as of right when the want of jurisdiction is patent. Since the Judicature Acts an
appeal now lies against the writ, to the Court of Appeal and hence to the House of
Lords, but before that the writ could only be questioned under a Writ of Consultation.
The Judge to whom the writ went consulted with the Queen's Justices and if the writ of
prohibition was not proper, a consultation was granted.
111. Certiorari issues to Judges and officers of inferior courts and jurisdictions, from
the Queen's Bench (now the Queen's Bench Division) to certify or send proceedings so
that the legality of the proceedings may be examined. But if the other court exercises
the powers of the High Court the writ is refused (see Skinner v. Northallerton County
Court Judge - (1889) A.C. 439. Certiorari also lies to remove a cause or matter into the
High Court if fair and impartial trial in the inferior court is not possible or questions of
law of unusual difficulty are likely to arise. The writ also issues from the House of Lords
to remove an indictment for felony found by a grand jury against a Peer. The Earl of
Russell was tried for bigamy by the King in Parliament before 160 peers and all the
Judges of the High Court after removal thereof the case by certiorari (see The Trial of
Earl Russell) (1901) A.C. 446. The Crown gets the writ of certiorari as of absolute right
but the subject at the discretion of the court. No certiorari goes from one branch of the
High Court to another nor to another superior court. This writ cannot be avoided by the
Judge by not writing an order in the case before him. Even if the Judge has not
recorded the order the High Court will order the inferior court to record its decision and
then to transmit the record to it. (Halsbury, 3rd Edn, Vol XI, page 135, para 251).
Certiorari lies only in respect of judicial, as distinguished from administrative acts.
112. Mandamus lies for the enforcement of legal rights when there is no other specific
remedy or the other available remedy is not so effective. It often issues to a court to
hear and determine a matter pending before it. Such a writ issued also from the
Chancery when judgments were delayed, but returnable to the Queen's Bench.
113. As Halsbury tersely puts it (3rd ed. Vol. XI, p. 53, para 109) the three writs of

mandamus, prohibition and certiorari are used as a means of controlling inferior courts
and those who have legal authority to determine questions affecting the rights of
subjects and having to act judicially. By these three writs inferior courts were compelled
to do ample and speedy justice and were kept within their jurisdiction.
114. The root principle, says Halsbury (ibid., Vol. IX, p. 351, para 823) is that the
Judges stand in the place of the Queen and the Queen is supposed to be present in her
royal courts. Of the Courts of Common Law at Westminster which have dispensed
justice for upward of seven centuries in the Queen's name, only one exercised general
jurisdiction in civil causes. This court was established by Henry II in 1178 A.D. and was
known as the Common Bench. Cases of special difficulty were heard by the Sovereign
with the advice of her wise men. This court was spoken of by the Sovereign "as our
Justices at Westminster". In accordance with Article XVII of the Great Charter,
Westminster was chosen as a "certain place" and till the idea of taking justice to the
people arose and assizes came into existence, the court never stirred from that place.
The court was known as the Upper Bench or the Queen's Bench where the Sovereign
was present (curia ad placita corem Regetenenda). The Upper Bench or the Banco Royal
dealt with matters of special interest to the sovereign, viz. the 'prerogative' writs of
certiorari, prohibition etc. The Court of Exchequer (which was the third court) dealt with
cases in the course of collection of revenue.
115. Some writs which issued from these courts were original or judicial. They were
regarded as mere machinery writs and were writs of right issued on payment of the
necessary fee to commence litigation or something incidental to it. Prerogative writs
were different and they issued with the special leave of the Court. By these prerogative
writs the Queen's Bench superintended the other courts and tribunals. The distinction
between superior and inferior courts is this. No matter is deemed to be beyond the
jurisdiction of a superior court unless expressly shown on the face of the proceedings to
be beyond it, or established aliunde. In the case of an inferior court it has to appear in
the proceedings or in its judgment that the matter is within its jurisdiction. Another test
is whether proceedings in the court can be stopped by a writ of prohibition issuing from
the Queen's Bench and in this sense the Ecclesiastical Courts and even the Judicial
Committee hearing appeals in ecclesiastical matters and the Admiralty Courts are
inferior (see Rex. v. Chancellor of St. Edmunsbury and Ipswich Diocese) (1948) 1 K.B.
195 .
116. I make no excuse for this excursion into the history of English law and institutions
because we have chosen to put down in Arts. 32 and 226 of the Constitution that the
Supreme Court and the High Courts will exercise the power to issue writs 'in the nature
of' mandamus certiorari, prohibition and quo warranto - the Supreme Court for the
enforcement of fundamental rights only and the High Courts for that purpose and for
other purposes. The question is who takes the place of the Queen's Bench Division in
England and whether the Supreme Court in India has no power to issue a writ to
enforce fundamental rights when breached by the High Courts ? There is no real
resemblance between the scheme of courts under our Constitution and the courts in
England. Obviously, no prerogative writ of the Queen can go to a court in which the
Queen herself is supposed to be present. This limitation has no significance with us.
The analogy of superior and inferior courts breaks down in England itself when we
consider the Ecclesiastical Courts and the Privy Council hearing appeals in ecclesiastical
matters. They are superior courts but prohibition issues to them. That our High Courts
are courts of record is not a fact of much significance either because prerogative writs
do issue to several courts of record in England. As there is no real correspondence
between the courts in the two countries we can only decide the question by considering

if there is any good reason for excluding the High Court Judges from the area of the
powers of this Court or conversely for holding that they are so included.
117. In the draft Constitution the jurisdiction and power to issue prerogative writs to
governments etc. was entrusted to this Court only by implication. The inclusion of this
power in Art. 226 came by way of amendment. It was perhaps considered that enabling
the making of a law under Art. 32(3) might not be an adequate provision to provide for
investing the High Courts with similar powers because such a law might never be
passed. It was considered difficult for this court single-handed to enforce the
fundamental rights throughout the territories of India and accordingly Art. 226 was
amended to confer jurisdiction on the High Courts within the territories in relation to
which they exercise jurisdiction to issue such writs. The fundamental rights are,
however, more strongly entrenched in the Constitution through Art. 32 than through Art.
226. Even with the amendment of Art. 226 the power which is conferred on the High
Courts is not in every sense a coordinate power and the Constitution furnishes several
reasons in support of this statement. The first indication is that the right to move the
Supreme Court for the enforcement of these rights is guaranteed but there is no such
guarantee in Art. 226. Again clause 3 of Art. 32 enables Parliament to empower by law
any other court to exercise within local limits of its jurisdiction all or any of the powers
exercisable by this Court under Art. 32 but without prejudice to the powers of the
Supreme Court under Cls. (1) and (2) of Art. 32. There is no such saving in favour of
the powers of the High Courts. The mention of the first two clauses of Art. 32
particularly clause (1), indicates the importance of the guarantee.
118. Although the amendment of Art. 32 has been held to be a less difficult process
than the amendment of Art. 226, the guarantee in Art. 32(1) seems to be real till it is
repealed or annulled. The provisions of Art. 226 themselves indicate this. Art. 226
begins by saying "Notwithstanding anything in article 32" which shows that the whole
of the power must otherwise be with this Court. It indicates an intention to carve out an
area for local action by the High Court. This might have made the exercise of the power
by the High Court equal to its exercise by this Court but for the existence of clause (2)
which says that the power conferred on the High Court is not in derogation of the
powers conferred on the Supreme Court. The word derogation must receive its full
meaning. It shows that the entirety of the powers possessed by this Court is still intact
in spite of the High Court's ability to exercise similar powers in local areas within their
jurisdiction. If the powers were coordinate why include clause (2) in Art. 226 ?
1 1 9 . In these circumstances can we say that the High Court possesses coordinate
powers ? I say no. A person need not go to the High Court at all before moving this
Court. There is really no provision that when a person has moved the High Court and
failed he cannot again move this court although on the ground of comity this Court
expects in such circumstances an appeal against the decision of the High Court and not
a direct approach. This Court is not only a court of appeal in civil, revenue and criminal
proceedings from judgments of the High Court but by Art. 136 it is empowered to bring
before it any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India. The implication of this
is quite clear to me when I read Art. 136 in conjunction with Arts. 32 and 226. That
implication is that there is no sharing of the powers to issue the prerogative writs
possessed by this Court. The whole of the power is still with this Court under a
guarantee and only analogous powers for local enforcement are given to the High
Courts. Under the total scheme of the Constitution the subordination of High Courts to
the Supreme Court is not only evident but is logical.

120. Art. 32 is concerned with fundamental rights and fundamental rights only. It is not
concerned with breaches of law which do not involve fundamental rights directly. The
ordinary writs of certiorari, mandamus and prohibition can only issue for enforcement
of fundamental rights. A clear-cut case of breach of fundamental rights alone can be the
basis for the exercise of the power. I have already given examples of actions of courts
and Judges which are not instances of wrong judicial orders capable of being brought
before this Court only by appeal but of breaches of fundamental rights pure and simple.
Denial of equality, as for example, by excluding members of a particular party or of a
particular community from the public courtroom in a public hearing without any fault
when others are allowed to stay on, would be a case of breach of fundamental rights of
equal protection given by the Constitution. Must an affected person in such case, ask
the Judge to write down his order so that he may appeal against it ? Or is he expected
to ask for special leave from this Court ? If a High Court Judge in England acted
improperly there may be no remedy because of the limitation on the rights of the
subject against the Crown. But in such circumstances in England the hearing is
considered vitiated and the decision voidable. This need not arise here. The High Court
in our country in similar circumstances is not immune because there is a remedy to
move this Court for a writ against discriminatory treatment and this Court should not in
a suitable case shirk to issue a writ to a High Court Judge who ignores the fundamental
rights and his obligations under the Constitution. Other cases can easily be imagined
under Arts. 14, 15, 19, 20, 21 and 22 of the Constitution in which there may be action
by a Judge which may offend the fundamental rights and in which an appeal to this
Court will not only be not practicable but also quite an ineffective remedy.
121. We need not be dismayed that the view I take means a slur on the High Courts or
that this Court will be flooded with petitions under Art. 32 of the Constitution. Although
the High Courts possess a power to interfere by way of high prerogative writs of
certiorari, mandamus and prohibition, such powers have not been invoked against the
normal and routine work of subordinate courts and tribunals. The reason is that people
understand the difference between an approach to the High Court by way of appeals etc.
and an approach for the purpose of asking for writs under Art. 226. Nor have the High
Court spread a Procrustean bed of high prerogative writs for all actions to lie. Decisions
of the courts have been subjected to statutory appeals and revisions but the losing side
has not charged the Judge with a breach of fundamental rights because he ordered
attachment of property belonging to a stranger to the litigation or by his order affected
rights of the parties or even strangers. This is because the people understand the
difference between normal proceedings of a civil nature and proceedings in which there
is a breach of fundamental rights. The courts' acts, between the parties and even
between parties and strangers, done impersonally and objectively are challengeable
under the ordinary law only. But acts which involve the court with a fundamental right
are quite different.
122. The power and jurisdiction of this Court is so narrow that nothing on the merits of
a controversy of a civil case can ever come up before it under Art. 32, It is unlikely that
this Court will torture cases to fit them into Art. 32. A person may try but he will find
this a Sisyphean task. It cannot be brought here by pleading breach of fundamental
rights. It is only when a Judge directly acts in some collateral matter so as to cause a
breach of a fundamental right that the ordinary process of appeals being unavailable or
insufficient a case under Art. 32 can be made out. If there is a decision in a civil
proceeding, an appeal is the only appropriate remedy. When the High Court Judge acts
collaterally to cause a breach of fundamental right I am clear than an approach to this
Court is open under Art. 32. The Supreme Court of America has not hesitated to
interfere with breaches of civil Rights Acts on the part of the courts in the States by

treating the action of State courts and of judicial officers in their official capacities as
State action (see Shelly v. Kraemer 92 L.ed. 1161 : 334 U.S. 1, Virginia v. Rives 25
L.ed. 667 and Hurd v. Hodge) 92 L.ed. 1187. I think we should not hesitate to extend
our protection to the fundamental rights in our country even if they be breached by the
High Courts.
123. I may dispose of a few results which it was suggested, might flow from my view
that this Court can issue a high prerogative writ to the High Court for enforcement of
fundamental rights. It was suggested that the High Courts might issue writs to this
Court and to other High Courts and one Judge or Bench in the High Court and the
Supreme Court might issue writ to another Judge or Bench in the same Court. This is an
erroneous assumption. To begin with the High Courts cannot issue a writ to the
Supreme Court because the writ goes down and not up. Similarly, a High Court cannot
issue a writ to another High Court. The writ does not go to a court placed on an equal
footing in the matter of jurisdiction. Where the county court exercised the powers of the
High Court, the writ was held to be wrongly issued to it (see In re The New Par
Consoles, Limited.) (1898) I.Q.B. 669. The following observations of the Earl of
Halsbury L.C. in Skinner v. The Northallerton County Court Judge(1899) A.C.439
represent my view :
"The absurdity of that is that the statute itself has made the county court the
High Court for this purpose. You might just as well argue that a warrant
defective in form, issued by the Court of Queen's Bench could be set right by
certiorari. Of course this is absurd. This is the High Court for this
purpose.......... If there was any irregularity or inaccuracy in point of form in
the warrant that did issue, that could be put right by proper proceedings, but
the proper proceedings would be in that court itself, and not proceedings by
certiorari in the Court of Queen's Bench."
I must hold that this English practice of not issuing writs in the same court is in the
very nature of things. One High Court will thus not be able to issue a writ to another
High Court nor even to a court exercising the powers of the High Court. In so far as this
Court is concerned, the argument that one Bench or one Judge might issue a writ to
another Bench or Judge, need hardly be considered. My opinion gives no support to
such a view and I hope I have said nothing to give countenance to it. These are
imaginary fears which have no reality either in law or in fact.
124. I am of opinion that if this Court is satisfied that a fundamental right has been
trampled upon it is not only its duty to act to correct it but also its obligation to do so.
In the present case I am satisfied that the order passed by Mr. Justice Tarkunde was an
erroneous and illegal order. I cannot assume that it suppresses publication temporarily
because Goda's business was sought to be protected and Goda's business, it is to be
presumed, was expected to outlast the trial. A permanent suppression on publication
would certainly be without jurisdiction. Even assuming the order meant a temporary
suppression of the publication of Goda's testimony I am quite clear that the learned
Judge had no jurisdiction to pass such an order when the trial he was holding was a
public trial for the reason accepted by him. That being so his order involved a breach of
the freedom of speech and expression guaranteed as a fundamental right and took away
from the press its liberty to report a case conducted in open court. I would, accordingly,
quash the order of Mr. Justice Tarkunde and declare that Goda's testimony is capable of
being reported in extenso in any newspaper in India.
125. Shah, J. Article 19(1) of the Constitution declares certain personal freedoms in

cls. (a) to (g) as guaranteed rights of citizens and cls. (2) to (6) define restrictions
which may be lawfully imposed by any existing or future law on those rights. Guarantee
of personal freedoms subject to restrictions which are or may be imposed is in terms
absolute, but since the rights are enforceable only against State action and not against
private action, infringement of personal freedoms by non-State agencies cannot be
made a ground for relief under Art. 32. It is said however that the Courts are State
agencies and infringement of fundamental rights guaranteed by Art. 19 by an order of a
Court may found a petition under Art. 32 of the Constitution. It is necessary therefore to
appreciate the manner in which a judicial determination which is alleged to infringe a
fundamental right of a citizen operates. In dealing with this question, I propose to
restrict the discussion only to determinations by Courts strictly so-called - Courts which
are invested with plenary power to determine civil disputes, or to try offences. Quasi-
judicial, or administrative tribunals, or tribunals with limited authority are nit within the
scope of discussion.
126. By Art. 32(2) this Court is invested with jurisdiction to issue writs, directions or
orders for the enforcement of fundamental rights. Implicit in the claim for invoking this
jurisdiction are two components : that the claimant has the fundamental freedom which
is guaranteed by Part III of the Constitution, and that the freedom is directly infringed
by the agency against whose action the protection is given. When it is claimed that an
order made pursuant to a judicial determination of a disputed question of law or fact
infringes a fundamental right under Art. 19, the claimant has to establish that he has
the right claim, and that by the order made the Court has directly infringed that right.
But the function of the Court is to determine facts on which claim to relief is founded, to
apply the law to the facts so found, and to make an appropriate order concerning the
rights, liabilities and obligations of the parties in the light of appropriate law. In
granting relief to a party claiming to be aggrieved or in punishing an offender, the Court
in substance declares that the party who claims that he is aggrieved has or has not a
certain right and that the right was or was not infringed by the action of the other party,
or that the offender by his action did or did not violate a law which prohibited the
action charged against him. Such a determination by a Court therefore will not operate
to infringe a fundamental right under Art. 19. The Court may in the ascertainment of
facts or application of the law err : in the very mechanism of judicial determination that
possibility cannot be ruled out, but until the determination is set aside by resort to
appropriate machinery set up in that behalf for rectification, a party to a proceeding
cannot ignore that determination and seek relief on the footing that he has the right
which has been negatived by the Court. Since the first postulate of a plea of
infringement of a fundamental right under Art. 19 is the existence of the right claimed
and breach thereof by state agency, a plea cannot be setup in a petition under Art. 32
contrary to an adjudication by a Court competent in that behalf.
1 2 7 . Counsel for the petitioners conceded that against a judicial determination of
rights, liabilities or obligations in a proceeding and enforcement thereof according to
law, a party thereto may not maintain a petition under Art. 32 on the plea that by an
erroneous judicial determination a fundamental right of the petitioner under Art. 19 is
infringed, but they submitted that where the order of a Court dealing with a dispute
inter parties infringes the fundamental right under Art 19 of a stranger to the
proceeding, the order may in appropriate cases be challenged in a petition under Art.
32. In my view there is no warrant for the reservation stated in that form. A Court in
adjudicating upon a dispute has power for arriving at an effective and just decision to
take all incidental steps for ensuring regularity and decorum in the conduct of its
proceedings, and such steps may incidentally affect persons who are strangers to the
litigations. The Court may issue a warrant to compel attendance of witnesses, attached

property in the hands of strangers to the proceeding, correct mistakes in its proceedings
even after rights of third parties have come into existence, set aside Court proceedings
in contravention of its directions or procured by fraud, recall invalid orders which cause
injustice, take contempt proceedings against witnesses and others who act in violation
of the order of Court or otherwise obstruct proceedings of the Court directly or
indirectly, and generally pass orders which may be necessary in the ends of justice to
prevent abuse of the process of law. Jurisdiction to exercise those powers which may
affect rights of persons other than those who are parties to the litigation is either
expressly granted by statue or arise from the necessity to regulate the course of its
proceeding so as to make them an effective instrument for the administration of justice.
If, as is accepted, and rightly, a judicial determination of the rights, privileges, duties
and obligations of the parties before the Court does not attract the jurisdiction of this
Court under Art. 32 of the Constitution for enforcement of the fundamental rights under
Art. 19, it is difficult to appreciate on what grounds that jurisdiction may be attracted
where a person other than a party to the proceeding is aggrieved by an order of the
Court made for ensuring an effective adjudication of the dispute.
128. Even when the rights under Art. 19 of a third party are affected by an order made
by a Court in a judicial proceeding, there is in a sense a disputed question which is
raised before it about the right of that third person not to be dealt with in the manner in
which the Court has acted or proposes to act, and the Court proceeds upon
determination of that disputed question. Such a determination of the disputed question
would be as much exempt from the jurisdiction of this Court to grant relief against
infringement of a fundamental right under Art. 19, as a determination of the disputed
question between the parties on merits or on procedure. An order made against a
stranger in aid of administration of justice between contending parties or for
enforcement of its adjudication does not directly infringe any fundamental right under
Art. 19 of the person affected thereby, for it is founded either expressly or by necessary
implication upon the non-existence of the right claimed and so long as the order stands,
it cannot be made the subject-matter of a petition under Art. 32 of the Constitution.
1 2 9 . It was then urged by counsel for the petitioners that Tarkunde, J., had no
jurisdiction to make the order prohibiting publication of the evidence of the witness
Bhaichand Goda, and on that account the order was liable to be challenged in petition
under Art. 32 of the Constitution. Indisputably when a Judge makes an order, not as a
Judge but in some other capacity - but as an authority of the State - it may be open to
challenge by a petition under Art. 32. But an order made by a Court in the course of
proceeding which it has jurisdiction to entertain - whether the order relates to the
substance of the dispute between the parties or to the procedure or to the rights of
other person, it is not without jurisdiction, merely because it is erroneous.
130. The Code of civil Procedure contains no express provision authorising a Court to
hold its proceedings in camera : but the Court has inherent jurisdiction to pass an order
excluding the public when the nature of the case necessitates such a course to be
adopted. Hearing of proceedings in open Court undoubtedly tends to ensure untainted
administration of justice and departure from that course may be permitted in
exceptional circumstances, when the Court is either by statutory injunction compelled,
or is in the exercise of its discretion satisfied, that unless the public are excluded from
the courtroom, interests of justice may suffer irreparably. An order for hearing of a trial
in camera is only intended to prevent excessive publication of the proceedings of the
Court, if such excessive publication may, it is apprehended, cause grave harm either to
the public interest or to the interests of the parties or witnesses, which cannot be offset
by interest which it is the object of a trial in open Court to serve. Hearing in open Court

of causes is of the utmost importance for maintaining confidence of the public in the
impartial administration of justice : it operates as a wholesome check upon judicial
behavior as well as upon the conduct of the contending parties and their witnesses. But
hearing of a cause in public which is only to secure administration of justice untainted
must yield to paramount object of administration of justice. If excessive publicity itself
operates as an instrument of injustice, the Court may not be slow, if it is satisfied that it
is necessary so to do to put such restraint upon publicity as is necessary to secure the
Court's primary object. Trial in closed session is generally ordered to prevent publicity
which is likely to deter parties or their witnesses from giving evidence, on account of
the nature of the evidence such as intimate details of sexual behavior, matters relating
to minors and lunatics, matters publication of which may harm the interests of the State
or the public at large, for instance, disclosure of official secrets, or matters which lead
to publication of secret processes, publication of which would destroy the very basis of
the claim for relief etc. In these cases the Court may hold a trial in closed session and
wholly exclude the public throughout the trial or a part thereof. Circumstances may also
justify imposition of partial ban on publicity in the interests of justice and the Court
may instead of holding a trial in camera and thereby excluding all members of the
public who are not directly concerned with the trial, restrain publication of the evidence.
Such an order may, having regard to the nature of the dispute and evidence given, be
within the jurisdiction of the Court. Whether in particular case, an order holding a trial
after excluding the public or preventing publication of evidence should be made will
depend upon the discretion of the Court, which must of necessity be exercised sparingly
and with great circumspection, and only in cases where the Court is satisfied that
prevention of excessive publication is the only course by resort to which justice may
effectively be administered in the case. Exercise of that discretion is always subject to
rectification by a superior Court. I may hasten to add that I express no opinion on the
question whether Tarkunde J., was right in making the order that he did. I am only
endeavouring to emphasize that he had, in appropriate cases where he was satisfied
that justice of the case demanded such a course, jurisdiction to make an order
preventing publication in newspapers of the evidence. Whether Tarkunde, J., erred in
making the impugned order is a question apart, and does not fall to be determined in
these writ petitions.
131. I am unable however to agree that in the matter of exercise of powers of this
Court to issue writs against orders of Courts which are alleged to infringe a fundamental
right under Art. 19, any distinction between High Court and subordinate Courts may be
made. In my view orders made by subordinate courts, such as the District Court or
Courts of Subordinate Judges which are Courts of trial and Courts of plenary jurisdiction
are as much exempt from challenge in enforcement of an alleged fundamental right
under Art. 19 by a petition under Art. 32 of the Constitution as the orders of the High
Courts are. The argument that a writ of certiorari is an appropriate writ for correcting
errors committed by an "inferior" authority or tribunal exercising judicial power, and
that the High Court is not an "inferior Court" cannot in my judgment prevail. No
adequate test of inferior status which would support a valid distinction between the
High Court and other Courts or Tribunals would stand scrutiny. If the investment of
appellate power in this Court is a valid test, all Courts and Tribunals (except the Courts
and Tribunals constituted by and under the law relating to the Armed Forces or the
Forces charged with the maintenance of public order within the territory of India) are
inferior to this Court, and if the grounds which I have set out in some detail earlier for
holding that a petition does not lie to this Court under Art. 32 against an alleged
infringement of rights by an adjudication of a Court or by an order of a Court against a
stranger to the proceeding, such order being made in aid of determination of the
dispute between the parties before the Court, be not true, the order of the High Court

would be as much subject to jurisdiction of this Court under Art. 32 as an adjudication
of any other subordinate Court such as the District Court or the Subordinate Judges'
Courts. If the test of inferiority is to be found in the investment of supervisory
jurisdiction, this Court is not invested with that jurisdiction over any Court be it the
High Court, or the District Court or the Subordinate Judge's Court. It is unnecessary to
enter upon a discussion about the procedural law in the United Kingdom relating to the
issue of writs of certiorari in considering whether the jurisdiction under Art. 32 of the
Constitution may be exercised. This Court is competent to issue an appropriate writ
including a writ in the nature of a writ of certiorari. If it be granted that the fundamental
right under Art. 19 may be infringed by an adjudication of a Court - civil or criminal -
because the Court had come to an erroneous conclusion, I see no ground for making a
distinction between adjudications of the High Court which is a superior Court of Record
and of Courts which are subject to the appellate jurisdiction of the High Court. It is true
that the High Courts are invested with the power under Art. 226 of the Constitution to
issue writs in enforcement of fundamental rights. The power to issue a writ in respect of
the territory over which the High Court has jurisdiction in enforcement of fundamental
rights is co-extensive with the power which this Court possesses. But if this Court
possesses authority to issue a writ in respect of an adjudication by a Court, the
circumstance that the High Court has also power to issue a writ of certiorari which may
be issued by this Court in enforcement of a fundamental right whereas the subordinate
Courts have not, will not warrant the distinction sought to be made on behalf of the
respondents. I am therefore unable to agree that in the matter of issue of a writ of
certiorari against the order of any Court, a distinction may be made between the order
of the District Court or the Subordinate Court and an order of the High Court.
132. The argument that the inherent power of this Court which may have existed prior
to the Constitution must still be tested in the light of Art. 19(2) of the Constitution does
not require any serious consideration. If a plea of infringement of a fundamental right
under Art. 19 against infringement by a judicial determination may not be set up, in
petition under Art. 32, it would not be necessary to consider whether on the footing that
such a right is infringed by a judicial determination of the rights of the parties or an
order made in aid of determination that the law which confers such inherent power of
the Courts is within Art. 19(2). The function of Art. 19(2) is to save laws - existing laws
or the laws to be made by the State in future - which otherwise infringe the rights under
Art. 19. Where the action is such that by its very nature it cannot infringe the rights in
Art. 19(1) of the Constitution, an investigation whether the law which authorises the
action falls within clause (2) of Art. 19 may not be called for.
1 3 3 . It was urged that the view which I have expressed may involve serious
repercussions on the enforcement of fundamental rights guaranteed by Arts. 20, 21 and
22(1) of the Constitution. Whether orders made by the Courts may violate the
guarantees under Arts. 20(1), 21 & 22(1) and on that account be subject to the
jurisdiction under Art. 32 does not fall to be determined in this case. The Attorney-
General appearing on behalf of the State of Maharashtra contended that the freedoms
guaranteed by Arts. 20(1), 21 & 22 are only in respect of laws made which seek
prejudicially to affect persons in the manner included in those Articles. It was urged by
counsel on behalf of the petitioner that these Articles grant protection not only against
legislative and executive action but also against orders made by Courts. I refrain from
expressing any opinion on this question. The area of fundamental freedoms guaranteed
or declared by the various Articles of the Constitution must be determined in the light of
the right conferred thereby, and the extent of protection granted, the agency against the
action of which they are protected and the relief which may be claimed against
infringement of those rights. Considerations which may be material or relevant in

considering the nature of the right conferred or guaranteed by one Article cannot be
projected into considerations which may be material or relevant in dealing with the
infringement of a fundamental right guaranteed by another Article. Article 19 and Arts.
20(1), 21 & 22 are differently worded. Article in terms protects certain personal
freedoms of citizens only against invasion by the State otherwise than by law existing
or to be made in future and falling strictly within the limits prescribed by cls. (2) to (6)
: Arts. 20(1), 21 & 22(1) impose directly restrictions upon the power of authorities.
Declaration of rights in favour of citizens as well as non-citizens under Arts. 20(1), 21 &
22(1) arises by implication of the prohibition against action of the authorities concerned
to deal with them, and it would not be permissible to equate the guaranteed rights
declared by implication in all respects with the specific personal freedoms enumerated
in Art. 19. It is somewhat striking that the personal freedoms in Art. 19 are subject to
reasonable restrictions which may be imposed by law, but the prohibitions in Arts.
20(1), 21 & 22 are absolute in terms. By enunciating the personal freedoms, under Art.
19(1) and setting up machinery for imposition of reasonable restrictions thereon,
balance is sought to be maintained between the enforcement of specific rights of the
citizens and the larger interest of the public. The freedoms declared by the implication
of Arts. 20(1), 21 & 22 are on the other hand not liable to be tested on the touchstone
of reasonableness. Our Constitution-makers thought that certain minimum safeguards in
proceedings - criminal and quasi-criminal - cannot in the larger interests of the public
be permitted to be whittled down under any circumstances and on that account made
the protection of Arts. 20(1), 21 & 22(1) absolute. The form in which the rights under
Arts. 20(1), 21 & 22(1) are guaranteed and the absolute character of the injunctions
against the authorities clearly emphasize the distinct and special character of those
rights. I do not find it necessary in this case to record my opinion on the question
whether action taken by a Court which is prohibited under Arts. 20(1), 21 & 22 may
form the subject-matter of a petition under Art. 32 of the Constitution.
134. The petitions therefore fail and are dismissed.
135. Bachawat, J. Counsel for the petitioners submitted that the High Court had no
power to affect the right of the petitioners to publish reports of the deposition of
Bhaichand Goda by an order passed in a proceeding to which they were not parties, and
if there is a law which confers this power, such a law is repugnant to Art. 19(1)(a) of
the Constitution. I do not accept either of these contentions.
136. In agreement with the learned Chief Justice, I hold that the High Court in the
exercise of its inherent powers can, in exceptional cases, pass an order restraining the
publication of any matter in relation to any proceeding pending before it. The inherent
powers of the Court are preserved by section 151 of the Code of civil Procedure.
1 3 7 . If a stranger to the proceeding feels aggrieved by the order, he may take
appropriate steps for setting it aside, but while it lasts, it must be obeyed. Take a case
where a Court appoints a receiver over a property in a suit concerning it. If a stranger
interested in the property is prejudiced by the order, his proper course is to apply to the
Court to enforce his right, and the Court will then examine his claim and give him the
relief to which he may be entitled. Similarly, if a stranger is prejudiced by an order
forbidding the publication of the report of any proceeding, his proper course is to apply
to the Court to lift the ban. But while the order remains in force, he must obey it. Willful
disobedience of the order is punishable as a contempt of Court, and it is not a defence
that he was not a party to the proceeding in which the order was passed.
138. The law empowering the High Court to restrain the publication of the report of its

proceedings does not infringe Art. 19(1)(a). If a law is attacked on the ground that it is
repugnant to Art. 19(1)(a), its true nature, object and effect should be closely
examined. If the law directly abridges the freedom of speech, it is repugnant to Art.
19(1)(a) and must be struck down. On the other hand, if it affects the freedom of
speech only incidentally and indirectly, it does not infringe Art. 19(1)(a). This test was
first laid down by Kania C.J. in A. K. Gopalan v. State of Madras MANU/SC/0012/1950 :
1950 CriL J 1383 and has been subsequently adopted in numerous decisions of this
Court. See Ram Singh v. State of Delhi MANU/SC/0005/1951 : [1951]2SCR451 Express
Newspapers (Private) Ltd. v. The Union of India MANU/SC/0157/1958 :
(1961)ILL J339SC , Hamdard Dawakhana Wakf v. Union of IndiaMANU/SC/0016/1959 :
1960CriL J671 . Many laws incidentally encroach on the freedom of speech, but, judged
by the test of the directness of the legislation, they do not infringe Art. 19(1)(a).
Section 54 of the Indian Specific Relief Act, 1877, empowers the Court to grant a
perpetual injunction to prevent the breach of an obligation, and illustrations (h), (i),
(v), (y) and (z) to the section show that the Court may restrain the publication of
documents and information in breach of the fiduciary obligations of a legal or medical
adviser or an employee, the piracy of a copyright and other publications infringing the
proprietary rights of the owner. Order 39, r. 1 of the Code of civil Procedure, 1908,
empowers the Court to grant a temporary injunction restraining the defendant from
publishing documents in breach of his obligation under a contract or otherwise during
the pendency of a suit for restraining the breach. Section 22 of the Hindu Marriage Act,
1955, makes it unlawful for any person to print or publish any matter in relation to any
proceeding under the Act conducted in camera without the previous permission of the
Court. Under the rule of practice prevailing in the Bombay High Court, it is not
permissible to print or publish in the press a report of any proceeding heard in
chambers without the leave of the Judge, see Purushottam Hurjiwan v. Navnitlal
Hurgovandas. I.L.R. (1925) 50 Bom. 275. So also, the law relating to the inherent
powers of the Court preserved by s. 151 of the Code of civil Procedure enables the
Court in the ends of justice to pass orders restraining the publication of the report of its
proceeding during the pendency of the litigation. Judged by the test of the directness of
the legislation, none of these laws infringes Art. 19(1)(a). Instances may be multiplied.
The law relating to discovery and interrogatories the law which punishes a witness for
giving false evidence, the law which compels the assessee to furnish a true return of his
income and forbids the disclosure of the statements in the return are all outside the
purview of the Art. 19(1)(a).
1 3 9 . It follows that the impugned order was passed by a court of competent
jurisdiction under a valid law. Whether the High Court should have passed the order is
another question. The propriety of the order cannot be challenged in a Writ application
under Art. 32. Until the order is set aside in appropriate proceedings it conclusively
negatives the right of the petitioners to publish reports of the deposition of Bhaichand
Goda. The petitioners cannot, therefore, complain that their fundamental right under
Art. 19(1)(a) has been infringed.
140. The High Court was competent to pass the impugned orders, but assuming that it
exceeded its jurisdiction, the order does not infringe Art. 19(1)(a). The High Court has
jurisdiction to decide if it has jurisdiction to restrain the publication of any document or
information relating to the trial of a pending suit or concerning which the suit is
brought. If it erroneously assumes on this matter, a jurisdiction not vested in it by law,
its decision may be set aside in appropriate proceedings, but the decision is not open to
attack on the ground that it infringes the fundamental right under Art. 19(1)(a).
141. I must not be taken to say that I approve of the impugned order. A Court of

justice is a public forum. It is through publicity that the citizens are convinced that the
Court renders evenhanded justice, and it is, therefore, necessary that the trial should be
open to the public and there should be no restraint on the publication of the report of
the Court proceedings. The publicity generates public confidence in the administration
of justice. In rare and exceptional cases only, the Court may hold the trial behind closed
doors, or may forbid the publication of the report of its proceedings during the
pendency of the litigation.
142. Long ago, Plato observed in his Laws that the citizen should attend and listen
attentively to the trials. Hegel in his Philosophy of Right maintained that judicial
proceedings must be public, since the aim of the Court is justice, which is a universal
belonging to all. The ancient idea found its echo in the celebrated case of "Scott v.
Scott" (1913) A.C. 417. Save in exceptional cases, the proceedings of a Court of justice
should be open to the public.
143. The petitions are not maintainable, and are dismissed.
ORDER
144. In accordance with the opinion of the majority these Writ Petitions are dismissed.
No order as to costs.
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MANU/SC/0044/1966

Equivalent Citation: AIR1967SC 1, [1966]3SC R744

IN THE SUPREME COURT OF INDIA

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