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PETITIONER: NARESH SHRIDHAR MIRAJKAR AND ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ANR.

DATE OF JUDGMENT: 03/03/1966

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) SARKAR, A.K. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. MUDHOLKAR, J.R. SIKRI, S.M. BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1967 AIR    1            1966 SCR  (3) 744  CITATOR INFO :  RF         1967 SC1643  (274)  RF         1973 SC 106  (105)  RF         1973 SC1461  (1717)  D          1974 SC 532  (12)  R          1978 SC 597  (41,66,67)  R          1980 SC 898  (56)  RF         1981 SC 917  (11,12)  RF         1981 SC2198  (21)  R          1985 SC  61  (7)  R          1986 SC 180  (31)  R          1988 SC1531  (184)  RF         1988 SC1883  (206)  F          1989 SC1335  (22,26)  R          1991 SC2176  (38)

ACT: Practice  and Procedur-Inherent jurisdiction of High  Court- Power to stop publication of proceedings of a trial-Order if violates  fundamental right under Art. 19(1)(a)-If  amenable to proceedings under Art. 32 of the Constitution.

HEADNOTE: In  a  suit for. defamation against the editor of  a  weekly newspaper, field on the original side of the High Court, one of  the  witnesses  prayed that the  Court  may  order  that publicity  should not be given to his evidence in the  press as his business would be affected.  After hearing arguments, the  trial  Judge  passed  an  oral  order  prohibiting  the publication  of the evidence of the witness.  A reporter  of the  weekly  along with other journalists moved  this  Court under Art. 32 challenging the validity of the order. . It  was  contended that : (i) the High Court  did  not  have inherent  power to pass the order; (ii) the  impugned  order violated  the  fundamental rights of the  petitioners  under Art. 19(1) (a); and (iii) the order was amenable to the writ

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jurisdiction of this Court under Art. 32. HELD:(i) (Per Gajendragadkar C. J., Wanchoo, Mudholkar, Sikri, Bachawat and kainaswami, JJ.) : As the impugned order must  be held to prevent the publication of the evidence  of the  witness  during  the  course  of  the  trial  and   not thereafter.   and   the  order  was  passed  to   help   the administration of justice for the purpose of obtaining  true evidence  in  the case, the order was  within  the  inherent power of the High Court. [754 A-B; 759 C] 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.  Section 14  of  the Official Secrets Act, 1923 in terms recognises the existence of  such inherent powers in its opening clause, and s.  151, Code  of  Civil Procedure, saves the inherent power  of  the High  Court to make such orders as may be necessary for  the ends  of justice or to prevent abuse of the process  of  the Court.   Such a power includes the power to hold a  part  of the trial in camera or to prohibit exessive publication of a part of the proceedings at such trial. (755 F; 759 C, G; 760 C] Scott  v.  Scott,  [1913]  1 A.C.  417  and  Moosbrugger  v. Moosbrugger, (1912-13) 29 T.L.R. 658, referred to. Per Sarkar J. : The High Court has inherent power to prevent publication  of  the proceedings of a trial.  The  power  to prevent  publication of proceedings is a facet of the  power to hold, a trial in camera and cm from it. [776 C] Scott v. Scoot [1913] A.C. 417, explained. Per  Shah  J.  : The Code of  Civil  Procedure  contains  no express provision authorising the to hold its proceedings in camera, but if 745 excessive  publicity  itself operates as  an  instrument  of injustice,  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 An order made by  a court   in  the  course  of  a  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 persons, is not without jurisdiction, merely because it is erroneous. [804 B, C. F] Per Hidayatullah J. (dissenting): A Court which was  holding a  public  trial  from which the public  was  not  excluded, cannot  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.  [783 H, 789 D] Section 151 C.P.C. cannot be used to confer a discretion  on the to turn its proceedings which should be open and  public into  a private affair.  A trial in camera can only be  used when  a  strong  case exists for holding it  in  camera  and inherent  powers  can only be  reconised  on  wellrecognised principles.  Where the legislature felt the special need  it provided  for it.  It is not right to assume from s.  14  of the  Official  Secrets  Act, 1923,  that  courts  possess  a general or inherent power of dispensing with open and public trials. [787 E, F, G, H; 789 C] English cases referred to. (ii)(Per Gajendragadkar C.J., Wanchoo, Mudholkar, Sikri and Ramaswami,  JJ.) : Just as an order passed by the  Court  on the  merits  of  the dispute before it  cannot  be  said  to contravene  the fundamental rights of the  litigants  before the  Court, so the impugned order, which is also a  judicial order,  cannot be said to affect the fundamental  rights  of the  petitioners.   It  was  directly  connected  with   the

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proceedings  before  the Court inasmuch as the  Court  found that justice could not be done between the parties and  that the  matter  before it could not be  satisfactorily  decided unless  publication of the evidence was  prohibited  pending the trial. if incidentally, 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).  [761 D-F; 762 F-G] A. K Gopalan v. State of Madras, [1950] S.C.R. 88, 101,  Ram Singh v.  State,  [1951]  1  S.C.R.  451  and  The  Parbhani Transport  Cooperative Society Ltd. v. The  RTA  Aurangabad, [1960] 3 S.C.R. 177, followed. Budhan  Chowdhry  v. State of Bihar, [1955] 1  S.C.R.  1045, explained. Per  Sarkar  J. : The impugned order does  not  violate  the fundamental  right of the petitioners to freedom  of  speech and expression conferred by Art. 19(1) (a-. [777 D] If  a  judicial  tribunal  makes  an  order  which  it   has jurisdiction to maim by applying a law which is valid in all respects,  the order cannot offend a fundamental right.   An order is within the jurisdiction of the tribunal which  made it,  if the tribunal had jurisdiction to decide the  matters that  were  litigated  before it and if the  law  which  it, applied  in  making the order was a valid law.   A  tribunal having  this jurisdiction does not act without  jurisdiction if  it  makes an error in the application of the  law.   The impugned  order is a judicial order within the  jurisdiction of  the  Judge  making  it even  though  it  restrained  the petitioners  who were not. parties to the proceedings.  [774 F-G; 775 B, F-G; 776 B; 779 B, C] Ujjam Bai v. State of U.P.  [1963] 1 S.C.R. 778, followed. Sup Cl/66-2 746 Further,  the order is based on a good and valid  law.   The power to prohibit publication of proceedings is  essentially the same as the power to hold a trial in camera and the  law empowering  a  trial in camera is a valid law and  does  not violate the fundamental right in regard to liberty of speech because,  the  person restrained is legally  prevented  from entering  the  Court and hearing the  proceedings,  and  the liberty  of speech is affected only  indirectly.   Moreover, the  law empowering :a Court to prohibit publication of  its proceedings  is  protected by Art. 19(2), because,  the  law relates  to  contempt  of  Court  and  the  restriction   is reasonable as it is based on the principle that  publication would  interfere  with  the course of justice  and  its  due administration. [777 E-G; 778 C-E, G] The  Parbhani  Transport  Cooperative Society  Ltd.  v.  RTA Aurangabad,  [1960]  3 S.C.R. and A. K.  Gopalan  v.  State, [1950] 1 S.C.R. 88, followed. Budhan  Chowdhry  v.  The  State,  [1955]  1  S.C.R.   1045, explained. Per  Shah J. : Jurisdiction to exercise these  powers  which may  affect  rights  of persons other  than  those  who  are parties to the litigation is either expressly granted to the Court  by  the  statute  or arises  from  the  necessity  to regulate  the  course of proceedings so as to make  them  an effective instrument- for the administration of justice.  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 nonexistence of the right claimed.  Such a determination of  the disputed question would be as much exempt  from  the

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jurisdiction   of   his  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. [803 C-D,; F-H] Per  Bachawat  J.  : The law empowering the  High  Court  to restrain  the publication of the report of  its  proceedings does  not  infringe Art. 19(1) (a), because it  affects  the freedom of speech only incidentally and indirectly. [808  G, H] A.K. Gopalan v. Stare of Madras, [1950] S.C.R. 88 and Ram Singh v. State, [1951] S.C.R. 451, followed. Per  Hidayatullah  J.(dissenting  ) : The  order  commits  a breach  of  the fundamental right of freedom of  speech  and expression. [789 E; 792 A) The  Chapter  on Fundamental Rights  indicates  that  Judges acting  in their judicial capacity were not intended  to  be outside  the reach of fundamental rights.  The word  "State" in  Arts.  12 and 13 includes  "Courts"  because.  otherwise courts  will  be enabled to make rules which  take  away  or abridge fundamental rights. and a judicial decision based on such  a rule would also offend fundamental rights.  A  Judge ordinarily  decides  controversies between the  parties,  in which  controversies  he 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. [789 G-H; 790 A-B; 791 C] Prem  Chand Garg V. The Excise Commissioner, [1963] Supp.  1 S.C.R. 885, referred to. (iii)(Per Gajendmgadkar C.T., Wanchoo, Mudholkar, Sikri and Ramaswami,JJ.) : The High Court is a superior court  of Record and it is for itto  consider  whether  any   matter falls within its jurisdiction or 747 not.  The order is a judicial order and if it is erroneous a person  aggrieved by it, though a stranger, could move  this Court  under  Art.  136 and the order can  be  corrected  in appeal;  but  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 under  Art.  32. [770 H; 772 EJ Ujjam Bai v. State, [1963] 1 S.C.R. 778, referred to. Prem Chand Garg v. Excise Commissioner, U.P. [1963] Supp.  I S.C.R. 885, explained. Per  Sarkar  J.  :  This  Court has  no  power  to  issue  a certiorari to the High Court. [782 H] When  the  High  Court has the power to issue  the  writ  of certiorari,   it  is  not,  according  to  the   fundamental principles  of  certiorari an inferior court or a  court  of limited jurisdiction.  The Constitution does not contemplate the  High  Courts  to  be  inferior  courts  so  that  their decisions  would  be  liable  to be quashed  by  a  writ  of certiorari issued by the Supreme Court. [782 F-H] Per Shah, J : In the matter of issue of a writ of certiorari against  the  order  of any Court, in  the  context  of  the infringement  of  Fundament  rights,  even  orders  made  by subordinate  , such as the District Court or of  subordinate Judge,  are as much exempt from challenge in enforcement  of an  alleged  fundamental right under Art. 19 by  a  petition under  Art.  32  as  orders of the High  Court  which  is  a superior Court of Record.  It is not necessary to decide for the  purpose of these petitions whether an order made  by  a High  Court  may infringe any of the  rights  guaranteed  by Arts.  20,  21  & 22(1) and may on  that  account  form  the subject-matter of a petition under Art. 32.  Art. 19, on the one  hand and Arts. 20, 21 & 22(1) are  differently  worded.

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Art. 19 protects personal freedoms of citizens against state action except where the ’action falls within the exceptions. Arts. 20, 21 & 22 impose direct restrictions upon the  power of authorities. [805 E-F; 806 C; 807 A, B; 808 A-B] Per Bachawat J. : The High Court has jurisdiction to  decide if  it  could 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 a jurisdiction not vested in it, its decision may be set  aside in appropriate proceedings, but the  decision  is not  open  to  attack under Art. 32 on the  ground  that  it infringes  the fundamental right under Art. 19(1)(a).  If  a stranger   is   prejudiced  by  an  order   forbidding   the publication  of  the report of any  proceeding,  his  proper course  is only to apply to the Court to lift the ban.  [808 F; 810 A-B] Per  Hidayatullah  J.  (dissenting)  :  Even  assuming   the impugned order means a temporary suppression of the evidence of  the witness the trial Judge had no jurisdiction to  pass the  order.  As he 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. [792 E-F; 801 E] There  may  be  action  by a  Judge  which  may  offend  the fundamental rights under Arts. 14, 15, 19, 20, 21 and 22 and an appeal to this Court will not only be not practicable but will also be an ineffective remedy and this Court can  issue a  writ to the High Court to quash its order, under Art.  32 of the Constitution.  Since them is no exception in Art.  32 in  of the High Courts there is a presumption that the  High Court are not excluded.  Even with the enactment of Art. 226 the  power which is conferred on the High Courts is  not  in every  sense  a coordinate and the  implication  of  reading Arts. 32, 136 and 226 together is 748 that  there  is  no  sharing of  the  powers  to  issue  the prerogative writs processed by this Court.  Under the  total scheme  of  the Constitution the subordination of  the  High Courts  to  the Supreme Court is not only  evident  but  is, logical. [794F; 797 G-H; 799 D-E]

JUDGMENT: ORIGINAL JURISDICTION : W.Ps. Nos. 5 and 7 to 9 of 1965. Petition under Art. 32 of the Constitution of India for  the enforcement of Fundamental Rights. M.   C. Setalvad, R. K. Garg, R. C. Agarwal, D. P. Singh and M.   K. Ramamurthi, for petitioner (in W.P. No. 5 of 1965). A.K.  Sen, R. K. Garg, S. C. Agrawal, D. P. Singh and  M. K. Ramamurthi, for the petitioner (in W.P. No. 7 of 1965). V.K.  Krishna  Menon, R. K. Garg, S. C.  Agrawal,  D.  P. Singh and M. K. Ramamurthi, for the petitioner (in W.P.  No. 8 of 1965). N.   C. Chatterjee, R. K. Garg, S. C. Agrawal, D. P.  Singh, and M.    K. Ramamurthi, for the petitioners (in W. P. No. 9 of 1965). C. K. Daphtary, Attorney-General, B. R. L. Iyengar and B. R. G. K. Achar, for the respondents (in all the petitions). The  Judgment of GAJFNDRAGADKAR C.J., WANCHOO, MUDHOL-  KAR, SIKRI  and RAMASWAMI, JJ. was delivered  by  GAJENDRA-GADKAR C.J.  SARKAR,  SHAH  and  BACHAWAT  JJ.  delivered  separate Opinions.  HIDAYATULLAH, J. delivered a dissenting Opinion. Gajendragadkar,  C.J. 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  English

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Weekly "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 Mr. Justice Tarkunde. One  of  the  allegations which had been made  in  the  said article  was to the effect that China Cotton  Exporters,  of which  Mr. Thackersey was a partner, had  obtained  licences for import of art silk yarn on condition that the same would be sold to handloom weavers only; 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  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’ 749 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 Handloom 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. 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". During the course of the trial, the said Bhaichand Goda  was called  as  a  defence  witness by  Mr.  Karanjia.   In  the witness-box, Mr. Goda feigned complete ignorance of the said transactions;  and  under  protection given to  him  by  the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr.  Thackersey’s concern  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 to be  cross-examined  by  Mr. Karanjia’s counsel. Later, during the course of further proceedings, it was dis- covered 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 crossexamined.   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. 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  for  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

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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 750 ’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 the said suit in the columns of the ’Blitz’. On  Monday, the 26th October, 1964, Mr. Chari  appeared  for Mr.  Karanjia  and urged before the learned Judge  that  the fundamental  principle in the administration 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 matters  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  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. The petitioner felt aggrieved by the said oral order  passed by Mr. Justice Tarkunde and moved 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  a 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  Cons- titution. 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 their  respective papers.  751 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

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restrictions   imposed   by  law  within   the   limitations prescribed  by clauses (2) to (6) of Art. 19.  According  to them,  it is doubtful whether even the  Indian  Legislatures have  the  power to ban publication of faithful  reports  of proceedings  in the Legislatures, much less can  the  courts have power to ban such publication.  They also allege that a restriction  imposed in the interests of the witness  cannot be  held  to  be justified under Art.  19(2),  and  that  in passing  the impugned order, the learned Judge had  exceeded his jurisdiction.  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 any of  the  provisions  contained  in clauses  (2)  to  (6).  To these  petitions,  the  State  of Maharashtra  and  Bhaichand  Goda  have  been  impleaded  as respondents I and 2 respectively. Respondent No. I has disputed the correctness and the  vali- dity 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.  I  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.   According  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. I also contends that  the High Court being a superior Court of Record, is entitled  to determine questions of its own jurisdiction; and orders like the  impugned order passed by the High Court in exercise  of its  inherent  jurisdiction  are not amenable  to  the  writ jurisdiction   of  this  Court  under  Art.  32(2)  of   the Constitution.   That, broadly stated, is the nature  of  the allegations  made by the respective parties in  the  present proceedings. 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 the 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 752 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 a very wide  power, and  it  includes  the power to issue  not  only  the  writs therein  specified,  but also directions or  orders  in  the nature of the said specified writs.  The test in  exercising

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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? According to Mr. Setalvad, the fundamental rights guaranteed to  the citizens by Part III are very wide in  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   un- touchability  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. In regard to judicial orders passed by courts, Mr.  Setalvad says  that the said orders 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 cer- tain 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) and (2).  753 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 fundamentals rights guaranteed by Part 111,  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  appropriate legislative  enactments.  In regard to Articles 20,  21  and 22,  his argument is that the protection guaranteed  by  the

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said  Articles  is  intended to be  available  against  the- Legislature and the Executive, not against courts.  That  is how  he seeks to take judicial orders completely out of  the scope of Art. 32(1) According to him, private rights, though fundamental  in  character,,  cannot  be  enforced   against individual citizens under Art. 32(1). 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  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. 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 754 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. 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. 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’ , 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 question which we have to  consider  is: does   the  impugned  order  contravene   the   petitioners’

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fundamental rights to which we have just referred? 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: (1)  [1962] 3 S. C. R. 842.  755 .lm15 "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. Scot(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 a 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 causes before it.  If a Judge trying a cause  is satisfied that 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 trials before courts must be held  in puplic  was  treated as inflexible and universal and  it  is held  that  it admits of no exceptions 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.  Er 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  a  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,

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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 (1) [1911] All E.R. 1, 30. 756 justice  which  is the end of judicial process, and  so,  if ever  a real conflict arises between 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  in fact  arise,  and  whether  or not  the  impugned  order  is justified on the merits, are matters which are irrelevant to the present enquiry. 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.[ 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 commit- ted  contempt.  The House of Lords held that  assuming  that the  order for hearing the case in camera was valid, it  was not  effective  to enjoin 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. 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  courts,  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 except-ion  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. 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  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 (1)  [1911] All E.R . 1.

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757 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.(1) 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 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. 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 referred.   Lord Shaw, for 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 Lords  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 (1)[1911] All E.R. pp. 8-9. 758 Lords  in Scott v. Scott(1) 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  argument  urged by the petitioners before us  that  the High Court had no jurisdiction to pass the impugned order. This  question  has  been considered by  English  Courts  on several  occasions.   In  Moosbrugger  v.  Moosbrugger   and Moosbrugger v. Moosbrugger and Martin,(2) where in a divorce proceeding  it, was urged before the President that  if  the

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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 in camera, she would  not  be able to disclose the whole truth. Similarly,   in  Re  Green  (a  bankrupt),  Ex   Parte   The Trustee,(3)  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  wag  justified. Accordingly the application was heard in camera. We  have referred to these decisions by way of  illustration to emphasise the point 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. (1) [1911] All. E. R. pp. 8-9. (2) (1912-13) 29 T.L.R. 658. (3)[1958] 2 All E. R. 57  759 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 AttorneyGeneral 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 possess 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. 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. Section  53 of Act 4 of 1869 which was passed to  amend  the

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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. 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 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. 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 740 publish any matter in relation to any such proceeding except with the previous permission of the court. The  proviso  to s. 352 of the Code of  Criminal  Procedure, 1898, prescribes 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 or building used by the   Court. 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 the Court to hold certain trials in camera, either  fully or   partially,   is   inevitably   associated   with    the administration of justice itself. The next question which calls for our decision is: does  the impugned  order  contravene the fundamental  rights  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 hearing arguments from both the parties to  the suit.   Thus, there is no doubt that the learned  Judge  was satisfied 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 the publication of his testimony  in the newspapers from day to day.  The question 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

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rights of the petitioners under Art. 19(1) ? 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 fact 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  761 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 in 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). 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. Assuming,  however, that the impugned order can be said  in- cidentally  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) ? 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

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Constitution, or touches the said article only incidentally 762 or  indirectly.  In A.K. Gopalan v. The State of  Madras(1), 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. It is true that the opinion thus expressed by Kania, C.  J., in  the  case  of  A. K  Gopalan(1)  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(2), 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(1), and by the majority judgment in Atiabari Tea Co., Ltd. v. The State of Assam and Others(4). 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   it-,   inherent jurisdiction and its sole purpose is to help the administra- tion of justice.  Any incidental consequence which may  flow from  the  order  will  not  introduce  any   constitutional infirmity in it. It  is, however, urged by Mr. Setalvad that this  Court  has held in Budhan Choudhry and Others v. The State of  Bihar(5) 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 (1) [1950] S.C.R. 88, 101. (2) [1951] S.C.R.451, 456. (3)  [1959] S.C.R. 12,129,130. (4) [1961] 1 S.C.R. 809,864. (5)[1955] 1 S.(-.R. 1045.  763 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. In  the case of Budhan Choudhry(1), 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

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Magistrate, 1st Class, exercising powers under s. 30 of  the Code of Criminal Procedure on charges under ss. 366 and  143 of the Indian Penal Code, and each one of them was convicted under   both   the  sections  and  sentenced   to   rigorous imprisonment  for  five  years  under  s.  366,  whereas  no separate  sentence  was  imposed under s.  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 s.  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. Naturally, the principal contention which was urged on their behalf  before this Court was that s. 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 s. 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(2),  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 (1) [1955]1 S.C.R. 1045. (2) (1944) 321 U.S. 1: 88 Led. 497. 764 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. It is thus clear that though the observations made by Frank- furter, J. and Stone, C. J. in Snowden v. Hughes(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

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which was impugned by- the appellants in the case of  Budhan Choudhry and Others(2) could be successfully assailed on the ground  that the judicial decision under s. 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(1) was itself not concerned with the validity of any judicial decision at all. On  the other hand, in The Parbhani  Transport  Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad and  Others,(3),  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 (1)321 U.S. 1. (2) [1955] 1 S.C.R. 1045 (3) [1960]3 S.C.R. 177.  765 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. 32;  and  in  so far as the point has  been  considered  and decided the decision is against Mr. Setalvad’s contention. 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

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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 the 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 (1)  [1963) Supp.  1 S.C.R. 885. 766 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 was whether Art.  142 could be said to override the fundamental rights  guaranteed by  Part  111.   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 fundamen- tal 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. It would thus be seen that the main controversy in the  case of  Prem  Chand Garg(1) 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

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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. 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 (1)  [1963] Supp.  I S.C.R. 885.  767 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(1),  this Court can review or recall its  order  passed under  the  said  Rule.  Cases in which  initial  orders  of 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. 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-partes, 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. 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  juris- diction  conferred  on  the  High Courts  by  Art.  226  was considered by this Court as early as 1955 in T.C. Basappa v. T. Aragappa and Anr.(2). It would be useful to refer to some

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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 (1) [1963] Supp.  I S.C.R. 885. (2) [1955] 1 S.C.R. 250, at pp. 256-8. 768 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  fie  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. 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  Sint.  Ujjam  Bai  v.  State  of  Uttar Pradesh(1).   This  decision would show that it  was  common ground  before  the  Court that in three  classes  of  cases aquestion  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 quasijudicial  authority  under  an obligation to act judicially passes an order in violation of the principles of natural justice.  769 According  to  the majority decision in the  case  of  Ujjam Bai,(1)  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

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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. 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  ’he considered by a Special Bench of this Court in Mls.   Kamala Mills Ltd. v.  The State of Bombay(2) 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. In Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and’ Others(3) 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 of  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, (1)  [1963] 1 S.C.R. 778. (2) [1966] 1 S.C.R. 64. (3) [1962] 1 S.C.R. 505. 770 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. While referring to the decision of this Court in the case of Smt. Ujjam Bai(1), 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  lmports and  Exports  and  Others(2).   In  that  case,  the   Court

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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. We  have referred to these decisions to illustrate  how  the jurisdiction to issue writs of 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-partes, because it was passed  after hearing  arguments on both the sides.  In another sense,  it is not inter-partes 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-partes in judicial proceedings, and the present  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 (1) [1963] 1 S.C.R. 778. (2) [1962] 1 S.C.R. 540.  771 petitions  filed before this Court under Art. 32  in  Daryao and  Others  v.  The  State of  U.  P.  and  Others(1).   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. 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.   I of  1964(2).  In that case, it was urged before  this  Court

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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  juris- diction,  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 "primafacie, 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."(3) 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. The  basis of Mr. Setalvad’s argument is that  the  impugned order  is  not  an order inter-partes,  as  it  affects  the fundamental rights (1) [1962] 1 S.C.R. 574. (2) [1965] 1 S.C.R. 413 AT p. 499. (3) Halsbury’s Laws of England, Vo 1. 9, p.249. 772 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- partes  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. 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-partes, and those which are  not  inter- partes  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.

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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."(1)  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. In  -Rex.  v.  Chancellor of St.  Edmundsburry  and  Ipswich Diocese  Exparte  White(2)  the  question  which  arose  was whether certio- (1)  Halsbury Laws of England Vol.  I 1, pp. 129, 130. (2)  [1945] 1 K.B.D. 195 at pp. 205-206.  773 rari  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 of  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. 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

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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-recognised limitations 774 within  which the jurisdiction to issue writs of  certiorari can be exercised and inconsistent with the uniform trend  of this Court’s decisions in relation to the said point. The result is, the petitions fail and are dismissed.   There would be no order as to costs. 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- cl.  (a) of cl. (1) of Art. 19 of the Constitution, I  think these petitions should fail. First,  it  seems  to me that this case is  covered  by  the judgment  of  this  Court in Ujjam Bai  v.  State  of  Uttar Pradesh(1).   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. 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 (1)  [1963]1 S. C. R. 778. 775 learned  counsel, they did not contend that Tarkunde J.  had no power to prevent publication at all but only said that he

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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(1) case.  Our attention was drawn to certain observations in some of the speeches in the House of Lords, in Scott v. Scott.(2) 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. 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 bad 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. When  this  Court observed in Ujjam Bai’s(1) 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(1)  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 jurisdic- (1) [1963] 1 S.C.R. 778. (2) [1913] A.C. 417. 776 tion 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.(1) 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. 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

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proceedings  of a trial.  The question 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. 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-cl. (d) of cl. ,(I) of Art.  19. 1  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 cl. (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.(2)  It is unnecessary to discuss these limits for  it has  not  been  contended  that  the  restrictions  are  not reasonable. Secondly,  I  would say that that law does not  violate  any fundamental  right to free movement.  A court house  is  not such a place (1) [1963] 1 S.C.R 778. (2) [19131 A.C. 417. 777 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 acourt. I should suppose that one cannot complain of the breachof the  liberty  of  movement if he is prevented  by  law  from entering  a  private property.  For  analoguous  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. Now  the  exercise of the power to hold trial in  camera  no doubt  has the effect incidentally of preventing  a  citizen

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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(1) 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 (1) [1950] S.C.R. 88. M12Sup.Cl/66-4 778 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. 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 putably 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. It  also  seems  to me that the law empowering  a  court  to prohibit publication of its proceedings is protected by  cl. (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

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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 court  alone  and  does  not purport  to  confer  rights  on persons.   Such a law would be a good law under cl.  (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 779 have to be confined within the strict limits and are plainly reasonable. 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(1) 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 personaffected by its order, is.  Courts often have to pass orders whichaffect  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. Therefore,  it  seems to me that on the  authority  and  the principle  of Ujjam Bai’s (1) 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. 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(1) case.   The  first  is  Budhan  Chowdury  v.  The  State  of

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Bihar(2).   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  con- templated   that   a   judical  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 (1) [1953] 1 S.C.R. 778. (2) [1955]1 S.C.R. 1045. 780 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  case(1).   All that  was  said in Budhan Chowdury’s(2) 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(1) 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   Budhan Chowdhury’s(1)   case.    Indeed   in   Parbhani   Transport Cooperative   Society   Ltd.  v.  The   Regional   Transport Authority,   Aurangabad(3).   this   Court   observed   that ,decisions of quasi judicial tribunals, however wrong, could not ,offend Art. 14. The other case is that of Prem Chand Garg v. Excise  Commis- sioner  Uttar  Pradesh(4).  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(1). 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  technicali- ties  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: 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(6).   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 (1)[1963] 1 S.C.R. 778. (2)  [1955] 1 S.C.R. 1045. (3)11969] 3 S.C.R. 177.

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(4)  [1963] Supp. 1 S.C.R. 885. (5)[1955] 1 S.C.R. 250. (6)  [1948] 1 K.B. 195.                             781 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. 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. 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 what 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 782 hot 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

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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. 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 is 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.           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 writ 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 a certiorari  to  a  High Court.                             783 I would, for these reasons, dismiss the petitions. Hidayatullah, J. Questions of far-reaching importance to our system  of administration of justice are involved  in  these petitions  arid 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: 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

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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. 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; 784 and  (iii)  if  so, can this Court issue a writ  to  a  High Court?  answer  these questions in the  affirmative  and  in favour of the petitioners. 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

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             presence." He  was  no  doubt  speaking  of  criminal  trials  but  the principle  (with  a few exceptions) is applicable  to  civil cases also. 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(1)  (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  the 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 (1)  (1889) 6 T.L.R. 38.                             785 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(1)) 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(2) 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  parent 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. In  Scott v. Scott (2) there are certain observations  which proceed  upon a dictum of Sir Francis Jenne in D. v  D.  (3) 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

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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 no  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               (1) L. R. [1936] A.C. 177.                 (2) L. R. [1913] A.C. 417 at 436.               (3)   [1903] P. 144.               786               principle  requires.  He may be able  to  show               that  the evidence can be effectively  brought               before the court in no other               fashion."               (emphasis added) With  profound  respect for the eminent Judge  I  think  the principle,  so  stated, is too wide and  Rex.  v  Clement(1) 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   criticise   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)." (emphasis added) The Earl of Halsbury also expressed amazement that a  single Judge  (Sir  Francis  Jeune)  should  overrule  "three  such learned  Judges as Sir Cresswell, Williams J.  and  Bramwell B."  who  in  H (falsely called C)  v  C.(2)  had  expressed different opinion in relation to hearing in camera on  there quest  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.

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(1) 4B & Ald. 218.            (2) 1 SW & Tr. 605. 787 In  Scott v. Scott(1) 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(2)  (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. 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, s. 22 of the Hindu  Marriage  Act, 1955,  s.352 to the Code of Criminal Procedure, 1898 and  s. 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 s. 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- (1) [1913] A.C. 417.          (2) (1913) 29 T.L.R. 658. 788 recognized  principles and they cannot be assumed  to  exist where they do not and I see none on the facts of this case. 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

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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  pro- vided 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(1) 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." I  (emphasis               added). 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 proposi- (1)  [1889]14 A.C. 194.                             789 tion 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  pre- varications.   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

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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. 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 limb 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. 7 90 To begin with we have the definition of ’State’ in Art. 12.* 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).** 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](1).   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. Again  Art.  20, which speaks of convictions  for  offences, punishments and testimonial compulsion is addressed as  much to  courts  as  to executive and other  authorities,  and  I venture  to  think  that the worst offenders  would  be  the courts  if  they went against  this  prescription.   Article 22(1)  is addressed to courts where it says that no  person, who is arrested, shall be denied the right to be               *"12.    In  this  Part,unless   the   context               otherwise  requires,"the  state"includes   the               Government  and  Parliament of India  and  the

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             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."               **"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."               (1) [1963] Supp.  1 S.C.R. 885.                "20 (1)   No person shall be convicted of any               offence except for violation of a law in force               at  the  time  of the commission  of  the  act               charged  as an offence, nor be subjected to  a               penalty  greater  than that which  might  have               been  inflicted under the law in force at  the               time of the commission of the offence.               (2)   No   person  shall  be  prosecuted   and               punished for the same offence more than once.               (3)   No  person accused of any offence  shall               be compelled to be a witness against himself"               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. 791 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. 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

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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 79 2 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. The fundamental right here claimed is the freedom of  speech and  expression.  In Sakal Papers (P) Ltd. v. The  Union  of India(1)  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 publish 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; 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. The  submission of the Attorney-General is that in  no  case can  writs  of mandmus, certiorari or prohibition  go  to  a

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Division  Court  ,or  to a single Judge of  the  High  Court whether  sitting in banc 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, how-ever,  clear that the last writ must either issue here or in the High (1) [1962] 3 S.C.R. 842. 793 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 Courts  are capable of being corrected by appeals  only  and writs cannot lie.  I do not accept these arguments. 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 proceeding 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.               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  of 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."               M12 Sup.  C. 1./66-5 794 The  powers of the High Court are stated in Art.  226  which may also be get out here for comparison:               "226.   Power of High Courts to issue  certain               writs.

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             (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  (IA) shall  not  be  in               derogation  of  the  power  conferred  on  the               Supreme Court by clause (2) of Article 32." 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  of quo warranto, as stated earlier, may concededly  be held to apply to a High Court Judge. 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? 1 shall deal with these matters  in  the same order.                             795 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

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Court of Appeal and thence 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. Certiorari issues to Judges and officers of inferrior 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(1).  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. 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. (1)  [1901] A.C.446. 796 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.      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  11  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 Rege tenenda). The Upper Bench  or  the  Banc Royal dealt  with  matters  of  special interest  to the sovereign, viz. the ’prerogative’ writs  of

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certiorari, prohibition etc.  The Court of Exchequer  (which was  the  third  court) dealt with cases in  the  course  of collection of revenue. Some  writs which issued from these courts were original  or judicial.   They were regarded as mere machinery  writs  and were  writs of right and 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 inferrior  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) (1). (1)  [1948] 1 K.B. 195 at 205.                             797 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. 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

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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  cl. (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 798 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 cl.  (1),  indicates  the importance of the guarantee. 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 cl.  (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 cf. (2) in Art. 226 ? 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. 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 ceriortari, 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

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exercise of the power.  I have 799 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. 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  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. 800 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

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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 that 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, (1) Virginia v. Rives(2) and Hurd v. Hodge)(3).  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. 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  a 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  Consols,  Limited.)(4) The  following observations of the Earl of Halsbury L.C.  in Skinner   v.  the  Northallerton  County  Court  Judge   (5) 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               (1)  92 L. ed. 1161:334 U. S. 1.                (2) 25 L. ed. 667 at 669.               (3)  92 L. ed. 1187. (4) [1898] I.Q.B. 669.               (5)   [1899] A.C. 439.               801               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. 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

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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. 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 the 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. 802 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  tribunal$  with limited  authority  are  not within the scope of the discussion. 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 claimed, 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 the 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

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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  the  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 a State agency, a plea cannot be set up in a petition  under Art. 32 contrary to an adjudication by a Court competent  in that behalf. Counsel for the petitioners conceded that against a judicial determination of the 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  partes  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                             803 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 litigation.   The  Court  may  issue  a  warrant  to  compel attendance  of  witnesses, attach 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 orders of the 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 statute or arises 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  the  party  to  the proceeding  is aggrieved by an order of the Court  made  for ensuring an effective adjudication of the dispute,.      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

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disputed  question would be as much exempt from  the  juris- diction  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. 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 804 the  order was liable to be challenged in a  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 a 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. The  Code of Civil Procedure contains no express  provisions 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 the 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 behaviour 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 the  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 behaviour, 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

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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  a partial ban on publicity in the interests of justice and the Court may instead of holding a trial in camera 805 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 a 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. 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 the 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 806 of this Court under Art, 32 as an adjudication of any  other subordinate  Court  such  as  the  District  Court  or   the Subordinate Judge Courts.  If the test of inferiority is  to be found in the investment of supervisory jurisdiction, this

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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  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  ad- judication 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. 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  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 investiga- 807 tion  whether  the  law which authorises  the  action  falls within cl.(2) of Art. 19 may not be called for. 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, 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, 21 &  22 are only in respect of laws made which seek prejudicially to affect  persons in the manner indicated in  those  Articles. It  was  urged by counsel on behalf of the  petitioner  that these Articles grant protection not only against legislative

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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 nature 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.  Considera- tions  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, 21 & 22 are differently worded.  Article 19 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, 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, 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, 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, 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 808 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, 21 & 22(1) absolute.  The form in which the rights under  Arts. 20, 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, 21 & 22 may  form  the subject-matter   of  a  petition  under  Art.  32   of   the Constitution. The petitions therefore fail and are dismissed. 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. 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  s. 151 of the Code of Civil.  Procedure.

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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.  Wilful 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.       The  law  empowering the  high court to  restrain  the publication    The law empowering the High Court to restrain the  public  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  band, if it affects the freedom of  speech  only incidentally  and indirectly, it does not infringe  Art.  19 (1) (a).  This test was                             809 first laid down by Kania, C. J. in A. K. Gopalan v. State of Madras(1)  and  has been subsequently  adopted  in  numerous decisions of this Court.  See Ram Singh v. State of Delhi(2) Express Newspapers (Private) Ltd. v. The Union of  India(3), Hamdard  Dawakhana  Wakf v. Union of  India(4).   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 Hur wan  v. Navnitlal  Hurgovandas.(5) 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. fudged 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

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furnish  a  true  return  of  his  income  and  forbids  the disclosure  of the statements in the return are all  outside the purview of Art. 19 (1) (a).    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. (1) [1950] S.C.R. 88, 101.    (2) [1951] S.C.R. 451. (3)  [1959] S.C.R. 12,129-133.(4) [1960] 2 S.C.R. 671,  690- 691, (5)  [1925] I.L.R. 50 Bom. 275. C.1./66-6 810 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).      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. 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(1).  Save  in exceptional  cases,  the proceedings of a Court  of  justice should be open to the public. The petitions are not maintainable, and are dismissed.                            ORDER In  accordance with the opinion of the majority  these  Writ Petitions are dismissed.  No order as to costs. (1)  [1913] A.C. 417, 811