# The Parbhani Transport Couperurt 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) tho order was amenable to the writ jurisdiction of this Court under Art. 32. HELD: (i) (Per Gajendragadkar C. J., Wanchoo, Mudho!kar, Sikri, Bachawat and Ramawami, JI.) : As the impugned order must be held te> prevent the publication of the evidence of the witness during the COUille of the trial and not thereafter. and the order was passed to help tho administration of justice for the purpC>SC of obtaining true evidence in the case. the order was within the inherent power of the High Court. [754 A-B; 759 CJ The High Cou't has inherent jurisdiction to hold a trial in camera if the ends of justice clcarll and necessarily require the adoption of such a course. Section 14 o 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 Hi&b Court to make such orders as may be necessary for the ends of justice or to prevent abu.so of the process of the Court. Such a power includes the power to hold a part of the trial In camera or to prohibit «urt 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) tho order was amenable to the writ jurisdiction of this Court under Art. 32. HELD: (i) (Per Gajendragadkar C. J., Wanchoo, Mudho!kar, Sikri, Bachawat and Ramawami, JI.) : As the impugned order must be held te> prevent the publication of the evidence of the witness during the COUille of the trial and not thereafter. and the order was passed to help tho administration of justice for the purpC>SC of obtaining true evidence in the case. the order was within the inherent power of the High Court. [754 A-B; 759 CJ The High Cou't has inherent jurisdiction to hold a trial in camera if the ends of justice clcarll and necessarily require the adoption of such a course. Section 14 o 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 Hi&b Court to make such orders as may be necessary for the ends of justice or to prevent abu.so of the process of the Court. Such a power includes the power to hold a part of the trial In camera or to prohibit «e 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 instmment for the administration of justice. An order made against a str3nger in aid of administration of justice between contending parties or for enforcement of iLs adjudication doe< not directly infringe any fundamental right under Art. 19 of the person affec!ed thereby, for it is founded either expressly or by necessary implication upon the nonu.istence of the right claimed. Such a determmation of the disputed queat:on would be a• much exempt from the jurisdiction of his Court to grant relief againat infringement of a fundamental right under Art. 19, ~ a determination of the disputed question between the partie.. on merih or on procedure. (803 C-D; F-HJ Per Bachawat J. : The Jaw 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, HJ A. K. Gopalmz v. Stare of Madras, [1950] S.C.R. 88 and Ram Singh v. S/Jlle, (1951) S.C.R. 451, followed. Per Hidayatullah J. (dissenting) : The order commih a breach of the fundamental right of freedom of speech and "'preosion. (789 E; 792 A) The Chapter on Fundamental Righl• indicates that Judges acting in their judicial capacity were not inlcnded to be outaide the reach of ftllldamental rights. The word "State" in Arts. 12 and 13 includes "Courts" because. otherwise courh will be enabled to make rul.,; which take away or abridge fundamental rights, and a judicial decision ba."',r _, ~ A B c MIRAJXAR v. MAHARASHTRA (Gajendragadkar, C.J.) 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 Jaw, 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 '- , D contention. E F G ' H In support of his argument that a judicial decision. can be corrected by this Court in exercise of its writ jurisdiction under Art. 32(2), Mr. Setalvad has relied upon another decision of this Court in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad(e). In that case, the petitioner Prem Chand Garg had been required to furnish security for the costs of the respondent under r. 12 of 0 · 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 (I) [1963] Supp. I S.C.R. 885. 766 SUPRl!MI! COURT REPOJlTS [1966] 3 ~.CR this Court could he pcrmined to be conducted. He suggested that the powers of this Court under Ari. 142 were not subject to any of the provisions contained in Part lJI including Art. 32( I). 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 lo be read subject to the fundamental right guaranteed under Art. 32; and so, when this Court made Rules by virtue of the powers conferred on it by Art. 145, it could not make any Rule on the basis that it could confer a power on this Court to demand security from a party moving this Court under Art. 32(1), because such a term would obstruct his guaranteed fundamental right. It is on these contentions that one of the points which had to be decided was whether Art. 142 could be said to override the fundamental rights guaranteed by Part III. The majority view of this Court was that though the powers conferred on this Court by Art. 142 were very wide, they could not be exercised against the fundamental rights guaranteed by the Constitution, not even against definite statutory provisions. Having reached this decision, the majority decision was that though the Rule was discretionary, the power to demand security which it purported to confer on the Court in a given case, was itself inconsistent with the fundamental right guaranked 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(') 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 Ill. 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 Ruic which authorised the making of the impugned order was invalid. It was in that context that the validity of the order had to be incidentally examined. The petition was made not to challenge the order as such, but to challenge the validity of the Rule under which the order was made. Once the Rule was struck down as being invalid. the order passed under the said Rule had to be vacated. It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself. What was held by this Court was that Rule made by it under its powers conferred by Art. 145 which are legislative in eharacter, 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 (l) (1963} Supp. l S.C.R. 885. A B c D E F G II ,..... __ _ • < • • .. , A B c ' D E F G H MIRAJKAR v. MAHARASHTRA (Gajendragadkar, C.l.) 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('), 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). Jn 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 he 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( l ). The nature and the extent of the writ jurisdiction conferred on the High Courts by Art. 226 was considered by this Court as early as 1955 in T.C. Basappa v. T. Nagappa and Anr.(2). It would be useful to refer to some of the points elucidated in this judgment. The first point which was made clear by Mukherjea, J., who spoke for the Court, was that "in view of the express provisions in our Constitution, we need not now look back (I) [1963] Supp. I S.C.R. 885. (2) [1955] I S.C.R. 250, at pp. 256-8. 768 SUPREME COURT REPORTS [I 966] 3 S.C.R. 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 fundament:t! principles that regulate the exercise of jurisdiction in the mah er 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 urtiorari goes to two points, one is the area of inferior juri•diction and the qualifications and conditions of its exercise; the other is the ollliervancc of law in the course of its exercise. Certiorari may lie and is generally granted when a Court bas 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 Smt. Ujjam Bai v. State of Uttar Pradesh(')· This decision would show that it was common ground before the Court that in three classes of cases a question of the enforcement of the fundamental rights may arise; and if it docs arise, an application under Art. 32 will lie. These cases are: (I) where action is taken under a statute which is ultra vires the Constitution; (2) where the statute is intra rires but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quastjudicial authority under an. o~ligation to act ~udi~ially passes an order in violation of the prmc1ples of natural JUSttcc. (I) (1963] I S.C.R. 778. A H 0 • •• ' c; H A c 1 • D H MIRAJKAR v.