Writs will not lie against the Judiciary acting on its judicial side, rules the Supreme Court

Writs will not lie against the Judiciary acting on its judicial side, rules the Supreme Court

The Supreme Court of India in a recent judgment Riju Prasad Sarma etc. Vs. State of Assam & Ors.(CIVIL APPEAL NOS.3276-3278 OF 2013)  has laid down the law that the judiciary in India, acting on its judicial side cannot be considered as a State under Article 12 of the Constitution, and that only when the courts deal with their employees or act in other matters purely in administrative capacity, they may fall within the definition of the State for attracting writ jurisdiction. The Supreme Court also ruled that writs against the judiciary would lie against their administrative actions alone.

The ruling came in a batch of matters concerning the administration of non-religious activities of the Sri Sri Maa Kamakhya Devalaya in the state of Assam, said to be one of the most significant amongst the 51 Shaktipeethas in the Country where the challenge in the main case by the appellants was to the judgment passed by a Division Bench of the Guwahati High Court reversing the finding of the Single Judge on the issue of the locus standi of the appellants and that the Kamakhya Debutter Regulations/Kamakhya Debutter Board has no sanctity in law.

The Single Judge of the Gauhati High Court had upheld the locus standi of the appellants on the ground that it does not lie in the mouth of the State Respondents/Private Respondents to challenge the authority of the Kamakhya Debuttar Board to manage the affairs of the temple as they have not made any attempt to de-recognize or question its authority in any court of law.

The Court was inter alia considering the scope of Article 12 of the Constitution and whether for the purposes of issuance of writs, judicial decisions by the judiciary can be included in State action. This was occasioned due to the plea of the petitioner in the connected writ petition tagged along with the main case, a civil appeal, that though fundamental rights under Articles 14 and 15 unlike rights such as against untouchability are guaranteed only against State action and not against private customs or practices but Judiciary is as much a part of State as the Executive and the Legislature and hence it cannot permit perpetuation of discrimination in violation of Article 14, particularly in view of Article 13(1) which mandates that all pre Constitution Laws in the territory of India to the extent they are inconsistent with the provisions of part III of Constitution shall, to the extent of such inconsistency, be void. In the said writ petition the challenge was to the election of Dolois (head priest of the temple) held on 16.11.2011. The only ground urged on behalf of the petitioners was denial of equality or in other words, violation of Article 14 of Constitution of India. According to petitioners even if the electoral college was required to be confined by tradition only to Bordeories Samaj (families of the priests of the temple), the custom of depriving women members of such families the right to vote and to stand as candidate for the post of Dolois is obnoxious, immoral, discriminatory and against Public policy.

The case of the petitioners was that the custom relating to election of the Dolois to the extent it violates Article 14, must be treated as void and the Court should grant relief to the women members of Bordeories families and also to the Deories by ordering for inclusion of their names in the electoral college.

The respondents contended that for the purpose of part III of the Constitution Article 12 defines the term “the State” to include the Government as well as Parliament of India as well as Government and legislature of the States but conspicuously it has left out the Judiciary and hence the Judiciary cannot be included and treated as ‘the State’ when it performs strictly judicial functions in contradistinction to administrative powers. The respondents also contended that personal laws and religious practices are not covered by the sweep of Article 13(1).

The Apex Court said that the definition of ‘the State’ under Article 12 is contextual depending upon all relevant facts including the concerned provisions in Part III of the Constitution. “The definition is clearly inclusive and not exhaustive. Hence omission of judiciary when the government and Parliament of India as well as government and legislature of each of the State has been included is conspicuous but not conclusive that judiciary must be excluded.”

The Court further said: “Judgments of High Court and Supreme Court cannot be subjected to writ jurisdiction and for want of requisite governmental control, Judiciary cannot be a State under Article 12, we also hold that while acting on the judicial side the courts are not included in the definition of the State. Only when they deal with their employees or act in other matters purely in administrative capacity, the courts may fall within the definition of the State for attracting writ jurisdiction against their administrative actions only. In our view, such a contextual interpretation must be preferred because it shall promote justice, especially through impartial adjudication in matters of protection of fundamental rights governed by Part III of the Constitution.”

The Apex Court rejected the argument that by simply hearing a writ petition the Court becomes a party with same duties and responsibilities as the State, since that would entail a situation then the rights which can be claimed only against the State can also be claimed against all private parties because judiciary has to hear and decide almost all cases. “Such plea is required to be noticed only for rejection otherwise all disputes against private persons will have to be treated as a dispute against the State also, because it is primary responsibility of the judiciary to hear and adjudicate all disputes. The judicial forum will then loose its impartiality because petitioners, like in the present case, will make a demand that court itself should act as the State and deliver all reliefs in a dispute where the executive or the legislature is not at all involved as a party,” the Court said.

On the factual issue, the Court held that the petitioners have not laid down and established the factual foundation for claiming equality with Bordeories Samaj which elects the Dolois as per customs as no authoritative textual commentary or report which would have help the Court in coming to a definite finding that women belonging to Bordeori families are equally adapt in religious or secular matters relating to that temple were placed on record.

The Apex Court directed the District administration to ensure that the premises are vacated by the members or representatives of the Debutter Board at the earliest and in any case within four weeks and the same to be placed back within the same time in possession of the Bordeories Samaj through the last elected Dolois against receipts which shall be retained in the office of Deputy Commissioner, Guwahati.

The parties representing the Debutter board were also directed to hand over the vacant and peaceful possession of the concerned premises and other properties of the temple, if any, within four weeks.

Read the Judgment here.