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GUJARAT NATIONAL LAW UNIVERSITY

A. R. Antulay v. R. S. Nayak

AIR 1988 SC 1531: (1988) 2 SCC 602

(Project: Constitution- I)

Submitted to:-

Ms. S. Mukherjee

Submitted by:-

10A020

10B144

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ACKNOWLEDGEMENTS

We are extremely obliged to our Constitution teacher Ms. S.

Mukherjee, who gave us the opportunity to make this project and to

increase my knowledge. We would like to thank her for her constant

support and motivation throughout the making of this project.

We would further like to thank the library staff, other staff members

of our university and our parents for their much needed assistance

without which the completion of this project would not have been

possible.

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INTRODUCTION:-

The present case involves many questions ranging from violation offundamental rights to the interpretation of powers given by the

Constitution to the Supreme Court.

Two main fundamental rights of the appellant violated were those

enshrined under Article 14 and Article 21 of the Constitution.

Article 14 talks about equality before law and equal protection of the

laws within the territory of India. It was alleged in the present case

that the Appellant was denied equal protection of the laws. The

phrase equal protection of the laws postulates the application ofsame laws alike and without discrimination to all persons similarly

situated.1 It was alleged that the appellant was singled out for trial

by the High Court in violation of the procedure established by law

and that too without any rationale.

Article 21 of the Indian Constitution lays down that no person shall

be deprived of his life or personal liberty except according to

procedure established by law. It was alleged that the Supreme

Court in the present case in its anxiety to facilitate the parties to

have a speedy trial gave directions without conscious awareness ofthe exclusive jurisdiction of the Special Courts under the Criminal

Law Amendment Act, 1952 and that being the only procedure

established by law, infringed appellants personal liberty and thus

violated the mandate under Article 21.

1M. P. Jain Indian Constitutional Law 5

thEdn. New Delhi: Wadhwa and Company

Nagpur 2008

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Facts of the Case:-

1. The appellant was the Chief Minister of Maharashtrabetween June 9, 1980 and January 12, 1982, when he

resigned that office in deference to the judgment of High

Court in a writ petition filed against him, but continued as an

MLA.

2. On August 9, 1982, respondent No. 1, a member of a

political party, filed a complaint before a Special Judge

against the appellant and others for offences under ss. 161

and 165 of the Indian Penal Code; s 6 of the Prevention-

of Corruption Act, 1947 and s. 5 of the Criminal Law

Amendment Act, 1952 and also under ss. 384 and 420 read

with ss. 109 and 120B of the Indian Penal Code.

3. The Special Judge issued process to the appellant. Later,

the Special Judge overruled the appellant's objection to his

jurisdiction to take cognizance of the offences and to

issue process, in the absence of notification under s. 7(2)

of the Criminal Law Amendment Act, 1952, specifying as

to which of the three special Judges of the area should trysuch cases.

Against this, the appellant filed a revision application in the

High Court, which dismissed it subsequently. The

appellants Special Leave Petition against this was dismissed

by the Supreme Court which held that the complaint filed by

respondent No. 1 was clearly maintainable and cognizance

was properly taken of it.

During the pendency of the revision application in the High

Court, the State Government notified the Special Judge to trythe offences specified under s. 6(1) of the Criminal Law

Amendment Act, 1952 and appointed another Special Judge,

who discharged the appellant, holding that a member of the

Legislative Assembly was a public servant and there was no

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valid sanction for prosecuting the appellant. Against this

order of discharge, respondent No. 1 filed a Criminal

Revision Application in the High Court, which was

subsequently withdrawn to this Court.

4. On an appeal filed by respondent No. 1 directly under Article

136 of the Constitution against the order of discharge, the

Supreme Court held on 16.2.1984, that a member of the

Legislative Assembly was not a public servant, and set aside

the order of the Special judge. The Court observed that

even after 2 1\2 years the case didnt move an inch further

and that an expeditious trial was primarily in the interest ofthe accused and mandate of Article 21 of The Constitution of

India. The Court therefore, suo motu withdrew this special

case and another one filed against the appellant by another

person and transferred them to the High Court, with the

request to the Chief Justice to assign these two cases to a

sitting Judge of the High Court, who should proceed to

expeditiously dispose of the cases, preferably by holding trial

from day to day.

5. This direction was challenged after four years before the

Supreme Court on the grounds of non-perception of certain

provisions and certain authorities which would amount to

derogation of the constitutional rights of the citizen.

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JUDGEMENT AND REASONS FOR THE SAME:-

I. THE MAJORITY DECISION- Sabyasachi Mukherji,J:G.L.Oza,J: S.Natrajan,J; Ranganath Mishra, J;

1. The question regarding the right to try a case and

transferability of cases:

The law provides that the Supreme Court may direct that any

particular case or appeal be transferred from one High Court to

another High Court or from a Criminal Court subordinate to one

High Court to another Criminal Court of equal or superior

jurisdiction subordinate to another High Court. The jurisdiction toentertain and try cases is conferred either by the Constitution or by

the laws made by Parliament.

There was no jurisdiction or power to transfer a case from the Court

of the Special Judge to any High Court. Section 406 of the Indian

Penal Code only permitted transfer of cases from one High Court to

another High Court or from a Criminal Court subordinate to one

High Court to a Criminal Court subordinate to another High Court. It

is apparent that the impugned directions could not have been given

under S. 406 of the Code as the Court has no such power to orderthe transfer from the Court of the Special Judge to the High Court of

Bombay.

2.Act of the Court vis a visDoctrine of Separation of Powers: -

The Supreme Court did not have jurisdiction to transfer the case to

itself. The power to create or enlarge jurisdiction is legislative in

character, so also the power to confer a right of appeal or to take

away a right of appeal. Parliament alone can do it by law and no

Court, whether superior or inferior or both combined can enlarge

the jurisdiction of a court or divest a person of his rights of revision

and appeal.

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3. Observance of principles of Natural Justice: -

The Supreme Court is not debarred from re-opening this question

and giving proper directions and correcting the error in the present

appeal, when the said directions on 16th February, 1984, were

violative of the limits of jurisdiction and the directions have resulted

in deprivation of the fundamental rights of the appellant, guaranteed

by Articles 14 and 21 of the Constitution. The appellant has been

treated differently from other offenders; accused of a similar offence

in view of the provisions of the Act of 1952 and the High Court was

not a Court competent to try the offence. It was directed to try theappellant under the directions of this Court, which was in derogation

of Article 21 of the Constitution. The directions have been issued

without observing the principle of audi alteram partem.

4. Constitutional Rights of the Appellant were violated by SC

and through further proceedings; -

It was emphasised that an order which this Court could make inorder to do complete justice between the parties, must, not only be

consistent with the fundamental rights guaranteed by the

Constitution, but it cannot even be inconsistent with the substantive

provisions of the relevant statutory laws.

The judges agreed that the appellant had a further right under

Article 21 of the Constitution a right to trial by a Special Judge

under section 7(l) of the 1952 Act which is the procedure

established by law made by the Parliament, and a further right to

move the High Court by way of revision or first appeal underSection 9 of the said Act. He had also a right not to suffer any order

passed behind his back by a Court in violation of the basic

principles of natural justice. The judges agreed that the directions

given in this case were without hearing the appellant, though it

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appears from the circumstances that the order was passed in the

prescence of the counsel for the appellant, were bad.

5. The Supreme Court can review its decision if it violates a

citizens constitutional rights:-

Once it is found that the order of transfer by this Court dated 16th

of February, 1984 (reported in AIR 1984 SC 684) was not within

jurisdiction, by the direction of the transfer of the proceedings made

by this Court, the appellant should not suffer.

What remains to be decided is the procedure by which thedirection of the 16th of February, 1984, could be recalled or altered.

There can be no doubt that certiorari shall not lie to quash a judicial

order of this Court.

If a mistake is detected and the apex Court is not able to correct it,

with a view to doing Justice for fear of being misunderstood, the

cause of justice is bound to suffer and for the apex Court the

apprehension would not be a valid consideration.

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II. Minority judgment given by- Venkatachaliah, Ranganathan

J.J.

1. Regarding the power of transferability of cases:-

The expression jurisdiction or the power to determine is, it is said,

a verbal cast of many colours. Jurisdiction is a legal shelter- a

power to bind despite a possible error in the decision. The

existence of jurisdiction does not depend on the correctness of the

exercise. The authority to decide embodies a privilege to bind

despite error a privilege which is inherent in and indispensable to

every judicial function .Lord Doplock said in a case2 : There is in

my view, however, also an obvious distinction between jurisdictionconferred by a statute on a court of law of limited jurisdiction to

decide a defined question finally and conclusively or unappeasably,

and a similar jurisdiction conferred on the High Court or a judge of

the High Court acting in his judicial capacity. The High Court is not

a court of limited jurisdiction and its constitutional role includes the

interpretation of written laws. This observation of his largely

influenced most of the judges.

In Daryao v. State of U.P3: it was held:

"It is in the interest of the public at large that finality should attach to

the binding decisions pronounced by courts of competent

jurisdiction, and it is also in the public interest that individuals

should not be vexed twice over with the same kind of litigation. If

these two principles form the foundation of the general rule of res

judicata they cannot be treated as irrelevant or inadmissible even in

dealing with fundamental rights in petitions filed under Article 32."

2(1980)2All ER 634

3 AIR 1986 SC 1457

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2. For complete justice, the powers of the Court: -

No one would think of holding a judgment of the court of last resortvoid if its jurisdiction were debatable or even colorable, the same

rule must be applied to the judgments of all judicial tribunals. This is

the true theory of judicial action when viewed collaterally. If any

jurisdictional question is debatable or colorable, the tribunal must

decide it; and an erroneous conclusion can only be corrected by

some proceeding provided by law for so doing, commonly called a

Direct Attack. It is only where it can be shown lawfully, that some

matter or thing essential to jurisdiction wants, that the proceeding is

void, collaterally.

It is the duty of the courts to set their faces against all collateral

assaults on judicial proceedings for two reasons, namely

Not one case in a hundred has any merits in it.

Courts should reduce the chances for a successful collateral

attack to the lowest minimum is that they bring the courts

themselves into disrepute.

Since in this case it was neither a case of misrepresented facts nor

a case of fraud, so this principle of overrule ruling its judgment cant

be considered.

Such things tend to weaken law and order and to cause men to

settle their rights by violence. For these reasons, when the

judgment rendered did not exceed the possible power of the court,

and the notice was sufficient to put the defendant upon inquiry, a

court should hesitate long before holding the proceedings void

collaterally.

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3. Arts 14 & 21 and principles of natural justice: -

As regarding the contention of the violation of Fundamental rightArt.14 and 21 it is said that these rights are subject to certain

limitations and these limitations by a procedure established by law

which need to be reasonable fair and just. And the validity of its

reasonableness is to be checked by the court.

If the law permits the withdrawal of the trial to the High Court from a

Special Judge, such a law enabling withdrawal would not, prima

facie, be bad as violation of Article 14. The five Judge bench in the

earlier case has held that such a transfer is permissible under law.

If appellant says that he is singled out for a hostile treatment on the

ground alone that he is exposed to a trial before a Judge of the

High Court then the submission has a touch of irony. Indeed that a

trial by a Judge of the High Court makes for added re-assurance of

justice, has been recognised in a number of judicial

pronouncement.

In the State of West Bengal v. Anwar Ali Sarkar, it was held that

speedier trail of such offences or class of offences the special court

can be setup. Following this rule the minority held that since thecase was pending for a long time and justice was delayed which is

an essential as stated by the Court in Maneka Gandhi v Union of

India. 4 So singling out the appellant case and referring it to the

High Court did not violate of Art.14.

As regarding the violation of principles of natural justice is seen, It

cannot be said that after the directions were pronounced and before

the order was signed there was no opportunity for the appellant's

learned counsel to make any submissions in regard to the alleged

illegality or impropriety of the directions. Appellant did not utilise the

opportunity. That apart, even after being told by two judicial orders

that appellant, if aggrieved, may seek a review, he did not do so.

4 AIR 1978 SC 597

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And more over, "the rules of natural justice must not be stretched

too far. Only too often the people who have done wrong seek to

invoke the rules of natural justice so as to avoid the

consequences."5

So this contention was also not agreed to, by the two judges

5 R. v Secretary of States for the home dept ex parte (1973)3 All ER 796

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BIBLIOGRAPHY

BOOKS REFFERED:-

1. V.N.Shukla, Constitution of India, Tenth Edition, Eastern

Book Company, 2001.

2. M.P.Jain, Indian Constitutional Law, Fifth Edition, Wadhwa &

Company Nagpur, 2008.

3. H.M.Seervai, Constitutional Law of India, Vol-1, Fourth

Edition, Universa Law Publishing Co. Pvt. Ltd., 2006.

4. D.D.Basu, The Constitution of India, Fifth Edition, Wadhwa &

Company Nagpur, 2008.

ELECTRONIC SOURCES REFFERED:-

1. http://www.google.co.in/

2. http://www.yahoo.com/

3. http://www.maupatra.com/

http://www.google.co.in/http://www.yahoo.com/http://www.yahoo.com/http://www.google.co.in/