Fundamental Rights

Whether judicial order can violate Article 21 of the Constitution

 

follow us on twitter

 

 

The question similar to this, whether a fundamental right can be violates by a judicial decision or order came up before a 7-judge Bench in Antulay’s case[1] where majority laid following guidelines;

  • A court cannot confer a jurisdiction on itself which was not provided by the Constitutional or Statutory law.[2] [para 38 & 48]
  • A judicial order made without jurisdiction is nullity. [para 81]
  • The jurisdiction of the court can be created, (enlarged or diverted) only by the Legislature and not by the court itself. [para 41]
  • No court can divest a person of his right of appeal or revision established by law. [para 41]
  • Where a Court assumes jurisdiction which it does not possess or divests a person of his constitutional or statutory right (even though in exercise of its power of interpretation), it acts contrary to the ‘procedure’ established by law’, and there is a violation of article 21. [para 43]
  • A decision which violates the basic principles of natural justice g, an order passed behind the back of a party, it contrary to the procedure established by law, and therefore, violative of Article 21 of the constitution. [paras 61, 62, and 80]
  • A judicial order which violates a fundamental right or the principles of natural justice, is a nullity [para 57], and, where there is no superior court to set it aside, it should be rectified by the court which passed that order, in the exercise of its inherent jurisdiction. [para 81-83]
  • Where a person’s reputation is likely to be affected by a judicial order, he must be heard before any order is passed. Right to reputation is part of article 21. Hence, the person is entitled to have an opportunity of being heard which is also part of life. If the principle of natural justice is violated, the remarks against the person in liable to be expunged.[3]

Thus, it is settled law that the court cannot go beyond Article 21 of the constitution in pronouncing decision. Article 21 which is most important principle controls despotic power of whatever institution it may be. The application of article 21 cannot be restricted to some particular cases or circumstances. Hence, it is applicable to all.

[1] Hussainara v. Home Secy. (I) AIR 1979 SC 1360 : (1979) 3 SCR 169 : (1980) 1 SCC 81; Antulay v. Nayak, AIR 1988 SC 1531 : 1988 (Supp-1) SCR 1 : 1988 2 SCC 602; Kadra v. State of Bihar, AIR 1981 SC 939 (para 2) : 1981 # SCC 671

[2] Antulay v. Nayak, AIR 1988 SC 1531 : 1988 (Supp-1) SCR 1 : (1988) 2 sc 602 (PARAS 38, 40, 41, 43, 57, 61, 62, 80-83, 144) PER mukharji, oza, natrajan, ray, jj; Maruti Ltd. Chandigarh v. PAN India Plastic Pvt. Ltd., New Delhi, AIR 1993 P & H 215; Dilip Dahanukar v. Kotak Mahindra Co. Ltd. (2007) 6 SCC 528

[3] State of Maharastra v. Public Concern of Governance Trust, AIR 2007 SC 777 : (2007) 3 SCC 587; Reliance Energy Ltd. V.; Maharstra State Road Transport corpn. Ltd. (2007) 8 SCC 1

Tags

Leave a Reply

Your email address will not be published. Required fields are marked *

Close
Close