THRENODE ON THE INDIAN WITNESS

(T. G. John, Advocate, Trichur)

"The other evidence in this case is hardly deserving of notice -- It consists of that sort of testimony with which, in these Indian Cases, we are unfortunately too familiar -- of witnesses who swear positively to matters of which they can have no knowledge; of witnesses who swear that they have heard the alleged Testator, after the date of his Will, declare that he had never made one; that they had heard the persons who had been parties to the instrument gratuitously declare to them that it was a forgery; of witnesses who declare that they had been solicited by the party in the cause or his agents, to attest instruments, which they were told at the same time were fabricated. Witnesses of this description may be had unhappily for India, in any number in that country".

Lord Kingsdown (1862)

IX Moore's Indian Appeals 99.

"However much the want of trustworthiness in the evidence of rases from

India is to be regretted, ........ himself".

Sir John Romilly (1864)

X Moore's Indian Appeals 151.

When Lord Kingsdown and Sir John Romilly made the above observations in the two judicial pronouncements of the Privy Council, there was some murmur behind the arras Sceptics scented a tinge of nationalism in them; while our patriotic ancestors found solace in thinking that it could only be ‘the colonial shop-keeper' in their Lordships that spurted them to sing this threnodic canzonet about the Indian witness. About a century has rolled by -- a democratic republic has been formed -- India has framed its own Constitution but the Indian witness is still on the cross-roads -- a huge challenge to truth and justice. The lascivious tradesman still waddles into courts of law with his tax-evading 'junk' of account books as primary evidence; neighbours oblige neighbours by indulging in venal perjury; in short, there is a never-ending train of these scoffers of truth getting in and out of the witness-box every day, every moment in our courts of law. The millionaire who utters three truths and one falsehood to complete his case; the pauper who negotiates three falsehoods adding a grain of truth to shape his case -- all of them file out of the witness-box and join the motley crowd to syncope a symphonic epilogue to the saga of sempiternal moral depredation.

It may be that the average Englishman of today is thinking of nothing but rock'n'roll and jazz bands, but that is no reason why his Indian brother 'steeped and soaked' as he is in a rich cultural heritage of his own, shall try to boost perjury from an art to a fine art. The modern perjurer has stolen a march over his counterpart as described in the Mitakshara -- no 'visible feature of unea­siness about him or a feeling that he is in fear of some persons who have been sent to watch his evidence. He is stoic, calm and deliberate and he does his job 'heroically'. Either these multitudes have never been taught to know Truth or if once they were taught they have never been retaught or re-warned. The witness who perjures for prestige to brow-beat a cross-examining advocate -- he 'wage-earner' who is under orders to speak to cases -- the suborner who bribes people and creates evidence by putting them 'on the spot' -- they are all seams of c he same garment.

It is time a regular cannonade is made against these fiendish poops. Let our courts of law be more vigilant in launching prosecutions and awarding deterrent sentences against perjurers and fabircators of false evidence. And as for our part, let us never be passive suborners by 'making suggestions' while interviewing witnesses (which we sometimes have to) and stand by these scalawags. For, ours is a nobler mission and in the resonant words of Justice Crampton in The Queen v. O' Connel, an advocate shall ever bear in mind 'that if he be the advocate of an individual and retained and remunerated for his valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice; and there is no crown or other licence which in any case or for any party or purpose can discharge him from that primary and perpetual retainer'. And according to Lord MacMillan, nobody has expressed it in more eloquent words.

Life Story

(By Babu Prakash.V.K., Secretary, Kerala Legislative Assembly,Thiruvananthapuram)

I live in the age of bewilderment.

My country’s Constitution

Preaches gender equality

But, my religion

Preaches other way round.

Life and it’s events

teach me, life is a story

A cycle of unpredictable story

in which everything is a contradiction.

But, the pity is that

All those old stories

Collapse and no new story

has yet emerged to replace them.

Without a new story

My life cycle goes on

Listening and repeating

The old story.

I am terribly bored.....

Judges and Crows

A strange thing happened

the other day evening.

As usual, I was returning home

after my evening walk.

Bought some eggs,

milk and a meat puff

for my talking cat.

When I turned to

the stadium road

a crow flew down and

sat on the hand rail

by the side of the foot path.

It twisted its head and

looked at me.

A sort of familiar look

with a sardonic smile, perhaps.

I too smiled and walked on

The crow did not move

when I walked past him.

When I walked ahead

it again flew and perched

in front of me,

a little away.

It made a soft crow

when I reached near

as if asking me something.

I smiled and went ahead.

Again, it flew and

landed in front of me.

I thought, it was

aiming at the puff.

But no, it did not care

for the packet in my hand.

The crow followed me

till I reached home.

When I  closed the

front door and looked

the crow was there

with its anxious look

on its placid face.

My talking cat came

and asked greedily

for the puff.

I told him about

the crow and its behaviour.

We both came

and looked out.

Alas, the crow has vanished.

While grinding his teeth

on the tasty puff

the cat exalted,

‘’ The crow is a

reborn judge who is dead.

The judge knew you

that’s why the crow,

the new incarnation

followed you.

The crow judge wanted to

talk to you about his past.’’

I asked the cat,

“Will all dead judges

be reborn as crows.’’?

The cat said,

‘’Mostly, judges will be

reborn as crows,

for, you judged others

throughout your career.

The curse of those

you judged fell on you

to be reborn as crows’’.

The cat stopped his prediction.

I became tongue tied.

Could not sleep that night.

In the late dreams

a crow disturbed

with it’s baritone voice.......

Death and After – Some Reference to Justice V.R.Krishna Iyer

(By P.B. Sahasranaman, Advocate, High Court of Kerala)

The Book of Justice by A.S.P.AYYAR, titled “25 years of Civilian” is one of the books   which inspired  Justice V.R.Krishna Iyer. The books states about a Judge in Berhampur who had sentenced an innocent man to death and he was duly executed.  The Judge had sentenced a man to death for murder, though the man had protested that he was at Chicacole, miles away from the scene of murder, at the time he was alleged to have committed the murder, and thus could never have committed the murder. Thereafter on that night he appeared before the convicting Judge and told him that it is you who have committed the murder and not I. If you go and look up the records in the Sub-Collector’s office Chicacole, you would find that in a mahazar and I have been noted as having been present there that day. The conscientious Judge, an Englishman, took his car and went to Chicacole.The next day the Judge searched for the records over again and found that there was an unimpeachable record to prove that the alleged guilt and execution of the accused was all false. The Judge having executed an innocent man shot himself dead. Justice V.R.Krishna Iyer always refers to this incident in many articles.

After the death of his wife Justice Krishna Iyer,in July 1974 at Milwaukee (US), he returned to India. He changed his residence from 2, Teen Murti Marg to 7 ,Motilal Marg. On the first anniversary day, wife of Justice A.C.Gupta who was staying in 2, Teen Murthi came to meet him. She looked at the photograph of Sarada Krishna Iyer hanging on the wall and told him that she met Mrs. Gupta on last night. Mrs. Iyer told her to meet him on tomorrow and tell him to take medical care about his eye sight problem. She told Justice Iyer that she came to convey the message. Justice Krishna Iyer wondered how the problem of eye-sight which only she and he knows.

In another incident Justice Krishna Iyer was driving the car during night. It hit against a road divider. On the next day when all the Judges assembled in the Court, Justice Gupta came to him and asked him whether Justice Iyer used to drive car. Justice Iyer replied rarely. Asked him why are you looking so worried ? His reply was amazing. Yesterday Mrs. Krishna Iyer met his wife and mentioned to her about the car accident. She pressed her to convey to him that he should never drive himself. He stopped driving car thereafter.

The ancient Roman poet Ovid once said : “There is a deity within us who breathes fire by which we are animated”. Justice Devan Ramachandran of Kerala High Court, while referring the above referred to Justice V.R.Krishna Iyer who was his father’s guru. Justice Devan Ramachandran felt the presence of Justice Krishna Iyer, during his reference speech made, more than any other day and that gives him great exultation.

Today Justice V.R.Krishna Iyer is not with us. But his presence is felt in many Judgments and Articles. There is always life after death.

Meaning of ‘Ex-Parte’and
“The Protection of Women from Domestic Violence Act”

(By P. Biju, Advocate, Nedumangad, Thiruvananthapuram)

We are living in a society wherein women are being harassed verbally, sexually, physically, economically and emotionally by men even at home. Government has enacted various enactments to protect the women from being so harassed. One among such law is ‘The Protection of Women from Domestic Violence Act’ in short D.V. Act. Through the said Act certain rights are being allocated to women from being harassed by men at home. The reliefs which are introduced through the Act are described in Sections 18,19,20,21 & 22 of the Act. Though jurisdiction is conferred on Magistrate to grant all the reliefs they are of civil nature in fact.

The Act provides ‘interim’ orders as well as ‘ex-parte’orders under Section 23 of the Act. In this context it is desirable to look into what is ‘interim’ and what is ‘ex-parte’. The word interim has its meaning in the word itself. The word ex-parteshows the status of a respondent in the proceedings. It has a legal meaning. What is that legal meaning?

The word ex parteis alien to criminal law and criminal court except in few circumstances. After a thorough search through various enactments I could find three enactments wherein criminal courts have the power to set the respondent ex-parteand to pass injunction orders. They are Section 125 Cr.P.C., The Muslim Women (Protection of Rights on Divorce) Rules and Prohibition of Child marriage Act. D.V. Act is the fourth one. In any of the said enactments including D.V. Act the word ‘ex-parte’has not been defined. Hence to find out the meaning of ‘ex-parte’we have to refer C.P.C. wherein setting the respondent/defendant ‘ex-parte’is usual. But the word ‘ex-parte’has not been defined exactly in C.P.C., Civil Rules of Practice or any other civil statutes also. Then we have to look into the C.P.C. itself for ascertaining under what circumstance the opposite party can, be set ‘ex-parte’and what is the meaning of ex parteorder.

Order IX Rule 6(1)(a) of C.P.C. says that a defendant can be set ‘ex-parte’only if he failed to appear even after getting summons or notice in original suits or petitions. Order 41 Rule 14 r/w r.17(2], O.42 R.1 and O.43 R.2 also says that the opposite parties can be set ‘ex-parte’only if they fail to appear after getting summons in appeal, revision and review respectively. Thus the provisions of C.P.C. do not enable generally to pronounce an order without issuing notice to the defendant. But the civil courts are granting injunction and like orders at the institution of suit itself before issuing notice to the defendant. Such orders are being issued as enabled under O.39 R.3 C.P.C., a special provision, which enables the Civil Court to pass interim orders even before issuing notice to the opposite party, if the reliefs prayed for are found to be urgent and immediate.

The very same procedure is prescribed in the earlier said criminal laws also i.e., Cr.P.C.125(2) proviso enables Criminal Court to set the respondent ex-parteonly after issuing notice and the notice is served on him. Rule 4 of Muslim Women (Protection of Rights on Divorce) Rules enables Criminal Court to set the respondent ex parteonly after issuing notice and the notice is served onhim. The Prohibition of Child Marriage Act 2006 does not contain any provision to set the respondent ex-parte. But Section 13(1) r/w 13(6) of the said Act insists a previous notice to the respondent before granting any order. All the aforesaid provisions enable Criminal Court to pronounce restraining orders and directing orders only after notice to the respondent. There is no provision which enables a court to avoid sending notice like O.39 Rule 3 C.P.C. in the aforesaid Acts. All the aforesaid provisions and enactments would make it clear that an opposite party to a legal proceeding can be set ‘ex-parte’only after issuing notice/summons to him and on his failure to appear in response to that notice/summons.

Now read Section 23 of the D.V.Act again. The Section is headed as ‘Power to grant interim and ‘ex-parte’orders’. Though ‘interim’ and ‘ex parte’are headed together in one section both are described distinctly and separately under different sub-sections i.e., interim orders are described under Section 23(1) and ‘ex-parte’orders are described under Section 23(2). From S.23(1) & 23(2) it can be seen that both kind of orders are distinct and different. Interim order does not mean ‘ex-parte’order and ‘ex-parte’order does not mean interim orders.

Interim order, as said above, creates no doubt on its meaning. One who filed an application seeking any relief under the Act can seek those reliefs on interim basis also by virtue of S.3(1) i.e., she need not wait to get an order until her petition is disposed of finally. That does not mean that she is entitled to get the order without serving any notice to the opposite party. The procedure to be adopted before granting interim order is prescribed in Rule 12(3) of the D.V.Rules. As per Rule 12(3) interim order can be granted only after service of notice and hearing the petitioner and respondent or both. For ready reference the said rule is extracted below.

Rule 12:- Means of service of notices.

Rule 12(1) ***

Rule 12(2)***

Rule 12(3). On a statement on the date fixed for the appearance of the respondent, or a report of the person authorized to serve the notices under the Act, that service has been effected appropriate orders shall be passed by the court on any pending application for interim relief, after hearing the complainant or the respondent, or both.

So, interim order does not mean an order to grant before and without serving notice to the opposite party. At the same time D.V.Act envisages the requirement of passing interim orders at the earliest. That is why Section 13(1) of D.V. Act stipulates a condition to serve the notice to the respondent within a maximum period of two days and Section 12(4) stipulates to post the case on the 3^rd day for considering the application.

Then what does the word ‘ex-parte’under Section 23(2) mean? It is so simple to assume that if an opposite party fails to appear after getting summons/notice the case can be disposed off as if the respondent is ‘ex-parte’. That alone is meant by Section 23(2). That sub-section also prescribes that no evidence is required to be taken to allow the petition in such a circumstance; instead an affidavit alone is necessary. So Section 23(2) only means that the Magistrate has the power to set the respondent ex parteand to pass ‘ex-parte’order like civil courts. By incorporation of Section 23(2) the legislature had only intended to provide power to set the respondent ex-parteand to pronounce ‘ex-parte’orders also as in the case of civil proceedings. The legislature must have foreseen that a respondent may keep away from court though notice is served on him under the guise that it is only a criminal court and no ‘ex-parte’order will be granted by criminal court, if the criminal court is not granted with power to set the respondent ex-parte. To avoid such a situation the legislature had given power to criminal court to grant ex-parteorders to the aggrieved.

But from the inception of the enactment the courts as well as lawyers took Section 23(1) & 23(2) together and have interpreted themselves that the court can grant interim orders without issuing notice to the opposite party like interim injunction applications filed before a Civil Court. The common heading of Section 23 may be the reason for that. Is that interpretation correct? Sub-section (2) of Section 23 only says that court can pass ‘ex-parte’order by providing reliefs under Section 18, 19, 20, 21, 22 of the Act. It does not mean that an order can be passed without serving notice to the opposite party. If the other enactments and C.P.C. are borne in mind one cannot say that ‘ex-parte’order means order without issuing notice to the opposite party. Instead, it should mean that an order passed by the court Since no such provision is available in the D.V. Act like O.39 Rule 3 C.P.C. no Magistrate Court can invoke such powers and pass interim orders before issuing notice. By the non inclusion of a provision like O.39 R.3 in the D.V. Act and the inclusion of Rule 12(3) in the D.V. Rules, it can be safely said that the legislature never intended to provide power to Magistrate Courts to pass orders without noticeto the respondents.

One more aspect to consider is the inclusion of Section 148(A) in C.P.C. in the year 1976 through an amendment. It provides rights to the expected opposite parties to file caveat and thereby to avoid circumstance of passing orders without notice to them. So, in C.P.C. O.39 R.3 is available to the proposed petitioners and Section 148(A) is available to the proposed opposite parties for safe guarding their respective interests. When D.V. Act does not contain such provisions, we cannot say that D.V. Act intents to provide any reliefs without notice to the opposite parties.

Further it is very clear from Section 28 of D.V.Act that the procedure to be followed is Cr.P.C. and not C.P.C. So under no circumstance O.39 Rule 3 C.P.C. cannot be invoked by a Criminal Court while trying an application under D.V. Act.

Apart from all the provisions it is desirable to consider the relationship between the parties in proceedings under D.V.Act. They are parties to a marriage who lives or lived together in domestic relation under the same roof which is called shared house. The reliefs which are provided in the Act may curtail the rights of the respondent who is another member of the same family. If such reliefs are granted without hearing him, that may destroy the various other civil rights of such respondent. It is not simple as that of granting an injunction order by the Civil Court against the stranger who has no right over the property or subject matter. The reliefs provided in D.V. Act are meant to restrain or direct another family member to do or not to do a particular thing. When providing such reliefs the legislature must be more careful and that care is reflected by the non inclusion of provision like Order 39 Rule 3 C.P.C. in the D.V.Act.

Therefore I doubt the power of the Magistrate Court in granting interim orders without and before issuing notice to the respondents. What I said above, seems to be correct a direction be given to all concerned by the authority concerned to remove the cloud and confusion.

Article 226, Subordinate Courts and Radhey Shyam & Anr. v. Chhabi Nath & Ors. 
 —2015 (1) KLT 1032 (SC)

(By B.Premnath, Advocate, High Court of Kerala, Ernakulam)

1. The power of judicial review under the Constitution of India is its very heart without which the rights provided under the Constitution would be meaningless. The power conferred under Article 226 to issue the writs including certiorari, is not confined to Courts and tribunals, but to “any person or authority in its territories including the Government”. It was held by a Constitution Bench of the Hon’ble Supreme Court in Engineering Mazdoor Sabha & Anr. v. Hind Cycles Limited(AIR 1963 SC 874)  that the power conferred on the
High Courts under Article 226 to issue the writs is wider than Article 136, as it is not conditioned or limited by the requirement that the writs can be issued only against the orders of Courts or Tribunals.

2. The ancestry of Article 226 of the Constitution can be found in the writ jurisdiction granted by the Letters Patent, which established a Court of Record called “the Supreme Court of Judicature at Fort Willams”, in Bengal, in 1774. It stated inter alia: “...all and every
the said Courts and Magistrates shall be subject to the Order and Control of the said Supreme Court...in such Sort, Manner, and Form, as the inferior Courts and Magistrates of, and in...England, are by Law subject to the Order and Control of Our Court to King’s Bench; to which End the said Supreme Court...is hereby empowered and authorised to award and issue a Writ or Writs of mandamus, certiorari procedendo, or Error,to be prepared in Manner above-mentioned, and directed to such Courts or Magistrates, as the cases may require...”

3. In the year 1798 as per a Charter, the power to issue writs of the said nature came to be vested on the Recorder’s Courts which were established in Bombay and Madras. These Courts were conferred with a jurisdiction similar to that of the Court of King’s Bench “as far as circumstances would admit.” In the year 1823, by another Charter, Supreme Courts were created in place of Recorder’s Courts in Bombay and Madras with the very same powers and restrictions that applied to the Supreme Court in Fort Williams.

4. The Indian High Courts Act, 1861 established High Courts by fusing the Supreme Courts and Sadr Adalats in the three Presidencies, known as the “Chartered High Courts”. The only other Chartered High Court established under that Act was the High Court of Judicature for the North-Western Provinces at Agra in 1866 which was shifted to Allahabad in 1869. It was re named as High Court of Judicature at Allahabad, in 1919. It replaced the Sadr Diwani Adalat. The Supreme Courts were abolished by that Act and Sections 9 and 10 of the Act granted the same jurisdiction as that of the Supreme Court. Section 106 of the Government of India Act, 1915 preserved the jurisdiction, powers and authority vested in the Courts existing at the time of commencement of that Act, which was carried over by Section 233 of the Government of India Act, 1935. When Constitution of India came to being, the pre-constitutional power to issue writs was engrafted in to Article 226, but with wider dimensions. The Article was amended by the 42nd, 43rd and 44th amendments to its present form.

 5. In contrast, Article 227 of the Constitution of India evolved from Section 15 of the High Courts Act, 1861; Section 107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935. Clause (1) of Sections 107 & 224 empowered every High Court to have superintendence over all Courts in India for the time being subject to its appellate jurisdiction. Clause (2) of Section 224 further narrowed down the power of superintendence exempting the judgment of any inferior Court which is not otherwise subject to appeal or revision, from its purview. But when Article 227 was adopted in the Constitution, the said restrictions were absent. The Forty Second Amendment Act, 1976 brought back clause (1) and clause (2) in Section 224 of the Government of India Act, 1935. The Forty Fourth Amendment Act, 1978 transformed Article 227 to its present form.

6. The power of superintendence under Article 227 is confined to Courts and tribunals over which the High Court exercises jurisdiction. It comprises both judicial and administrative control. The power under Articles 226 and 227 may over lap but it is not the same power. Rajamannar C.J., in Gangalakurthi Pattisam, in Re(1953 SCC Online Mad.305)
observed : “But it is not difficult to conceive of cases to which Article 226 may not be applicable, but Article 227 might be applied. Take the case for instance, where the High Court feels that in the interest of justice and to avoid multiplicity of proceedings there should be a stay of proceeding pending before a tribunal till the disposal of a suit pending in a Civil Court. Article 226, according to the Supreme Court cannot be invoked for the sole purpose of obtaining an interlocutory order vide The State of Orissa v. Madan Gopal(AIR 1952 SC 12).
But under Article 227 in exercise of the power of superintendence, the High Court may well direct such a stay.”

7. The words “any person or authority” in Article 226 was interpreted by the Supreme Court in Andi Mukta Sadguru Sree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.Rudani & Ors.(1989 (2) KLT OnLine 1002 (SC) = (1989) 2 SCC 691)
where it was held : “The words” any person or authority”, used in Article 226 are, therefore, not to be confined only to statutory authorities and instumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied”. Drawing the ratio from this case, Supreme Court in K.K.Saksena v. International Commission on Irrigation and Drainage & Ors.
((2015 (2) KLT Suppl.112 (SC) = (2015) 4 SCC 670) held: “The guiding factor, therefore, is the nature of duty imposed on such a body, namely, public duty to make it exigible to Article 226”.
It was further held: “If a person or authority is “State” within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However we may add that even in such cases writ would not lie to enforce private law rights.................A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract and torts. Therefore even if Writ Petition would be maintainable against an authority, which is “State” under Article 12 of the Constitution, before issuing any writ, particulary writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law”.

8. A three Judge Bench inDwaraka Prasad Agarwal (D) by Lrs & Anr. v. B.D.Agarwal & Ors.(2003) 6 SCC 230) opined: “A Writ Petition is filed in public law remedy. The High Court while exercising power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character.”

9. In Binny Limited & Anr. v. V.Sadasivan & Ors. (2005 (4) KLT 315 (SC) = (2005) 6 SCC 657)
it was held: “However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, neverthless, there must be the public law element in such action”. The Court quoted from Halsbury’s Laws of England,3rd Edition, Volume 30, Page 682: “1317. A public authority is a body, not necessarily a county council, municipal council or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit”. However, a very wide interpretation was given by the Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar & Ors. (2015 (2) KLT SN 98 (C.No.114) SC = (2015) 3 SCC 251)
that as BCCI, though not a “State” under Article 12, is a private body which discharges public functions, writ petition is maintainable against it under Article 226 of the Constitution of India. In that judgment, the ratio in Zee Telefilms Ltd v. Union of India((2005) 4 SCC 649) that the duties of BCCI like the selection of Indian Cricket Team, controlling the activities of the players and others involved in the game of cricket are akin to public duties, was followed and it was held that as BCCI is having a pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. It is submitted that the said finding is far fetched in view of the fact that BCCI is not discharging any duty it owes to the public. The activities of BCCI can only be said to be in the realm of private law and therefore the public law remedy under Article 226 cannot be invoked against it.

10. In Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010 (3) KLT SN 86
(C.No.90) SC = (2010) 8 SCC 329) it was held that: “All the respondents in a Writ Petition cannot be private parties. But private parties acting in collusion with State can be respondents in a Writ Petition. Under the phraseology of Article 226, High Court can issue writ to any person but the person against whom writ will be issued must have some statutory or public duty to perform”. Relying on Mohd. Ikram Hussain v. State of U.P.(AIR 1964 SC 1625), the Apex Court in Shalini Shyam Shetty(2010 (3) KLT SN 86 (C.No.90) SC = (2010) 8 SCC 329) opined that it is only a writ of Habeas Corpus which can be directed not only against the State but also against a private person.    

11. The question whether the writs can be issued against a private person under Article 32 of the Constitution for enforcement of the fundamental rights, arose in People’s Union For Democratic rights & Ors. v. Union of India & Ors. (1982) 3 SCC 235) in the issue regarding forced labour, prohibited under Article 23 of the Constitution of India. Supreme Court held that Article 23 is clearly designed to protect the individual not only against the State but also against other citizens. It is further held that the fundamental rights under Articles 17, 23 and 24 are enforceable against the whole world. That was a case where directions were issued to ensure that there are no violations of the provisions of Labour Laws and the workmen are not denied the rights and benefits to which they are entitled under such provisions. Indubitably the said ratio can be imported to the jurisdiction under Article 226 as it is similarly worded or rather more extensively worded than Article 32. In Rohtas Industries Ltd. & Anr. v. Rohtas Industries Staff Union & Ors. ((1976) 2 SCC 82) a three Judge Bench of the Supreme Court held that the Arbitrator’s award under Section 10-A
of the Industrial Disputes Act, 1947 can be set aside under Article 226 if there is error of law on the face of the award, though the Arbitrator is not a Tribunal under Article 136, being a quasi statutory authority. In T.Gattiah v. Commissioner of Labour(1981 (1) AP LJ 280)
and Sarvaraya Sugar Ltd & Ors.v. A.P. Civil Supplies Corporation Ltd & Ors.(AIR 1981 A.P. 402)
the ratio in Rohtas Industries Ltd.((1976) 2 SCC 82) was wrongly interpreted as a writ can be issued against a private person also. T.Gattiah(1981 (1) AP LJ 280)  was emphatically dissented in Pritam Singh Gill v.State of Punjab & Ors. (AIR 1982 P.&H. 228 (F.B.). The Full Bench of Punjab and Haryana High Court after exhaustive deliberation, held that “public capacity and a duty to act judicially is still the paramount consideration for the issuance of a writ of certiorari”.

12. The writ of certiorari, originated in England, was one of the writs in the armory of the King, issued in his prerogative power of superintendence over officials and Tribunals for duly obeying the law. The history of the writ was traced by the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedu (AIR 1943 PC 164) “The writ is so named because, in its original Latin form, it required that the King should be “certified” of the proceedings to be investigated, and the object is to secure, by the exercise of the authority of a superior Court, that the exercise of the jurisdiction of the inferior tribunal should be properly exercised. The writ does not issue to correct purely executive acts, but on the other hand, its application is not narrowly limited to inferior “courts” in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from a ministerial act, certiorari will lie”.

13. Referring to Halsbury, learned author Sri.H.M.Seervai, in his seminal work on the Constitutional Law of India, opines that whereas mandamus is not restricted to persons charged with a judicial or quasi judicial duty, prohibition and certiorari can be issued only if the person, body or tribunal is charged with judicial or quasi-judicial duties. Therefore it will not be issued against a private person. Prof.De Smith opines: “Certiorari will not issue to persons or bodies who claims to exercise a jurisdiction without any colour of legal authority, for the actions of usurpers are a nullity and do not require to be set aside”.

14. The power of the High Courts under Articles 226 & 227 was considered by the Hon’ble Supreme Court in Surya Dev Rai v. Ram Chander Rai & Ors. (2003 (3) KLT 490 (SC) =(2003) 6 SCC 675) which posed the question as to what is the impact of the amendment in Section 115 of the Code of Civil Procedure, 1908 brought in by Act 46 of 1999 with effect from 1.7.2002 on the power and jurisdiction of the High Court to entertain petitions seeking a writ of certiorari under Article 226 of the Constitution or invoking the power of superintendence under Article 227 of the Constitution as against similar orders, acts or proceedings of the Courts Subordinate to the High Courts, against which earlier the remedy of filing Civil Revision under Section 115 CPC was available to the persons aggrieved. The Bench expressed a doubt that whether an aggrieved person is completely deprived of the remedy of judicial review, if he has lost at the hands of the original Court and the Appellate Court though a case of gross failure of justice having been occasioned, can be made out. After a survey of case law and the historical background of the writ of certiorari, it was held that certiorari is issued for correcting gross errors of jurisdiction; when a subordinate Court has acted without jurisdiction-by assuming jurisdiction where there exists none, or in excess of its jurisdiction-by over stepping or crossing the limits of jurisdiction, or acting in flagrant disregard of law or rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice. The Court cautioned that the power to issue writ has to be exercised sparingly, only in appropriate cases. It was also held that mere errors of fact or of law cannot be corrected by the writ of certiorari. It was also held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction.

15. Radhey Shyam & Anr. v. Chhabi Nath & Ors.(2009 (2) KLT Suppl.1200 (SC) =
(2009) 5 SCC 616) another Bench of equal strength doubted the proposition that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the Writ Court under Article 226 in exercise of its power under a writ of certiorari and referred the matter for consideration by a larger Bench. It was opined that Surya Dev Rai((2003) 3 KLT 490 (SC)
= (2003) 6 SCC 675) is contrary to the ratio of a nine Judge Constitution Bench decision Naresh Shridhar Mirajkar v. State of Maharashtra (1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1).
Reference order in Radhey Shyam((2009 (2) KLT Suppl.1200 (SC) = (2009) 5 SCC 616) refers to cases where it was held that private rights of parties cannot be declared in writ jurisdiction. Surya Dev Rai((2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) also equally sounded a note of caution in usurping the jurisdiction under Article 226 for that purpose.

16. The conclusion in Mirajkar ((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) was culled out by the reference order ((2009 (2) KLT Suppl.1200 (SC) = (2009) 5 SCC 616) as “certiorari does not lie to quash the judgments of inferior Courts of Civil Jurisdiction”. But in Mirajkar ((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1), that sentence was quoted from Halsbury’s Laws of England, observing that the history of that writ is being incidentally referred to. Actually, in a later edition of Halsbury’s Laws of England, (4th Edition (Re issue), Volume ((1), Para 103), as quoted in the Constitution Bench decision Rupa Ashok Hurra v. Ashok Hurra & Anr.(2002 (2) KLT SN 76 (C.No.91) SC = (2002) 4 SCC 388), it is stated : “109. Certiorari lies to bring decisions of an inferior Court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed or to quash such decisions.” The Constitution Bench in T.C.Basappa v. T.Nagappa & Anr. (1954 KLT OnLine 1001 (SC) = AIR 1954 SC 440) cautioned that “in view of the express provisions in our Constitution we need not now look back 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.”

17. The Constitution Bench in Mirajkar ((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1)
was not deciding the question whether certiorari lies to quash the judgments of inferior Courts of Civil jurisdiction. In Mirajkar((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) the questions posed were, “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 Article 32(2)”. The question was further broadened to: “Does the impugned order violate the fundamental rights of the petitioners under Article 19(1)(a),(d) and (g); and if it does, is it amenable to
the writ jurisdiction of the Supreme Court under Article 32(2)”. Regarding the question whether the impugned order in Mirajkar((1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1) violates the fundamental rights, it was held : “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 the citizens under Article 19(1)”.
On the issue of directing a writ of certiorari to the High Court, P.B.Gajendragadkar, C.J., speaking for the majority, held that: “having regard to the fact that the impugned order has been passed by a superior Court of record in the exercise of inherent powers, the question about the existence of said jurisdiction as well as the validity or proprietory of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Article 32.” A.K.Sarkar, J, concurred and held that “I find great difficulty in thinking of the High Courts as Courts of inferior jurisdiction........” “when a Court has the power to issue writ, it is not, according to the fundamental principles of certiorari, an inferior Court or a Courts of limited jurisdiction”. It was concluded that the Supreme Court has no power to issue a writ of certiorari to a High Court.

18. The three Judge Bench in Radhey Shyam & Anr. v. Chhabi Nath & Ors.
(2015 (1) KLT 1032 (SC) = (2015) 5 SCC 423) answered the question raised in the reference order ((2009 (2) KLT Suppl. 1200 (SC) = (2009) 5 SCC 616) and held that the judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 is distinct from Article 226. Thus the contrary view in Surya Dev Rai (2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) was overruled. It held: (a) Broad principles of writ jurisdiction followed in England are applicable in India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or Courts other than judicial Courts. (b) There are no precedents in India for the High Courts to issue writs to the Subordinate Courts. (c) Control of working of the Subordinate Courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. (d) Orders of the Civil Court stand on different footing from the orders of authorities or Tribunals or Courts other than judicial Courts. (e) Where appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. (f) The expression “inferior court” is not referable to the judicial Courts. (g) Judicial orders of the Civil Court are not amenable to writ jurisdiction under Article 226 of the Constitution. (h) Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.

19. In order to ascertain its meaning of the term “Court”, the definition of “Court” in Section 3 of the Indian Evidence Act, 1872 will be of help but it is not exhaustive as it is so defined for the purpose of that Act. “Court” originally meant the Palace of the King. In Stephen’s Commentaries on the Laws of England, it is stated that, “in every Court, there must be at least three constituent parts : the actor, reus and judex; the actor, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction; and the judex or judicial power, which is to examine the truth of the fact and to determine the law arising upon the fact and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.” It can only be concluded therefore that the Subordinate Courts contemplated under our Constitution are “Courts”, as there is exercise of judicial power which examines the truth of facts involved and the law to be applied and a decision is reached thereafter.

20.  What is a judicial decision and what is a “Court” was answered by the Constitution Bench of the Hon’be Supreme Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and Bharat Bank Employees’ Union, Delhi(AIR 1950 SC 188) while deciding
the question whether Article  136 of the Constitution contemplates a determination by the Industrial Tribunal, the Bench quoted with approval the passage from Cooper v. Wilson(1937(2) KB 309) : “A true judicial decision pre-supposes an existing dispute between two or more parties, and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally pre-supposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by the administrative action, the character of which is determined by the Minister’s free choice.”

21. With great respect, lack of precedents should not have strained the Court in deciding the issue. The scheme of the Constitution of India should have been adverted to. Article 226 of the Constitution of India grants power to the High Courts to issue to any person or authority in its territories including the Government, orders or writs including the 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. The words “orders or writs including writs in the nature of “ expands the power of the High Court to issue writs other than those specified therein. Thus the Constitution of India has conferred on the High Courts powers greater than the Courts in England. In that sense the jurisdiction of the High Courts under Article 226 is new. Going by the language and the expanse of Article 226, it applies to each and every authority including the Courts in the territories within which the High Court exercises its jurisdiction.

22. Article 214 of the Constitution declares that “there shall be a High Court for each State” and then the other Courts in a State are described as “Subordinate Courts”, dealt with under Chapter VI of Part VI. Our Constitution does not make a distinction between Civil Court and other Courts in Chapter VI titled “Subordinate Courts.” Civil Courts are not treated as a class apart from other Courts. Articles 233 to 237 show that the control of the Subordinate Courts in the State in which it exercises its jurisdiction, is vested in the High Court of the State and it is complete. Articles 233 and 234 prescribe that the appointments of Judges to the judicial service of the State shall be made after consultation with the High Court. Article 236(b) defines “judicial service” as a service consisting exclusively of persons intended to fill the post of District Judge and other Civil judicial posts inferior to the post of District Judge. The expression “District Judge”, as per Article 236(a), includes Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge.

23. The Constitution Bench in Chandra Mohan v. State of Uttar Pradesh & Ors.
(AIR 1966 SC 1987) construed the expression “service” in Clause (2) of Article 233 as the judicial service. While interpreting the term ‘judicial office”, in Article 217(2) (a), the Supreme Court
in Shri Kumar Padma Prasad v. Union of India(1992 (1) KLT OnLine 905 (SC) = (1992) 2 SCC 428) held that it “means an office as a part of the judicial service, as defined under Article 236(b) of the Constitution of India”. It was further held that “holder of “judicial office” under Article 217(2) (a)
 means the person who exercises only judicial functions, determines causes inter parties and renders decisions in a judicial capacity”.

24. When the control of the Subordinate judiciary was vested in the High Courts, it was with the intention of creating a independent subordinate judiciary. Article 50 of the Constitution is a pointer : “The State shall take steps to separate the judiciary from the executive in the public services of the State”. Article 235 starts with the words “the control over district courts and courts subordinate thereto”. It is described as the “pivot around which the entire scheme of the Chapter VI revolves”, by the Constitution Bench in Chief Justice of Andhra Pradesh & Ors. v. L.V.A.Dixitulu & Ors.(1978 KLT OnLine 1012 (SC) = (1979) 2 SCC 34).
The term “control”, used in Article 235 was explained as “Administrative, judicial and disciplinary control” in State of Haryana v. Inder Prakash Anand  ((1976) 2 SCC 977) and quoted in Tejpal Singh v. State of U.P. & Anr.((1986) 3 SCC 604). The word “control” in Article 235 was held to be including something in addition to mere superintendence. The Constitution Bench in State of West Bengal v. Nripendra Nath (AIR 1966 SC 447) held: “The word “control” as we have seen, was used for the first time in the Constitution and it is accompanied by the word “vest” which is strong word. It shows that the High Court is made the sole custodian of the control over the judiciary”. It was held further that the expression “vested” means as including disciplinary jurisdiction and control is useless if it is not accompanied by disciplinary powers.

25. That under our Constitution High Courts have superintendence over Subordinate Courts is beyond any pale of doubt. Article 227 declares the power of superintendence of High Courts over all the Courts and Tribunals in their respective territories. Constitution of India does not define the word “inferior”. But are “inferior” Courts similar to that of the “subordinate” Courts under our Constitution? In Rex v. Chancellor of St.Edmundsburry and Ipswich Diocese Exparte White ((1945) 1 KBD 195) - Wrottesly L.J., opined: “the more
this matter was investigated, 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.”

26. A survey of Articles 233 to 236 show that what is contemplated therein is judicial Courts and what is created there is subordinate judiciary, below the High Court in a State. The decisions rendered by all such Courts are judicial acts. Sri.H.M.Seervai refers to Prof. De Smith in his monumental treatise “Constitutional Law of India”: “Judicial acts may be identified by inference to their formal, procedural or substantive characteristics, or by a combination of any of them”. It can be seen that the jurisdiction of the High Courts is prescribed and limited by the Constitution only and the jurisdiction of other Courts is to be found in the Statutes by which they are set up. As distinguished from the High Courts, the Subordinate Courts have limited jurisdiction.

27. As regards the nature and applicability of the writ of certiorari to judicial acts, the Constitution Bench in T.C.Basappa(1954 KLT OnLine 1001 (SC) = AIR 1954 SC 440) referred to Rex v. Electricity Commissioners((1924) 1 KB 171) and Walshall’s Overseers v. London and North Western Railway Co.(1879) 4 AC 30) and opined: “One of the fundamental
principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. The second essential feature of a writ of certiorari 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.”

28. That the writ of certiorari can be issued to the subordinate courts is beyond doubt. But the question whether certiorari lies to quash every decision of a Subordinate authority can only be answered by an emphatic No. The following propositions are settled and approved by the Constitution Bench (7 Judges) in Hari Vishnu Kamath v. Syed Ahmad Ishague & Ors.
(AIR 1955 SC 233) :- “(1) Certiorari will be issued for correcting errors of jurisdiction, as and when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as and when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has the jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a Superior Court were to rehear the case on the evidence, and substitute its on findings in certiorari.”

29. The Constitution Bench in Nagendra Nath Bora & Anr. v. The Commissioner of Hills Divisional Appeals, Assam & Ors.(1958 KLT OnLine 1301 (SC) = AIR 1958 SC 398) held that “the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.”

The irresistible conclusion, therefore, is that Radhey Shyam(2015 (1) KLT 1032 (SC) = (2015) 5 SCC 423) has overlooked the powers of the High Court under the Constitution of India and the binding Constitutional Bench decisions in Basappa(1954 KLT OnLine 1001 (SC)
= AIR 1954 SC 440) Hari Vishnu Kamath(AIR 1955 SC 233) and Nagendra Nath Bora(1958 KLT OnLine 1301 (SC) = AIR 1958 SC 398). If Civil Courts are kept aloof from the purview of the judicial review under the Constitution of India, it will be rewriting the constitutional scheme and will be demolishing the very basic structure, the “ heart and soul“ of the Constitution of India. Surya Dev Rai(2003 (3) KLT 490 (SC) = (2003) 6 SCC 675) must resurrect.