1 The petitioner claims to be an Advocate enrolled with Bar Council of Kerala. According to him, in Notice of Motion (L) no. 706 of 2017 in Suit No.
614 of 2017, he had an occasion to appear for applicant therein namely Vilas Chandrakant Gaokar. Said Vilas Gaokar appears to be defendant no. 1 in
the aforesaid suit for declaration. In the said suit, Motion is taken out by said Vilas Gaokar questioning the jurisdiction of the Court to entertain the suit
and sought a declaration that suit is not maintainable for want of jurisdiction.
2 The learned Judge (respondent herein) who has taken up the said Notice of Motion, vide Judgment pronounced on 05/03/2018 rejected the Motion
moved by said Vilas Gaokar by imposing exemplary costs of Rs. 10,00,000/Â on the said Vilas Gaokar. However, while rejecting the Notice of
Motion, the learned Judge made certain observations about the petitioner which according to the petitioner are prejudicial. In the circumstances, the
petitioner has filed this petition under Article 226 of the Constitution of India seeking following reliefs:
a. To declare that the citizen whose fundamental rights are infringed by a judicial order is entitled to all legal remedies, common law, equitable and
declaratory, compensation and damages, so too, even criminal action like such infringement at the hands of legislature, executive and fellow citizens,
and to assume otherwise will render part III of the Constitution nugatory.
b. In the event of prayer (a) above being granted in favour of the Petitioner, he is entitled to initiate civil and even criminal proceedings against
Respondent no. 1 (though the Petitioner intends to institute no criminal proceedings) in as much as the observations of Justice Kathawalla, one
rendered behind his back is exÂfacie false and defamatory, even assuming that the said observations were made without any ulterior or malicious
intentions.
c. To declare that no distinction can be made between subordinate judiciary and superior judiciary in so far as the prohibition contained in Article 13
(2) of the Constitution is concerned and that the superior judiciary also falls within the ambit of “State†under Article 12 just like the subordinate
judiciary.
d. To grant compensation of Re. 1/Â as damages, though the damage suffered by the Petitioner by virtue of the Order at ExhibitÂA, dated 05.03.2018
at the hands of Justice Kathawalla is irreparable and cannot be adequately compensated in terms of money.
e. Without prejudice to the reliefs (a) to (d) above and in furtherance thereof relegate the Petitioner to the civil court for the enforcement of the
remedies vested in him, his fundamental rights being violated by virtue of Ex P1 at the hands of Justice Kathawalla, Respondent no. 1 above.
f. Any other order as this Hon'ble Court may deem fit in the interest of justice.
3 In support of the contentions raised in the petition, this Court has heard Mr. Jha, the learned counsel for the petitioner at length.
4 Since the petitioner is not a party to the Notice of Motion or the Suit, this Court has asked the learned counsel for the petitioner to address on the
issue of maintainability of the present writ petition. In the said background, the learned counsel for the petitioner Mr. Jha, while inviting attention of this
Court to the provisions of Article 13 (2) and Article 19(1)(a)(g) of the Constitution of India, would urge that the fundamental rights of the petitioner are
infringed in the present matter. According to him, the observations made against the petitioner, in the impugned Judgment dated 05/03/2018 are
without putting him on notice and without giving him an opportunity of hearing. Mr. Jha then would urge that the relief claimed by the present
petitioner to the extent of declaration, compensation is required to be ordered, in addition to liberty to the petitioner to approach the Civil Court to
enforce other Statutory remedies vested in view of violation of his fundamental rights.
5 Mr. Jha then would urge that the petition against the sitting Judge of this Court is very much maintainable, particularly when the observations made
in the Judgment dated 05/03/2018 in Notice of Motion (L) no. 706 of 2017 as such observations are in violation of Article 14, 19 & 21 of the
Constitution of India. According to Mr. Jha, the observations made against the petitioner are prejudicial to his professional interest and as such, he has
every right to bring into action the present writ petition. It is also urged by Mr. Jha that the privilege claimed, if an, by the respondent by virtue of
provisions of Judges Protection Acct, 1985 cannot be made available to the respondent as the Act itself is in contravention to Part III of the
Constitution and is hit by Article 13 (2) of the Constitution of India. According to Mr. Jha, in the circumstances, it is necessary to issue notice to the
respondent and decide the matter on its own merit.
6 Considered the submissions made by the learned counsel for the petitioner.
7 Present petition is directed against the Sitting Judge of the High Court, who, in exercise of his judicial powers has decided an issue brought before
the Court. The issue which was brought before the said Judge in the Notice of Motion by defendant no. 1 in the suit and also by the present petitioner,
with a clear understanding that the said Judge has jurisdiction to deal with the Notice of Motion. The perusal of the prayer in the petition, has in clear
terms gave an understanding to this Court that the petition is aimed at a Sitting Judge.
8 The status of the present petitioner as a practicing Advocate is not in dispute and it can be derived from the record that the petitioner appeared in
Notice of Motion (L) no. 706 of 2017 in Suit no. 614 of 2017 for original defendant no. 1/applicant in Notice of Motion. Mr. Jha has invited certain
observations made by the learned Judge while deciding the said Notice of Motion which according to him are infringing his fundamental rights qua the
provisions of Article 19 (1) (a) (g) of the Constitution of India.
9 In response to the Court's query, a categorical submission is made by Mr. Jha on behalf of the petitioner that said original defendant in the Suit who
is applicant in the Notice of Motion has already preferred a Statutory Appeal questioning the Judgment pronounced on 05/03/2018.
10 In the aforesaid background, this Court is required to consider the issue about the maintainability of the present writ petition. Particularly when the
petition is preferred against a Sitting High Court Judge who has passed the Judgment which according to the petitioner reflects on his professional
conduct.
11 In order to decide the question involved in this matter, the Constitution Bench of the Supreme Court in the matter of Naresh Shridhar Mirajkar Vs
State of Maharashtra is relevant. In the said case before the Supreme Court, the learned High Court has forbidden a publication house from
publishing the Court proceedings vide Oral Order. The said Oral Order was questioned in a Writ Petition under Article 226 of the Constitution of India
which was dismissed by the Division Bench. When the matter reached to the Supreme Court, it had an occasion to consider similar contentions as are
raised by the learned counsel for the petitioner in this matter claiming violation of fundamental rights under Article 19 of the Constitution of India. At
para 37, 38, 39, 40, 41 & 43 the Supreme Court has observed thus:
37. The next question which calls for our decision is : doesthe impugned order contravene the fundamental right of the petitioners under Art. 19(1) ? In
dealing with this question, it is essential to bear in mind the object with which the impugned order has been passed. As we have already indicated, the
impugned order has been passed, because the learned Judge was satisfied that the interests of justice required that Mr. Goda should not be exposed to
the risk of excessive publicity of the evidence that he would give in court. This order was passed by the learned Judge after the hearing arguments
from both the parties to the suit. Thus, there is no doubt that the learned Judge was satisfied the that in order to be able to do justice between the
parties before him, it was essential to grant Mr. Goda's request for prohibiting he publication of his testimony in the newspapers from day to day. The
questions is : can it be said that an order which has been passed directly and solely for the purpose of assisting the discovery of truth and for doing
justice between the parties, infringes the fundamental rights of the petitioners under Art. 19(1) ?
38. The argument that the impugned order affects the fundamental rights of the petitioners under Art. 19(1), is based on a complete misconception
about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his
adjudication, he first decides questions of facts on which the parties are at issue, and then applies the relevant law to the said facts. Whether the
findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be
considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court.
But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought
before him for adjudication can affect the fundamental rights of the citizens under Art. 19(1). 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 or in relation to a matter brought before it for its decision cannot be said to affect the
fundamental rights of citizens under Art. 19(1).
39. The impugned order is, in a sense, an order of a collateralnature; it has no direct relation with the decision of the dispute which had been brought
before the Court in the proceedings between the parties. The learned Judge however, thought that in order that he should be able to do full justice
between the parties it was necessary to pass the impugned order. Thus, though the order in a sense is collateral to the proceedings which were
pending before the Court, it was directly connected with the said proceedings inasmuch as the learned Judge found that he could not do justice
between the parties and decide the matter satisfactorily unless the publication of Mr. Goda's evidence was prohibited pending the trial. The order is
not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal.
Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the
fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Art. 136 of the Constitution, but it
cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter
directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this
view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners'
fundamental rights under Art. 19(1), must fail.
40. Assuming, however, that the impugned order can be said incidentally and indirectly to affect the fundamental rights of the petitioners under Art.
19(1), can such incidental and indirect effect of the order justify the conclusion that the order itself infringes Art. 19(1) ?
41. It is wellÂsettled that in examining the validity oflegislation, it is legitimate to consider whether the impugned legislation is a legislation directly in
respect of the subject covered by any particular article of the Constitution, or touches the said article only incidentally or indirectly.
In A. K. Gopalan v. The State of Madras [1950CriLJ1383], Kania C.J., had occasion to consider the validity of the argument that the preventive
detention order results in the detention of the applicant in a cell, and so, it contravenes his fundamental rights guaranteed by Art. 19(1) (a), (b), (c), (d),
(e) and (g). Rejecting this argument, the learned Chief Justice observed that the true approach in dealing with such a question is only to consider the
directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu's life. On that ground alone, he
was inclined to reject the contention that the order of detention contravened the fundamental rights guaranteed to the petitioner under Art. 19(1). He
thought that any other construction put on the article would be unreasonable.
43. If the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in considering the validity of
legislation, it would not be inappropriate to apply the same test to judicial decisions like the one with which we are concerned in the present
proceedings. As we have already indicated, the impugned order was directly concerned with giving such protection to the witness as was thought to
be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the
petitioners were not able to report what they heard in court, that cannot be said to make the impugned order invalid under Art. 19(1)(a).
It is a judicial order passed by the Court in exercise of its inherent jurisdiction and its sole purpose is to help the administration of justice. Any
incidental consequence which may flow from the order will not introduce any constitutional infirmity in it.
12 If the aforesaid observations of the Supreme Court are appreciated in the backdrop of pleadings which are formed to be basis for claiming the
relief, what is required to be noted is the learned Judge was discharging his judicial function pursuant to power and authority vested in him. While
doing so, the observations made against the petitioner, if any are in a judicial order where the purpose is to discharge the function and duties as a judge
in the process of administration of justice. As a consequence of the observations made in the Judgment of Supreme Court, the observations made in
the impugned Judgment of learned Single Judge is held to be not amounting to any Constitutional infirmity. The very object of deciding the issue
canvassed is to deal with the controversy brought before it and nothing more. That being so, when the Court while pronouncing a judicial verdict, in
relation to the matter brought before it, has made those observations, the same cannot be said that there is violation of fundamental rights of the
petitioner. The incidental observations made by the Court in a judicial order while adjudicating the dispute between the parties remains the same as
that of a Judgment delivered in an exercise of jurisdiction.
13 There is no presumption in law that while a judicial decision is pronounced by the Judge of Competent Jurisdiction in relation to a matter brought
before him for adjudication, the observations therein affects the fundamental rights. It is also required to be noted that the observations in the order
under reference are of coÂlateral nature while deciding the dispute between the parties brought before the Court. In that view of the matter, the
jurisdiction of the Judge to pass an order as is sought to be assailed in the present petition can be challenged in an Appeal as the matter is decided on
merits. The character of the order referred to in the present proceedings passed by the learned Judge may be in a matter directly in an issue between
the parties or by incidentally to make adjudication of the dispute between the parties as a part of process of fair and effective justice and therefore
the same cannot be examined in this writ petition more particularly when Appeal has already been preferred by client of the petitionerÂoriginal
defendant no. 1 to the suit. That being so, in our considered view, the present Writ Petition is not maintainable.
14 As such, the Petition stands dismissed.
15 As the petition is dismissed, all the Notice of Motions and Chamber Summons stand disposed of.
