Implications for High Court Autonomy and Tipping the balance of Power

The Allahabad High Court, while hearing a regular bail application, recently passed an order on 23.05.2023 directing the Head of Astrological Department, Lucknow University to submit a report examining the ‘kundli’ of the girl in order to determine whether the girl is ‘mangali’ or not. [1]

The Supreme Court, vide order dated 03.06.2023 took suo motu cognizance of the above decision of the High Court and stayed the directions passed by the High Court [2]

The aim of this post is to analyze the approach taken by the Supreme Court in handling the order passed by the Allahabad High Court, rather than evaluating the merits of the order itself. Specifically, this post seeks to highlight that while such intervention may appear innocuous if treated as precedent, it may potentially have significant and wide-ranging consequences of taking away the autonomy of the High Courts and tipping the scales of balance too much in favor of the Supreme Court. [3]

The first anomaly that comes to mind is the blazing urgency in dealing with the said matter on a Saturday, a non-working day when other issues of public importance have been neglected. The order passed by the High Court was stayed at the request of the Solicitor General who appeared for the state and argued that the order was ‘disturbing’. The issue becomes increasingly convoluted when it is seen that the decision to take suo motu cognizance was taken at the behest of the Chief Justice of India who was traveling abroad at the time[4].

The more concerning aspect of this incident was the casual way in which the Supreme Court exercised its jurisdiction to stay the orders issued by the High Court. It would be crucial to go back to the basics and to recall that the power to take suo motu cognizance emanates from Article 32 of the Constitution, only in cases where a constitutional right of a determinate class of persons is threatened and such class of persons, by way of reason of poverty, helplessness or disability or socially or economically disadvantaged position, is unable to approach the court for relief.[5]

Presumably, the only relevant writ that could have been employed by the Supreme Court was the Writ of Certiorari to quash the order passed by the High Court. If so, it is seriously contended that the Supreme Court did not have jurisdiction under Article 32 of the Constitution to take suo motu cognizance of the order passed by the High Court. This is so because of the following reasons:

First and foremost, it is worth mentioning that previous Constitution benches of the Supreme Court have established that a writ of certiorari cannot be invoked against an order issued by the High Court. The sole recourse available in such cases is to challenge the said order under the Supreme Court's appellate jurisdiction as provided by Article 136 of the Constitution of India.

An illustrative example is the case of Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra (1966) 3 SCR 744, in which an order issued by a Division Bench of the Bombay High Court under Article 226 of the Constitution was contested before the Supreme Court under Article 32 of the Constitution of India. The contention raised was that the High Court's order resulted in a violation of Article 19(1)(a) and Article 19(1)(g) of the Constitution. One of the issues framed by the nine-judge bench was 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 the Supreme Court under Article 32(2) [6]

While eight of the nine judges held that the judicial order passed by the High Court cannot be corrected under Article 32 of the Constitution of India, J. Hidayatullah in his dissenting view held that a writ of certiorari can be passed against the orders of the High Court if there is a gross violation of Fundamental Rights.[7]

The majority view of Naresh Shridhar Mirajkar (supra) was affirmed by another five-judge bench of the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 wherein it has been held as under,[8]

“Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court”

Furthermore, it is argued that the reason why such an order could not have been issued is due to a well-established principle that writs under Article 32 are enforceable only against the ‘State’ as defined under Article 12 of the Constitution. The Supreme Court has consistently affirmed that "courts," while engaged in their judicial functions, do not fall within the ambit of Article 12 of the Constitution of India. They are deemed to fall under the definition of 'State' only when they are acting solely in an administrative capacity. [9]

In conclusion, while the High Court's order may have been unconventional and inappropriate, this incident reflects a broader trend that undermines the autonomy of the High Court. Additionally, it gives another illustration of the unchecked and arbitrary powers of the master of the roster [10] to potentially exert administrative control over the judicial decisions passed by the High Courts. It is crucial for the Supreme Court to remain mindful of the intent of the founding fathers to preserve the delicate balance of independence between the Supreme Court and the High Court and to avoid ‘tipping the scales of balance’ [11] by usurping the powers of the High Court.

[1] Allahabad HC Directs Lucknow University To Determine If Rape Victim Is A 'Mangali' As Accused Refused To Marry Her On This Ground (livelaw.in)

[2] Supreme Court Stays Allahabad HC Direction To Examine If Rape Victim Is A 'Mangalik' (livelaw.in)

[3] Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC 1

[4] After CJI’s intervention, SC stays Allahabad HC order seeking answer on rape victim’s ‘manglik’ status | India News,The Indian Express

[5] Para 17, SP Gupta v. Union of India, 1981 Supp SCC 87

[6] Para 18, Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra (1966) 3 SCR 744

[7] Para 123, J. Hidayatullah, Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra (1966) 3 SCR 744

[8] Para 7, Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388

[9] See Para 168, Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461

[10] Default Bail, Personal Liberty, and the Master of the Roster – Indian Constitutional Law and Philosophy (wordpress.com)

[11] Para 16, Tirupati Balaji Developers (P) Ltd v State of Bihar (2004) 5 SCC 1