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Judgment
T.S. Doabia, J.—""The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel. Even
the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable generally of
determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be
put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his defence even though he has a perfect one. He requires the guiding hand of counsel at
every step in the proceedings against him. Without it, though he be not guilty he faces the danger of conviction because he does not know how to
establish his innocence. If that be true of men of intelligence how much more true is it of the ignorant and illiterate or those of feeble intellect.
The above observations were made by Douglas, J. in Jon Richard Argersinger v. Raymond Hamlin, 1972(407) US 25 : 32 L Ed 2d 530.
The petitioners in this petition are seeking indirectly the enforcement of above concept by contending that venue of trial be shifted as it is not
possible of have legal aid where the trial is on. The respondents vehemently oppose this. The petitioners contend that legal assistance is inherent in
Article 21 of the Constitution which provides `No person shall be deprived of his life or personal liberty except according to the procedure
established by law'. This as per the petitioner is a fundamental right. Before examining the scope of the protection conferred by Article 21 facts in
brief be noticed.
The petitioners are facing trial before the `General Security Force Court' (hereinafter referred to as the `Court'). It has been indicated that the
petitioners have committed offences punishable under Section 302 read with Section 34 of the Penal Code. An offence under Section 307 read
with Section 34 of the Penal Code has been said to be committed by petitioner Nos. 2, 3 and 4. So far as petitioner No. 1 is concerned he is
being indicted for the above offences with the aid of Section 109 of the Penal Code.
At the relevant time the petitioner No. 1 was commanding one of the Battalions of Border Security Force (hereinafter referred to as to Force).
Petitioner No. 2 was the Deputy Commandant. Petitioners No. 3 and 4 are said to be Head Constables and Constable. It is alleged that on 6th of
day of August 1990 some civilians were killed in a locality where the Force was deployed. These deaths as per the prosecution did not take place
in pursuance of the normal performance of the duties, which the petitioners were supposed to perform. It was accordingly proposed to constitute
General Security Force Court. The first sitting of the Court was held on 8th May 1998. It was adjourned to 11th day of May 1998. Some
witnesses were examined, cross examined and reexamined. Defending officer did take part in the proceedings. The Court was adjourned. It was
to reassemble on 12th day of May 1998. Petitioner No. 1 sought adjournment on account of his ill health. Proceedings were adjourned to 14th
day of May 1998. Petitioners wanted to be assisted by Abdul Majid Dar Advocate and another advocate by the name of Mohd. Abdula Khande.
Sh. Abdul Majid Dar is Addl. Standing Counsel of the Union of India. He wanted to assure himself as to whether he could appear for the
petitioners or not. Adjournment was sought. On the adjourned day Sh. Abdul Majid Dar expressed his inability to appear but Sh. Mohd. Abdul
Khande did assist the Court. The hearing was adjourned to 16th day of May 1998. One witness was examined. The defence counsel did not
appear on the next day i.e. 18th of May 1998. The proceedings, however, continued on 18th, 19th, 20th, 21st, 22nd, 23rd, 25th, 26th, 27th, 29th
day of May 1998. Witnesses were examined and crossexamined with assistance and help provided by the respondents. The proceedings were
adjourned to 21st of July, 1998.
The further fact is that on 29th of May 1998, an application was filed before the authority which had convened the Court. This application reads
as under :
Due to prevailing situation in the valley no civil lawyer has agreed to defend our case.
Sh. M.A. Khande Advocate who was engaged by us could appear only for 2 days. Due to prevailing situation in the valley he feels insecure and
had also expressed his inability to appear and defend our case.
In view of the above submission it is humbly requested that the venue of trial may be shifted to Jammu so that we can engage good civil lawyer of
our choice to defend our case.
We shall be highly obliged for considering our humble request sympathetically in the interest of justice and fair trial.
The above prayer was rejected. This was so communicated to the petitioners vide letter dated 8th of June 1998. This letter reads as under :
Application, forwarded vide your letter No. Pers/JKS/GSF/98/9094 dated 29th May 1998, has been examined in this HQ in detail and the
competent authority has desired me to inform you that :
(a) Your request to shift the venue of trial from Srinagar to Jammu is not tenable because of the fact that a number of civilian/police witnesses, are
residing in the Kashmir Valley and it would not be possible for them to go to Jammu to depose before the court.
(b) Regarding your contention that Civil advocate is feeling insecure to appear before the court because of prevailing situation in the valley, I am
desired to say that your contention is not based on facts. In earlier General Security Force Court trials, conducted in the Valley, civil advocates
had been appearing on behalf of the accused persons to defend their cases. However, you are at liberty to make the submission before the General
Security Force Court to seek a short adjournment to enable you to engage a defence counsel of your choice at your own expenses from Jammu
bar, if you are interested to do so.
The petitioners thereafter moved this Court on 23rd day of June 1998 seeking a direction that respondents be directed to shift the venue of the
trial. This was because the counsel at the place where the trial is going on are reluctant to appear and defend them. The names of the counsels who
were appearing earlier and had refused to appear subsequently have been indicated. Letter of one of the counsels was brought to the notice of the
convening authority also. This letter written by the counsel reads as under :
Due to disturbed conditions in the valley especially when militancy has not fully died down in the valley and I feel that there is danger to my life. I
have advised Mr. J.K. Sharma Addl. DIG BSF to get the case transferred to Jammu as atmosphere is surcharged in Kashmir valley. This incident
has been highly publicised and in my personal view no Kashmiri lawyer will be able to do justice to this case. If this case is not transferred to
Jammu the case will be vitiated and fair trial would become impossible. Mr. Sharma is facing abetment of murder charge and no defending officer
of the BSF in my view would be able to do full justice to his case as complicated questions of law and facts are involved.
When the petition was taken up by this Court on 13.7.1998, it was felt that it would be apt if the matter is considered by the Director General of
the Force. The Director General of the Force was to treat the writ petition as a representation and see to it that if there is any legitimate ground
made out for giving the relief which they came to seek from this court. The Director General of the Force took note of the factual submissions
made by the petitioners but came to the conclusion that no ground is made out for acceding to the request. It has been mentioned that five
witnesses (two medical officers, two Police Officers and Forensic expert) have to be examined and it would not be possible to change the venue.
It is further stated that the defending officers are law graduates with experience in the trial of this type of proceedings. It is stated that venue of the
trial depends upon where the occurrence took place. It is urged that if venue is changed it would cause inconvenience to the prosecution witnesses.
The view expressed by the Director General of the Force while rejecting the prayer of the petitioners for shifting the venue be noticed.
Admittedly, the petitioners have a right to be defended by a Counsel of their choice. However, a judicial notice can be taken by the Hon'ble Court
that the situation at Srinagar has improved considerably and a number of Advocates are appearing in the High Court as well as in the lower Courts
at Srinagar for defending the various cases. In fact, in a trial recently held by the BSF at Srinagar the accused persons were represented by a
Counsel of their choice who belonged to Srinagar. In another case, the counsel came all the way from Delhi. In yet another case, a Counsel
appeared from Jammu. Thus, the main plea of the petitioners that no counsel is willing to defend them at Srinagar carries no weight. While fixing the
venue of trial one of the criteria is convenience of the witnesses. As mentioned supra, 29 witnesses have already been examined and 5 civil
witnesses i.e. 2 medical officers, 2 police officers and a Forensic expert are yet to be examined by the prosecution and all these witnesses are from
Srinagar. If the venue of trial is shifted from Srinagar to Jammu, it is likely that the said Civil witnesses may not turn up and thus cause further delay
in finalisation of the trial. Moreover, the submission to shift the venue of trial from Srinagar to Jammu was made by the petitioners before convening
authority, who considered and rejected the same. The observations of S.T. Hussain, Sr. Advocate, exCentral Govt. Standing Counsel, (Annexure
`D' to the writ petition) are his personal views and cannot be made a basis for coming to the conclusion that no Advocate is willing to defend the
cases at Srinagar.
The respondents have also filed objections. It is stated that this court has no jurisdiction to interfere in the matter. It is submitted that if any
interference is made it would amount to exercising Supervisory power as conferred under Article 227 of the Constitution of India. It is stated that
such a power is not vested with this Court. So far situation at the place where Court is holding its sitting is concerned, it is stated that the situation is
normal. It is further stated that the petitioners are at liberty in case no counsel is available in Kashmir Valley to engage a counsel from outside the
valley including Jammu. The respondents submit that they would provide every possible facility to the counsel who wish to appear for defending the
petitioners. This includes providing accommodation and transportation. Reliance is also being placed on a decision of the Supreme Court of India
in case reported as Union of India and others v. Major A. Hussain, AIR 1998 SC 577 : 1998(1) SCT 288 (SC) to contend that Supervisory
jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is not available.
With a view to counter the aforementioned pleas, the petitioners submit that what is being sought to be enforced is a fundamental right
guaranted to them under Article 21 of the Constitution of India. For this jurisdiction under Article 226 as per the petitioners has been rightly
invoked. Right to have legal assistance as per the petitioners' counsel is a fundamental right and a cherished principle recognised by Article 39(A)
of the Constitution i.e. Directive Principles of State Policy. It is accordingly contended that right to have assistance of a counsel is a necessary
concomitant of a fair trial. It is highlighted that the trial is going on for the offences which are of very serious nature and can have grave
consequences, so far as the petitioners are concerned. If they are deprived of legal assistance at the very threshold then it is possible that their
ultimate liberty be jeoparadised and their career would also be affected.
The further submission made is that the members of the Court come from different places. Only one officer is located at the place where the
enquiry is conducted. In these circumstances, it is stated that the trial can be conducted at the place suggested by the petitioners. It is also
suggested that the accused also coming from far off places. If the venue is changed then this aspect of the matter can be taken care of.
An assertion has also been made by the petitioners that the place where the enquiry is being conducted is not conducive for fair trial. It is
indicated that local influence are prejudicing the fair trial.
The legal aspect of the need to be defended by legal practitioner be noticed :
In former times there was no legal aid for any accused man. For many years he was not allowed counsel on a charge of felony though he was on a
misdemeanour. All that he could do was to make a statement from the dock.
Blackstone condemned the rule by which was not allowed counsel on his trial for a capital crime. He said that it :
Seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English Law ..... And, to say the truth, the judges
themselves are so sensible of this defect in our modern practice, that they seldom scruple to allow a prisoner counsel to stand by him at the bar and
instruct him what questions to ask or even to ask questions for him, with respect to matters of fact : for as to matters of law, arising on the trial they
are entitled to the assistance of counsel. But still this is a matter of too much importance to be left to the good pleasure of any judge, and is worthy
of the interposition of the legislature.
This is how chapter 5 `Criminal Legal Aid' by Rt. Hon. Lord Denning, Master of the Roll's book, ""What Next in the Law"" begins. He goes on
to trace the progress of the concept and it would apt to note the further passage mentioned at page 107. This reads as under :
By a statute passed in 1836 the accused was allowed to have counsel on a charge of felony as well as on other cases. But always at his own
expense; so there was rarely counsel. When I was at the Bar there was a scheme in difficult cases of poor prisoner's defence paid out of country
funds. Otherwise, the only way of having counsel was by means of a `dock brief'. To get it the accused had to find 1 pound 3s 6d of his own
money or from friends or relatives. Most young counsel starting at the Bar would go to Quarter Sessions or to Assizes and sit in court when the
prisoners were put up to plead hoping that some of them would ask for a dock brief.
The narration proceeds
The accused could only see the backs of their wigs. So he had to take his chance. He pointed to one or other hoping for the best. Often there was
only halfanhour for it. The case was then called on.
The argument is that the concept of fair trial visualises that the accused must be permitted to avail the service of the counsel engaged by him
who is said to be a counsel of his choice.
The Supreme Court of India in M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1448, pointed out that judicial justice with procedural
intricacies, legal submissions and critical examination of evidence leans upon professional expertise and a failure of equal justice under the law is on
the cards where such supportive skill is absent for one side. Indian system of administration of justice moulded by AngloAmerican models and the
judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power for streeing the wheels of equal justice under
the law.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but is in ours. From
the very beginning our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to
assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realised if the man
charged with crime has to face his accusers without a lawyer to assist him. Black, J. observed in Gideon v. Wainwright, 1963(372) US 335 : 9 L
Ed 2d 799 :
It is now well settled as a result of the decision of the Supreme Court of India in Maneka Gandhi v. Union of India, AIR 1978 SC 597, that
when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not
enough that there should be some semblance of procedure provided by law but the procedure under which a person may be deprived of his life or
liberty should be reasonable, fair and just. Now a procedure which does not make available legal services to an accused person who is too poor
to afford a lawyer and who would, therefore, have to go through the trial without legal assistance cannot possibly be regarded as reasonable fair
and just. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court's process
that he should have legal services available to him.
This aspect of the matter was noticed by the Supreme Court of India case reported as Hussainara Khatoon and others v. Home Secretary,
State of Bihar, Patna, AIR 1979 Supreme Court 1369. Words of Mr. Justice Brenman were quoted as under :
Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things
down. When only the rich can enjoy the law, as a doubtful luxury and the poor who need it most cannot have it because its expense puts it beyond
their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon
making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.
What was said by Leeman Abbot was also quoted. These words are quoted again :
If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury when the poor who need it most cannot have it. When
only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the firebrand of revolution will be lighted and put into
the hands of men and they will almost be justified in the revolution which will follow.
The above concept was again reiterated in case reported as Khatri and others v. State of Bihar and others, AIR 1981 Supreme Court 928, Kadra
Pehadiya and others v. State of Bihar, AIR 1981 Supreme Court 939, Sheela Barse v. State of Maharashtra, AIR 1983 Supreme Court 378 and
Suk Das and another v. Union Territory of Arunachal Pradesh, 1986(2) R.C.R.(Criminal) 132 : AIR 1986 Supreme Court 991.
Thus it can be safely concluded that the petitioners have a legal right to be defended by a legal practitioner. This is in fact a fundamental right as
visulised by Article 21 of the Constitution of India. It is in fact not being disputed by the respondents. They want them to bring their counsel to the
place where trial is on. This the petitioners submit they cannot. This has led them to seek change in venue. The right they have. As to what relief
they are entitled to is being dealt within the later part of this order.
The objection raised by the respondents that the jurisdiction conferred on this court under Article 227 is not available at the stage when
proceedings are in progress and are being conducted by the General Security Force Court be now examined. The fact that the final orders of the
Court are amenable to interference under Article 226 is not being disputed. What is being disputed is that the power of superintendence cannot be
exercised over the `Court'. In Chandra Kumar v. Union of India, 1995(2) SCT 674 : AIR 1997 SC 1125, The Supreme Court of India observed
that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective
jurisdiction is a part of the basic structure of the Constitution. It was accordingly held that Tribunals created under the Administrative Tribunal Act
of 1985 come under the supervisory jurisdiction of this Court. The final decision of course subject to judicial review under Article 226 of the
Constitution of India.
The question as to whether Article 227 of the Constitution is available be examined in the light of two decisions of the Supreme Court of India
reported as T.C. Bassappa v. T.N. Naggappa, AIR 19954 SC 440 and Hari Vishnu Kamath v. Ahmed Ishoue, AIR 1955 SC 233. The two
cases i.e. T.C. Bassappa and Hari Vishnu Kamath's writ of certrorari was claimed against the decision given by Election Tribunals constituted
under the then existing Representation of Peoples Act 1951 (hereinafter refer as to Act of 1951). In T.C. Bassappa's case (supra) a writ of
certiorari was issued by the High Court of Mysore. The decision is reported as AIR 1954 Mysore 152. An election petition preferred under
Section 80 of the Representation of People Act 1951 as it originally existed came to be decided by the Election Tribunal Shimoga. The Tribunals
at that point of time consisted of a Bench of three members. By a majority of three to one the Tribunal declared the election of T. Naggappa as
void. It further declared that T. Bassappa was duly elected. This decision given by the Tribunal on 15th of January 1953 became subject matter of
a petition before the Mysore High Court under Article 226 of the Constitution of India. The writ petition was allowed. The decision given by the
Tribunal was reserved. It was against the above judgment by High Court an appeal came to be lodged in the Supreme Court of India. It was
argued before the Supreme Court of India that a writ of certiorari could not be issued. The Supreme Court came to the conclusion that the errors
of law pointed out by the High Court were neither errors of law nor they were apparent on the face of record and therefore, a writ could not be
issued. However, the question as to whether the High Court could at all entertain a petition under Article 226 was raised and decided in the other
matter i.e. Hari Vishnu Kamath's. Scope of exercise of powers under Article 227 was also examined. The appeal again arose out of a decision
given by the Tribunal under the Representation of People Act 1951. It was observed that the nonobstante clause would not stand in the way of the
High Court in exercising writ jurisdiction. The question of there being a bar at the initial stage and there being no bar at the final stage was gone
into. In para 6 of the judgment the Supreme Court of India pointedly mentioned that the first question for decision was whether the High Courts
had the jurisdiction under Article 226 to issue writs against decisions of election tribunals. It was observed that Article 226 confers power on the
High Courts to issue appropriate writs to any person or authority within the territorial jurisdiction in terms of which are absolute and unqualified and
the election Tribunals functioning within the territorial jurisdiction of High Court will fall within the sweep of that power.
While dealing with this aspect of the matter what was observed by the sevenmember Bench of Supreme Court of India is relevant and be
noticed :
The first question that arises for decision in this appeal is whether High Courts have jurisdiction under Article 226 to issue writs against decisions
of Election Tribunals. That functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to
recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself.
With regard to exercise of power under Article 227 it was observed :
We are also of opinion that Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution and that
superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath, AIR 1954 SC 215, where it was
observed that in respect of Article 227 went further than Section 224 of the Government of India Act, 1935 under which the superintendence was
purely administrative and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a
`certiorari' and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.
It was further added that :
(1) `Certiorari' will be issued for correcting errors of jurisdiction 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
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 own findings in `certiorari'. These propositions are well settled and are not in dispute.
In fact interference has been made even at preliminary stages also. There is judicial precedent for such a proposition. In this regard, it would be
pertinent to refer to a Division Bench decision of the Punjab High Court reported as Pratap Singh Kairon v. Gurmej Singh, 14 Election Law
Reporter 412. The question in the above case was whether an Election Tribunal is justified in declining to determine certain preliminary questions of
law, which if decided in favour of the party objecting would dispense with further trial or at any rate with the trial of some substantial issues in the
case. The further question in the above case was whether inference could be made under Article 227 of the Constitution, when a election Tribunal
declines to determine a certain preliminary issue. In the above case again the dispute was with regard to the validity of an election held under the
Representation of People Act, 1951. The Court noted the scope and ambit of the power of superintendence as conferred by Article 227. The
observations made by it are pertinent and be noticed :
It was said power of superintending control conferred by Article 227 is similar to the control exercised by the Court of King's Bench over the
inferior courts of England under the common law. According to Blackstone the Court of King's Bench was entitled to a general superintendence
over all subordinate Courts for the purpose of keeping them within the bounds of their authority and for preventing usurpation. In order to achieve
this object the King's Bench was at liberty to remove their proceedings to be determined by it to prohibit their progress below and to enforce in
inferior tribunals the due exercise of those judicial or ministerial powers which had been vested in them by restraining their excesses and quickening
their negligence and obviating their denial of justice. The power which was exercised by the Court of King's Bench was a branch of the power of
the King of England while the power which has been conferred on the High Courts in this Country by Article 227 is a branch of the sovereign
power of the people as vested in them by the constitution of a democratic Republic.
The Court further observed :
The nature and extent of the power of superintending has come up for consideration in a large number of American cases and has been admirably
described in 51 Lawyers Reports Annotated Page 33, where an annotator observes as follows :
The power of the superintending control is an extraordinary power. It is hampered by no specific rules of means for its exercise. It is so general
and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is
unlimited being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them.
And if required the Tribunals having authority to exercise it will by virtue of it possess the power to invent, frame and formulate new and additional
means, writs and process whereby it may be exerted.
With regard to the scope of power under Articles 226 and 227 following principles can be said to have been laid down by the Division Bench in
Partap Singh Kairon's case (supra);
(i) that the constitutional supervisory power is indefinite in character and unlimited in extent and is designed to prevent and correct errors and
abuses;
(ii) the Articles authorise the superior Court to examine any question which it deems of sufficient importance for examination and decision.
It was held that Article 227 is available :
(i) to control summarily the course of litigation in the inferior courts,
(ii) to prevent an injustice being done through a mistake of law, or a wilful disregard of it,
(iii) to remedy manifest wrongs of tyrannical or arbitrary acts,
(iv) to meet emergencies and to promote the harmonious working of Courts.
After noticing the above categories it was observed that the power under Article 227 is :
In the nature of a summary appeal and is meant to `emancipate' the Court from the restraints imposed on it by the rule of procedure, the only
restraint on the exercise of such power being its own sound discretion.
The scope of the power was further analysed as under :
(i) This power is not limited by forms of procedure and the Court will look at the substance of the right sought to be vindicated and not to the form
in which such relief is sought.
(ii) In the exercise of its supervisory power the court is concerned in the prevention of abuse or illegal acts, regardless of the amount involved and
in the prevention of extended and needless litigation.
(iii) It is directed primarily to inferior tribunals and its relation to litigants is only incidental.
(iv) It should be resorted to most sparingly and only in appropriate case in order to keep the subordinate courts within the bounds of their authority
or where real justice would be done in the court could not interfere or when a tribunal does not act in accordance with that manner prescribed by
law or exceeds its authority or acts arbitrarily or capriciously or transgresses the bounds of its authority.
(v) It should not be exercised lightly or when other and ordinary remedies are adequate and complete.
(vi) It would be invoked promptly and employed sparingly and only in extreme cases when the ends of justice imperatively demand it and when
grave hardship will follow a refusal to exercise it.
(vii) It will be used to prevent irreparable mischief, great extraordinary or exceptional hareship and great burdens in the form of expenses. The
superior Court has the right in its supervisory capacity to direct the inferior court to proceed so as finally to settle the rights of the parties as
expeditiously as possible.
The general principles governing the exercise of the power of superintending control were again admirably summarised in In Re : PierceArrow
Motor Car Co., 1910(143) Wis 282, where the Court said :
That this jurisdiction is not to be exercised upon light occasion but only upon some grave exigency; that the writs by which it is exercised will not
be used to perform the ordinary functions of an appeal or writ of error; that the duty of the court below must be plain; its refusal to proceed within
the line of such duty or, on the other hand, its intent to proceed in violation of such duty must be clear; the results must not only be prejudicial but
must involve extraordinary hardships; the remedy by appeal or writ of error must be utterly inadequate; and the application for the exercise of the
power of superintending control must be speedy and prompt.
The general rule which can thus be spelled out from the various judicial pronouncements is that the High Court would refuse to interfere under
Article 227 if an alternate legal remedy is available to a litigant. It is, however, to be seen that the remedy should be adequate, efficacious, proper
and not onerous. The rule of exhaustion of alternative remedy is again not an inflexible rule. It is a rule of policy, convenience and discretion. It
does not affect the High Court's power under Article 227. An alternative legal remedy is never a bar when the same is illusory. This Court may
intervence under Article 227 if a court or Tribunal acts arbitrarily or it declines to do what is legally incumbent upon it to do and thereby refuses to
exercise jurisdiction vested by law to it or exceeds its jurisdiction. Again if a court or tribunal acts contrary to the provisions of natural justice or the
findings are based on no evidence or are otherwise perverse or there is an error of law apparent on the fact of the record, the High Court can
interfere under Article 227 of the Constitution. As a matter of fact, in Magan Lal Chaggan Lal (Pvt.) Ltd. v. Municipal Corporation of Greater
Bombay, AIR 1974 SC 2009, a seven judge Constitution Bench of the Supreme Court in para 18 held that the provisions of Articles 226 and 227
of the Constitution are no less effective than the provisions dealing with the remedy of appeal. A mere wrong decision without anything more is not
enough to attract the jurisdiction of the High Courts under Article 227 of the Constitution if limited to seeing that an inferior Court or Tribunal
functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law.
The argument raised that the proceedings which are going on before the ""Court"" are not under the Supervisory jurisdiction be examined.
It be seen that the Article 227, uses the words `Courts and Tribunals'. The word `Tribunal' was interpreted to include all quasi judicial authorities in
the case of Manmohan Singh v. Comm. U.T. Chandigarh, AIR 1985 SC 364. In the above case the question was whether an authority exercising
Power under Punjab Aided Schools (Security of Service) Act, 1969 is a tribunal. The view expressed by these authorities are also covered by
term Tribunal. What was said in para 7 is being quoted :
Therefore, they will be comprehended in the expression `Tribunal' as used in Article 227 of the Constitution which confers power of
superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously,
therefore, the decision of the statutory quasi judicial authorities which can be appropriately described as tribunal will be subject to judicial review
namely a writ of certiorari by the High Court under Art. 227 of the Constitution.
The question as to whether General Security Force Court is a `Court' for the purpose of Article 227 may also be examined.
Coke on Littleton and Stroud defined the word `Court' as the place where justice is judicially administered. According to Stephen `In every
Court, there must be at least three constituent parts the actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus or
defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact and to determine
the law arising upon that fact and if any injury appears to have been done, to ascertain and by its officers to apply, the remedy. The Privy Council
in the case of Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 AC 275 thus defined `Judicial Powers' :
Is this right ? What is `judicial power' ? Their Lordships are of opinion that one of the best definitions is that given by Griffith, C.J. in Huddart,
Parker and Co. v. Moorehead, 1909(8) CLR 330 at page 357 where he says :
I am of the opinion that the words `judicial power' as used in Section 71 of the Constitution mean the power which every Sovereign authority must
of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to
appeal or not) is called upon to take action.
A tribunal is not necessarily a Court in this strict sense because it gives a final decision :
Nor because two or more contending parties appear before it between whom it has to decide.
Nor because it gives decisions which affect the rights of subjects; Nor because there is an appeal to a Court; Nor because it is a body to
which a matter is referred by another body.
An administrative tribunal may act judicially but still remain an administrative tribunal as distinguished from a Court, strictly socalled. Mere
externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of judicial power.
The same principle was reiterated by Supreme Court in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., AIR 1950 SC 188; and
Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 where the test of a judicial tribunal as laid down in a passage from Cooper v. Wilson,
1937(2) KB 309 at page 340 was adopted by the Court. This passage reads as under :
A true judicial decision presupposes 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
mean 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 arguments by the parties; (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 fact as found including where required a ruling upon any
disputed question of law.
Maqbool Hussain's case above referred to, was followed by the Supreme Court in S.A. Venkataraman v. Union of India, AIR 1954 SC 375,
where a Constitution Bench laid down that finality and authoritativeness where the essential tests of a judicial pronouncement. In Royal Aquarium
and Summer and Winter Garden Society Ltd. v. Paron, 1892(1) QB 431, Fry, LJ. at page 446 said :
I do not desire to attempt any definition of a `Court'. It is obvious that, according to our law a court may perform various directions. Parliament is
a Court. Its duties as a whole are deliberative and legislative : the duties of a part of it only are judicial. It is nevertheless a court. There are many
other courts which though not Courts of justice, are nevertheless courts of investigation like the coroner's court.
In my judgment, therefore, the existence of the immunity claimed does not depend on the question whether the subjectmatter of consideration is a
Court of Justice, but whether it is a Court of law. Wherever you find a Court in law, to that the law, attaches such privileges among which is the
immunity in question.
The question involved in the above case was whether the defendant was entitled to absolute immunity from action for anything done by him
while performing his duty as a member of the County council in dealing with the adoptions for licences for music and dancing. It was contended on
behalf of the defendant that he was exercising a judicial function when he spoke the words complained of and therefore, was entitled to absolute
immunity in respect of anything he said. The argument that `wherever you find a Court of law to that the law attaches certain privileges among
which is the immunity in question was used on behalf of the defendant, Fry, LJ. dealt with the same as under:
It was said that the existence of this immunity is based on considerations of public policy and that as a matter of public policy wherever a body has
to decide question and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach"".
It seems to me that the sense in which the word `judicial' is used in that argument is this; it is used as meaning that the proceeding are such as
ought to be conducted with the fairness and impartiality which character proceedings in Courts of Justice and as proper to the functions of a judge,
not that the members of the supposed body are members of a Court. Consider to what lengths the doctrine would extend if this immunity were
applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially.
It would apply to assessment committees boards of guardians to the Inns of Court when considering the conduct of one of their members, to the
General Medical Council when considering question affecting the position of a medical man and to all arbitrators. Is it necessary on grounds of
public policy, that the doctrine of immunity should be carried as far as this ? I say not. I say that there is ample protection afforded in such cases by
the ordinary law of privilege. I find no necessity or propriety in carrying the doctrine so far as this argument requires.
Lord Esher, M.R. expressed himself as follows while dealing with this argument :
It is true that in respect of statements made in the course of proceedings before a Court of Justice, whether by judge or counsel, or witnesses
there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of Courts of Justice but
the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorised inquiry which though not before a
tribunal which has similar attributed.
In case of Dawkins v. Lord Rokeby, 1873(8) QBD 255, the doctrine was extended to a military court of inquiry. It was so extended on the
ground that the case was one of an authorized inquiry before a Tribunal acting judicially, that is to say in manner as nearly as possible similar to that
in which a court of Justice acts in respect of an inquiry before it. This doctrine has never been extended further than to Courts of Justice and
Tribunals acting in a manner similar to that in which such Courts act.
The case of Dawkins v. Lord Rokeby (supra) was a case where immunity was claimed by a witness who had given evidence before a military
Court of inquiry. The case went to House Lords and the Lord Chancellor in his speech in Dowkins v. Lord, 1875(7) HL 74 observed :
Now my Lords adopting the expression of the learned Judge with regard to what I take to be the settled law as to the protection of witnesses in
judicial proceedings. I certainly am of opinion that upon all principles and certainly upon all considerations of convenience and of public policy, the
same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended and must be
extended to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline
connected with the army.
The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and
authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court. It is clear,
therefore, that in order to constitute Court in the strict sense of the term, an essential condition is that the Court should have apart from having
some of the trappings of a judicial tribunal power to give a decision or a definitive judgment which has finality and authoritativeness which are the
essential tests of a judicial pronouncement.
Thus the General Security Force Court has all the trappings of the court and prima facie it may fall within the definition of Court also. From
what is being noticed above I am prima facie of the opinion :
(i) the petitioners do have a right to seek legal assistance. As a matter of fact, this aspect of the matter is not disputed.
(ii) the petitioners can validly contend that they are not in a position to get legal assistance at the place where trial is on.
(iii) that trial is for offences which are serious in nature.
(iv) the prayer for having assistance of legal practitioner has been denied by convening authority and not by the Court.
(v) the fact that legal practitioners are not available at the place and they are not willing to appear on account of local influences is to some extent
apparent on the file. The fact that counsel are going in other cases from Jammu has not been denied by the respondents.
(vi) as the request for having legal assistance has been denied by the convening authority that order can be examined even under Article 226 of the
Constitution of India.
(vii) that `General Security Force Court' has all the trappings of a `Court' and in any case it is a tribunal. As such its proceedings can be examined
under Article 227 of the Constitution of India.
(viii) that if legal help is not available at a particular place then that can constitute a ground for seeking transfer of the case to another place. In this
case it would be change of venue.
Incidently providing common defence assistance to all the petitioners as is contemplated by the Rules 1969 when there may be conflicting
interest is good or bad may also arise in this case. All above are prima facie conclusions. The issues raised in this petition are of public importance.
These need to be decided by a larger bench. In my view questions of law arise in this case. These are :
(i) Whether the petitioners can seek change of venue of trial once they demonstrate that legal assistance is not available for various factors at the
venue of trial ?
(ii) Whether `General Security Force Court' is a `Court' or a `Tribunal' and its proceedings amenable to supervisory jurisdiction of this Court ?
Petition is thus admitted. Interim order to continue.
The Registry to place the papers before my Lordship, the Chief Justice for seeking appropriate orders for constituting a larger Bench.