RESP 32

An adjudication order passed by a highcourt cannot be attacked in a peoceeding

under article 32, on the ground that the order violates the fundamental rights of a
citizen under the constitution of India.1 Wether the conclusion of the law drawn by
the judge of the high court suffers from any infirmity can be concluded,
considered and decided only in an appeal before the appellate court.2judicial
orders by themselves do not violate fundamental rights.3this applies as much , if
not more , to the supreme court and a decision of that court by one bench cannot
be set aside by another writ proceeding under Art 32.4 Even otherwise courts are
considered incapable of violatingfundamental rights and do not fall within the
definition of state under article 12.5
To be more explict and specific , in the exercise of judicial functions courts are
required to determine the scope of the fundamental rights vis-a-vislegislative or
executive action.unless their powers to function is excluded or restricted by the
constitution or any other law they are competent to make right or wrong
determination. A wrong determination in such case does not constitute a breach of
any fundamental right by the court. It is a genuine mistake which it is competent
to , though it must not make .The remedy for such mistake is not to allege a
violation of the fundamental rights and approach the courts under art 32 or 226
but allege that the determination of the court is not cinsistent with the
fundamental rights and approach the appropriate court with such allegations in
appeal.6

1
Naresh Shridar Mirajkar v. State of Maharashtra AIR 19567 SC1
2
AR Antulay v. RS Nayak AIR 1988 SC 1531 see also Ranjith singh v. Unoion territory of chandigrah AIR
1991 SC 2296(2298)
3
ibid
4
ibid
5
Shukla pg .27
6
Supra FN 2