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TMI Blog1966 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court, and claimed ₹ 3 lakhs by way of damages for alleged malicious libel published in the Blitz on the 24th September, 1960, under the caption Scandal Bigger Than Mundhra . This suit was tried by Mr. Justice Tarkunde. One of the allegations which had been made in the said article was to the effect that China Cotton Exporters, of which Mr. Thackersey was a partner, had obtained licences for import of art silk yarn on condition that the same would be sold to handloom weavers only; and that in order to sell the said silk yarn in the black market with a view to realise higher profits, three bogus handloom factories were created on paper and bills and invoices were made with a view to create the impression that the condition on which the, licences had been granted to China Cotton Exporters, had been complied with. Mr. Thackersey's concern had thus sold the said yarn in the black-market and thereby concealed from taxation' the large profits made in that behalf. These allegations purported to be based on the papers filed in Suits Nos. 997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works, Rayon Handloom Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he orally directed that the evidence of Mr. Goda should not be published. It was pointed out to the learned Judge that the daily press, viz., 'The Times of India' and 'The Indian Express' gave only brief accounts of the proceedings before the Court in that case, whereas the 'Blitz' gave a full report of the said proceedings. The learned Judge then told Mr. Zaveri, Counsel for Mr. Karanjia that the petitioner who was one of the reporters of the 'Blitz' should be told not to publish reports of Mr. Goda's evidence in the 'Blitz'. The petitioner had all along been reporting the proceedings in the said suit in the columns of the 'Blitz'. On Monday, the 26th October, 1964, Mr. Chari appeared for Mr. Karanjia and urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare, such as that of a case where a child is a victim of a sexual offence, or of a case relating to matrimonial matters where sordid details of intimate relations between spouses are likely to come out, and proceedings in reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an the courts have power to ban such publication. They also allege that a restriction imposed in the interests of the witness cannot be held to be justified under Art. 19(2), and that in passing the impugned order, the learned Judge had exceeded his jurisdiction. It is plain that the basic assumption on which the petitions are founded, is that the impugned order infringes their fundamental rights under Art. 19(1) and that it is not saved by any of the provisions contained in clauses (2) to (6). To these petitions, the State of Maharashtra and Bhaichand Goda have been impleaded as respondents I and 2 respectively. Respondent No. I has disputed the correctness and the validity of the contentions raised by the petitioners in support of their petitions under Art. 32. In regard to factual matters set out in the petitions, respondent No. I has naturally no personal knowledge; but for the purpose of these petitions, it is prepared to assume that the facts alleged in the said petitions are correct. According to respondent No. 1, the impugned order was passed by the learned Judge in exercise of his general and inherent powers and he was justified in making such an order, because in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guaranteed to the citizens by Part III are very wide in their scope; and the right to move this Court by an aggrieved citizen is not limited to his right to move only against the Legislature or the Executive. If an individual citizen contravenes the fundamental rights of another citizen, the aggrieved citizen can, according to Mr. Setalvad, move this Court for an appropriate writ under Art. 32(1) (2). As illustrations supporting this proposition, Mr. Setalvad referred us to the fundamental rights guaranteed by Articles 17, 23 and 24. Article 17 abolishes 'untouchability'. If in spite of the abolition of 'untouchability' by constitutional provision included in Part III, any private shop-keeper, for instance, purports to enforce un- touchability against a Harijan citizen, the said citizen would be entitled to move this Court for a proper order under Art. 32(1) (2). Similar is the position in regard to fundamental rights guaranteed by Articles 23 and 24. Art. 23 prohibits traffic in human beings and forced labour, whereas Art. 24 prohibits employment of children to work in any factory or mine or their engagement in any other hazardous employment. In regard to j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him, private rights, though fundamental in character,, cannot be enforced against individual citizens under Art. 32(1). We have referred to these respective arguments just to indicate the extent of the field which has been covered by learned counsel who assisted us in dealing with the present petitions. As this Court has frequently emphasised, in dealing with constitutional matters, it is necessary that the decision of the Court should be confined to the narrow Points which a particular proceeding raises it. Often enough, in dealing with the very narrow point raised by a writ petition, wider arguments are urged before the Court; but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems not ,directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them; but this requirement becomes almost compulsive when the Court is dealing with constitutional matters. That is Why we do not propose to deal with the larger issues raised by the learned counsel in the present proceedings, and we wish to confine our deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court-room. As Bentham has observed: In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection it is essential to remember that public trial of causes is a means, though important and valuable, to ensure fair administration of justice; it is a means, not an end. It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice. That, in our opinion, is the rational basis on which the conflict of this kind must be harmoniously resolved. Whether or not in the present case such a conflict did in fact arise, and whether or not the impugned order is justified on the merits, are matters which are irrelevant to the present enquiry. Whilst we are dealing with this question , it would be useful to refer to the decision of the House of Lords in Scott v. Scott.[ In that case a Judge of the Divorce Court had made an order that a petition for a decree of nullity of marriage should be heard in camera, but after the conclusion of the proceedings, one of the parties published to third parties a transcript of the evidence give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. He who maintains that by no other means than by such a hearing can justice be done may apply. for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the court in no other fashion. In either case, he must satisfy the court that by nothing short of the exclusion of the public can justice be done It would thus be noticed that according to Viscount Haldane, L.C., though it is of the essence of fair and impartial administration of justice that all causes must be tried in open court, cases may arise where the court may be satisfied that evidence can be effectively brought before it only if the trial is held in camera; and in such cases, in order to discharge its paramount duty to administer justice, the court may feel compelled to order a trial in camera. The same principle has been enunciated by the other Law Lords, though they have differed in their approach as well as in their emphasis. We do not propose to refer to the statements made in the speeches of the other Law Lords, because it is clear that on the whole, the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was being tried in public; only a part of the trial was, however, held in camera, because the President was satisfied that unless the witness was allowed to depose in camera, she would not be able to disclose the whole truth. Similarly, in Re Green (a bankrupt), Ex Parte The Trustee,( [1958] 2 All E. R. 57) Jenkins, L.J., was moved to hear a bankruptcy petition in camera. After hearing arguments, he was satisfied that the interests of justice required that the application for hearing the case in camera wag justified. Accordingly the application was heard in camera. We have referred to these decisions by way of illustration to emphasise the point that it would be unreasonable to hold that a court must hear every case in public even though it is satisfied that the ends of justice themselves would be defeated by such public trial. The overriding consideration which must determine. the conduct of proceedings before a court is fair administration of justice. Indeed, the principle that all cases must be tried in public is really and ultimately based on the view that it is such public trial of cases that assists the fair and impartial administration of justice. The administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public. It would be noticed that while making a specific provision authorising the court to exclude all or any portion of the public from a trial, s.14 in terms recognises the existence of such inherent powers by its opening clause. Section 22(1) of the Hindu Marriage Act, 1955 (No. 25 of 1955) likewise lays down that a proceeding under this Act shall be /conducted in camera if either party so desires or if the court so, thinks fit to do, and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the court. The proviso to s. 352 of the Code of Criminal Procedure, 1898, prescribes that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in 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). The impugned order is, in a sense, an order of a collateral nature; 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. It is true that the opinion thus expressed by Kania, C. J., in the case of A. K Gopalan(1) had not received the concurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh and Others v. The State of Delhi and Another([1951] S.C.R.451, 456.), the said observations were cited with approval by the Full Court. The same principle has been accepted by this Court in Express Newspapers (Private) Ltd., and Anr. v. The Union of India and Others([1959] S.C.R. 12,129,130.), and by the majority judgment in Atiabari Tea Co., Ltd. v. The State of Assam and Others([1961] 1 S.C.R. 809,864.). 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd by Reuben, C. J., who agreed with Das, J., with the result that the order of conviction and sentence passed against the appellants was confirmed. The appellants then obtained a certificate from the said High Court under Art. 132 (1) and with that certificate they came to this Court. Naturally, the principal contention which was urged on their behalf before this Court was that s. 30, Cr.P.C. infringed the fundamental right guaranteed by Art. 14, and was, therefore, invalid. This contention was repelled by this Court. Then, alternatively, the appellants argued that though the section itself may not be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under s. 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can commit the accused to the Court of Session. This alternative contention was examined and it was also rejected. That incidentally raised the question as to whether the judicial decision could itself be said to offend Art. 14. S. R. Das, J., as he then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are, therefore, not prepared to accept Mr. Setalvad's assumption that the observations on which he bases himself support the proposition that according to this Court, judicial decisions rendered by courts of competent jurisdiction in or in relation to matters brought before them can be assailed on the ground that they violate Art. 14. It may incidentally be pointed out that the decision of the Supreme Court of the United States in Snowden v. Hughes(1) was itself not concerned with the validity of any judicial decision at all. On the other hand, in The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad and Others,( [1960]3 S.C.R. 177.), Sarkar, J. speaking for the Court, has observed that the decision of the Regional Transport Authority which was challenged before the Court may have been right or wrong, but that they were unable to see how that decision could offend Art. 14 or any other fundamental right of the petitioner. The learned Judge further observed that the Regional Transport Authority was acting as a quasi judicial body and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... citizen guaranteed by Art. 32(1), the Rule itself could not be effectively challenged as invalid, because it was merely discretionary; it did not impose an obligation on the Court to demand any security; and he supplemented his argument by contending that under Art. 142 of the Constitution, the powers of this Court were wide enough to impose any term or condition subject to which proceedings before this Court could be permitted to be conducted. He suggested that the powers of this Court under Art. 142 were not subject to any of the provisions contained in Part III including Art. 32(1). On the other hand, Mr. Pathak who challenged the validity of the Rule, urged that though the Rule was in form and in substance discretionary, he disputed the validity of the power which the Rule conferred on this Court to demand security. According to Mr. Pathak, Art 142 had to be read subject to the fundamental right guaranteed under Art. 32; and so, when this Court made Rules by virtue of the powers conferred on it by Art. 145, it could not make any Rule on the basis that it could confer a power on this Court to demand security from a party moving this Court under Art. 32(1), because such a term wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is not against any decision of this Court, but against a Rule made by it in pursuance of its rule-making power. If the Rule is struck down as it was in the case of Prem Chand Garg([1963] Supp. I S.C.R. 885.), this Court can review or recall its order passed under the said Rule. Cases in which initial orders of security passed by the Court are later reviewed and the amount of security initially directed is reduced, frequently arise in this Court; but they show the exercise of this Court's powers under Art. 137 and not under Art. 32. Therefore, we are not satisfied that Mr. Setalvad is fortified by any judicial decision of this Court in raising the contention that a judicial order passed by the High Court in or in relation to proceedings brought before it for its adjudication, can become the subject-matter of writ jurisdiction of this Court under Art. 32(2). In fact, no_ precedent has been cited before us which would support Mr. Setalvad's claim that a judicial order of the kind with which we are concerned in the present proceedings has ever been attempted to be challenged or has been set aside under Art. 32 of the Constitution. In this connection, it is necessary to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The supervision of the superior Court exercised through writs of certiorari goes to two points, one is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. Certiorari may fie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well-settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess. It is in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kamala Mills Ltd. v. The State of Bombay([1966] 1 S.C.R. 64.) and there it has been held that the appropriate authority set up under the relevant Sales-tax Act had been given jurisdiction to determine the nature of the transaction and to proceed to levy a tax in accordance with its decision on the first issue, and so, the decision of the said authority on the first issue cannot be said to be a decision on a collateral issue, and even if the said issue is erroneously determined by the said authority, the tax levied by it in accordance with its decision cannot be said to be without jurisdiction. In Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and' Others([1962] 1 S.C.R. 505.) the petitioner had moved this Court under Art. 32 contending that her fundamental rights under Art. 19(1)(f) and Art. 31 were infringed by the order of the Assistant Custodian which had declared that the husband of the petitioner was an evacuee and his property was evacuee property. The petitioner had appealed to the Deputy Custodian against the said order, and when she failed before the Deputy Custodian, she had moved the Custodian-General by revision; but the said revision application also was di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in ,one sense is inter-partes, because it was passed after hearing arguments on both the sides. In another sense, it is not inter-partes inasmuch as it prohibits strangers like the petitioners from publishing Mr. Goda's evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the -,Court and would in every case affect the right of strangers like the petitioners who, as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between normal orders passed inter-partes in judicial proceedings, and the present order that it should be open to the strangers -are who affected by the order to move this Court under Art. 327. The order, no doubt, binds the strangers; but, nevertheless, it is a judicial order and a person aggrieved by it, though a stranger, can move this Court by appeal under Art. 136 of the Constitution. Principles -of Res judicata have been applied by this Court in dealing with petitions filed before this Court under Art. 32 in Daryao and Other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of a superior Court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by -a superior Court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court. The basis of Mr. Setalvad's argument is that the impugned order is not an order inter-partes, as it affects the fundamental rights of the strangers to the litigation, and that the said order is without jurisdiction. We have already held that the impugned order cannot be said to affect the fundamental rights of the petitioners and that though it is not inter- partes in the sense that it affects strangers to the proceedings, it has been passed by the High Court in relation to a matter pending before it for its adjudication and as such, like other judicial orders passed by the High Court in proceedings pending before it, the correctness of the impugned order can be challenged only by appeal and not by writ proceedings. We have also held that the High Court has inherent jurisdiction to pass such an order. But apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not lie against the decision of an ecclesiastical court. In dealing with this question, Wrottesley, L. J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word inferior as applied to courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain courts. The more this matter was investigated, says Wrottesley, L. J., 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to quash them. They allege that the order violates their fundamental right to freedom of speech and expression conferred by sub- cl. (a) of cl. (1) of Art. 19 of the Constitution, I think these petitions should fail. First, it seems to me that this case is covered by the judgment of this Court in Ujjam Bai v. State of Uttar Pradesh([1963]1 S. C. R. 778.). That was a case in which a petition had been moved under Art. 32 for quashing an order passed by an assessing officer acting judicially under a taxing statute, valid in all respects, assessing the petitioner to tax on a construction of the statute alleged to be erroneous and that petition was dismissed. It was held that the validity of an order made by a judicial tribunal, acting within its jurisdiction, under an Act which was intra vires and good law in all respects was not liable to be questioned by a petition under Art. 32 even though the provisions of the Act had been misconstrued and that such an order could not violate any fundamental right and no question of this Court enforcing any violation of fundamental right thereby could arise The principle accepted appears to be that a legally valid act cannot offend a fundament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the legality of the order, Indeed, in England the High Court is a court of universal jurisdiction and except where provided by statute, its jurisdiction is, I believe,, unlimited. The House of Lords was not concerned with any statutory limit of the jurisdiction of the High Court. When this Court observed in Ujjam Bai's(1) case that the order had to be within the jurisdiction of the tribunal which made it, it really meant that the tribunal had to have jurisdiction to decide matters that were litigated before it and to apply the law which it, in fact, applied in making the order. It was not saying that the tribunal having this jurisdiction acts without jurisdiction if it makes an error in the application of the law. In coming to its conclusion in Ujjam Bai's(1) case, this Court assumed that the assessing authority misinterpreted the law which it had jurisdiction to apply, but held that nonetheless he had acted within his jurisdiction and was not acting without jurisdiction. This view is based on a well recognised principle. An order passed by a court without jurisdiction in the sense that I have mentioned, is a nullity. It cannot be said of such an order that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mera is given in the interests of administration of justice. I suppose there can be no doubt that administration of justice is a matter of public interest. Then it seems to me indisputable that the restrictions that the exercise of the power to hold trials in camera imposes on the liberty of movement are reasonable. It is circumscribed by strict limits; see Scott. V. Scott.( [19131 A.C. 417.) It is unnecessary to discuss these limits for it has not been contended that the restrictions are not reasonable. Secondly, I would say that that law does not violate any fundamental right to free movement. A court house is not such a place into which the public have an unrestricted right of entry. The public no doubt have a right to be present in court and to watch the proceedings conducted 'there. But this is not a fundamental right. It is indeed not a personal right of a citizen which, I conceive, a fundamental right must be. It is a right given to the public at large in the interests of the administration of justice. It cannot exist when the administration of justice requires a trial to be held in camera for in such a case it is not in the interest of justice that the public should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what they have no right to hear, on the condition that they do not publish what they hear. The order preventing publication is really a form of holding trial in camera. If a person taking advantage of such an order publishes it, he is certainly committing a wrong. I cannot imagine the Constitution contemplating a fundamental right based on a wrong. I conceive the position would be the same if a person stealthily and wrongfully gets possession of a copy of the proceedings of a trial held in camera and publishes them. He has no fundamental right to liberty of speech in respect of such publication because that putably good law. Suppose A has a copyright in a poem and B steals it and makes it over to C. It Would be absurd if C can take shelter under the liberty of speech when he is restrained by an injunction against a threatened publication of the poem by him. I should suppose that liberty of speech is not available to do harm to others. Clearly a right cannot be based on a wrong. Therefore, I think that a law empowering a court to prohibit publication of its proceedings does not affect the fundamental right of speech. It cannot be said to be bad on the ground that it infringes any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that the petitioners were not parties, but I am unable to see that that makes any difference. The case will still be covered by the principle laid down in Ujjam Bai's(1) case It would still be a judicial order made within the jurisdiction of the Judge making it and based on a good law. It would still be a legal act. It cannot, therefore, violate anyone's fundamental right whether he is a party to the proceedings or not. The person affected can always approach the court for relief even if he was not a party to, the proceedings. The jurisdiction of the Court does not depend on who the personaffected by its order, is. Courts often have to pass orders whichaffect strangers to the proceedings before them. To take a common case, suppose a court appoints a receiver of a property about which certain persons are litigating but which in fact belongs to another. That person is as much bound by the order appointing the receiver as the parties to it are. His remedy is to move the court by an application pro interesse suo. He cannot by force prevent the receiver from taking possession and justify his action on the ground that the order was without jurisdiction and,. therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by him, it must be held that there is, nothing in that case which is in conflict with Ujjam Bai's case([1955] 1 S.C.R. 250.). There is one other reason why, in my view, the petitions should fail. The petitions ask for a writ of certiorari. We are, therefore, concerned only with that writ. The difficulty that at once arises is. Does a certiorari lie to remove, for the purpose of quashing, the order of a High Court, which the order of Tarkunde J. undoubtedly was? I am confining myself only to a writ of certiorari for quashing a judicial order made by a High Court. The Constitution does not say what a writ of certiorari is. As certiorari is a technical word of English law and had its origin in that law, for determining its scope and contents we have necessarily to resort to English law. I am not unmindful that we are not to look back to the procedural technicalities of the writ as obtaining in English law. Nonetheless however we have to keep to the broad and fundamental principles that 'regulate the exercise of the jurisdiction to issue the writ in that law: Now one of the fundamental principles concerning the issue of the writ is that it issues to an inferior court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Now, there are many tribunals from which no appeal lies to a High Court upon which the Constitution has conferred the power to issue a writ of certiorari. If appealability was the test, then the High Courts would not be able to issue writs of certiorari to such tribunals as they would not then be inferior courts. In. that case, a High Court's power to issue the writ would only be confined to courts from which appeals lie to it. It would be strange if this was what the Constitution contemplated when it provided that the High Courts would have the power to issue writs of certiorari. I am not prepared to adopt a test which produces such a result. Nor do I think that the Constitution intended it. With the growing number of these tribunals and the increasing scope of their activity covering a large part of an average citizen's life, property and work, it is of the utmost importance that the citizens should have the quick and effective remedy of a writ of certiorari by approaching the High Courts for such writs. I am hot prepared to accept a test which would affect that right in any way. Besides this aspect of the matter, the power to issue a writ of certiorari is most valuab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saying that the Constitution did not contemplate the High ,Courts to be inferior courts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given the power to issue the writs. Nor do I think that the cause of justice will in any manner be affected if a High Court is not made amenable to correction by this Court by the issue of the writ. In my opinion, therefore, this Court has no power to issue a certiorari to a High Court. I would, for these reasons, dismiss the petitions. Hidayatullah, J. Questions of far-reaching importance to our system of administration of justice are involved in these petitions arid as I have reached the conclusion that these petitions should be allowed, I consider it necessary to state my reasons fully. The facts are these: In a sensational libel suit, on the original side of the High Court of Bombay, between one Mr. Krishnaraja M.D. Thakersey and Mr. R.K. Karanjia, Editor of the Blitz (an English weekly newspaper of Bombay), one Bhaichand Goda was cited as a witness for the defence. In a different proceeding Goda had earlier made an affidavit of facts which were considered relevant to the libel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of hearings in the trial of cases in our courts. As we have fortunately inherited the English tradition of holding trials (with a few exceptions to which I shall refer later) in public, I shall begin with the English practice. It has always been the glory of the English system as opposed to the Continental, that all trials are held ostiis apertis, that is, with open doors. This principle is old and according to Hallam it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found. Except for trials before the Council all trials in England, including those before the notorious Star Chamber, were public and with observance of the law terms. It is because English trial has not known the Letters de cachet of Louis XIV and all its state trials were public, that the Selden Society has been able to collect the cases of the Star Chamber and we have the verbatim reports of almost all state trials. As Emlyn in his preface to the State Trials says proudly : In other countries the courts of Justice are held in secret; with us publicly and in open view; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Queen as the parent patriae. These cases are considered private or domestic with which the public have no concern. The cases of trade secret are so viewed because secret processes (which are property) must be protected and unless secrecy from public view is maintained justice itself must fail in its purpose. The last are kept away from publicity because they involve sordid details of domestic life and therefore embarrass deponents. Even the last rule does not apply to all matrimonial cases as is evident from Scott. v. Scott referred, to earlier. In Scott v. Scott (L. R. [1913] A.C. 417 at 436.) there are certain observations which proceed upon a dictum of Sir Francis Jenne in D. v D. ([1903] P. 144.) that the court possesses an inherent jurisdiction to hear any case in private when the administration of justice requires or with the consent of parties. This is the principle which has been stressed in the judgment of my lord the Chief Justice and I shall say a few words about it. Viscount Haldane did not dissent from that dictum, provided that the principle is applied with great care and is not stretched to cases where there is not a strict necessity for invoking it. These obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Judges as Sir Cresswell, Williams J. and Bramwell B. who in H (falsely called C) v C.( 1 SW Tr. 605.) had expressed different opinion in relation to hearing in camera on there quest of parties Lord Shaw of Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. to be historically and legally indefensible' Earl Loreburn, however, agreed with the principle as enunciated and was in favour of its being exercised liberally. The head-note in the law report sets out the views of Viscount Haldane and Earl Loreburn separately from the main decision. In Scott v. Scott([1913] A.C. 417) the question had arisen in connection with a nullity suit and the main decision was that the Probate, Divorce and Admiralty Division had no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency. The order of hearing in camera which led to a suppression of publication of the proceedings in perpetuity was held to be bad. So strong is this principle of open trial that even where this rule is departed from on the ground that interest of justice would suffer the Judges always remember to rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where they do not and I see none on the facts of this case. The libel suit against the Editor of Blitz opened in public and proceeded in public. Goda's deposition on the first occasion was taken in open court and it was reported in newspapers. On his second appearance the trial as well as his examination was in open court but the reporting of his evidence was banned. Now the rule about reporting of cases in court is this: what takes place in court is public and the publication of the proceedings merely enlarges the area of the court and gives to the trial that added publicity which is favoured by the rule that the trial should be open and public. It is only when the public is excluded from audience that the privilege of publication also goes because the public outside then have no right to obtain at second- hand what they cannot obtain in the court itself. If the matter is already published in open court, it cannot be prevented from being published outside the court room pro- vided the report is a verbatim or a fair account. Accurate publication of reports is insisted upon so that the proceedings are not misrepresented. The above rules were stated by Lord Halsbury L.C. in Macdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch should be open and public into a private affair. I am of opinion that the order of Mr. Justice Tarkunde imposing suppression of the reporting of the deposition of Goda was illegal and without jurisdiction. It was not in his power to make such an order on the ground he was moved and further because the order either purports to impose a perpetual ban or leaves the matter in doubt, thus placing those concerned with the publication of the report under a virtual sword of Damocles, the order cannot be sustained. The next question which arises is whether such an order breaches the fundamental right to freedom of speech and expression. This question is tied to another and it is whether a petition under Art. 32 can at all lie against a Judge in respect of any action performed by him while in the seat of justice. To determine these questions it is necessary to start with the second limb because unless it is answered in the affirmative the first limb may not fall for consideration. In making the enquiry on the second limb, I do not confine my attention to the consideration of Art. 19(1)(a) alone, for that does not enable me to see the fundamental rights in their true perspective vis-a-v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the courts if they went against this prescription. Article 22(1) is addressed to courts where it says that no person, who is arrested, shall be denied the right to be * 12. In this Part,unless the context otherwise requires, the state includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. ** 13 (2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 20 (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself 22(1) No person who is arrested shall be det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial capacity. I venture to think that sitting in the seat of justice hardly makes a difference. It may be that his judicial orders normally are subject to appeals, revisions and reviews but where none of these can be invoked and fundamental rights are involved recourse to the guaranteed remedy may become necessary. Because Judges decide matters objectively and because almost all their orders are capable of correction by way of appeals, revisions or reviews, does not lead to the conclusion that every order made by a Judge may only be treated as a wrong order and not as one guilty of breach of fundamental rights. If a Judge, without any reason, orders the members of, say, one political party out of his court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge. Even if appeal lies against 79 2 Such an order, the defect on which relief can be claimed, is the breach of fundamental rights. I am, therefore, of opinion that Judges cannot be said to be entirely out of the reach of fundamental rights. The fundamental right here claimed is the freedom of speech and expression. In Sakal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n banc or in chambers. He is not so sure about the writ of quo warranto ,and wishes it to be considered as a separate question. It is, how-ever, clear that the last writ must either issue here or in the High Court if a Judge becomes incompetent, say, by reason of superannuation and does not demit his office and, I think ,the Attorney-General is right in not mixing up this writ with a consideration of the others. In respect of the other writs, the argument of the Attorney-General is that the High Court in England issues these writs to inferior courts but not to courts of coordinate jurisdiction or superior courts and the High Court as a Court of Record and a superior court, itself being able to issue these writs in our country, must be treated as a court of coordinate jurisdiction in this matter and not regarded as an inferior court. He also contends that the decisions of the High Courts are capable of being corrected by appeals only and writs cannot lie. I do not accept these arguments. Nothing turns on the fact that the High Court is a court of record because the writ of certiorari issues to several courts of record-(see Halsbury's Laws of England (3rd Edn.) Vol. II, page 124. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (2) The power conferred on a High Court by clause (1) or clause (IA) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32. Article 32 makes no exception in favour of the High Court. It refers to the writs of certiorari and prohibition which lie only in respect of judicial acts and although they lie also to bodies and persons who are not courts stricto sensu, they always lie to courts. As these writs are mentioned in Art. 32 and there is no exception in respect of the High Courts we start with a presumption that the High Court may not be excluded. The writ of mandamus may also be issued to courts and that does not detract from the presumption. The writ of quo warranto, as stated earlier, may concededly be held to apply to a High Court Judge. It will be noticed that both the articles in speaking of the power say that it is to issue writs in the nature of the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto. The phrase in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the Judges of the High Court after removal thereof the case by certiorari (see The Trial of Earl Russell([1901] A.C.446.). The Crown gets the writ of certiorari as of absolute right but the subject at the discretion of the court. No certiorari goes from one branch of the High Court to another nor to another superior court. This writ cannot be avoided by the Judge by not writing an order in the case before him. Even if the Judge has not recorded the order the High Court will order the inferior court to record its decision and then to transmit the record to it. (Halsbury, 3rd Edn, Vol XI, page 135, para 251). Certiorari lies only in respect of judicial, as distinguished from administrative, acts. Mandamus lies for the enforcement of legal rights when there is no other specific remedy or the other available remedy is not so effective. It often issues to a court to hear and determine a matter pending before it. Such a writ issued also from the Chancery when judgments were delayed, but returnable to the Queen's Bench. As Halsbury tersely puts it (3rd ed. Vol. XI, p. 53, para 109) the three writs of mandamus, prohibition and certiorari are used as a means of controlling in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Queen's Bench and in this sense the Ecclesiastical Courts and even the Judicial Committee hearing appeals in ecclesiastical matters and the Admiralty Courts are inferior (see Rex. v. Chancellor of St. Edmunsbury and Ipswich Diocese) ([1948] 1 K.B. 195 at 205.). I make no excuse for this excursion into the history of English, law and institutions because we have chosen to put down in Arts. 32 and 226 of the Constitution that the Supreme Court and the High Courts will exercise the power to issue writs 'in the nature of' mandamus, certiorari, prohibition and quo warranto the Supreme Court for the enforcement of fundamental rights only and the High Courts for that purpose and for other purposes. The question is who takes the place of the Queen's Bench Division in England and whether the Supreme Court in India has no power to issue a writ to enforce fundamental rights when breached by the High Courts? There is no real resemblance between the scheme of courts under our Constitution and the courts in England. Obviously, no prerogative writ of the Queen can go to a court in which the Queen herself is supposed to be present. This limitation has no significance with us. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held to be a less difficult process than the amendment of Art. 226, the guarantee in Art. 32(1) seems to be real till it is repealed or annulled. The provisions of Art. 226 themselves indicate this. Art. 226 begins by saying Notwithstanding anything in article 32 which shows that the whole of the power must otherwise be with this Court. It indicates an intention to carve out an area for local action by the High Court. This might have made the exercise of the power by the High Court equal to its exercise by this Court but for the existence of cl. (2) which says that the power conferred on the High Court is not in derogation of the powers conferred on the Supreme Court. The word derogation must receive its full meaning. It shows that the entirety of the powers possessed by this Court is still intact in spite of the High Court's ability to ,exercise similar powers in local areas within their jurisdiction. If the powers were coordinate why include cf. (2) in Art. 226 ? In these circumstances can we say that the High Court possesses coordinate powers ? I say no. A person need not go to the' High Court at all before moving this Court. There is really no provision tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in our country in similar circumstances is not immune because there is a remedy to move this Court for a writ against discriminatory treatment and this Court should not in a suitable case shirk to issue a writ to a High Court Judge who ignores the fundamental rights and his obligations under the Constitution. Other cases can easily be imagined under Arts. 14, 15, 19, 20, 21 and 22 of the Constitution in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will not only be not practicable but also quite an ineffective remedy. We need not be dismayed that the view I take means a slur on the High Courts or that this Court will be flooded with petitions under Art. 32 of the Constitution. Although the High Courts possess a power to interfere by way of high prerogative writs of certiorari, mandamus and prohibition, such powers have not been invoked against the normal and routine work of subordinate courts and tribunals. The reason is that people understand the difference between an approach to the High Court by way of appeals etc. and an approach for the purpose of asking for writs under Art. 226. Nor have the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes down and not up. Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court placed on an equal footing in the matter of jurisdiction. Where the county court exercised the powers of the High Court, the writ was held to be wrongly issued to it (see In re The New Par Consols, Limited.)( [1898] I.Q.B. 669.) The following observations of the Earl of Halsbury L.C. in Skinner v. the Northallerton County Court Judge ([1899] A.C. 439.) represent my view: The absurdity of that is that the statute itself has made the county court the High Court for this purpose. You might just as well argue that a warrant defective in form, issued by the Court of Queen's Bench could be set right by certiorari. Of course this is absurd. This is the High Court for this purpose.......... If there was any irregularity or inaccuracy in point of form in the warrant that did issue, that could be put right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he personal freedoms by non-State agencies cannot be made a ground for relief under Art. 32. It is said however that the Courts are State agencies and infringement of fundamental rights guaranteed by Art. 19 by an order of a Court may found a petition under Art. 32 of the Constitution. It is necessary therefore to appreciate the manner in which a judicial determination which is alleged to infringe a fundamental right of a citizen operates. In dealing with this question, I propose to restrict the discussion only to. determinations by Courts strictly so-called-Courts which are invested with plenary power to determine civil disputes, or to try offences. Quasi-judicial, or administrative tribunals, or tribunal$ with limited authority are not within the scope of the discussion. By Art. 32(2) this Court is invested with jurisdiction to issue writs, directions or orders for the enforcement of fundamental rights. Implicit in the claim for invoking this jurisdiction are two components: that the claimant has the fundamental freedom which is guaranteed by Part III of the Constitution, and that the freedom is directly infringed by the agency against whose action the protection is given. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reservation stated in that form. A Court in adjudicating upon a dispute has power for arriving at an effective and just decision to take all incidental steps for ensuring regularity and decorum in the conduct of its proceedings, and such steps may incidentally affect persons who are strangers to the litigation. The Court may issue a warrant to compel attendance of witnesses, attach property in the hands of strangers to the proceeding, correct mistakes in its proceedings even after rights of third parties have come into existence, set aside Court proceedings in contravention of its directions or procured by fraud, recall invalid orders which cause injustice, take contempt proceedings against witnesses and others who act in violation of the orders of the Court or otherwise obstruct proceedings of the Court directly. or indirectly, and generally pass orders which may be necessary in the ends of justice to prevent abuse of the process of law. Jurisdiction to exercise those powers which may affect rights of persons other than those who are parties to the litigation is either expressly granted by statute or arises from the necessity to regulate the course of its proceeding so as to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction, merely because it is erroneous. The Code of Civil Procedure contains no express provisions authorising a Court to hold its proceedings in camera : but the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a course to be adopted. Hearing of proceedings in open Court undoubtedly tends to ensure untainted. administration of justice and departure from that course may be permitted in exceptional circumstances, when the Court is either by statutory injunction compelled, or is in the exercise of its discretion satisfied, that unless the public are excluded from the courtroom, interests of justice may suffer irreparably. An order, for hearing of a trial 'in camera is only intended to prevent excessive publication of the proceedings of the Court, if such excessive publication may, it is apprehended, cause grave harm either to the public interest or to the interests of the parties or witnesses, which cannot be offset by the interest which it is the object of a trial in open Court to serve. Hearing in open Court of causes is of the utmost importance for maintaining confidence of the public in the impartial adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the case demanded such a course, jurisdiction to make an order preventing publication in newspapers of the evidence. Whether Tarkunde, J., erred in making the impugned order is a question apart, and does not fall to be determined in these writ petitions. I am unable however to agree that in the matter of exercise of powers of this Court to issue writs against orders of Courts which are alleged to infringe a fundamental right under Art. 19, any distinction between the High Court and subordinate Courts may be made. In my view orders made by subordinate courts, such as the District Court or Courts of Subordinate Judges which are Courts of trial and Courts of plenary jurisdiction are as much exempt from challenge in enforcement of an alleged fundamental right under Art. 19 by a petition under Art. 32 of the Constitution as the orders of the High Courts are. The argument that a writ of certiorari is an appropriate writ for correcting errors committed by an inferior authority or tribunal exercising judicial power, and that the High Court is not an inferior Court cannot in my judgment prevail. No adequate test of inferior status which would support a valid distinction between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue a writ of certiorari which may be issued by this Court in enforcement of a fundamental right whereas the subordinate Courts have not, will not warrant the distinction sought to be made on behalf of the respondents. I am therefore unable to agree that in the matter of issue of a writ of certiorari against the order of any Court, a distinction may be made between the order of the District Court or the Subordinate Court and an order of the High Court. The argument that the inherent power of this Court which may have existed prior to the Constitution must still be tested in the light of Art. 19(2) of the Constitution does not require any serious consideration. If a plea of infringement of a fundamental right under Art. 19 against infringement by a judicial determination may not be set up, in petition under Art. 32, it would not be necessary to consider whether on the footing that such a right is infringed by a judicial determination of the rights of the parties or an order made in aid of determination that the law which confers such inherent power of the Courts is within Art. 19(2). The function of Art. 19(2) is to save laws-existing laws or laws to be made by the State in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o equate the guaranteed rights declared by implication in all respects with the specific personal freedoms enumerated in Art. 19. It is somewhat striking that the Personal freedoms in Art. 19 are subject to reasonable restrictions which may be imposed by law, but the prohibitions in Arts. 20, 21 22 are absolute in terms. By enunciating the personal freedoms, under Art. 19(1) and setting up machinery for imposition of reasonable restrictions thereon, balance is sought to be maintained between the enforcement of specific rights of the citizens and the larger interest of the public. The freedoms declared by the implication of Arts. 20, 21 22 are on the other hand not liable to be tested on the touchstone of reasonableness. Our Constitution-makers thought that certain minimum safeguards in proceedings- criminal and quasi-criminal-Cannot in the larger interests of the public be permitted to be whittled down under any circumstances and on that account made the protection of Arts. 20, 21 22(1) absolute. The form in which the rights under Arts. 20, 21 22(1) are guaranteed and the absolute character of the injunctions against the authorities clearly emphasize the distinct and specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peech only incidentally and indirectly, it does not infringe Art. 19 (1) (a). This test was first laid down by Kania, C. J. in A. K. Gopalan v. State of Madras([1950] S.C.R. 88, 101.) and has been subsequently adopted in numerous decisions of this Court. See Ram Singh v. State of Delhi([1951] S.C.R. 451.) Express Newspapers (Private) Ltd. v. The Union of India([1959] S.C.R. 12,129-133.), Hamdard Dawakhana Wakf v. Union of India([1960] 2 S.C.R. 671, 690- 691,). Many laws incidentally encroach on the freedom of speech, but, judged by the test of the directness of the legislation, they do not infringe Art. 19 (1) (a). Section 54 of the Indian Specific Relief Act, 1877, empowers the Court to grant a perpetual injunction to prevent the breach of an obligation, and illustrations (h), (i), (v), (y) and (z) to the section show that the Court may restrain the publication of documents and information in breach of the fiduciary obligations of a legal or medical adviser, or an employee, the piracy of a copyright and other publications infringing the proprietary rights of the owner. Order 39, r. 1 of the Code of Civil Procedure, 1908, empowers the Court to grant a temporary injunction restraini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision is not open to attack on the ground that it infringes the fundamental right under Art. 19 (1) (a). I must not be taken to say that I approve of the impugned order. A Court of justice is a public forum. It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation. Long ago, Plato observed in his Laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all. The ancient idea found its echo in the celebrated case of Scott v. Scott([1913] A.C. 417,). Save in exceptional cases, the proceedings of a Court of justice should be open to the publi ..... 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