Does judiciary come under “State” as defined by Article 12 of Indian Constitution?

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Does judiciary come under “state” as defined by Article 12 of the Constitution of India? Is Supreme Court covered within the meaning of “state” under Article 12 of the Constitution?

Article 12 is reproduced below:

12. Definition.—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.”

There is a lot of confusion on the issue as to whether “state” includes judiciary within the meaning of Article 12. Even the Supreme Court itself has also sometimes got confused on this issue. Let me state the correct legal position in this regard. I would like to qualify my answer to this question like this:

  • The administrative side and the quasi-legislative (rule-making) side of the judiciary are “state” within the meaning of Article 12 of the Constitution of India.
  • However, the judicial side of the judiciary is NOT “state” within the meaning of Article 12 of the Constitution.

Let me explain the reasons for my above conclusion. You will not find this conclusion in the judgments in so many specific words, as I have expressed above; but, I have derived it from the Supreme Court judgments only.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, a 9-judge bench of the Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication cannot affect the fundamental rights of the citizens since what the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. Therefore, such judicial decision cannot be challenged under Article 13. [This is the case of judiciary acting in its judicial capacity.]

But, in the same case, the Supreme Court also observed that it is plain that if a party desires to challenge any of the Rules framed by the Supreme Court in exercise of its powers under Article 145 on the ground that they are invalid, because they illegally contravene his fundamental rights, it would be open to the party to move the Supreme Court under Article 32. It was further held that such a challenge is not against any decision of the Supreme Court, but against a Rule made by it in pursuance of its rule-making power. [This is the judiciary acting in the so-called quasi-legislative capacity, i.e., in the rule-making capacity.]

Similarly, it is a common knowledge that orders passed by the courts in their administrative capacity (including by the Supreme Court) have routinely been challenged as being violative of fundamental rights. I have personally done that in my capacity as a lawyer. [This is the judiciary acting in its administrative capacity.]

So, you can note that a judicial decision of a court cannot be challenged as being violative of fundamental rights. But, an administrative decision or a rule made by the judiciary can be challenged as being violative of fundamental rights, if that be supported by facts.

That is why I have said that judiciary while acting in the judicial capacity is NOT “state” within the meaning of Article 12. But, if the judiciary is acting in it administrative capacity or quasi-legislative (i.e., rule-making) capacity, then it is “state” within the meaning of Article 12 of the Constitution.

I may point out that in another case, namely, Ashok Kumar Gupta v. State of Uttar Pradesh, (1997) 5 SCC 201, the Supreme Court has held that Article 13 deals with statute law and not with the law declared by the courts, or with the directions or orders made by the Supreme Court under Article 142.

However, recently, in the case of Common Cause v. Union of India, (2015) 7 SCC 1 : AIR 2015 SC 2286, a two-judge bench of the Supreme Court, without properly discussing the issue, observed that:

“Part IV of the Constitution is as much a guiding light for the Judicial organ of the State as the Executive and the Legislative arms, all three being integral parts of the “State” within the meaning of Article 12 of the Constitution.”

I may respectfully submit that the above observation was wrongly made by a 2-judge bench of the Supreme Court without properly explaining the nuances of the statement, as I have explained above on the basis of a 9-bench judgment of the Supreme Court.

In my considered opinion, the correct legal position is what I have stated above.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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