DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
SESSION: 2018-2019

FINAL DRAFT
SUBJECT: Constitutional Law- I
AREA OF RESEARCH: Constitution
“Whether Judiciary is included within the definition of the ‘State’ under”
Article 12 of the Constitution.

UNDER THE SUPERVISION OF: SUBMITTED BY:

DR. ATUL KUMAR TIWARI HARSH GAUTAM
Associate Professor (Law) Enrolment No: 170101061
Department of Legal Studies BA.LLB(Hons.)-III Semester
Contents
ACKNOWLEDGEMENT .................................................................................................................... 3
INTRODUCTION................................................................................................................................. 5
THE DEFINITION OF JUDICIARY UNDER ART. 12 IS INCLUSIVE IN NATURE. .............. 6
CONSIDERING ARTICLE 13 WITH READING OF ARTICLE 12. ............................................ 6
RULE MAKING POWER OF THE JUDICIARY AND OTHER NON-JUDICIAL
FUNCTIONS PERFORMED BY THE COURTS. ............................................................................ 6
DOCTRINE OF INSTRUMENTALITY. ........................................................................................... 7
THE NEED TO BRING THE JUDICIARY WITHIN THE AMBIT OF ARTICLE 12. .............. 8
JUDICIAL ORDERS: SUBJECT TO CONTRAVENTION OF CONSTITUTIONAL
REMEDY. ............................................................................................................................................ 10
PART III IS NUGATORY IF JUDICIARY IS NOT INCLUDED WITHIN THE STATE. ....... 11
CONCLUSION ................................................................................................................................... 12
BIBLIOGRAPHY ............................................................................................................................... 13
 ACKNOWLEDGEMENT

I owe my gratitude of thanks to all those people who helped and

supported me during the analysis of the case.
Words are inadequate in offering my deep sense of gratitude to my
Professor for her precious guidance.

With her enthusiasm, her inspiration and her significant efforts to

explain things clearly and simply, she helped throughout my analysis
of work with lots of encouragement, sound advice, and good
innovation.

I would also like to thank the librarians of Dr. Madhu Limaye Library
who extended their assistance to me by helping me out consult the
relevant books.

I know that despite my best efforts some discrepancies might have

crept in which I believe my humble Professor would forgive.

Thanking You All.

Harsh Gautam
INTRODUCTION
The Constitution of India is the sovereign law of the land. It promises justice, liberty and
equality to the people of India. For this, the Constitution carries the basic notion of rule of law
i.e. limited government, and provides the structure, procedures, powers, and duties of
government institutions, and sets out fundamental rights, directive principles, and the duties of
citizens. The whole constitutional scheme prohibits all the three organs of State i.e. legislature,
executive and judiciary, from acting against the spirit of the Constitution of India. The
Constitution of India prohibits the State from interfering with the individuals‟ fundamental
rights. The State cannot act arbitrarily, irrationally, and unfairly. The State cannot impose
unreasonable restrictions on an individual’s fundamental freedoms. To limit someone’s right
to life and personal liberty, the State must adopt just, fair, and reasonable procedure.1 The State
is under obligation to act fairly without ill-will or malice in fact or in law.2 However, all such
constitutional remedies are available against the State’s action only. In other words, the
fundamental rights can be enforced against the State only. So, the need to expand the definition
of State under Article 12 is necessary. The word “State” under Article 12 as to be interpreted
as per the changing times and which ensures that Part-III be applied. Article 12 defines the
term “State” as used in different Articles of Part III of the Constitution. It says that unless the
context otherwise requires the term “State” includes the following: -

1. The Government and Parliament of India

2. The Government and the Legislature of each of the States

3. All local or other authorities within the territory of India

Judiciary is the prominent organ of the State. Legislature frames the law and executor organ
implements them and enjoys vast power of delegated legislation as well. One of the most
important functions of Judiciary is to check invasion of fundamental right by these two organs
and their instrumentality. The definition of State under Article 12 of the Constitution does not
explicitly mention the Judiciary. Hence, a significant amount of controversy surrounds its
status vis-a-vis Part III of the Constitution.

1
Maneka Gandhi v Union of India AIR 1978 SC 597.
2
Kalabharati Advertising v Hemant Vimalnath AIR 2010 SC 3745.
THE DEFINITION OF JUDICIARY UNDER ART. 12 IS INCLUSIVE IN NATURE.
The judiciary although an organ of the State like Executive and Legislature is not specifically
mentioned in Article 12. So, the question often arises whether or not judiciary is state under
Article 12. What if the Court violates the Fundamental Right enshrined in our constitution with
utmost care. The controversy over this matter often arises whether the omission is deliberate
or not. The judiciary over this question have come to conclusion that the omission of not
including judiciary under Article 12 is deliberate. Some take up the stand that since judiciary
has not been specifically mentioned in Article 12, it is not State.

To begin with we have the definition of 'State' in Article 12. That definition does not say fully
what may be included in the word 'State' but, although it says that the word includes certain
authorities, it does not consider it necessary to say that courts and Judges are excluded. The
nature of the definition in Article 12 is expressly inclusive but not exhaustive, i.e., the powers
of the court can be included within in the definition of the state.

CONSIDERING ARTICLE 13 WITH READING OF ARTICLE 12.

The reason is made obvious at once, if we consider Article 13(2). There the word 'State must
obviously include 'courts' because otherwise 'courts' will be enabled to make rules which take
away or abridge fundamental rights.3 In the Constituent Assembly, concerns regarding the
textual ambiguities in Article 12, and in particular, the meaning of the phrase „other
authorities‟ were raised. It was suggested that leaving judicial bodies out of the purview of
Article 12 may lead to the conclusion that “even a Magistrate… might pass an order, or make
a notification abridging the rights that are conferred under sub-clause (a) of clause (1) of Article
13.”4

RULE MAKING POWER OF THE JUDICIARY AND OTHER NON-JUDICIAL

FUNCTIONS PERFORMED BY THE COURTS.
If looked at the provisions of the Constitution under Article 12, there is no specific mention of
the Judiciary to make rules. However, if we look at Articles 145 and 146 of the Constitution,
the Supreme Court has power to make rules to regulate practice & procedure of courts, appoint
its staff and decide its service conditions, which in turn are government services. Hence, it
performs the role of the State.

3
Premchand Garg v. Excise Commissioner, U.P., Allahabad, 1963 AIR 996.
4
Dr. J. N. Pandey, The Constitutional Law of India, 49th Ed., Central Law Agency, at p.59.
To further understand the expansion of the term “other authorities” under Article 12, it is
necessary to trace the origin and scope of Article 12 of the Constitution. It refers to authorities
other than those of local self-Government, who have the power to make rules, regulations, etc.,
having the force of a law. The interpretation of the term ‘other authorities’ in Article 12 has
caused a great difficulty and judicial opinion has undergone changes over time. Thereby the
most debatable topic of the article is the crux of authorities covered in ambit of “other
authorities” in article 12. The meaning and scope of this could be left only to the interpretation
of courts. It could be observed that “other authorities” could be authorities of like nature5 i.e.
Ejusdem Generis. However, this doctrine was rejected by Supreme Court and it was observed
that “Ejusdem Generis rule could not be restored in interpreting this expression”. There is no
common genes running through these named bodies nor can these bodies so placed in one
single category on any rational basis6 and thus there is no common genes in ‘other authorities’
under Article 12.7 The expression of “other authorities is so wide in itself that it could have
covered all authorities created by constitution or state on whom power are conferred by law. It
is not necessary that statutory authority should be engaged in performing governmental or
sovereign function.8 Supreme Court of India came up with more broad and liberal interpretation
of “other authorities” so as to include all those bodies or instrumentalities which are though not
created by the constitution or by a statute of government. They evolved the Doctrine of
Instrumentality.

DOCTRINE OF INSTRUMENTALITY.
The ambiguities laid to the establishment with contradicting interpretation were given a kind
of stability with the evolution the doctrine so as to provide a better interpretation. Therefore,
to provide the clear and liberal interpretation the supreme court in the case of Ramana
Dayaram Shetty v International Airport Authority of India9:it held pointed out that the
corporations acting as instrumentality or agency of government would obviously be subject to
the same limitations in the field of constitutional or administrative law as the government
itself, though in the eyes of law they would be distinct and independent legal entities. Held
that if a body is an agency or instrumentality of the government it may be an authority in art.

5
University of Madras v Santa Bai AIR 1954 SC 67.
6
Pandey, JN, “The constitutional law in India”, Central Law Agency,49th edition pg. 60.
7
Housing Board v. H.H.B.E.U., AIR 1996 SC 434 (para. 52).
8
Rajasthan Electricity Board v Mohan Lal, AIR 1967 SC 1857.
9
AIR 1979 SC 1628.
12. The court also laid down few of the test which can test that the authority can fall within
the limit of authority in article 12 of the constitution. These tests are as follows:

1. “If the entire share capital of the corporation is held by government, it would go a long
way towards indicating that the corporation is an instrumentality or agency of government.”

2. The existence of “deep and pervasive State control may afford an indication that the
Corporation is a State agency or instrumentality.”

3. “It may also be a relevant factor…whether the corporation enjoys monopoly status which
is State conferred or State protected.”

4. “If the functions of the corporation are of public importance and closely related to
governmental functions, it would be a relevant factor in classifying the corporation as an
instrumentality or agency of government.”

5. “Specifically, if a department of government is transferred to a corporation, it would be a

strong factor supportive of this inference” of the corporation being an instrumentality or
agency of government.

However, Court said that these tests are not conclusive but illustrative only and will have to
be used with care and caution.

Since, Courts like any other organ of States are created by statutes they share characteristics of
State. They have to adhere to the standards prescribed by Constitution and the appointments of
Judges are done by President. Also, Judges receives emoluments from the Consolidated Fund
of India.

From the above, it is seen that the intention of the Constitution framers in incorporating this
Article was to treat such authority which has been created by law and which has got certain
powers to make laws to make rules and regulations to be included in the term "other authorities"
as found presently in Article 12. Thus, the above few characteristic features which brings
Judiciary under the cover of State. Court is impliedly covered under "other authorities" the
phrase present in Article 12.

THE NEED TO BRING THE JUDICIARY WITHIN THE AMBIT OF ARTICLE 12.
Judiciary is the organ of the State that decides the contours of the Fundamental Rights. Their
determination, of whether an act violates the same, can be right or wrong. If it is right then the
Citizen’s right is safeguard and what happens if it is wrong? Does this not affect the
fundamental rights of the citizen?

In the changing time, it is not wrong to say that the Judiciary is capable of acting in
contravention of Fundamental Rights. So, the argument is that the judiciary should be brought
under the ambit of State. This would clear the way to hold judges in their judicial capacity to
be held accountable for violation of the Fundamental Rights.

Judiciary can come under the umbrella of State or not it depends upon the distinction between
the judicial and non-judicial functions of the Courts. If the Court is exercising non-judicial
functions, in the exercise of its statutory rule making powers and makes rules which
contravenes the Fundamental Rights of the citizens, the remedy is available under Article 32
and 226. So, under this function Judiciary is a State. The non-judicial function can be statutory-
rule making power or appointment of officer etc. but when the Court is exercising its judicial
function then what it purports to do is to decide the controversy or to determine scope of
Fundamental Right vis-a-vis legislative and Executive action.

In the decided case of Naresh v State of Maharashtra10, 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.]

10
1966 (3) SCR 744.
Also, in A R Antulay v R S Nayak11, the Court held that a court can't pass an order contrary to
Fundamental Rights. The question there was whether directions issued by the High Court
singling out the petitioner’s prosecution for speedier trial violated his Article 14 and Article 21
rights. Seemingly departing the trend evidenced above, the Court held:

“In our opinion, we are not debarred from re-opening this question and giving proper directions
and correcting the error in the present appeal, when the said directions on 16th February, 1984,
were violative of the limits of jurisdiction and the directions have resulted in deprivation of the
fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution.”

In former case, the court in a way accepts that it is presumably a State and in latter case, Since
FR is exclusively about relationship b/w State and Individual12, this proves the point that Court
is a State. In fact, so far as the guarantee of equal protection in Article 14 is concerned, our
Supreme Court, in the early case held that any State action, executive, legislative or judicial,
which contravenes Article 14, is void.13 Since fundamental rights are only available against the
state and the precedent shows that the Judiciary is capable of violating Fundamental Rights, it
should be brought within the ambit of Article 12.

JUDICIAL ORDERS: SUBJECT TO CONTRAVENTION OF CONSTITUTIONAL

REMEDY.
The Constitution bench of the Supreme in Ashok Rupa Hurra14 felt no hesitation in
concluding with little reasoning that “superior courts of justice do not also fall within the
ambit of State or other authorities under Article 12 of the Constitution.” If this is correct, it
must follow that the judiciary is incapable of violating Part III rights.

Challenging a judicial decision which has achieved finality, under the writ jurisdiction of
superior courts on the basis of violation of fundamental rights is a constitutional remedy. If
the fundamental rights of a person are being violated by any decision of the Supreme court
then he has the right to file a case under article 32 of the Constitution. If the citizen wins, then
the Supreme court is mandated to revert its decision regarding the individual.

Almost consistently, courts have dismissed petitions that attempt to impugn judicial orders
under Article 32. Prima facie, this must mean that judicial orders are not subject to scrutiny

11
AIR 1988 SC 1531.
12
P D Shamdasani v. Central Bank of India, 1952 AIR 59.
13
Budhan v State of Bihar, AIR 1995 SC 191.
14
(2002) 4 SCC 388.
on Part III grounds. One of the earliest illustrations is the decision of a seven-judge bench of
the Supreme Court in Ujjam Bai v State of Uttar Pradesh.15 A nine-judge bench in N. S.
Mirajkar v State of Maharashtra16 followed this decision. A petition under Article 32
challenging a gag order passed by Mr. Justice Tarkunde of the Bombay High Court was held
to be not maintainable in that case. This trend is also evidenced by Triveniben v State of
Gujarat17 . Dismissing a petition under Article 32, the Court there opined that “it will not be
open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the
final verdict reached by a competent court convicting and sentencing the condemned
prisoner.” It is unnecessary to duplicate other instances here, but further affirmation of this
view may be found in, Mohd. Aslam v Union of India18 and Khoday Distilleries Ltd. v
Registrar General, Supreme Court of India.19 All of these were attempts to challenge judicial
orders by way of petitions under Article 32.

In fact, through such interpretation of the “State” Supreme Court changed the meaning, scope,
ambit of Article 12 and reduced efficacy of Article 32 of the Constitution, beyond the
Constitutional provisions that Supreme Court or Judges of the Supreme Court cannot be beyond
the ambit of the “State” under Article 12 of the Constitution.

It is ample clear that even after Supreme Court or Judges of the Supreme Court would be hold
within the ambit of the “State” under Article 12 of the Constitution, the Powers or Authority
of the Supreme Court under Article 13 or 32 of the Constitution, being part of basic structure
of the Constitution cannot be affected.

PART III IS NUGATORY IF JUDICIARY IS NOT INCLUDED WITHIN THE STATE.

Finally, it appears that many provisions in Part III are, at least in part, directed at judicial bodies.
A good example is the power of the Supreme Court under Article 32 to issue the writ of
certiorari. Since that power can only be exercised against judicial or quasi-judicial bodies, the
view that judicial orders fall outside the purview of Part III renders it nugatory.20 Another set
of similar examples may be found in the rights guaranteed by Article 20 of the Constitution.
Consider for instance, the right not to be “convicted of any offence except for violation of a

15
1962 AIR 1621.
16
Supra note 5.
17
1989 AIR 13 35.
18
1996 AIR 1611.
19
1996 SCC (3) 114.
20
H. M. Seervai, Constitutional Law of India: A Critical Commentary, 4th Ed., p. 394.
law in force at the time of the commission.” Since conviction cannot but be by a judicial
authority, it is clear that the addressee of the right under Article 20(1) is the judiciary.

CONCLUSION
In the light of these reasons, it is submitted that the mere fact that “judiciary” does not find
express mention in Article 12 should not lead one to the contrary conclusion. A perusal of cases
from Prem Chand Garg21 to Rupa Ashok Hurra22 show that the trend is mostly titled in favour
of rectifying mistakes that it had made, under a writ petition under Article 32, even if it is after
issuing a categorical statement to the effect that judicial decisions which have achieved finality
are not open to question.

Hence, it can be inferred that since it has been recognized that judicial orders may contravene
fundamental rights, the Judiciary too comes implicitly within the meaning of State under
Article 12. It is also widely accepted that certain fundamental rights have been held to be
applicable in the case of Judiciary as well. It is therefore eminently desirable to bring the
Judiciary, itself a creature of the Constitution, under the purview of Part III, so that the highest
of constitutional ideals are realized.

21
Supra note 15.
22
Supra note 14.
BIBLIOGRAPHY
 Dr. J. N. Pandey, The Constitutional Law of India, 49th Ed., Central Law Agency.
 Constituent Assembly Debates, Vol. VII
 H. M. Seervai, Constitutional Law of India: A Critical Commentary, 4th Ed.
 Kalyani Ramnath, Guarding the guards: The Judiciary As State Within The Meaning
of Article 12 of The Constitution.
 Rohit Bafna, Article 12: Critical Analysis and Judicial Interpretation.