Whether Judiciary is Considered State under Article 12 of the Constitution
Authored By- Bulbul Patni
- The Constitution of India guarantees certain fundamental rights to the citizens of India in part III, which is referred to as the “Magna Carta of the Constitution”. These guaranteed rights under the Constitution of India are to be protected by the State, and in case the State fails, the citizens are given the right to claim them by way of filing a writ petition against the State.
- The concept of State has been discussed by many political thinkers and defined in different ways indifferent pieces of political and legal literature. After considering all the views, the Constitution makers drafted the definition of State and mentioned it in Article 12 of the Constitution.
- The term 'State' has been defined as the body politic as organized for supreme civil rule and government.” It can be affirmed that the definition of 'State' defined under Article 12 of the Constitution of India, not only includes the Legislative and the Executive Organs of the Union and the States, but also the local bodies such as municipal corporations, and the' other authorities' that includes' instrumentalities or agencies' of the State. But the word judiciary is not explicitly mentioned in Article 12. Does it mean that the 'judiciary' is not meant to be included in the concept of 'the State'?
- This question arises due to the most problematic expression under Article 12 is "other authorities" as this expression is not defined in the Constitution. Thus, it is for the courts to interpret this term and the definition of 'State.' As the wider this term is interpreted, the wider the ambit of fundamental rights would be.
- In this regard the objective of this paper is to find out can the Judiciary come under the ambit of 'State'?Also,this research paper is further divided into five parts. Part I deals with the meaning, scope and interpretation of Article 12 pertaining to the Judiciary. Part II discusses whether it is necessary to include Judiciary under the State? Part III deals with the question of whether the State includes Judiciary or not? Part IV provides the recommendations and critical analysis. Lastly, Part V provides the conclusion of the article.
Meaning, Scope and Interpretation of Article
12 Pertaining to the Judiciary
According to Article 12 of the Indian Constitution, the term 'State' 'includes' (i)the Central Government and State Governments, (ii) the Parliament of India, (iii) the State Legislatures, (iv) all local authorities, (v) other authorities within the territory of India. The terms such as 'includes,' 'other authorities' in Article 12 show that the scope of the definition is very wide. Now, the problem that arises is whether this definition of State also includes the Judiciary within its ambit or not. To deal with this, the broad interpretation of these terms is explained below with respect to the above question: -
The word 'includes' mentioned in Article 12 of the Indian Constitution implies that the definition is not exhaustive. In the case of Thalappalam Service Cooperative Bank Limited and Others v. State of Kerala and Othersalso,the court, while interpreting the 'public authorities,' defined the word 'includes' as prima facie extensive, which is used for broad interpretation. Hence the definition of State according to Article 12 includes not only Executive and Legislature but also the other instrumentalities of State within its definition. The non- mention of Judiciary does not indicate that the courts do not come under the definition of Article 12. The word 'includes ‘in Article 12 due to its wide interpretation enables the State to cover all three organs (executive, Legislature and Judiciary), and any narrowing down the ambit of definition would defeat the purpose of inserting the definition of Article 12.
- Other Authorities
- Article 12 was first introduced as Article 7of the Draft Constitution, where Dr.B.R. Ambedkar defined the scope of this article. He said,"the fundamental rights would be binding on every authority, and by the word 'authority'meant every authority that has the power to make laws or the power to have discretion vested in it."And the Judiciary also has the power to make laws.
- The term 'other authorities'in the Article 12 has been defined nowhere, neither in any of the statutes or laws nor in the Constitution of India. It refers to authorities who have the power to make rules and regulations. It does not include the institutions of local self- government as this term is mentioned explicitly in the definition. The interpretation of the article has caused a good deal of difficulty, so the judicial opinion has also changedfrom time to time—the meaning and scope of Article 12 is nowleft to the interpretation of courts.
- In the case of theUniversity of Madras v. Shanta Bai, the Madras High Court evolved one principle named 'ejusdemgeneris,' i.e., of the same kind. According to this principle, only those authorities which perform governmental or sovereign functions are covered under the expression of 'otherauthorities.'
- The court further held that the expression cannot include persons, natural or juristic, for example, unaided universities. However, this doctrine was rejected in the case ofUjjammavai v. State of U.P by the Supreme Court.The court held that the 'ejusdemgeneris' rule could not beresorted tointerpreting'other authorities.'As the bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis, the expression' other authorities' has no common genes under Article 12.
- In the case ofRajasthan Electricity Board v Mohan Lal, the court observed that the expression of "other authorities is so wide that it could have covered all authorities created by Constitution or State on whom power are conferred by law. "It is not necessary that those statutory authorities should perform the governmental or sovereign function
- As Supreme Court of India providesa more broad and liberal interpretation of "other authorities",it includes all those bodies or instrumentalities. By this broad interpretation of courts, it can be said thatthe Judiciary, which is one of the most important pillars of the Constitution, also comeswithin the expression of 'other authorities'given in the definition of State.
Why Is It Necessary to Include Judiciary
Under the State?
Since the Judiciary is considered as the guardian of fundamental rights, the question arises whether Judiciary can violate the fundamental rights of the individual or not. In many cases, it has been found that even the Judiciary can violate the fundamental rights of the people. If the Judiciary is included under the State, so it must also conform to the fundamental rights guaranteed under Part III of the Constitution.
The Judiciary can be capable of violating the Fundamental Rights of the citizens in two ways-
- Administrative functions are those functions that are performed during day to day working of the Courts, for example, the appointment of clerks, courtroom officers, and other members, which help in the functioning of a court. These functions are covered under the ambit of State, and hence, the functions of appointment and employment by the Judiciary can violatefundamental rights.
Various Constitutional scholars such as H.M. Seervai believe that the Indian Judiciary should also be the part of the'State' defined under Article 12. The reasoning is that in various articles, the Judiciary has been granted the powers of the 'State,' and the evidence can be seen in articles 145 and 146 of the Constitution of India.
- The Supreme Court under Article 145 has the power to make rules for regulating the practice and procedure of Courts.
- The Supreme Court under Article 146has the power to make appointments with its staff and servants and decide their service conditions.
- Judicial Decisionsare those functionswhere thecourts passed the judgments in the cases of writ petitions or fundamental rights violation cases. It has been defined in Article 141 of the Indian Constitution that the lawsmade by the Supreme Court to be regarded as the law of the land and, therefore, once a judgment passed by the courts would be capable of affecting the Fundamental Rights of Citizens.
- However, according to the reasoning of the Supreme Court, no judicial proceedings could be said to violate any of the Fundamental Rights. Only in the case of administrative or similar functions could a remedy be sought for any violation of fundamental rights.
- In consonance of the said judgment,supreme in the case of Rupa Ashok Hurra v. Ashok Hurra, ruled that no judicial proceeding could be said to be violative of any of the Fundamental rights, and it is a settled position of law that the superior courts which provide justice did not fall under the ambit of 'State' or 'Other Authorities'in Article 12. It was further observed by the court again in the case ofRiju Prasad Sarmah v. the State of Assam.
- Similarlyin the case of Naresh Shridhar Mirajkar v.State of Maharashtra, Supreme Court observed that the Judiciary could be liable as a State when it is exercising any of its administrative power or at the time of rulemaking power and anyone can claim the breach of his fundamental rights, but when Judiciary is exercising itsjudicial power, then it is not considered as State.Therefore, it depends on the nature of the function that the body is exercising.
Further the court held that the courts may also be sued for violation of the fundamental right but only to the extent when they are performing their administrative function. The point when the Judiciary began their judicial functions, it does not violate any fundamental right and cannot be taken as "State." This is because of the distinction between the judicial functions of the courts and its non-judicial functions.
- Further, the court reiterated the same in A.R.Antulay v. R.S.Naik, wherein the court held that“If incidentally or indirectly, the judicial order of a competent court affects the fundamental rights of a person, then the remedy against such a mistake is not to allege a violation of the fundamental rights and approach the courts under Article 32 or 226, but to allege that the decision of the court is not consistent with the fundamental rights and approach the appropriate court with such allegations in appeal or review. "With this, the court further held that, judiciary in exercising judicial functions does not come within the definition of ‘state’ under Article 12.
- Therefore, in the light of the abovejudgments, the Supreme Court is also considered to be necessary to include administrative powers of the Judiciary within the ambit of State. But the position while adjudicating legal disputes is not settled till now, and to have judicial decisions in the ambit of State or not is still a question.
Whether The 'State'Includes 'Judiciary' Or not?
From the above discussion, the Judiciary is also capable of violating the fundamental rights of citizens. Now the question comes that whether the 'State' includes the Judiciary within its definition defined under Article 12. This question was answered by the courts in its various judgments, which are discussed below-:
- In the case of Riju Prasad v. the State of Assam, the Supreme Court of India discussed this controversy as to whether the Judiciary falls within the Article 12 of the Constitution of India or not and held that"The definition of 'the State' under Article 12 is contextual depending upon all relevant facts including the concerned provisions of Part III of the Constitution. The definition is inclusive and not exhaustive. Hence, the omission of Judiciary when the Government and Parliament of India, as well as Government and Legislature of each State, has been included is conspicuous but not conclusive that Judiciary must be excluded."
- In the case of S.P. Gupta v. Union of India, the court evolved the doctrine of separation of powers and held that- "If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the Judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective...The Judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive."
- By this doctrine it is concluded that the State consists of three wings i.e., the legislature, the executive and the judiciary. The legislature which enacts the laws, the executive that implements the laws and the judiciary which interprets the laws. The third wing of the State, which is the Judiciary, is considered as one of the weakest wings of the State and is termed as the 'watchdog' of the Constitution. It checks that the Legislature and the executive work according to the mandate of the Constitution, which is the 'will of the people of the country.'
- These two judgements make it clear that the Judiciary is considered as State under Article 12 of the Constitution.
THE JUDICIARY IN ACCORDANCE WITH PART IV OF THE CONSTITUTION
- In the case of Common Cause v. Union of India, a two-judge bench of the Supreme Court, 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."
- The rationale of the courts for the Judiciarywhile dealing the Part IV of the Constitution with the State creates an inconsistency withthe decisions concerning Part III. The opinions of the courts have differed about the Judiciary as a State in the casesof discussing Part IV.
- InState of Kerala v. N.M. Thomas,the Courtinterpreted that the Judiciary is 'State' within Article 12 and held that: "Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood, but it should equally inform and illuminate the approach of the Court when it decides as to the Court also is 'State' within the meaning of Article12 and makes the law even though interstitially, from the molar to the molecular."
- So, it can be interpreted that the Judiciary is a 'State' for Part IV of the Constitution. However,the position of the courts is still ambiguous when Part III is concerned. However, the view taken above provides contrary to what has been stated under Article 36 of Part IV of the Constitution, which states that"the State has the same meaning as in Part III." This showsa paradox in the judicial approach of the court. The 'State' thatis defined for the purpose of Part III should be considered thesame as it has been defined for Part IV of the Constitution.However, the Judiciary is considered as State only for Part IV of the Constitution. The administrative functions of the Judiciary alone are considered as State.
- So,the whole Judiciary does not come under the State.Only when it is exercising the administrative functions and dealing with Part IV of the Constitution, is it categorized as State under Article 12.
The National CommissionReview of Working of the Constitution (NCRWC) has observedthat in Article 12, the word 'other authorities'means the authorities whose functions are related to that of a public nature. On the other side, the courts were established for deciding and interpreting the laws, which are also related to the public sphere; therefore, Judiciary would fall within the ambit of 'State' under Article 12 under this limited definition. Also, in the U.K. Human Rights Act 1998, the definition of public authority in Section 6(3) (b) includes those persons whose functions are of a public nature. Therefore, NCRWC recommendedthat Judiciary can also be added to the definition of 'State' within Article 12.
- From the above discussion, only the administrative powers of the Judiciary come under the definition of State. However, to include judicial decisions in the ambit of State is not right. "As it is a very complicated matter because if we hold the guardian of fundamental rights is accountable for violation of rights for its judicial decisions then,the position and rationality of the Judiciary could be questioned, and its sanctity would be destroyed."(Kalyani, 2006).
- If we can hold the judges liable for their decisions, this might also increase the chance of violations of minority rights in some cases.There are some decisions where the fundamental rights might have been violated. We should not bring those decisions within the ambit of the State;otherwise, there might be a situationwhen most of the judgments of courtsare challenged, and it would destruct the order of law.
- It is very important to note that our constitutional scholars i.e.,H.M. Singhvi, have also recommended that we should not bring the judicial functions of the Judiciary within the ambit of the State; otherwise, it will create chaos. If the people started questioning the judgements of the Court, it would lead to judgements made with the motive of satisfying public opinion.
- But it should also be considered that there is no established technique or concept as to how the judgments of the Supreme Court are to be prevented from the violations of rights, and even if the concept is developed to check the judgment, then who reviews those judgments of the Supreme Court?
- The Constitution of India not only protects the fundamental rights of the citizens, but it also imposes the duty on the State to ensure the protection of those fundamental rights of citizens. The court has widened the scope of the term 'State'through its interpretations that it includesthe variety of statutory and non-statutory bodies under its umbrella. It does not, however, mention the Judiciary explicitly under Article 12 of the Constitution.
- So, to bring the Judiciary within the scope of Article 12 makes it contrary to the objective of the Judiciary, who is the guardian of fundamental rights, as it would be capable of acting in contravention of those Fundamental Rights. Now it is well established that the non-judicial functions of the Judiciary only come within the meaning of State so that it can easily fulfil its objective of protecting the rights of citizens without any intervention. However, challenging a judicial decision under the writ jurisdiction of superior courts based on the violation of fundamental rights remains open to debate.
- Black's Law Dictionary, Sixth Edition (Centennial Edition 1891-1991), p. 1407
- The General Clauses Act 1897, s 3(58); The Constitution of India 1950, art.
- Thalappalam Service Cooperative Bank Limited and Others v. State of Kerala and Others  16 SCC 82
- Ministry of Law & Justice Government of India, NCRWC Report 2002,
- Ramnath Kalyani, ‘Guarding the Guards: The Judiciary as State within the Meaning of Article 12 of the Constitution’ Student Bar Review, vol. 18, no. 2, 2006, pp. (75)(94) JSTOR
The General Clauses Act 1897,S 3(58); The Constitution of India 1950, Art. 3.
Thalappalam Service Cooperative Bank Limited and Others v. State of Kerala and Others  16 SCC 82.
Samaraditya Pal, ‘India’s Constitution Origins And Evolution’ 415 (1st Ed., 2014).
 University of Madras v. Shanta Bai AIR  Mad 67.
Ujjammavai v. State if U. P  AIR 1621
 Rajasthan Electricity Board v Mohan Lal, AIR  SC 1857.
H.M. Seervai, Constitutional law of India.
The Constitution of India1950, Art. 145
The Constitution of India1950, Art. 146
The Constitution of India1950, Art. 141
 Rupa Ashok Hurra v. Ashok Hurra AIR  SC 1771.
Riju Prasad Sarma etc. etc. v. State of Assam & Ors.  42 SCD 764.
 Naresh Shridhar Mirajkar v. State of MaharashtraAIR  SC 1;  3 SCR 744.
Riju Prasad v. State of Assam  SC 613.
 S.P. Gupta v. Union of India AIR  SC 149.
Common Cause v. Union of India 7 SCC 1.
State of Kerala v. N.M. Thomas  1 SCR. 906.
The Constitution of India 1950, art 36.
Ministry of Law & Justice Government of India, NCRWC Report 2002,
U.K. Human Rights Act 1998, s 6(3)(b).