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This article is written by Yash Jain, a third-year student of Institute of Law, Nirma University. The article discusses the role of the judiciary in the Indian Constitution. Furthermore, it elucidates whether State includes the judiciary, through landmark judgements.  


The Indian Polity is divided into three segments namely Legislature, Executive and Judiciary. The Legislature and Executive go hand-in-hand but Judiciary is independent in itself. Indian Judicial System is one of the oldest judicial systems in the world. Indian Judiciary plays an important role in safeguarding the interests of people and providing a platform for speedy justice to them. The highest court of Judicial System in India is the Supreme Court. It is the apex court in India and is the custodian of the Constitution. Justice should be easily accessible to the people.   

Characteristics of the Judiciary

1. One of the Oldest Judicial Systems in the World

India’s judicial system is one of the most prominent judicial systems in the world. The judicial structure of the country is used to interpret and apply the laws of the land. Judiciary helps in settling disputes between the parties amicably. The Doctrine of Separation of powers gives judiciary independence to interpret laws according to them. Judiciary does not make statutory laws for the country but interprets and applies the laws in the country.    

2. Single and Integrated Judicial System

In India, there is an integrated and unique judicial system that prevails in the Constitution. Supreme Court is on the top of the integrated hierarchy. After the Supreme Court, there are the High Courts at the State Level. Under the High Courts, there is a well-organised hierarchy consisting of district courts and lower courts. In India, there is one setup that enforces both the Central and the State laws. India has integrated judiciary because India has a federation with a strong centre where the centre has more power than the state.

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The features of the integrated judiciary are, an individual has a right to appeal to a higher court when he is not satisfied with the decision of the lower court. The fact that the high court judges are appointed by the President of India is a feature of the integrated judiciary. The salaries of high court judges are also fixed by the parliament is also a feature of the integrated judiciary.

3. Independence of Judiciary

The USA has adopted a system of separation of powers to ensure the independence of the judiciary. But in constitutional systems based on the concept of Parliamentary sovereignty, the adoption of separation of powers is ruled out. This is the case in England. This is also partly the case in India, for in India the doctrines of Parliamentary and constitutional sovereignty are blended together. The meaning of independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external force.  

Need for the Independence of the Judiciary

  • To check the functioning of the organs.
  • Interpreting the provisions of the constitution.
  • To act in a fair and unbiased manner.

Importance of Independence of the Judiciary

The meaning of the independence of the judiciary is still not clear after years of its existence. Our Constitution by the way of the provisions just talks of the independence of the judiciary but it is not where defined what actually is the independence of the judiciary. The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which talks of the independence of the judiciary as an institution from the executive and the legislature.

The principle of independence of the judiciary has been laid down in various human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (Article 14). There are also a number of UN Standards and European Framework.

4. Judicial Activism

The term Judicial Activism originated in the United States. Judicial Activism in the middle of the 20th century had positive implications as courts were viewed as upholding democratic rights of the people. The concept of judicial activism grew rapidly over the years and attained a huge legitimacy among the Indian people in the context of unrestrained behaviours of legislative and executive organs of the government.

Several scholars praised efforts of judges in the protection of civil rights. Judicial activists were distinguished civil rights activists. Recently, some people have described judicial activism as a judge misusing its authority since democracies thrive on the equal separation of powers among judiciary, executive and legislature. Excessive activism on the part of the judiciary is sometimes seen as stepping on to the rights of the other arms of the government.

Judicial Activism is defined as an approach to the exercise of judicial review or a description of a particular judicial decision in which the judge is willing to decide on constitutional matters and to invalidate legislative or executive action. Judges may be called activists for both permitting government action or forbidding it.

Within the framework of democratic ideals, there is a fundamental need for people’s participation to influence government policies and programmes in the pursuit of good governance. Indian Judiciary by pioneering judicial activism played a role of an activist to promote the interests of marginal sections.

5. Judicial Review

The concept of Judicial Review was propounded in the United States of America in Marbury v. Madison case of 1803 whose judgement was delivered by the then Chief Justice of the Supreme Court of America, John Marshal. However, when we talk about it in India, the power of Constitutional Review has been within the Supreme Court and High Court through the Constitution itself. Also, the Supreme Court of India has declared the Judicial Review power as a basic structure of the Constitution which cannot be taken away even by way of Constitutional Amendment. If during the Judicial Review, any legislative enactment or executive order of either State Government or Central Government is found to be in violation of the Constitution it will be declared as invalid.

Types of Judicial Review in India

  • Judicial Review of constitutional amendments.
  • Judicial Review of legislation of the Parliament and state legislatures and subordinate legislation.
  • Judicial Review of administrative action of the Union and the State and authorities under the State.

Importance of Judicial Review in India   

  • Judicial Review helps in maintaining the supremacy of the Constitution.
  • Federal Equilibrium that is the distribution of power between the Centre and the States is maintained.
  • Fundamental Rights of the Citizens are protected.  

Judgements in various cases propounding the essence of Judicial Review:

  1. A.K. Gopalan v. State of Madras [1]

“In India, it is the Constitution that is supreme and that a statute law to be valid, must be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.”

  1. State of Madras v. V.G. Row [2]

“Our constitution contains express provisions for judicial review of legislation as to its conformity with the constitution. This is especially true as regards the Fundamental Rights, to which the court has been assigned the role of the sentinel on the qui vive.”

  1. Kesavananda Bharati v. State of Kerala [3]

“As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened.”

  1. Minerva Mills v. Union of India [4]

“It is the function of the judges, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will then become uncontrolled.”
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  1. L. Chandra Kumar v. Union of India [5]

“The judges of the Supreme Court have been entrusted with the task of upholding the Constitution and to this end have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations.

  1. S.S. Bola v. B.D. Sardana [6]

“The founding fathers very wisely, therefore, incorporated in the constitution itself the provisions of judicial review so as to maintain the balance of federalism, to protect the fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful weapon for availability and enjoyment of equality, liberty and fundamental freedoms and to help to create a healthy nationalism. The function of judicial review is a part of the constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs of the time.”    

6. Interpreter of the Constitution

The constitution of India is the largest written constitution of the world. Supreme Court acts as an interpreter of the Constitution of India. It is the highest authority to interpret the Constitution. Supreme Court’s decision will be binding on all lower courts. The constitutional makers only made the constitution but did not interpret it. The job of interpreting the constitution was left on the judiciary. Constitution which is a sacred document of India, the task of interpreting it is on the judiciary. Judiciary by analysing statutory laws and provisions interprets the Constitution. Interpretation of the Constitution which in itself is a herculean task, the judiciary has, again and again, has set precedents for the interpretation of the Constitution.   

7. Guardian of the Fundamental Rights

Fundamental Rights are the basic rights that every person in the country attains from birth. Fundamental rights are guaranteed in Part III of the Indian Constitution. There are six fundamental rights recognised by the Constitution of India. They are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. Indian Judiciary acts as a guardian of the rights and freedoms of the people. If a fundamental right of a person is violated he can approach the Supreme Court or a High Court. The Right to Constitutional Remedy helps the individuals to protect their rights by seeking protection from the courts. Supreme Court can issue a writ under Article 32 of the Constitution whereas the High Court can issue a writ under Article 226 of the Indian Constitution.

8. Public Interest Litigation System

The concept of Public Interest Litigation was introduced in India in 1860 by P.N Bhagwati and Krishna Iyer. Public Interest Litigation was introduced because there was a lack of availability of common public law and expensive legal fees in India. Judiciary has an inherent feature of PIL. PIL is an extra-judicial remedy which helps people in enforcing their rights. PIL is a part of judicial activism which makes the judicial process more democratic.

Features of Public Interest Litigation

  • PIL is very affordable because it can be filed at almost no cost, so poor people can also get justice.
  • PIL can be filed when human rights or fundamental rights are violated.
  • It can be registered as a writ petition in the High Court or the Supreme Court.
  • Any person can file a PIL for the interest of a group of people.

Conditions for filing a Public Interest Litigation  

  • PIL should not be politically motivated.
  • It should not have any hidden agenda.
  • Case of such subject should not be pending in any other court.

Objectives of filing Public Interest Litigation

  • It helps in obtaining social justice for all.
  • It helps in solving a big issue in a legitimate way through legal proceedings.
  • It is beneficial in claiming rights against the government or private parties.
  • Public Interest Litigation is used for the welfare of the large masses, so it is very democratic in nature.

Merits of Public Interest Litigation

  • Public Interest Litigation is the most inexpensive remedy, thus making it very affordable for the general public.
  • The procedure to file PIL is very easy.
  • It deals with environmental law, health issues and human rights.

 Demerits of Public Interest Litigation

  • Public Interest Litigation has become so popular that the Supreme Court and the High Court mostly deals with PIL rather than the other cases, thus, leaving pending cases which are increasing rapidly.
  • The political parties and public pressure groups are filing Public Interest Litigation for their malafide intention.                           

9. Arbitrator in disputes between Union and States

The Constitution gives to the Supreme Court jurisdiction in all cases of disputes:

  1. Between the Government of India and one or more states.
  2. Between the Government of India and any state or states on one side and one or more states on the other and
  3. Between two or more states.

State Under Article 12 of the Indian Constitution

Article 12 of the Constitution states that:

“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.”

Scope of Article 12

The definition of State under Article 12 is only applicable to Part III of the Indian Constitution. Part III contains the fundamental rights that every individual holds in the country. Though a body of persons may not constitute a ‘State’ they can be prosecuted by filing a Writ Petition under Article 226 on non-constitutional grounds or in contravention of some provision only outside the Part III of the Constitution.  

The State in Part III

Unless otherwise, for the purpose of Part III of the Constitution, State includes:

  1. Government and Parliament of India i.e. the Executive and Legislature of the Union.
  2. Government and Legislature of each State i.e. the Executive and Legislature of the various States of India.
  3. All local or other authorities within the territory of India.
  4. All local and other authorities who are under the control of the Government of India.

The definition of State is very wide in nature. The word ‘includes’ is not exhaustive but is inclusive in nature. Through various interpretations and judicial pronouncements, the word State has widened its scope. Today, the word State has a wider ambit than what the framers of the Constitution had in their mind during the making of the constitution.  

Whether “State” includes Judiciary?

The question of whether state includes the judiciary is one of the boiling questions of all time. Courts from time to time have provided various interpretations of whether the judiciary should come within the ambit of state or not. In some cases, the judiciary has been considered as a state, in some cases, it has not been considered as a state. The picture whether judiciary forms a part of the state or not is deluded. There have been many case laws where the issue of the judiciary was taken up by the courts. Some of the landmark judgements are provided below :     

In Ratilal v. State of Bombay [7], the court held that in the definition of State under Article 12 the word ‘judiciary’ is not specifically mentioned. So judiciary is not a State. Therefore, the judgement of the courts cannot be challenged for violation of fundamental rights.

The Supreme Court in Ujjam Bai v. Union of India [8], held that a writ of certiorari could also lie to bodies which are under an obligation to act judicially or quasi-judicially. Since such a writ lies, it follows that there are some fundamental rights which can be violated by a judge acting judicially in a court. Since the binding power of any judgment of the Supreme Court is based on the fact that it is backed by State which has the power and necessary resources to enforce, it would only be logical that the Judiciary itself be considered part of the State.

For example, where a judge denies entry of an untouchable into his courtroom, he/she would be guilty of violating Article 17. Similarly, if a judge compels someone to answer incriminating questions he is guilty of violating Article 20(3). On the above grounds, it was held by the court that Judiciary should come under the State.

In Prem Chand Garg v. Excise Commissioner [9], the Supreme Court held that there are two possibilities, one where the judiciary is considered as State and second where the judiciary is not considered as State. When judiciary acts in its ‘judicial capacity’, it is not included within the meaning of ‘other authorities’ and is not considered as State. When judiciary acts in its ‘administrative capacity’, it is included within the meaning of ‘other authorities’ and is considered as State.

In Parmatma Sharan v. The Chief Justice [10], the Rajasthan High Court held that the judgement of the court cannot be challenged on the ground that they violate the fundamental rights whether or not the judgement of the court suffers any infirmity, it can be decided only in the appeal. However, if the judiciary acts in an administrative capacity or exercises administrative functions or makes rules and regulations violating the fundamental rights than it can be challenged in the courts.

Naresh Shridhar v. State of Maharashtra [11], the majority held that the suppression of fundamental rights by the court is not having more significance than the court’s power to decide the trial of the proceedings. The court has full discretion to hold a public trial or to hold an in-camera trial. The Supreme Court held that the right under Article 19(1) is also restricted by reasonable restrictions given in Article 19(2). Furthermore, the court held that the effective administration of justice is more important even though few fundamental rights may be violated by the order of the court. If the court decides that the court is a state, then a writ cannot be issued under Article 32 against its orders as such orders contain infringement of the fundamental rights of the citizen. Hence, the judiciary is not a part of the State.

In A.R. Antulay v. R.S. Nayak [12], a constitutional bench of 7 judges of the Supreme Court held that the court could not give such orders and directions which violates the fundamental rights of the citizens i.e. the court may also be included in the state word under Article 12 of the Indian Constitution.

In Rupa Ashok Hurra v. Ashok Hurra [13], the Supreme Court dealt with the question of whether a writ petition is maintainable under Article 32, to question the validity of the judgement of the apex court after the review petition has been dismissed. The court admitted that in the rarest of the rare case a petition under Article 32 is accepted even after the review petition is rejected. Hence, otherwise, an order passed by SC was not maintainable to writ jurisdiction under Article 32. Therefore judiciary is not considered as State under Article 12.  


Every authority which comes under Article 12 of the Indian Constitution constitutes a State. The term ‘other authorities’ is very vast and has changed with judicial judgements. Courts have laid down various tests to check the status of authorities, corporations, institutions whether they are state or not and if they state whether an individual can claim his/her fundamental rights or not. The term ‘other authorities’ is not defined anywhere in the constitution which gives full discretion and power to the courts to interpret the term in its own way.

The term State under Article 12 is only applicable to Part III & IV of the Indian Constitution and does not apply to Article 309, 310 and 311 present in Part XIV of the Indian Constitution. Therefore, an employee can claim protection under Part III but cannot safeguard his rights under Article 311 for the civil servants of the State.

Not all statutory bodies are ‘STATE’.

Both statutory and non-statutory bodies can be state provided they are ‘statutory financed and have deep & pervasive control of government’. Units such as ONGC, LIC, IFC, Electricity boards, Delhi Transport Corporation are referred to as State. However, entities such as NCERT is not considered State because they are not financed by the government and control is not pervasive.

Since the term ‘Judiciary’ did not find any mention in Article 12, it is the root cause for all the controversies in Part III of the Indian Constitution.

Judiciary should be included in the definition of State. Since the role of the judiciary is to make rules, regulate practices and procedure of courts, appoint staff, it performs the role of State. It is a well-established fact that the judiciary is a State when it performs non-judicial functions. Since it has been recognized that judicial orders may violate fundamental rights, the judiciary too comes under the category of State.

Therefore, it is desirable to bring the judiciary under the purview of Part III and to give the highest justice giving authority to the status of the State.  


  1. AIR 1950 SC 27.
  2. AIR 1952 SC 196.
  3. AIR 1973 SC 1461.
  4. AIR 1980 SC 1789.
  5. 1997 (2) SCR 1186.
  6. AIR 1997 SC 3127.
  7. AIR 1954 SC 388.
  8. AIR 1962 SC 1621.
  9. AIR 1963 SC 996.
  10. AIR 1964 Raj 13.
  11. AIR 1967 SC 1.
  12. AIR 1984 SC 684.
  13. (2002) 4 SCC 388.



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