This article is written by Ayush Verma, a student of 2nd year from RMNLU, Lucknow.
In part III of the Constitution of India, also referred to as Magna Carta of the constitution, the constituent assembly has provided the fundamental rights to the citizens of India. The rights guaranteed under it are to be protected by the State, and in case of its failure, the citizens are given the right to claim them against the State by way of filing a writ petition. Hence, it is important to understand what comes under the ambit of ‘State’ to ascertain the protection of these rights.
According to Article 12 of the Constitution of India, the term ‘State’ includes the Central Government and State Governments, Parliament and Legislatures, and all local or other authorities functioning under the Government of India or within the territory of India. The mention of these authorities in the given provision means that they are capable of violating the fundamental rights of the citizens, and therefore, a writ petition can be filed against them under the Article 32 or 226. Now, the problem arises in acknowledging the authorities that would come under ‘other authorities’ mentioned in Article 12. This is where the question arises that ‘whether Judiciary can be regarded as a State’ as in course of giving complete justice to the citizens, it can also violate their fundamental rights. Also, the word ‘includes’ mentioned in Article 12 is of great relevance indicating that the definition of ‘State’ is not exhaustive.
Article 12 was originally introduced in the draft Constitution as Article 7. While defining the scope of this Article, Dr. Ambedkar said the fundamental rights would be binding on every authority and by the word ‘authority’ he meant every authority that has the power to make laws or the power to have discretion vested in it. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, Justice Hidayatullah in its dissenting opinion opined that the Judiciary should be put under the ambit of Article 12, stating that the word ‘State’ must include the ‘courts’ because otherwise the courts would be allowed to make rules which violate the fundamental rights of the citizens.
Doctrine of ‘State Action’ in the US
In US, the concept of ‘State action’ evolved due to the mention of the word ‘State’ in Section 1 of the 14th Amendment to the US Constitution as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The above concept has been enlarged to curb any kind of arbitrary exercise of power by the State. In the case of Minneapolis R. Co. v. Beckwith, it has been held that prohibition under 14th amendment extends to any state action, legislative, executive, or judicial, and against any agency exercising any of the powers. This was further approved by the court in the Ex Parte Virginia, where the court observed:
“A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State and is clothed with the State’s power, his act is that of the State.”
The concept was evolved to give protection to the citizens against all forms of arbitrary actions by the governmental authorities. This has been clarified by the US Supreme Court in Virginia v. Rives, where it observed that a judicial decision is included within the scope of state action for the purpose of 14th Amendment to the Constitution. Hence, the Constitution of the US has the provision to decide the liability of the Judiciary in case of violation of fundamental rights.
Present status of Judiciary under Article 12
The present-day scenario on whether the Judiciary can be regarded as ‘State’ depends on the judicial and non-judicial functions of the Judiciary. As far as the former is concerned, the Judiciary cannot be regarded as a State while the latter would bring the Judiciary under the definition of ‘State’. It has been held that where the Supreme Court has exercised its powers in contravention to the fundamental rights of the citizens, the remedy under Article 32 can be sought. Here the court also emphasized that the word ‘State’ must include ‘courts’ else it will enable the courts to make laws in contravention of fundamental rights.
According to Article 141 of the Constitution, the law made by the Supreme Court is binding upon all courts within the territory of India. Hence, there is no scope for challenging the decision of the Supreme Court in case of violation of fundamental rights. However, there is no such reason as to why the decision taken by the subordinate courts cannot be questioned as violative of fundamental rights. This, therefore, remains open to debate.
Though the Supreme Court in the case of Budhan v. State of Bihar has regarded the action of the Judiciary as a state action under Article 12 in the case of violation of Article 14, but it has further created a limitation that there should be a ‘wilful and purposeful discrimination’ which would essentially depend on the facts and circumstances of the case. This issue was raised again in the case of Naresh Sridhar Mirajkar v. State of Maharashtra, where the petitioner contended that there is a violation of Article 19(1) (a) by the High Court, the majority ruled out that there was no violation of fundamental right under Article 19(1) (a) and while determining the question that a writ of certiorari can be issued or not against the High Court of Bombay, it relied on the case of Ujjam Bai v. State of U.P., where it was held that any judicial or quasi-judicial authority in the exercise of its jurisdiction cannot violate fundamental rights, and hence a writ of certiorari cannot be issued against the High Court. It has been held that if an order passed by the Supreme Court violates the constitutional rights of the citizens and is against the principles of natural justice, it should be corrected by ex dibito justitiae (i.e. as a matter of right), and it is not amenable to be corrected by the writ jurisdiction under Article 32 of the Constitution.
The issue in Naresh Mirajkar case was recently dealt again by the Supreme Court in the case of Riju Prasad Sarmah v. State of Assam, where the petitioner contended that ‘State’ includes all the three organs of the State including the Judiciary, and therefore it cannot perpetuate discrimination in violation of Article 14 of the Constitution. Here the court also held that when a court is acting in its judicial capacity, it cannot be regarded as a State. However, its administrative action is amenable to the writ jurisdiction. The reasoning behind the court’s ruling was that:
“The judicial forum will then lose its impartiality because petitioners, like in the present case, will make a demand that court itself should act as the State and deliver all reliefs in a dispute where the executive or the legislature is not at all involved as a party.”
Reconsidering the position of the Judiciary
The Judiciary is not explicitly mentioned in Article 12 as a State. However, Judiciary having the rulemaking powers can be included in the definition of the State. The above conclusion is supported by Article 13 of the Constitution which lays down that any laws (includes rules, regulations, etc.) in derogation of the fundamental rights is void. Since the Judiciary in India has the powers to make rules, if it were not “the State” for the purposes of Part III of the Constitution, the rules made by it would not be held violative of the fundamental rights. However, in the case of P.C. Garg v. Excise Commissioner, Allahabad, Supreme Court has struck down the rules made by it as violative of fundamental rights. Also, a writ of certiorari lies against bodies that are acting judicially or quasi-judicially. Since a writ lies against such decision, it is followed that fundamental rights can be violated by a court. Also, the provisions of Article 15(2) (b) applies to a judge sitting as a judge. Similarly, a judge cannot act in violation of Article 17 by not allowing an ‘untouchable’ into a court. Therefore, there is a possibility of Judiciary being considered as a State under Article 12.
The rationale held by the courts while dealing with the State under Part IV of the constitution creates an inconsistency with decisions taken concerning Part III. The courts have differed in opinion about the Judiciary as a State in cases involving Part IV. In the case of State of Kerala v. N.M. Thomas, the majority held that the goals in Part IV must “inform and illuminate” the court’s interpretational task. This was based on the view that the courts are ‘State’ within Article 12:
“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 makes a decision as the Court also is ‘State’ within the meaning of Article12 and makes law even though interstitially, from the molar to the molecular.”
It can now be inferred that Judiciary is a ‘State’ for the purpose of Part IV of the Constitution. But as far as Part III is concerned, the position of courts in still quite ambiguous. However, it is now intriguing that the view taken above provides contrary to what has been stated under Art 36 for the purpose of Part IV, which states that the definition of ‘State’ has the same meaning as in Part III. This shows paradox in the judicial approach of its own action in defining the ‘State’. Therefore, the ‘State’ for the purpose of Part III should be construed the same as Part IV of the Constitution.
The National Commission to Review the Working of the Constitution (NCRWC) has recommended that an Explanation should be added to the Article 12 wherein the word ‘other authorities’ would mean the authorities whose functions relate to that of a public nature. Since the courts were established to decide and interpret the law, which is related to the public sphere, therefore Judiciary would fall under the definition of ‘State’ under Article 12. Also, in Section 6(3) (b) of the UK Human Rights Act, 1998, the definition of public authority includes any person whose functions are of a public nature. Therefore, Judiciary can be added to the definition of ‘State’ under Article 12 and the above provisions are supporting to bring the reforms in this area.
There have been many different interpretations of the definition mentioned under Article 12 but the Supreme Court seems reluctant to include Judiciary under the ambit of the State. At many instances, courts have also contravened the fundamental rights and it is also widely recognized that certain fundamental rights are more prone to be violated by the Judiciary. The inconsistency also exists with Part IV, which is being ignored by the courts despite acknowledgement.
Judiciary in India already exercises immense powers but it should not use its powers to shield itself from the thrust of the Constitution. Now, the duty lies on the Supreme Court to include the Judiciary as a State following the NCRWC recommendations and stop the criticism it is facing due to its abeyance.
 Art. 12, the Constitution of India.
 Samaraditya Pal, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION, 415 (1st ed., 2014).
 Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
 Ibid, at 28.
 U.S. Constitutional, Amendment XIV, S. 1.
 Minneapolis R. Co. v. Beckwith, 129 US 26 (1889, Supreme Court of the United States).
 Ex Parte Virginia, 100 US 339 (1880, Supreme Court of the United States).
 D.D. Basu, COMPARATIVE CONSTITUTIONAL LAW, 438 (2nd ed., 2007).
 Virginia v. Rives, 100 U.S. 313 (1880, Supreme Court of the United States).
 D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 656 (8th ed., 2011).
 P.C. Garg v. Excise Commissioner, AIR 1963 SC 996.
 Art 141, the Constitution of India.
 Budhan Choudhary v. State of Bihar, AIR 1955 SCC 191.
 D.D. Basu, Commentary on the Constitution of India, 934 (9th ed., 2014).
 Supra 3.
 Ujjam Bai v. State of U.P. (1963) 1 SCR. 778.
 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531.
 Riju Prasad Sarmah v. State of Assam, 2015 (7) SCALE 602, 61.
 Ibid, at 64.
 Art 13, the Constitution of India.
 H.M. Seervai, Constitutional Law of India, 393 (4th ed., 2006).
 Supra 11.
 Supra 22, at 394.
 Supra 22, at 395.
 State of Kerala v. N.M. Thomas (1967) 1 SCR. 906.
 Art. 36, the Constitution of India.
 Ministry of Law & Justice, Government of India, NCRWC Report 2002, available at http://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, last seen on 26/9/2019.
 S. 6(3) (b), U.K. Human Rights Act 1998 (United Kingdom).
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