judiciary and article 12

JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION

INDIAN LAW

INSTITUTE

COMPARATIVE CONSTITUTION

JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION: A CRITICAL

EVALUATION

SUBMITTED BY- PARITOSH SHUKLA

SUBMITTED TO- DR. ANURAG DEEP


ROLL NO. - 02/LL.M./2 YEARS/14

FACULTY FOR COMPARATIVE

1ST SEMESTER

CONSTITUTION

INDIAN LAW INSTITUTE,

NEW DELHI

CO

NTENTS

SR. NO.

CONTENT PAGE NUMBERS

1

INTRODUCTION 3-4

2

WHAT IS THE STATUS OF

JUDICIARY?

1. AMERICAN CONCEPT OF

STATE ACTION AND

JUDICIARY

2. THE POSITION OF

JUDICIARY IN UNITED

KINGDOM

4-7

3

1. POSITION UNDER CONSTITUTIONAL

ASSEMBLY DEBATE

2. THE CONCEPT OF STATE UNDER

INDIAN CONSTITUTION

7-10


4

THE POSITION OF JUDICIARY

UNDER

ARTICLE 12

10-17

5

WHETHER STATE INCLUDES

QUASI-JUDICIAL

TRIBUNAL

17-18

6

TIME FOR RECONSIDERATION 18-19

7

CONCLUSION 19-20

8

LIST OF STATES AND NON-

STATES

20-23

9

BIBLIOGRAPHY 24

INTRODUCTION-

The definition in Article 12 is only for the purpose of

application of the provisions contained in Part III. Hence, even

though a body of persons may not constitute ‘State’ within the

instant definition, a writ petition under Article 32 or 226 may

lie against it on non-constitutional grounds or on ground of

contravention of some provision of the Constitution outside Part


III, e.g., where such body has a public duty to perform or where

its acts are supported by the State or public officials.1

Most of the Fundamental Rights are claimed against the

state and its instrumentalities and not against the private

bodies.2 The very concept of a ‘fundamental right’ involves State

action. It is a right guaranteed by the State for the protection

of an individual against arbitrary invasion of such right by the

State.3 It was to bind the State itself, the marker of laws, that

fundamental rights have their origin.4 Article 12 of Indian

Constitution gives an extended significance to the term ‘state’.

Article 12 clarifies that the term ‘state’ occurring in Article

13(2), or any other provision concerning Fundamental Rights, has

an expansive meaning.5 Article 12 runs as follows:

“In this part, unless the context otherwise

requires, “the State” includes the Government and

Parliament of India and the Government and Legislature

of each of the States and all local or other

1 Kartick v. W.B.S.I.C., AIR 1967 Cal 231 (234); as quoted in D.D. Basu, Comparative

Constitution.2 Ashok Kumar Gupta v. State of Uttar Pradesh, (1997) 5 SCC 201, at 248; as quoted in

D. D. Basu, Comparative Constitution.3 D.D. Basu, Comparative Constitution 437 (Universal Law Publishing Co. Pvt. Ltd.,

New Delhi, 2nd edn., 2007).4 D.D. Basu, Commentary on Constitutional law 656 (LexisNexis, Butterworths, Wadhwa,

Nagpur, 8th edn., 2011).5 M.P. Jain, Indian Constitutional Law 907 (Lexis Nexis, Gurgaon, 6th edn., 2013).


authorities within the territory of India or under the

control of Government of India.”

The actions of any of the bodies comprised within the

term ‘state’ as defined in Article 12 can be challenged before

the courts on the ground of violating Fundamental Rights.6Prima

facie, the definition of ‘State’ in Article 12 seeks to embody the

American Concept of State action,7 which makes it clear that the

fundamental rights guaranteed by Part III of the Constitution

shall be enforceable against an individual or authority only if

it comes within the definition of Article 12.8

WHAT IS THE STATUS OF JUDICIARY?-

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-à-vis

Part III of the Constitution. Bringing the judiciary within the

scope of Article 12 would mean that it is deemed capable of

acting in contravention of Fundamental Rights.9 It is well

established that in its non-judicial functions, the judiciary

does come within the meaning of State.10 However, challenging a

6 Ibid.7 Supra note 4 at 659.8 Ibid.9 Kalyani Ramnath, “Guarding The Guards: The Judiciary As State Within The

Meaning of The Constitution” 18(2) Student Bar Review 76 (2006).10 Ujjam Bai v. State of Uttar Pradesh, 1963 SCR (1) 778 at 813; Pioneer Traders v. C.C.

Exports and Imports, AIR 1963 SC 734.


judicial decision which has achieved finality, under the writ

jurisdiction of superior courts on the basis of fundamental

rights, remains open to debate.11

On the one hand, the 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 wrong, the judicial decision can not

ordinarily be said to be violation of Fundamental Rights. If this

were allowed, it would involve protracted and perhaps unnecessary

litigation, for in every case, there is an unnecessarily

unsatisfied party. On the other hand, not allowing a decision to

be challenged could mean a grave miscarriage of justice could

occur, and go unheeded, merely because the fallibility of

judiciary is not recognized. Is this the role that the

constitutional-makers intended the judiciary to fulfill?12 Why

judiciary could not be brought under the scope of Article 12,

especially when almost all the democratic countries has their

stand clear, i.e., Judiciary is the part of State and, hence, can

be held responsible for the violation of Fundamental Rights?

AMERICAN CONCEPT OF ‘STATE ACTION’ AND JUDICIARY-

There is no concept like ‘the State’ (as defined in

Indian Constitution) in the U.S. Constitution, and the First Ten

Amendment and the Fourteen Amendments are intended to protect the

11 Supra note 9 at 76.12 Id. at 76-77.


fundamental rights from arbitrary invasion by the State, it has

become necessary to interpret the word “State” whenever an

individual complains of such Invasion by the State.13 So, the

doctrine of “State action” was judicially evolved to interpret

the word ‘State’. Its ambit was enlarged in order to give the

individual adequate protection against all forms of arbitrary

action by the governmental authorities.14 In Minneapolis R. Co. v.

Beckwith15 the U.S. Supreme Court has held that, “the guarantee of

due process for deprivation of life, liberty or property or of

equal protection of the law shall extend not only to the legislative,

executive and judicial organ of the State, but also against any agency

or instrumentality which exerts any of the powers belonging to

the foregoing organs of the State.”

The first Ten and Fourteenth Amendment to the

Constitution of USA are a limitation upon State action.

Explaining the concept, the court observed in Ex parte Virginia,16

that;

“A State acts by its legislative, its

executive, or its judicial authorities. It can act in

no other way… Whoever, by virtue of a public position

under a State government……… denies or takes away the

equal protection of the laws, violates the

13 Supra note 4 at 657.14 Supra note 3 at 438.15 (1889) 129 US 26 (29); as quoted in Supra note 3 at 439.16 (1880) 100 US 339 (347); as quoted in Supra note 4 at 660.


constitutional inhibition; and as he acts in the name

of and for the State, and is clothed with the State’s

power, his act is that of the State.”

Now, clarifying more about the judiciary, the U.S.

Supreme Court in Virginia v. Rives, observed that, a judicial

decision is included within the scope of State action for the

purpose of the 14th Amendment to the Constitution.17 It has been

held in Brinkerhoff-Fairs Trust v. Hill18, that, “a decision that deprives

a person of his/her existing remedy without offering him/her an

opportunity to be heard is violative of the “due process” clause.

From the substantive point of view, it has been held that a

common law inconsistent with a fundamental right, if enforced,

would result in the Supreme Court issuing a certiorari to the

authority.” Hence, judicial officers cannot discriminate in their

judicial capacity, either in enforcing common law or even private

agreements. Though the agency of the courts, the state should not

be the guilty of discrimination, this does not necessarily entail

that decisions would remain uniform or free from error.19 As was

held in Fay v. People of the State of New York,20 a conviction could be

quashed if the aggrieved party can prove that the method of their

trial denied them the equal protection of the laws.

17 (1880) 100 US 313 (318); as quoted in Supra note 4 at 660.18 (1930) 281 US 673; as quoted in Supra note 3 at 82.19 Supra note 9 at 92.20 (1947) 332 US 261; as quoted in Supra note 4 at 661.


What is noteworthy as regards to the American position

is the clarity regarding both substantive and procedural aspects

of the 14th Amendment, which clearly shows liability of judiciary

regarding the violation of fundamental rights. This indicates

that, in U.S. judiciary is included in the concept of ‘State

action’ without any immunity or stipulation.

THE POSITION OF JUDICIARY IN UNITED KINGDOM (U.K.)-

In U.K., prior to 1947, no legal proceeding lies

against the State because the State was identified with King who

was supposed to do ‘no wrong’. But after 1947 (The Crown

Proceeding Act), Crown became responsible for non-sovereign

functions of the State.

As regards to the judiciary position in U.K., the

question was not arise their as much as being no fundamental

rights, there was no room for challenging a judicial decision on

the ground that it violates a fundamental right which would

operate as a limitation against ‘State action’ of any kind. As

regards relief against the judicial decision, again, two

propositions stand well-established:

i. The only remedy against a judicial decision (which is

within the jurisdiction of the court making it) is an

appeal; it cannot be challenged collaterally, even where

the decision has been made non-appealable by statute.

ii. But the decision of an inferior court may be challenged

collaterally, by proceedings under certiorari or habeas corpus,


where it lacks jurisdiction, notwithstanding any statute

to the contrary, because a “decision arrived at without

jurisdiction is a nullity”.21

Apart from this, Section 6 (3) (b) of the U.K. Human

Rights Act 1998 clears, wherein the definition of “public

authorities” includes “any person certain of whose functions are

functions of a public nature”. It is noted that the same

definition may include ‘a court or tribunal’.22

POSITION UNDER CONSTITUTIONAL ASSEMBLY DEBATE –

The term “State” in constitutional assembly debate was

discussed on 25th November 1948. But, there was no discussion

takes place on the position of judiciary. Rather it was more on

“or under the control of the government of India” and “other

authority”. While submitting, the Chairman of Drafting Committee

Dr. B. R. Ambedkar said,”

“The object of the Fundamental Rights is two-

fold. First, that every citizen must be in a position

to claim those rights. Secondly, they must be binding

upon every authority - I shall presently explain what

the word “authority" means - upon every authority

which has got either the power to make laws or the

power to have discretion vested in it…Every authority

which has been created by law and which has got

21 Supra note 3 at 76-77.22 Supra note 9 at 91.


certain power to make laws, to make rules or make by-

laws”. Now, if we draw conclusion from above lines spoken by

Dr. Ambedkar, in context of judiciary we find that judiciary is

created under Constitution and in exercise of its power under

Articles 145,146, 227 and 229 judiciary is empowered to make

rules for its affairs. In this regard, judiciary’s position under

Article 12 is somewhat equal to other organs of State.

THE CONCEPT OF ‘STATE’ UNDER INDIAN CONSTITUTION-

What is, and what is not, a ‘State’ has been the

subject-matter of rich case law under Article 12. According to

Article 12, ‘the State’ includes;

i. Government of India and Parliament,

ii. State Governments and Legislature of each State,

iii. All local authorities, and

iv. Other authorities, which include the ‘instrumentality or

agency’ of the State, or

Bodies or institutions which discharge public functions of a

governmental character, or, in other words, it comprise all acts

which can be brought within the fold of ‘State action’.23

When a body is financially, functionally and

administratively dominated by or under the control of the

government and such control is particular to the body and is23 Som Prakash v. Union of India, AIR 1981 SC 212 (paras 34,37).


pervasive, then it will be a ‘State’ within Article 12. If the

control is merely regulatory, it will not be a State.24 The word

‘includes’ indicates that the definition is not exhaustive.

Hence, even though the definition expressly mentions only the

Government and the Legislature, there might be other

instrumentalities of State action within the sweep of the

definition.25

In Ujjam Bai v. State of Uttar Pradesh,26 the Supreme Court

observed that Article 12 winds up the list of authorities falling

within the definition by referring to “other authorities” within

the territory of India which cannot, obviously, be read as

ejusdem generis with either the Government or the Legislature or

local authorities. The ‘State’ is of wide amplitude and capable

of comprehending every authority created under the statute and

functioning within the territory of India. There is no

characterization of the nature of authority set up under a

statute for the purpose of administering laws enacted by the

Parliament or by the State including those vested with the duty

to make decisions in order to implement those laws.

A person can complain of infringement of his

fundamental right only if the wrongdoer is (a) the State or (b)

an authority within the territory of India. The doctrine of State

action has been judicially developed by a liberal interpretation

24 Pradeep Kumar Biswas v. Union of India, (2002) 5 SCC 111: 2002 (3) SCR 100at 117.25 Supra note 4 at 640.26 1963 SCR (1) 778 at 968.


of the expression ‘other authorities’ in Article 12.27 The

Supreme Court initially started with the modest view that, read

ejusdem generis with the word preceding ‘other authorities’, the

latter expression would cover only such bodies or authorities as

were either created or endowed with the powers by the State by

means of a statute.28 But in the light of American decisions, the

Supreme Court has come to perceive that the efficacy of the

guarantee of fundamental rights would be whittled down unless the

concept of ‘agency or instrumentality’ of the State were

enlarged. The historical context in which the doctrine of ‘State

action’ evolved in the U.S. is irrelevant for India. But the

principle behind the doctrine (State aid, control and regulation

so impregnating a private activity as to give it the colour of

‘State action’) is of interest to us to the limited extent to

which it can be Indianised and harmoniously blended with our

constitutional jurisprudence.29 In later cases, therefore, a

larger categories of bodies have been brought within the fold of

Article 12, by formulating the following tests for determining

whether an entity were an ‘agency or instrumentality’ of the

State:

i. Financial resources of the State being the chief funding

source of such entity. But mere State aid to a company,

27 Supra note 3 at 439.28 Ibid.29 M.C. Mehta v. Union of India, AIR 1987 SC 1086; as quoted in P. M. Bakshi, The

Consitution of India 16 (Universal Law Publishing Co., New Delhi, 11th edn., 2012).


without control over its management and policies, will

not make its action State action.

ii. The functions of the entity being governmental in

essence. But the fact that some of the functions of the

entity are commercial in nature is not conclusive, for

the Government itself may carry on commercial functions

(Article 298). The State does not become a private trader

by carrying on trade or business.

iii. Plenary control over the entity residing in the

Government.

iv. Prior history of the same activity having been carried on

by Government and then made over to the new body.

v. Some element of authority or command conferred by the

State upon the entity, or monopoly status, or protected

by the State. 30

In its recent judgment in Thalappalam Ser. Cooperative Society

v. State of Kerala31, the Supreme Court has laid down further test for

determining deep and pervasive control over the Society, namely,

(1) how was the society created? (2) Whether it enjoys any

monopoly character? (3) Do the functions of the society partake

to the statutory functions or public functions? And (4) can it be

characterized as public authority?

30 Supra note 3 at 439.31 Civil Appeal No. 9017 of 2013 (para 10).


If the foregoing tests or their generality are

satisfied, even a Government company32 or a non-statutory

corporation33 or registered society34 will come within the purview

of Article 12. The concept of State agency, thus evolved, is not

the general relation between the principal and agent under the

law of contract by reason of which the acts of the agent are

binding on the principal, but that of a part of the governing

power of the State being located in the authority or corporation,

though the latter is acting on its behalf.35

THE POSITION OF JUDICIARY UNDER ARTICLE 12-

Though the Supreme Court has widened the scope of

Article 12, but still it has not made clear the position

regarding the liability in case of violation of fundamental

rights by the judiciary itself. It is very debatable question

from a long time. Several attempts have been made to resolve this

question. But every time judiciary shows its hesitation to take

any stand. Judiciary is the custodian of all the rights

guaranteed under any law in the force. Bringing the judiciary

under Article 12 means it is capable of violating the fundamental

rights. But at the same time it has been made clear by the

Supreme Court that, for the non-judicial functions, the judiciary

does come within the meaning of ‘the State’. But the real

32 Som Prakash v. Union of India, AIR 1981 SC 212; Ajay v. Khalid, AIR 1981 SC 486.33 R.D. Shetty v. International Airport Authority, AIR 1979 SC 1628.34 Ibid.35 Supra note 3 at 440.


question of debate is challenging a final judicial decision on

the ground of violation of fundamental rights.

Of course, the scope of challenging a judicial decision

on the ground of violation of fundamental right is much narrower

in India, for several reasons:

Firstly, there being no ‘due process’ clause, there is no scope for

challenging a judicial decision on a substantive ground of

unfairness.

Secondly, the decision of Supreme Court being binding upon all

courts within the territory of India (Article 141), there is no

scope for a decision of the Supreme Court being challenged as

violative of a fundamental right. But that is no reason why the

decision or order of a subordinate court shall not be open to be

questioned on the ground that it contravenes a fundamental

right.36

In fact, so far as the guarantee of equal protection in

Article 14 is concerned, our Supreme Court, in early case of

Buddhan Choudhry v. State of Bihar,37 held that any State action –

executive, legislative or judicial, which contravenes Article 14,

was void. Of course, the Supreme Court limited the application of

Article 14 to judicial decisions by the qualification that they

will be hit by the Article only when they involved a ‘willful and

purposeful discrimination’. The court observed:

36 Supra note 3 at 83.37 AIR 1955 SC 191.


“While Article 14 extends to all State

action including even acts of the judiciary, and would

hit arbitrary or willful discrimination by a court,

the Article does not guarantee uniformity of decisions

or of the exercise of judicial discretion. Every

judicial decision must of necessity depend on the

facts and circumstances of the particular case before

the court and what may superficially appear to be an

unequal application of the law may not necessarily

amount to a denial of equal protection of law unless

there is shown to be present in it an element of

intentional and purposeful discrimination .”

To say that the application of the fundamental rights

has a narrower scope against a judicial decision is different

from the radical proposition that the judiciary is excluded from

the definition of ‘State’ in Article 12, so that there cannot be

any collateral constitutional remedy against a judicial decision.

A suggestion to this effect has indeed been made in several

cases:

i. In Amirabbas v. State of M.B., 38SHAH J., speaking for the

court, made the following observation: “…….denial of

equality before the law or the equal protection of the

laws can be claimed against executive or legislative

process but not against the decision of a competent

tribunal.” He supports his proposition as- “The remedy of38 (1960) 3 SCR 138 (142); as quoted in Supra note 4 at 665.


a person aggrieved by the decision of a competent

judicial tribunal is to approach for redress a superior

tribunal, if there be one.”

ii. In Naresh Sridhar Mirajkar v. State of Maharashtra,39(hereinafter

Naresh case) on behalf of constitutional bench comprising of

9 judges, GAJENDRAGADKAR,C.J., speaking for the majority,

though not going to the extent of asserting that the

judiciary was not included within the definition of ‘the

State’ in Article 12, made observations which sought to

silence all controversy on the topic: “It is singularly

inappropriate to assume that a judicial decision

pronounced by a judge of competent jurisdiction in or in

relation to a matter brought before him for adjudication

can affect the fundamental rights of the citizens under

Article 19(1). What the judicial decision purports to do

is to decide the controversy between the parties brought

before the court and nothing more. If this basic and

essential aspect of the judicial process is borne in

mind, it would be plain that the judicial verdict

pronounced by court in or in relation to a matter brought

before it for its decision cannot be said to affect the

fundamental rights of citizens under Article 19(1).”40

iii. In Parbhani Co-operative Society v. R.T.A.,41 SARKAR, J. Made a

similar observation regarding quasi-judicial tribunals:39 (1966) 3 SCR 744 (765); AIR 1967 SC 1.40 Supra note 3 at 84.41 (1960) 3 SCR 177 (188); as quoted in Supra note 4 at 666.


“The respondent no. 1 was acting as a quasi-judicial body

if it has made any mistake in its decision there are

appropriate remedies available to the petitioner for

obtaining the relief. It cannot complain of a breach of

Article 14.”

Though the observation was made in relation to a quasi-

judicial tribunal, it was made on the assumption that the

principle applies to all judicial decisions, - whether pronounced

by a court or by a quasi-judicial tribunal.42

But, apart from the fact that the exclusion of a

judicial decision emasculates the concept of ‘State action’ as

embodied in Article 12, it is not supportable either on juristic

principles or on the very text of Article 12, itself; and the

minority judgment of HIDAYATULLAH, J. in Naresh’s case is

preferable.43 He held that the judiciary is subject to

fundamental rights and he considered several other Articles in

Part III in order better to understand the alleged violation of

Article 19(1). He held that that as the order was without

jurisdiction, the fundamental right to the freedom of speech was

violated. Therefore, it became directly necessary for him to

decide whether a writ lay to the Supreme Court under Article 32

and in High Court under Article 226, and, on a careful review of

42 Supra note 4 at 666.43 Ibid.


the authorities and of the language of Articles 32 and 226, he

held that such a writ lay.44

Apart from the above judgment, following observations

must also be taken into consideration-

i. The judiciary with the legislature and executive is

included in the ordinary meaning of a ‘State’ as one of the

three great departments of a State; and further, that the

ordinary meaning is not outside the inclusive meaning of

‘the State’ given in Article 12.45

ii. Article 13 which declares that any law, rule, regulation

and the like, which violates fundamental rights, is void.

The judiciary in India has rule-making powers and if it

were not ‘the State’ for the purpose of Part III, rules

made by the courts could not be impugned as violating

fundamental rights. But the Supreme Court has struck down a

rule made by it as violating fundamental rights (Premchand

Garg v. Excise Commr., U.P., Allahabad46).47

iii. The Chief Justice of a High Court has power to appoint

officers of the High Court and if an appointment

discriminates against other applicants on the ground of

44 H.M. Seervai, Constitutional Law of India 393 (Universal Law Publishing Co. Pvt.

Ltd., New Delhi, 4th edn., 2000).45 Ibid.46 (1963) Supp. (1) SCR 885; as quoted in Supra note 44 at 393.47 Supra note 44 at 393.


race, religion, caste or sex it would be void as violating

Article 16.48

iv. Article 32 is an overriding and addition constitutional

remedy which takes no account of appeal or other remedies,

even though appeal to the Supreme Court has been separately

provided for. The right to move to the Supreme Court for

the enforcement of a fundamental right is guaranteed by

Article 32.49 The judgment of DAS J., in Ujjam Bai’s case50 and

the dissenting judgment of RAJAGOPALA AYYANGAR, J., in the

same case, show that there is intrinsic evidence in Article

32 that the judiciary in its judicial capacity is subject

to fundamental rights. Article 32 is by its terms limited

to the enforcement of fundamental rights and the right to

apply to the Supreme Court for the writs mentioned in

Article 32 is itself a fundamental right. A writ of certiorari

undoubtedly lies to a court stricto sensu, thought also lies to

bodies or authorities which are not courts stricto sensu but

are under an obligation to act judicially or quasi-

judicially. Therefore, if a writ of certiorari lies under

Article 32 for the enforcement of fundamental rights, it

must follow that there are some fundamental rights which

can be violated by a judge acting judicially in a court

stricto sensu.

48 Id at 394.49 Supra note 4 at 667.50 (1963) 1 SCR 778.


v. Where there is no right of appeal under the general law, it

would mean that an inferior court has the prerogative of

transgressing a fundamental right by its judicial decision,

even though fundamental rights, guaranteed by a written

constitution, are intended to be binding upon all, organs

of the State which are not set up by that Constitution.51

vi. The majority in Naresh’s case holds that even where a third

party to a litigation is affected in the exercise of his

fundamental right, by a judicial decision or order, the

only remedy of such person would be by way of appeal and

not by a proceeding under Article 32, to enforce his

fundamental right, for, the third party may bring the

matter before the Supreme Court under Article 136, though

the order may not be appealable under general law. But an

appeal under Article 136 is by special leave which is in

the discretion of the court and which cannot, therefore, be

a substitute of the ‘guaranteed’ remedy under Article 32.52

vii. Again the judiciary wields the judicial power of the State,

and Article 144 emphasizes the fact that judgments would be

worth little if the full authority of the State were not

exerted to give effect to them.

viii. Why the possibility of a judge violating the prohibition of

Article 14 brushed aside by our Supreme Court as fanciful

speculation- eminent judges of the United States have not

considered the violation by the judiciary of the equality51 Supra note 4 at 667.52 Ibid.


clause if 14th Amendment to be fanciful, and have repeatedly

asserted that the equality clause binds the judiciary as it

binds the legislature and the executive.

ix. Articles 15(2) (b), 17, 20(3) and 22(1) can be violated by

a judge while he acting as judge. HIDAYATULLAH, J., in

Naresh’s case was right when he held that a breach by a judge

of the provisions of several Articles relating to

fundamental rights could not be excluded from the writ

jurisdiction of the Supreme Court.53

x. Before Rajasthan Electricity Board Case54‘other authorities’ in

Article 12 was construed ejusdem generis with the ‘Government

and Legislative body of the State’. If this view stood,

probably then fundamental rights were available against

executive and legislative action and against judicial

decisions. But in this case the Supreme Court

authoritatively overruled ejusdem generis, and held definition

in Article 12 was not exhaustive. That decision has not

been questioned ever since. That being so, there is no

reason why the judicial organ of the State should be

excluded from the ambit of Article 12 merely because it

expressly mentions only the executive and legislative

branches.55

53 Supra note 44 at 394-395.54 Rajasthan Electricity Board v. Mohan Lal, (1967) 1 SCR 377 (385); as quoted in Supra

note 4 at 673.55 Supra note 3 at 89.


There has, however, been a change of judicial climate

since the minority opinion of HIDAYATULLAH, J., in Naresh’s Case.

The propositions so far asserted in these subsequent cases are-

i. A judicial decision or order which violates a fundamental

right is void,56 even though it will be binding on the

parties so long as it is not set aside in appropriate

proceedings.57

ii. Thought the remedy under Article 32 is not available where

the offending Court is the Supreme Court itself, the court

in the exercise of its inherent jurisdiction would review

and set aside a previous direction given by the Court which

offended against a fundamental right, e.g., the natural

justice ingredient of Articles 14 and 21.58

iii. A three judge’s bench in Attorney General v. Lachmi59 allowed a

joint petition and quashed a judicial of the Rajasthan High

Court which had directed a death sentence to be executed by

public hanging, on the ground, inter alia, that such a

direction would be violative of Article 21.

The guarantee of equal protection as provided under

Article 14 of the Constitution extends to all the three organs of

the State viz. legislative, executive and judiciary. The arbitrary

and unreasonable judicial decisions are subject to judicial

56 Naresh v. State of Maharashtra, AIR 1967 SC 1.57 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531.58 Ibid (paras 60-61, 77, 80-82, 105).59 AIR 1986 SC 467; as quoted in Supra note 4 at 674.


review by the superior courts. In Naresh’s case the Apex Court held

that the fundamental right is not infringed by the order of the

Court and no writ can be issued to the High Court.

In view of the judgment of 7 judges bench of the

Supreme Court in A. R. Antulay v. R. S. Nayak,60 where it was held that

the Court cannot pass an order or issue a direction which would

be violative of fundamental rights of citizens, it can be said

that the expression ‘State’ as defined in Article 12 of the

Constitution includes judiciary also.

In the landmark judgment in Rupa Ashok Hurra v. Ashok Hurra,61the constitution bench of five judges examined whether a writ

petition can be maintained under Article 32 to question the

validity of judgment of this Court after the review petition has

been dismissed. Firstly, it was contended that there would be

reexamination of the case only where the judicial order was

passed without jurisdiction, in violation of the principles of

Natural Justice, in violation of fundamental rights or where

there had been gross injustice, under the inherent jurisdiction

of the Court. It was admitted that, in rarest of rare cases, a

petition under Article 32 could be entertained where even a

review petition had been rejected. The “corrective jurisdiction”

of the Court, it was argued, arose from those provisions of the

Constitution conferring power on the Supreme Court such as

60 AIR 1988 SC 1531; as quoted in J. N. Pandey, Constitutional Law of India 60 (Central

Law Agency, Allahabad, 40th edn., 2008).61 (2002) 4 SCC 388.


Article 32 and 129-140. Secondly, the remedy for above rare cases

was, since no appeal lies from the order of the Supreme Court, an

application under Article 32, if senior counsel were able to

discern some permissible ground for the same.62

In this case QUADRI, J., pointed out that Article 32

can be invoked only for the purpose of enforcing the fundamental

rights conferred in Part III and that no judicial order passed by

any superior court in any judicial proceedings can be said to

violate any of the fundamental rights, since superior court of

justice do not fall within the ambit of State or other

authorities under Article 12 of the Constitution. The Court

adopted an unusual unanimous approach by holding that even after

exhausting the remedy of review under Article 137 of the

Constitution, an aggrieved person might be provided with an

opportunity to seek relief in cases of gross abuse of the process

of the court or gross miscarriage of justice, because the

judgment of the Supreme Court is final.

It is evident from the reasoning in this case that

judicial orders can be questioned on the grounds of being

violative of fundamental rights, even if it is not been so

articulated in the majority judgment. An ex-Chief Justice of

India has hailed this decision as an ideal balance between

finality of judgments of the court of the last resort and setting

right miscarriage of justice.63

62 Supra note 9 at 88.63 Id at 90.


WHETHER ‘STATE’ INCLUDES quasi-JUDICIAL TRIBUNALS-

In the Parbhani Co-operative Society’s v. R. T. A.,64 a

negative answer was suggested of this question. SARKAR J. was of

the opinion that no complaint of a breach of Article 14 lay

against a quasi-judicial body. Contrary to this, American

decisions hold a different view; they do not ensure a uniformity

of judicial or quasi-judicial decisions for guarantee immunity

from errors, within jurisdiction, being committed by such

authorities.65 However, earlier in Bidi Supply Co. v. Union of India,66 the

court had struck down an administrative order as violative of

Article 14. So, there arises the confusion in this regard, which

later on was tried to remove by the Apex Court in Ujjam Bai v. State

of Uttar Pradesh,67though the majority declined to go into the basic

question whether a judicial or quasi-judicial authority could be

held to be ‘State’ within the meaning of Article 12. The court

did not go to the extent of holding the quasi-judicial decision

could never affect a fundamental right, so as to be subjected to

the jurisdiction of the Supreme Court under Article 32. It laid

down the following exceptions to the theory that the only remedy

against a quasi-judicial decision was an appeal or revision, but

not an application under Article 32-

64 AIR 1960 SC 801; as quoted in Supra note 4 at 674.65 Supra note 4 at 674.66 AIR 1956 SC 479; as quoted in Supra note 4 at 675.67 (1963) SCR (1) 778.


i. Where the decision is made under a statute which is ultra vires

the Constitution, rendering the decision to be without

jurisdiction.

ii. Where, though the statute is constitutional and intra vires,

the quasi-judicial decision is itself without jurisdiction,

e.g., where an order of assessment of tax offended Articles

286 or 265, or it is ultra vires the statute under which it is

purported to be made or because it violated the principles

of natural justice, in conformity with which only a quasi-

judicial decision can be made.

Thus, it is clear, if a quasi-judicial body acts under

an ultra vires law, or outside its jurisdiction or ignores mandatory

rules of procedure prescribed under relevant law, or infringe the

principles of natural justice and thereby affect the fundamental

rights, then its action can be quashed by the Courts.68

TIME FOR RECONSIDERATION-

Those who argue for the inclusion of the judiciary

within the definition of ‘the State’ in Article 12 are often

guided by the isolated examples in the US Constitution such as

Shelly v. Kraemer69 in which the US Supreme Court has entertained

petitions against the decisions of the courts of the States; and

dicta of FRANKFURTER J., in Snowden v. Hughes,70 which says, “…if68 Id. at 678.69 334 US 1 (1948); as quoted in V.N. Shukla, Constitution of India 34 (Eastern Book

Company, Lucknow, 11th edn., 2008).70 321 US 1 (1944); as quoted in Supra note 9 at 91.


the highest court of a State should candidly deny to one litigant

a rule of law which it concededly would apply to all other

litigants in similar situation, could it escape condemnation as

an unjust discrimination and therefore a denial of the equal

protection of the laws.”

Finally, in the light of decision of the Supreme Court

in Ujjam Bai v. State of Uttar Pradesh,71 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 the 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.72

The National Commission to Review the Working of the

Constitution (NCRWC) 2002, has put forward the recommendation

that an Explanation to be added to Article 12 wherein it would be

mentioned that the expression “other authorities” shall include

any person in relation to such of its functions which are of

public nature. Since the reason for the establishment of the

courts was to decide disputes and interpret law- which is

obviously a public function, therefore. Judiciary and its

officials must fall under the expression “other authorities.”71 1963 SCR (1) 778.72 Ibid.


The non-mention of the judiciary does not necessarily

indicate that the courts are intended to be excluded from the

definition of Article 12. It is gratifying to note that, the

Supreme Court has held that the word “includes” indicates that

the definition of ‘State’ is not confined to a Government

Department and the Legislature, but extends to any action-

administrative (whether statutory or non-statutory), judicial and

quasi-judicial- which can be brought within the fold of ‘State

action’, which violates a fundamental right.73

The eminent jurists like H. M. Seervai, D. D. Basu, V.

N. Shukla and J. N. Pandey strongly holds their view in favour of

inclusion of judiciary within the purview of Article 12 and

opined that judiciary can also be held responsible for violation

of fundamental rights, since it is also one of the organ of the

traditional concept of ‘State’.

CONCLUSION-

The inclusion of a large number of entities into the

“other authorities” through judicial interpretation has widened

the scope of Article 12 and also of the fundamental rights.

However, question of inclusion of judiciary came, the Higher

Court of the land keeps it mouth shut or try to avoid answering

this important question. The judgments in vast number of cases

from Prem Chand Garg to Ashok Kumar Hurra are misleading in nature

because they did not clarify the actual position of judiciary

73 R.D. Shetty v. International Airport Authority, AIR 1979 SC 1628 (paras. 14-16).


under Article 12. But it can inferred that since it has been

recognized that judicial orders may contravene fundamental

rights, the judiciary too can be implicitly put within the

meaning of State under Article 12. It has also been clear that

there are few fundamental rights which have been held to be

applicable in the case of the judiciary as well.

The judiciary is the final interpreter of the

Constitution. It is totally on the Supreme Court to expand the

scope of Article 12 and voluntarily subjecting itself to the Part

III of the Constitution. In the era of judicial activism, Public

Interest Litigation, Judicial Legislation, and Judicial Review

the judiciary given itself a very wide power, now, it is for the

judiciary to also to take responsibility in misuse or abuse of

power. It is the Constitution of India from which every action of

the State derives its validity. Judiciary as well as its powers

is the creation of the Constitution like other organ of the

State, so also in this respect judiciary deserves to be cover

within the meaning of Article 12.

It is therefore, desirable and need of time to bring

the judiciary, under the purview of Article 12 of the

Constitution, so that the highest of constitutional principles

are realized.


LIST OF ENTITIES COMING UNDER THE PURVIEW OF ARTICLE 12 –

ENTI

TIES

POSITION

JUDGES AND RATIO

University Ujjambai v. State of

U.P.; AIR 1962 SC

1621.

S.K. Das, J.L.Kapoor, A.K.Sarkar, K.Subbarao, M.Hidayatullah, R.N.Ayyangar, J.R.Mudholkar JJ.(5:2)

Rajasthan Electricity

Board

Electricity Board,

Rajasthan v. Mohan

Lal; AIR 1967 SC

1857.

K.Subbarao(CJ), M.Shelat, G.K.Mittar, P.N.Bhagwati, J.C.Shah JJ. (4:1)

Cochin Devasom Board P.B.M. Namboooripad

v. Cochin Devasom

Board; AIR 1956 TC

19.

Not found

Oil and Natural Gas

Commission, Life

Sukhdev Singh v.

Bhagatram; AIR 1975

A.N. Ray(CJ), Y.V.Chandrachud,A.C.Gupta, Mathew,


Insurance Corporation,

Industrial Finance

Corporation

SC 1331. Alagiriswami JJ.(4:1)

International Airport

Authority of India

R.D. Shetty v. The

International

Airport Authority of

India; AIR 1979 SC

1628.

P.N. Bhagwati,V.D. Tulzapurkar,R.S. Pathak JJ.(3:0)

Bharat Petroleum

Corporation

(a government

company)

Som Praksah v. Union

of India; AIR 1981

SC 212.

V.R. Krishnaiyer,O.C. Reddy, R.S.Pathak JJ. (2:1)

Warehousing

Corporation

U.P. Warehousing

Corporation v. Vijai

Narain; (1990) 3 SCC

459.

R.S. Sarkaria,O.C. Reddy JJ.(2:0)

Registered Societies Ajay Hasia v. Khalid

Mujib; AIR 1987 SC

487.

Y.V.Chandrachud(CJ),P.N. Bhagwati,V.R. Krishnaiyer,S.M. Fazal Ali,A.D. Koshal JJ.(5:0)

Indian Statistical

Society

B.S. Minhas v.

Indian Statistical

Institute; (1983) 4

SCC 582.

P.N. Bhagwati,R.B. Mishra JJ.(2:0)

Indian Council of

Agricultural Research

P.K. Ramachandra

Ayer v. Union of

D.A. Desai, B.V.Eradi JJ. (2:0)


India (1984) 2 SCC

142. Food Corporation of

India

Workmen, Food

Corporation of India

v. M/s. Food

Corporation of

India; AIR 1985 SC

670.

D.A. Desai, B.V.Eradi, V. KhalidJJ. (3:0)

Steel Authority of

India

Bihar State Harijan

Kalyan Parishad v.

Union of India;

(1985) 2 SCC 644.

O.C. Reddy, E.S.Venkataramaiah JJ.(2:0)

Sainik School Society AISSF Association v.

Defence Minister-

cum-Chairman,

B.O.G.S.S. Society;

AIR 1989 SC 88.

Not found

Children’s Aid

Society

Sheela Barse v.

Secretary, Children

Aid Society; (1987)

3 SCC 50.

P.N. Bhagwati,R.S. Pathak JJ.(2:0)

Council for

Scientific and Industrial

Research

P.K. Biswas v.

Indian Institute of

Chemical Biology;

(2002) 5 SCC 111.

S.P. Bharucha(CJ),S.S.M. Quadri,R.C. Lahoti, N.S.Hegde, O. Raju,Ruma Pal, ArijitPasayat JJ. (7:0)

U.P. Rajya Karmachari V.K. Srivastava v. Not found


Kalyan Nigam U.P. Rajya

Karmachari kalian

Nigam; AIR 2005 SC

411. Co-operative Society Dukhoram v. Co-

operative

Agricultural

Association; AIR

1961 MP 219.

Not found

Delhi Transport

Corporation

D.T.C. v. Mazdoor

Congress; AIR 1991

SC 101.

S. Mukharji(CJ),B.C. Ray, L.M.Sharma, P.B.Sawant, K.Ramaswamy JJ.(4:1)

LIST OF ‘NON-STATE’ ENTITIES –

ENTITIES POSITION JUDGES ANDRATIO

Institute of

Constitutional and

Parliamentary Studies

Tekraj Vasandi v.

Union of India;

(1988) 1 SCC 236.

Rangnath Mishra, S.Rangnathan JJ.(2:0)

NCERT Chandra Mohan Khanna

v. NCERT; AIR 1992

SC 76.

K.J. Shetty, Y.Dayal JJ. (2:0)

International Crop

Research Institute

G. Bassi Reddy v.

International Crop

Research Institute;

Ruma Pal, B.N.Srikrishna JJ.(2:0)


AIR 2003 SC 1764. Co-operative Sugar

mill

General Manager,

Kisan Sahkari Chini

Mills Ltd.,

Sultanpur, U.P. v.

Satrughna Nishad;

AIR 2003 SC 4531.

Y.K. Sabarwal, B.N.Agrawal JJ. (2:0)

State of Council of

Educational Research and

Training (SCERT)

Lt. Governor of

Delhi v. K. Sodhi;

AIR 2007 SC 2885.

P.K.Balasubramanyam, P.Naolekar JJ. (2:0)

Unaided Minority

School

Satimbla Sharma v.

St. Paul’s Senior

Secondary School;

AIR 2011 SC 2926.

R.V. Raveendran,A.K. Patnaik JJ.(2:0)


BIBLIOGRAP

HY

BOOKS-

1. Basu, D.D., Comparative Constitution 437 (Universal Law

Publishing Co. Pvt. Ltd., New Delhi, 2nd edn., 2007).

2. Basu, D.D., Commentary on Constitutional law 656 (LexisNexis,

Butterworths, Wadhwa, Nagpur, 8th edn., 2011).

3. Jain, M.P., Indian Constitutional Law 907 (Lexis Nexis, Gurgaon,

6th edn., 2013).

4. Bakshi, P. M., The Consitution of India 16 (Universal Law

Publishing Co., New Delhi, 11th edn., 2012).

5. Seervai, H.M., Constitutional Law of India 393 (Universal Law

Publishing Co. Pvt. Ltd., New Delhi, 4th edn., 2000).

6. Pandey, J. N., Constitutional Law of India 60 (Central Law Agency,

Allahabad, 40th edn., 2008).

7. Shukla, V.N., Constitution of India 34 (Eastern Book Company,

Lucknow, 11th edn., 2008).

ARTICLES-


1. Ramnath, Kalyani, “Guarding The Guards: The Judiciary As

State Within The Meaning of The Constitution” 18(2) Student

Bar Review 76 (2006).

judiciary and article 12

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