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
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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).
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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,
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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).
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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).
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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).
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
“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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
“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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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).
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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.
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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,
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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)
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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)
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
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)
JUDICIARY AND ARTICLE 12 OF THE INDIAN CONSTITUTION
BIBLIOGRAP
HY
BOOKS-
1. Basu, D.D., Comparative Constitution 437 (Universal Law
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3. Jain, M.P., Indian Constitutional Law 907 (Lexis Nexis, Gurgaon,
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4. Bakshi, P. M., The Consitution of India 16 (Universal Law
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5. Seervai, H.M., Constitutional Law of India 393 (Universal Law
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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,
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ARTICLES-
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