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Judiciary- Status & Standing

By Nitesh Srivastava July 26, 2016

The Indian judiciary has been performing the sacrosanct function of delivering justice to people. The impartial and unbiased attitude of the judiciary makes it dependable. It is needless to mention that the judiciary has served the country with fortitude and determination. However, it is an undeniable fact that even the best men fall prey to corrupt practices. Under such circumstances ascertaining the accountability of government organs become significant.There has been a little vagueness as to whether these corridors of power fall under the domain of state or not.

The status of judiciary under Article 12 of the Indian Constitution is not clear, which leads to various interpretations of the word ‘judiciary’. It is important to know that if judiciary falls within the purview of Article 12 of the constitution, the fundamental rights can be enforced against it and if it does not, the fundamental rights cannot be enforced against it. The foremost benefit of bringing the judiciary under Article 12 will be to make the judges accountable for the violation of fundamental rights which they generally do in many cases by giving contrasting decisions based on same facts in different cases.

The following text will talk about the different judicial decisions, which throw light on the situations when the judiciary can come under the ambit of Article 12 and when it cannot. Another part of this article will deal with the interpretations of the judiciary on whether the definition of “state” includes judiciary in itself or not? The next part of the Article will scrutinize the exact language of Article 12 of the Constitution. And lastly the conclusion will argue to bring the judiciary under the purview of Article 12 for the greater good.


Court’s interpretation through various cases:

There has been lots of discussion in the following cases on whether it was just the non judicial functions of a judiciary that would fall within the scope of Article 12 or whether the exercise of judicial function could also feature in this discussion: from the PremGarg v. Excise Commissioner[1],BudhanChoudhary v. State of Bihar[2],A.R. Antulay v.R.S.Nayak[3],N.S.Mirajkar v. State of Maharashtra[4] to Rupa Ashok Hurra v. Ashok Hurra[5]” the conclusions arrived at by the court has been contrasting.

The most recent case on this matter was in 2002 in the case of, “Rupa Ashok Hurra v. Ashok Hurra[6]”. It was pointed out by Justice Syed Shah Mohamed Quadri that Article 32 can only be invoked for the enforcement of fundamental rights and it should be maintained that no judicial order by any superior court in any situation should violate any fundamental right. As it has been seen, the superior courts do not fall within the purview or under the ambit of the Article 12 of the Constitution as “state or other authorities”.

Semantic of Article 12:


It is important to scrutinize the language of Article 12[7] in order to conclude whether the judiciary is State or not under Article 12 of the Constitution.

It is conceived from the plain reading of the Article 12 that under the constitution, judiciary has not gone beyond the scope/ambitof Article 12. As it is an established fact that the “judiciary” is one of the organs of a State so it proves that it should also be subjected to the same constitutional obligations, duties and limitations like other organs.

If one reads Article 12, the term “includes” and not “comprises” has been used. There is a lot of difference between the meanings of these two terms. There are number of good reasons for mentioning just the “Parliament” and the “Legislature” and not the third organ of the State i.e. the Judiciary. It is important to note that according to Article 12[8], the Judiciary is an essential organ of the State. It has the power to make rules under certain circumstances.

Jurists like H.M.Seervai, V.N.Shukla on the question of whether judiciary is State or not, consider judiciary to be State. Articles 145 and 146 of the Constitution of India support their view as follows:

(i) The Supreme Court is empowered to make rules for regulating the practice and procedure of the Courts.

(ii) The Supreme Court is empowered to make appointments of its staffs and servants; decide its service conditions.

According to the text given in DD Basu’s, “Commentary on the Constitution of India”, “the fundamental rights were incorporated into our constitution to limit the power of executive as well as legislative authorities”.[9] It means that the main motive of the fundamental rights was to limit the misuse of power given to the two organs of the State. It cannot be ascertained that there will not be any misuse of power in judiciary. The judiciary is also one of the organs of the State hence it should also be treated like the other two organs by including it under the ambit of “State”.

Another viewpoint stipulatedby Justice Seervai, which can be read as, “It totally depends on the distinction between the judicial and non-judicial functions of courts[10]”. When the court exercises its non-judicial functions, the courts will fall under the ambit of the definition of state under article 12; whereas when courts exercises it judicial obligation there are no occasions where it attracts violation & infringement of fundamental rights, hence the question of bringing the courts within definition of state would not arise.

It can be understood with the following example. If in the exercise of its rule making powers, it makes some rules that contravene with the Fundamental Rights of the citizens, the remedy is available under Articles 32 & 226. But when the judiciary is exercising its judicial function, i.e., it has to decide whether a person’s fundamental right is violated by the legislature or the executive, it cannot be called a “State” under Article 12.

It can be argued that as guardians and sentinels of the Constitution, the courts must always be as much duty bound to defend and give effect to the directive principles as to the fundamental rights irrespective of their inclusion within the definition of ‘the state’.[11]

Sometimes the judiciary while interpreting might end up giving decisions that are per incuriam (which translates as ‘through lack of care’), which in turn might infringe the fundamental rights. If a party is aggrieved by the decision, the correct remedy is appeal/ review jurisdictions. The remedy is not in alleging that the court itself has violated a Fundamental Right by giving a wrong decision. So the courts cannot be subjected to writ jurisdiction.

Judicial analysis:


To give a wider dimension to Fundamental Rights, the judiciary has interpreted ‘State’ in different contexts at different times. The principle of “Ejusdem generis” was evolved in “University of Madras v. Santa Bai[12]”, the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions.

But in “UjjamBai v. Union of India[13]”, Supreme Court rejected the principle of ejusdem generis. It observed that there is no common genus between the authorities mentioned in Article 12.

Next was the case of “Ajay Hasia v/s Khalid Mujib[14]”, where the court observed that the test to know whether a juristic person is state is not how it has been brought but why it has been brought?

Contrasting judgments by judiciary proving the infringement of fundamental rights:


It started with the verdict in the case, “Smt. Triveniben v State of Gujarat[15]”, where the accused contended that there was a long wait in order to execute the punishment of death sentence. Hence there was violation of Article 21. The court stated that “It has been universally recognized that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra v. Delhi Administration[16], but nobody could succeed in giving him peace of mind. So it is not violative of article 21 of the constitution.”

The contrasting decision came up in the case “Harbans Singh v. State of U.P.[17]”, where the court issued a stay on the death sentence of the accused. The court decided that it has “very wide powers conferred on it for due and proper administration of justice.” The overarching idea was that of inherent power and jurisdiction of the court to deal with “extraordinary” situations in the “larger interest of justice”.

In the other similar case, “Attorney General v.Lachma Devi[18]”, the Supreme Court under Article 32 of the Constitution passed an order against the judgment and to justify it, the Supreme Court gave the reasoning that it was contravening Article 21.


To sum up the above discussion, it can be said that time and again, the judiciary has always justified its position of falling under the ambit of article 12 and contrary to it in many instances judiciary has successfully justified itself to be departed from article 12 . This should notallow the judiciary to change its position according to its convenience. It should be made clear to the general public whether they can enforce their fundamental rights against the judiciary.

It is very important for the fulfillment of basic human rights to know the position of the judiciary under Article 12. There are many good reasons to include the judiciary as State under Article 12. One of the important advantages is that the judges will be made accountable for their decisions against the violation of fundamental rights.

Another reason can be that it will limit the power of the judiciary to make any rules and pass any orders without any restriction as they do not fall within the ambit of Article 12. It will also help in reducing the violation of fundamental rights by the contrasting decisions in the same type of the cases.

Therefore, it will be in the interest of the greater good that the judiciary should be brought under the ambit of Article 12 of the Constitution.

[1] AIR 1963 S.C. 996

[2] AIR 1955 SC 191

[3] 1988 AIR 1531

[4] AIR 1967 SC 1

[5] (2002) 4 SCC 388

[6] (2002) 4 SCC 388

[7]Art-12: Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India


[9]DD Basu, “Commentary on the Constitution of India”, pg. 200, Vol A/A1, Kolkata

[10]Cf. H. M Seervai: Constitutional Law of India, 225 ff (3rdediton, 1983)

[11]Mahendra P Singh, VN Shukla Constitution of India, pg.34 (11th ed.), Lucknow

[12] AIR 1954 Mad 67

[13] AIR 1962 SC 1621

[14] AIR 1979 SC 1628

[15] 1989 1 SCC 678

[16][1978] 4 SCC 491

[17] (1982) 2 S.C.C 101

[18] AIR 1986 SC 467

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Tags: judicial accountability , Art 12 , State , Fundamental right violation , part III of the constitution

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