CONSTITUTION LAW OF INDIA - II

LAW123

Is judiciary a part of state under Article 12 ?

Submitted To – Ms Neetishri Sharma

Submitted By – BIJAY AGARWAL (A3221520172)

BBA LLB (H)

Section - C
The Judiciary is not explicitly mentioned in Article 12 as a State. However, Judiciary
having the rulemaking powers can be included in the definition of the State. The above
conclusion is supported by Article 13 of the Constitution which lays down that any laws
(includes rules, regulations, etc.) in derogation of the fundamental rights is void. Since
the Judiciary in India has the powers to make rules, if it were not “the State” for the
purposes of Part III of the Constitution, the rules made by it would not be held violative
of the fundamental rights.

However, in the case of P.C. Garg v. Excise Commissioner, Allahabad, Supreme Court
has struck down the rules made by it as violative of fundamental rights. Also, a writ
of certiorari lies against bodies that are acting judicially or quasi-judicially. Since a writ
lies against such decision, it is followed that fundamental rights can be violated by a court.
Also, the provisions of Article 15(2) (b) applies to a judge sitting as a judge. Similarly, a
judge cannot act in violation of Article 17 by not allowing an ‘untouchable’ into a court.

“Not only is the directive principle embodied in Article 46 binding on the law-maker as
ordinarily understood, but it should equally inform and illuminate the approach of the
Court when it makes a decision as the Court also is ‘State’ within the meaning of
Article12 and makes law even though interstitially, from the molar to the molecular.”

Therefore, there is a possibility of Judiciary being considered as a State under Article 12.
There have been many different interpretations of the definition mentioned under Article
12 but the Supreme Court seems reluctant to include Judiciary under the ambit of the State.
At many instances, courts have also contravened the fundamental rights and it is also
widely recognized that certain fundamental rights are more prone to be violated by the
Judiciary. The inconsistency also exists with Part IV, which is being ignored by the courts
despite acknowledgement.
Judiciary in India already exercises immense powers but it should not use its powers to
shield itself from the thrust of the Constitution. Now, the duty lies on the Supreme Court
to include the Judiciary as a State following the NCRWC recommendations and stop the
criticism it is facing due to its abeyance.