Judiciary and State under Art 12

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In USA, it has already been stated that a judicial decision is included in the concept of State action for the purpose of enforcement of fundamental right conferred by the 14th Amendment. In Virginia v. Rivers, the Supreme Court observed:

“… It is doubtless true that a State may act through different agencies- either by its legislation, its executives, or its judicial authorities; and prohibition of the Amendment extend to all actions of State denying equal protection of laws, whether it be action by one agencies or by another.

 Where a trail or decision itself is vitiated by a violation of a constitutional guarantee, such as ‘due process’ or ‘equal protection’ , the American Supreme Court would quash a conviction this ground on a collateral and post-conviction proceeding of certoriari or release the prisoner in a proceeding for Habeas Corpus.

The ‘due process’ guarantee has been available against a judicial decision, both in procedural and substantive aspect.                 

From Procedural Standpoint of View: Though a mere erroneous decision overruling the previous case-law cannot be challenged as violating due process[1], a decision which deprives a person of his existing remedy for the enforcement of a right without offering him an opportunity to be heard must be quashed on this ground, apart from any other consideration. A judgement which refuses without hearing, relief to prevent the seizure of property or deprives the plaintiff of his property, is is in contravention of due process.

From Substantial Point of View : It has been held that where a common-law rule is inconsistent with fundamental right, the enforcement right, the enforcement of such rule by the Court would itself be a State action inconsistent with Fundamental Right.

A conviction which sought to enforce the common law crime of breach of the peace, where it was found that the enforcement of the common-law in the circumstances of the case offend against the freedom of religion, a contempt of court where it was inconsistent with freedom of discussion,etc.

 The guarantee of ‘equal protection’, has similarly, been applied against judicial decision.

This does not mean that the guarantee of equal protection assures ‘uniformity of decision or immunity from judicial errors.”[2]

But the guarantee would be applied in annulling a judicial decision.

Where a court enforce a discriminatory covenant between private individuals, procedure adopted by the Court is designedly discriminately.


The challenging a judicial decision in the ground of contravention 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 constitutional ground for fairness.

Secondly, the decision of Supreme Court being binding upon all the court within the territory of India( Art. 141) , there is no scope for decision of Supreme Court being challenged as violative of a fundamental right.

In fact, so far as the guarantee of equal protection in Art. 14 is concerned, our Supreme Court, in the early  case of Budhan v. State of Bihar[3],held that any state action, executive, legislative or judicial, which contravene Art. 14 is void.

 “It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the Judiciary and the inhibition of article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State. It has, however, to be remembered that, in the language of Frankfurter, J., in Snowden v. Hughes, ‘the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State.’”

The following instances givn by Hidayatullah,J. In Naresh Mirajkar Case, is an instance of purposeful discrimination as well as invasion of freedom of expression.

If a Judge, without any reason, orders the members of say one political party out of his Court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge. Even if appeal lies against such an order, the defect on which relief can be claimed, is the breach of fundamental rights

But even though the ‘Judiciary’, though appear to be an organ of State like the Executive and Legislature, is not specifically mention in Art. 12 and therefore, by way of judicial creativity a distinction has been drawn between Judicial and Non-Judicial function of the courts. In the exercise of Non- Judicial ,the court will fall within the definition of ‘State’ . The exercise of judicial function, the court will not come within the ambit of Art. 12.

It has been said by the court that, in exercise of its statutory power rule making powers, makes rules which contravene the fundamental rights of citizen, the rule could be held ultra-vires and appropriate remedy would be given under Art. 32 and Art. 226 could be sought[4].Likewise, the Chief Justice of India or of a High Court in exercising the power of appointment of officers  of respective court shall be amenable writ jurisdiction, if  appointment in violation of equality clause[5].

Judicial Interpretation On Judiciary as State

The decision of Justice Hidyatalluh in Naresh S. Mirajkar V State of Maharastra directly buttress the argument that judiciary must be within the ambit of Article 12. A preliminary review of prior cases shows a definite trend in this direction.


In A.R Antulay v. R.S. Nayak[7],although some of the judges resorted to the inherent jurisdiction of the Court in setting aside an earlier order of the Court for violation of the fundamental rights. While majority of the judges have expressly said that a wrong determination of the Court cannot be corrected by writ of certiorari, no judge has refuate this proposition.In any case Antulay was decided on appeal under Art. 136 and not under Art.32.

In Khoday Distilleries Ltd. v. Registrar General, Supreme Court of India[8], the court held that against a final order of a Court under Art 136 which has also been reviewed under Art.137, a petition under Art. 32 is not maintainable.

Cases For Judiciary Within Meaning of the State

Firstly one of the “three greatest department of the State”, the Judiciary should also be included within the meaning of Art 12. If it were not, the rule making power of the Court could violate the fundamental rights with impunity.” The dicta of Justice Frankfurter in Snowden v. Hughes[9]’ is relevant as the state! “…if highest Court of a State should candidly deny to one litigant a rule of law which is 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?”

Secondly, in light of the decision oi the Supreme Court in Ujjam Bai v. Union of India[10] 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 a 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. An oft-quoted example is that of a judge, who denies the entry of an “untouchable” into his courtroom. He/she would be guilty of violating Article 17. if a judge compels someone to answer incriminating questions, he is guilty of violating Article 20(3). A trial under such conditions should be stopped and a petition filed in the superior courts under their writ jurisdiction.“Thirdly, to ensure the same, it must be proved that the Supreme Court can issue writs to the High Courts.

Naresh S. Mirajkar v. State of Maharastra-An Overview.

Naresh Shridhar Mirajkar v. State of Maharashtra, is a landmark case in this respect. The petitioner, a journalist, argued that the ‘Trial Judge’s order to the press, restricting him  from publishing the testimony of the defence witness in a particular case was violative of his fundamental rights. It was urged before the Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare. No witness could claim protection from publicity on the ground that if the evidence is published, it might adversely affect his business. The arguments were summarily rejected. The High Court dismissed the petition on the ground that a judicial order was not amenable to writ jurisdiction. The Supreme Court, which admitted the petition under Article 32 for violation by the ‘Trial Judge’: judicial order of fundamental rights under Articles 19(i)(a) and 19(i)(g) of the institution brought up the following issues – firstly , whether a judicial order suppressing evidence of a witness on the grounds that his business would suffer, breaches the fundamental right to freedom of speech and expression, entitling the petitioner to invoke Article 32 and secondly, whether the Supreme Court could issue a writ to the High Court in this instance.

The majority held that suppression of evidence in question was necessary to nerve the cause of justice, that is, to ensure “fair trial’. It was also opined that the impugned order would not violate Article 19(1)(a), since the power to withhold publication or to hold an in camera trial were both protected by Article 19(2).Third party rights may be affected by the exercise of  such powers, however, they must be of secondary importance to the ‘effective administration of justice”. Moreover, since the freedom of speech was affected only incidentally and indirectly, there was no violation of fundamental rights.

Of particular interest is the dissenting opinion delivered by Hidayatullah,J. who states that:

‘The word ‘State’ in Articles 12 and 13 includes courts because otherwise Court will be enabled to make rules which take away or abridge fundamental rights and a judicial decision based on such a rule would also offend fundamental rights.’…A Judge ordinarily decides controversies between the parties. in which controversies he does not figure, but occasion may arise collaterally where the matter may be between the Judge and the fundamental rights of any person by reason of the Judge’s action.”

As regarding the amenability of the Judiciary to writ jurisdiction, the majority held that the order was to be challenged under Article 136 and not Article 32, it being a judicial order. The Constitution did not contemplate the High Courts to be inferior to the Supreme Court and therefore, their (the High Courts‘) decisions would not be liable to be quashed by a writ of certiorari issued by the Supreme Court. If the High Court erroneously assumes jurisdiction and persons are prejudiced by any order, the proper course is to apply to the Court to ‘lift the ban’. The dissenting opinion held that even assuming that the impugned order meant a temporary suppression of evidence; the Trial Judge had no jurisdiction to pass the order. in this regard, Hidayatuilah, J. held that evidence could not be prohibited perpetually. Judges may offend the fundamental rights under Articles 14, 15, 19, 20, 21 and 22 and in such cases an appeal to the Supreme Court would be the only logical solution.” Since there is no exception in Article 32 relating to the High Courts, it is assumed that High Courts are not excluded from the writ  of the Supreme Court.“ In this case, the oral order was clearly in violation of the fundamental rights of the petitioner. Firstly, the majority judgment says that a trial may be held in camera it’ the Court so desires and that curbing the publication of the proceedings would be an extension of the same inherent powers.” Here, the trial is not being held in camera, but only the testimony of one person. Secondly, the Court is not bound to ensure that the business interests of witnesses who testify before it are protected and certainly not so at the cost of an open and fair administration of justice. Thirdly, what would be the “appropriate” remedy against a final decision of Court which is prima facie violative of fundamental rights?” The logic in Hidyatullah, J.’s argument to bring the Judiciary under Article 12 seems to be appropriate, especially if due process has not been complied with.

The arguments brought up in this case are of far reaching consequence. This case deals with the freedom of expression issue, the one fundamental right that is potentially violated by the Judiciary frequently. However, the decision does make references to the other fundamental rights that could be violated by the Judiciary. Justice Hidayatullah’s decision makes a reference to two ways in which such violation may take place – firstly, through the Court assuming jurisdiction to make rules, and decisions based upon such rules being flawed and secondly, saying that the Judge’s action (not the judicial decision itself) could be violative of fundamental rights. Hence, much of the said violations arise from procedural matters. This procedure, in turn, needs to be aligned with fundamental rights themselves. for example, with Article 21’s “procedure established by law‘. With the expansive manner in which “life” and ‘liberty’ are being interpreted(even in their restricted senses), judicial decision making process could attract fair amounts of criticism.


The Supreme has bring many entities with the meaning of ‘State’. However, bringing the Judiciary under the same is a much more contentious issue. According to cases,show that the trend is mostly tilted in favour of rectifying mistakes that it had mad under a writ petition under Article 32, even if it is alter issuing a categorical statement to the effect that judicial decisions which have achieved finality are not open to question. Hence, it can be inferred that since it has been recognized that orders may contravene fundamental rights, the Judiciary too comes implicitly within the meaning of State under Article 12. It is also widely accepted that certain fundamental rights have been held to be applicable in the case of the Judiciary as well.

It must be also be taken in account that, if judiciary is included within the meaning of Art.12 then there will increase in the number of cases challenging the decisions of Court which affect the principle of stare decisis and there would be no settle question of law.

It is noticed that the Judiciary is averse to being considered State, possibly because it would hamper their “independent” character. They are sensitive to issues which directly come to bear upon their decision or discretion in matters. Even the judges may go wrong and therefore, it is only fair, and in keeping with the constitutional ideals, that these errors be corrected when brought to their attention. The irony in this discussion is that if at all, the Judiciary has to be included within the contours of Article 12, it will have to be done through the interpretation of the Courts themselves, since it is not part of the text of the Constitution. The reluctance of the Judiciary to expand the scope of Article 12 stems from its hesitation to voluntarily subjecting itself to scrutiny and criticism.

The Judiciary is a governing institution and an organ of State. In this era of judicial activism, judicial legislation and wide ranging capability to review matters, the Judiciary wields immense political power. Since the fundamental lights in their creation were to be used against center of power, it is high time that in appropriate matters. the Judiciary too, is subject to the rigours of Part lll of the Constitution.

It is therefore eminently desirable to bring the Judiciary, itself a creatureof the Constitution, under the purview of Part Ill, so that the highest of constitutional ideals are realized.

[1] Brinkerhoff-Fairs Trust v. Hills,(1930) 281 US 673;N.A.A.C.F v. State of Alabana (1958) 357 US 449.

[2] Beck v. Washington. (1962) 8 L.Ed (2d) 102 (110)

[3] Budhan v. State of Bihar.(1952-1954) 2 CC 157.

[4] Prem Chand Garg V. Exercise Commissioner. AIR 1963 SC 996.

[5]Naresh S. Mirajkar case, State of Punjab v Ajaib Singh AIR 1953 SC 10; Ranjit Singh v. Union Territory of Chandisgarh, (1991) 4 SCC 304.

[6] Prem Chand Garg V Excise Commissioner.AIR 1963 SC 996

[7] A.R Antulay v. R.S. Nayak (1998)2 SCC 602

[8] Khoday Distilleries Ltd. v. Registrar General, Supreme Court of India (1996) 3 SCC 114.

[9] 32 US 1 (1994)

[10] AIR 1962 SC 1621

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