Introduction
The Indian Constitution, a living legal document, has enshrined certain fundamental rights as inviolable and enforceable against the “State.”
But what constitutes the “State”?
Article 12 provides this crucial definition for Part III (Fundamental Rights) of the Constitution. A persistent question has been whether the judiciary—one of the three branches of government—is included within the ambit of Article 12’s “State.” This article examines the constitutional interpretation, debates, and judicial pronouncements regarding the status of the judiciary under Article 12, drawing on landmark case laws and doctrinal analysis.
Article 12: Definition and Scope
Article 12 of the Indian Constitution reads:
“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 authorities within the territory of India or under the control of the Government of India”
The definition is inclusive, not exhaustive. It covers:
- The Executive: Government of India and state governments.
- The Legislature: Parliament and state legislatures.
- Local Authorities: Municipalities, panchayats, and similar bodies.
- Other Authorities: Bodies acting under state control or exercising public functions.
The primary reason for this definition is to ensure that fundamental rights can be enforced against all bodies exercising governmental power.
The Judiciary and Article 12: The Legal Debate
Is the Judiciary Explicitly Included?
Notably, Article 12 does not expressly mention the judiciary. The term “judiciary” is absent, prompting debates on whether court actions, especially judgments, can be scrutinised under provisions like Article 13, which declares laws inconsistent with fundamental rights as void.
This has led to two divergent lines of thought:
- Judiciary as ‘State’: All forms of state power, including the judiciary, must align with constitutional mandates—especially in administrative or non-judicial capacities.
- Judiciary Excluded: Judicial independence and the irreversibility of judgments would be compromised if court decisions could routinely be challenged for violating fundamental rights.
Administrative vs. Judicial Functions
The crux of the dispute lies in differentiating between judicial and administrative (or non-judicial) actions by courts:
- Judicial Functions: When courts decide cases and deliver judgments, these actions are considered judicial.
- Administrative/Non-Judicial Functions: When courts establish rules for administration, appoint staff, or undertake similar actions, they operate in an administrative capacity.
Some courts and scholars argue that while the judiciary in its administrative functioning can be “State” under Article 12, it is not so when performing strictly judicial functions.
Landmark Case Laws on the State under Article 12
Major Judicial Interpretations
Over time, courts have sought to clarify the meaning of “other authorities” and the inclusion (or exclusion) of bodies under Article 12.
1. Electricity Board, Rajasthan v. Mohan Lal (1967)
In this foundational case, the Supreme Court held that “other authorities” under Article 12 could include any authority created by the Constitution or statute with government-like powers, regardless of its label or business activity. This principle laid the groundwork for including statutory corporations and utilities within the definition of “State”.
2. Sukhdev Singh v. Bhagatram (1975)
The Supreme Court, by a majority, held that statutory corporations (like ONGC, LIC, and IFC) are “State” as they act as instrumentalities of government, making enforceable decisions with widespread socio-economic impact.
3. Ramana Dayaram Shetty v. International Airport Authority of India (1979)
This case established a “five-point test” to identify whether a body is a “State,” focusing on government control, funding, and functional character (public vs private)6. This test continues to be influential in determining the reach of Article 12.
Is the Judiciary a ‘State’? Key Case Laws
Early Views
The judiciary’s position under Article 12 has been examined sporadically and remains nuanced.
1. Naresh Shridhar Mirajkar v. State of Maharashtra (1966)
Here, the Supreme Court avoided directly classifying the judiciary as “State,” but held that judicial orders—unlike administrative actions—could not be challenged under Article 32 on the grounds of violating fundamental rights.
2. A.R. Antulay v. R.S. Nayak (1988)
The Court reiterated that judicial actions are not susceptible to challenge under Article 32, since such scrutiny would undermine finality and independence of judgments.
3. Rupa Ashok Hurra v. Ashok Hurra (2002)
A Constitution Bench of the Supreme Court reaffirmed that judicial orders, particularly of superior courts, do not fall within the sweep of Article 12. Thus, no judicial proceeding could be said to violate fundamental rights, and constitutional remedies cannot be used to assail judgments on this ground.
4. State of Rajasthan v. Union of India (1977)
This case clarified that while the “other authorities” phrase is broad, courts (in their judicial functions) are not intended targets, given their unique role as guardians and not violators of rights.
Administrative Capacity Exception
Despite the above, several judgments accept that rule-making, appointment of staff, or other administrative actions by courts can be challenged for violating fundamental rights, since in these moments the judiciary acts not qua court, but as an administrative authority
Doctrinal Analysis and Rationale
The Functional Approach
The functional test adopted by the Courts emphasises the real nature of the power being exercised:
- If an act is legislative or administrative—such as framing rules or regulations—it can be challenged as violative of fundamental rights, as it is a manifestation of “State” action.
- If it is a judicial pronouncement—such as a verdict or order in a dispute—the act is protected from being challenged for violating fundamental rights.
The Principle of Judicial Independence
Exempting judicial acts from the purview of Article 12 ensures the independence and finality of the judiciary. Subjecting judgments to fundamental rights challenges would cause every verdict to be perennially unsettled and erode the authority of courts
Comparative Perspective
Unlike India’s explicit definition, some foreign constitutions (such as the U.S. Constitution) avoid defining “State” but rely on general principles. Indian jurisprudence, by contrast, has tried to balance expansive rights enforcement with the unique position of courts as arbiters—rather than violators—of rights.
Tabular Summary: Status of Judiciary as ‘State’
| Function Type | Judiciary considered ‘State’? | Leading Cases |
| Administrative (e.g., appointments, rules) | Yes | Sukhdev Singh v. Bhagatram; Rupa Ashok Hurra v. Ashok Hurra |
| Judicial (deciding disputes) | No | Naresh Shridhar Mirajkar; A.R. Antulay; Rupa Ashok Hurra |
Conclusion
The sweep of Article 12 is fundamental to the enforcement of the Indian Constitution’s rights regime. Its inclusive wording empowers citizens to seek remedies against nearly all instrumentalities of government. However, the judiciary, by virtue of its independent constitutional status, occupies a special position. Courts have repeatedly clarified that judicial acts do not come under the definition of “State” for the purpose of fundamental rights challenges, protecting their judgments from being assailed under Part III. Nevertheless, when the judiciary acts in a non-judicial or administrative capacity, it is subject to the same constraints as the executive or legislature and can be held accountable under the Constitution. This nuanced position maintains a delicate balance between robust rights protection and the imperative of judicial independence. In conclusion, the judiciary is generally not considered “State” under Article 12 when acting judicially, but can come within the definition of “State” in its administrative or non-judicial roles. This is the prevailing judicial interpretation, which carefully distinguishes the dual role of Indian courts—preservers of constitutional rights, yet simultaneously bound by them in their administrative endeavors.
