The question that whether the Judiciary is a state under Article 12 of the Constitution of India arouse for consideration of the Supreme Court of India in NARESH V. STATE OF MAHARASHTRA[1].
However, the judiciary, it is said, though not expressly mentioned under Article 12, it should be included within the expression ‘other authorities’, since courts are set up by statutes and exercise such powers as conferred by law. It is though suggested that discrimination may be brought about even by 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 organs of the State.
In the above named case, it was held that even if the court is the State, a writ under Article 32 cannot be issued to the High court of competent jurisdiction against its judicial orders because such orders then cannot be said to violate the fundamental rights. However, Mr. H.M. Seervai is of the opinion that judiciary should be included in the definition of ‘State’ and a judge acting as a judge is subject to the writ-jurisdiction of the Supreme Court.[2] Later in A.R. ANTULAY V. R.S. NAYAK[3], it was held by the Supreme Court that the courts cannot pass any order or issue any direction which would violate the fundamental rights of the citizens, and hence, it can be asserted that the expression ‘State’ as defined under Article 12 of the Constitution of India includes ‘judiciary’ also.
[1] AIR 1967 SC 1
[2] H.M. Seervai, Constitutional law of India, p.155(1st edi.)
[3] AIR 1988 SC 1531
Post Contributed By:
Souradeep Rakshit
Indian Institute of Legal Studies
