Whether Judiciary is the “state” or not under Article 12 of Indian Constitution?

Whether Judiciary Is “State” or not under Article 12 of Indian Constitution

This article is written by SAMIKSHA SARRAF, student of BA.LLB second year studying at LOVELY PROFESSIONL UNIVERSITY, PUNJAB. This article discusses the question that whether judiciary comes under the ambit of Article 12 in the definition of “STATE” with related case laws.


Our 3rd part of Indian constitution is called Magna Carta of the constitution because our constituent assembly has given a long and comprehensive list of fundamental rights to the citizens of India. And t here is nothing and no one superior than those fundamental rights regardless of their cast, creed, religion, rank or status etc. These rights must to be covered and protected by state. If any situation arises where state is failed to secure the fundamental rights, the citizens are given the remedy to claim them against the State with the help of filing a writ petition. Hence, it’s very important to have the knowledge about what comes under the ambit of ‘State’ for the safety and surety of those rights.


“Article 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 India.”

State as mentioned under Article 12 have 4 components:

(a) The Government and Parliament of India– Government means any branch or institution of department. Parliament shall include the President, the House of People (Lok Sabha) and Council of States    ( Rajya Sabha).

(b) The Government and Legislature of each State– State Legislatures of each State include the Governor, Legislative Council and Legislative Assembly or any of them.

(c) Local Authorities within the territory of India– Authority means

(I) Power to make rules, bye- laws, regulations, notifications and statutory orders and implement them.

(d) Other Authorities– Authorities apart from local government working within or outside the territory of India.

R.D Shetty v. Airport Authority of India – Justice P.N Bhagwati gave five Point test. This is a test to check whether the particular body, comes under the ambit of state or not, as follows-

  1. Financial assent/aid or funding should be the chief source of funding for the particular body. For example – the entire capital is providing or managing by the government.
  2. Deep and pervasive control of the State on the particular body, so that the state can make or compel the body to do something as per own directions.
  3. The activities done by the body are in public domain or public significance and closely related to the function of the government. It simple means, such functions should be governmental in its core.
  4. A branch of Government transferred to a corporation.
  5. Enjoys “monopoly status” which is conferred or included or protected by the state.


The present status that whether or not the Judiciary is ‘State’ relies upon at the judicial and non-judicial capabilities and function of the Judiciary. Hence, the scope for blaming judiciary for violation of fundamental rights of the citizens based on the nature of function performed by it.


  1. Budhan v. State of Bihar 1221OF 1998 – In this case, SC has regarded the action of the Judiciary as a state action under Article 12 in the case of violation of Article 14, however it created a challenge that there should be a ‘positive discrimination’ which might basically depend upon the facts and situations of the case.
  2. B. Naresh Sridhar Mirajkar v. State of Maharashtra 1967 AIR, 1 1966 SCR The court held that it is inappropriate to assume that a judicial decision given by a judge related to a matter br for adjudication can affect the fundamental rights. The court has further held that the findings of fact recorded by the judge are right or wrong and the conclusion of law drawn by him suffers from any infirmity or not is to be determined by the appellate court if the party aggrieved by the decision takes the matter up before it.
  3. c. Maharashtra State Judicial Services Association v. High court of judicature at Bombay -SC held that the administrative decision of high court about inter se seniority between promote and direct recruit of District judge can be challenged under Article 226 before the High court. Thus it is observed that administrative decision of the court can be challenged by filing a write petition under Article 226 in the High court itself.
  4. Prem Chand Garg v. Excise Commissioner, H.P – The court held that the rules made by the supreme court in the exercise of the power under Article 145 can not be exercised so as to affect the fundamental rights. Similarly if chief justice makes any appointment of the officers in exercise of his power under Article 146, he shall be amenable to the write jurisdiction if the appointment is made in the violation Article 14-16 of the constitution of India.


Judiciary is the best observer towards any infringement of fundamental rights. Therefore, judiciary performs essential position in improvement, upliftment and evolution of society in general and in making sure suitable governance. The judiciary is playing its role well towards the Indian society in trying to maintain the social stability by delivering justice and protecting rights.


The Judiciary isn’t expressly mentioned in Article 12. Bringing judiciary totally below Article 12 will be a great deal of confusion because it comes with an inference that the very guardian of our fundamental rights is himself able to infringing them.


  • The word ‘State’ under Article 12 has been interpreted through the courts as according to the changing times because society is dynamic in nature, its demands change with passage of time. So it has r wider meaning may be implemented to a larger exten
  • Judicial body while acting “Judicially” does not fall under the ambit of State however when it plays any administrative or comparable activity e.g engaging in examination or granting certain licenses, it will come under the definition of “state” and the remedy can be taken if any fundamental rights get violated.


1.Art. 12, the Constitution of India.

2.Samaraditya Pal, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION, 415 (1st ed., 2014).

3.Budhan Choudhary v. State of Bihar, AIR 1955 SCC 191.

4.AIR 2002 SC 1181

   5.Naresh Sridhar Mirajkar v. State of Maharashtra 1967 AIR,

  1. AIR 1963 SC 996

Author: Samiksha Sarraf,
Lovely Professional University, 2nd year B.A,LL.B , Law student

Leave a Comment