JUDICIARY IS A STATE OR NOT UNDER ARTICLE 12 ?

Can we approach to supreme court under article 32 and highcourt under article 226 against Judicial orders for violation of fundamental rights . We can approach to SC and HC only on the violation of fundamental rights enumerated under part 3 of constitution . which should be violated only by the state .

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The question here is that , can we approach to sc and hc through the medium of writ petition for violation of fundamental rights by the court by it's decision and orders ? or whether a judiciary is a state or not?

LET’S CHECK IT

Part 3 of our constitution provides us fundamental rights , which is the basis of our life in a civil society. Which grants immunity to civilians against the arbitrary orders or actions of state. It is straight forward and a very clear that fundamental rights are the immunities to civilians always against the state .except in the cases of ‘untouchability’ under article 17. We can approach to judiciary for the violation of article 17 via mean of writs.

WHAT IS STATE?

In above para. We consider that that fundamental rights are the immunities to civilians always against the state . the question is that , what is state? . state defined under article 12 of constitution as…………
STATE SHALL MEAN
1. Parliament and government of india
2. Government and the Legislature of each of the States .
3. all local or other authorities within the territory of India
4. all local or other authority under the control of the Government of India.

EXAMPLE .
1. municipal corporations are comes under the purview of article 12 as a local authority under the control of the govt. Of india .

2. cbse board , because under the control of the central govt.

3. in rajasthan electricity board vs mohanlal 1967. Sc held that authorities or bodies which acts and performs functions like a government are also a state.

4. Board of control of cricket in india vs cricket association of bihar 2015 , sc in this case hel that BCCI controls all the activities of cricket in india , also represents india in internationally. Bcci is also liable to a writ jurisdiction .

Above this examples we can understand that what is the scope of article 12.

WRITS

Writ are the remedies to protect the fundamental rights for violation. There are 5 writs enumerated in our constitution . by writs we can approach to supreme court under article 32 and highcourt under article 226 against Judicial order.

1. HABEUS CORPUS , by this writ we can approach to sc and hc against any illegal detention . this writ generally means ‘ to present a body’ . a person who is illegally detained can only be competent to file a writ of habeus corpus. In the case of prisoner , any person can file writ on behalf of such person. Even in illegal custody of a minor child , we can approach to court to present such child before court with the purpose that the court order for the welfare of child

2. MANDAMUS , by this writ we can approach to sc and hc to command an inferior court or ordering a person to perform a public or statutory duty or any other authority to do certain act.

3. PROHIBITION , by this writ we can approach to sc and hc to command to stop or stay the procedure of any lower court who performs beyonds its jurisdiction .

4. CERTIORARI , by this writ we can approach to sc and hc to reviews a case tried in a lower court.

5. QUO WARRANTO , , by this writ we can approach to sc and hc to order restraining a person to act upon a place of public authority , which he is not legally authorized to do so.

JUDICIARY A STATE UNDER ARTICLE 12 OR NOT?

IN NARESH SRIDHAR MIRAJKAR VS STATE OF MAHARASHTRA AIR 1967 sc

In this case , one of the question in front of sc was that whether a supreme court can issue a order upon a writ of certiorari for the violation of fundamental rights. Supreme court held that highcourt doesnot comes under the purview of ‘inferior court’ according to writ of certiorari. which the supreme court reviews the order of highcourt as an inferior court.

Otherwise sc held that whether the decision of court whether right or wrong , if the decision is pronounced beyond the jurisdiction. Such decision maintaineable for writ . it has been held that even if a Court is a State (under Article 12) the High Court cannot be issued a writ under Article32 against its judgment for it is presumed that such a judgment won't violate FR.

A R ANTULAY V/s R S NAYAK 1988 SC 1531

In this case it has been held that supreme court can’t pass an order or issue a direction which would be violative of FR without jurisdiction . it can be said that the the expression ‘state’ under article 12 includes judiciary also.

According to above case we can conclude that judiciary comes under the expression ‘state’ under article 12.

REASONS FOR JUDICIARY SHOULD BE A STATE………

1. Court may violate fundamental rights by his decision and order in any mean. Example without jurisdiction , interest of a court in subject matter or pecuniary or by any relation with the beneficiaries of the orders and decision of court. To avoid discrimination or wrong of the court. Judiciary should be a state.

2. Sc judges appointed by the president and The Chief Justice of a High Court is appointed by the President with the consultation of the Chief Justice of the Supreme Court and the Governor of the State. The other judges are appointed by the will of President, Governor and the Chief Justice of High Court. The presidential post and the central govt. in appointment of sc judge is also a ‘state’ and state govt. and governor in appointment of hc judge also a ‘state’ .

3. Article12. definition does not say fully what may be included in the word 'State' but, although it says that the word includes certain authorities, it does not consider it necessary to say that courts and Judges are excluded. The nature of the definition in Article12 is expressly inclusive but not exhaustive.

4. Salaries of judges given to them by the consolidated fund. • Salaries, allowances and pensions of the judges of the Supreme Court. Pensions of the judges of high courts , Administrative expenses of the Supreme Court.

JUDICIARY AS STATE IN UNITED STATES

The decision of the U.S. Supreme Court in Commonwealth of Virginia v. Rives18is often cited to show that a judicial decision is included within the scope of State action for the purposes of the 14thAmendment to the Constitution. It has been held in Brinkerhoff-Fairs Trust & Savings Co. v. Hill19that a decision that deprives a person of his/her existing remedy without offering him/her an opportunity to be heard would be violative of the “Dude Process” clause. From the substantive point of view, it has been held that a common law inconsistent with a fundamental right, if enforced, would result in the Supreme Court issuing a certiorari to the authority. Hence judicial officers cannot discriminate in their judicial capacity, wither in enforcing common law or even private agreement. Through the agency of the courts, the State should not be guilty of discrimination; this does not necessarily entail that decisions would remain uniform or free from error. As was held in Fay v. People of the State of New York

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judiciary comes under the expression ‘state’ under article 12. We can approach to hc and sc for the violation of fundamenatal rights by the judicial orders only when such orders and decision unlawful in the eyes of law.

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