Prepared by Assist. Professor Rekha Khandelwal
Part – III Fundamental Rights ( General)
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Fundamental Rights ( An Introduction)
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The Concept of State ( Article – 12)
Question- Whether the University is a State or not?
Whether the BCCI is State or not?
Whether Judiciary is State or not?
Judiciary is not explicitly mentioned under Article 12 ‘definition of State’ and there is a lot of contradict opinions on the same issue.If Judiciary is brought completely under Article 12 ‘definition of the State’ then it creates a confusion. Judiciary can infringe our fundamental rights as a state whereas judiciary is defender of our rights
Naresh v. State of Maharashtra,[1] AIR 1967 SC 1
The question arose first time in the case, Whether the Judiciary was included within the definition of the State in article 12.
It was held that even if a Court is the State a writ under article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders because such orders can’t be said to breach the fundamental rights.
So, At the time of rule making power or when a judiciary is exercising any of its administrative power, then the judiciary can be liable as State and one can claim breach of his fundamental right but judiciary is not a state when it is exercising its judicial power. Therefore, in this case, it depends on the nature of function which the body is exercising.
A.R.Antulay v. R.S. Nayak,[2] AIR 1988 1531
in view of the judgement of 7 judge bench of the supreme court it has been held that the court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens it can be said that the expression is state as defined in article of the function includes Judiciary also.
So, judiciary is not a state when it is exercising its judicial power. when a judiciary is exercising any of its administrative power or rulemaking power, then the judiciary can be liable as State and one can claim breach of his fundamental right.
In Rupa Ashok Hurra v. Ashok Hurra,[3] AIR 1999 SC 2870
The Apex Court upheld and ruled that no judicial action could be invoked for the violation of any fundamental right. It was a permanent condition of law that the High Courts not come under “state” or “other authority”. Article 12 argues that The Superior Judicial Body does not meet the definition of a state when it acts “judicially” but when it performs an administrative or similar function, such as conducting an examination.it will fall under the definition of “state” and that remedy could be sought in that context only in case of violation of fundamental rights
So, it is impossible to make a close-ended category of entities which would be considered to be a State within the meaning of Article 12 of the Constitution in considering various views and tests recommended by Supreme Court.
[1] Naresh v. State of Maharashtra, AIR 1967 SC 1AIR 1967 SC 1
[2] A.R.Antulay v. R.S. Nayak, AIR 1988 1531AIR 1988 1531
[3] In Rupa Ashok Hurra v. Ashok Hurra, AIR 1999 SC 2870 AIR 1999 SC 2870
