Whether Judiciary is A State U/A 12 Or Not?

Whether Judiciary is A State UA 12 Or Not

Judgment of Rupashok hurra vs. Ashok hurra (AIR 2002 SC 1771)

Introduction to 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 the Government of India.”

The question,”Whether judiciary is a state or not?” arises when the concept of ‘ sovereign functions ‘ is introduced. Here, sovereign functions stands for beneficiary works done for the welfare of the state. All the authorities who have sovereign functions fall under the ambit of Article 12 . The Judiciary is not explicitly mentioned in Article 12 as a State. However, Judiciary having the rulemaking powers can be included in the definition of the State. The above conclusion is supported by Article 13 of the Constitution which lays down that any laws (includes rules, regulations, etc.) in derogation of the fundamental rights is void. Since the Judiciary in India has the powers to make rules, if it were not “the State” for the purposes of Part III of the Constitution, the rules made by it would not be held violative of the fundamental rights. Many cases supported that judiciary is under the “state” and many cases held that it shall not be covered under the article 12 !

In Rati lal vs. State of Bombay(1954 AIR 388, 1954 SCR 1035) , it was held thay judiciary doesn’t fall under the provision of Aritcle 12. Hence, it cannot be considered as ‘state’.

In Naresh vs. state of Maharashtra (AIR 1980 SC 1168) , The court held that fundamental right is not infringed by the order of the court and no writ can be issues to high court. However yet in another case,it was held that the hugh court judge is much a part of the state as an executive!

In supreme court cases like A.R Atulay vs. RS nayak(1988 AIR 1531 1988 SCR Supl.) and N.S mirajkar vs. state of Maharashtra (1967 AIR, 1 1966 SCR (3) 744), it has been observed that when the rulemaking power of judiciary is conserned it is state but when exercise of judicial power is conserned is not a state!

Judgement of Rupaashok hurra vs. Ashok hurra (AlR 2002 SC 1771)

  • A Bench containing Chief Justice of India, Justice S.P. Bharucha, and his friend justices, Justice S.M. Qadri, Justice U.C. Banerjee, Justice S.N. Variava, and Justice S.V. Patil conveyed a landmark judgment that opened another aspect in the justice conveyance arrangement of this
  • Article 32 conjures the writ jurisdiction in the idea of Habeas Corpus, Quo Warranto, Mandamus, Prohibition, and As to writ jurisdiction, it is set essentially similar to the High Courts in India situated as the court of Kings Bench in England. It is a very much settled rule that details related to the right of writs in English law play no part to play under our constitutional plan.
  • It Is, notwithstanding, essential to note that a writ of certiorari to call for records and look at something very similar for passing a proper request is given by a better court than a sub-par court which ensures the record for
  • On cautiously inspecting the chronicled foundation and the idea of writ jurisdiction, which is of a better sort over sub-par courts and councils, the court believed that a writ of certiorari can’t be given to co-ordinate courts and even more so to predominant.
  • However, the jurisdiction and orders of a High Court are at risk to be adjusted by the Supreme Court in its appellate jurisdiction under Articles 132[3], 133[4] and 134[5] just as under Article 136[6] of the Constitution, the High Courts are not established as substandard courts in our constitutional plan.
  • Therefore, the apex court would not give a writ under Article 32 to a High Court. Further, neither a more modest Bench of the Supreme Court nor a bigger one can give a writ under Article 32 to some other Bench of the Supreme Court. We might additionally notice that the prevalent courts of justice don’t fall inside the ambit of “state” or “different specialists” under Article 12[7] of the Constitution.

 Written By- Nandini

Lovely Professional University

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