EVOLVING STATEHOOD: RETHINKING JUDICIAL ACCOUNTABILITY UNDER ARTICLE 12

Mr. Pranav Mathur

The Constitution of India was drafted by visionary leaders of India who had the foresight to predict, or at the very least gauge, what the socio-political landscape of the country would shape to be. Their intellect is consistently evident throughout the provisions of the Constitution. Most prominently, this foresight is apparent in those provisions which have deliberately been chosen to be of a vague nature, leaving scope for future interpretation, expansion and accumulation of ideas and principles. One of the most common manifestations of this foresightedness is resonated within the concept and nuances of ‘State’.

‘State’ is defined under Article 12 of the Constitution of India. The fact that it contains the phrase “other authorities” is a testament to the fluidity pertaining to the spirit of the Constitution of India, and has been interpreted beneficially by the judiciary on numerous occasions. According to the literature of Article 12, State includes, as a general principle, the union and state legislatures as well as authorities, local or otherwise, which has been interpreted to include the executive, as well as other statutory bodies. All authorities so mentioned under Article 12 are subject and answerable to Part III of the Constitution, dealing with Fundamental Rights. Essentially, this implies that the violation of a Fundamental Right is necessarily by a State, bearing certain exceptions in mind.

On that note, it is worth stating that no court or judicial authority has ab initio been conferred with the title of State under the Constitution of India. This issue of inclusion of judiciary within the ambit of Article 12 raises pertinent questions on judicial accountability having far reaching concerns with respect to not only the separation of power but the finality of decisions as well. In the present Blog, the author seeks to identify the applicability of Article 12 on the judiciary, and its accountability as one of the organs of the State, particularly that of the Hon’ble Supreme Court. Further, emphasis will also be given to the construction of the phrase “other authorities” that has been done by the judiciary, especially in cases relating to the Government.

Interpretation of ‘Other Authorities’ under Article 12

The Hon’ble Supreme Court has consistently expanded the literature surrounding Article 12, mostly by attaching to it other pre-requisites to be fulfilled by an entity, for it to be recognised as a State. In its seminal decision of Raman Dayaram Shetty v. The International Airport Authority of India & Ors., the Hon’ble Court propounded that entities or organisations under the financial and administrative control of the Government shall be considered State under Article 12. In addition to this control, they must also be performing functions resembling those performed by the Government in pursuit of public welfare.

At this juncture, delineation has to be made between the abovementioned functional test which has been propounded by the judiciary, and the structural test which exists in the Constitution of India. Earlier decisions, most notably Rajasthan State Electricity Board v. Mohan Lal & Ors., have given great emphasis to the latter. This test propounds the inclusion of instrumentalities that have a direct structural link, whether of subordination or otherwise, to the Government, in order to consider them State under Article 12. The abovementioned case had also considered the ejusdem generis rule, and ruled against its applicability for the want of a common effective link between the various entries of Article 12.

However, in contrast to this, is the considerations given under the abovementioned R.D. Shetty case, as well as Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., which have expanded the scope by checking the degree and nature of functions performed by the instrumentality of the Government. While the structural test was reserved in its application so as to consider agencies which could establish a direct, credible and unquestionable link to the Government, the functional test widens the ambit by identifying that an instrumentality need not be structurally within the folds of the Government to be controlled by it, and could be either performing a public function (tasks that government ought to perform because of its nature), or could be under particular obligations to perform a statutory duty that impacts the basic rights of the citizens.

There have been other cases, such as Chander Mohan Khanna v. NCERT & Ors., which have modified the abovementioned scope with respect to instrumentalities of the State, by highlighting That every such instrumentality having a nexus with the Government should not be interpreted within the folds of Article 12, and reasonable caution must thus be exercised in this regard. Naturally, a multiplicity of opinions, oftentimes contrary to certain opinions held priorly, lead to the inquiry about the inclusion of other organs, organisations or bodies within the definition of Article 12.

As seen above, the judiciary adopted the functional test due to its ability to cover a greater number of agencies. However, the applicability of this test in order to include the judiciary within the ambit of Article 12 has been rather unsuccessful, and the next section shall explore the same.

Judiciary under The Lens of Article 12

The Hon’ble Supreme Court has, on numerous occasions, deliberated upon the status of a State being conferred to the judiciary under Article 12. If the vagueness in the literature of Article 12 is to be considered, with a special emphasis on the phrase “other authorities”, it rather lucidly explains how inevitably this question was to arise before the Court. For instance, in the case of Rupa Ashok Hurra v. Ashok Hurra & Anr., the five-judge bench of the Supreme Court discussed the judicial function of Courts at length in order to opine whether such acts qualify the judiciary to be considered under the ambit of Article 12 and hence amenable to the writ jurisdiction. As a settled position of law, it has been considered that no judicial order, in its passage and application, can be said to violate any Fundamental Rights under the Constitution, and therefore, does not warrant the writ jurisdiction. Consequently, since Fundamental Rights are only enforceable against a State, thus there is no invocation of the writ jurisdiction, effectively implying that the judiciary should not be considered under the ambit of Article 12.

To add to the explicitness of the conundrum, Supreme Court in its decision of Riju Prasad Sarma & Ors. v. State of Assam & Ors., opined that when the judiciary performs judicial functions, namely, passing orders or judgments, or opining upon pleadings, then it shall be considered outside the purview of Article 12. However, when dealing with its own employees, or acting in an otherwise administrative capacity, it shall be considered as a State for all legal and legitimate purposes. Quite naturally, this leads to the confusion of existence of an action taken as a judicial decision or an administrative action. This debate, a pressing topic under the realm of constitutional and administrative law, is inconclusive as of yet, with nuances being introduced from either side at various points of societal development. Even during the deliverance of this opinion, it was taken into consideration that this cannot be exhaustive and is amenable to further moulding.  Two years later, in the case of Justice C.S. Karnan v. The Honourable Supreme Court of India, the Delhi High Court relied on the abovementioned judgment in order to hold the petitioner’s claims for the recognition of the judiciary within the realm of Article 12 infructuous. While the claims pertained to the curtailment of Fundamental Rights by the action of the Registry of the Hon’ble Supreme Court, the decision against it considered that all curtailments of freedoms caused by a decision of the judiciary is reasonable in nature, which does not warrant the invocation or imposition of any writs upon such a judicial decision.

The contextual nature of the definition of State becomes glaringly obvious when seen under the light of the Constituent Assembly Debates pertaining to it. While there were scepticisms with regards to the vagueness of the term authority under the present Article 12, with certain opinions moving for its non-inclusion in the final draft as well, the Assembly preferred the wisdom and foresightedness Article 12 contains within itself. It is worth noting that even then, there had been no explicit doubts with regards to the inclusion of judiciary under the fold.

While considering these deliberations from an analytical perspective, various caveats come to the fore. If one considers the final text of Article 12 of the Indian Constitution, along with all the judgments previously mentioned, and those others which provide similar interpretations, it is evident that the criteria for an authority to be a State is not straightforward. While the text of Article 12 just lays down the authorities which shall form a part of State without enunciating upon any criteria why these authorities have been included in the fold, the judgments only clarify criteria for certain sets of authorities, and do not provide a comprehensive formula for any authority to fulfil in order to be included within the ambit of State. In this context, all previous criteria given for an entity to be considered a State ar fulfilled by the judiciary, except for the control of the Government on such entity. The judiciary fulfils a public purpose by its dispensation of justice, and while it may not be controlled by the Government, is an important pillar of Indian polity.

Even in the abovementioned Riju Prasad Sarma case, the bench opined that the judiciary has not been explicitly excluded from the definition of State under Article 12. There is definitely a case to be made in favour of such inclusion. The only uniform criterion within the realm of Article 12 is the amenability of authorities to the Fundamental Rights. It can be argued that the judiciary ingrains this principle in all of its decisions and will never pass any judgment in contravention of or derogation to these rights.

Final Thoughts

Therefore, as a final conclusive note, the complete inclusion of the judiciary within the concept of State is not a futile proposition. While this discussion has provided some clarity, it is by no means exhaustive. There are various points of discussion that have either been left opened or have been newly opened up in the wake of such clarity. The Constitution of India espouses the separation of powers in a systematic manner which stands to be under a questionable light should the judiciary also come inside the ambit of Article 12, a space predominantly occupied by the legislature and the executive. This also has the potential to affect the balance of power, and to certain extents, the independence of the judiciary enshrined under Article 50 of the Constitution.

Moreover, it directly implies the increase in litigation, by individuals who consider themselves sufferers of an adverse decision of the judiciary. Also, if the judiciary is recognised under the realm of “State” under Article 12, being amenable to writ jurisdiction, there will be questions about the finality of the judgments. The judiciary might stand to lose the spirit and sanctity it is built upon, which, as mentioned hereinabove, will further litigation, running contrary to the goal of decreasing judicial pendency.  

That said, while such cases may rise, stricter punishments along with a limited scope of appeal against such penalties, for frivolous petitions seeking writs against judicial decisions, may serve as appropriate deterrent, enabling judiciary to be held accountable like any other state authority under Article 12. Even though this transition of judiciary into a State might pursue transparency, it would risk turning its independence into just another administrative illusion and leave justice entangled in its own procedure. The question thus raised perhaps isn’t whether we can call judiciary state, but whether we should. While blurring lines between justice and governance may promise reform, but who ultimately decides if the price is too steep?

[Mr. Pranav Mathur is a 4th Year BALLB student at Faculty of Law, Manipal University Jaipur]