In the previous piece under this column, this author had expanded on the relationship between constitutional morality, public morality and moral diversity. As part of the said discussion, this author had opined as follows:
“Is the Judiciary part of “the State” under Article 12? While there exists a significant amount of debate around this question, the Supreme Court has held that Courts are not “State” when they exercise judicial functions, but may attract the definition in the exercise of non-judicial or administrative functions.
What this means for the discussion at hand is that, for the purposes of imposing reasonable restrictions on fundamental rights available under Articles 19(1)(a), 19(1)(c), 25(1) and 26 citing “public morality” or “public heath” or “public decency” or “public order”, the judiciary does not fall within the definition of State. That power is exclusively available to the Executive and the Legislature, which constitute the State. This position is consistent with the history of the drafting of the Constitution on availability of (a) fundamental rights, and (b) constitutional remedies against the State to enforce fundamental rights through Courts of law either under Articles 32 or 226.”
Yukti 