In the previous piece, this author had demonstrated through application of principles of interpretation and with the aid of Constituent Assembly Debates (CAD) that the Judiciary does not fall within the meaning of “the State” for the purposes of Article 12. This effectively leads to the conclusion that the Judiciary does not have the Constitutional mandate to interfere with fundamental rights on the ground of either constitutional morality or public morality, both not being the same, in the absence of State action. The judiciary’s preserve is limited to examining the constitutional validity of State action when it is challenged either under Articles 32 or 226 for abridgement of fundamental rights. This also means that while the remedies under Articles 32 and 226 are available against the State since the State can interfere with fundamental rights, the same remedy is not available against the Judiciary when it discharges judicial functions. Does this mean that the Judiciary falls within the definition of State when it discharges executive functions in the exercise of its rule-making powers?
Yukti 