The position of the judiciary as a ‘State’ under Article 12 of the Indian Constitution is determined by the nature of the actions taken by it. If the judiciary performs a judicial action then it will not be counted as a part of the ‘State’. Whereas, the judiciary will come under ‘State’ while performing a non-judicial action.In Budhan v State of Bihar, it was held that in case of violation of Article 14, the action of the judiciary would be considered as a state action. However, the court imposed a condition upon this assertion. The court stated that the discrimination being done by the court should be a ‘wilful and purposeful’ one, depending largely upon facts and circumstances of each case.
The same issue came into the light in Naresh Shridhar Mirajkar v State of Maharashtra. In this case, the petitioner had said that a decision of the Bombay High Court had violated his rights under Article 19(1)(a). The majority disagreed with the petitioner and affirmed the decision of the High Court stating that there was no infringement of any right of the petitioner under Article 19(1)(a). While determining the question that whether a writ of certiorari can be issued against the High Court, the majority relied on Ujjam Bai v State of U.P. It had ruled that any judicial or quasi- judicial authority cannot violate fundamental rights while exercising its jurisdiction. Accordingly, it was held in Naresh Shridhar Mirajkar case that a certiorari cannot be issued against the High Court.
The issue raised in Naresh Mirajkar case was again addressed by the Supreme Court in Riju Prasad Sarmah v State of Assam. In this case, it was contended that all the three organs of the government form a part of the State. Thus, judiciary cannot perpetuate discrimination by violating Article 14 of the Constitution. The court held that the judiciary is not a ‘State’ when it performs judicial actions but is answerable for its administrative actions under the writ jurisdiction.
Comment: The orders passed by a judge in a judicial capacity cannot be subjected to a fundamental rights scrutiny. Such scrutiny would only be permitted when the orders passed by a judge are administrative in nature.