The judiciary although an organ of the State like Executive and Legislature is not specifically mentioned in Article 12. So the question often arises whether or not judiciary is state under Article 12. What if the Court violates the Fundamental Right enshrined in our constitution with utmost care. The controversy over this matter often arises whether the omission is deliberate or not. The judiciary over this question have come to conclusion that the omission of not including judiciary under Article 12 is deliberate.
Judiciary can come under the umbrella of State or not it depends upon the distinction between the judicial and non judicial functions of the Courts. If the Court is exercising non judicial functions, in the exercise of its statutory rule making powers and makes rules which contravenes the Fundamental Rights of the citizens, the remedy is available under Article 32 and 226. So under this function Judiciary is a State. The non-judicial function can be statutory-rule making power or appointment of officer etc. but when the Court is exercising its judicial function then what it purports to do is to decide the controversy or to determine scope of Fundamental Right vis-a-vis legislative and Executive action. Then under this case even if it reaches to wrong determination it does not constitute breach of Fundamental Rights as they are competent to make a right or wrong decision. The remedy against such a mistake is not in alleging violation of the Fundamental Rights but to approach the appropriate Court with such allegation in appeal and when the Court is the Supreme Court, then there is remedy of review jurisdiction of the Supreme Court.
In Narersh S. Mirajkar v. State of Maharastra [AIR 1967 SC 1], it was decided that even if a Court is State, a writ under Article 32 can’t be issued to the High Court of competent jurisdiction against its judicial order because such order cannot be said to violate the Fundamental Rights. What the judicial decision purports to do is to decide the controversy between the parties and nothing more.
In A.R. Antulay v. R.S. Nayak [AIR 1988 SC 1531], it was held that the Court could not pass an order or issue a direction which would be violative of Fundamental Rights so, it can be said that the expression “State includes judiciary also. If we include judiciary in “State”, then it will lead to multiplicity of proceeding by raising violation of Fundamental Rights, first in appeal and then in writ proceedings (negative implication of inclusion of Judiciary in State). Another point is that, however, by inclusion of Judiciary in Article 12 the Court will become obliged to enforce DPSP also as Article 36 will bind then as much as Legislature and Executive. But as a guardian of the Constitution, the Court must be duty bound to give effect to DPSP as to Fundamental Rights irrespective of their inclusion of State.