Full Judgment Text
2023 INSC 701
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5049 OF 2023
(Arising out of Special Leave Petition (C) No. 478 of 2022)
Union of India & Ors. … Appellants
v.
K. Pushpavanam & Ors. ... Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
Leave granted.
1.
2. This appeal takes exception to the judgment and order
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dated 17 August 2021 passed by the High Court of Madras
at Madurai Bench in a writ petition filed by the first
respondent. A petition was filed by the first respondent
seeking a writ of mandamus in the following terms:
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2023.08.11
16:17:57 IST
Reason:
Special Leave Petition (C) No.478 of 2022 Page 1 of 11
“…….Therefore I most respectfully pray
that this Hon'ble Court may be pleased to
direct the Respondent No.1 to appoint the
Chairman and other members of the 22nd
Law Commission constituted through the
notification in number F. No.A
45012/1/2018Admn. Ill (LA) dated
21.02.2020 in accordance with law within
the time stipulated by this Hon'ble Court.
Therefore I most respectfully pray that
this Hon'ble Court may be pleased to
issue writ of mandamus or any other Writ
or direction or order in nature of writ,
directing the respondents, to propose a
comprehensive legislation in the field of
'Torts and State Liability' as per the
directions of Hon'ble Supreme Court of
India in "MCD V. Uphaar Tragedy Victims
Assn (2011) 14 SCC 481” and “Vadadora
Municipal Corporation V. Purshotam v
Murjani and Others (2014) 16 SCC 14” in
accordance with law within the lime
stipulated by this Hon'ble Court………..”
3. Before the writ petition filed by the first respondent was
taken up for final hearing, following queries were made by the
High Court to the respondents in the writ petition (appellants
herein). The said queries read thus :
Special Leave Petition (C) No.478 of 2022 Page 2 of 11
“(a) In how many judgments, the
Constitutional Courts have recommended
for enactment of new laws or amendments
of the existing Acts, so far?
(b) How many orders have been acted
upon and suitable Acts/Rules and
amendments to the existing Acts, have
been done so far and what are all the new
Acts/Rules and the amendments made so
far?
(c) How many judgments are being acted
upon and suitable Acts/ Amendments are
in the process of enactment?
(d) When will the Parliament will bring a
comprehensive suitable legislation in the
field of 'Torts and State Liability' for
violation of fundamental rights of the
citizens at the hands of the State and its
officials?
(e) Whether the Central and State
Governments are having appropriate
Wings to note down the judgments/orders
of the Constitutional Courts, wherein
suggestions for enacting new Acts or
amendments have been enacted/proposed
or recommended?
Special Leave Petition (C) No.478 of 2022 Page 3 of 11
(f) If there is no such Wing, when such
Wing will be established to bring those
suggestions to the higherups or policy
makers to act upon suggestions given by
Courts?
(g) When does the Central Government
appoint Chairman and Members of 22nd
Law Commission of India?”
4. After hearing the parties, by the impugned judgment,
the Court issued the following directions:
(1) This Court directs the Government to
consider introducing a bill, similar to
which has been introduced in the year
1965 viz., "Liability in Tort" bill introduced
in 1965 and reintroduced 1967 and got
lapsed due to dissolution of Parliament
during 1970, taking into account the
present scenario, within a period of six
months.
(2) There shall be a direction to the
Central Government to take a decision
with regard to the suggestion for making
Law Commission either as a statutory
body or constitutional body within a
period of six months.
Special Leave Petition (C) No.478 of 2022 Page 4 of 11
(3) The Central Government shall allot
more funds to the Law Commission for
research and more infrastructures to Law
Commission of India at the earliest.
(4) The Respondents shall appoint the
Chairman and Members of Law
Commission of India within three months
from the date of receipt of a copy of this
order, failing which Respondents 1 & 3
shall appear before this Court.
(5) The Respondents shall appoint a
"Nodal Officer", who is well qualified in
law, in each department, to note down the
Courts' recommendations to bring to the
knowledge of the PolicyMakers of each
department by way of periodical reports
within a period of six months from the
date of receipt of copy of this order, so
that policy decision would be taken.”
SUBMISSIONS
5. Ms. Aishwarya Bhati, learned ASG urged in support of
the Civil Appeal that the High Court has issued a writ of
mandamus which in substance directs the legislature to
legislate in a particular manner. Her submission is that a
writ court cannot compel the Central Government to take a
decision on the question whether the Law Commission
Special Leave Petition (C) No.478 of 2022 Page 5 of 11
appointed by it should be conferred the status of either a
constitutional body or a legislative body. She pointed out that
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as far as the 4 direction in the impugned judgment is
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concerned, the 22 Law Commission has been constituted by
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a notification dated 9 November 2022 by appointing a retired
Chief Justice of a High Court as the Chairperson and other
members. Learned ASG pointed out that a compliance
affidavit annexing a copy of the notification is filed on record.
6. The learned counsel appearing for the first respondent
submitted that in fact, the first direction issued by the High
Court does not compel the legislature to legislate on the
subject of “Liability in Tort”. It only directs consideration of
the prayer made by the first respondent to enact such a law.
nd
Learned counsel further submitted that even the 2 direction
does not issue any writ of mandamus directing the legislature
to legislate in a particular manner. Learned counsel relying
upon various decisions submitted that the Constitutional
Courts have always recommended that either a legislation
should be made on a particular subject or the existing
legislation should be amended. The power of the
Constitutional Court to make such recommendation has been
consistently exercised by this Court. He gave illustrations in
the form of several reported judgments of this Court. He
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submitted that if nodal officers, as directed in the 5 direction
are appointed, it will facilitate the Central Government to
effectively consider recommendations made by the
Constitutional Courts on the issue of legislations. Therefore,
Special Leave Petition (C) No.478 of 2022 Page 6 of 11
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the 5 direction cannot be faulted with. The learned counsel
submitted that all five directions issued under the impugned
judgment do not transgress the limits on exercise of
jurisdiction of the High Court under Article 226 of the
Constitution of India. He pointed out that according to the
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appellants, the 4 direction has been complied with. He
relied upon several decisions of this Court in support of his
submissions.
OUR VIEW
7. We have given careful consideration to the submissions.
The first respondent urged that it is necessary for the
legislature to introduce a law dealing with “Liability in Tort”.
On the basis of the prayer made by the first respondent, a
direction has been issued to the Central Government to
consider of introducing of a bill on the subject, and outer limit
of six months has been fixed by the High Court.
8. As far as the law of torts and liability thereunder of the
State is concerned, the law regarding the liability of the State
and individuals has been gradually evolved by Courts. Some
aspects of it find place in statutes already in force. It is a
debatable issue whether the law of torts and especially
liabilities under the law of torts should be codified by a
legislation. A writ court cannot direct the Government to
consider introducing a particular bill before the House of
Legislature within a time frame. Therefore, the first direction
issued under the impugned judgment was unwarranted.
Special Leave Petition (C) No.478 of 2022 Page 7 of 11
nd
9. As regards the 2 direction, it must be remembered that
when a litigant seeks a writ of mandamus, he must show a
right existing in his favour and the corresponding obligation
of the State to ensure that the litigant is able to exercise the
said right. There is no right vested in the applicant to claim
that the Law Commission set up by the Central Government
should be given constitutional or statutory status. 21 Law
Commissions have already functioned and submitted reports.
Whether Law Commission should be given a status under the
Constitution or under a Statute is a major policy decision to
be taken by the Central Government. It is only the Central
Government which can take a call on this issue. Therefore,
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the 2 direction was uncalled for.
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10. As regards the 3 direction, the prayer was premature
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as when the writ petition was filed, 22 Law Commission was
not even constituted. Now, it has been constituted under the
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notification dated 9 November 2022. We have perused the
st
notification dated 21 February 2020 under which the Central
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Government decided to constitute 22 Law Commission. We
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have carefully perused the terms of reference of the 22 Law
Commission. The terms of Reference are very wide which
expect the Law Commission to make recommendations on
various important aspects such as identification of obsolete
laws, and identification of laws which are not in harmony
with existing climate of economic liberalisation. Another
function is to suggest amendments to the existing laws. One
of the important functions is to examine the laws which affect
Special Leave Petition (C) No.478 of 2022 Page 8 of 11
the poor and to carry out postaudit for socioeconomic
legislations. Another duty entrusted to the Law Commission is
to revise Central Acts of general importance so as to simplify
them and remove anomalies, ambiguities and inequities.
Clause 9 of the said notification provides that the Commission
may develop a partnership network with reputed Law
Universities/Law Schools and policy research institutions in
the country and abroad. Clause 10 empowers the
Commission to engage consultants/legal consultants for
specific projects depending on the nature and urgency. There
cannot be any doubt that if such vast functions are to be
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discharged by the 22 Law Commission, it will require
adequate monetary support in the form of grants. Unless
adequate funds are provided, the Law Commission will not be
able to discharge its functions. As and when the requisition is
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sent by the 22 Law Commission for requisitioning funds, the
Central Government will have to consider the said proposal
and ensure that the Law Commission does not become
ineffective on account of its failure to sanction adequate
funds.
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As regards the 5 direction, whether a nodal officer
11.
should be appointed or not, is a matter to be decided by the
Central Government. The Court cannot compel the Central
Government to appoint a nodal officer. All the departments of
the Government have adequate notice of the judgments of
Constitutional Courts in which recommendations are made
Special Leave Petition (C) No.478 of 2022 Page 9 of 11
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for the amendment of any legislation. Therefore, the 5
direction is unwarranted.
The law regarding power of the writ court to issue a
12.
mandate to the legislature to legislate is well settled. No
Constitutional Court can issue a writ of mandamus to a
legislature to enact a law on a particular subject in a
particular manner. The Court may, at the highest, record its
opinion or recommendation on the necessity of either
amending the existing law or coming out with a new law. The
law has been laid down in this behalf in several decisions
including a decision of this Court in the case of
Supreme
Court Employees’ Welfare Association v. Union of India
1
and
& Anr. State of Jammu and Kashmir v. A.R. Zakki
2
and others The only exception is where the Court finds that
unless a rule making power is exercised, the legislation
cannot be effectively implemented.
13. In the light of the aforesaid discussion, we pass the
following order :
a. Directions 1, 2 and 5 are quashed and set aside.
However, the Central Government will treat the
said directions as recommendations made by the
Court;
1 (1989) 4 SCC 187
2 (1992) Supp (1) SCC 548
Special Leave Petition (C) No.478 of 2022 Page 10 of 11
nd
b. As and when the 22 Law Commission submits
the requisition for grant of funds, the Central
Government will consider such requisition at the
earliest considering the importance of the tasks
assigned to the Law Commission. The Central
Government must ensure that the Law
Commission does not become ineffective on
account of lack of funds;
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The 4 direction has been already worked out, as
c.
discussed above;
d. The impugned judgment and order is modified on
above terms and the writ petition filed by the first
respondent stands disposed of accordingly; and
Civil Appeal is, accordingly, allowed. There will be
e.
no order as to costs.
………………..…….J.
(Abhay S. Oka)
..………………..…...J.
(Sanjay Karol)
New Delhi;
August 11, 2023.
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