Full Judgment Text
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CASE NO.:
Appeal (civil) 2740 of 2007
PETITIONER:
State of U.P. & Ors.
RESPONDENT:
Jeet S. Bisht & Anr.
DATE OF JUDGMENT: 18/05/2007
BENCH:
Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of Special Leave Petition (Civil) No.6928 of 1999)
MARKANDEY KATJU, J.
1. Leave granted.
2. This appeal furnishes a typical instance of a widespread malady
which has infected the judicial system in India, namely, the tendency in
some courts of not exercising judicial restraint and crossing their limits
by encroaching into the legislative or executive domain, contrary to the
broad separation of powers envisaged under our Constitution.
3. Heard learned counsel for the parties as well as Shri Amarendra
Sharan, learned Additional Solicitor General and Shri M.N.
Krishnamani, Sr. Advocate.
4. This appeal arises out of a writ petition filed in the Allahabad
High Court in which the grievance of the writ petitioner was of
charging excessive electricity bills by the U.P. State Electricity Board.
In para 19 of the writ petition it was also mentioned that the petitioner
had, before filing the writ petition, approached the District Consumer
Forum, Chamoli but the same was not decided because the term of two
members of the District Consumer Forum had expired and till the filing
of the petition new members were not appointed and hence the District
Consumer Forum, Chamoli was not working.
5. In the counter affidavit to the writ petition it was stated by the
Special Secretary, Department of Food and Civil Supplies, U.P.
Government, that appropriate steps were being taken to fill up the
vacancies of the District Consumer Forum, Chamoli vide paragraphs 4
to 12 of the counter affidavit. In the said counter affidavit mention was
also made about the grants given by the State Government for the State
Consumer Forum and also mentioned the statistics about the number of
cases filed and disposed off.
6. By the impugned judgment dated 8.1.1998 the High Court apart
from making observations on the merits of the controversy issued the
following directions :
"We direct the State Government to constitute
at least five State Consumer Forums at State level as
used under Section 16 of Consumer Protection Act
by making necessary amendment. The State
Government can also make law by making local
amendment with the prior consent of the President of
India under Article 254 of Constitution of India if it
falls under concurrent list and the Benches can be
constituted at "Commissionery level" at the
beginning with at five places on the pattern of
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Benches constituted under Administrative Tribunal
Act. We further direct that the Presiding Officer of a
Bench will be a retired High Court Judge who would
enjoy the same facilities and amenities as enjoyed by
a sitting High Court Judge as in Vice Chairman of
Administrative Tribunal. At present the President of
State Commission is not enjoying the facilities of a
Judge of High Court.
We are also of the view that the infrastructure
facilities of proper building and recruitment powers
of staff be given to the Presiding Officer of State
Commission or Vice President and be given proper
budgetary power to regulate the budget within the
allocated sufficient budget so that he has not to run to
the administrative department off and on.
We make it clear that in case if it does not fall
within the jurisdiction of State Government to issue
ordinance by local amendment or enact law then the
State Government is to approach immediately in view
of the above discussion to the Central Government
for making necessary infrastructure facilities
regarding constitution of Benches and proper staff,
building etc. so that the functioning starts within four
months to mitigate the suffering of the consumers."
7. Against the aforesaid judgment of the High Court the State of
U.P. and others filed this appeal before us in which a ground inter alia
taken was that the aforesaid directions issued by the High Court were
contrary to the provisions of the Consumer Protection Act. It was also
urged that the court cannot issue a direction that the law be amended. It
was further contended that the various directions of the High Court
related to policy matters in which the judiciary cannot interfere.
8. When the appeal was taken up for hearing on the earlier
occasions this Court passed interim orders expressing its anguish that
the very purpose of the Consumer Protection Act was frustrated and the
Act was becoming non functional due to the indifference of the State
Government in filling up vacancies at the State and District Levels and
providing in sufficient funds for salaries of members and the staff, and
for the infrastructure without which the State and District Consumer
Fora cannot operate. By the order dated 8.1.2001 this Court requested
the Solicitor General of India to assist the Court and seek instructions.
Thereafter, on 16.4.2001 the learned Solicitor General submitted that
he had discussed the matter with the Chairman of the National
Consumer Forum with a view to find out the difficulties being faced by
the various Fora created at the National level, State level and District
level so that effective steps can be taken to make these Fora functional
and the object of the Act achieved.
9. Thereafter by an interim order dated 26.11.2001 this Court
observed:
"After hearing learned counsel for the parties we
direct the Union of India to file, within two weeks
from today, a comprehensive scheme with regard to
the structuring of Consumer Forums at all the three
levels. The emphasis has to be with regard to service
conditions, not only of the members of the District,
State and the National Consumer Forums but also
with regard to the staff in each of the said Forums. In
formulating the scheme, the report of the Bagla
Commission may be taken into consideration.
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On the scheme being filed in Court, notices will
then be issue to all the State Governments for their
comments. The effort has to be to see that these
Consumer Forums become effective institutions
where the consumers can give vent to their
grievances rather then their going to the courts of
law.
List for further orders on 11th December,
2001."
10. Thereafter it appears that a series of interim orders have been
passed by this Court (including issuance of notices to all State
Governments) relating to various matters concerning the Consumer
Fora at the National, State and District level. It appears that the scope
of the writ petition in the appeal before us has been expanded so as to
cover not only the State and District Consumer Fora in U.P., but also of
those all over India. Thus the initial controversy relating to the District
Forum, Chamoli was expanded by the Allahabad High Court to the
State level, and further expanded by this Court to the National level.
11. It was contended before us by Shri Amarendra Sharan,
Additional Solicitor General of India that this Court should fix the
salaries and allowances of members of the State Consumer Dispute
Redressal Commission in all States of India as well as the salaries and
allowances of the District Fora all over India.
12. We pointed out to learned Additional Solicitor General that this
cannot be validly done as it would be contrary to the provisions of the
Act. Thus, Section 10(3) of the Consumer Protection Act states :
"The salary or honorarium and other allowance
payable to, and the other terms and conditions of
service of the members of the District Forum shall be
such as may be prescribed by the State Government."
Similarly, Section 16(2) of the Act states:
"The salary or honorarium and other allowances
payable to, and the other terms and conditions of
service (including tenure of office) of, the members
of the State Commission shall be such as may be
prescribed by the State Government."
13. We pointed out to the learned Additional Solicitor General of
India that the salaries and allowances of the members of the State
Commissions as well as the District Consumer Fora can only be
prescribed by the State Government and not by this Court. When
Parliament in its wisdom has nominated a particular authority (in this
case the State Government) to fix the salaries and allowances of the
members of the State and District Fora, this Court cannot override the
clear language of the statute and substitute the words "the Supreme
Court" for the words "the State Government" under section 10(3) and
section 16(2). It is a well settled principle of interpretation that the
Court cannot add or substitute words in a statute.
14. No doubt the Court can make a recommendation to the State
Governments that the salaries and allowances of the members of the
State and District Fora are inadequate and should be increased, but that
is about as far as the Court can go. It can only make recommendations
but it cannot give binding directions in this connection. By a judicial
verdict the court cannot amend the law made by Parliament or the State
Legislature.
15. Learned Additional Solicitor General submitted that such a
direction can be given, and for this proposition he relied on the decision
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of this Court in All India Judges’ Association & Ors. Vs. Union of
India & Ors. 1993(4) SCC 288.
16. We have carefully gone through the above decision. We fully
agree with the observations in this judgment that Judges should get
adequate salaries and allowances to enable them to function impartially
and with a free mind, but we do not agree that that decision has laid
down any principle of law that the salaries, allowances and other
conditions of Judges should be fixed by the judiciary.
17. The salaries, allowances and other conditions of service of Judges
are either fixed by the Constitution (e.g. the age of superannuation and
salaries of Supreme Court and High Court Judges) or by the legislature
or the executive. In fact this is the position all over the world.
18. No doubt in the aforesaid decision various direction have been
given by this Court but in our opinion that was done without any
discussion as to whether such directions can validly be given by the
Court at all. The decision therefore passed sub silentio . The meaning
of a judgment sub silentio has been explained by this Court in
Municipal Corporation of Delhi Vs. Gurnam Kaur (1989) 1 SCC
101 (vide paras 11 and 12) as follows :-
"A decision passes sub silentio, in the technical sense
that has come to be attached to that phrase, when the
particular point of law involved in the decision is not
perceived by the court or present to its mind. The
court may consciously decide in favour of one party
because of point A, which it considers and
pronounces upon. It may be shown, however, that
logically the court should not have decided in favour
of the particular party unless it also decided point B
in his favour; but point B was not argued or
considered by the court. In such circumstances,
although point B was logically involved in the facts
and although the case had a specific outcome, the
decision is not an authority on point B. Point B is
said to pass sub silentio.
In General v. Worth of Paris Ltd. (k) (1936) 2
All ER 905 (CA), the only point argued was on the
question of priority of the claimant’s debt, and, on
this argument being heard, the court granted the
order. No consideration was given to the question
whether a garnishee order could properly be made on
an account standing in the name of the liquidator.
When, therefore, this very point was argued in a
subsequent case before the Court of Appeal in
Lancaster Motor Co. (London) Ltd. v. Bremith Ltd.
(1941) 1 KB 675, the court held itself not bound by
its previous decision. Sir Wilfrid Greene, M.R., said
that he could not help thinking that the point now
raised had been deliberately passed sub silentio by
counsel in order that the point of substance might be
decided. He went on to say that the point had to be
decided by the earlier court before it could make the
order which it did; nevertheless, since it was decided
"without argument, without reference to the crucial
words of the rule, and without any citation of
authority", it was not binding and would not be
followed. Precedents sub silentio and without
argument are of no moment. This rule has ever since
been followed."
19. The principle of sub silentio has been thereafter followed by this
Court in State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. &
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Anr. (1991) 4 SCC 139, Arnit Das Vs. State of Bihar (2000) 5 SCC
488, A-One Granites Vs. State of U.P. & Ors. (2001) 3 SCC 537,
Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. (2003)
7 SCC 197 and State of Punjab & Anr. Vs. Devans Modern
Breweries Ltd. & Anr. (2004) 11 SCC 26.
20. The direction to increase the age of superannuation is really the
function of the legislature or executive. It has been held in several
decisions of this Court that the Court cannot fix the age of
superannuation e.g. T.P. George Vs. State of Kerala, 1992 Supp. (3)
SCC 191 (vide para 6).
21. It is well settled that a mere direction of the Supreme Court
without laying down any principle of law is not a precedent. It is only
where the Supreme Court lays down a principle of law that it will
amount to a precedent.
22. In Municipal Committee, Amritsar vs. Hazara Singh, AIR
1975 SC 1087, the Supreme Court observed that only a statement of
law in a decision is binding. In State of Punjab vs. Baldev Singh,
1999 (6) SCC 172, this Court observed that everything in a decision is
not a precedent. In Delhi Administration vs. Manoharlal, AIR 2002
SC 3088, the Supreme Court observed that a mere direction without
laying down any principle of law is not a precedent. In Divisional
Controller, KSRTC vs. Mahadeva Shetty 2003 (7) SCC 197, this
Court observed as follows:
"\005..The decision ordinarily is a decision on the case before
the Court, while the principle underlying the decision
would be binding as a precedent in a case which comes up
for decision subsequently. The scope and authority of a
precedent should never be expanded unnecessarily beyond
the needs of a given situation. The only thing binding as an
authority upon a subsequent Judge is the principle, upon
which the case was decided\005\005"
23. In Jammu & Kashmir Public Service Commission vs. Dr.
Narinder Mohan AIR 1994 SC 1808, this Court held that the
directions issued by the court from time to time for regularization of ad
hoc appointments are not a ratio of this decision, rather the aforesaid
directions were to be treated under Article 142 of the Constitution of
India. This Court ultimately held that the High Court was not right in
placing reliance on the judgment as a ratio to give the direction to the
Public Service Commission to consider the cases of the respondents for
regularization. In that decision this Court observed:
"11. This Court in Dr. A.K. Jain vs. Union of India
1988 (1) SCR 335, gave directions under Article 142
to regularize the services of the ad hoc doctors
appointed on or before October 1, 1984. It is a
direction under Article 142 on the particular facts and
circumstances therein. Therefore, the High Court is
not right in placing reliance on the judgment as a
ratio to give the direction to the PSC to consider the
cases of the respondents. Article 142 power is
confided only to this Court. The ratio in Dr. P.C.C
Rawani vs. Union of India 1992 (1) SCC 331, is also
not an authority under Article 141.
24. In the present case there are clear statutory provisions in Sections
10(3) and 16(2) of the Consumer Protection Act which prescribe that it
is the State Government which alone can fix the salaries and
allowances and conditions of service of the members of the State and
District Consumer Fora. How then can the court fix them?
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25. If this Court itself fixes such salaries and allowances, it will be
really amending the law, and it is well settled that the Court cannot
amend the law vide Union of India Vs. Association for Democratic
Reforms & Anr. AIR 2002 SC 2112 and Supreme Court
Employees Welfare Association Vs. Union of India & Ors. AIR
1990 SC 334.
26. This Court cannot direct legislation vide Union of India Vs.
Prakash P. Hinduja AIR 2003 SC 2612 (vide para 29) and it cannot
legislate vide Sanjay Kumar vs. State of U.P. 2004 ALJ 239, JT
2006(2) SC 361, Suresh Seth vs. Indore Municipal Corporation
AIR 2006 SC 767 (vide para 5) and Union of India & Anr. vs.
Deoki Nandan Aggarwal AIR 1992 SC 96.
27. The Court should not encroach into the sphere of the other organs
of the State vide N.K. Prasada vs. Government of India & Ors. JT
2004 Supp.(1) SC 326 (vide paras 27 and 28).
28. Thus in Supreme Court Employees Welfare Association Vs.
Union of India & Ors. AIR 1990 SC 334 (vide para 55) this Court
observed :
\005\005\005. "There can be no doubt that an
authority exercising legislative function cannot be
directed to do a particular act. Similarly the
President of India cannot be directed by the Court to
grant approval to the proposals made by the Registrar
General of the Supreme Court, presumably on the
direction of the Chief Justice of India."\005\005\005
29. In Union of India Vs. Association for Democratic Reforms &
Anr. AIR 2002 SC 2112 (vide para 21) this Court observed :
"At the outset, we would say that it is not
possible for this Court to give any directions for
amending the Act or the statutory rules. It is for
Parliament to amend the Act and Rules. It is also
established law that no direction can be given, which
would be contrary to the Act and the Rules."
30. If we issue the direction as prayed for by learned Additional
Solicitor General in this case, we would be issuing a direction which
would be wholly illegal being contrary to Section 10(3) and Section
16(2) of the Consumer Protection Act. This Court is subordinate to the
law and not above the law.
31. When it is said "Be you howsoever so high, the law is above
you" this dictum applies even to the Supreme Court, since the law is
above the Supreme Court and the Supreme Court is not above the law.
The Judges of the Supreme Court and High Court should have the
modesty and humility to realize this.
32. In Union of India Vs. Prakash P. Hinduja AIR 2003 SC 2612
(vide para 29) this Court observed :
"Under our constitutional scheme the
Parliament exercises sovereign power to enact laws
and no outside power or authority can issue a
direction to enact a particular piece of legislation. In
Supreme Court Employees’ Welfare Association v.
Union of India (1989) 4 SCC 187 (para 51) it has
been held that no Court can direct a legislature to
enact a particular law. Similarly, when an executive
authority exercises a legislative power by way of
subordinate legislation pursuant to the delegated
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authority of a legislature, such executive authority
cannot be asked to enact a law which he has been
empowered to do under the delegated legislative
authority. This view has been reiterated in State of
J&K v. AR Zakki and others, AIR 1992 SC
1546."\005\005\005\005
33. In Union of India & Anr. Vs. Deoki Nandan Aggarwal AIR
1992 SC 96 (vide para 14) this Court observed :
"It is not the duty of the Court either to enlarge the
scope of the legislation or the intention of the
legislature when the language of the provision is
plain and unambiguous. The Court cannot rewrite,
recast or reframe the legislation for the very good
reason that it has no power to legislate. The power to
legislate has not been conferred on the courts. The
Court cannot add words to a statute or read words
into it which are not there. Assuming there is a
defect or an omission in the words used by the
legislature the Court could not go to its aid to correct
or make up the deficiency. Courts should decide
what the law is and not what it should be. The Court
of course adopts a construction which will carry out
the obvious intention of the legislature, but it could
not legislate itself. To invoke judicial activism to set
at naught the legislative will is subversive of the
constitutional harmony and comity of
instrumentalities vide P.K. Unni v. Nirmala
Industries, (1990) 1 SCR 482 at p.488: (AIR 1990
SCC 933 at p.936), Mangilal v. Sugamchand Rathi
(1965) 5 SCR 239: (AIR 1965 SC 101), Sri Ram
Ram Narain Medhi v. The State of Bombay 1959
Supp. (1) SCR 489: (AIR 1959 SC 459), Smt. Hira
Devi v. District Board, Shahjahanpur 1952 SCR 1122
at p. 1131: (AIR 1952 SC 362 at p.365), Nalinakhya
Bysack v. Shyam Sunder Haldar (1953 SCR 533 at
p.545): (AIR 1953 SC 148 at p.152), Gujarat Steel
Tubes Ltd. V. Gujarat Steel Mazdoor Sabha (1980) 2
SCR 146: (AIR 1980 SC 1896), S. Narayanaswami v.
G. Punnerselvam (1973) 1 SCR 172 at p.182: (AIR
1972 SC 2284 at p.2289), N.S. Vardachari v. G.
Vasantha Pai (1973) 1 SCR 886): (AIR 1973 SC 38),
Union of India v. Sankal Chand Himatlal Sheth
(1978) 1 SCR 423: (AIR 1977 SC 2328) and Commr.
of Sales Tax, U.P. v. Auriaya Chamber of
Commerce, Allahabad (1986) 2 SCR 430 at p.438:
(AIR 1986 SC 1556 at pp.1559-60). Modifying and
altering the scheme and applying it to others who are
not otherwise entitled to under the scheme will not
also come under the principle of affirmative action
adopted by courts sometimes in order to avoid
discrimination. If we may say so, what the High
Court has done in this case is a clear and naked
usurpation of legislative power."
34. Thus the above decision clearly lays down that in the garb of
affirmative action or judicial activism this Court cannot amend the law
as that would be a naked usurpation of legislative power. This Court
must exercise judicial restraint in this connection.
35. We regret to say that the directions of the High Court (which
have been quoted in this judgment) are really an encroachment into the
legislative and executive domain. Whether there should be one State
Consumer Forum or five or more State Consumer Fora is entirely for
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the legislature and executive to decide. The High Court has directed
that the State Government should constitute at least five State
Consumer Forums at the State level by making necessary amendments
in the Act. In our opinion such a direction was clearly illegal. The
Court (including this Court) cannot direct amendment of an Act made
by the legislature. The establishment of the District, State and National
level Consumer Fora is done under Section 9 of the Consumer
Protection Act by the authorities mentioned in that Act. The
composition of these Fora is also prescribed in that section, and so are
the salaries and allowances and other conditions of service of the
members. It is only the authorities mentioned in the Act who can do
the needful in this connection, and this Court cannot arrogate to itself
the powers given by the Act to the said authorities.
36. For instance, the salaries and allowances of member of the State
and District Fora can only be prescribed by the State Government. We
have been informed that in some States these salaries and allowances
are very low. Be that as it may, this Court cannot arrogate to itself the
powers and functions of State Government in this connection.
Different State Governments have different constraints and
considerations e.g. financial constraints, the number of cases, etc. and it
is entirely for the State Governments to exercise the powers prescribed
to them by the Act. Similarly it is entirely for the Central Government
to perform the functions given to it by the Act, and this Court cannot
interfere with the Central or State Government in the exercise of their
functions. At best this Court or the High Court can make
recommendations for increase of salaries, allowances and betterment of
working conditions, etc. but there its jurisdiction ends. It cannot give
binding directions in this connection.
37. We regret to say that even the interim order of this Court dated
26.11.2000 by which it directed the Union of India to file a
comprehensive scheme with regard to the structuring of the Consumer
Forums at all the three levels does not seem to be within its jurisdiction
as it is contrary to the clear provisions of the Consumer Protection Act.
38. It has been nowhere provided in the Consumer Protection Act
that the Central Government has a duty, or power, to prepare a
comprehensive scheme with regard to the structure of Consumer Fora
at all the three levels.
39. No doubt the High Court, as well as this Court, are concerned
that the Consumer Fora in many parts of the country are not
functioning properly, but the Court could at most have given some
recommendations to the Central and State Government in this
connection, and it is entirely upto the Central and State Governments
whether to accept those recommendations or not, at their discretion.
This Court cannot amend the Consumer Protection Act by issuing
directions contrary to the clear provisions of the Act nor can the High
Court do so.
40. The High Court apart from directing that there should be five
Consumer Fora in U.P. has also directed that the Presiding Officer of a
Bench will be a retired High Court Judge who would enjoy the same
facilities and amenities as enjoyed by a sitting High Court Judge. This
again is contrary to the provisions of the Act. Section 16(2) of the Act
(which we have quoted above) clearly states that the salaries,
allowances and conditions of service of the members of the State
Commission shall be such as may be prescribed by the State
Government. Hence it was not open to the High Court to practically
amend Section 16(2) by its judicial verdict and prescribe the salaries or
conditions of service of the members of the State Commission. Such
salaries or conditions of service can only be prescribed by the State
Government and not by the High Court as is clear from Section 16(2).
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41. We are constrained to make these strong observations because in
recent years it has been noticed that the judiciary has not been
exercising self restraint and has been very frequently encroaching into
the legislative or executive domain. We should do introspection and
self criticism in this connection.
42. It is true that there is no rigid separation of powers under our
Constitution but there is broad separation of powers, and it not proper
for one organ of the State to encroach into the domain of others.
43. In this connection, this Court in Asif Hameed & Ors. Vs. State
of Jammu and Kashmir & Ors. AIR 1989 SC 1899 observed (vide
para 17 to 19) :
"Before adverting to the controversy directly
involved in these appeals we may have a fresh look
on the inter se functioning of the three organs of
democracy under our Constitution. Although the
doctrine of separation of powers has not been
recognized under the Constitution in its absolute
rigidity but the constitution makers have
meticulously defined the functions of various organs
of the State. The Legislature, executive and judiciary
have to function within their own spheres demarcated
under the Constitution. No organ can usurp the
functions assigned to another. The Constitution
trusts to the judgment of these organs to function and
exercise their discretion by strictly following the
procedure prescribed therein. The functioning of
democracy depends upon the strength and
independence of each of its organs. The Legislature
and executive, the two facets of the people’s will,
have all the powers including that of finance. The
Judiciary has no power over the sword or the purse,
nonetheless it has power to ensure that the aforesaid
two main organs of the State function within the
constitutional limits. It is the sentinel of democracy.
Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the legislature
and executive. The expanding horizon of judicial
review has taken in its fold the concept of social and
economic justice. While exercise of powers by the
legislature and executive is subject to judicial
restraint, the only check on our own exercise of
powers is the self imposed discipline of judicial
restraint.
Frankfurter, J. of the U.S. Supreme Court
dissenting in the controversial expatriation case of
Trop v. Dulles (1958) 356 US 86 observed as under :-
"All power is, in Madison’s phrase, "on an
encroaching nature". Judicial power is not immune
against this human weakness. It also must be on
guard against encroaching beyond its proper bounds,
and not the less so since the only restraint upon it is
self-restraint\005\005\005.
Rigorous observance of the difference between
limits of power and wise exercise of power \026 between
questions of authority and questions of prudence \026
requires the most alert appreciation of this decisive
but subtle relationship of two concepts that too easily
coalesce. No less does it require a disciplined will to
adhere to the difference. It is not easy to stand aloof
and allow want of wisdom to prevail to disregard
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one’s own strongly held view of what is wise in the
conduct of affairs. But it is not the business of this
Court to pronounce policy. It must observe a
fastidious regard for limitations on its own power,
and this precludes the Court’s giving effect to its own
notions of what is wise or politic. That self-restraint
is of the essence in the observance of the judicial
oath, for the Constitution has not authorized the
judges to sit in judgment on the wisdom of what
Congress and the Executive Branch do."
When a State action is challenged, the function of
the court is to examine the action in accordance with
law and to determine whether the legislature or the
executive has acted within the powers and functions
assigned under the constitution and if not, the court
must strike-down the action. While doing so the
court must remain within its self-imposed limits. The
court sits in judgment on the action of a coordinate
branch of the Government. While exercising power
of judicial review of administrative action, the court
is not an appellate authority. The constitution does
not permit the court to direct or advise the executive
in matters of policy or to sermonize qua any matter
which under the constitution lies within the sphere of
legislature or executive, provided these authorities do
not transgress their constitutional limits or statutory
powers."
44. Courts have to maintain judicial self-restraint and they should not try
to take over the functions of the Executive or the Legislature. In the present
case, we can understand the concern of the High Court that the District
Consumer Forum, Chamoli and other Consumer Fora in U.P. were not
functioning properly, but then it could not and should not have overstepped
its limits and taken over the functions of the authorities prescribed in Section
9 and other provisions of the Act.
45. It is well settled that the High Court cannot takeover the function of
the statutory authorities under an Act, vide G. Veerappa Pillai, Proprietor,
Sathi Vihar Bus Service Porayar, Tanjore District, Madras vs. Raman
and Raman Ltd. Kumbakonam, Tanjore District and others AIR 1952
SC 192, State of U.P. vs. Section Officer Brotherhood and Anr. 2004
(8) SCC 286, U.P. State Road Transport Corporation and Anr. vs.
Mohd. Ismail and others 1991(3) SCC 239 (paragraph 12) and State of
U.P. and Anr. vs. Raja Ram Jaiswal and Anr. 1985(2) SCC 131
(paragraph 16).
46. For instance, this Court in G. Veerappa Pillai’s case (supra) held that
the High Court cannot direct the Regional Transport Authority to grant a
permit, because in that event, the High Court itself will be acting as the
permit granting authority. Similarly, in State of U.P. and Anr. vs. Raja
Ram Jaiswal and Anr. (supra) this Court observed :
"The High Court was, of course, clearly in error in
issuing a mandamus directing the District
Magistrate to grant a licence. Where a statute
confers power and casts a duty to perform any
function before the power is exercised or the
function is performed, the Court cannot in exercise
of writ jurisdiction supplant the licensing authority
and take upon itself the functions of the licensing
authority. The High Court was hearing a writ
petition praying for a writ of certiorari for
quashing the order of remand. The High Court
could have quashed the order of remand if it was
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satisfied that the order suffers from an error
apparent on the record. But there its jurisdiction
would come to an end. The High Court cannot
then proceed to take over the functions of the
licensing authority and direct the licensing
authority by a mandamus to grant to licence."
47. Under our Constitution the Judiciary, the Legislature and the
Executive have their own broad spheres of operation. It is important that
these organs do not encroach on each other’s proper spheres and confine
themselves to their own, otherwise there will always be danger of a reaction.
Of the three organs of the State, it is only the judiciary which has the right to
determine the limits of jurisdiction of all these three organs. This great
power must therefore be exercised by the judiciary with the utmost humility
and self-restraint.
48. The judiciary must therefore exercise self-restraint and eschew the
temptation to encroach into the domain of the legislature or the
administrative or statutory authorities. By exercising self-restraint it will
enhance its own respect and prestige. Of course, if a law clearly violates
some provision of the Constitution, it can be struck down, but otherwise it is
not for the Court to sit in appeal over the wisdom of the legislature, nor can
it amend the law.
49. The Court may feel that the law needs to be amended or the Forum
created by an Act needs to be made more effective, but on this ground it
cannot itself amend the law or take over the functions of the legislature or
executive. The legislature and the executive authorities in their wisdom are
free to choose different methods of solving a problem and the Court cannot
say that this or that method should have been adopted. As Mr. Justice
Cardozo of the U.S. Supreme Court observed in Anderson vs. Wilson 289
U.S. 20 :
"We do not pause to consider whether a statute
differently conceived and framed would yield
results more consonant with fairness and reason.
We take this statute as we find it".
50. Judicial restraint is consistent with and complementary to the balance
of power among the three independent branches of the State. It
accomplishes this in two ways. First, judicial restraint not only recognizes
the equality of the other two branches with the judiciary, it also fosters that
equality by minimizing interbranch interference by the judiciary. In this
analysis, judicial restraint may also be called judicial respect, that is, respect
by the judiciary for the other coequal branches. In contrast, judicial
activism’s unpredictable results make the judiciary a moving target and thus
decreases the ability to maintain equality with the co-branches. Restraint
stabilizes the judiciary so that it may better function in a system of
interbranch equality.
51. Second, judicial restraint tends to protect the independence of the
judiciary. When courts encroach into the legislative or administrative fields
almost inevitably voters, legislators, and other elected officials will conclude
that the activities of judges should be closely monitored. If judges act like
legislators or administrators it follows that judges should be elected like
legislators or selected and trained like administrators. This would be
counterproductive. An essential feature of an independent judiciary is its
removal from the political or administrative process. Even if this removal
has sometimes been less than complete, it is an ideal worthy of support and
one that has had valuable effects.
52. The constitutional trade \026 off for independence is that judges must
restrain themselves from the areas reserved to the other separate branches.
Thus, judicial restraint complements the twin, overarching values of the
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independence of the judiciary and the separation of powers.
53. As observed by the Supreme Court in M.H. Qureshi vs. State of
Bihar 1959 SCR 629, the Court must presume that the legislature
understands and correctly appreciates the need of its own people. The
legislature is free to recognize degrees of harm and may confine its
restrictions to those where the need is deemed to be the clearest. In the same
decision it was also observed that the legislature is the best judge of what is
good for the community on whose suffrage it came into existence, and it is
for the legislature to amend the law, if it so wishes. The court can at most
make a recommendation to the legislature in this connection, but it is upto
the legislature to accept the recommendation or not.
54. The function of a judge has been described thus by Lawton LJ :
"A Judge acts as a referee who can blow his
judicial whistle when the ball goes out of play, but
when the game restarts he must neither take part in
it nor tell the players how to play" (vide Laker
Airways Ltd. vs. Department of Trade (1977)
QB 643(724).
55. In writing a biographical essay on the celebrated Justice Holmes of
the U.S. Supreme Court in the dictionary of American Biography, Justice
Frankfurter wrote :
"It was not for him (Holmes) to prescribe for
society or to deny it the right of experimentation
within very wide limits. That was to be left for
contest by the political forces in the state. The
duty of the Court was to keep the ring free. He
reached the democratic result by the philosophic
route of skepticism \026 by his disbelief in ultimate
answers to social questions. Thereby he exhibited
the judicial function at its purest." (See ‘Essays on
Legal History in Honour of Felix Frankfurter’
Edited by Morris D. Forkosch).
56. In our opinion adjudication must be done within the system of
historically validated restraints and conscious minimization of the Judges
preferences. The Court must not embarrass the legislature or the
administrative authorities and must realize that the legislature and authorities
have to take into account various considerations, some of which the court
may not even be aware of. In the words of Chief Justice Neely:
"I have very few illusions about my own
limitations as a Judge. I am not an accountant,
electrical engineer, financer, banker, stockbroker
or system management analyst. It is the height of
folly to expect Judges’ intelligently to review a
5000 page record addressing the intricacies of a
public utility operation. It is not the function of a
Judge to act as a super board, or with the zeal of a
pedantic school master substituting its judgment
for that of the administrator."
57. In Lochner vs. New York 198 US 45 (1905), Mr. Justice Holmes of
the U.S. Supreme Court in his dissenting judgment criticized the majority of
the Court for becoming a super legislature by inventing a ’liberty of
contract’ theory, thereby enforcing its particular laissez-faire economic
philosophy. Similarly, in his dissenting judgment in Griswold vs.
Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that
"unbounded judicial creativity would make this Court a day-do-day
Constitutional Convention". In "The Nature of the Judicial Process’ Justice
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Cardozo remarked : "The Judge is not a Knight errant, roaming at will in
pursuit of his own ideal of beauty and goodness". Justice Frankfurter has
pointed out that great judges have constantly admonished their brethren of
the need for discipline in observing their limitations (see Frankfurter’s
’Some Reflections on the Reading of Statutes’).
58. However, the Central and State Governments are requested to
consider fixing adequate salaries and allowances for members of the
Consumers Fora at all three levels, so that they can function effectively and
with a free mind. They are also requested to fill up vacancies expeditiously
so that the Fora can function effectively.