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:
S.B. Sinha
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2740 OF 2007
[Arising out of SLP (Civil) No. 6928 of 1999]
W I T H
W.P. (C) No. 164 of 2002
S.B. SINHA, J :
1. Leave granted.
2. Although I agree with my learned Brother Katju, J. that having regard
to the question involved in the present appeal, we should request the Central
Government as also the respective State Governments to consider the
desirability of fixing appropriate salaries and allowances for members of the
consumer fora at all three levels so that they can function effectively and
with a free mind, I deeply regret my inability to agree with various
observations made by my learned Brother for whom I have the highest
respect.
3. The Consumer Protection Act, 1986 was enacted to provide for better
protection of the interests of the consumers and for that purpose to make
provisions for the establishment of consumer councils and other authorities
for the settlement of consumer disputes and for matters connected therewith.
The said Act is in addition to and not in derogation of the provisions of any
other law for the time being in force. The following Statement of Objects
and Reasons preceding the Act are clear pointers to show the purport and
object for which the Act was enacted:
"2. It seeks, inter alia, to promote and protect the
rights of consumers such as \026
(a) the right to be protected against marketing of
goods which are hazardous of life and property;
(b) the right to be informed about the quality,
quantity, potency, purity, standard and price of
goods to protect the consumer against unfair trade
practices;
(c) the right to be assured, wherever possible,
access to an authority of goods at competitive
prices;
(d) the right to be heard and to be assured that
consumers interests will receive due consideration
at appropriate forums;
(e) the right to seek redressal against unfair trade
practices or unscrupulous exploitation of
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consumers; and
(f) right to consumer education.
3. These objects are sought to be promoted and
protected by the Consumer Protection Councils to
be established at the Central and State level."
4. The Act not only provides for new rights for the citizens of India in
their capacity as consumers, it envisages their empowerment in this behalf.
The same, in my opinion, deserves due consideration in the matter of
determination.
5. It is indisputably the solemn duty of the executive of both the
Government of India as also the Governments of States to implement the
provisions of the Act in true letter and spirit.
6. In my opinion, in a situation of this nature where the action or inaction
on the part of the executive government of a State or Union Territory would
lead to virtual closure and/ or non-functioning of such an important judicial
fora created under the Act, it is permissible for the Superior Courts, and
particularly this Court, while exercising its constitutional functions, to issue
necessary directions for proper and effective implementation of the
provisions thereof.
7. The public interest litigation which was filed in the High Court of
Allahabad was not in the nature of an adversarial litigation. It was filed for a
specific purpose and to serve a public cause. The directions issued by the
High Court in its impugned judgment were, of course, at one point of time
challenged by the State of Uttar Pradesh, but the same had not only since
then been complied with, but also this Court from time to time, on the
intervention of several bodies, had issued various directions. Brother Katju,
J. in the accompanying judgment has noticed some of them.
8. Indian Supreme Court has achieved world-wide acclaim in fashioning
new rights under Part III of the Constitution and also using Directive
Principles as interpretive devices for giving a contemporaneous meaning to
Part III. Innovations in the field of PIL or Social Interest Litigation as some
people like to call it, have been institutionalized; methods and rules in that
regard have been streamlined to a great extent through later directives of this
court. The journey of PIL from rhetoric to a trusted court procedure
showcases in ample the potential of constructive exchange between organs
of polity, remaining well within their limits. At the same time, we are not
unmindful of some decisions which have brought disrepute to the institution
as well the innovation itself. James Madison once when similarly situated
remarked, that it is better to leave a few of its noxious branches to their
luxuriant growth, than, by pruning them away, to injure the vigour of those
yielding the proper fruits. As has been mentioned, subsequent directives of
SC have come down heavily on such instances.
9. Although this phase has been widely documented but the last such
mention was in Public Law, 2006 Autumn, Human Rights Transformed:
Positive Duties and Positive Rights (P.L. 2006, AUT, 498-520 at pg. 513)
where the author (Sandra Fredman) sees inspiration in the wide-ranging
work of Indian SC for European Court of Justice. It was noted therein:
"Two points should, however, be noted (about
Indian Supreme Court’s record on Public Interest
Law). First, the Court has adapted its procedure to
enable it to adjudicate polycentric issues more
appropriately. Wide standing rules require the
court to conduct some of its own fact-finding,
sometimes through establishing its own
commissions. It has also fashioned its own
remedial orders to provide ongoing
management. For example, in the "Right to Food"
case, it has issued a continuing mandamus to
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require states to fully implement specific schemes
including mid-day meals at school. Secondly,
affirmation of wide duties is often used to
counter maladministration rather than to initiate
new projects. Thus the right to livelihood of
pavement dwellers gave rise only to a duty to
consult before removing them; and the right to a
road gave rise only to a duty to complete a project
for which funds had already been allocated. In the
right to food case, a primary problem was
maladministration: the Court found that about half
of the food subsidy was being spent on holding
excess stocks; reducing stocks would free up large
resources to distribute food and provide hot mid-
day meals for school children.
The Indian approach is relevant to the domestic
scene in that there are clear signs that the
principles in the EU Charter of Fundamental
Rights will be used as interpretative aids by the
European Court of Justice, and thereby have a
direct influence on domestic law."
(Emphasis supplied)
10. The matter at hand also involves consideration of a PIL. A different
set of expectations stares us in the face, and significantly, we are also
anchored with a unique sense of responsibility. Judicial apathy with a value-
neutral outlook would neither help the functioning of consumer fora nor our
self-belief. We attend to the matter with a similar approach.
11. We, however, would fail in our duties if we do not acknowledge the
extent of cooperation which had been rendered to us not only by Mr. A.
Sharan, learned Additional Solicitor General of India but almost all counsels
appearing for different States in assisting us to issue directions from time to
time which indisputably have served greater positive purpose.
12. Brother Katju, J. has noticed that even the learned Additional Solicitor
General appearing on behalf of the Union of India had been more than fair in
taking a bold stand agreeing for effective implementation of the provisions
of the Act, this Court’s intervention is necessary.
13. It may be true that the salary, honorarium or other allowances of the
members of the District Forum as also those of the State Commission are
ordinarily to be prescribed by the State Governments in terms of the
provisions of the Act but even in that behalf, most of the State Governments
have taken a very reasonable stand by agreeing to pay reasonable salaries
and other allowances to the Chairman and members of the different fora.
14. In this context, we agree that the provisions of Consumer Protection
Act envisage the role of the executive in laying down the particulars of pay-
scale as also the associated benefits, but the fact situation as agreed on
record by both the sides, portends a rather grime future for consumer fora at
different levels. It will not be the spirit of any statute for that matter to put
forward a framework of narrow rules which will impede issuing of
directions to set in motion the machinery with respect to that law. Consumer
Protection Act embodies a certain value in protecting the interests of
consumers in the age of consumerism, and the institution of consumer fora
has a specific mission in that behalf. Instant order needs to be seen in the
perspective of achieving that ’point behind the law’.
15. With the advent of globalization, we are witnessing a shift from
Formalism to a Value-laden approach to law. In the contemporary
scholarship, especially with the decimation of law as purely an autonomous
discipline (with the emergence of cross-cutting realms such as Law and
Economics, Law and Philosophy, Law and Society, IPR et al), we see that
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laws embody a goal, which may have its provenance in sciences other than
law as well. It is no more the black letter in the law which guides the
interpretation but the goal which is embodied by the particular body of law,
which may be termed as the rationality of law.
16. Law, in its value-laden conception, is not entirely endogenous in its
meaning and purpose: the construction thereof also depends on the statement
of purport and object. There is a spill-over of the aforementioned shift in
philosophy of law to statutory interpretation. Purposive interpretation, of
lately, has gained considerable currency, which is relevant for the sake of
maximizing the efficiency in respect to the point behind the rule. There may
be a situation when purposive interpretation is required even in the context
of deciphering the Constitutional mandate by invoking the notion of active
liberty discovered by Justice Stephen Breyer of American Supreme Court.
This is the precise role which was exhorted by Bruce A. Ackerman in the
famous Storrs Lecture:
"If we are to make sense of our constitution, we
must cut ourselves off from the Framers’ theory
of democracy. The Least Dangerous Branch
opens with a second declaration of independence,
not an effort at constitutional interpretation. The
beginning of constitutional wisdom, apparently,
is that Hamilton, Marshall, and the rest were
utterly mystified by representative government."
17. The ultimate justification for the creation of new rights and renewed
emphasis on implementation of statutory rights is that they have to be made
justifiable, simply because of their primacy in living a life with dignity and
the matching recognition thereof with the values that our constitution
inheres. Following this philosophy the SC has developed new methods and
new remedies. The same is to be considered to be a part of wider
civilization.
(See Stephen Breyer, Active Liberty: Interpreting Our Democratic
Constitution, (2005) Knopf; Ronald Dworkin, Taking Rights Seriously
(1977); Ronald Dworkin, A Matter of Principle (1985); Bruce A. Ackerman,
93 Yale Law Journal 1013 (May 1984), The Storrs Lectures: Discovering
the Constitution)
18. In this situation, this Court had only been considering the matter
relating to better implementation of the provisions of the Act so as to uphold
the dignity and impartiality of the Chairman and members of the fora which
would help them in discharging their judicial functions.
19. It is a matter on record that even the salary and other allowances
payable to the members of the National Consumer Commission, as directed
by this Court, have been accepted by the Union of India and an appropriate
notification in this behalf has been published.
20. Separation of power is a favourite topic for some of us. Each organ of
the State in terms of the constitutional scheme performs one or the other
functions which have been assigned to the other organ. Although drafting of
legislation and its implementation by and large are functions of the
legislature and the executive respectively, it is too late in the day to say that
Constitutional Court’s role in that behalf in non-existent. The judge made
law is now well recognised throughout the world. If one is to put the
doctrine of separation of power to such a rigidity, it would not have been
possible for any superior court of any country, whether developed or
developing, to create new rights through interpretative process.
21. Separation of power in one sense is a limit on active jurisdiction of
each organ. But it has another deeper and more relevant purpose: to act as
check and balance over the activities of other organs. Thereby the active
jurisdiction of the organ is not challenged; nevertheless there are methods of
prodding to communicate the institution of its excesses and shortfall in duty.
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Constitutional mandate sets the dynamics of this communication between
the organs of polity. Therefore, it is suggested to not understand Separation
of Power as operating in vacuum. Separation of power doctrine has been
reinvented in modern times.
22. It is interesting to note here the decision in Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 635 (1952) wherein court commented on the
utility of separation of power within the constitutional scheme to maximize
good governance:
"The actual art of governing under our
Constitution does not and cannot conform to
judicial definitions of the power of any of its
branches based on isolated clauses or even single
Articles torn from context. While the
Constitution diffuses power the better to secure
liberty, it also contemplates that practice will
integrate the dispersed powers into a workable
government. It enjoins upon its branches
separateness but interdependence, autonomy
but reciprocity."
(emphasis supplied)
23. The modern view, which is today gathering momentum in
Constitutional Courts world over, is not only to demarcate the realm of
functioning in a negative sense, but also to define the minimum content of
the demarcated realm of functioning. Objective definition of function and
role entails executing the same, which however may be subject to the plea of
financial constraint but only in exceptional cases. In event of any such
shortcoming, it is the essential duty of the other organ to advise and
recommend the needful to substitute inaction. To this extent we must be
prepared to frame answers to these difficult questions.
24. John Rawls in Political Liberalism (1996) at pg. 231 notes in relation
to a similar situation:
"By applying public reason the court is to prevent
that (higher) law from being eroded by the
legislation of transient majorities, or more likely,
by organized and well-situated narrow interests
skilled at getting their way. If the court assumes
this role and effectively carries it out, it is incorrect
to say that it is straight-forwardly antidemocratic."
This perspective helps us all towards the wholesome realization of the
democratic ideal of good governance and rule of law.
25. In the American context, it will be in the fitness of the discussion to
quote from an illuminating piece by Cass R. Sunstein (Constitutionalism
After The New Deal, 101 HVLR 421):
"In the New Deal period, the original
constitutional framework was thus reformulated in
three fundamental ways. The New Deal set out a
different conception of legal rights, rejecting
common law and status quo baselines for
deciding what constituted governmental
’action’ and ’inaction’; it proposed a dramatically
different conception of the presidency and a novel
set of administrative actors; and it rejected
traditional notions of federalism. The term ’New
Deal constitutionalism’ describes the resulting
structure."
(Emphasis supplied)
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26. If we notice the evolution of Separation of Power doctrine,
traditionally the checks and balances dimension was only associated with
governmental excesses and violations. But in today’s world of positive rights
and justifiable Social and Economic entitlements, hybrid administrative
bodies, private functionaries discharging public functions, we have to
perform the oversight function with more urgency and enlarge the field of
checks and balances to include governmental inaction. Otherwise we
envisage the country getting transformed into a state of repose. Social
engineering as well as Institutional engineering therefore forms part of this
obligation.
27. In this context, Bruce A. Ackerman in We, the People (1991) refers to
constitutional moment in the lives of nations in which foundational premise
of system finds seminal turnaround guided by popular awareness. A decision
of change in the background of a constitutional moment has a transformative
constitutional power, equivalent to a constitutional amendment.
28. All India Judges’ Association and Others v. Union of India and Others
[(1993) 4 SCC 288 : AIR 1993 SC 2493] is an instance to show that in
appropriate cases the Judiciary may step in even for the purpose of making
recommendations in regard to the scale of pay and other allowances payable
to the judicial officers. While making its suggestion to the state, this court
noted :
"These are only suggestions which are made and it
will be more appropriate for each State, taking into
consideration the local requirements, to adopt
appropriate nomenclatures. It would be appropriate
to mention at this stage that in some States, the
entry point to the judicial service was at the level
of a munsiff or a subordinate Judge. Those are
nomenclatures which are also to be considered but
what is important is that in respect of each scale,
the nomenclature should be different. In this way,
a judicial officer will get a feeling that he has made
progress in his judicial career with his
nomenclature or designation changing with an
upward movement within the service."
29. We may notice that the Shetty Commission appointed to go into these
matters had submitted its report and the same has been accepted by almost
all the States.
30. It is also interesting to note that the Central Government evidently
accepted the recommendations of the Shetty Commission and deleted the
consideration in respect of the pay scales of the judicial officers from the
terms of the reference of the Fifth Pay Commission.
31. A further order was passed in the said decision on or about 21st
March, 2002 by a Three-Judge Bench of this Court in All India Judges’
Association and Others v. Union of India and Others [(2002) 4 SCC 247].
Apart from referring to Article 50 of the Constitution of India, the Three-
Judge Bench of this Court in repelling the contention of some of the States
that this Court should not interfere in such matters raised constitutional
questions in regard to the increase in retirement age from 60 to 62 years. The
court went into the merits of the recommendations, sifted through them and
also in the end gave suggestions to various State Governments. We may
place on record that the Three-Judge Bench is still monitoring
implementation of the report of the Shetty Commission and the various
directions issued by this Court.
32. A Three-Judge Bench of this Court in Dr. J.J. Merchant and Others v.
Shrinath Chaturvedi [(2002) 6 SCC 635], while opining that all complaints
filed before different fora constituted under the Act should be required to be
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determined as expeditiously as possible with regard to purport and object of
the Act, observed:
"35. From the proposed amendment in the Act, it
is apparent that Parliament is alive to the problems
faced by the consumers and the consumer forums
and, therefore, further directions are not required
to be given.
36. However, apart from the contemplated
legislative action, it is expected that the
Government would also take appropriate steps in
providing proper infrastructure so that the Act is
properly implemented and the legislative purpose
of providing alternative, efficacious, speedy,
inexpensive remedy to the consumers is not
defeated or frustrated.
37. Similar action is also expected from the
National Commission as well as State
Commissions. Hence, for avoiding delay in
disposal of complaints within the prescribed
period, the National Commission is required to
take appropriate steps including:
( a ) By exercise of administrative control, it can
be seen that competent persons are appointed as
members on all levels so that there may not be any
delay in composition of the Forum or the
Commission for want of members.
( b ) It would oversee that the time-limit prescribed
for filing the defence version and disposal of
complaints is strictly adhered to.
( c ) It would see that the complaint as well as the
defence version should be accompanied by
documents and affidavits upon which parties
intend to rely.
( d ) In cases where cross-examination of the
persons who have filed affidavits is necessary,
suggested questions of cross-examination be given
to the persons who have tendered their affidavits
and reply may be also on affidavits.
( e ) In cases where the Commission deems it fit to
cross-examine the witnesses in person, video
conference or telephonic conference at the cost of
the person who so applies could be arranged or
cross-examination could be through a commission.
This procedure would be helpful in cross-
examination of experts, such as doctors."
33. We have only noticed a different approach of the Court with the
changing times. In a given case, the court may or may not issue any
direction but the Supreme Court of India in an appropriate case should not
stop its journey to creative interpretation of the constitutional provisions vis-
‘-vis the independence of judiciary.
34. Even if we, for the time being, do not take note of the Constitution
Bench decision of this Court in Supreme Court Advocates-On-Record
Association and Others v. Union of India and Another [(1993) 4 SCC 441]
apart from Vishaka v. State of Rajasthan [(1997) 6 SCC 241] and Vineet
Narain and Others v. Union of India and Another [(1998) 1 SCC 226] and
several other judgments following the same, there are cases and cases where
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this Court had, on one occasion or the other, dealt with the question of
fixation of pay-scale not only with regard to judicial officers but also of
other employees connected with the justice delivery system.
35. This Court in Union of India and Others v. All Gujarat Fed. of Tax
Consultants and Others (SLP Nos. 6904-6905 of 1998) disposed of on
September 16, 2003, issued directions in regard to various amenities and
perks to be given to the members of the Income Tax Appellate Tribunal.
The manner in which transfers and postings of the members of the Income
Tax Appellate Tribunal should be effected was the subject matter of the
decision of this Court in Ajay Gandhi and Another v. B. Singh and Others
[(2004) 2 SCC 120].
36. In Union of India v. S.B. Vohra [(2004) 2 SCC 150], a Three-Judge
Bench of this Court again considered the question of jurisdiction of the
Chief Justice in fixing the scale of pay of the various officers of the Delhi
High Court. This Court opined:
"49. The matter as regards fixation of scale of pay
of the officers working in the different High Courts
must either be examined by an expert body like the
Pay Commission or any other body but in absence
of constitution of any such expert body the High
Court itself is to undertake the task keeping in
view the special constitutional provisions existing
in this behalf in terms of Article 229 of the
Constitution of India.
50. We agree with the submission of the learned
Additional Solicitor General to the effect that the
decision of the High Court had been rendered
having its origin in A.K. Gulati (CWP No. 289 of
1991) which had a spiralling effect, particularly in
the case of Assistant Registrars. That was more a
reason why a competent authority of the appellant
should have taken immediate steps in holding a
meeting with the Chief Justice or an authorized
officer of the High Court.
51. Having regard to the aforementioned
authoritative pronouncements of this Court, there
cannot be any doubt whatsoever that the
recommendations of the Chief Justice should
ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. In
this case the appellants even addressed themselves
on the recommendations made by the High Court.
They could not have treated the matter lightly. It is
unfortunate that the recommendations made by a
high functionary like the Chief Justice were not
promptly attended to and the private respondents
had to file a writ petition. The question as regards
fixation of a revision of the scale of pay of the
High Court being within the exclusive domain of
the Chief Justice of the High Court, subject to the
approval, the State is expected to accept the same
recommendations save and except for good and
cogent reasons."
37. Yet again recently in High Court Employees’ Welfare Association,
Calcutta & Ors. v. State of West Bengal & Ors. [2007 (1) SCALE 180], this
Court made a reference in context of institutional exchange holding:
"Though the power to make rules in regard to pay
and allowances of the High Court employees is
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vested in the Chief Justice subject to any law made
by the Parliament, the Constitution has advisedly
made the power of the Chief Justice to make such
rules conditional upon approval of such rules by
the Governor of the State, that is the State
Government. The requirement of approval under
the proviso Clause 2 of Article 229 is not a mere
formality. We find that the State has approved all
provisions except one clause. It has expressed its
inability to agree to para 2 of Rule 4 as it provides
for a general increase in pay of all existing
employees by two stages, after fixation of pay in
the revised pay scale. The non-approval is in
consonance with the Minutes of the meeting dated
13/18.4.2005 between the Chief Justice and the
Ministers representing the State. But for the
unfortunate misunderstanding relating to
second para of Rule 4 of the modified draft Pay
Rules, the High Court and the State
Government have shown understanding of each
other’s problems and by exchange of views and
discussions, sorted out the outstanding issues,
thereby maintaining the high constitutional
traditions. Therefore there is no need for any
interference."
(Emphasis Supplied)
38. We have only referred to some of the decisions of this Court which
are binding on us, where pay scales have been fixed or amenities have been
granted by the Courts or at least strong recommendations have been made.
39. In the instant case, Mr. M.N. Krishnamani, learned Amicus Curiae
and the learned Additional Solicitor General of India have made the
following common submissions:
"1) Court is competent to issue directions when
State has either failed to perform its duty conferred
on it under a statute or has exercised its power
arbitrarily or on irrelevant considerations.
2) The pay fixation of Members is not directly
related to the work load but it is a matter of status
and dignity.
3) Nature of duties performed by the Members
being judicial in nature, is entirely different from
the other Govt. Services and, therefore, different
considerations come into play."
40. It is also interesting to note that expanding citizen’s right to food as
envisaged under Article 21 of the Constitution of India, a Division Bench of
this Court in People’s Union For Civil Liberties v. Union of India [2006 (13)
SCALE 399] inter alia directed the Government to sanction and
operationalize minimum of 14 lakh AWCs under ICDS.
41. If financial constraint was not considered to be a criterion for issuing a
direction to create and sanction a huge number of posts by one Bench, it
would be inappropriate for us to restrain ourselves from doing so in respect
of judicial officers and other members of different fora created under the Act
who perform judicial functions. The consumer courts, it must be borne in
mind, in effect and substance, are virtual substitutes for the civil court in
respect of certain categories of cases.
42. As has already been mentioned, although functional tests and positive
tests have not yet been fully evolved in the context of new separation of
power doctrine, undoubtedly their application would, in appropriate cases,
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be necessary so as to consider the institutional balance between various
branches of the polity. It will be wholly inappropriate if we fail to consider
the expanding jurisdiction. It is worth noticing that the Superior Courts of
various other countries including Israeli Supreme Court and South African
Constitutional Court, apart from those of the developed countries, have
marked the beginning in this behalf.
43. For the views been taken herein, I regret to express my inability to
agree with Brother Katju, J. in regard to the criticisms of various orders
passed in this case itself by other Benches. I am of the opinion that it is
wholly inappropriate to do so. One Bench of this Court, it is trite, does not
sit in appeal over the other Bench particularly when it is a coordinate Bench.
It is equally inappropriate for us to express total disagreement in the same
matter as also in similar matters with the directions and observations made
by the larger Bench. Doctrine of judicial restraint, in my opinion, applies
even in this realm. We should not forget other doctrines which are equally
developed viz., Judicial Discipline and Respect for the Brother Judges.
44. I would, therefore, while concurring with the conclusion of my
learned Brother Kaju, J. for whose learning and erudition, I have the highest
respect, differ with all his reasonings in support thereof.
45. List the matter after vacations, before another bench to be nominated
by Hon’ble the Chief Justice of India.