State of Himachal Pradesh & ANR Vs.
Umed Ram Sharma & Ors [1986] INSC 12 (11 February 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION: 1986 AIR 847 1986 SCR (1) 251 1986
SCC (2) 68 1986 SCALE (1)182
CITATOR INFO:
R 1990 SC1692 (30) RF 1991 SC1902 (24)
ACT:
constitution of India, 1950, Articles
19(1)(d), 21 & 38 - Right to life embraces not only physical existence of
life but the quality of life - For residents of hilly areas Access to road,
access to life itself - Roads for communication - Provision of - Constitutional
obligation Court - Whether entitled to give directions in cases of executive
inaction or slow action.
HEADNOTE:
The petitioner, State sanctioned construction
of a road known as Ghanna-Hatti-Bhukho road in district Simla. The total length
of the road was about 5 kms. ant the construction was started immediately in
1977. When the construction of the road approached about 3/060 kms., there was
obstruction ant the construction was stopped due to one reason or the other.
Thereafter the work had been resumed once or twice in a half hearted manner but
it could not be completed, due to lack of funds since a sum of Rs. 40,000/-
allocated during the financial year 1984-85 for the construction of this road
had already been fully utilised.
Respondents Nos. 1 to 15, residents of nearby
villages, addressed a letter to the Chief Justice of the High Court complaining
(i) that they had been totally deprived of the road facility; (ii) that they
had to go to the city after negotiating steep ascent of 4/5 miles and only
after such a strenuous effort they were able to establish contacts with the
city; and (iii) that democracy was meaningless to them.
In those circumstances, they prayed for
court's intervention and action on this behalf.
The High Court treated the aforesaid letter
as a writ petition and after receiving reply from the State Government, it
found that the people of the area were denied the benefit 252 of the use of the
road in a contiguous length and that some remedial action was expedient in the
public interest. me High Court also recorded the statement of the
Superintending Engineer that there was no reason why the road could not be
constricted gradually onwards and that during the financial year to make the
road serviceable an expenditure of about Rs. 90,000/- would be necessary and as
against this requirement under the budget allocation, a sum of Rs. 40,000/- had
been set apart for the purpose of widening the road. m e High Court directed
(1) that the Superintending Engineer of the PWD should proceed with the
construction of the road and to complete the same during the course of the
current financial year; (2) that the Superintending Engineer should make an
application to the State Government demanding additional sum of Rs.50,000/-
being sanctioned for the construction of the said road; (3) that the State
Government should favourably consider the demand of the Sperintending Engineer.
While giving the above directions, the High Court noted that the construction
of the road had progressed in varying degrees and in a somewhat haphazard
manner and the road had not become serviceable beyond 3/060 kms.
The petitioner, in this special leave to
appeal under Article 136, questioned the power of the High Court to issue
prerogative writs under Article 226 of the Constitution to direct the State
Government either to allot any particular sum for expenditure on account of
particular project or to allot amounts in addition which have already been
allotted under the current financial budget of the State Government and thus to
regulate even the procedure in financial matters of the State, which, according
to the petitioner, were the exclusive domain of the legislature as contained in
Articles 202 to 207 of the Constitution.
Disposing of the petition, ^
HELD : 1(i) There was nothing improper or
illegal in the order passed by the High Court directing the State Government to
carry out the construction as quickly as possible within the sanctioned limits.
me High Court has not transgressed its Jurisdiction of supervising executive
action in view of the time taken to construct the road. It has not transgressed
its limits by substituting its priorities. mere has been 253 allocation. me
court was directed the executive to bring it to the notice of the legislature
if some re-allocation was feasible amongst the sanctioned expenditure for roads
leaving the priorities to the discretion of the competent authorities. [261
A-B; 267 E; H; 268 A] 1(ii) The court's direction was not intended to supervise
the action taken and to enforce its implementation but only to be apprised of
the action taken in order to bring about a certain sense of urgency so that
there was no delay. However, there was no need for the High Court to direct that
the matter be listed again before lt. [268 B;
269 B] 2(i) Every person is entitled to life
as enjoined in Article 21 of the Constitution. He has the right under Article
19(l)(d) to move freely throughout the territory of India and he has also the
right under article 21 to his life and that right under article 21 embraces not
only physical existence of life but the quality of life and for residents of
hilly areas, access to road is access to life itself.
Therefore, there should be road for
communication in reasonable conditions in view of constitutional imperatives
and denial of that right would be denial of the life as understood in its
richness and fullness by the ambit of the Constitution. [259 H; 260 A-B] In re:
Sant Ram, [1960] 3 S.C.R. 499; Kharak Singh, [1964] 1 S.C.R. 332; A.V. Nachane
& Anr. etc. etc. v. Union of India & Anr. etc. etc., [1982] 1 S.C.C.
205; Olga Tellis and Others etc. v. Bombay Municipal Corporation and Others
etc., [1985] 3 S.C.C. 545; Municipal council, Raltam v. Shri Vardhichand and
Ors., [1981] 1 S.C.R. 97 & Francis Corlie Mullin v. Administrator, Union
Territory of Delhi 7 Ors., [1981] 2 S.C.R. 516 relied upon.
2(ii) The Constitution envisages a broad
division of the power between the legislature, the executive and the judiciary.
Although the division is not precisely demarcative there is general
acknowledgement of its limits, there 18 certain time overlapping. It 18 for the
legislature to legislate, the executive to implement and carry out that
legislation and the judiciary to supervise. Affirmative actions are sometimes
necessary to keep the judiciary in tune with the legislative intention.
However, the directions of the court cannot and should not run counter to the
specific provisions of the Constitution. In other words, the court cannot 254
arrogate to itself any function which is left to the domain of the other two
branches namely the executive and the legislature. [267 C-D; 261 C-D] 2(iii)
Read in the background of the Directive Principles as contained in article
38(2) of the Constitution, access to life should be for the hillman an
obligation of the State but it is primarily within the domain of the
legislature and the executive to decide the priority as well as to determine
the urgency. Judicial review of the administrative action or inaction where
there is an obligation for action should be with caution and not in haste. It
depends upon the facts and circumstances of each case. Its dimension is never
close and must remain flexible. [266D-E; 269 H; 270 A]
3. Affirmative action in the form of some
remedial manner, in public interest, in the background of the constitutional
aspirations as enshrined in Article 38 read with Articles 19 and 21 of the
Constitution by means of judicial directions in cases of executive inaction or
slow action is permissible within the limits. [269 E] In the instant case, the
respondents have been affected by the denial of the proper roads in a hilly
State.
Therefore there is no dispute as to their
locus. There is also no dispute that the State Government was willing and had
indeed sanctioned money for the construction of the road. Constitutional and
legal imperative on the part of the State to provide roads for residents of
hilly state is not in issue. The High Court has noted the statement of the sperintending
Engineer that a sum of Rs. 90,000 would be required for the completion of the
road. The High Court has suggested that Superintending Engineer may make a
proposal to this effect to the appropriate Government. The High Court has not
directed the State Government to spend Rs. 90,000 which clearly in view of the
system of budgeting and the budget would be in excess of the annual statement
of income and expenditure sanctioned by the legislature. The court could not
direct the State Government to spend beyond the sanctioned amount which is in
the domain of the legislature in view of the provisions of Artlcles 202 to 207
of the Constitution so far as the State expenditures are concerned.
The sperintending Engineer as the
administrative authority has been directed to carry out the 255 directions of
the court for the widening of the road subject to funds being available during
the time limit. [260 E-F;
263 E-H] Commonwealth of Massachusetts v.
Andrew W. Mellon, U.S.
Supreme Court Reports, 67 Lawyers' Edn. p.
1078 at p. 1085 Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2
S.C.R. 67; Dr. P. Nalla Thamby Thera v. Union of India and Ors., [1984] 1
S.C.R. 709; State of Himachal Pradesh v. A Parent of a Student of Medical
College, Simla and Ors., A.I.R. 1985 S.C. 910 & Fertilizer Corporation
Kamgar Union (Regd.), Sindri and others. v. Union of India and Ors., [1981] 2
S.C.R. p. 67 at p. 71 referred to.
CIVIL APPELLATE JURISDICTION: Special Leave
Petition (Civil) No. 12621 of 1984.
From the Judgment and Order dated 20.8.84 of
the Himachal Pradesh High Court in C.W.P. No. 231 of 1984.
K. Parasaran, Attorney General and A.K.
Ganguli for the petitioners.
T.U. Mehta and C.P. Pandey for the
respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. From one angle in this case there is much ado about
nothing, from another point of view there is a great deal than that meets the
eye. It is better, however, to proceed to deal with the matter as far as eye
can see without telescope but also without blinkers. The facts are few - the
issues in controversy are fewer still - the directions given by the High Court
in this case which are under challenge a e brief but their consequences are of
some relevance and importance on the question of ambit of judicial power over
administrative inaction. To the facts first, therefore, in immitation of the
inimitable style of Lord Denning This petition for special leave to appeal
under article 136 of the Constitution is directed against the order of the Division
Bench of the High Court of Himachal Pradesh dated 20th August, 1984.
Respondents 1 to 15 herein, who claimed to be poor and mostly Harijans and are
residents of villages Bhainkhal, 256 mostly Harijans and are residents of
villages Bhainkhal, Baladi and Bhukha, Tehsil and district Simla in Himachal
Pradesh, addressed a letter on or about 4th June, 1984 to the Hon'ble Chief
Justice of the said High Court, complaining, inter alia, that (i) in 1972, the
State Government had sanctioned the construction of Road known as
Ghanna-Hatti-Bhukho Road, (ii) by about August, 1980 half the portion of the
road i.e. about 3 Kms. had been constructed and that when the road had reached
the village Gharog, the residents of the village obstructed further
construction, (iii) the Government initiated compulsory acquisition proceedings
in respect of the lands belonging to the villagers of Gharog village and the
same were finally acquired in 1982. The villagers of Gharog who were
disinterested in further construction of the road in collusion with the
authorities got the construction stopped at that stage.
It was alleged that after the construction
had been made upto the village Gharog, 200/250 metre portion of the road had to
be constructed through a privately owned piece of barren land belonging to two
families. As the road had reached upto their village, they objected to further
construction of the road and also obtained 'stay orders' from the Court. The
compulsory acquisition proceedings had been taken by the government in 1980 and
the land was acquired by it in 1982.
But the grievances of the said respondents
were that, in collusion with the authorities, the said two families of village
Gharog along with other residents of the village who were no longer interested
in the further construction of the road, got the construction work stopped.
Work had been there after resumed, it was further alleged, once or twice in a
half-hearted manner but the residents of the aforesaid village reached the
place of work in protest and got the work stopped again. Though the land was
government land, the construction had been, according to the said respondents,
completely abandoned.
The said respondents alleged that they had
been totally deprived of the road facility till then. They alleged that they
had to go to city after negotiating a steep ascent of 4/5 miles and by carrying
load worth maunds on their shoulders. Only after such a strenuous effort, it
was their allegation, that they were able to establish contacts with the city.
They asserted that 'democracy was meaningless to them'. In those 257
circumstances they by the aforesaid letter prayed for court's intervention and
action on this behalf.
After receiving the letter on 22nd June,
1984, the letter was treated by the High Court as a Writ Petition and the State
Government filed its reply to the same stating, inter alia, that on 29th July,
1977 the government had sanctioned construction of the said road for a total
expenditure of Rs.4,99,000. The total length of the road was about 5 Kms.; construction
work started immediately in 1977 and most part of the road including widening
at various places had been constructed till 1984 on a total expenditure of
Rs.2,99,216; when the construction of the road approached about 3/060 Kms. at
that time there was obstruction as mentioned hereinbefore and a civil suit was
filed and injunction was obtained. The injunction was vacated by the civil
court on the 30th April, 1982. The government stated further that some other
villagers again filed another suit which was dismissed in June, 1983. In the
meantime the portion of the said land had been acquired and compensation had
been paid to the land owners and in the financial years 1984-85, a sum of
Rs.40,000 had been allocated for the construction of this road which amount had
been fully utilised. In those circumstances it was stated in the said affidavit
filed on behalf of the state government that due to lack of funds, construction
of the entire road could not be completed.
When the matter came up for hearing before
the High Court on 27th June, 1984, the Court desired to know from the learned
Advocate General of the State as to the decision of the government regarding
the completion of the road to the extent of the first three kms. The hearing
was adjourned for this purpose. The respondents 16 and 17 filed an application
on 24.7.1984 for impleading themselves as parties to the proceedings as they
claimed that they would be affected by the decision of the High Court in the
said proceedings. They were so allowed to be impleaded by the High Court on
30th July, 1984. Learned Advocate General informed the High Court that the
State Government had agreed to the alignment of the road being maintained in
the same position as had been earlier decided. After affidavit, the matter came
before the High Court on 20th August, 1984.
258 The High Court directed the
Superintending Engineer of the P.W.D. to proceed with the construction of the
road between 3/060 Kms. Onwards upto 3/886 Kms. and to complete the same during
the course of the current financial year. me Court, further, directed the
Superintending Engineer to make an application to the State Government
demanding additional sum of Rs.50,000 being sanctioned for the construction of
the said road and directed further that the state government should favourably
consider the demand of the Superintending Engineer.
The High Court further, in its order dated
20th August, 1984, noted that the work of the construction of the road had been
taken up in patches. The High Court felt that although public money had been
invested in the construction of the road and the construction of the road had,
in fact, progressed in varying degrees 'almost to the end of the road', because
the construction work had been taken up in a somewhat haphazard manner, the
road had not become serviceable beyond 3/060 Kms. except in intermittent
patches. The High Court found that the people of the area were, therefore,
denied the benefit of the use of the road in a contiguous length. The High
Court was of the opinion that some remedial action was expedient in the public
interest. The High Court, further, noted the information supplied by the
Superintending Engineer that during the financial year to make the road
serviceable from 3/060 Kms.
and 3/886 Kms. by making it 5/7 metres wide
katcha constructed road, an expenditure of about Rs.90,000 would be necessary,
as against this requirement, under the budget allocation, a sum of Rs.40,000
has been set apart for the purpose of widening the road. The Superintending Engineer
further stated that the two intervening patches in which no construction work
whatever has been undertaken, had been left out because of the then pending
litigation which, however, had ended in June, 1983. In those circumstances, the
High Court noted the requirements for the completion of the road and/or to make
the same serviceable.
The High Court recorded the statement of the
Superintending Engineer that there was no reason why the road could not be
constructed gradually onwards. In giving the direction the High Court took into
consideration the statement made before it by the Superintending Engineer that
the road 259 could be constructed gradually onwards. According to the estimate
of the Superintending Engineer for the purpose of widening of the road between
3/060 Kms. to 3/886 Kms., Rs.90,000 would be required on rough estimate but
only Rs.40,000 was there. The High Court, thereafter, directed as follows:
"The State Government 18 directed to
favourably consider the demand for additional funds which the Superintending
Engineer will make to complete the widening of the road between 3/060 Kms. to
3/886 Kms. In the course of the current financial year.
The case to be listed again on November 20,
1984.
The Superintending Engineer will, on that
day, place on the record of this case a report with regard to the progress made
during the intervening period in the direction of completing and widening of
the road between 3/060 Kms. and 3/886 Kms." This petition seeks special
leave to appeal to canvass before this Court the question whether in view of
the provisions of articles 202 to 207 of the Constitution, the High Court had
power to issue prerogative writs under article 226 of the Constitution to
direct the State Government either to allot any particular sum for expenditure
on account of particular project or to allot amounts in addition which have
already been allotted under the current financial budget of the State
Government and thus to regulate even the procedure in financial matters of
State which, according to the Government, were the exclusive domain of the
legislature as contained in articles 202 to 207 of the Constitution.
It appears to us that in the facts of this
case, the controversy lies within a short compass. It is well-settled that the
persons who have applied to the High Court by the letter are persons affected
by the absence of usable road because they are poor Harijan residents of the
area, their access by communication, indeed to life outside is obstructed
and/or prevented by the absence of road. The entire State of Himachal Pradesh
is in hills and without workable roads, no communication is possible. Every
person is entitled to life as enjoined in article 21 of the Constitution and in
the facts of this case read in conjunction with article 19(1)(d) of the 260
Constitution and in the background of article 38(2) of the Constitution every
person has right under Article 19(1)(d) to move freely throughout the territory
of India and he has also the right under article 21 to his life and that right
under article 21 embraces not only physical existence of life but the quality
of life and for residents of hilly areas, access to road is access to life
itself. These propositions are well-settled. We accept the proposition that
there should be road for communication in reasonable conditions in view of our
Constitutional imperatives and denial of that right would be denial of the life
as understood in its richness and fullness by the ambit of the Constitution. To
the residents of the hilly areas as far as feasible and possible society has
constitutional obligation to provide roads for communication.
We need not in this connection refer in
detail to the numerous decisions. Reference may, however, be made to in re:
Sant Ram. [1960] 3 S.C.R. 499, Kharak Singh, [1964] 1 S.C.R. 332, A.V. Nachane
& Anr. etc. etc. v. Union of India & another etc. etc., [1982] 1 S.C.C.
205, Olga Tellis and Ors. etc. v. Bombay Municipal Corporation and Ors. etc.,
[1985] 3 S.C.C. 545, Municipal Council, Ratlam v. Shri Vardhichand and Ors.,
[1981] 1 S.C.R. 97, Francis Coralie Mullin v. The Administrators, Union
Territory of Delhi & Ors., [1981] 2 S.C.R. 516.
The persons who have complained about the
non- availability of road are the persons who have been affected by the denial
of proper roads in a hilly state. Therefore, there is no dispute as to their
locus. There is also no dispute that the state Government was willing and has
indeed sanctioned money for the construction of the road.
Constitutional and legal imperative on the
part of the State to provide roads for residents of hilly state is not in
issue. So in this petition we need not examine how for is the obligation to
provide roads.
The citizen has come to the court complaining
only that the construction of the road has not been completed with sufficient
energy and zeal and there should be more funds available. The budget allocation
has been placed before us.
We are satisfied that Rs. 40,000 had been
sanctioned for the year and whatever sum is available during this year, the State
Government is willing to spend for the construction of the road during the year
as per allocation already made. So, 261 therefore, there was nothing improper
or illegal in the order passed by the High Court directing the State Government
to carry out the construction as quickly as possible within the sanctioned
limits. It is clear that communication in the hills is difficult and to a
hillman, road is life line. About spending money for a particular socially
needed and community wise desirable expenditure it is necessary to bear in mind
the Constitutional provisions in this regard.
The expression 'budget' does not appear as
such in the Constitution. It is one of the terms sanctified by usage. So far as
the provision for public expenditure is concerned, this must be in consonance
with the requirements of the Constitution. The directions of the Court cannot
and should not run counter to the specific provisions of the Constitution. In
other words, the court cannot arrogate to itself any function which is left to
the domain of the other two branches namely, the executive and the legislature.
The provisions regarding the central
allocation of funds are contained in articles 112 to 117 of the Constitution
with which we are, in the facts of this case, not concerned. We are concerned
here with the procedural and financial matters in the State which are dealt
with in articles 202 to 207 of the Constitution. It is not necessary to refer
in detail to the said articles. It suffices to say that certain expenses are charged
on the consolidated fund of the State. Discussions regarding these though take
place in the assembly, these are not subject to alterations by the assemblies.
It is necessary in this connection to bear in mind the item contained in
article 202(3)(e) namely, 'any sums required to satisfy any judgment, decree or
award of any court or arbitral tribunal'. Such an expenditure is a charge on
the consolidated fund. Therefore, it would have required elaborate
consideration, which fortunately in view of the nature of the directions of the
court in this case these cannot be termed as decree or judgment of the court
for any specific amount. Had it been otherwise it would have required delicate
handling, because how far and to what extent the court can be permitted, if at
all, to have its order sanctified by making it a charge on the consolidated
fund is a matter of some importance and requires serious consideration.
262 The recommendations apart from those
under article 203 (2) shall be submitted in the form of demands for grants to
the Legislative Assembly, and the Legislative Assembly shall have power to
assent, or to refuse to assent, to any demand, or the assent to any demand
subject to any reduction of the amount specified therein. Sub-article (3) of
article 203 atipulates that no demand for a grant shall be made except on the
recommendation of the Governor.
Under our constitutional set up, the said
demand by the Governor in terms of sub-article (3) of Article 203 must be on
the recommendation of Council of Ministers. Article 204 deals with the
Appropriation Bills. After the passing of the Appropriation Bill, making
provision for grants for money which are charged on the consolidated funds
should be sanctioned by the Legislature. In case of supplementary, additional
or excess grants, these must be in compliance with article 205 of the
Constitution which in a sence provides that if any fund is found insufficient
for a particular purpose of the year or need has arisen then the Governor i.e.
the Government must get sanction to another statement showing the estimated
amount of the additional expenditure and such would be the demand for excess
grant and would be passed in accordance with the provisions contained in the
other articles of the Constitution.
In this case as appears from the Financial
Hand-Book of the Himachal Pradesh Budget Manual which provides by paragraph
2.12 the 'Detailed Estimates', in paragraph 2.13 'Demand for Grant', in
paragraph 2.15 'Detailed Head' is a division of p minor head which provides that
provision should not ordinarily be made under a new detailed head without the
prior approval of the Accountant General. men 'Major Head' and 'Minor Head' are
defined. Paragraph 2.38 stipulates for 'Supplementary appropriation' which
means an addition to the amount included in the schedule of authorised
expenditure.
The Budget is presented under Chapter 7 of
the said Hand-Book, paragraph 7.4 to the Legislature and as soon as the budget
is presented, it is either passed or not in accordance with the detailed
requirements contained and stipulated. The power of appropriation out of the
allotments is contained in paragraph 10.2.. Chapter 12 deals with the
expenditure not 263 provided for in budget estimates - Reappropriations -
Supplementary estimates and excess grants. Paragraph 12.1 of Chapter 12
provides that no expenditure shall be incurred which may have the effect of
exceeding the total grant of appropriation authorised by the Appropriation Act.
In case of additional expenditure, a supplementary Appropriation Bill have to
be presented to the Legislature.
There are detailed instructions regarding the
preparation, submission etc. Of applications, for re- appropriation. The sum
and substance of the said requirements are that total sanction of bill for a
project is within the domain of the legislature and the executive has no power
to exceed the total sanction without the consent of the legislature and the
court cannot impinge upon the field of legislature. me executive, however, on
the appreciation of the priorities determine the manner of priorities to be
presented to the legislature. The court cannot also, in our opinion, impinge
upon the judgment of the executives as to the priorities.
We were taken to the budget allocation in the
instant case in the further affidavit filed which provides for instructions for
the preparation of re-appropriation as well as appropriation of grants and the
High Court was quite conscious of the same. m e High Court has noted that the
Superintending Engineer has stated that a sum of Rs. 90,000 would be required
for the completion of the widening of the road between 3/060 Kms. and 3/886
Kms. The High Court has suggested that the Superintending Engineer may make a
proposal to this effect to the appropriate Government. me High Court has not
directed the State Government, as we read the order, to spend Rs.90,000 which
clearly in view of the system of budgeting and the budget in this case would be
in excess of the annual statement of income and expenditure sanctioned by the
legislature. The court could not direct the State Government to spend beyond
the sanctioned amount which is in the domain of the legislature in view of the
provisions of articles 202 to 207 of the Constitution so far as the State
expenditures are concerned. As we read the order, the superintending Engineer
as the administrative authority has been directed to carry out the directions
of the court for the widening of the road subject to funds being available
during the time limit. The financial period has expired. Whatever sum remaining
for this financial 264 year, the State Government has assured us that they will
carry out such direction. So far as the additional grant of the sum was
required, it is entirely in the domain of the legislature to sanction it or
not. The members of the legislature know the needs of the people. Under the
Constitution, they are authorised and entitled to fix the priorities for the
expenditure to satisfy the basic needs of the people, upon the judgment and
recommendation of the Executive.
Three questions, however remain to be
considered, namely, how far the court could give directions which are
administrative in nature and secondly whether any direction could be given to
build roads where there are no roads for the enrichment of the quality of life
or access to life, and thirdly whether the court could direct that the
administration should report from time to time so that action taken can be
supervised by the court.
In order to decide the propriety and the
legality of the direction given by the High Court of Himachal Pradesh we have
to bear in mind that there are three distinct functions in a government and
these should be kept separate though in constitutional set up, they very often
at places over-lap.
In Commonwealth of Massachusetts v. Andrew W.
Mellon, U.S.
Supreme Court Reports, 67 Lawyers' Edn. p.
1078 at p.1085, it was observed about the American constitution thus:-
"The functions of government under our system are apportioned. me
legislative department has been committed the duty of making laws; to the
executive the duty of executing them: and to the judiciary, the duty of
interpreting and applying them in cases properly brought before the courts. The
general rule is that neither department may invade the province of the other,
and neither q control, direct, or restrain the action of the others." It
is also well to remember that freedom depends upon the separation of three
organs of the State.
Each must function within its own domain and
remain distinct.
On this aspect, it is appropriate to recall
what Montesquien in 'The Spirit of the Law' (1949 Reprint 1962) observed at
pages 150-152:
"Democratic and aristocratic states are
not in their own nature free. Political liberty is to be 265 found only in
moderate governments; and even in these it is not always found. It is there
only when there is no abuse of power. But constant experience shows us that
every man invested with power is apt to abuse it, and to carry his authority as
far as it will go. Is it not strange, though true, to say that virtue itself
has need of limits? .....................
.....................
In every government there are three sorts of
powers: the legislative the executive in respect of things dependent on the law
of nations and the executive in regard to matters that depend on the civil law.
By virtue of the first, the prince or
magistrate enacts temporary or perpetual laws, and amends or abrogates those
that have been already enacted. By the second, he makes peace or war, sends or
receives embassies, establishes the public security, and provides against
invasions. By the third, he punishes criminals, or determines the disputes that
arise between individuals. The latter we shall call the judiciary power, and
the other simply the executive power of the state.
The political liberty of the subject is a
tranquility of mind arising from the opinion each person has of his safety. In
order to have this liberty, it is requisite the government be so constituted as
one man need not be afraid of another.
When the legislative and executive powers are
united in the same person, or in the same body of magistrates, there can be no
liberty; because apprehensions may arise, lest the same monarch of senate
should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary
power be not separated from the legislative and executive. Were it joined with
the legislative, the 266 lire and liberty of the subject would be exposed to
arbitrary control; for the judge would be then the legislator. Were lt Joined
to the executive power, the Judge might behave with violence and oppression.
There would be an end of everything, were the
same man or the same body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals." It is well,
however, to remember that Alexander Hamilton, John Ray and James Madison - in
Federalist by means of as many as eighty five essays had to support the
founding fathers of the American Constitution by trying to prove that in
essence there is separation of powers in American Constitution as practiced in
reality in England.
In the instant case, administrative action or
administrative inaction is being sought to be reviewed. Read in the background
of the directive principles as contained in article 38(2) of the Constitution
access to life should be for the hillman an obligation of the State but it 18
primarily within the domain of the legislature and the executive to decide the
priority as well as to determine the urgency. Judicial review of the
administrative action or inaction where there is an obligation for action
should be with caution and not in haste.
In this case, as mentioned before, the
executive is not R oblivious as is evident from the facts stated herein of its
obligation. Its sense of priority it has determined, there may have been
certain lethargy and inaction. It has been said by Adam Smith in his 'Wealth of
Nation' that whenever you see poverty widespread rest assured that either of
the two causes must have operated, either energy has not been applied or energy
has been misapplied.
In the instant case there has been at the
highest a slow application of energy in the action by the executive.
By the process of judicial review, if the
High Court activises or energizes executive action, lt should do so cautiously.
Remedial action in public interest must be with caution and within 267 limits.
Reading down the order in the manner we have indicated, in our opinion, the
High Court has not transgressed the limits of its power.
So far as the first and second question are
concerned, in Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2
S.C.R. 67, this Court has given guidance. One of us (Pathak, J.) speaking about
the nature and extent of relief which has to be given in litigation where
public interest was concerned, observed at page 161 of the report that there
were certain fundamental constitutional concepts which need to be recalled,
namely, the Constitution envisaged a broad division of the power of the State
between the legislature, the executive and the judiciary. Although the division
is not precisely demarcated, there is general acknowledgement of its limits,
there is certain time over-lapping. It is for the legislature to legislate, the
executive to implement and carry out that legislation and the judiciary to
supervise.
Affirmative actions are sometimes necessary
to keep the j judiciary in tune with the legislative intention. Having regard
to the observations made in this case at pages 161 to 163 of the report in the
light we read the present order, we do not think that the learned judges of the
Himachal Pradesh High Court have transgressed this jurisdiction of supervising
executive action in view of the time taken to construct this road.
In Dr. P. Nalla Thamby Thera v. Union of
India and Ors.
[1984] 1 S.C.R. 709, a writ petition was
dismissed under article 32 of the constitution for implementing the report of
the Kunzru, Wanchoo and Sikri Committees, and for appointing a fact finding
Commission to inquire and report about the train accidents by a certain
commuter. The Court held that giving directions in a matter like one which was
before the court where availability of resources had a material bearing, policy
regarding priorities was involved, expertise was very much in issue was not
prudent to issue any directions. me court felt that whether a committee should
be appointed or not was primarily a matter in the domain of the executive.
In the instant case before us, the court has
not transgressed its limits by substituting its priorities. mere has been
allocation. The court has directed the executive to bring it to the notice of
the legislature if some re- allocation was 268 feasible amongst the sanctioned
expenditure for roads leaving the priorities to the discretion of the competent
authorities.
The only other aspect, which is the third
aspect, is the direction of the court to report to the court what progress had
been done. In our opinion, if we read the order properly, the court's direction
was not intended to supervise the action taken and to enforce its
implementation but only to be apprised of the action taken in order to bring
about a certain sense of urgency so that there was no delay.
In this connection reliance may be placed on
the observations of this Court in State of Himachal Pradesh v. A Parent of a
Student of Medical College, Simla and Ors., A.I.R. 1985 S.C. 910, where the
High Court recommended introduction of a bill to prevent ragging. It was held
that this was an indirect attempt to direct the executive to initiate
legislation with a view to curbing the evil of ragging. m ere periodic
directions were given by the High Court. This Court reiterated that it was
entirely a matter for the Government to decide whether or not to introduce any
particular legislation. Any member of the legislature could also introduce
legislation but the Court could not mandate the executive or any member of the
legislature to initiate any legislation and supervise the action of initiation.
The Court in this case has directed 'to
favourably consider the demand for additional funds'. This was enough.
The State Government has assured this court
that they would carry out this direction. The court must know its limitations
in these fields. The court should bring about an urgency in executive lethargy
if any, in any particular case but it must remember the warning of Benjamin N.
Cardozo in 'The nature of judicial process' at page 141 of the book:- "The
judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal
of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence.
He is to exercise a discretion informed by
tradition, methodized by 269 analogy, disciplined by system, and subordinated
to "the primordial necessity of order in the social life." Wide enough
in all conscience is the field of discretion that remains." Therefore,
there was no need for the High Court to direct that the matter be listed again
before the Court on 20th November, 1984.
Out of deference, however, to the High Court,
we do not delete this part of the order of the High Court but direct that this
be placed before the High Court only to inform it as to what steps had been
taken and thereafter the High Court may not take any further action and leave
it to the judgment of the priorities and initiative both of the executive and
the legislature to pursue this matter. The High Court has served its high
purpose of drawing attention to a public need and indicated a feasible course
of action.
No further need be done by the High Court in
this matter.
So much has been done. So little remains to
be done. We trust that this would be done by the State Government in proper
spirit.
Affirmative action in the form of some
remedial measure, in public interest, in the background of the constitutional aspirations
as enshrined in article 38 read with articles 19 and 21 of the Constitution by
means of judicial directions in cases of executive inaction or slow action is
permissible within the limits. me way we read the High Court's order with the
clarification indicated does not transgress that limit.
It is necessary to bear in mind that
interference with the administration cannot be meticulous in our Constitutional
system of separation of power. It is not necessary to express our opinion in
this case whether our Constitution is truly based on Montesquien system of
separation of power. We accept the position that court cannot usurp or
abdicate, and the parameters of judicial review must be clearly defined and
never exceeded. See the observations of Krishna Iyer J. in Fertilizer
Corporation Kumgar Union (Regd.), Sindri and Ors. v. Union of India and others
[1981] 2 S.C.R. p.67 at p.71. It is, however, neither possible nor desirable to
define for all purposes that parameter. Judicial review of adminis- 270 trative
action depends upon the facts and circumstances of each case. Its dimension 18
never closed and must remain flexible. But in this case the order of the High
Court in the light we have read it, does not exceed that parameter.
The petition for special leave is disposed of
in the aforesaid manner without grant of any leave to appeal.
Except the directions indicated above, there
will be no further order on this application. In the facts and circumstances as
the State Government has not shown any lack of imitative, the parties will pay
and bear their own costs.
M.L.A. Petition dismissed.
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