U.P. & Ors Vs.
Jeet S. Bisht & Anr  Insc 645 (18 May 2007)
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 (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
(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 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
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
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
case, it has issued a continuing mandamus to 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
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."
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
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 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
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
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.
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
"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."
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
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."
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
"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
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
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
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
( 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
( 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
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 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
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
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 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."
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
"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, 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.