of U.P. & Ors. Vs. Jeet S. Bisht & Anr.  Insc 646 (18 May 2007)
(Arising out of Special Leave Petition (Civil) No.6928 of 1999) MARKANDEY
1. Leave granted.
2. This appeal furnishes a typical instance of a widespread malady which has
infected the judicial system in India, namely, the tendency in some courts of
not exercising judicial restraint and crossing their limits by encroaching into
the legislative or executive domain, contrary to the broad separation of powers
envisaged under our Constitution.
3. Heard learned counsel for the parties as well as Shri Amarendra Sharan,
learned Additional Solicitor General and Shri M.N.
Krishnamani, Sr. Advocate.
4. This appeal arises out of a writ petition filed in the Allahabad High
Court in which the grievance of the writ petitioner was of charging excessive
electricity bills by the U.P. State Electricity Board.
In para 19 of the writ petition it was also mentioned that the petitioner
had, before filing the writ petition, approached the District Consumer Forum,
Chamoli but the same was not decided because the term of two members of the
District Consumer Forum had expired and till the filing of the petition new
members were not appointed and hence the District Consumer Forum, Chamoli was
5. In the counter affidavit to the writ petition it was stated by the
Special Secretary, Department of Food and Civil Supplies, U.P.
Government, that appropriate steps were being taken to fill up the vacancies
of the District Consumer Forum, Chamoli vide paragraphs 4 to 12 of the counter
affidavit. In the said counter affidavit mention was also made about the grants
given by the State Government for the State Consumer Forum and also mentioned
the statistics about the number of cases filed and disposed off.
6. By the impugned judgment dated 8.1.1998 the High Court apart from making
observations on the merits of the controversy issued the following directions :
"We direct the State Government to constitute at least five State
Consumer Forums at State level as used under Section 16 of Consumer Protection
Act by making necessary amendment. The State Government can also make law by
making local amendment with the prior consent of the President of India under
Article 254 of Constitution of India if it falls under concurrent list and the
Benches can be constituted at "Commissionery level" at the beginning
with at five places on the pattern of Benches constituted under Administrative
Tribunal Act. We further direct that the Presiding Officer of a Bench will be a
retired High Court Judge who would enjoy the same facilities and amenities as
enjoyed by a sitting High Court Judge as in Vice Chairman of Administrative
Tribunal. At present the President of State Commission is not enjoying the facilities
of a Judge of High Court.
We are also of the view that the infrastructure facilities of proper
building and recruitment powers of staff be given to the Presiding Officer of
State Commission or Vice President and be given proper budgetary power to regulate
the budget within the allocated sufficient budget so that he has not to run to
the administrative department off and on.
We make it clear that in case if it does not fall within the jurisdiction of
State Government to issue ordinance by local amendment or enact law then the
State Government is to approach immediately in view of the above discussion to
the Central Government for making necessary infrastructure facilities regarding
constitution of Benches and proper staff, building etc. so that the functioning
starts within four months to mitigate the suffering of the consumers."
7. Against the aforesaid judgment of the High Court the State of U.P. and
others filed this appeal before us in which a ground inter alia taken was that
the aforesaid directions issued by the High Court were contrary to the
provisions of the Consumer Protection Act. It was also urged that the court
cannot issue a direction that the law be amended. It was further contended that
the various directions of the High Court related to policy matters in which the
judiciary cannot interfere.
8. When the appeal was taken up for hearing on the earlier occasions this
Court passed interim orders expressing its anguish that the very purpose of the
Consumer Protection Act was frustrated and the Act was becoming non functional
due to the indifference of the State Government in filling up vacancies at the
State and District Levels and providing in sufficient funds for salaries of
members and the staff, and for the infrastructure without which the State and
District Consumer Fora cannot operate. By the order dated 8.1.2001 this Court
requested the Solicitor General of India to assist the Court and seek
Thereafter, on 16.4.2001 the learned Solicitor General submitted that he had
discussed the matter with the Chairman of the National Consumer Forum with a
view to find out the difficulties being faced by the various Fora created at
the National level, State level and District level so that effective steps can
be taken to make these Fora functional and the object of the Act achieved.
9. Thereafter by an interim order dated 26.11.2001 this Court observed:
"After hearing learned counsel for the parties we direct the Union of
India to file, within two weeks from today, a comprehensive scheme with regard
to the structuring of Consumer Forums at all the three levels. The emphasis has
to be with regard to service conditions, not only of the members of the
District, State and the National Consumer Forums but also with regard to the
staff in each of the said Forums. In formulating the scheme, the report of the
Bagla Commission may be taken into consideration.
On the scheme being filed in Court, notices will then be issue to all the
State Governments for their comments. The effort has to be to see that these
Consumer Forums become effective institutions where the consumers can give vent
to their grievances rather then their going to the courts of law.
List for further orders on 11th December, 2001."
10. Thereafter it appears that a series of interim orders have been passed
by this Court (including issuance of notices to all State Governments) relating
to various matters concerning the Consumer Fora at the National, State and
District level. It appears that the scope of the writ petition in the appeal
before us has been expanded so as to cover not only the State and District
Consumer Fora in U.P., but also of those all over India. Thus the initial
controversy relating to the District Forum, Chamoli was expanded by the
Allahabad High Court to the State level, and further expanded by this Court to
the National level.
11. It was contended before us by Shri Amarendra Sharan, Additional
Solicitor General of India that this Court should fix the salaries and
allowances of members of the State Consumer Dispute Redressal Commission in all
States of India as well as the salaries and allowances of the District Fora all
12. We pointed out to learned Additional Solicitor General that this cannot
be validly done as it would be contrary to the provisions of the Act. Thus,
Section 10(3) of the Consumer Protection Act states :
"The salary or honorarium and other allowance payable to, and the other
terms and conditions of service of the members of the District Forum shall be
such as may be prescribed by the State Government."
Similarly, Section 16(2) of the Act states:
"The salary or honorarium and other allowances payable to, and the
other terms and conditions of service (including tenure of office) of, the
members of the State Commission shall be such as may be prescribed by the State
13. We pointed out to the learned Additional Solicitor General of India that
the salaries and allowances of the members of the State Commissions as well as
the District Consumer Fora can only be prescribed by the State Government and
not by this Court. When Parliament in its wisdom has nominated a particular
authority (in this case the State Government) to fix the salaries and
allowances of the members of the State and District Fora, this Court cannot override
the clear language of the statute and substitute the words "the Supreme
Court" for the words "the State Government" under section 10(3)
and section 16(2). It is a well settled principle of interpretation that the
Court cannot add or substitute words in a statute.
14. No doubt the Court can make a recommendation to the State Governments
that the salaries and allowances of the members of the State and District Fora
are inadequate and should be increased, but that is about as far as the Court
can go. It can only make recommendations but it cannot give binding directions
in this connection. By a judicial verdict the court cannot amend the law made
by Parliament or the State Legislature.
15. Learned Additional Solicitor General submitted that such a direction can
be given, and for this proposition he relied on the decision India & Ors.
1993(4) SCC 288.
16. We have carefully gone through the above decision. We fully agree with
the observations in this judgment that Judges should get adequate salaries and
allowances to enable them to function impartially and with a free mind, but we
do not agree that that decision has laid down any principle of law that the
salaries, allowances and other conditions of Judges should be fixed by the
17. The salaries, allowances and other conditions of service of Judges are
either fixed by the Constitution (e.g. the age of superannuation and salaries
of Supreme Court and High Court Judges) or by the legislature or the executive.
In fact this is the position all over the world.
18. No doubt in the aforesaid decision various direction have been given by
this Court but in our opinion that was done without any discussion as to
whether such directions can validly be given by the Court at all. The decision
therefore passed sub silentio . The meaning of a judgment sub silentio has been
explained by this Court in 101 (vide paras 11 and 12) as follows :- "A
decision passes sub silentio, in the technical sense that has come to be
attached to that phrase, when the particular point of law involved in the
decision is not perceived by the court or present to its mind. The court may
consciously decide in favour of one party because of point A, which it
considers and pronounces upon. It may be shown, however, that logically the
court should not have decided in favour of the particular party unless it also
decided point B in his favour; but point B was not argued or considered by the
court. In such circumstances, although point B was logically involved in the
facts and although the case had a specific outcome, the decision is not an
authority on point B. Point B is said to pass sub silentio.
In General v. Worth of Paris Ltd. (k) (1936) 2 All ER 905 (CA), the only
point argued was on the question of priority of the claimant's debt, and, on
this argument being heard, the court granted the order. No consideration was
given to the question whether a garnishee order could properly be made on an
account standing in the name of the liquidator.
When, therefore, this very point was argued in a subsequent case before the
Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd.
(1941) 1 KB 675, the court held itself not bound by its previous decision.
Sir Wilfrid Greene, M.R., said that he could not help thinking that the point
now raised had been deliberately passed sub silentio by counsel in order that
the point of substance might be decided. He went on to say that the point had
to be decided by the earlier court before it could make the order which it did;
nevertheless, since it was decided "without argument, without reference to
the crucial words of the rule, and without any citation of authority", it
was not binding and would not be followed. Precedents sub silentio and without
argument are of no moment. This rule has ever since been followed."
19. The principle of sub silentio has been thereafter followed by this
Breweries Ltd. & Anr. (2004) 11 SCC 26.
20. The direction to increase the age of superannuation is really the
function of the legislature or executive. It has been held in several decisions
of this Court that the Court cannot fix the age of SCC 191 (vide para 6).
21. It is well settled that a mere direction of the Supreme Court without
laying down any principle of law is not a precedent. It is only where the
Supreme Court lays down a principle of law that it will amount to a precedent.
22. In Municipal Committee, Amritsar vs. Hazara Singh, AIR 1975 SC 1087, the
Supreme Court observed that only a statement of law in a decision is binding.
In State of Punjab vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that
everything in a decision is not a precedent. In Delhi Administration vs.
Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction
without laying down any principle of law is not a precedent. In Divisional
Controller, KSRTC vs. Mahadeva Shetty 2003 (7) SCC 197, this Court observed as
"..The decision ordinarily is a decision on the case before the Court,
while the principle underlying the decision would be binding as a precedent in
a case which comes up for decision subsequently. The scope and authority of a
precedent should never be expanded unnecessarily beyond the needs of a given
situation. The only thing binding as an authority upon a subsequent Judge is
the principle, upon which the case was decided"
23. In Jammu & Kashmir Public Service Commission vs. Dr.
Narinder Mohan AIR 1994 SC 1808, this Court held that the directions issued
by the court from time to time for regularization of ad hoc appointments are
not a ratio of this decision, rather the aforesaid directions were to be
treated under Article 142 of the Constitution of India. This Court ultimately
held that the High Court was not right in placing reliance on the judgment as a
ratio to give the direction to the Public Service Commission to consider the
cases of the respondents for regularization. In that decision this Court
"11. This Court in Dr. A.K. Jain vs. Union of India 1988 (1) SCR 335,
gave directions under Article 142 to regularize the services of the ad hoc
doctors appointed on or before October 1, 1984. It is a direction under Article
142 on the particular facts and circumstances therein. Therefore, the High
Court is not right in placing reliance on the judgment as a ratio to give the
direction to the PSC to consider the cases of the respondents. Article 142
power is confided only to this Court. The ratio in Dr. P.C.C Rawani vs. Union
of India 1992 (1) SCC 331, is also not an authority under Article 141.
24. In the present case there are clear statutory provisions in Sections
10(3) and 16(2) of the Consumer Protection Act which prescribe that it is the
State Government which alone can fix the salaries and allowances and conditions
of service of the members of the State and District Consumer Fora. How then can
the court fix them?
25. If this Court itself fixes such salaries and allowances, it will be
really amending the law, and it is well settled that the Court cannot Reforms
& Anr. AIR 2002 SC 2112 and Supreme Court 1990 SC 334.
Prakash P. Hinduja AIR 2003 SC 2612 (vide para 29) and it cannot legislate
vide Sanjay Kumar vs. State of U.P. 2004 ALJ 239, JT 2006(2) SC 361, Suresh
Seth vs. Indore Municipal Corporation AIR 2006 SC 767 (vide para 5) and Union
of India & Anr. vs.
Deoki Nandan Aggarwal AIR 1992 SC 96.
27. The Court should not encroach into the sphere of the other organs of the
State vide N.K. Prasada vs. Government of India & Ors. JT 2004 Supp.(1) SC
326 (vide paras 27 and 28).
Union of India & Ors. AIR 1990 SC 334 (vide para 55) this Court observed
. "There can be no doubt that an authority exercising legislative
function cannot be directed to do a particular act. Similarly the President of
India cannot be directed by the Court to grant approval to the proposals made
by the Registrar General of the Supreme Court, presumably on the direction of
the Chief Justice of India." Anr. AIR 2002 SC 2112 (vide para 21) this
Court observed :
"At the outset, we would say that it is not possible for this Court to
give any directions for amending the Act or the statutory rules. It is for
Parliament to amend the Act and Rules. It is also established law that no
direction can be given, which would be contrary to the Act and the Rules."
30. If we issue the direction as prayed for by learned Additional Solicitor
General in this case, we would be issuing a direction which would be wholly
illegal being contrary to Section 10(3) and Section 16(2) of the Consumer
Protection Act. This Court is subordinate to the law and not above the law.
31. When it is said "Be you howsoever so high, the law is above
you" this dictum applies even to the Supreme Court, since the law is above
the Supreme Court and the Supreme Court is not above the law.
The Judges of the Supreme Court and High Court should have the modesty and
humility to realize this.
(vide para 29) this Court observed :
"Under our constitutional scheme the Parliament exercises sovereign
power to enact laws and no outside power or authority can issue a direction to
enact a particular piece of legislation. In Supreme Court Employees' Welfare
Union of India (1989) 4 SCC 187 (para 51) it has been held that no Court can
direct a legislature to enact a particular law. Similarly, when an executive
authority exercises a legislative power by way of subordinate legislation
pursuant to the delegated authority of a legislature, such executive authority
cannot be asked to enact a law which he has been empowered to do under the
delegated legislative authority. This view has been reiterated in State of J&K
v. AR Zakki and others, AIR 1992 SC 1546." 1992 SC 96 (vide para 14) this
Court observed :
"It is not the duty of the Court either to enlarge the scope of the
legislation or the intention of the legislature when the language of the
provision is plain and unambiguous. The Court cannot rewrite, recast or reframe
the legislation for the very good reason that it has no power to legislate. The
power to legislate has not been conferred on the courts. The Court cannot add
words to a statute or read words into it which are not there. Assuming there is
a defect or an omission in the words used by the legislature the Court could
not go to its aid to correct or make up the deficiency. Courts should decide
what the law is and not what it should be. The Court of course adopts a
construction which will carry out the obvious intention of the legislature, but
it could not legislate itself. To invoke judicial activism to set at naught the
legislative will is subversive of the constitutional harmony and comity of instrumentalities
vide P.K. Unni v. Nirmala Industries, (1990) 1 SCR 482 at p.488: (AIR 1990 SCC
933 at p.936), Mangilal v. Sugamchand Rathi (1965) 5 SCR 239: (AIR 1965 SC
101), Sri Ram Ram Narain Medhi v. The State of Bombay 1959 Supp. (1) SCR 489:
(AIR 1959 SC 459), Smt. Hira Devi v. District Board, Shahjahanpur 1952 SCR 1122
at p. 1131: (AIR 1952 SC 362 at p.365), Nalinakhya Bysack v. Shyam Sunder
Haldar (1953 SCR 533 at p.545): (AIR 1953 SC 148 at p.152), Gujarat Steel Tubes
Ltd. V. Gujarat Steel Mazdoor Sabha (1980) 2 SCR 146: (AIR 1980 SC 1896), S.
G. Punnerselvam (1973) 1 SCR 172 at p.182: (AIR 1972 SC 2284 at p.2289),
N.S. Vardachari v. G.
Vasantha Pai (1973) 1 SCR 886): (AIR 1973 SC 38), Union of India v. Sankal
Chand Himatlal Sheth (1978) 1 SCR 423: (AIR 1977 SC 2328) and Commr.
of Sales Tax, U.P. v. Auriaya Chamber of Commerce, Allahabad (1986) 2 SCR
430 at p.438:
(AIR 1986 SC 1556 at pp.1559-60). Modifying and altering the scheme and
applying it to others who are not otherwise entitled to under the scheme will
not also come under the principle of affirmative action adopted by courts
sometimes in order to avoid discrimination. If we may say so, what the High
Court has done in this case is a clear and naked usurpation of legislative power."
34. Thus the above decision clearly lays down that in the garb of
affirmative action or judicial activism this Court cannot amend the law as that
would be a naked usurpation of legislative power. This Court must exercise
judicial restraint in this connection.
35. We regret to say that the directions of the High Court (which have been
quoted in this judgment) are really an encroachment into the legislative and
executive domain. Whether there should be one State Consumer Forum or five or
more State Consumer Fora is entirely for the legislature and executive to
decide. The High Court has directed that the State Government should constitute
at least five State Consumer Forums at the State level by making necessary
amendments in the Act. In our opinion such a direction was clearly illegal. The
Court (including this Court) cannot direct amendment of an Act made by the
legislature. The establishment of the District, State and National level
Consumer Fora is done under Section 9 of the Consumer Protection Act by the
authorities mentioned in that Act. The composition of these Fora is also
prescribed in that section, and so are the salaries and allowances and other
conditions of service of the members. It is only the authorities mentioned in
the Act who can do the needful in this connection, and this Court cannot
arrogate to itself the powers given by the Act to the said authorities.
36. For instance, the salaries and allowances of member of the State and
District Fora can only be prescribed by the State Government. We have been
informed that in some States these salaries and allowances are very low. Be
that as it may, this Court cannot arrogate to itself the powers and functions
of State Government in this connection.
Different State Governments have different constraints and considerations
e.g. financial constraints, the number of cases, etc. and it is entirely for
the State Governments to exercise the powers prescribed to them by the Act.
Similarly it is entirely for the Central Government to perform the functions
given to it by the Act, and this Court cannot interfere with the Central or
State Government in the exercise of their functions. At best this Court or the
High Court can make recommendations for increase of salaries, allowances and
betterment of working conditions, etc. but there its jurisdiction ends. It
cannot give binding directions in this connection.
37. We regret to say that even the interim order of this Court dated
26.11.2000 by which it directed the Union of India to file a comprehensive scheme
with regard to the structuring of the Consumer Forums at all the three levels
does not seem to be within its jurisdiction as it is contrary to the clear
provisions of the Consumer Protection Act.
38. It has been nowhere provided in the Consumer Protection Act that the
Central Government has a duty, or power, to prepare a comprehensive scheme with
regard to the structure of Consumer Fora at all the three levels.
39. No doubt the High Court, as well as this Court, are concerned that the
Consumer Fora in many parts of the country are not functioning properly, but
the Court could at most have given some recommendations to the Central and
State Government in this connection, and it is entirely upto the Central and
State Governments whether to accept those recommendations or not, at their
This Court cannot amend the Consumer Protection Act by issuing directions
contrary to the clear provisions of the Act nor can the High Court do so.
40. The High Court apart from directing that there should be five Consumer
Fora in U.P. has also directed that the Presiding Officer of a Bench will be a
retired High Court Judge who would enjoy the same facilities and amenities as
enjoyed by a sitting High Court Judge. This again is contrary to the provisions
of the Act. Section 16(2) of the Act (which we have quoted above) clearly
states that the salaries, allowances and conditions of service of the members
of the State Commission shall be such as may be prescribed by the State
Government. Hence it was not open to the High Court to practically amend
Section 16(2) by its judicial verdict and prescribe the salaries or conditions
of service of the members of the State Commission. Such salaries or conditions
of service can only be prescribed by the State Government and not by the High
Court as is clear from Section 16(2).
41. We are constrained to make these strong observations because in recent
years it has been noticed that the judiciary has not been exercising self
restraint and has been very frequently encroaching into the legislative or
executive domain. We should do introspection and self criticism in this
42. It is true that there is no rigid separation of powers under our
Constitution but there is broad separation of powers, and it not proper for one
organ of the State to encroach into the domain of others.
of Jammu and Kashmir & Ors. AIR 1989 SC 1899 observed (vide para 17 to
"Before adverting to the controversy directly involved in these appeals
we may have a fresh look on the inter se functioning of the three organs of
democracy under our Constitution. Although the doctrine of separation of powers
has not been recognized under the Constitution in its absolute rigidity but the
constitution makers have meticulously defined the functions of various organs
of the State. The Legislature, executive and judiciary have to function within
their own spheres demarcated under the Constitution. No organ can usurp the
functions assigned to another. The Constitution trusts to the judgment of these
organs to function and exercise their discretion by strictly following the
procedure prescribed therein. The functioning of democracy depends upon the
strength and independence of each of its organs. The Legislature and executive,
the two facets of the people's will, have all the powers including that of
finance. The Judiciary has no power over the sword or the purse, nonetheless it
has power to ensure that the aforesaid two main organs of the State function
within the constitutional limits. It is the sentinel of democracy.
Judicial review is a powerful weapon to restrain unconstitutional exercise
of power by the legislature and executive. The expanding horizon of judicial
review has taken in its fold the concept of social and economic justice. While
exercise of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of powers is the self imposed
discipline of judicial restraint.
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial
expatriation case of Trop v. Dulles (1958) 356 US 86 observed as under :-
"All power is, in Madison's phrase, "on an encroaching nature".
Judicial power is not immune against this human weakness. It also must be on
guard against encroaching beyond its proper bounds, and not the less so since
the only restraint upon it is self-restraint.
Rigorous observance of the difference between limits of power and wise
exercise of power between questions of authority and questions of prudence requires
the most alert appreciation of this decisive but subtle relationship of two
concepts that too easily coalesce. No less does it require a disciplined will
to adhere to the difference. It is not easy to stand aloof and allow want of
wisdom to prevail to disregard one's own strongly held view of what is wise in
the conduct of affairs. But it is not the business of this Court to pronounce
policy. It must observe a fastidious regard for limitations on its own power,
and this precludes the Court's giving effect to its own notions of what is wise
or politic. That self-restraint is of the essence in the observance of the
judicial oath, for the Constitution has not authorized the judges to sit in
judgment on the wisdom of what Congress and the Executive Branch do."
When a State action is challenged, the function of the court is to examine
the action in accordance with law and to determine whether the legislature or
the executive has acted within the powers and functions assigned under the
constitution and if not, the court must strike-down the action. While doing so
the court must remain within its self-imposed limits. The court sits in
judgment on the action of a coordinate branch of the Government. While
exercising power of judicial review of administrative action, the court is not
an appellate authority. The constitution does not permit the court to direct or
advise the executive in matters of policy or to sermonize qua any matter which
under the constitution lies within the sphere of legislature or executive,
provided these authorities do not transgress their constitutional limits or
44. Courts have to maintain judicial self-restraint and they should not try
to take over the functions of the Executive or the Legislature. In the present
case, we can understand the concern of the High Court that the District
Consumer Forum, Chamoli and other Consumer Fora in U.P. were not functioning
properly, but then it could not and should not have overstepped its limits and
taken over the functions of the authorities prescribed in Section 9 and other
provisions of the Act.
45. It is well settled that the High Court cannot takeover the function of
the statutory authorities under an Act, vide G. Veerappa Pillai, Proprietor,
Sathi Vihar Bus Service Porayar, Tanjore District, Madras vs. Raman and Raman
Ltd. Kumbakonam, Tanjore District and others AIR 1952 SC 192, State of U.P. vs.
Section Officer Brotherhood and Anr. 2004 (8) SCC 286, U.P. State Road
Transport Corporation and Anr. vs.
Mohd. Ismail and others 1991(3) SCC 239 (paragraph 12) and State of U.P. and
Anr. vs. Raja Ram Jaiswal and Anr. 1985(2) SCC 131 (paragraph 16).
46. For instance, this Court in G. Veerappa Pillai's case (supra) held that
the High Court cannot direct the Regional Transport Authority to grant a
permit, because in that event, the High Court itself will be acting as the
permit granting authority. Similarly, in State of U.P. and Anr. vs. Raja Ram
Jaiswal and Anr. (supra) this Court observed :
"The High Court was, of course, clearly in error in issuing a mandamus
directing the District Magistrate to grant a licence. Where a statute confers
power and casts a duty to perform any function before the power is exercised or
the function is performed, the Court cannot in exercise of writ jurisdiction
supplant the licensing authority and take upon itself the functions of the
licensing authority. The High Court was hearing a writ petition praying for a
writ of certiorari for quashing the order of remand. The High Court could have
quashed the order of remand if it was satisfied that the order suffers from an
error apparent on the record. But there its jurisdiction would come to an end.
The High Court cannot then proceed to take over the functions of the licensing
authority and direct the licensing authority by a mandamus to grant to
47. Under our Constitution the Judiciary, the Legislature and the Executive
have their own broad spheres of operation. It is important that these organs do
not encroach on each other's proper spheres and confine themselves to their
own, otherwise there will always be danger of a reaction.
Of the three organs of the State, it is only the judiciary which has the
right to determine the limits of jurisdiction of all these three organs. This
great power must therefore be exercised by the judiciary with the utmost
humility and self-restraint.
48. The judiciary must therefore exercise self-restraint and eschew the
temptation to encroach into the domain of the legislature or the administrative
or statutory authorities. By exercising self-restraint it will enhance its own
respect and prestige. Of course, if a law clearly violates some provision of
the Constitution, it can be struck down, but otherwise it is not for the Court
to sit in appeal over the wisdom of the legislature, nor can it amend the law.
49. The Court may feel that the law needs to be amended or the Forum created
by an Act needs to be made more effective, but on this ground it cannot itself
amend the law or take over the functions of the legislature or executive. The
legislature and the executive authorities in their wisdom are free to choose
different methods of solving a problem and the Court cannot say that this or
that method should have been adopted. As Mr. Justice Cardozo of the U.S.
Supreme Court observed in Anderson vs. Wilson 289 U.S. 20 :
"We do not pause to consider whether a statute differently conceived
and framed would yield results more consonant with fairness and reason.
We take this statute as we find it".
50. Judicial restraint is consistent with and complementary to the balance
of power among the three independent branches of the State. It accomplishes
this in two ways. First, judicial restraint not only recognizes the equality of
the other two branches with the judiciary, it also fosters that equality by
minimizing interbranch interference by the judiciary. In this analysis,
judicial restraint may also be called judicial respect, that is, respect by the
judiciary for the other coequal branches. In contrast, judicial activism's
unpredictable results make the judiciary a moving target and thus decreases the
ability to maintain equality with the co-branches. Restraint stabilizes the
judiciary so that it may better function in a system of interbranch equality.
51. Second, judicial restraint tends to protect the independence of the
judiciary. When courts encroach into the legislative or administrative fields
almost inevitably voters, legislators, and other elected officials will
conclude that the activities of judges should be closely monitored. If judges
act like legislators or administrators it follows that judges should be elected
like legislators or selected and trained like administrators. This would be
counterproductive. An essential feature of an independent judiciary is its
removal from the political or administrative process. Even if this removal has
sometimes been less than complete, it is an ideal worthy of support and one
that has had valuable effects.
52. The constitutional trade off for independence is that judges must
restrain themselves from the areas reserved to the other separate branches.
Thus, judicial restraint complements the twin, overarching values of the
independence of the judiciary and the separation of powers.
53. As observed by the Supreme Court in M.H. Qureshi vs. State of Bihar 1959
SCR 629, the Court must presume that the legislature understands and correctly
appreciates the need of its own people. The legislature is free to recognize
degrees of harm and may confine its restrictions to those where the need is
deemed to be the clearest. In the same decision it was also observed that the
legislature is the best judge of what is good for the community on whose
suffrage it came into existence, and it is for the legislature to amend the
law, if it so wishes. The court can at most make a recommendation to the
legislature in this connection, but it is upto the legislature to accept the
recommendation or not.
54. The function of a judge has been described thus by Lawton LJ :
"A Judge acts as a referee who can blow his judicial whistle when the
ball goes out of play, but when the game restarts he must neither take part in
it nor tell the players how to play" (vide Laker Airways Ltd. vs.
Department of Trade (1977) QB 643(724).
55. In writing a biographical essay on the celebrated Justice Holmes of the
U.S. Supreme Court in the dictionary of American Biography, Justice Frankfurter
"It was not for him (Holmes) to prescribe for society or to deny it the
right of experimentation within very wide limits. That was to be left for
contest by the political forces in the state. The duty of the Court was to keep
the ring free. He reached the democratic result by the philosophic route of
skepticism by his disbelief in ultimate answers to social questions. Thereby
he exhibited the judicial function at its purest." (See `Essays on Legal
History in Honour of Felix Frankfurter' Edited by Morris D. Forkosch).
56. In our opinion adjudication must be done within the system of
historically validated restraints and conscious minimization of the Judges
preferences. The Court must not embarrass the legislature or the administrative
authorities and must realize that the legislature and authorities have to take
into account various considerations, some of which the court may not even be
aware of. In the words of Chief Justice Neely:
"I have very few illusions about my own limitations as a Judge. I am
not an accountant, electrical engineer, financer, banker, stockbroker or system
management analyst. It is the height of folly to expect Judges' intelligently
to review a 5000 page record addressing the intricacies of a public utility
operation. It is not the function of a Judge to act as a super board, or with
the zeal of a pedantic school master substituting its judgment for that of the
57. In Lochner vs. New York 198 US 45 (1905), Mr. Justice Holmes of the U.S.
Supreme Court in his dissenting judgment criticized the majority of the Court
for becoming a super legislature by inventing a 'liberty of contract' theory,
thereby enforcing its particular laissez-faire economic philosophy. Similarly,
in his dissenting judgment in Griswold vs.
Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that
"unbounded judicial creativity would make this Court a day-do-day
Constitutional Convention". In "The Nature of the Judicial Process'
Justice Cardozo remarked : "The Judge is not a Knight errant, roaming at
will in pursuit of his own ideal of beauty and goodness". Justice
Frankfurter has pointed out that great judges have constantly admonished their
brethren of the need for discipline in observing their limitations (see
Frankfurter's 'Some Reflections on the Reading of Statutes').
58. However, the Central and State Governments are requested to consider
fixing adequate salaries and allowances for members of the Consumers Fora at
all three levels, so that they can function effectively and with a free mind.
They are also requested to fill up vacancies expeditiously so that the Fora can
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