SC Reminds Lower Court Judges of the Dos and Don’Ts

8/19/2019 SC Reminds Lower Court Judges of the Dos and Don’Ts

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2987 OF 2016(@ Spe!"# Le"$e Pe%!%!&' (C!$!# N&. 682) &* 2016

J&!'% Se+e%"+,- P!%!"# Dep"+%e'%- /Appe##"'%(&$e+'e'% &* Me3"#","-M"!' Se+e%"+!"%- S3!##&'

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H!3 C&4+% &* Me3"#"," /Rep&'5e'%(%3+&43 !% Re!%+"+-S3!##&'

J U D M E N T

D!p" M!+"- J.

New York Times, in the Editorial, “The Frankfurter

Legacy,” on Septemer !, "#$!, while stating aout the

greatness of Feli% Frankfurter, chose the following

e%pression&'

“(istory will find greatness in Feli% Frankfurteras a )ustice, not ecause of the results hereached ut ecause of his attitude toward theprocess of decision* (is guilding lights weredetachment, rigorous integrity in dealing with thefacts of a case, refusal to resort to unworthymeans, no matter how nole the end, and

dedication to the +ourt as an institution*

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ecause he was human, -ustice Frankfurter didnot always li.e up to his own ideal* ut hetaught us the lesson that there is importance inthe process*”

!* /lmost two decades and two years ack, the +ourt in

Tata Cellular v. Union of India 1 referred, with appro.al,

the following passage from Neely, +*-*! &'

“0!* 1 23 ha.e .ery few illusions aout my own

limitations as a -udge and from those limitations3 generalise to the inherent limitations of allappellate courts re.iewing rate cases* 3t must erememered that this +ourt sees appro%imately"!$! cases a year with fi.e -udges* 3 am not anaccountant, electrical engineer, financier, anker,stock roker, or systems management analyst* 3tis the height of folly to e%pect -udges intelligentlyto re.iew a 4555 page record addressing the

intricacies of pulic utility operation*6 ”

7* 8egard eing had to the directions issued y the (igh

+ourt, this +ourt in Census Commissioner and others v.

R. Krishnamurthy 3 commenced the )udgment in the

following manner&'

“The present appeal depicts and, in a way,sculpts the non'acceptance of conceptuallimitation in e.ery human sphere including that

1

(1994) 6 SCC 651

2

Bernard Schwartz in Administrative Law, 2nd Edn., p. 584

3

(2015) 2 SCC 796

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of ad)udication* No ad)udicator or a -udge canconcei.e the idea that the sky is the limit or forthat matter there is no arrier or fetters in one6sindi.idual perception, for )udicial .ision should

not e allowed to e imprisoned and ha.e thepotentiality to co.er celestial 9ones* e itingeminated, refrain and restrain are theessential .irtues in the arena of ad)udicationecause they guard as sentinel so that.irtuousness is constantly sustained* Not fornothing, centuries ack Francis acon: had tosay thus&

“-udges ought to e more learned than witty,more re.erend than plausile, and moread.ised than confident* /o.e all things,integrity is their portion and proper .irtue* 1Let the -udges also rememer that Solomon6sthrone was supported y lions on oth sides&let them e lions, ut yet lions under thethrone*”

:* The necessity has arisen again for reiteration of the

fundamental principle to e adhered to y a -udge* 3t is

ecause the order impugned herein presents a sad sad

scenario, definitely and asolutely an impermissile and

unacceptale one*

4* ;resently, to the facts of the case* / writ petition

forming the su)ect matter of No* 7"# of

!5"4 was registered under the caption “Suo motu

4

Bacn, !E""a#"$ %& 'dicatre in *he +r" & -ranci" Bacn! (nta/e, Ba"i, E" ed.,

hiadephia$ art, ate Care# art, 1852), pp. 5859.

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for the appointment of the +hairperson is hereystayed*”

$* /fter passing the said order, the (igh +ourt has

proceeded to deal with the appointment of the +hairperson

and ?emers of the ?eghalaya State (uman 8ights

+ommission* Dealing with the said facet, it had directed as

follows&'

“Now, coming to the appointment of the+hairperson and ?emers of the ?eghalayaState (uman 8ights +ommission, (on6le the/pe% +ourt has, .ide order dated !:**!5"4 in+rl*?*;* No* "$50$ of "## in +rl*?*;* No* :!5"of "## =Shri Dilip C* asu .* State of has directed .arious Statesincluding the State of ?eghalaya to set up theState (uman 8ights +ommission within si%

months and to fill up the .acancy of +hairpersonand ?emers of State (uman 8ights+ommission within 7 =three> months from thedate of order* /s towards compliance of theaforesaid directions of (on6le the /pe% +ourt,the State of ?eghalaya has not initiated theprocess of appointment of the +hairperson and?emers of the State (uman 8ights+ommission, we direct the +hief Secretary, State

of ?eghalaya, to file affida.it showing the statusof processing of the file for the appointment of the+hairperson and other ?emers of the State(uman 8ights +ommission on the ne%t date ofhearing* esides, we also make it clear, that theState shall specify the name of (on6le former -udge of Supreme +ourt and (on6le former+hief -ustice of (igh +ourt, who ha.e eenoffered the appointment as +hairperson* The

State shall also clearly indicate as to who are the -udges of (igh +ourt and other non'-udicial

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persons who ha.e een offered the appointmentas the +hairpersonG?emers of the +ommission* This information is re@uired to maintaintransparency in the process of appointment on

the posts as aforesaid*”

* e it noted, the Di.ision ench has appointed two

counsel as Amicus Curiae and directed the 8egistrar

Heneral to settle their professional fee to e paid y the

Department of Law, Ho.ernment of ?eghalaya*

0* ?r* 8an)an ?ukher)ee learned counsel appearing for

the appellant has sumitted that the State has no ca.il o.er

the directions relating to constitution of the State (uman

8ights +ommission y appointment of +hairperson and

?emers* 3n course of hearing, the learned counsel has

sumitted that the State shall appoint the +hairperson and

?emers of the State (uman 8ights +ommission as per law

y end of -une, !5"$* That eing the concession y ?r*

?ukher)ee on ehalf of the State which, we think, is

asolutely fair, there is no need to ad.ert to the said aspect*

3t is also urged y ?r* ?ukher)ee that the State would not

ha.e challenged the said part of the order as it understands

its responsiility and further when the (igh +ourt has

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issued the direction, the State is oliged to respect the same

as it is in consonance with the legal position* The ca.il, ?r*

?ukher)ee would put it, pertains to the oser.ations made

y the (igh +ourt and the stay order passed in respect of

the pro.ision relating to eligiility prescried under the /ct*

3t is urged y him that there had een no assail to the

constitutional .alidity of the said pro.ision and, therefore,

the (igh +ourt could not ha.e suo motu taken up the same,

especially when the language employed is also similar to the

Lokpal and Lokayuktas /ct, !5"7 passed y the ;arliament*

#* To appreciate the sumission, it is necessary to note

that +hapter 33 of the /ct deals with Estalishment of

Lokayukta* Sections 7 reads as follows&'

Se%!&' . E%"#!3e'% &* L&",4%"*I=">/s soon as after the commencement of this /ct,there shall e estalished, y notification in thefficial Ha9ette, a ody to e called the

“Lokayukta”*

=!> The Lokayukta shall consist of'

=a> a +hairperson, who is or has een a +hief -ustice of the (igh +ourt or a -udge of the(igh +ourt or an eminent person whofulfils the eligiility specified in clause =>of su'section =7>A and

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=> such numer of memers, not e%ceedingfour out of whom fifty percent shall e -udicial ?emers*

=7> / person shall e eligile to e appointed,'

=a> as a -udicial ?emer if he is or has een a -udge of the (igh +ourt or is eligile to ea -udge of the (igh +ourtA

=> as a ?emer other than a -udicial?emer, if he is a person of impeccaleintegrity, outstanding aility ha.ing specialknowledge and e%pertise of not less than

twenty'fi.e years in the matters relating toanti'corruption policy, pulicadministration, .igilance, finance includinginsurance and anking, law, andmanagement*

=:> The +hairperson or a ?emer shall not e I

=i> a memer of ;arliament or a memer ofthe Legislature of any State or Bnion

territoryA

=ii> a person con.icted of any offence in.ol.ingmoral turpitudeA

=iii> a person of less than forty'fi.e years ofage, on the date of assuming office as+hairperson or ?emer, as the case mayeA

=i.> a memer of any ;anchayat or?unicipality or District +ouncilA

=.> a person who has een remo.ed ordismissed from ser.ice of the Bnion or aState, and shall not hold any office of trustor profit =other than his office as the+hairperson or a ?emer> or e connectedwith any political party or carry on anyusiness or practice any profession and

accordingly, efore he enters upon his

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office, a person appointed as the+hairperson or a ?emer, as the case maye, shall, if J

=a> he holds any office of trust or profit,resign from such officeA or

=> he is carrying on any usiness, se.erhis connection with the conduct andmanagement of such usinessA or

=c> he is practicing any profession, cease topractice such profession*”

"5* Section : deals with appointment of +hairperson or

?emers on recommendation of Selection +ommitteeA and

other pro.isions of the /ct dwell upon .arious other facets

which we need not refer to* Sumission of ?r* ?ukher)ee is

that the (igh +ourt could not ha.e suo motu proceeded to

deal with the appointment of Lokayukta and, in any case,

could not ha.e directed stay of the pro.ision*

""* There can e no dout, the court can initiate suo motu

proceedings in respect of certain issues which come within

the domain of pulic interest* 3n Budhadev Karmaskar (1)

v. State of .B.! the +ourt, while dismissing an appeal,

oser.ed thus&'

5

(2011) 11 SCC 538

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“":* /lthough we ha.e dismissed this appeal, westrongly feel that the +entral and the StateHo.ernments through Social


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candidates, it initiated a suo motu pulic interestlitigation* 3t was entitled to do so* The nature of )urisdiction e%ercised y the (igh +ourt, as iswell known, in a pri.ate interest litigation and in

a pulic interest litigation is different*


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such an en@uiry suser.es the greater pulic interest and

has a far'reaching effect on the society the +ourt will not

shirk its responsiilities from doing so*

"4* e it noted, the constitutional courts can entertain

letter petitions and deal with them as writ petitions* ut it

will depend upon the nature of the issue sought to e

ad.anced* There cannot e uncontrolled or unguided

e%ercise of epistolary )urisdiction*

"$* 3n the instant case, as is e.ident, the (igh +ourt has

compared the pro.isions pertaining to appointment of

+hairperson and ?emers under the /ct with the

pro.isions of other /cts enacted y different legislatures*

The legislature has passed the legislation in its wisdom*

There was no challenge to the constitutional .alidity of the

pro.isions of the /ct* The suo motu petition was registered

for gi.ing effect to the /ct y ringing the institutions into

e%istence* This may e thought of in .ery rare

circumstances depending on the nature of legislation and

the collecti.e enefit ut in that arena also the +ourt cannot

raise the issue relating to any particular pro.ision and seek

e%planation in e%ercise of )urisdiction under /rticle !!$ of

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the +onstitution* 3n the case at hand, as is manifest, the

Di.ision ench of the (igh +ourt has, with an erroneous

understanding of fundamental principle of law, scanned the

anatomy of the pro.ision and passed an order in relation to

it as if it is ono%ious or falls foul of any constitutional

pro.ision* The same is clearly impermissile* / person

aggrie.ed or with e%panded concept of #ocus standi some

one could ha.e assailed the pro.isions* ut in that e.ent

there are certain re@uirements and need for certain

compliances*

"* 3n State of Uttar radesh v. Kartar Sin'h 1 , while

dealing with the constitutional .alidity of 8ule 4 of the Food

/dulteration 8ules, "#44, it has een opined as follows&'

“1** if the rule has to e struck down as imposingunreasonale or discriminatory standards, itcould not e done merely on any a priorireasoning ut only as a result of materials placedefore the +ourt y way of scientific analysis* 3t is

o.ious that this can e done only when theparty in.oking the protection of /rt* ": makesa.erments with details to sustain such a plea andleads e.idence to estalish his allegations* Thatwhere a party seeks to impeach the .alidity of arule made y a competent authority on theground that the rules offend /rt* ": the urden is

10

1964 SC 1135

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on him to plead and pro.e the infirmity is too wellestalished to need elaoration*”

"0* 3n State of /ndhra radesh and another v. K.

0ayaraman and others 11, it has een ruled thus&'

“3t is clear that, if there had een an a.erment, onehalf of the petitioners, that the rule was in.alidfor .iolating /rticles ": and "$ of the+onstitution, rele.ant facts showing how it wasdiscriminatory ought to ha.e een set out*”

"#* 3n Union of India v. .I.2. arry (India) td.14 , a

two'-udge ench of this +ourt has e%pressed thus&'

“1 There was no pleading that the 8ule uponwhich the reliance was placed y the respondentwas ultra .ires the 8ailways /ct, "0#5* 3n the

asence of the pleading to that effect, the trial+ourt did not frame any issue on that @uestion* The (igh +ourt of its own proceeded to considerthe .alidity of the 8ule and ultimately held that itwas not in consonance with the rele.antpro.isions of the 8ailways /ct, "0#5 andconse@uently held that it was ultra .ires* This.iew is contrary to the settled law1”

11

(1974) 2 SCC 738 $ 1975 SC 633

12

(2000) 2 SCC 223 $ 2000 SC 831

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!5* 3n State of 5aryana v. State of una* + another 13 ,

the +ourt emphasi9ing on the facet of pleading, has opined

that&'

“1** 3t is well estalished that constitutionalin.alidity =presumaly that is what ;un)a meanswhen it uses the word “unsustainale”> of astatutory pro.ision can e made either on theasis of legislati.e incompetence or ecause thestatute is otherwise .iolati.e of the pro.isions ofthe +onstitution* Neither the reason for the

particular enactment nor the fact that the reasonfor the legislation has ecome redundant, would )ustify the striking down of the legislation or forholding that a statute or statutory pro.ision isultra .ires* Yet these are the grounds pleaded insuparagraphs =i>, =i.>, =.>, =.i> and =.ii> to declareSection ": in.alid* Furthermore, merely sayingthat a particular pro.ision is legislati.elyincompetent Mground =ii> or discriminatory

Mground =iii> will not do* /t least prima facieacceptale grounds in support ha.e to e pleadedto sustain the challenge* 3n the asence of anysuch pleading the challenge to the constitutional.alidity of a statute or statutory pro.ision is lialeto e re)ected in limine*”

!"* This eing the position in law, the (igh +ourt could

not ha.e proceeded as if it was testing the .alidity of the

pro.ision and granted stay* The approach is totally

fallacious* (a.ing opined aforesaid, we ha.e no option ut

to set aside that part of the order which deals with the

13

(2004) 12 SCC 673

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pro.isions of the /ct*

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SC Reminds Lower Court Judges of the Dos and Don’Ts

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