12 Aug 2023 10:07 AM GMT
The Supreme Court on Friday reiterated that a writ court cannot mandate to the legislature to legislate on a particular subject. A division bench of Justice Abhay S Oka and Justice Sanjay Karol observed that it is not within the power of a writ court to direct the Government to introduce a particular bill in the legislature and that it can only recommend amendments...
The Supreme Court on Friday reiterated that a writ court cannot mandate to the legislature to legislate on a particular subject.
A division bench of Justice Abhay S Oka and Justice Sanjay Karol observed that it is not within the power of a writ court to direct the Government to introduce a particular bill in the legislature and that it can only recommend amendments or point out the necessity to bring about a new law:
“No Constitutional Court can issue a writ of mandamus to a legislature to enact a law on a particular subject in a particular manner. The Court may, at the highest, record its opinion or recommendation on the necessity of either amending the existing law or coming out with a new law”
The Supreme Court was considering an appeal by the Union Government in which certain directions issued by the Madras High Court to the Central Government were challenged, including a direction to consider making the Law Commission either a statutory body or constitutional body and a direction to introduce a bill on Liability in Tort.
The directions issued by the Madras High Court are enumerated below -
1. Directed Union Government to consider introducing a Bill that relates to Liability in Tort within six months.
2. Directed Union Government to take decision with regard to suggestion for making Law Commission as statutory body or constitutional law within six months.
3. Directed the Union Government to allot more funds to the Commission for research and more infrastructures to the Law Commission of India.
4. Directed the Union Government to appoint Chairman and Members of the Law Commission within three months
5. Directed the Union Government to appoint Nodal Officer who is well qualified in law in each department within six months
Directions 1, 2 and 5 were quashed and set aside by the Apex Court. The Court noted that the 4th direction had already been worked out. With regard to direction 3, the Apex Court stated that when the 22nd Law Commission submits its requisition for grant of funds, the Central Government must consider it at the earliest ‘considering the importance of the tasks assigned to the Law Commission’.
Additional Solicitor General, Aishwarya Bhati, argued that the High Court has effectively directed the legislature to legislate in a particular manner and that it cannot be compelled to do so by a writ court. The Central Government cannot be compelled to take a decision on whether the Law Commission should have the status of a constitutional body or a legislative body, by a writ court she stated.
However, the Counsel for the Respondent Advocate Haripriya Padmanabhan, argued that Constitutional Courts have been consistently exercising their power to make recommendations. It was argued that the five directions issued by the High Court are within its jurisdiction under Article 226 of the Constitution.
As regards the first direction to the Union to consider introducing a Bill on Liability in Tort within a stipulated time period, the Apex Court held that such a direction is unwarranted as a writ court cannot direct the Government to introduce a particular bill. The Court also expressed its reservation regarding whether the law on torts needs to be codified at all:
“As far as the law of torts and liability thereunder of the State is concerned, the law regarding the liability of the State and individuals has been gradually evolved by Courts. Some aspects of it find place in statutes already in force. It is a debatable issue whether the law of torts and especially liabilities under the law of torts should be codified by a legislation. “
With regard to the second direction to the Union to take a decision on making the Law Commission a statutory body or a constitutional law within a stipulated time frame, the Court observed that this was a policy decision to be taken by the Centre. Calling this direction “uncalled for”, the Apex Court observed:
“There is no right vested in the applicant to claim that the Law Commission set up by the Central Government should be given constitutional or statutory status. 21 Law Commissions have already functioned and submitted reports. Whether Law Commission should be given a status under the Constitution or under a Statute is a major policy decision to be taken by the Central Government.”
With regard to the 3rd direction issued by the High Court directing the Union to allot more funds to the Commission for research and infrastructure, the Apex Court termed the prayer in the writ ‘premature’. However, it was noted that subsequently vide the notification dated 9th November 2022, the 22nd Law Commission has been constituted and vast functions are to be discharged by it. The Court accordingly directed the Centre to sanction adequate funds to the Commission so as to succeed in discharging the duties vested in it:
“Unless adequate funds are provided, the Law Commission will not be able to discharge its functions. As and when the requisition is sent by the 22nd Law Commission for requisitioning funds, the Central Government will have to consider the said proposal and ensure that the Law Commission does not become ineffective on account of its failure to sanction adequate funds. “ the Apex Court said.
On the 4th direction of the High Court directing the Union to appoint a Chairman and Members of the Law Commission within three months, the Apex Court noted that this has already been done. The 22nd Law Commission was constituted by appointing a retired Chief Justice of a High Court as the Chairperson and other members.
On the 5th direction to the Union Government to appoint a Nodal Officer who is well qualified in law in each department within six months, the Apex Court held that the Centre cannot be compelled to do so.
“….whether a nodal officer should be appointed or not, is a matter to be decided by the Central Government. The Court cannot compel the Central Government to appoint a nodal officer. All the departments of the Government have adequate notice of the judgments of Constitutional Courts in which recommendations are made for the amendment of any legislation. Therefore, the 5th direction is unwarranted" the Apex Court concluded.
Case Title: Union of India And Ors. v. K. Pushpavanam And Ors. SLP(C) No. 478/2022
Citation : 2023 LiveLaw (630)
Click Here To Read/Download Judgment