Case No.: Appeal (civil) 2740 of 2007 Petitioner: State of U.P. & Ors. Respondent: Jeet S. Bisht & Anr. Date of Judgement: 18/05/2007 Bench: Markandey Katju
Facts of the case
State Electricity Board charged excessive electricity bills. Petitioner approached the District Consumer Forum, 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 was not working. Secretary of concerned Department stated that appropriate steps were being taken to fill up the vacancies of the District Consumer Forum. Matter went to High Court which directed State Government to constitute at least five State Consumer Forums at State level as used under Section 16 of Consumer Protection Act, 1986 by making necessary amendment.
The State Government can also make law by making local amendment with the prior consent of the President as this subject is an entry under concurrent list. High Court further 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 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. Against the aforesaid judgment of the High Court the Appellant filed this appeal on ground that the directions issued by the High Court were contrary to the provisions of the Consumer Protection Act. And also urged that the High 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.
Whether High Court crossed its limits while exercising power of judicial activism?
During the hearing of the case, the court at length discussed about the separation of powers. Each organ of the State in terms of the constitutional scheme performs one of 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 of developing, to create new rights through interpretative process.
Separation of power in one sense is a limit of 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.If the evolution of Separation of Power doctrine is noticed, 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, one has to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise one can envisage the country getting transformed into a state of repose. Social engineering as well as Institutional engineering therefore forms part of this obligation.
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. 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 amend the law vide Union of India v. Association for Democratic Reforms and Anr. and Supreme Court Employees Welfare Association v. Union of India and Ors.
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 inter-branch 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 Section that it may better function in a system of inter-branch equality. 94. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative of 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 of administrators, it follows that judges should be elected like legislators of selected and trained like administrators. This would be counterproductive. An essential feature of an independent judiciary is its removal from the political of 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.
It was held the that: –
- The Court could make a recommendation to the State Governments that the salaries and allowances of the members of the State and District Forum were inadequate and should be increased. However, that was about as far as the Court could go. It could only make recommendations but it could not give binding directions in this connection. By a judicial verdict the Court could not amend the law made by Parliament of the State Legislature
- There are clear statutory provisions in Sections 10(3) and 16(2) of the Consumer Protection Act, 1986 which prescribed 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 Forum. Hence, Court could not fix them.
- Judicial restraint was consistent with and complementary to the balance of power among the three independent branches of the State.
- 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 of 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. However, the Central and State Governments are requested to consider fixing adequate salaries and allowances for members of the Consumers Forum at all three levels, Section that they can function effectively and with a free mind.
- They are also requested to fill up vacancies expeditiously Section that the Forum can function effectively.
- Although another Judge of this Court agree with First Judge having regard to the question involved in the present appeal, Present Court 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 Section that they can function effectively and with a free mind, but deeply regret his inability to agree with various observations made by first Judge.
- 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.
 AIR 2002 SC 2112.
 AIR 1990 SC 334.