2007 Supreme(SC) 803

2007(4) Supreme 359
SUPREME COURT OF INDIA
(From Allahabad High Court)
Markandey Katju, J
State of U.P. & Ors. — Petitioner
versus
Jeet S. Bisht & Anr. — Respondent
Appeal (civil) 2740 of 2007
(Arising out of Special Leave Petition
(Civil) No.6928 of 1999)
Decided on : 18/05/2007

IMPORTANT POINT
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. They should do introspection and self criticism in this connection.

Headnote:Consumer Protection Act, 1986 – Sections 9, 10(3) and 16(2) – Section 9 provides for setting up the commissions at different levels and sections 10(3) and 16(2) provide for salaries and service conditions of members of the District and State level Commissions respectively – The Act also specifies the authorities competent to act or take decisions in these matters – 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 National, State and District Fora, Court cannot override the clear language of the statute and substitute itself for the State Government – Courts cannot amend the Act by issuing directions contrary to the clear provisions of the Act – The concern of the High Court that the Consumer Fora in U.P. were not functioning properly is understandable, 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 – However, the Central and State Governments 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 as also to fill up vacancies expeditiously. (Paras 12, 13, 20, 35, 36, 39, 44 and 59).

       (1993) 4 SCC 288 – Declared sub silentio.

       1992 Supp. (3) SCC 191 – Referred to.

       Words and phrases – Sub silentio – The meaning that 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 – 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 – Precedents sub silentio and without argument are of no moment. (Para 18).

       (1989) 1 SCC 101 – Followed.

       (2000) 5 SCC 488; (2001) 3 SCC 537; (2003) 7 SCC 197; (2004) 11 SCC 26 – Referred to.

       Binding precedent–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 (Para 21).

       AIR 1975 SC 1087; (1999) 6 SCC 172; AIR 2002 SC 3088; (2003) 7 SCC 197; AIR 1994 SC 1808 – Relied upon.

       Judicial Activism – If the Court itself fixes salaries and allowances of the members of State and District Commissions, it will be really amending the law – Well settled that the Court can neither amend the law nor direct for legislation – 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 – in the garb of affirmative action or judicial activism the Court cannot amend the law as that would be a naked usurpation of legislative power – The Court must exercise judicial restraint – 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 – They should do introspection and self criticism in this connection. (Paras 25, 26, 33, 34 and 39).

       AIR 2002 SC 2112; AIR 1990 SC 334; AIR 2003 SC 2612; JT 2006(2) SC 361; AIR 2006 SC 767; AIR 1992 SC 96; JT 2004 Supp.(1) SC 326; AIR 1990 SC 334; AIR 2002 SC 2112; AIR 1992 SC 96 – Relied upon.

       Dictum – “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 Courts should have the modesty and humility to realize this. (Para 31).

       AIR 2003 SC 2612 – Relied upon.

       Constitution of India – Scheme of governance – 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 – 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 – 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 – 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. (Paras 42, 43, 47 and 48).

       AIR 1989 SC 1899; (1958) 356 US 86; AIR 1952 SC 192; (2004) 8 SCC 286; (1991) 3 SCC 239; (1985) 2 SCC 131 – Relied upon.

       289 U.S. 20 – Referred to.

       Judicial Restraint – 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–Secondly, judicial restraint tends to protect the independence of the judiciary–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.(Paras 50,51and 56).

       1959 SCR 629; 198 US 45 (1905); 381 U.S. 479 – Referred to.

       Facts of the case :

       High Court directed the State Government to set up number of Consumer Redressal fora at District and State level and as specified in the judgment. It also specified the service conditions ands qualifications of the members. This judgment is under challenge.

       Findings of the Court :

       Concern of the High Court regarding functioning of the Consumer Protection fora appreciated but judicial activism disapproved and restraint advised.