27-PIL-68-2021

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Pdp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION NO. 68 OF 2021

Adv. Firoz Babulal Sayyed

.. Petitioner

Vs.

The Union of India & Anr.

.. Respondents

Mr. Pritesh K. Bohade for petitioner.

Mr. Anil Kumar i/by Mr. D. P. Singh for respondent no.1-UoI.

Mr. P. P. Kakade, Govt. Pleader with Ms. R. A. Salunkhe, AGP

for respondent no.2-State.

C0RAM: DIPANKAR DATTA, CJ &

V. G. BISHT, J.

DATE: MAY 2, 2022

PC:

1.

The petitioner is an advocate practicing at Nashik District

Court. By instituting this writ petition, allegedly in public

interest, the petitioner seeks an order on the respondents not

to permit publication of pictures of gods/goddesses in

newspapers. According to the petitioner, after the newspapers

are read and its utility comes to an end, newspapers make

their way into dustbins as well as the road side. This is

disrespectful and consequently, the petitioner seeks an order

for complete prohibition of publication of pictures of

gods/goddesses in the newspapers. One other concern

expressed by him is that such publications attract people to

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congregate and celebrate festivals in large numbers and

during COVID times, people should be discouraged to

congregate and thereby spread the disease.

2.

What the petitioner intends through this so-called Public

Interest Litigation (hereafter “PIL”, for short) is to have sort of

a

legislation

to

prohibit

publication

of

pictures

of

gods/goddesses in newspapers by a judicial order. Whether or

not pictures of gods/goddesses ought to be published in

newspapers is a matter entirely within the domain of the

legislature, or to a limited extent, within the domain of the

executive. If there be a vacuum in framing of an appropriate

legislation, the remedy of the petitioner lies elsewhere. It is

elementary, though it has to be restated, that a writ petition

would lie only if a legally protected right, which is judicially

enforceable, is abrogated or infringed or is threatened to be

abrogated or infringed by arbitrary executive action. If a law

exists

which

is

not

implemented,

the

Court

by

its

orders/directions would enforce the same. Should an ordinary

law exist, which is arbitrary or unreasonable and offends any

of the provisions of the Constitution including Article 14, the

Court may step in and outlaw any such law. But the High

Courts may not proceed for judicial legislation. There are

authorities aplenty wherein law has been declared in no

uncertain terms that it is not the function of the High Courts

to either legislate or direct the State to make a particular

legislation or even amend an existing legislation. We may, in

this context, refer to the decision of the Supreme Court

reported in (2012) 2 SCC 542 (V.K. Naswa vs. Home

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Secretary, Union of India & ors.) as well as the series of

judgments referred to therein starting from (1990) 2 SCC 707

(Mallikarjuna Rao vs. State of Andhra Pradesh).

3.

We called upon the learned advocate for the petitioner to

cite any authority that permits the High Courts, in its exercise

of power under Article 226 of the Constitution, to pass such

an order which in its very nature would amount to a

legislation on the specious ground that the legislature ought

to have provided for such a law but has not provided. He has

obviously failed to do so.

4.

Insofar as spread of infection from CO