1988 (8) TMI 430 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the proposed agreement of "Darjeeling Gurkha Hill Council."
2. Use of the term "Gurkha" in the proposed agreement.
3. Petitioners' locus standi in filing the writ petition.
4. Justiciability of political questions by the court.
5. Executive power and its scope in entering into the memorandum of settlement.

Detailed Analysis:

1. Legality of the proposed agreement of "Darjeeling Gurkha Hill Council":
The petitioners sought a writ of mandamus and certiorari, challenging the proposed agreement on the grounds that it was inconsistent with the Constitution of India and could spread communal ill-feeling. They argued that the agreement would divide the country and jeopardize the interests of the State. The respondents countered that the memorandum of settlement had no legal effect until appropriate legislation was enacted. The court found that the memorandum per se had no legal entity and required legislation for enforcement. Thus, the challenge was deemed premature.

2. Use of the term "Gurkha" in the proposed agreement:
The petitioners contended that the use of the term "Gurkha" in the proposed agreement should be avoided as it could lead to communal divisions. The court did not find sufficient grounds to entertain this argument at this stage, as the memorandum of settlement was not yet legally binding.

3. Petitioners' locus standi in filing the writ petition:
The petitioners claimed that they filed the writ petition in public interest, arguing that the steps taken by the respondents violated the spirit of the Constitution. The court acknowledged the petitioners' right to file a public interest litigation but found the petition premature. The court emphasized that the petitioners could challenge the legislation if and when it was enacted.

4. Justiciability of political questions by the court:
The respondents argued that political questions are generally non-justiciable, citing several decisions to support their claim. The court agreed, stating that it would be dangerous for the court to determine political questions, as it would usurp the function of the Central Government. The court emphasized that political solutions to end conflicts should not be brought before the court unless they were mala fide or based on extraneous grounds.

5. Executive power and its scope in entering into the memorandum of settlement:
The respondents argued that the memorandum of settlement was an exercise of executive power aimed at bringing peace and avoiding conflict. The court referred to previous cases, noting that executive functions include policy determination and execution. The court found that the memorandum of settlement required legislative approval to have any legal effect. The court concluded that the executive's actions were within its power and that the petitioners' challenge was premature.

Conclusion:
The court rejected the writ petition without any order as to costs, deeming it premature. The court clarified that it had not decided on the proposed steps likely to be taken by the respondents subsequent to the signing of the accord. The petitioners were advised to challenge the legislation if and when it was enacted.