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TMI Blog2007 (5) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 16(2) of the Consumer Protection Act. This Court is subordinate to the law and not above the law. We regret to say that the directions of the High Court (which have been quoted in this judgment) are really an encroachment into the legislative and executive domain. Whether there should be one State Consumer Forum or five or more State Consumer Fora is entirely for the legislature and executive to decide. The High Court has directed that the State Government should constitute at least five State Consumer Forums at the State level by making necessary amendments in the Act. In our opinion such a direction was clearly illegal. The Court (including this Court) cannot direct amendment of an Act made by the legislature. The establishment of the District, State and National level Consumer Fora is done u/s 9 of the Consumer Protection Act by the authorities mentioned in that Act. The composition of these Fora is also prescribed in that section, and so are the salaries and allowances and other conditions of service of the members. It is only the authorities mentioned in the Act who can do the needful in this connection, and this Court cannot arrogate to itself the powers given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up vacancies expeditiously so that the Fora can function effectively. - Markandey Katju, J. JUDGMENT Markandey Katju, J. 1. Leave granted. 2. This appeal furnishes a typical instance of a widespread malady which has infected the judicial system in India, namely, the tendency in some courts of not exercising judicial restraint and crossing their limits by encroaching into the legislative or executive domain, contrary to the broad separation of powers envisaged under our Constitution. 3. Heard learned counsel for the parties as well as Shri Amarendra Sharan, learned Additional Solicitor General and Shri M.N. Krishnamani, Sr. Advocate. 4. This appeal arises out of a writ petition filed in the Allahabad High Court in which the grievance of the writ petitioner was of charging excessive electricity bills by the U.P. State Electricity Board. In para 19 of the writ petition it was also mentioned that the petitioner had, before filing the writ petition, approached the District Consumer Forum, Chamoli 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 appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to mitigate the suffering of the consumers. 7. Against the aforesaid judgment of the High Court the State of U.P. and others filed this appeal before us in which a ground inter alia taken was that the aforesaid directions issued by the High Court were contrary to the provisions of the Consumer Protection Act. It was also urged that the 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. 8. When the appeal was taken up for hearing on the earlier occasions this Court passed interim orders expressing its anguish that the very purpose of the Consumer Protection Act was frustrated and the Act was becoming non functional due to the indifference of the State Government in filling up vacancies at the State and District Levels and providing in sufficient funds for salaries of members and the staff, and for the infrastructure without which the State and District Consumer Fora cannot operate. By the order dated 8.1.2001 this Court requested the Solicitor General of India to assist the Court and seek instructions. Thereafter, on 16.4.2001 the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10(3) of the Consumer Protection Act states : The salary or honorarium and other allowance payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government. Similarly, Section 16(2) of the Act states: The salary or honorarium and other allowances payable to, and the other terms and conditions of service (including tenure of office) of, the members of the State Commission shall be such as may be prescribed by the State Government. 13. We pointed out to the learned Additional Solicitor General of India that the salaries and allowances of the members of the State Commissions as well as the District Consumer Fora can only be prescribed by the State Government and not by this Court. 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 State and District Fora, this Court cannot override the clear language of the statute and substitute the words the Supreme Court for the words the State Government under section 10(3) and section 16(2). It is a well settled principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. In General v. Worth of Paris Ltd. (k) (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided without argument, without reference to the crucial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid directions were to be treated under Article 142 of the Constitution of India. This Court ultimately held that the High Court was not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents for regularization. In that decision this Court observed: 11. This Court in Dr. A.K. Jain vs. Union of India 1988 (1) SCR 335, gave directions under Article 142 to regularize the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.C.C Rawani vs. Union of India 1992 (1) SCC 331, is also not an authority under Article 141. 24. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d High Court should have the modesty and humility to realize this. 32. In Union of India Vs. Prakash P. Hinduja AIR 2003 SC 2612 (vide para 29) this Court observed : Under our constitutional scheme the Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees' Welfare Association v. Union of India (1989) 4 SCC 187 (para 51) it has been held that no Court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J K v. AR Zakki and others, AIR 1992 SC 1546. 33. In Union of India Anr. Vs. Deoki Nandan Aggarwal AIR 1992 SC 96 (vide para 14) this Court observed : 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment) are really an encroachment into the legislative and executive domain. Whether there should be one State Consumer Forum or five or more State Consumer Fora is entirely for the legislature and executive to decide. The High Court has directed that the State Government should constitute at least five State Consumer Forums at the State level by making necessary amendments in the Act. In our opinion such a direction was clearly illegal. The Court (including this Court) cannot direct amendment of an Act made by the legislature. The establishment of the District, State and National level Consumer Fora is done under Section 9 of the Consumer Protection Act by the authorities mentioned in that Act. The composition of these Fora is also prescribed in that section, and so are the salaries and allowances and other conditions of service of the members. It is only the authorities mentioned in the Act who can do the needful in this connection, and this Court cannot arrogate to itself the powers given by the Act to the said authorities. 36. For instance, the salaries and allowances of member of the State and District Fora can only be prescribed by the State Government. We have been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions of service of the members of the State Commission shall be such as may be prescribed by the State Government. Hence it was not open to the High Court to practically amend Section 16(2) by its judicial verdict and prescribe the salaries or conditions of service of the members of the State Commission. Such salaries or conditions of service can only be prescribed by the State Government and not by the High Court as is clear from Section 16(2). 41. We are constrained to make these strong observations because 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. We should do introspection and self criticism in this connection. 42. 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. 43. In this connection, this Court in Asif Hameed Ors. Vs. State of Jammu and Kashmir Ors. AIR 1989 SC 1899 observed (vide para 17 to 19) : Before adverting to the controversy directly involved in these appeals we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r our Constitution 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, otherwise there will always be danger of a reaction. Of the three organs of the State, it is only the judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self-restraint. 48. 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. By exercising self-restraint it will enhance its own respect and prestige. Of course, if a law clearly violates some provision of the Constitution, it can be struck down, but otherwise it is not for the Court to sit in appeal over the wisdom of the legislature, nor can it amend the law. 49. The Court may feel that the law needs to be amended or the Forum created by an Act needs to be made more effective, but on this ground it cannot itself amend the law or take over the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ume that the legislature understands and correctly appreciates the need of its own people. The legislature is free to recognize degrees of harm and may confine its restrictions to those where the need is deemed to be the clearest. In the same decision it was also observed that the legislature is the best judge of what is good for the community on whose suffrage it came into existence, and it is for the legislature to amend the law, if it so wishes. The court can at most make a recommendation to the legislature in this connection, but it is upto the legislature to accept the recommendation or not. 54. The function of a judge has been described thus by Lawton LJ : A Judge acts as a referee who can blow his judicial whistle when the ball goes out of play, but when the game restarts he must neither take part in it nor tell the players how to play (vide Laker Airways Ltd. vs. Department of Trade (1977) QB 643(724). 55. In writing a biographical essay on the celebrated Justice Holmes of the U.S. Supreme Court in the dictionary of American Biography, Justice Frankfurter wrote : It was not for him (Holmes) to prescribe for society or to deny it the right of experimentatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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