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TMI Blog2014 (11) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ficult to visualize that the High Court, on the first occasion, without having a lis before it in that regard, could even have thought of issuing a command to the Census Department to take all such measures towards conducting the caste-wise census in the country so that the social justice in its true sense, which is the need of the hour, could be achieved. This, irrefragably, is against the power conferred on the court. The High Court had not only travelled beyond the lis in the first round of litigation, but had really yielded to some kind of emotional perspective, possibly paving the adventurous path to innovate. It is legally impermissible. On the second occasion, where the controversy squarely arose, the High Court did not confine to the restrictions put on the jurisdiction and further without any kind of deliberation, repeated the earlier direction. The order is exceptionally cryptical. That apart, it is legally wholly unsustainable. The High Court, to say the least, had no justification to pave such a path and we have no hesitation in treating the said path as a colossal transgression of power of judicial review, and that makes the order sensitively susceptible. - Civil Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alogy, disciplined by system, and subordinated to the primordial necessity of order in social life . 4. In Tata Cellular V. Union of India (1994) 6 SCC 651, while dealing with the concept of judicial review, this Court referred to a passage worded by Chief Justice Neely, which is as follows:- I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate courts reviewing rate cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation. 5. The fundamental intention of referring to the aforesaid statements may at various times in the history of law is to recapitulate basic principles that have to be followed by a Judge, for certain sayings at times become necessitous to be told and re-narrated. The present case exposits such a situation, a sad one. 6. The chronology has its own relevance in the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i from the office of the second respondent, states that the petitioner will got a reply from the respondents within eight weeks from today. We hope that the respondents will consider the representation of the petitioner Association in all seriousness and send them an appropriate reply. 8. Be it stated, the Registrar General and Census Commissioner was the respondent no.2 therein. After the writ petition was disposed of, the representation preferred by Mr. K. Balu, President, Advocates Forum for Social Justice, was disposed and the order was communicated to the writ petitioner. It reads as follows:- 2. Caste-wise enumeration in the census has been given up as a matter of policy from 1951 onwards. In pursuance of this policy decision, castes other than Scheduled Castes and Scheduled Tribes have not been enumerated in all the Censuses since 1951. In Census 2011 also no question on enumeration of castes other than Scheduled Castes and Scheduled Tribes has been included. As such, the first phase of Census 2011 enumeration, namely, the Houselisting and Housing Census is commencing on the 1 st of April, 2010. The forms required for this phase of the Census has already been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner as a party and further there was no justification for issuance of such a direction. As far as the impugned order is concerned, it is urged by Mr. Suri that the direction issued by the Division Bench tantamounts to interference in a policy decision as framed under Section 8 of the Census Act, 1940, (for brevity the Act ) as amended in 1993. Learned senior counsel would contend that the policy stipulates for carrying out the census which includes scheduled castes and scheduled tribes, but not the other castes. He would urge that many a High Court have dismissed similar writ petitions and, in fact, this Court in WP(C) No. 133/2009 have declined to interfere and the same was dismissed as withdrawn. It is proponed by him the view expressed by the High Court is absolutely vulnerable and hence, deserved to be lancinated. 12. Despite service of notice, there has been no appearance on behalf of the respondent. 13. To appreciate the submissions canvassed by the learned counsel for the appellant, it is necessary to refer to Section 8 of the Act, which reads as follows: - Section 8 Asking of questions and obligation to answer (1) A census officer may ask all such quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uninterruptedly has been maintained in spite of several adversities like wars, epidemics, natural calamities, political unrest, etc. Participation in the Census by the people of India is indeed a true reflection of the national spirit of unity in diversity. 17. Thereafter, the Instruction Manual provides for objectives of conducting a census. We think it appropriate to reproduce the same: 1.3 India is a welfare State. Since independence, Five Year Plans, Annual Plans and various welfare schemes have been launched for the benefit of the common man. All these require information at the grass root level. This information is provided by the Census. 1.4 Have you ever wondered how the number of seats in Parliamentary/Assembly Constituencies, Panchayats and other local bodies are determined? Similarly, how the boundaries of such constituencies are demarcated? Well the answer to that is also the Census. These are just a few examples. Census provides information on a large number of areas. Thus, you are not merely collecting information; you are actually a part of a massive nation building activity. 1.5 The Houselisting and Housing Census has immense utility as it will p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of married couple(s) living in the household, main source of drinking water, availability of drinking water source, main source of lighting, latrine within the premises, type of latrine facility, waster water outlet, bathing facility, kitchen, fuel used for cooking, Radio/Transistor, Television, Computer/Laptop, Telephone/Mobile phone, Bicycle, Scooter/Motor Cycle/ Moped, Car/Jeep/Van, and availing banking services, etc. Thus, the Central Government has framed a policy and the policy, as is demonstrable, covers many an arena keeping in view certain goals and objectives. 19. As we evince from the sequence of events, the High Court in the earlier judgment had issued the direction relating to carrying of census in a particular manner by adding certain facets though the lis was absolutely different. The appellant, the real aggrieved party, was not arrayed as a party-respondent. The issue was squarely raised in the subsequent writ petition where the Census Commissioner was a party and the earlier order was repeated. There can be no shadow of doubt that earlier order is not binding on the appellant as he was not a party to the said lis. This view of ours gets fructified by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Executive. If a policy decision or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the Notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for framing a policy in a specific manner. In this context, we may refer to a three-Judge Bench decision in Suresh Seth V. Commr., Indore Municipal Corporation (2005) 13 SCC 287 wherein a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely, that of a Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation. Repelling the said submission, the Court held: In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the relative merits of the different political theories or economic policies... This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of Parliament in enacting a law . 25. In Premium Granites V. State of Tamil Nadu, (1994) 2 SCC 691 while dealing with the power of the courts in interfering with the policy decision, the Court has ruled that it is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy could be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right. 26. In M.P. Oil Extraction and Anr. V. State of M.P. Ors. (1997) 7 SCC 592, a two-Judge Bench opined that: .......... The executive authority of the State must be held to be within its competence to frame a policy for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld even have thought of issuing a command to the Census Department to take all such measures towards conducting the caste-wise census in the country so that the social justice in its true sense, which is the need of the hour, could be achieved. This, irrefragably, is against the power conferred on the court. The High Court had not only travelled beyond the lis in the first round of litigation, but had really yielded to some kind of emotional perspective, possibly paving the adventurous path to innovate. It is legally impermissible. On the second occasion, where the controversy squarely arose, the High Court did not confine to the restrictions put on the jurisdiction and further without any kind of deliberation, repeated the earlier direction. The order is exceptionally cryptical. That apart, it is legally wholly unsustainable. The High Court, to say the least, had no justification to pave such a path and we have no hesitation in treating the said path as a colossal transgression of power of judicial review, and that makes the order sensitively susceptible. 30. Consequently, the appeal is allowed, the judgments and orders dated 24.10.2008 and 12.5.2010 passed in W.P.(C) No. 25785 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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