R.K. Singh vs Union Of India
2000 Latest Caselaw 1003 Del

ORDER

Arijit Pasayat, C.J.

1. This petition stated to have been filed in public interest mainly contains the following prayer:

 "1. That the Hon'ble court may be pleased to issue writ of      mandamus and or any other appropriate writ/ order/ direction      thereby directing the respondents to take immediate steps      and bring an enactment or get promulgated an ordinance by      the President of India under Article 123 of the Constitution      of India to the effect of prescribing higher qualifications      for the legislatures (both parliamentarian and state legislatures) within a reasonable period of time. 
 

   2.  This Hon'ble court may further pleased to direct the respondents to give effect to the prescribed qualifications in      the next coming general election."   
 

2. Case of the petitioner, an advocate, who appeared in person to present the case, is that definite and minimum positive qualifications for becoming Member of Parliament or Member of Legislative Assembly should be prescribed in addition to the existing qualification and disqualification as prescribed in the Constitution of India, 1950 (in short the Constitution) and Representation of People Act, 1951 (in short the Representation Act). It is his case that legislators are primarily responsible to legislate enactments and are supposed to have total understanding of the enactments made by the legislative bodies, and if they are oblivious to what is being enacted, it would be against the very concept of democratic set up and legislative governance. Petitioner makes a grievance that most of the members of the legislative bodies are not educationally equipped to understand various implications of the enactments being made and therefore necessary changes should be made in Articles 88 and 173 of the Constitution. It is his case that it is a well known fact that most of the legislators even do not understand what are being enacted, leave aside comprehend them. It is stated that they are more mute and dumb spectators to the process which is engineered by few. Grievance is made that by not looking into these aspects legislative bodies have abdicated and neglected their functions. They should be directed to enact such legislations which would make legislative bodies more meaningful, so far as the enactment of different statutes are concerned. It is submitted that nonlegislation by Parliament about higher additional qualifications in Articles 84(C)(2) and 173(C) for more than half a century is nothing but sheer abdication and neglect of its functions in the Parliament, thereby warranting judicial interference.

3. We pointed out to the petitioner, that it is impermissible for a Court to issue writ of mandamus to legislature in a particular manner or even to legislate a particular Act or provision. Petitioner's submission was, however, that judiciary being guardian of the rights of people it should mould law according to the reliefs and necessities of time. Training of the legislators in the lines indicated is imminent which will promote public good and would be in general interest of the people. Reliance is placed on S.R. Bommai. Vs. Union of India, . to contend that by exercising power of judicial review, mandamus can be issued.

4. The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issued from the High Court of justice, directed to any person, corporation or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. [see. Halsbury's laws of England (Hailsham Edn) Vol. 9 p. 744.]

5. Before mandamus can issue, petitioner must show that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought, The purpose of mandamus is to supply defects of justice. It does in cases where there is a specific right and no specific legal remedy to enforce that right. A writ of mandamus may be granted only in a case where there is a statutory duty imposed upon a person and there is a failure to discharge that statutory obligation (see. Lekh Raj Vs. Custodian Bombay, ). The court issues a writ of mandamus in order to compel an authority to act according to the mandate of the Legislature. But mandamus can only function and operate within the law. Its main function is to see that law is observed. As a general rule mandamus will not be granted unless a party complained of has known what he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking mandamus deserves to enforce and that such demand was met by refusal. (see S.I. Syndicate Ltd. Vs. Union of India 1975 SC 460, and State of Haryana Vs. Chaman Lal ). For issue of mandamus a demand for justice and its refusal is a condition precedent.

6. In Aeltemesh Rein Vs. UOI, , it was observed that it is not open to the Supreme Court to issue a writ in the nature of mandamus to Central Government to bring a statute or statutory provisions into force. Similar was the position in State of J&K Vs. A.R. Zakki, . It was observed that a writ of mandamus cannot be issued to the legislature to enact a particular legislation. The same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. In Supreme Court Employees Welfare Association Vs. UOI, , it was laid down that there can be no doubt that no court can direct legislature to enact a particular law. Similarly when executive authority exercises legislative power by way of subordinate legislation such executive authority cannot be asked to enact a law, which he has been empowered to do it with delegated legislative authority.

7. These principles were again reiterated in the majority view in R.C. Poudyal Vs. UOI . As was observed in A.K. Roy Vs. UOI and Natinder Chand Vs. UT H.P. a writ of mandamus will not compel a person to complete legislative function in a particular manner. It is to be noted that to declare what the law is or has been, is a judicial power. To declare what the law shall be is a legislative power. This is the principle deducible from decision of the Federal Court in Basant Vs. Emperor, AIR 1944 FC 86, Ogden Vs. Black Lodge, 1804(2) Lawyers Edn 276 and S.S. Bola Vs. B.D. Sardana and Ors . It would be within the exclusive domain of judiciary to expand the law as it is and not to speculate what it should be as it is the function of the Legislature.

8. Strong reliance was placed by the petitioner on S.R. Bommai Vs. UOI, 1994 (3) SCR 1. To contend that by exercising power of judicial review the mandamus can be issued. The stand is clearly untenable. In Bommai's case (supra) it was held that judicial review is the basic feature of the Constitution. Apex Court and High Courts have constitutional duty and responsibility to exercise judicial review as sentinel on the in qui vive. Question that arose in said case was justiciability of proclamation issued by the President under Article 356. Judicial review is to be distinguished from justiciability by the Court. Judicial review is the a basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people's sovereign power for their protection and establishment of egalitarian social order under the rule of law.

9. Democracy is the basic structure. Judicial review stems from federal structure to pass upon constitutionality of legislative or administrative acts either to enforce valid acts or to refuse to enforce the acts found unconstitutional. Therefore it is a constitutional mechanism for protecting the basic features of the Constitution, fundamental freedoms and the rule of law. Judicial review is necessary in a constitutional democracy to maintain the conditions of democracy and sovereignty and as a check measure against potential misuse or abuse of executive or legislative power. The legislature derives its authority measured by the Constitution, and they do it within the constitutional parameters, nothing more nothing less. Competence of legislature though flows from Articles 245 and 246 and related articles and legislative heads are derived from relevant entries in respective Lists in Seventh Schedule of the Constitution as their fountain source of power. It is subject to judicial review. So the constitutionality of executive and legislative acts can be tested on anvil of constitutionalism and ingrained principles. There is marked distribution of powers among Legislature, Executive and Judiciary. But in the case at hand we are not called upon to undertake the process of judicial scrutiny of legislative acts on the touchstone of constitution. What is prayed for is to direct the legislature to enact provisions in a particular manner. This is certainly not encompassed by the principle of judicial scrutiny. Harmonious working of judiciary, executive and legislative advances the cause of democracy. Sovereignty vests in the people as represented by the three wings Legisla ture, Executive and Judiciary and no single wing can claim supremacy over the others. Their spheres are well defined with balances and counterbal ances. What the petitioner prays if accepted would mean invasion of judiciary upon the spheres of activity earmarked for the legislature.

10. Above being the position the petition is thoroughly misconceived and deserves dismissal which we direct.