Hemant Baburao Patil vs Uoi And Ors
2011 Latest Caselaw 2330 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Judgment Reserved on: 27th April, 2011

%                                   Judgment Pronounced on: May 02, 2011

+      W.P.(C) 2671/2011

       HEMANT BABURAO PATIL              ..... Petitioner
                   Through: Mr. K.K. Sharma, Sr. Adv. with
                            Mr. Ashutosh Dubey, Ms.Bhanita
                            Patowary, Advocates
          versus

       UOI AND ORS                                      ..... Respondents

Through: Mr. A.S. Chandhiok, ASG with Mr.Neeraj Chaudhary, Mr.Sandeep Bajaj, Mr. Khalid Arshad, Ms.Neha Rastogi, Advs. for

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether reporters of the local papers be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

DIPAK MISRA, CJ

The petitioner No.1, President of National Anti Corruption Public

Power, a registered association and an NGO and the association, the

petitioner No.2 herein, have preferred this public interest writ petition

with the following reliefs:

"(a) to pass a writ of mandamus or any other appropriate writ or direction or order directing the

respondents to drop and/or remove Sh. Anna Hazare, as one of the members representing civil society in the drafting committee of Jan Lokpal Bill.

(b) to pass a writ of mandamus or any other appropriate writ or order or direction directing the respondents to substitute Sh. Anna Hazare with some other suitable member, who may be either any judge of the Hon'ble Supreme Court of India or ex-speaker of Lok Sabha or any other suitable and qualified person to represent the civil society in the drafting committee of Jan Lokpal Bill; and

(c) to pass a writ of certiorari or any other appropriate writ or order or direction thereby quashing the resolution and notification dated 8.4.2011 issued by Ministry of Law and Justice constituting a joint drafting committee for the purpose of drafting the Jan Lokpal Bill; and

(d) to pass such other appropriate order/orders, as this Hon'ble Court may deem fit and proper in the interest of justice."

2. It is averred in the petition that the respondent No.5 - Sh.Anna

Hazare is not suitable to be a member of the drafting committee which

has come into existence by virtue of the resolution dated 8.4.2011 issued

by the Ministry of Law and Justice.

3. The resolution reads as follows:

"MINISTRY OF LAW AND JUSTICE (Legislative Department) RESOLUTION New Delhi, the 8th April, 2011

No.1(42)/2004-Leg-I. - The Government of India hereby constitutes a Joint Drafting Committee to prepare a draft of the Lok Pal Bill.

2. The Joint Drafting Committee shall consist of five nominee Ministers of the Government of India and five nominees of Shri Anna Hazare (including himself).

3. The five nominee Ministers of the Government of India are as under:-

(i) Shri Pranab Mukherjee, Union Minister of Finance.

(ii) Shri P. Chidambaram, Union Minister of Home Affairs.

(iii) Dr. M. Veerappa Moily Union Minister of Law and Justice.

(iv) Shri Kapil Sibal, Union Minister of Human Resources Development and Minister of Communication and Information Technology.

(v) Shri Salman Khursheed, Union Minister of Water Resources and Minister of Minority Affairs

4. The five nominees of Shri Anna Hazare (including himself) are as under:-

(i) Shri Anna Hazare, At Post-Ralegan Siddhi, Tal-Pamer, Distt - Ahmednagar, Maharashtra.

(ii) Shri Justice N. Santosh Hegde 94A, 9th Cross, RMV Extension, Sadashiv Nagar, Bangaluru - 80.

(iii) Shri Shanti Bhushan, Senior Advocate B-16, Sector-14, Noida.

(iv) Shri Prashant Bhushan, Advocate B-16, Sector-14, Noida.

             (v)     Shri Arvind Kejriwal,
                     Parivartan,
                     L403, Girnar, Kaushambi,
                     Ghaziabad - 201010.

             5.  The Chairperson of the Joint             Drafting

Committee shall be Shri Pranab Mukherjee.

6. The Co-Chairperson of the Joint Drafting Committee shall be Shri Shanti Bhushan.

7. The Convener of the Joint Drafting Committee shall be Dr. M. Veerappa Moily.

8. The Joint Drafting Committee shall commence its work forthwith and evolve its own procedure to prepare the proposed legislation.

9. The Joint Drafting Committee shall complete its work latest by 30th June, 2011.

V.K. BHASIN, Secy."

4. It is submitted by Mr. K.K. Sharma, learned senior counsel

appearing for the petitioners that the respondent No.5, Sh. Anna Hazare,

is ineligible for being a member of the drafting committee as certain

allegations have been established by Commission of Enquiry appointed

by the Government of Maharashtra vide notification dated 1st September,

2003 in exercise of power under the Commissions of Enquiry Act, 1952.

Be it noted, Justice P.B. Sawant, a retired judge of the Supreme Court of

India, appointed as the one man Commission to enquire into the

allegations and mal administration into matters as specified in the

notification against certain persons which included respondent No.5.

Learned senior counsel would submit that when the same have been

established by a Commission of Enquiry, the respondent No.5 should be

removed from the drafting committee and the reliefs prayed for by the

petitioners should be granted.

5. Mr. A.S. Chandhiok, learned Additional Solicitor General along

with Mr.Neeraj Chaudhary, learned counsel appearing for respondents

No.1 to 4 submitted that the resolution passed by the Ministry of Law and

Justice is not justiciable in a Court of Law as scope of judicial review

could not extend to the pre-enactment stage. He has referred to various

provisions of the Constitution of India. The learned ASG would further

submit that it is not a public office and, hence, a writ of quo warranto

cannot be issued. It is the further submission of Mr. Chandhiok that it is

in the domain of the Executive to constitute such committees and when

there is no statutory provision and the said action does not violate any

constitutional mandate, this Court should not interfere.

6. Having heard learned counsel for the parties, it is manifest that

members of the Committee do not hold public office and, hence, there

cannot be any eligibility criteria. Therefore, the concept of quo warranto

is not applicable. A drafting committee has been constituted which

pertains to a pre-enactment stage. We have our grave doubt whether the

same can be scrutinized while exercising the power of judicial review.

The Constitution casts an obligation on the part of the Court while

exercising power of judicial review to test the legislation in the

constitutional backdrop, but not at a stage when the drafting of a Bill is in

process. It is a resolution passed by the Ministry of Law and Justice for

drafting of a Bill. It can be treated as an internal matter of the Executive

and exclusively in the domain of Executive. The suitability of the

persons, we are disposed to think, cannot be a matter of judicial review,

more so in a matter of the present nature.

7. Resultantly, we do not perceive any public interest involved in this

writ petition and, accordingly, there is no need to call for any kind of

counter affidavit/return from the respondents. The writ petition does not

deserve to be entertained for the purpose of adjudication and,

accordingly, the same stands dismissed.

                                              CHIEF JUSTICE



MAY 02, 2011                                  SANJIV KHANNA, J
pk