Devi Prasad Singh, J.@mdashPresent writ petitions under Article 226 of the Constitution of India, have been preferred challenging the constitutional validity of Section 2 of U.P. Act No. 18 of 1991 i.e., Code of Criminal Procedure (U.P. Amendment) Act, 1991, whereby, sub-section (1) of Section 24 of Code of Criminal Procedure has been amended and sub-section (4), (5), (6) of Section 24 of Code of Criminal Procedure (in short CrPC), has been omitted alongwith the provisions contained in sub-section (7) by which sub-section (6) has been referred to. The petitioner has also assailed the Circular dated 13.8.2008 by which the Government of U.P., has amended, the L.R. Manual to the extent it provides the consultation with the District Judge mandatory for appointment on the post of District Government Counsels alongwith consequential action.
2. The present writ petitions were part of the bunch of writ petitions whereby, the Circular dated 13.8.2008 has been impugned, the leading one of which is Writ Petition No. 7851 (M/B) of 2008: U.P. Shaskiya Adhivakta Katyan Samiti v. State of U.P., decided by separate judgment and order dated 6.1.2012. Keeping in view the fact that vires of U.P. Amendment (supra), has been impugned in the present writ petitions, it is decided by the present separate judgment.
3. The appointment of District Government Counsels in the State of U.P., has been drawing the attention of this Court as well as Hon''ble Supreme Court from time to time particularly, after the impugned amendment done by the State Government to acquire unfettered discretion and to regulate the appointment of District Government Counsels as well as the standing counsels of the High Court by executive instructions issued from time to time compiled in the name and title of "Legal Remembrancer Manual" (in short the LR manual). After a lot of discussion and reports at various levels, inviting opinions from different sections of society and the Governmental bodies including the report of Law Commission, the Parliament by Act No. 2 of 1974, promulgated the Code of Criminal Procedure, 1973 (in short CrPC) to keep pace with time and discharge its obligations within the constitutional scheme relieving the country from the outlived colonial, Code of Criminal Procedure namely, the Code of Criminal Procedure, 1898.
But it appears that the Government of U.P. under the garb of LR manual, later on, to acquire unfettered discretion in the matter of appointment of District Government Counsels by the impugned amendment, tried to restore the rusted "colonial spoiled system".
4. The petitioner for the first time, was duly appointed and selected as Additional District Government Counsel (Criminal) Budaun. On 23.5.1994 for the period of one year. The appointment was duly renewed from time to time. The renewal was done in pursuance of the recommendation of the District Judge and District Magistrate from time to time. Being the senior most, Additional District Government Counsel, the petitioner officiated as District Government Counsel (Criminal) from time to time and continuously held the post since April, 2008 to May, 2010. According to petitioner''s counsel, one local MLA of District Budaun, Yogendra Sagar who was the accused in the case of rape of a girl under Case Crime No. 378/2008, approached the petitioner for help. The Additional Chief Judicial Magistrate, Budaun by his order dated 18.8.2009, summoned the MLA (Annexure 8 to the Writ Petition No. 4097 (M/B) of 2011). A Criminal Revision No. 271/2009 was filed by one of the accused against the summoning order in the Court of Sessions Judge, Budaun and at the time, the petitioner was working as Additional District Government Counsel (Criminal). The petitioner opposed the revision vehemently. In consequence thereof, the Criminal Revision was dismissed by the District Judge, by the order dated 7.10.2009 (Annexure 6 to this writ petition). In consequence thereof on 13.10.2009, the MLA submitted some complaint to the Chief Minister and requester for removal of the petitioner from the post of District Government Counsel Criminal (Annexure 7 to this writ petition). In consequence thereof, the District Magistrate, Budaun submitted a report dated 4.11.2009 to the State Government recommending petitioner''s removal though according to petitioner''s counsel, the District Judge, Budaun has recommended the petitioner for renewal. The petitioner was removed by the order dated 21.12.2009. The order of removal was challenged by the petitioner in Writ Petition No. 54 (M/B) of 2010. A Division Bench of this Court, vide order dated 5.1.2010, directed the petitioner to continue on the post of District Government Counsel (Criminal). According to petitioner''s counsel much before the expiry of term in April, 2011 the post of Additional District Government Counsel (Criminal), the District Magistrate, by the order dated 24.12.2010, directed the petitioner to furnish details of work done which was received by the petitioner on 1.1.2011. The petitioner immediately responded and submitted her reply dated 3.1.2011 which was received in the Office of the District Magistrate on 4.1.2011. However, before receipt of reply, the State Government has removed the petitioner on 30.12.2010.
5. The order of removal dated 30.12.2010 was impugned in Writ Petition No. 589 (M/B) of 2011. By the interim order dated 7.2.2011, the Division Bench of this Court directed the petitioner to continue as Additional District Government Counsel (Criminal) Budaun till her renewal is considered. In consequence thereof, the petitioner again resumed duty. Thereafter, District Magistrate Budaun, submitted a report dated 25.2.2011 with adverse comment against the petitioner and by the order dated 28.3.2011, the State Government rejected the renewal and in consequence thereof, the District Magistrate has declined to renew petitioner''s tenure by the order dated 30.3.2011.
6. Writ Petition No. 4097 (M/B) of 2011 was filed by the petitioner challenging the order dated 28.3.2011 land 30.3.2011.
7. The present writ petitions have been preferred by the petitioner challenging the constitutional validity of amending Act of U.P. and the Circular dated 13.8.2008, amending the L.R. Manual.
8. It has been stated by the State that the Additional District and Sessions Judge Court No. 9, submitted adverse report against the petitioner and in consequence thereof, a decision was taken not to renew the service of the petitioner. On the other hand, the petitioner filed two certificates issued by Additional District and Sessions Judge, whereby her work has been appreciated. The fact remains that no opinion was obtained from the District Judge Budaun who was the competent authority under the L.R. Manual How the State has relied upon the opinion of the Additional District Judge, has not been substantiated by the learned counsel for the State. Any opinion, tendered without authority, cannot be a ground to form an adverse opinion against an employee or D.G.C.
I-STATUTORY PROVISIONS AND
PLEADINGS
9. Part-IX Chapter-38 of the Code of Criminal Procedure, 1898, deals with the procedure with regard to appointment of public prosecutors. The provisions as modified upto 1st July, 1968, printed by the Manager Government of India Press Nasik and published by the Manager of Publications, Delhi-6, 1968, is reproduced as under:
PART IX
SUPPLEMENTARY PROVISIONS
CHAPTER XXXVIII
OF THE PUBLIC PROSECUTOR
492. (1) [Central Government or the State Government] may appoint, generally, or in any case, of for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.
(2) * * *The District Magistrate, or, subject to the control of the District Magistrate, the Sub-Divisional Magistrate, may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed appoint any other person, not being an officer of police below [such rank as the State Government may prescribe in this behalf], to be Public Prosecutor for the purpose of [any case].
493. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions.
494. Any public Prosecutor * * * may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person [either generally or in respect of any one or more of the offences for which he is tried]; and, upon such withdrawal--
(a) if it is made before a charge has been framed, the accused shall be discharged [in respect of such offence or offences];
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted [in respect of such offence or offences].
495. (1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below a rank to be prescribed by the State Government in this behalf * * * but no person, other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer [generally or specially empowered by the Central Government or the State Government] in this behalf, shall be entitled to do so without such permission.
(2) Any such officer shall have the like power of withdrawing from the prosecution as is provided by section 494, and the provision of that section shall apply to any withdrawal by such officer.
(3) Any person conducting the prosecution may do so personally or by a pleader.
(4) An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted.
10. A plain reading of aforesaid provisions reveals that the power of appointment of Public Prosecutors vests in the Central and State Government. Subject to administrative control of the District Magistrates, the Sub-Divisional Magistrates were also authorised to appoint any person as Public Prosecutors subject to direction of the State Government.
11. After independence, the Law Commission of India and different commissions and committees of State Government, Bar and members of judiciary were feeling that the Code of Criminal Procedure 1898 outlived its utility and does not conform to constitutional mandate hence by Act No. 2 of 1974, Indian Parliament promulgated the (new) Code of Criminal Procedure, 1973 which came into force with effect from 1.4.1974. It received presidential assent on 25.7.1974. Prior to New CrPC, there was no uniform Code of Criminal Procedure for whole of India. There were separate acts mostly revived in their character to regulate the procedure of the Courts of erstwhile provinces and the presidency towns. Those applying to the presidency towns, were first consolidated by the Criminal Procedure Supreme Court Act, (XVI of 1852), which in due course of time gave place to High Court Criminal Procedure Act, (XII of 1865). Later on, the Presidential Criminal Procedure Code was replaced by the general Criminal Procedure Code, (Act XXV of 1861), which was later on, replaced by Act X of 1872. It was the Criminal Procedure Code of 1882 (Act X of 1882) which gave, for the first time, a uniform law of procedure for the whole of India both in presidency-towns and in the moffisil; and later on, it was supplanted by the Code of Criminal Procedure, 1898 (Act V of 1898). This last mentioned Act had been amended by many amending Acts, the most important being those passed in 1923 and 1955. The extensive amendments of 1955 were made with intent to simplify procedure and speed up trials. The State Government too made a large number of amendments to the Code of 1898. But on the whole, the Code of 1898 remained unchanged for a very long period.
12. While inserting Section 24 in the Code of Criminal Procedure, 1974, at the time of presentation of Bill, Clause (8) deals with the aims and object, which is based on Law Commission Report and is reproduced as under:
Clause 8--The section is being amended (i) to enable the Central Government and State Government to appoint one or more Additional Public Prosecutors for the High Court; (ii) to enable the Central Government to appoint one or more Public Prosecutors in any district or local area; (iii) to enable counting of service rendered as Prosecuting Officer before or after coming into force of the Code of Criminal Procedure, 1973 as service as an advocate for the purpose of appointment as Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor, and (iv) to provide that in any State where there exists a regular cadre of Prosecuting Officers, appointment of Public Prosecutors or Additional Public Prosecutors will be made only from that cadre and when there are no suitable persons available appointment can be made from the panel prepared by the District Magistrate in consultation with the Sessions Judge.
13. In the new CrPC, Sections 24 and 25 deals with the appointment of District Government Counsels and Assistant Public Prosecutors. Section 25A deals with Directorate of prosecution. For convenience, Sections 24, 25 and 25A of the New Code of Criminal Procedure are reproduced as under:
24. Public Prosecutors.--(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every districts the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consolation with the Sessions Judge, prepare, a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).
(6) Not withstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting, such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by, the District Magistrate under sub-section (4).
(7) A person shall be eligible to be appointed as a public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice, is a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.]
25. Assistant Public Prosecutors.--(1) The State Government shall appoint in every district one or more Assistant public Prosecutors for conducting prosecutions in the Courts of Magistrates.
1[(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates]
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:
Provided that a police officer shall not be so appointed-
(a) If he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted: or
(b) If he is below the rank of Inspector.
[25A. Directorate of Prosecution.--(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.].
14. Section 25A was inserted by the Code of Criminal Procedure Amendment Act, 2005 (Act No. 25 of 2005) Section 4 enforced from 23.6.2006 constituting Directorate of Prosecution. u/s 25A, the Head of Directorate of Prosecution shall be the Director of Prosecution. The Director of Prosecution shall be the person who has been in practice as Advocate for not less than 10 years and his appointment shall be with the concurrence of the Chief Justice of High Court. Thus, reading of Section 25A reveals that the Directorate of Prosecution shall be an independent body of the State discharging their obligation under the Director of the Prosecution who is appointed with the concurrence of Chief Justice of the High Court and will have supervisory jurisdiction on the Government counsels, prosecuting officers appointed u/s 24 and 25 of the CrPC.
15. However, next limb of Prosecuting Branch where the larger stakes are involved and harden criminals are tried, the State Government chooses to acquire exclusive jurisdiction by the impugned amendment and issuing impugned consequential circular to regulate the appointment of District Government Counsels and Prosecuting Officers who prosecute the accused in the Sessions Courts and in the High Court. The anomaly at the face of record, does not rule out the involvement of political interest to restore spoil system in the State of U.P. By the impugned Amending Act, the provisions contained in Section 24 of the Code of Procedure has been amended in such a manner so that the check and balance by judiciary to make the Prosecuting Agency independent through its recommendation, has been given go bye. The impugned amendment under the Act No. 18 of 1991 is reproduced as under:
2. Amendment of Section 24 of Act No. 2 of 1974.--In Section 24 of the Code of Criminal Procedure, 1973, hereinafter referred to as the said Code:-
(a) in sub-section (1), the word, "after consultation with the High Court", shall be omitted;
(b) sub-sections (4), (5) and (6) shall be omitted;
(c) in sub-section (7) the word, "or sub-section (6)" shall be omitted.
16. During the course of hearing, it has been admitted at bar that the impugned State Amendment has never been the subject-matter of judicial review. The reason assigned is, the State was having a better and more balanced provisions in the form of LR Manual which is the compilation of the Government orders issued from time to time regulating the appointment of District Government Counsels. The unamended LR manual contains the provisions of not only the recommendations of the District Judge but also the maintenance of annual record containing the entry given by the Presiding Officers of the Sessions Court and forming opinion on the basis of performance of Government counsels in respective Courts on the basis of report given by the respective Presiding Officers.
17. The unamended LR Manual contains the provisions with regard to effective consultation with the District Judge while preparing the panel for the District Government Counsels. According to original provisions, while choosing the Advocate, opinion should be formed keeping in view the reputation, professional conduct, competency, behaviour and conduct of the lawyers.
18. Now, it is no more res integra that LR manual is authoritative compilation of Government orders and instructions for the conduct of legal affairs of the State Government, vide
19. Paras 7.01, 7.02, 7.03, and 7.04 of LR Manual regulate the procedure for appointment of District Government Counsels which provide that it shall be obligatory on the part of the District Magistrate to obtain the opinion of the District Judge. Before sending the panel to State Government, applications should be invited from the lawyers having practice of 10 years in the case of District Government Counsels and 7 years in the case of Assistant District Government Counsels and 5 years in the case of Sub-District Government Counsels.
20. Renewal has been given in Paras 7.06, 7.07 and 7.08 of the LR manual. Para 7.07 categorically provides that District Government Counsels shall not participate in any political activities so long as they work as such. Otherwise, they shall incur a disqualification to hold the post. The provisions of the LR manual also provides that lawyers of the same district and adjoining districts will be entitled to apply in response to notice issued for the purpose.
21. Chapter XXI of the LR manual while dealing with renewal of District Government Counsels further provides that it shall have overriding effect. It further provides that District Magistrate shall submit his report after consultation with the District and Sessions Judge with respect of Public Prosecutor and Additional Public Prosecutor giving details about the percentage of success of cases conducted by them. It further provides that in case the Government decides not to re-appoint the District Government Counsel, then the LR may call for a fresh recommendation. The LR manual being exhaustive in nature, rather more elaborate than the provisions contained in Section 24 of the CrPC, the impugned amendment does not become a matter of judicial review before the Court.
The provision contained in the LR manual and various judgment of the Allahabad High Court and Hon''ble Supreme Court have been discussed while deciding the Writ Petition No. 7851 (M/B) of 2008, decided on 6.1.2012.
22. Section 24 of the Code of Criminal Procedure, 1973 was the subject-matter of interpretation before the Hon''ble Supreme Court in the case in
84. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is, the nature and extent of consultation, a Collector is required to make with the District Judge.
85. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles, Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties; the District Magistrate is supposed to know their conduct outside the Court vis-a-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.
86. We are also pained to see that the Stat of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi (supra). We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in Legal Remembrancer Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond any cavil, do not carry the same status as of a statute.
87. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (supra) as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the State should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As noticed hereinbefore, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public prosecutors in the High Court. The said provision being a salutary one, it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action.
23. Virtually, the statement given on behalf of the State Government before the Hon''ble Supreme Court defending the impugned amendment was an undertaking before the highest Court of land to maintain the consultative process of District Judge of the district concerned for appointment of District Government Counsels. Apart from the undertaking, the observations of Hon''ble Supreme Court in Johri Mal''s case (supra), are command on the State Government to continue with the consultative process with the District Judge while making appointment on the post of District Government Counsels.
24. Even earlier to Johri Mal''s case (supra), a Division Bench of Allahabad High Court while deciding a case in
25. Hon''ble Supreme Court in the case in
26. Ignoring the consistent view of this Court and Hon''ble Supreme Court and the binding precedents, by the impugned Circular dated 13.8.2008, the age old provisions contained in LR Manual is amended and entire recommendatory power has been conferred on the District Magistrate of the district concerned that too, in violation of Chapter XXI of LR Manual itself and mandamus issued by this Court in the case of Virendra Pal Singh Rana''s case (supra), as well as Johri Mal''s case (supra). The impugned Circular dated 13.8.2008 contained in Annexure 3 to the writ petition and the amended provisions is reproduced as under:
27. While assailing the impugned U.P. Amendment Act, Sri Manoj Goyal, learned counsel has relied on the cases in
28. On behalf of the State, it has been vehemently argued that the impugned amendment has been challenged after two decades hence writ petition should be thrown out on this ground alone. Learned Senior Counsel Sri Raghwendra Kumar Singh, also claimed that power of State Government to amend the CrPC, is constitutional power and Courts should not interfere with the impugned amendment. He also claims State''s right to amend the CrPC and objected to Courts'' power of judicial review under the doctrine of separation of powers. He submits that once the President of India has assented and impugned amendment has been incorporated, it is not open to judicial review that too, when the matter relates to appointment of District Government Counsels. He submits that it is the discretion of the State Government to make appointment or engage counsels of its choice since the engagement is purely professional.
29. On behalf of the State, learned Senior Counsel has relied upon the cases in
II-WHETHER WRIT PETITION IS
BARRED BY DELAY AND LACHES?
30. It has not been disputed at bar that the impugned State amendment has never been challenged. However, while assailing the impugned amendment, Sri Manoj Goyal, learned counsel on behalf of petitioner submits that necessity to challenge the amendment has arisen only after the impugned circular dated 13.8.2008 issued by the State Government whereby the Government had tried to re-introduce the ''spoil system'' existing prior to 1.4.1974 under the Old Code of Criminal Procedure, 1898 of the colonial era (supra). Learned counsel submits that in the Johri Mal''s case (supra) before the Hon''ble Supreme Court, the State of U.P. has made statement that the LR Manual is complete Code in itself regulating the appointment of District Government Counsels hence the impugned amendment shall not affect the merit in any manner whatsoever. Learned counsel fairly admits the unamended LR Manual is very exhaustive and meet out the requirement to continue as independent prosecuting agency in the State of U.P. Accordingly, there was no need to challenge the amendment but as and when the State Government has issued the impugned Circular dated 13.8.2008, the Government has acquired the unfettered power to appoint the District Government Counsels which makes the situation ''status quo anti'' by turning the clock to same position which the Government has been enjoying in the pre-constitutional era during the colonial rule with regard to appointment of District Government Counsels under the Code of Criminal Procedure, 1898. Needless to retreat that under Part IX of Code of Criminal Procedure, 1898 (supra), the entire power with regard to appointment of District Government Counsels was vesting in the District Magistrate of District under the control of the State and the Central Government which was given go bye in the new Code of Criminal Procedure, 1973 through Section 24 of the Act.
31. The argument of the learned counsel for the petitioner seems to carry weight. Upto 13.8.2008, there was no need to challenge the impugned amendment since the appointment of the District Government Counsels was regulated by the procedure contained in the LR Manual. By issuing the Circular dated 13.8.2008, the State Government virtually, is trying to enforce the Amending Act No. 18 of 1991 for the first time acquiring the power to appoint the District Government Counsels without obtaining the recommendation of the District Judge.
32. It is trite in law that the Constitution has not prescribed any period of limitation for filing writ petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue prerogative writ, is not hedged with any condition or constraint. Ordinarily, the principle underlying the rule is one who is not vigilant and does not seek interference of Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right should ordinarily, may not be entitled to invoke Article 226 of the Constitution of India. However, all these depend upon the facts and circumstances of each case and no-hard-and-fast rule can be laid down and no straight jacket formula can be evolved for deciding the question of delay and laches.
While reiterating this broader proposition, Hon''ble Supreme Court in a case in
26. In Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur, this Court set aside the judgment of the Patna High Court whereby the writ petition filed by the appellant against the demand notice issued for levy of cess for the period 1953-54 to 1966-67 was dismissed only on the ground of delay. The facts of that case show that the writ petition filed by the appellant questioning the demand for 1967-68 to 1971-72 was allowed by the High Court. However, the writ petition questioning the demand of the earlier years was dismissed on the premise that the petitioner was guilty of laches.
27. While dealing with the question of delay, this Court observed: (Dehri Rohtas case, SCC pp. 602-03, paras 12-13)
12. The question thus for consideration is whether the appellant should be deprived of the relief on account of the laches and delay. It is true that the appellant could have even when instituting the suit agitated the question of legality of the demands and claimed relief in respect of the earlier years while challenging the demand for the subsequent years in the writ petition. But the failure to do so by itself in the circumstances of the case, in our opinion, does not disentitle the appellant from the remedies open under the law. The demand is per se not based on the net profits of the immovable property, but on the income of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case.
13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for.
(emphasis supplied)
28. In Ramchandra Shankar Deodhar v. State of Maharashtra, the Court overruled the objection of delay in filing of a petition involving challenge to the seniority list of mamlatdars and observed: (SCC p. 327, para 10)
10. .....Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like.
29. In Shankara Co-operative Housing Society Limited v. M. Prabhakar, this Court considered the question whether the High Court should entertain petition filed under Article 226 of the Constitution after long delay and laid down the following principles: (SCC pp. 629-30, para 54)
(1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.
(4) No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.
(5) That representations would not be adequate explanation to take care of the delay.
30. Another principle of law of which cognizance deserves to be taken is that in exercise of power under Article 136 of the Constitution, this Court would be extremely slow to interfere with the discretion exercised by the High Court to entertain a belated petition under Article 226 of the Constitution of India. Interference in such matters would be warranted only if it is found that the exercise of discretion by the High Court was totally arbitrary or was based on irrelevant consideration. In Smt. Narayani Debi Khaitan v. State of Bihar, Gajendragadkar, C.J. speaking for the Constitution Bench observed:
It is well-settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably.
(emphasis supplied)
33. Now, by issuing the Circular dated 13.8.2008, the Act No. 18 of 1991 has been virtually given effect to and in consequence thereof, bunch of writ petitions has been filed challenging the Circular dated 13.8.2008. The present dispute with regard to the power of State amendment may not be thrown out since by the impugned Circular dated 13.8.2008, now the Government has become free to choose a counsels of its own choice without recommendation of the District Judges of the district concerned. Whether the impugned amendment is hit by fundamental rights guaranteed under Part-III of the Constitution or not, is a question which requires to be adjudicated by this Court under the process of judicial review also for the reason that the LR Manual is the compilation of Government orders (supra) and the Government has no right to change its circulars and orders from time to time ignoring the report of the Law Commission. Abuse of power in the absence of statutory provisions may be noticed from the facts discussed, findings recorded in the leading Writ Petition No. 7851 (M/B) of 2008 and other connected writ petitions decided separately. In view of the above, the present writ petition does not seem to be barred by delay and laches and requires adjudication on merit.
III-SOVEREIGNTY, SEPARATION OF
POWER AND ROLE OF COURT
34. During the course of argument, prerogative has been claimed by the State Government in the matter of appointment of District Government Counsel under its sovereign power with the plea of separation of power asserting that the Courts are not concerned to whom the State Government appoints as Government Counsel.
35. Sovereign function includes legislation, administration and dispensation of justice. All the three functions were vested in the King in the Monarchical system of the Government. In democratic polity, three powers have been assigned to three parts of the Government, i.e. legislative, executive and judiciary. Under the Constitution of United States of America or under the unwritten Constitution of England, there is strict separation of power. But under the Indian Constitution, the separation of power is not in strict sense. There is overlapping.
36. The word, "sovereignty" is derived from the Latin word "super" (above) means the authority which controls the actions of every individual, member of the community. The power of Government to make itself obeyed is called sovereignty, and the person or persons who have this power are called the sovereign. According to Harold J Laski, sovereignty is the supreme coercive power and it is by possession of sovereignty that the State is distinguished from all other forms of human association (The State in Theory & Practice by Harold J Laski).
37. In Constitutional Law, sovereignty is termed as the supreme Power of Legislation and Governance. However, Aristotle, a great Greek legal philosopher said that in democratic States, peoples are sovereign. The supreme power of legislation and governance rests in the people. The Parliamentary sovereignty is subsequent evolution. The original concept of sovereignty is of popular sovereignty and even the King or the monarch was to obey the wishes of the people.
38. The Words and Pharases, Permanent Edition, Vol. 39B, defines the sovereignty as under:
The "sovereign powers" of a Government include all the powers necessary to accomplish its legitimate ends and purposes, Such powers must exist in all practical Governments. They are the incidents of sovereignty, of which a state cannot divest itself. - Boggs v. Merced Mining Co., 14 Cal. 279, dismissed 70 U.S. 304, 3 Wall. 304, 18 L.Ed. 245.
39. In the same treatise (supra), while considering the sovereignty in American and European context, it has been further defined as under:
On this subject the errors and the mazes are endless and inexplicable. To enumerate all, therefore, will not be expected. To take notice of some will be necessary to the full illustration of the present important cause. In one sense, the term "sovereign" has for its correlative "subject". In this sense, term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. The term "subject" occurs, indeed, once in the instrument; but to mark the contrast strongly the epithet "foreign" is prefixed. In another sense, according to some writers, every state which governs itself without any dependence on another power is a sovereign state. There is a third sense in which the term "sovereign" is frequently used. In this sense, sovereignty is derived from a feudal source, and like many other parts of that system, so degrading to man, still retains its influence over our sentiments and conduct, though the case by which that influence was produced never extended to the American States. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us that, about the end of the second race of kings, a new kind of possession was acquired under the name of "fief." The governors of cities and provinces usurped equally the property of land and the administration of justice, and established themselves as proprietary seigniors over those places in which they had been only civil magistrates or military officers. By this means there was introduced into the state a new kind of authority, to which was assigned the appellation of "sovereignty." In process of time the feudal system was extended over France and almost all the other nations of Europe, and every kingdom became in fact a large fief. Into England this system was introduced by the Conqueror, and to this era we may probably refer the English maxim that the king or sovereign is the fountain of justice. But in the case of the king the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him there was no superior power, and consequently on feudal principles no right of jurisdiction. "The law", says Sir William Blackstone, "ascribes to the king the attribute of sovereignty. He is sovereign and independent within his own dominions, and owes no kind of subjection to any other potentate upon earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no Court can have jurisdiction over him; for all jurisdiction implies superiority of power." The state of Georgia is not a sovereign power, in the sense that it is exempt from suit in the federal Courts by a private citizen.
40. Accordingly in broader context, the Legislative, Executive and Judiciary jointly constitute sovereign powers with the division of work amongst them under the constitutional framework. Since, India is governed by written Constitution, the sovereign function of the State should be looked into keeping in view the spirit of written Constitution. However, the proposition that the sovereign function includes the function discharged by Legislature, Executive and Judiciary seems to be correct approach than splitting the sovereign power and making them alien to each other. The Western jurist ordinarily rely upon most celebrated treatise of Montesquieu, viz. Espirit des Lois: Spirit of Laws, published in 1748. Montesquieu discussed and propagated federalism in democratic polity and opined for strict separation of power among legislature, executive and judiciary. Though the larger Benches of Hon''ble Supreme Court of India had continuously ruled that in Indian context and keeping in view the constitutional scheme, there is no strict separation of power and is overlapping but it appears that in some of the judgments decided by the Bench of lesser number of Judges, Montesquieu has been relied upon as a ground not to interfere with the State action even if it causes public harm.
41. With profound respect, it appears that Montesquieu''s treatise ''Spirit of Laws'' has not been read as a whole by Hon''ble Judges who followed Montesquieu blindly. The wholesale and overall reading and understanding of the treatise, "Spirit of Laws" written by Montesquieu reveals that the separation of power among three wings of the Government is theoretical and may be made applicable in an "ideal State" means where persons holding offices in all three wings of the Government, i.e. legislature, judiciary and executive are honest, fair and learned. In case there are allegation of corruption, casteism, nepotism or abuse of power against the members discharging sovereign function, then the Montesquieu''s doctrine shall not only be impractical but may result in serious consequence in due course of time.
Thus, the peoples'' representatives seem to have failed to check infiltration of persons having criminal record in the legislative bodies.
42. In a celebrated book, "Religion, Caste & Politics in India", Christophe Jaffrelot who is a Research Director at Centre National de la Recherche Scientifique (in short, CNRS), author of several books as Indian society and political system had considered corruption and criminalisation of politics. Learned author noted that corruption has become all-pervasive phenomenon in contemporary India (page 621). He further took note of the fact that the criminalisation of politics started long back in the country including Uttar Pradesh. The criminals or mafias developed direct nexus with the politician of the State and helped them to be elected. Initially, the politicians availed the help of criminals in electoral matters but later on, criminals entered into politics and get themselves elected in the Assemblies. It shall be appropriate to reproduce a portion from the book (supra) with regard to criminalisation of politics in the State of U.P. and other States of the country. To quote:
The 1996 Legislative Assembly in Uttar Pradesh did not reverse but may have increased the 1993 trend. Not only did the BJP, the BSP, and the SP give tickets to dozens of candidates against whom legal proceedings had been instituted (33, 18, and 22 respectively), but a certain number of BJP, BSP, and Congress MLAs amongst them became ministers when the BJP formed the Government, first jointly with the BSP, then alone, from October 1997. This was achieved by recruiting dozens of MLAs from the BSP and the Congress (and offering up to a few hundred thousand rupees per MLA), with a ministerial post for each. Thus, the Uttar Pradesh cabinet comprised 92 members. The BJP Chief Minister, Kalyan Singh, tried to project himself as clean and set up a Special Task Force (STF) in 1998 to capture or liquidate criminals. However, public enemy number one, then, was Shri Prakash Shukla, who appeared to have colluded with at least eight ministers of Kalyan Singh''s Government; they protected him, making the task of the STF more complicated (Mishra 1998: 52).
Uttar Pradesh is not the only state where the entry of the mafia into politics has accelerated in the last few years. Bihar is certainly as seriously affected as U.P. In 2000, 31 Legislative Assembly candidates had cases registered against them for crimes ranging from murder to dacoity. Most of them contested as ''Independents'', but there were BJP, Congress, RJD, and Samata candidates as well. Maharashtra is also suffering from the same disease. During the municipal elections in 1997, 150, 72, and 50 candidates with past or present difficulties with the law (Godbole 1997) were fielded from Mumbai, Nagpur, and Pune respectively. Andhra Pradesh is not lagging behind, since in 1999 an NGO called Lok Satta Election Watch released a list of 46 candidates contesting elections to the Lock Sabha or the Legislative Assembly with, allegedly, some criminal background (The Hindu, 3 September 1999: 5).
Delhi is also new in this circle of most criminalized states. In fact, Delhi is gradually taking over from Mumbai as the crime capital of India. This city-state tops the list of number of crimes per head, with 527 in 1996 (against 121 in Bihar) and, in terms of percentage change, with +55 per cent change in 1996 over the quinquennial average of 1991-5 (Swami 1998: 17). Out of 815 Legislative Assembly candidates in 1998, 120 had more than two criminal cases registered against them, and out of 69 MLAs, 33 had criminals cases against them (The Hindustan Times, 26 October 1998; The Hindu, 23 November 1998).
It shall be unwise to think or infer that the politicians having criminal antecedent do not affect the decision making process, or the governance. Whether in such a situation, in case the argument of the propagators with regard to strict separation of power is accepted, it is easy to understand that the country may see doom''s day in due course of time.
43. While considering the anarchy and autocratic rule prevailing in some of the countries of the world because of committed bureaucracy and judiciary and the trouble, pain and agony faced by the peoples of respective country, Bertrand Russell critically expressed his views as under:
Stalin could neither understand nor respect the point of view which led Churchill to allow himself to be peaceably dispossessed as a result of a popular-vote. I am a firm believer in democratic representative Government as the best form for those who have the tolerance and self-restraint that is required to make it workable. But its advocates make a mistake if they suppose that it can be at once introduced into countries where the average citizen has hitherto lacked all training in the give-and-take that it requires. In a Balcan country, not so many years ago, a party which had been beaten by a narrow margin in a general election retrieved its fortunes by shooting a sufficient number of the representatives of the other side to give it a majority. People in the West thought this characteristic of the Balkans, forgetting that Cromwel and Robespierre had acted likewise. (UE)
(page 91 from Bertrand Russell''s Best Special Indian Edition)
Russell also took note of American legislators and Nazis under the democratic form of Government. To quote:
The American legislators who made the immigration laws consider the Nordics superior to Slavs or Latins or any other white men. But the Nazis, under the stress of war, were led to the conclusion that there are hardly any true Nordics outside Germany; the Norwegians, except Quisling and his few followers, had been corrupted by intermixture with Finns and Lapps and such. Thus politics are a clue to descent. The biologically pure Nordics love Hitler, and if you did not love Hitler, that was proof of tainted blood. (UE)
(page 91-92 from Bertrand Russell''s Best Special Indian Edition).
44. Framers of Indian Constitution were wise enough to take care of such situation. With foresightedness while considering the process of judicial review under Article 226 of the Constitution of India, they used the words, "for other purposes" and gave ample power to Hon''ble Supreme Court to interfere under Article 32 in the event of violation of fundamental right of the citizens straightway. Conferment of such power to the High Courts and Supreme Court by the constitutional framers belies the argument with regard to strict separation of power. Needless to say that in the event of judicial overstepping or arbitrariness, legislators have got ample power to legislate law to dilute the effect of judgments of Courts.
In such a situation, remedy is to check and balance which has been provided in the Indian Constitution and affirmed by Hon''ble Supreme Court from time to time holding that the separation of power is not applied under Indian Constitutional Scheme in strict sense.
45. Under Article 143 of the Constitution of India, the President of India, has been conferred power to seek opinion from Hon''ble Supreme Court. Article 144 provides that all civil and judiciary authority shall act in aid of Hon''ble Supreme Court in discharge of its obligations. All matters of inter-state disputes with regard to land and water, are adjudicated by the Tribunal constituted for the purpose. Thus, the Constitution does not envisage strict separation of power.
46. In the case Delhi Law Act, 1912 in Re,
47. Again, in
48. The aforesaid proposition has been reiterated by Hon''ble Supreme Court in the cases in
49. In
50. In a case in
51. Justice Fazal Ali (supra), while considering the independence of judiciary, opined that it comprises two fundamental and indispensable elements, i.e., (1) independence of judiciary as an organ and as one of the three functionaries of the State, and secondly, the independence of the individual Judge. Their lordships ruled that Constitution of India did not fully envisage complete separation of powers. The power of judicial review has been conferred as a safeguard not only to ensure the independence of judiciary but also to prevent Judge from vagaries of executive. Their lordship held that judiciary has to be inspired by the values enshrined in our Constitution. If rule of law is to run akin to rule of life and a feudal society is to be transformed into an egalitarian society by the rule of law, an introduction of the element of reflection of popular will so as to make judicial system more viable and effective as an instrument of change is inevitable and total aloofness of Judiciary is inconceivable.
52. In
53. Hon''ble Supreme Court of India in a case in
55................................But we must recognise the exercise of sovereign power which gives the States sufficient authority to enact any law subject to the limitations of the Constitution to discharge its functions. Hence, the Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers between the center and the States and also subject to the fundamental rights guaranteed under the Constitution. The Indian State, between the center and the States has sovereign power. The sovereign power is plenary and inherent in every sovereign Stare to do all things which promote the health, peace, morals, education and good order of the people. Sovereignty is difficult to define. This power of sovereignty is, however, subject to Constitutional limitations. This power according to some constitutional authority, is to the public what necessity is to the individual.
54. After the case of Synthetic Chemicals Ltd. (supra), Hon''ble Supreme Court reiterated the aforesaid principle with regard to broader separation of power in the case in
55. In
56. In
57. In
58. In
59. In
60. In
61. Learned Senior Counsel Sri Raghwendra Singh, vehemently argued that the Court should not interfere with the present controversy. While relying upon the cases of Macdowel Company, Bihar Distillery, Public Service Tribunal Bar Association, Dharam Dutta, Government of Andhra Pradesh (supra), learned counsel would submit, it is prerogative of the State to appoint a counsel of its choice and the Courts are not concerned with it.
62. In the case of Macdowel Company (supra), their lordships of Hon''ble Supreme Court ruled that the Court may strike down any legislation on two grounds i.e., lack of legislative competence and violation of any of fundamental right guaranteed under Part-III of the Constitution (Para-43). The case of Macdowel Company (supra) has been followed in the subsequent judgment of Hon''ble Supreme Court in the case of Bihar Distillery Ltd. (supra). Reiterating the aforesaid proposition, in the case of Bihar Distillery Ltd. (supra), Hon''ble Supreme Court held that approach of the Court while examining the challenge to the constitutionality of an enactment is to start with presumption of constitutionality. Ordinarily, Court should try to sustain its validity to the extent possible and it should strike down only in case enactment is not possible to sustain it. The unconstitutionality should be emerging from the material on record. (para 17).
63. In the case of Public Service Tribunal and Dharam Dutta (supra), aforesaid proposition has been reiterated. The case of Government of Andhra Pradesh (supra) is an elaborate judgment of Hon''ble Supreme Court on the question involved. Their lordship held that there should be strict separation of power or ordinarily, the Court should not interfere with the legislative enactment. Hon''ble Supreme Court further held that an Act may be declared unconstitutional in case it is evident so as to leave no room of doubt. However, Hon''ble Supreme Court while concluding the opinion expressed the views as under:
88. In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789.
There appears to be no doubt over the proposition that the interference of the Court should be on the basis of legislative competent and in violation of fundamental right contained in Part-III of the Constitution. Article 14 of the Constitution hits every State action when it suffers from the vice of arbitrariness, manifest error of law or exceeding of jurisdiction or irrational.
64. In a case in
35. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that legislative and executive powers are used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the State are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the State in discharging their constitutional responsibilities.
36. Powers that have been granted, and implied by, and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the Government; but restraint cannot imply abdication of the responsibility of walking on that edge.
65. This lordships have further proceeded to consider the constitutional philosophy in terms of Indian Constitution and rule that prime concern of the course are to maintain rule of law and secure the public interest, to quote relevant portion of paras 113, 114 and 115 as under:
113. The path to modern constitutionalism, with notions of divided and checked powers, fundamental rights and affirmative duties of the State to protect and enhance the interests of, welfare of, and security of the people, and a realization that "comity amongst nations" and international peace were sine qua non for the welfare of the people was neither straight forward, nor inevitable. It took much suffering, bloodshed, toil, tears and exploitation of the people by their own Governments and by foreign Governments, both in times of peace and in times of war, before humanity began to arrive at the conclusion that unchecked power would sooner, rather than later, turn tyrannical against the very people who have granted such power, and also harmful to the peaceful existence of other people in other territories. Imperial expansion, as a result of thirst for markets and resources that the underlying economy demanded, with colonial exploitation as the inevitable result of that competition, and two horrific world wars are but some of the more prominent markers along that pathway.
114. The most tendentious use of the word sovereignty, wherein the principles of self-determination were accepted within a nation-state but not deemed to be available to others, was the rhetorical question raised by Adolf Hitler at the time of annexation of Austria in 1938: "What can words like ''independence'' or ''sovereignty'' mean for a state of only six million?"
115. We must recognize the fact that history is replete with instances of sovereigns who, while exercising authority on behalf of even those people who claimed to be masters of their own realm, contradictorily claimed the authority to exercise suzerain rights over another territory, its people and its resources, inviting ultimately the ruin of large swaths of humanity and also the very people such sovereigns, whether a despot or a representative organ, claimed to represent.
66. It has been consistent view of Hon''ble Supreme Court of India that the Indian Constitution does not envisage for strict separation of power and in appropriate case, the higher judiciary may interfere and correct the error committed by other two wings of the Government to secure public interest and there may be overlapping function to secure public good.
67. In view of above, it is evident why the principle of strict separation of power has not been accepted by Hon''ble Supreme Court in Indian context.
68. An industrialist of the country, Azim Premji, who was the part of a group wrote a letter to the Prime Minister showing deep concern to mal-administration in the country, remarked, "The biggest concern now are governance issues and the complete absence of decision-making in the Government, in the bureaucracy,". Even if there is little truth in the allegation whether in such a situation, as canvassed by the learned counsel for the State or a section of society, strict separation of power should be enforced leaving peoples in the state of uncertainty?
69. Apart from the aforesaid settled proposition of law by Hon''ble Supreme Court, there are certain other features which require higher judiciary to ensure public good in case it is necessary by overlapping exercise of power to impart justice. Question cropped up is, whether substantial number of representatives of peoples, possessing criminal antecedents, will be able to discharge their constitutional obligations faithfully to secure over all public interest or interest of their constituency?
70. Jeffrey Goldsworthy, working in Faculty of Law at Monash University in Melbourne, Australia, in his book, "Parliamentary Sovereignty", has considered this aspect of the matter. According to Goldsworthy, to quote:
The once popular idea of legislative sovereignty has been in decline throughout the world for some time. ''From France to South Africa to Israel, parliamentary sovereignty has faded away.'' A dwindling number of political and constitutional theorists continue to resist the ''rights revolution'' that is sweeping the globe, by refusing to accept that judicial enforcement of a constitutionally entrenched Bill of Rights is necessarily desirable....
For what it is worth, my opinion is that constitutional entrenchment might be highly desirable, or even essential, for the preservation of democracy, the rule of law and human rights in some countries, but not in others. In much of the world, a culture of entrenched corruption, populism, authoritarianism, or bitter religious, ethnic or class conflicts, may make judicially enforceable bills of rights desirable. Much depends on culture, social structure and political organisation.
What explains the loss of faith in the old democratic ideal? I am aware of possible ''agency problems'': failures of elected representatives faithfully to represent the interests of their constituents. In many countries this is a major problem. But I suspect that in countries such as Britain, Canada, Australia and New Zealand, the real reason for this loss of faith lies elsewhere. There, a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionate, impartial and carefully reasoned manner. Even though the upper-middle class dominates the political process in any event, the force of public opinion still makes itself felt through the ballot box, and cannot be ignored by elected politicians no matter how enlightened and progressive they might be.
71. Learned author while considering the judicial encroachment of constitutional right in some of the countries, opined that shifting power to Judges, amounts to return of mixed Government in the political process to check the ignorance, prejudice and passion of the mob. Learned author proceeded to observe as under, to quote:
If I am right, the main attraction of judicial enforcement of constitutional rights in these countries is that it shifts power to people (judges) who are representative members of the highly educated, professional, upper-middle class, and whose superior education, intelligence, habits of thought, and professional ethos are thought more likely to produce enlightened decisions. I think it is reasonable to describe this as a return to the ancient principle of ''mixed Government'', by reinserting an ''aristocratic'' element into the political process to check the ignorance, prejudice and passion of the ''mob''. By ''aristocratic'', I mean an element supposedly distinguished by superior education, intellectual refinement, thoughtfulness and reasonability, rather than by heredity or inherited wealth.
72. Author opined that, recent challenges in judicial innovation, may require new theories and may constitute a challenge to doctrine of parliamentary sovereignty. But they cast very little light on the nature of parliamentary authority in the past. Author proceeded to observe that defenders of parliamentary sovereignty cannot ignore constitutional change. Constitutional arrangements and understandings today are in many respects very different from those of the past. But the doctrine of parliamentary sovereignty has survived centuries of change, and has the capacity to survive many more. The recent constitutional developments discussed by its critics are compatible with the doctrine. The author noted a passage from Constitutional and Administrative Law in New Zealand (3rd Edn.) pp. 543-5), to quote as under:
Throughout English constitutional history, Parliament and the Courts have exercised co-ordinate, constitutive authority... Theirs is a symbiotic relationship founded in political realities. Parliament and the political executive must look to the Courts for judicial recognition of legislative power, and the Courts must look to Parliament and the political executive for recognition of judicial independence.
73. Needless to say that to ensure public good now it has become collective effort of all the three wings of the Government with overlapping actions to some extent but keeping in view the judicial independence, from other two posts of the Governments.
74. The higher judiciary of India has been slow in interfering with the State actions. Limited enactments have been set aside. The consequence is manifold increase of corruption in the system of Governance including the criminalisation of polities and huge misappropriation of public fund and stashing away of the public fund to abroad.
75. In a journal, "The American Journal of Comparative Law", while writing an article, Prof. Jiunn-Rong Yeh, College of Law, National Taiwan University, and Associate Prof. Wen-Chen Chang, National Taiwan University, have considered the extensive interference by South Korean ad Taiwan Constitutional Court, to quote:
South Korea underwent successful democratization in 1987, culminating in an extensively revised Constitution and a new Constitutional Court. In the two decades since, Government power has shifted to the opposition and back, swinging among various political parties. Most impressive has been the performance of the South Korean Constitutional Court. In its decisions involving the constitutionality of statutes or Government actions, it has ruled against the Government about one third of the time.
Similarly, Taiwan also began an incremental democratization process in the late 1980s. Since then, the 1947 Constitution, that was originally adopted in mainland China, has been amended seven times. Governmental power was peacefully passed to the long-term opposition party in 2000 and then swung back again to the former ruling party in 2008. The Constitutional Court of Taiwan, despite being an old institution established in 1948, began exhibiting greater vibrancy since the 1990s and produced a record in which about thirty to forty percent of challenged legislative or administrative acts were ruled unconstitutional.
76. How adversely affected system of Governance, caused mental pain, agony and persecution of peoples of various countries, may be seen from agitation in different part of the world. Fatima Bhutto in her most celebrated book, "Songs of Blood and Sword", discussed fallacy if it in the trial of Bhutto, to reproduce relevant extracts as under:
After reviewing the case files and documents pertaining to Bhutto''s trial at the hands of the military regime the jurists issued a statement that would be released to the international press. They agreed that Bhutto''s trial clearly failed to meet several necessary standards of justice in ''at least'' the six follow ways; maintaining a distinct bias in regard to the trial judges and lawyers, the failure of the junta to hold an open trial, the failure of the Courts to maintain an accurate record of Bhutto''s trial, the failure to institute a proper trial structure, and the Court''s decision in moving ahead with clear evidentiary improprieties and insufficiencies. Lastly, the jurists noted that Bhutto''s physical maltreatment at the hands of the state was ominous and a cause for international concern. (Page 168).
77. Anatol Lieven, a journalist, who had worked in Pakistan and conducted extensive research and also visited India, had written a book, "Pakistan a Hard Country". While writing the book, learned author noted how the South Asia particularly, Pakistan and India are likely to suffer a lot because of blindly following the British legacy in dispensation of justice. In Pakistan, how extra constitutional pockets and extra constitutional nucleus power has been created affecting dispensation of justice is eye opener. This happens since higher judiciary could not evolve new principle of law to match the political evils. Now after sixty years, Chief Justice of Pakistan is striving to regenerate the democracy to establish rule of law but now seems to be too late. Learned author Anatol Lieven observed, to quote:
A visit to the Mohmand Tribal Agency in September 2008 (described further in Chapter 11) summed up for me the attitudes of most ordinary Pakistanis to the official judicial system, and how the Pakistani Taleban have been able to exploit this to their advantage. As Tazmir Khan, a farmer, told me, to the approval of the other local men sitting with him.
Taleban justice is better than that of the Pakistani state. If you have any problem, you can go to the Taleban and they will solve it without you having to pay anything--not like the Courts and police, who will take your money and do nothing.
The author further proceeded to observe as under:
...Even clearer was the entire local population''s absolute loathing for the state judicial system; and this was an attitude which I found among ordinary people across Pakistan.
However, it would be wrong to see the Pakistani population simply as innocent victims of a vicious judicial system run from above for the benefit of the elites. Rather, justice in Pakistan is an extension of politics by other means, and everyone with the slightest power to do so tries to corrupt and twist the judicial system to their advantage in every way possible.
Thus cases brought before the state judicial system are key weapons in the hands of individuals and groups fighting for national and local power; and in both the state and the traditional systems of justice, outcomes are determined largely by political considerations. That means kinship, wealth, influence and armed force, but also sometimes and to some extent the ability to win over public opinion in general. The means to do this have changed over time, with the modern media now playing an important role in some cases.
78. The author (supra) further in very strong words, proceeded to observe, to quote:
It would be quite wrong, however, to see the Pakistan masses faced with the state justice system as simply the passive, sheep-like victims of predatory lawyers, judges, policemen and political elites. This is true, but it is also true that the vast majority of Pakistanis (and Indians) with even the most limited power to do so have contributed to the wreckage of the state judicial system by their constant efforts to twist it to their own individual or group purposes. One reason for this is the continual struggles for power which permeate Pakistani society--struggles in which politics and property are often inextricably mixed. In turn, these struggles generate and are generated by the lack of mutual trust the permeates Pakistani society, between but also within kinship groups.
79. In the aforesaid book, the author has cited several instances, how gradually the judiciary lost its significance, how the judiciary has become weaker and weaker day by day making people dischanted with the system. Judiciary has become an instrument to persecute the weaker in the hands of mighty people.
80. Poverty, illiteracy, lack of basic amenities, poor governance, are the prime concern not only for the citizens of the State of U.P., but for whole of India. According to Human Development Report, 2011, prepared by the "Institute of Applied Manpower Research Planning Commission Government of India", published by Oxford University Press, though per capita income has grown but still, it is lower than several other States, to quote:
Over the years, the gap between the per capita income of the state and the national average has grown considerably. In 1950-1, the per capita income of Uttar Pradesh was 7 per cent lower than the national average. This difference had grown to 40 per cent in 2000-1 (Uttar Pradesh Human Development Report 2003). In recent years (2002-3 to 2007-8), the average annual growth rate of NSDP was 5.6 per cent as against the national average of 7.9 per cent, while the growth rate of the per capita SDP was 3.6 per cent compared to the national average of 6.4 per cent.
81. In the field of health also, the State of U.P., is worse than the national average, to quote:
In terms of health indicators, the state''s performance was worse than the national average (Figure 3, 4 and 5). The proportion, of women with BMI<18.5, underweight children and the U5MR are higher in the state as compared to the national average. The Scs and Sts are worse off compared to the state average and their community''s respective national averages for all the health indicators.
Although the state made significant efforts in building healthcare infrastructure, it has failed to keep pace with the increasing demand. The state''s performance in providing health infrastructure was lover than the national average. The shortage of medical personnel and their absenteeism, particularly in the rural areas, the shortage of medicines, and lack of accountability in the public health system have seriously affected the healthcare system. There was a vast network of private health providers, who were expensive and often beyond the reach of the poor. The State Human Development Report further noted that the state had one of the lowest health expenditures in India by both Indian and international standards. Despite that, the bulk of the expenditure was allocated for the payment of salaries.
82. With regard to literacy rate, again Uttar Pradesh is lower than the national average, to quote:
The literacy rate in Uttar Pradesh was lower than the national average. According to latest estimates of Census (2011), Uttar Pradesh has a literacy rate of 70 per cent as compared to the 74 per cent national literacy rate in 2011. As per NSS (2007-8), all the social groups including Scs and Sts have a literacy rate lower than the state average and also lower than the literacy rate of their communities at the national level (Figure 6). Among the various programmes undertaken, Uttar Pradesh Basic Education Project (UPBEP 1 and 2) initiated in select districts of the state in 1993 and 2000, respectively, and DPEP (Centrally sponsored) resulted in a notable improvement in enrolment and a decline in dropout rates in the districts where these programmes were implemented. During the period 1996-7 to 1999-2000, enrolment in UPBEP districts increased by 68 per cent as against 37 per cent in non-UPBEP districts (Uttar Pradesh Human Development Report 2003). Poor infrastructure alongwith inadequate financial allocation were the major hindrances in achieving higher educational targets. The state allocation on education increased from 0.5 per cent of the SDP in 1950-1 to 3.2 per cent in 2007-8, but it is still very low compared to the demand.
83. With regard to Basic household amenities again, Uttar Pradesh is marginally below the national average in terms of improved drinking water facilities to quote:
In terms of basic household amenities, the performance of the state is marginally below the national average in terms of improved drinking water facilities. However, it is one of the rare states where the average for the SC and ST households was better than the state average and also than the national average for their respective communities in terms of access to improved sources of drinking water (Figure 7). In the case of sanitation, the state average is slightly better than the all India average (Figure 8). However, only 16 per cent of SC households have access to toilet facilities vis-a-vis 35 per cent of SC households at the all India level.
In such a situation it is not easy for the citizens to avail justice from the Government. There shall always be disparity in public dealing and peoples may suffer for one or the other cause because of poor governance system.
84. Mahatma Gandhi Ji compared the governance system of European countries and India and expressed his views, to quote from "Mahatma Gandhi Essays & Reflections" by Sarvepalli Radhakrishnan (page 18-19):
In my humble opinion the ordinary method of agitating by way of petitions, deputations, and the like is no remedy for moving to repentance a Government so hopelessly indifferent to the welfare of its charge as the Government of India has proved to be. In European countries, condemnation of such grievous wrongs as the Khilafat and the Punjab would have resulted in a bloody revolution by the people. They would have resisted, at all cost, national emasculation. Half of India is too weak to offer violent resistance, and the other half is unwilling to do so. I have therefore ventured to suggest the remedy of non-co-operation, which enables those who wish to dissociate themselves from Government, and which, if unattended by violence and undertaken in an ordered manner, must compel it to retrace its steps and undo the wrongs committed; but whilst I pursue the policy of non-co-operation, in so far as I can carry the people with me, I shall not lose hope that you will yet see your way to do justice.
While he maintains that British rule in its present form has made India "poorer in wealth, in manliness, in godliness and in her sons'' power to defend themselves."
85. He was firmed that no improvement in Indian situation was possible so long as the British adopted an unnatural attitudes of patronage and superiority. Things not changed, even after independence, men in power are stashing Indian currency to foreign countries. Be the bureaucracy or the peoples representatives, the malpractices, maladministration, misappropriation of Government fund, or discriminatory treatments, all parts of Indian governance system and it has become part of life with full of scams. In such a situation, strict separation of power shall neither be feasible or appropriate for India in its national and social interest.
86. It may be noted that according to the report (Hindustan Times dated 9.8.2011), amongst 395 members of the legislative assembly of the State of U.P. against 138 members (34%), criminal cases are pending. Out of 138, against 72 members of the Legislative Assembly (18%), cases with regard to heinous crime like murder, kidnapping, robbery, dacoity, extortion, rape and sale of minors etc are pending.
87. According to an Article published in "Times of India" dated September 2, 2011, written by Dipankar Gupta, the record of 15th Lok Sabha is also not encouraging; rather it is a matter of deep concern for the civilised society. In 15th Lok Sabha, as many as 153 (162 according to author report) MPs have criminal records, out of which, 74 of them are charged with serious offences like murder, abduction, misappropriation of public fund etc.
Thus, the peoples'' representatives seem to have failed to check infiltration of persons having criminal record in the legislative bodies.
88. Coming to second limb of governance, the bureaucracy, where also things are not too good. It is of common knowledge that substantial number of bureaucrats succumb to political pressure and do not tender correct advice to the Government resulting in loss of revenue, misappropriation of public fund and abuse of power. Shri Bhaskar Ghose, an I.A.S. Officer who served for 36 years in the cadre has shown his deep concern with regard to falling standards among the bureaucracy. He has written his autobiography in the name and title, "SERVICE OF THE STATE, THE IAS RECONSIDERED. Learned author observed as under:
A number of IAS officers have been charged with, even arrested for, corruption; and many, many more have taken to ways that are not, strictly speaking, illegal but are repellent nonetheless-the ways of nepotism, of intrigue, of lobbying and cultivating the politically powerful to worm their way up the administrative ladder. Krishnan and Somanathan have reported wryly on a ''formulation'' to which another officer, K. Ashok Vardhan Shetty, has, according to the two, made a contribution. I cannot resist reproducing it in full:
In a sense, the IAS can be divided into three groups - the ''vives'' (those who are attached to one party), the ''nuns'' (officers who remain unattached to any party), and the ''prostitutes'' (who attach themselves to whichever party is in power and switch when there is a change of Government). The authors have been at pains to clarify that these terms are used metaphorically, to make an analytical point and should not be misconstrued or misquoted, out of context.
Point taken, and the quotation is very much in context and has not been misconstrued; in case anyone has any doubts the metaphorical nature of the terms is emphasized; after all, whoever heard of an IAS officer actually being a prostitute?
But this study, and others like it, have made the enquiry into the service and its relevance in the twenty-first century not just relevant, but urgent. If India is to take its place in the world as an economic superpower it cannot be burdened with an administrative system that is controlled by one group of officers, some of whom have been exposed as corrupt and many more known to be Courtiers and arch intriguers and lobbyists.
89. Learned author which concluding the book had placed on record his opinion with pain and sorrow. To quote:
It is true that there are a number of corrupt officers in the IAS, more than one would like to see, and it makes me-and I''m sure many, many other IAS officers-ashamed and disgusted. One hopes they will be punished and driven out of the service. Apart from corruption, there are others who openly practice nepotism, who manoeuvre to get themselves coveted postings, who cultivate people who they think will be useful to them in some way at some time.
90. Another I.A.S. Officer Shri Radhey Shyam Agarwal while writing his autobiography, titled "Inside Story of....Bureaucracy" has given glimpse of state of affairs of bureaucracy in U.P., in the following words:
As a matter of fact the new Minister wanted to shift the responsibilities on to me and would not like to be bothered by others. I had a lot of difficulty in dealing with the union leaders who always had been putting forth their demands of promotion and transfer. Whenever they went to meet the director, he always referred them to me. The actual fact was rather different. He would say something to me and would do something otherwise.
91. Learned author (supra) while incapsuling his experience suggested to adopt remedial measures to maintain the intellectual integrity of political bosses as well as that of the bureaucracy in the following words:
This is high time that one should give serious thoughts on how to maintain the intellectual integrity of political bosses as well as that of the bureaucracy. It is for the political parties in the interest of the country, not to create a vicious circle by exploiting the bureaucracy in their own interest. Let the bureaucracy work with impartial mind and if anybody amongst them is found corrupt or having a partisan attitude such a bureaucrat must be given punishment. At the same time the members of the Legislative Assembly and Members of the Parliament should not be allowed to interfere in the affairs of transfers and postings and day-to-day administration. Since we have not been able to implement the policies of Government in the true sense, nor have we developed a proper work culture, there is an adjustment gap which needs to be filled in a reasonable way.
92. Shri Vinod Rai, Comptroller and Auditor General of India while giving a lecture on 11th October, 2011 at Sardar Vallabhbhai Patel National Police Academy in Hyderabad had shown his deep concern to the succumbing bureaucracy indulged in corruption in different forms of malpractices giving way to political system to be more corrupt and whimsical. It shall be appropriate to quote relevant portion of the opinion expressed by Shri Vinod Rai, Comptroller and Auditor General of India as published in the newspaper, "Hindu" of 13th October, 2011:
That governance is at its lowest ebb. That the morale of the civil servants is low. That credibility of the Government is at its lowest. That decision-making has become a casualty. Second: That this situation is deleterious for the nation. That too much is at stake for too many in such a situation. Third: On you and officers of the All India Services, among others, rests the onus to remedy the situation..................................
Today, we are facing a testing time in the history of our nation. The quality of governance is below par. There has been an erosion of people''s faith in Government. Their confidence in public institutions has declined. National trust in the bureaucracy, including the police force has collapsed. The integrity and professionalism of civil servants are being questioned. This has brought the credibility of the Government to the lowest since Independence.
............Most of us would not be able to convince ourselves that we are capable of being part of a legacy which provided this nation the foundations on which the edifice of good governance stood. And that is where the greatest challenge to the police force lies today, when the moral fabric of the nation seems to be tearing apart in the absence of an optimal governance system, characterised by a near total absence of accountability; where loyalty takes precedence over the sense of one''s duty, and where national interests are often, and with impunity, subjugated to individual gains.
93. While discussing the fall of political system and bureaucracy, the Times of India, Lucknow dated 17.10.2011 remarked, "The steel framework is cracking - bending under the weight of people''s expectations and being pulled down by the political class. The IAS and IPS officers themselves are caught in a debilitating dilemma as governance, in the words of Vinod Rai, "touches a new low".
94. After considering number of instances with regard to evil or persecuted bureaucracy, the reporter (supra) considering the plight of certain honest upright officers observed, to quote:
It''s an evil throughout the country. Ruling parties do post people arbitrarily, without merit. It''s done to subjugate the bureaucracy into toeing a certain line,: says TSR Subramanian, former cabinet secretary of India. But, says Subramanian, the bureaucrats should voice their concerns within the bounds of service rules. "Done in that manner, the service rules protect you and provide immense immunity."
But others blame bureaucrats themselves for their plight as they have not learnt to say "no" to their political masters. "The message should be loud and clear that reshufflings would not help matters," says a Maharashtra cadre IPS officer, giving the example of a fiercely independent cadre-mate, then Nasik IG B D Mishra, who had to be reinstated because of public pressure after he was shunted out for acting against some local heavyweights.
The reporter while considering the plight of honest officers quoted the comments of some bureaucrats and remarked, to quote:
While an officer may lower his own expectations, he may not always have the luxury of ignoring people''s expectations. Nor can he afford to antagonize the political class. To maintain that difficult balance, while some seek central deputation, others go on unending sabbaticals. Yet others, like a 1985-batch Bihar-cadre IPS officer, plead to the Government that instead of all the harassment they just be declared insane.
(Extract from The Times of India, Lucknow, Monday, October 17, 2011).
95. India is a multi-lingual country with thousands of castes, communities and sects. In such a scenario strict enforcement of constitutional spirit and law is necessary to secure the public good. A little gallery may result with unfortunate consequences in due course of time. Supreme Court of India has noted in the case of
IV- HISTORICAL BACKGROUND AND
LAW COMMISSION REPORTS AND ITS
IMPORTANCE
96. India attained freedom with the advent of new Constitution from 26.1.1950. Right from the beginning, Indian law framers, different law commissions and higher judiciary as well as the members of bars were in effective discussion to streamline the criminal prosecution by independent prosecuting agency. The law Commission as first constituted, presented its report on 26.9.1958. In the 14th Report of Law Commission (1958), it has been suggested as under:
Suggested remedial measure--We therefore, suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the Police Department. In every district, a separate Prosecution Department may be constituted and placed in charge of an official who may be called a ''Director of Public Prosecutors''. The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as a part of the Police Department, he should be an independent official directly responsible to the State Government. The departments of the machinery of criminal justice, namely, the Investigation Department and the Prosecuting Department should thus be completely separated from each other.
There have also been recommendations by the National Police commission in its 4th Report and also in the 154th Report of the Law Commission (1996) that there should be a prosecution system under the control of an independent Director of Prosecution.
97. The Law Commission recommended for independent prosecuting agency. The Commission was asked by the Central Government to undertake the detail examination of the Code of Criminal Procedure, 1898. Thereafter the Law Commission submitted a very comprehensive report on 19.2.1968 on Section 1 to 176 of the Code, The Commission was again reconstituted in 1968 and undergone detail study of Code of Criminal Procedure. The Commission made a detailed study of the Code, met judges and representative of the various Bar Associations in different parts of the country, received opinions. The Law Commission submitted its detailed 41st Report in September, 1969. After considering the exhaustive report of Law Commission, the draft Bill, Bill No. XLI of 1970 was introduced and finally it has seen the light of the day in the form of Criminal Procedure Code, 1973.
98. While submitting 41st Report, the Law Commission of India considered Section 492 of Code of Criminal Procedure as existing under the old provisions of Code of Criminal Procedure. The Law Commission opined that appointment of Public Prosecutors should be made after obtaining the recommendation from the High Court. Chapter 38 of 41st Report of Law Commission relates to appointment of Public Prosecutors. It shall be appropriate to reproduce the Paras 38.2 and 38.3 of the Report as under:
38.2. Existing prosecuting agency in the district--In practice, however, there is in every district an officer appointed by the State Government who is designated the Public Prosecutor and who, with the assistance of one or more additional Public Prosecutors, conducts all prosecutions on behalf of the Government in the Court of Sessions. These senior Public Prosecutors are under the general control of the District Magistrate. Prosecution in the magisterial Courts is, generally speaking, in the hands of either the police officers or of persons recruited from the bar and styled Police Prosecutors or Assistant Public Prosecutors all of whom work under the directions of the Police Department.
38.3 Section 492--In an earlier Chapter 1, we have recommended that in every district a separate prosecution department should be constituted and placed in charge of a Director of Public Prosecutions, or, if this is not considered feasible, of the Public Prosecutor of the district who should be given a greater authority, a higher status and a wider range of functions than he has at present, and approximating to those envisaged for the Director. Now, section 492 provides for the appointment of several Public Prosecutors in a district all of whom can apparently function at the same time. No qualifications are laid down in the law for a Public Prosecutor and the Government is empowered to appoint any one it likes to be a Public Prosecutor. We think that the Code should provide a better frame-work for organising the prosecuting agencies in the district in a systematic way, and for this purpose, we propose the following two sections in place of section 492:
[1. See paras 18.24 and 18.25 above)]
492. Appointment of Public Prosecutor.--(1) For every district the State Government shall appoint a Public Prosecutor. It may also appoint one or more additional Public Prosecutors for the district.
(2) A person shall only be eligible to be appointed a Public Prosecutor or Additional Public Prosecutor under sub-section (1) if he has been for not less than seven years an advocate and is recommended by a High Court for appointment. 2
[2. (Cf. Article 233 (2) of the Constitution)]
(3) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, an advocate of not less than ten years'' standing as a Special Public Prosecutor.
492A. Appointment of Assistant Public Prosecutors.--(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecution in the Courts of Magistrates.
(2) No police-officer shall be eligible to be appointed as Assistant Public Prosecutor under sub-section (1).
(3) Where no Assistant Public Prosecutor appointed under sub-section (1) is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:
Provided that a police-officer shall not be so appointed--
(a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or
(b) if he is below the rank of Inspector.
The Public Prosecutors appointed u/s 492 will ordinarily conduct cases on behalf of Government in the Sessions Court, while the Assistant Public Prosecutors appointed u/s 492A will be for conducting cases in the Courts of Magistrates. Although it is not expressly provided in the latter section that Assistant Public Prosecutors should be legally qualified, we have no doubt that the present trend of appointment, as far as possible, qualified legal practitioners as Assistant Public Prosecutors or Police Prosecutors or Police Prosecutors will be maintained in all States and the provision made in sub-section (3) above (corresponding to sub-section (2) of section 492) will be restored to less and less in future years.
99. It appears that the Parliament to its wisdom has substituted District Judge in place of High Court while enacting Section 24 of the code of Criminal Procedure. The Law commission of India in its 154th Report on Code of Criminal Procedure, 1973 (in Chapter III, para 15) relied upon the judgment of Kerala High Court in
Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction.
''Public Prosecutor'' is defined in some countries as a "public authority who, on behalf of society and in the public interest, ensures the application of the law where the breach of the law carries a criminal sanction and who takes into account both the rights of the individual and the necessary effectiveness of the criminal justice system."
Prosecutors have duties to the State, to the public, to the Court and to the accused and, therefore, they have to be fair and objective while discharging their duties.
100. The Law Commission (supra) also observed that the Government should en-sure that the Public Prosecutors are independent of the executive, to reproduce relevant portion:
Public Prosecutor must act on his own independent of Executive influence.
The Government should ensure that public prosecutors are independent of the executive, and are able to perform their professional duties and responsibilities without interference or unjustified exposure to civil, penal or other liability. However, the public prosecutor should account periodically and publicly for his official activities as a whole. Public Prosecutors must be in a position to prosecute without influence or obstruction by the executive or public officials for offences committed by such persons, particularly corruption, misuse of power, violations of human rights etc.
Even in regard to withdrawal of prosecutions u/s 321 of the code of Criminal Procedure, 1973, the Supreme Court has pointed out in
101. While sending the report with regard to public prosecutors, the Law Commission of India in its 197th Report, summarized its recommendation in the following words, to quote:
Summary
Therefore, the Public Prosecutor has to be independent of the executive and all external influences, also independent of the police and the investigation process. He cannot advice the police in the matters relating to investigation. He is independent of Executive interference. He is independent from the Court but has duties to the Court. He is in charge of the trial, appeal and other processes in Court. He is, in fact, a limb of the judicial process, officer of Court and a minister of justice assisting the Court. He has duties not only to the State and to the public to bring criminals to justice according to the rule of law but also duties to the accused so that innocent persons are not convicted.
Therefore, any scheme of appointment Pps/Addl. Pps, as well as Asstt. Pps, must result in the creation of an independent body of prosecuting officers, free from the executive and all external influences, free from police and must be able to enforce the rule of law without fear or favour, advance public interest in punishing the guilty and protecting the innocent.
102. Not only the Law Commission of India but the Law Commission of U.P. has also shown its deep concern to the falling standard of prosecuting branch of State of U.P. The observation made by the Law commission of U.P., shows the mental pain and agony of a judge against arbitrary use of power by the State Government in appointing the District Government Counsels. The Law Commission of U.P. noted that how the Government under the garb of LR manual, works under the political compulsion to appoint the District Government Counsels for political consideration. It shall be appropriate to reproduce the relevant portion of 12th Report of Law Commission of U.P., submitted in December, 2001 as under:
............Reference may also be made to the series of Ordinances, each called the U.P. Government Litigation (Engagement of Counsel) Ordinance. The Ordinances which were promulgated between 10th January, 1991 and 18th May, 1992 were as follows, each succeeding Ordinance replacing the previous one:
These Ordinances related to appointment of counsel engaged to represent the State Government or any of its officers in any litigation before the Supreme Court, High Court or any other Court, Civil or Criminal. They all provided that the Government will be engaging counsel on professional basis. The engagement would be purely of trust and confidence and a person engaged will not be deemed to be holder of any civil post or office. The engagement shall ordinarily be for a term not exceeding three years but may be terminated at any time by one month''s notice on either side or on payment of an amount equal to the retainer fee for one month. The Government will be free to engage such number of counsel as it may consider necessary. The Ordinance will override any judgment, decree, writ or order of any Court or rules, notification or executive instruction passed or made before January 18, 1991. In other words the Legal Remembrancer''s Manual was to stand over-ridden, and the effect of the judgment of the Supreme Court in Shrilekha Vidyarthi''s case was to be indirectly nullified.
These successive Ordinances had to be issued because none of them could be replaced by an Act of Legislature within the time frame laid down in Article 213 of the Constitution. Ultimately the last of them also lapsed and could never be replaced by an Act due to intervention of the President''s rule in December, 1992.
Although these Ordinances were allowed to lapse their object was achieved by U.P. Act No. 18 of 1991, the Code of Criminal Procedure (U.P. Amendment) Act, by which section 24 was amended. Under these amendments the requirement, in sub-section (1), of consultation with the High Court for appointment of Government Advocates and Addl. Govt. Advocates in the High Court was dispensed with. Similarly sub-sections (4), (5) and (6) were deleted, with the result that neither the District Magistrate nor the Sessions Judge need be involved in the process of selection of District Govt. Counsel (Crl) and Addl. D.G.C. (Cr.). Thus Vidyarthi''s case stands effectively nullified, and the ruling in
According to a newspaper report dated 1. December, 2000 (vide Hindi daily Jagaran dated 2.12.2000) a public interest litigation filed in the High Court before a Bench consisting of Hon''ble Justices Raza and Nigam questions the justification for excessive appointments of State counsel. According to the petitioner the number of State counsel at present attached to the Lucknow Behch of the High Court is as follows:
It is further stated that the Advocate General was not consulted in making these appointments and the appointments were decided upon in a meeting comprising only the Principal Legal Remembrancer and the Chief Standing Counsel. Even sufficient place is not available for seating these State lawyers in the High Court. Nor do they have any adequate staff to assist them. The report further states that according to the counsel for Government it was purely discretionary with the State Government whether to consult the Advocate General in making these appointments or not and that the matter of appointment was wholly in the discretion of the Government and that the writ petition was not maintainable.
We are not concerned here with what the Hon''ble Court decides on this PIL Writ petition. What is noteworthy here is the plethora of lawyers appointed for the Lucknow Bench. The total comes to 109 lawyers for a Bench having only fifteen Court rooms.
Every time a new Ministry is formed there is pressures for change of Government lawyers. It is not only when the new Ministry belongs to a different political party. Often, even within the same Council of Ministers a change of portfolios leads to change of lawyers or appointment of extra lawyers.
These facts are only illustrative of the increasing politicisation of appointments of public prosecutors and other State counsel. For this state of affairs no single political party can be blamed. Actually, it is the continuing political instability which compels the Ministers to try to appease the maximum number of Legislators, necessitating distribution of favours in the shape of such appointments. (Another area of special interest to legislators is the transfers and postings of police officers and district magistrates, which is another cause for the deteriorating law and order situation). It is inevitable in such circumstances that quality and merit will be sacrificed, the Spoils System having full play. This factor also adds to insecurity of tenure.
Such being the ground realities, the situation can be remedied only by Central Legislation as any suggestion at the level of this Commission is bound to be rejected by the State Government. Even if there is no Central legislation then possibly the Supreme Court or the High Court may try to remedy the situation through PIL directives as was done in the case of appointments to the posts of Director, CBI and the Chief Vigilance Commissioner at the Centre. Accordingly this Commission is not making any recommendation in regard to the amendment of sections 24 and 25 and will prefer to leave the matter to the Government of India or to the judiciary for taking steps for suitably streamlining the public prosecutions system.
103. In view of the above, it is obvious that the impugned amendment has been done contrary to the original ground reasons and report of Laws Commission to incorporate the impugned provisions contained in Section 24 of Code of Criminal Procedure, 1973. The provisions contained in Section 24 was in conformity with the report of Law Commission to make prosecuting branch independent. While submitting 197th Report, the ham Commission, of India has taken note of earlier judgment of Hon''ble Supreme Court in
Law regarding appointment of Public Prosecutor will violate Article 14 if it permits arbitrary appointment without proper checks.
The provision in section 24 (4) that the District Magistrate must consult the Sessions Judge in the matter of preparation of a panel of lawyers for appointment as Public Prosecutors or Addl. Public Prosecutors is an essential check on arbitrary appointments. The Sessions Judge who has knowledge of the caliber, experience and character of lawyers practising in the Sessions Courts is well suited to suggest the best names of lawyers so that the interests of prosecution, the interests of the accused are fully taken care of. This being the logic behind the provision for consultation, any amendment by the States deleting the check on arbitrary appointments of Public Prosecutors, will be violative of Article 14 of the Constitution.
The fundamental point--which has to be remembered--is that any law made by the Centre or State Legislature in regard to appointment of Public Prosecutors must conform to the principles governing administration of criminal justice in which the Public Prosecutor has an independent and special role as stated in Chapter II. Inasmuch as the Public Prosecutor is a ''limb of the judicial process'' and ''an officer of Court'' as stated by the Supreme Court (see Chapter II), any method of appointment which sacrifices the quality of the prosecution or which enables State Governments to make appointments at their choice without proper screening, proper assessment of the qualifications, experience or integrity of the individuals, be they the Public Prosecutors selected from the Bar or appointed from among the Prosecuting Officers, will not stand the test of non-arbitrariness under Article 14 of the Constitution of India. The scheme must provide for appointing Public Prosecutors who shall bear all the qualities mentioned in Chapter II.
As pointed by the Supreme Court, Public Prosecutor''s functions are inside the Criminal Courts, Pps/Addl. Pps deal with the cases of highest importance in the Sessions Courts which try persons accused of murder and other serious offences. The Judiciary--namely the Sessions Court and the High Court--have a stake in the appointment of these officers. Inefficiency or lack of integrity on the part of the Public Prosecutors not only affects society but may also reflect sadly on the judicial system. That is why, in the matter of appointment of these officers from the Bar as well as appointments from the Cadre, there must be adequate safeguards precluding arbitrary appointments by the Executive. Any scheme which permits arbitrary appointments without checks will be in violation of Article 14 of the Constitution.
104. Law Commission of India further taken note of judgment of Hon''ble Supreme Court in
105. In view of above impugned amendment is contrary to the report of Law Commission submit to Government from time to time.
V-IMPORTANCE OF LAW COMMISSION
REPORT
106. Law Commission Reports have been vehemently relied upon by the learned counsel for the petitioners to support their contention that the State Amendment of 1991 is against the aims and object of the 1973 Act and the report of the Law Commission. It is further submitted that the Law Commission has also recommended to restore the earlier provision and make it compulsory to obtain the opinion of the District Judge for appointment on the post of District Government Counsel. Attention has also been invited to the report of the State Law Commission observing the State action to substitute Section 24 by Amending Act as arbitrary exercise of power. The question cropped up whether the Law Commission Reports may be relied upon while recording a finding with regard to the controversy in question.
107. Hon''ble Supreme Court in a case in
108. In
109. In a case in
110. In a case in
15....................Is it permissible to refer to the Law Commission''s Report to ascertain the legislative intent behind the provision? We are of the view that where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as in this case. What importance can be given to it will depend on the facts and circumstances of each case.
19...............Law Commission''s Reports may be referred to as external aid to construction of the provisions.........................................
111. In a case in
112. In a case in
12. However, it cannot be contended that pending such essential reforms, the overdue demands, of the judiciary can be overlooked. As early as in 1958, the Law Commission of India in its Fourteenth Report on the System of Judicial Administration in this country made certain recommendations to improve the system. The Commission lamented that "though we have been pouring money into a number of activities, the administration of justice has not seemed to be of enough importance to deserve more financial assistance. On the contrary, in a number of States not only had the administration of justice been starved so as to affect its efficiency, but it has also been made to yield revenue to the State." The report made recommendations in respect of various aspects of the service conditions of the judicial officers and also emphasised that there was no connection between the service conditions of the judiciary and those of the other services. The report further pointed out the salient features of the distinct work of the judges and emphasised the need among others, to increase the salaries and the superannuation age of the Judges as well as to improve the other facilities available to them including the provision for official residential accommodation.
13. These recommendations were made to improve the system of justice and thereby to improve the content and quality of justice administered by the Courts. The recommendations were made in the year 1958. Over the years the circumstances which impelled the said recommendations have undergone a metamorphosis. Instead of improving, they have deteriorated making it necessary to update and better them to meet the need of the present times.
14. Although the report made the recommendations in question to further the implementation of the Constitutional mandate to make proper justice available to the people, the mandate has been consistently ignored both by the executive and the legislature by neglecting to improve the service conditions. By giving the directions in question, this Court has only called upon the executive and the legislature to implement their imperative duties. The Courts do issue directions to the authorities to perform their obligatory duties whenever there is a failure on their part to discharge them. The power to issue such mandates in proper cases belongs to the Courts. As has been pointed out in the judgment under review, this Court was impelled to issue the said directions firstly because the executive and the legislature had failed in their obligations in that behalf. Secondly, the judiciary in this country is a unified institution judicially though not administratively. Hence uniform designations and hierarchy, with uniform service conditions are unavoidable necessary consequences. The further direction given, therefore, should not be looked upon as an encroachment on the powers of the executive and the legislature to determine the service conditions of the judiciary. They are directions to perform the along overdue obligatory duties.
15. The contention that the directions of this Court supplant and by-pass the constitutionally permissible modes for change in law, we thinks, wears thin if the true nature and character of the directions are realised. The directions are essentially for the evolvement of an appropriate national policy by the Government in regard to the judiciary''s condition. The directions issued are mere aids and incidental to and supplemental of the main direction and as a transitional measure till a comprehensive national policy is evolved. These directions, to the extent they go, are both reasonable and necessary.
113. The aforesaid proposition has been reiterated by Hon''ble Supreme Court in the case in Supreme Court Advocates on
114. In the case in
115. In a case in
116. In a case in
117. In
118. Thus, from the catena of judgments (supra), there appears to be no dispute that the Law Commission Reports are not only persuasive but we may take into account while interpreting statutory provisions or considering the validity of the Act or the amendment done therein and in appropriate case, in larger public interest, the Court may pass appropriate order or direction and may also declare a law as unconstitutional and invalid at the touch stone of Articles 14, 16 and 21 of the Constitution of India.
VI- OBJECT AND REASONS
119. U.P. Act No. 18 of 1991 by which the impugned amendment has been made deleting sub-sections (4), (5) and (6) of Section 24 of Code of Criminal Procedure as well as the consultation process with High Court given in sub-section (1), provides that the impugned amendment was done to avoid delay in appointment of Public Prosecutors and Additional Public Prosecutors and to select a person of choice, to reproduce relevant portion as under:
An Act further to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh.
It is hereby enacted in the Forty-second Year of the Republic of India as follows:
Prefatory Note--Statement of Objects and Reasons--With a view to avoiding delay in the appointment of Public Prosecutor and Additional Public Prosecutors in the High Court and in the Session Courts of various district in the State and enabling the State Government to appoint such Public Prosecutors of its choice, it was decided to amend Section 24 of the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to delete the necessity of consultation with the High Court for the appointment of Public Prosecutor in the High Court and preparation of panel of names by the District Magistrates for appointment of Public Prosecutors and Additional Public Prosecutors in the Districts.
2. It was also decided to amend Section 321 of the said Code to make it obligatory for the Public Prosecutor to obtain the written permission of the State Government before moving an application for withdrawal of a criminal case.
3. Since the State Legislature was not in session and immediate legislative action in the matter was necessary, the Code of Criminal Procedure (Uttar Pradesh Amendment) Ordinance, 1991 (U.P. Ordinance No. 18 of 1991), was promulgated by the Governor on February 16, 1991, after obtaining the instructions of the President.
4. This Bill is introduced to replace the aforesaid Ordinance.
120. To keep pace with time, higher judiciary of various democratic countries of the world, are evolving new principles to enforce constitutionalism and rule of law in their respective countries. One of the recent principle of law is not only the Constitution but law or statutory law is also organic body.
121. In the book "Statutory Interpretation" by Benian, it has been dealt with and held that in case legislators do not make amendment in the statutory provisions causing stagnation and making the law redundant and detrimental to public good, then Court has got ample powers to interpret the statute in such a way necessary to meet the requirement of time. The principle has been applied by the Division Bench of this Court (of which one of us Hon''ble Mr. Justice Devi Prasad Singh) was a member) in the case in
122. Now, according to newspaper report dated 24.11.2011 in Times of India, the political party in power, has legislators in substantial number, involved in serious crime like rape, dacoity etc., to quote relevant portion from news item published in Times of India dated 24.11.2011:
Maurya is the tenth BSP MLA to be slapped with charges of rape in the present regime. Twelve other BSP MLAs and ministers facing charges of land grabbing, murder, attempted murder and disproportionate assets.
123. Subject to hereinabove Prefatory Note containing the statement of Code and reason, Section 2 of amended sub-sections (4), (5) and (6), from sub-section (1) the consultation with High Court has been omitted alongwith sub-sections (4), (5), (6). From sub-section (7) word, "all sub-section (6)", has also been omitted.
124. Sri Manoj Goyal, learned Senior Counsel has vehemently argued that the aims and object of the amending Act is based on unfounded ground. Hence, consequential amendment done, suffers from void of arbitrariness and hit by Article 14 of the Constitution of India.
125. Question with regard to aims and object, and prefatory note appended with the amending Act, has been held to be relevant for the purpose of adjudicating the related controversy.
126. Privy Council in Emperor v. Benoari Lal, 1913 PC 36, held that the history of legislation and the facts which give rise to the enactment may usefully be employed to interpret the meaning of the statute, though they do not afford a conclusive argument.
127. In a case in
128. In
129. In
130. In
131. Same principle has been reiterated in
132. In
133. In
18. The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the Court as would advance the object and purpose underlying the Act and at any rate not defeat it............. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self-defeating. The Court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of 47 a provision, it would be the duty of the Court to adopt that construction which would advance the object underlying the Act, namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it.
134. In a case in
9. So we see that the primary and foremost task of a Court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word if necessary.
135. Hon''ble Supreme Court in a case in State v. Govindan Thampi Bhaskaran Thampi, AIR 1957 SC 29, observed that resort to the history of the legislation to construe the meaning of any provisions therein is more often taken exception to than not. At the same time it is common knowledge that when the words of a statute are ambiguous, attempts are not infrequently made to ascertain their true meaning by reference to the state of the law at the time the statute was passed, the mischief sought to be avoided and the stages through which the concerned legislation passed.
136. Allahabad High Court in a case
137. A Full Bench of Patna High Court in a case in 1993 CriLJ 3246 on a reference made by Ravinandan Sahai, Sessions Judge, Patna held that while interpreting the Prevention of Corruption Act, 1988, the legislative history of object and reasons though do not contain meaning of any expression used in the statute but can be used for interpreting the meaning of the statute.
138. As stated by the petitioner''s counsel, the question cropped up whether the impugned amendment is based on nonexistence, unreal and imaginary purpose and whether the power conferred on the State Government to make amendment under Article 246 of the constitution of India has been exercised in the present context, arbitrary for imaginary purpose?
139. Hon''ble Supreme Court in the case in
140. In the case in
141. In
142. In
143. In the case in
14. The Legislation in a modern State is actuated with some policy to curb some public evils or to effectuate some public benefit. The Legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But from the very nature of things, it is impossible to anticipate fully, the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite reference are bound to be in many cases, lacking in clarity and precision, and thus giving rise to the controversial question of construction. Bearing in mind the aforesaid general principles, let us now examine the five questions formulated earlier.
144. In
145. Keeping in view the aforementioned broader principle with regard to aims and object, in case the impugned amendment is referred weighing its constitutional validity, it seems to suffer from unconstitutionality.
146. In the case of Shyam Sunder (supra), their lordships of Hon''ble Supreme Court, has considered the importance of object and reasons and held that the object and reason appended to the Bill, may not be admissible to the aid of construing the provisions contained therein, but it can be used for ascertaining the conditions which prevail at the time which necessitated the making of law and the extent and urgency of the Bill which is sought to remedy, to quote:
52. The Statement of Objects and Reasons appended to the Bill is not admissible as an aid to the construction of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. The Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature. It may provide for the reasons which induced the legislature to enact the statute. "For, the purpose of deciphering the objects and purport of the Act, the Court can look to the Statement of Objects and Reasons thereof". (Vide:
53. In A. Manjula Bhashini and others (Supra), this Court held as under:
The proposition which can be culled out from the aforementioned judgments is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act.
54. Thus, in view of the above, the Statement of Objects and Reasons of any enactment spells out the core reason for which the enactment is brought and it can be looked into for appreciating the true intent of the legislature or to find out the object sought to be achieved by enactment of the particular Act or even for judging the reasonableness of the classifications made by such Act.
147. Thus, even in view of the recent judgment in the case of K. Shyam Sunder (supra), the object and reason of the Statutes are spelled out for the co-reason for which enactment is brought and it may be looked into to the intend of the Legislation or to find out the object sought to be achieved by enacting the particular act or even of judging reasonableness or classification made by said Act.
148. In the present case, nothing has been brought on record as to how the consultation of the District Judge causes delay and how the State is deprived to choose a counsel of its choice. Under the L.R. Manual or even under the unamended Code of Criminal Procedure, the State is the final authority to appoint a Government Counsel. It has right to reject the recommendation of the District Judge and District magistrate both, by assigning reason and choose its own person inviting fresh panel. Otherwise also, under sub-section (8) of Section 24 of Code of Criminal Procedure, it is always open to State to appoint Special Counsel of its choice and for that, no opinion is required either from the District Judge or from the High Court.
Thus, entire object and reason is based on unfounded facts having no nexus with the object sought to be achieved. Hence suffers from unreasonableness and hit by Article 14 of the Constitution of India.
149. So far as delay in making appointment is concerned, in case opinion of District Judge is sought, there appears to be no material on record to establish the fact that delay causes because of involvement of District Judge. The burden was on the State Government to substantiate with the requisite material to establish the aims and object of the amending Act as contained in prefatory note (supra). There is no pleading on record as to how and under what circumstances, summoning of opinion from the District Judge, shall cause delay. On the other hand, the State Government itself with regard to appointment of Assistant Public Prosecutors u/s 25 of the Act, framed Rules and appointments are done with the consultation of Public Service Commission. Substantially, almost on all the posts of Class-2 and above the State Government, and some of the posts under Class-III, are appointed in pursuance of recommendation of the Public Service Commission which take years in finalizing the matter.
150. The attention of Court has not been invited to any material that the District Judges kept the matter pending for inordinate period while sending their recommendations.
151. The Government has failed to discharge its obligation to establish that the consultation with the District Judge causes delay. Merely advancing the argument in the Court by the learned Senior Counsel representing the State, shall not suffice unless some instances are brought on record. Some inquiry should have been held collecting material with regard to delay caused because of the consultation with the District Judge but the same does not seem to be done. Hence the ground with regard to delay, contained in the aims and object, seems to be based on unfounded fact.
152. The other argument of the learned counsel for the State is with regard to choice to engage a counsel. Perhaps this argument is also based on unfounded facts. While amending the Act, the State has not taken note of the observations of Hon''ble Supreme Court in the case of Shrilekha Vidyarthi (supra) whereby, the case of Mundrika Prasad Sinha (supra), has been followed and reiterated. It was incumbent on the State Government while asserting the choice part, should have collected the material and pointed out how and under what circumstances the State has been deprived to engage the counsel of its choice. Under the LR Manual also, subject to regulatory process, State is the final authority to elect a person. In case State finds that name of incompetent person has been recommended by the District Magistrate or District Judge, or both of them, the State has option to choose a person on its own, by assigning reason.
153. In democratic polity, no one has got unfettered discretion while discharging duty. The State must work for public good, and the public good shall be subserve by engaging best talent from the Bar, as held in Shrilekha Vidyarthi (supra) and other cases.
154. Apart from the above, as is evident from Section 25A of CrPC and keeping in view the amendment done to make the prosecuting agency independent, it shall always be obligatory on the part of the State to make selection process more independent than enforcing the spoil system for the recruitment of District Government Counsels.
155. The letter and spirit of Section 25A reveals that Parliament to its wisdom provides that Directorate of Prosecution shall be established and appointment of Director of Prosecution shall be with the concurrence of Chief Justice. Thus, it is evident that the intention of Parliament is to make the prosecuting agency more independent than what we possess.
156. In Johri Mal''s case (supra) their lordships rightly held that age old tradition with regard to consultation with District Judge in the case of District Government Counsel and with the concurrence of Chief Justice in the case of appointment of Prosecuting Officer in the High Court, must continue and State should not do anything which may go contrary to the constitutional spirit.
157. No material has been placed by the State Government as to how the State has been deprived of engaging the counsel of his own choice.
158. It may be noted that not only in this Court but even in the Hon''ble Supreme Court, and trial Courts Special Counsels including senior counsels are engaged from time to time by the State of U.P. by investing millions of rupees. Even in the present case, Special Counsel has been engaged to argue the case. Accordingly, the second limb of argument with regard to aims and object, also seems to be without substance.
159. In view of the above, the impugned amendment seems to have no nexus with the object sought to be achieved. Only purpose which has born out from the rival argument is that the State Government wants unfettered discretion in the matter of appointment of District Government Counsel. How the unfettered discretion shall be sub-serving to constitutional goal, may be noticed from the Apex Court judgment in the case of
160. We have already dealt with the subject while deciding bunch of Writ Petition No. 7851 (M/B) of 2008, and connected petitions, vide judgment and order dated 6.1.2012, and calls for no repetition.
VII-WHETHER AMENDING ACT CAN
BE CONTRARY TO THE OBJECT OF
THE SCHEME OF THE PRINCIPAL
ACT?
161. While enacting the Code of Criminal Procedure, 1973, the Government of India has taken into account the Law Commission Reports and opinion of different sections of society and Governmental organisations with regard to Sections 24 and 25 of CrPC, opinion of bar as well as different pronouncements of Hon''ble Supreme Court. In case the impugned amendment is held to be valid, then at the face of record, it shall be against various reports including the Law Commission Reports and aims and objection of the Principal Act.
162. Hon''ble Supreme Court in the case in
163. In the case in
VIII-OMISSION AND ARBITRARINESS
164. A perusal of the aims and object further reveals that the Legislature of State while promulgating the impugned amending Act, State has not taken into account the observations made by Hon''ble Supreme Court in the case of Km. Shrilekha Vidyarthi (supra) where, their lordship of Hon''ble Supreme Court have held that consultation with the District Judge is necessary to make the prosecution body independent in discharging their obligations. We have already dealt with the importance of prosecuting officers in a democratic polity to enable them to discharge their obligation independently without being influenced by the Government or political parties. The L.R. Manual also envisages that the prosecutors should be independent while assisting the Court.
165. Hon''ble Supreme Court in the case of Venugopal (supra), has held (in para 31) as under:
31. It may not be out of place to mention that the SLP of the respondent indicates that the term of office of five years of the writ petitioner as Director was not really in dispute. In the Statement of Objects and Reasons of the Act introducing the impugned proviso, it is stated that the same is being introduced with a view to comply with the direction of the High Court in the judgment and order dated 29th of March, 2007. It, however, appears that the Division Bench of the Delhi High Court has determined the question of tenure of the writ petitioner to be five years and there are writs in the nature of Mandamus and Prohibition issued by the Delhi High Court directing the right of the writ petitioner indicated in the respective orders. As in Madan Mohan Pathak''s case (para 8), as quoted herein above, in the instant case also the Parliament does not seem to have been apprised about the pendency of the proceedings before the Delhi High Court and this Court and declaration made and directions issued by the Delhi High Court at different stages. In the impugned amendment, there is no non-obstante clause. The impugned amendment introducing the proviso, therefore, cannot be treated to be a validating Act.
166. In view of the above, since the State Legislation has not considered the judgment of Km. Shrilekha Vidyarthi (supra) and recorded their dissent, as to why they wish to overrule it by Legislation, the impugned amending Act seems to suffer from vice of arbitrariness that too, when the aims and object, is also held to be based on unfounded facts.
IX-SECTION 25A OF CrPC AND REPUGNANCY
167. Section 25A inserted by Act No. 25 of 2005, has been given effect from 23.6.2006. It provides that the State Government shall establish a Directorate of Prosecution consisting of a Director of Prosecution and Deputy Director of Prosecution. The Director of Prosecution shall be appointed with the concurrence of Chief Justice of High Court who shall have administrative control over the Directorate. The Deputy Director of Prosecution shall be subordinate to Director of Prosecution and every Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed u/s 24 shall be subordinate to Director of Prosecution. Thus, the Parliament had regulated the appointment of prosecuting branch making it almost independent and out of the purview of the Government. The concurrence of Chief Justice in filling of vacancy of Director of Prosecution is an effort to make prosecution independent.
168. Proviso of Clause (2) of Article 254 empowers the Parliament to legislate the law on a subject-matter already occupied by the State Government under List-III of Seventh Schedule. To the extent of repugnancy, the State Law shall be deemed to be modified, invalid or void.
169. Parliament has inserted Section 25A (supra) to make the Prosecution Branch more independent than earlier was. Under sub-section (8) of Section 24 of CrPC, power was conferred on the State Government to appoint special counsel that too, without obtaining opinion from the District Judge or even the District Magistrate. Meaning thereby, special counsel were under the direct command and control of the State Government with regard to employment and discharge of duty.
By inserting Section 25A, Parliament provided that even special counsel shall discharge their obligation under the Directorate of Prosecution. Though, the power of State Government to appoint special counsel has been maintained but he/she shall fall within the administrative control of Director of Prosecution. Thus, in case the special counsel is different class than the District Government Counsel appointed under sub-sections (4), (5) and (6) of Section 25 of Code of Criminal Procedure. Hence, so far as the supervisory or statutory control is concerned, by inserting Section 25A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straight away in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together.
170. In
171. A Constitution Bench of Hon''ble Supreme Court in the case in
35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
172. In
15. ..... The proviso to Article 254 (2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President''s assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ''same matter''. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254 (1).
173. The aforesaid proposition has been elaborately dealt with by their lordships in paras 17, 22, 25 and 26 of the judgment of T. Bari''s case (supra) and has been reiterated in the case in
12. ... What is stated above with reference to an existing law, is also the position with reference to a law made by the Parliament. Repugnancy is said to arise when: (i) there is clear and direct inconsistency between the Central and the State Act; (ii) such inconsistency is irreconcilable, or brings the State Act in direct collision with the Central Act or brings about a situation where obeying one would lead to disobeying the other. If the State Legislature, while making or amending a law relating to co-operative societies, makes a provision relating to labour disputes falling under the Concurrent List, then Article 254 will be attracted...
174. In view of the aforesaid settled proposition of law, in case the impugned amendment is considered simultaneously alongwith Section 25A of CrPC or given effect to, then there appears to be inconsistency which is irreconcilable. In case said amendment is given effect to, it would lead to disobeying the provisions of Section 25A. The letter and spirit of Section 25A is to make Prosecution Branch independent. That is why, the Parliament provided that Director of Prosecution, shall be appointed with concurrence of the Chief Justice of High Court and the Public Prosecutor appointed to the High Court, shall be subordinate to the Director of Prosecution whereas, the Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed under sub-section (3) or sub-section (8) or Section 24, shall conduct cases before the Court and every Special Public Prosecutor appointed u/s 25, shall work under the Deputy Director of Prosecution. There appears to be no dispute that the District Government Counsels are appointed in pursuance of the statutory provisions contained in sub-section (3) of Section 24 of CrPC. The Deputy Director of Prosecution has to work under the Director of Prosecution.
175. By lapse of time and after insertion of Section 25A of CrPC, the impugned amending Act seems to be repugnant to the letter and spirit of Section 25A of CrPC.
176. Renewal of petitioner working as Additional District Government Counsel (Criminal) Badaun, was rejected by the State Government by an order dated 22.3.2011 keeping in view the report of District Magistrate. Though there appears variation in the mater of performance but it appears that in the case of petitioner Sadhna Sharma, Additional District & Sessions Judge, Court No. 9, in whose Court the petitioner was discharging her duty had also given his opinion stating that the work and conduct of petitioner is not satisfactory, hence she should be removed.
177. Thus, in the case of petitioner, the opinion of both District Judge and District Magistrate seem to be not satisfactory. The Principal Secretary, Law while filing counter-affidavit stated that the question with regard to petitioner''s renewal was pending since 19.5.2003 and he resumed duty only on 1st June, 2010 but his predecessors has not informed him as to why no decision was taken at an early date. It has further been brought on record that the District Magistrate, Badaun by an order dated 20.5.2010 has issued warning to the petitioner for her negligence in duty and also warned not to pay salary of 10.5.2010. Though the respondents took plea that the Additional District & Sessions Judge, Court No. 9, Badaun had given report against the petitioner but from the certificate filed with the writ petition as Annexure 24, it reveals that the petitioner''s work and conduct has been recorded to be satisfactory by Additional District & Sessions Judge, Court No. 5. Through the certificate issued on 28.3.2008 and other certificate issued on 2.4.2011 by Additional District & Sessions Judge, Court No. 4 and one is 30.3.2011 by Special Judge (E.C.) Act, the pleading contained in paras 42, 43 and 44 of the writ petition has not been denied by Shri K.K. Sharma, Principal Secretary, Law while filing counter-affidavit.
178. The petitioner also pleaded that the respondents had declined to renew the services because of the fact that he has approached the criminal revision in which local MLA Yogendra Sagar was involved. Specific pleading contained in the writ petition to the effect that no opinion was obtained from the District Magistrate while rejecting the petitioner''s renewal has not been denied. In the absence of categorical denial with regard to malafide and factual controversy while filing counter-affidavit, the averments contained in the writ petition shall be deemed to be correct.
179. It is settled law that what cannot be done directly, it cannot be done indirectly vide
180. Much argument has been advanced by the learned Senior Counsel appearing for the State. The word, ''may'', used in Section 25A of Code of Criminal Procedure, is not mandatory. The argument advanced by the learned counsel, seems to be not correct. Section 25A was added by the Parliament within the presumption that entire Section 24 is in operation without taking into account the deletion made by the State Government.
181. Sub-section (8) of Section 24 confers power on State Government to appoint Special Counsel of its choice and for that, no opinion is required from the District Judge or the High Court. Thus, under L.R. Manual also, subject to assigning reason, State is final authority to appoint Government Counsel. Under sub-section (8) of Section 24, State has been given separate additional power to make appoint of a Government Counsel of its choice without seeking any opinion from the District Judge or the High Court. Thus, power conferred on the Government under sub-sections (4), (5) and (6) of Section 24 is different power constituting different cadre of Government Counsel than one appointed under sub-section (8) of Section 24.
182. What the Parliament has done by enacting Section 25A, the independent power conferred on the State Government to appoint Special Counsel, u/s 24 (8) of the CrPC has been diluted to some extent that now, though the Government may appoint Special Counsel but the counsel so appointed, shall discharge his/her obligation under the Directorate of Prosecution constituted u/s 25A of the Code of Criminal Procedure. The provisions seems to have been made to check abuse of power by the State Government while dealing with the cases pending in the subordinate Courts while prosecuting or defending the cases by the State through the counsel appointed by it.
183. In a recent judgment in
35. In
36. In M/s. Sharma Transport rep. by
37. In
184. Legislative arbitrariness seems to be established on the ground that the object and reason is based on unfounded facts. Different reports of Law Commission while promulgating the Code of Criminal Procedure, 1974 and judgment of Hon''ble Supreme Court on the point, have not been considered.
X-LEGISLATIVE ARBITRARINESS
185. Whether the impugned amendment is an instance of legislative arbitrariness, is a question which cropped up during the course of hearing. Whether, the Legislature of the State has deleted the impugned provisions from Section 24 arbitrarily without taking into account, the relevant material which is necessary for the purpose?
186. Black''s Law Dictionary, 9th Edn. By Bryan A. Garner, Editor-in-Chief, defines the word, ''arbitrary'' as under:
arbitrary, adj. (15c) 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious. Cf. CAPRICIOUS.
Volume 3B of "Words and Phrases" Permanent Edn., defines the word, ''arbitrary'', ''arbitrariness'' and ''arbitrary act'', has been defined as under:
Arbitrary
Ala. Crim. App. 1979 Term "arbitrary," as used in context of a Fourteenth Amendment challenge, means wilful and unreasoning action, without consideration and regard for facts and circumstances presented U.S.C.A. Const. Amend. 14--Hubbard v. State, 382, So. 2d 577, affirmed Ex parte Hubbard, 382 So. 2d 597, set aside 405 So. 2d 695, on remand 405 So. 2d 695, appeal after remand 500 So. 2d 1204, affirmed 500 So. 2d 1231, post-conviction relief denied 584 So. 2d 895, certiorari denied 112 S. Cr. 896, 502 U.S. 1041, 116 L. Ed. 2d 798, certiorari denied 107 S. Cr. 1591, 480 U.S. 940, 94 L. Ed. 2d 780 denial of habeas corpus affirmed 317 F. 3d 1245, rehearing and rehearing denied 62 Fed. Appx. 923, certiorari denied 124 S. Cr. 390, 540 U.S. 951--Const Law 251.3.
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Ga. 1908. The word "arbitrarily" means in an arbitrary manner, and "arbitrary," as defined by the Standard Dictionary, means, "Fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; non-rational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously, tyrannical; despotic."--Central of Georgia Rv. Co. v. Mote, 62 S. E. 164, 131 Ga. 166.
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Ky. 1948. Whatever is contrary to democratic ideals, customs and maxims, essentially unjust and unequal, or in excess of people''s reasonable and legitimate interest is "arbitrary" within constitutional provision that arbitrary power over freemen''s lives, liberty and property exists nowhere in a republic, not even in largest majority. Const. � 2.--Sanitation Dist No. 1 of Jefferson County v. City of Louisville, 213 S. W. 2d 995, 308 Ky. 368.--Const. Law 82 (1).
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Arbitrariness
Cal. App. 3 Dist. 1969. Action of state highway engineer in respect to disputed highway construction contract items is "arbitrary" when it is based on no more than will or desire of decision maker and is not supported by fair or substantial reason, and his decision is characterized by "arbitrariness" when it lacks substantial support in evidence.-- Clack v. State, Dept. of Public Works, Division of Highways, 80 Cal. Rptr. 274, 275 Cal. App. 2D 743.-- High 113 (4).
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Utah 1948. "Arbitrariness" is action or ruling not based on reasonable grounds and usually occurs without personal bias against a litigant or his cause, but arbitrariness surrounded by other circumstances may show bias disqualifying judge. Utah Code 1943, 20-6-1; Const. Article 8, � 13.--Haslam v. Morrison, 190 P. 2d 520, 113 Utah 14.--Judges 49 (1).
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Arbitrary act
Cal. App. 2 Dist. 1989. An "arbitrary act" is one done without any apparent reason therefor.--Verdugo Hills Hospital, Inc. v. Department of Health, 152 Cal. Rptr. 263, 88 Cal. App. 3D 957.--Const Law 2513.
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Cal. App. 2 Dist. 1947. An "arbitrary act" or decision is one that is arrived at through the exercise of will or by caprice, one supported by mere option or discretion and not by a fair or substantial reason.--Bedford Inv. Co. v. Foib, 180 P. 2d 361, 79 Cal. App. 2d 363.
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187. In view of the aforesaid definition, the impugned amendment seems to be irrational, capricious and is not done in consonance with the settled proposition of law, rules and procedure, or reasons rather than reasons and facts unfounded, hence shall be deemed to be arbitrary. Amendment has been done without adequate determining principle and at pleasure.
188. In Km. Shrilekha Vidyarthi (supra), Hon''ble Supreme Court while defining the word ''arbitrariness'', ruled that the meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness.
189. In the case in
25. It has been pleaded as noted above that withdrawal is without any rational or relevant consideration. In this context, it has to be noted that the operators in the State of Andhra Pradesh are required to pay the same tax as those registered in other states. Therefore, there cannot be any question of irrationality. The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone. In the present cases all persons who are similarly situated are similarly affected by the change. That being so, there is no question of any discrimination. That plea also fails.
190. Coming to present case, we have noted that the aims and object of the impugned amendment is based on unfounded facts. It is also against the original scheme, object and reason of Code of Criminal Procedure, 1974. The amendment has also been done in contravention of recommendation made by the different Law Commissions which were the basis of promulgating the new Code of Criminal Procedure, 1974. The observation made by Hon''ble Supreme Court in Km. Shrilekha Vidyarthi (supra), has also not been considered. There appears to be no nexus with the object sought to be achieved. Hence, impugned amendment suffers from voice of arbitrariness, and it is irrational and hit by Article 14 of the Constitution.
191. In the case of K. Shyam Sunder (supra), Hon''ble Supreme Court ruled that a statute may be declared unconstitutional, in case it violates fundamental rights enshrined in Part-III of the Constitution. In case it is declared unconstitutional, then it shall be still born and void, to quote relevant portion as under:
25. In
192. In the same judgment of K. Shyam Sunder (supra), Hon''ble Supreme Court further ruled that in case the amending Act is declared unconstitutional, then there may be revival of old Act, to quote relevant portion:
42. Thus, undoubtedly, submission made by learned senior counsel on behalf of the respondents that once the Act stands repealed and the amending Act is struck down by the Court being invalid and ultra vires/unconstitutional on the ground of legislative incompetence, the repealed Act will automatically revive is preponderous and needs no further consideration.
This very Bench in
43. There is another limb of this legal proposition, that is, where the Act is struck down by the Court being invalid, on the ground of arbitrariness in view of the provisions of Article 14 of the Constitution or being violative of fundamental rights enshrined in Part-III of the Constitution, such Act can be described as void ab-initio meaning thereby unconstitutional, still born or having no existence at all. In such a situation, the Act which stood repealed, stands revived automatically. (See: Behram Khurshid Pesikaka (Supra); and Mahendra Lal Jaini (Supra)
44. In
We declare the abovesaid provision of the amendment as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the Amendment Act.
(Emphasis added)
45. Thus, the law on the issues stands crystallised that in case the Amending Act is struck down by the Court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be unenforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise. This proposition of law is, however, not applicable so far as subordinate legislation is concerned.
193. In the present case, since we are of the view that the impugned amendment is hit by Article 14 and is unconstitutional, there shall be revival of old one which makes the consultation with District Judge, mandatory.
XI-FINDINGS
194. Subject to discussion and finding recorded hereinabove in the preceding paragraphs, the impugned amendment seems to be ultra vires and not sustainable and we sum up the finding as under:
(1) There is no strict separation of power under the Indian Constitution. Accordingly, the consultation of the district Judge, as ruled by Hon''ble Supreme Court (supra), seems to not suffer for want of jurisdiction or authority under the principle of "Separation of Power".
(2) The post of the District Government Counsel cannot be compared with the post of Advocate General/Attorney General and other constitutional posts. The post of the District Government Counsel is the statutory post and keeping in view the observations of Hon''ble Supreme Court in the case of Zahira Habibulla (supra), read with Section 25A of CrPC, the impugned amendment in case sustained, shall subversive to the Administration of justice.
(3) The special counsel is different class than the District Government Counsel appointed under sub-sections (4), (5) and (6) of Section 24 of Code of Criminal Procedure. Thus, so far as the supervisory or statutory control is concerned by inserting Section 25A, Parliament removed the difference between the counsel appointed on the recommendation of the District Judge and District Magistrate and a special counsel appointed by the Government straightway in a particular case. Accordingly, in case impugned amendment is sustained, then it shall be in derogation of letter and spirit of Section 25A of CrPC and shall be repugnant to Central Act in view of proviso to Clause (2) of Article 254 of the Constitution. Both cannot stand together.
(4) While amending the Act, the State Government has not taken into account the reports of different Law Commissions hence impugned amendment suffers from non-application of mind.
(5) Aims and objects are based on unfounded facts. Hence also, the impugned amendment is against the settled proposition of law and is an instance of arbitrary exercise of power, hence hit by Article 14 of the Constitution.
(6) The impugned amendment is contrary to the object and scheme of the Code of Criminal Procedure, 1973. Hence also, it suffers from vice of arbitrariness.
(7) The impugned amendment is hit by the proviso of Clause (2) of Article 254 of the Constitution of India and repugnant to Section 25A of CrPC. Both cannot stand together inasmuch as, following one, will make the other ineffective.
(8) The purpose of Section 25A of CrPC is to make prosecuting branch independent from the Government to optimum level. That is why even Special Counsel appointed under sub-section (8) of Section 24 has been placed under the Directorate of Prosecution.
(9) The impugned amendment is also not sustainable being enacted without taking into account the judgment of Hon''ble Supreme Court in the case of Km. Shrilekha Vidyarthi (supra) which was necessary in the light of the law laid down by Hon''ble Supreme Court in the case of
(10) Reliance placed by the Government on the report of an Additional District Sessions Judge ignoring the report of two other Additional District & Sessions Judges seems to be exceeding of jurisdiction. While rejecting the renewal, opinion should have been obtained from the District Judge, and no reliance could have been placed on report of Additional District & Sessions Judge who is incompetent under the L. R. Manual. Rejection of application of renewal suffers from vice of arbitrariness.
(11) Impugned Government order amending L. R. Manual suffers from vice of arbitrariness as held while deciding W.P. No. 7851 (M/B) of 2008 and connected petitions decided by the judgment and order dated 6.1.2012, requires no fresh adjudication.
(12) The entire object and reason of the amending Act is based on unfounded grounds having no nexus with the object sought to be achieved. Hence suffers from unreasonableness and is irrational hence hit by Article 14 of the Constitution of India.
XII-ORDER
In view of the above, the writ petitions are allowed as under:
(i) Code of Criminal Procedure (U.P. Amendment) Act, 1991 (Act No. 18 of 1991) (Section 2) is declared ultra vires, unconstitutional, void and illegal restoring the original provision with natural consequences to the extent it relates to amendment done in Section 24 of the Code of Criminal Procedure, 1973.
(ii) A writ in the nature of certiorari is issued quashing the order dated 22.3.2011 passed by the State Government communicated to the petitioner vide letter dated 28.3.2011 as well as order dated 30.3.2011, passed by the District Magistrate, Badaun contained in Annexure 1 and 2 to the W.P. No. 4097 (M/B) of 2011, with consequential benefits with liberty to proceed afresh with due consultation with the District Judge and District Magistrate.
(ii) A writ in the nature of mandamus is issued commanding the respondents to reconsider the petitioner''s case in the light of observations made in the body of judgment, expeditiously and in the meantime, the petitioner shall be permitted to discharge duty in accordance with Rules.
(iv) A writ in the nature of mandamus is issued commanding the State of U.P. to consider for amendment in the L.R. Manual keeping in view the finding recorded and observations made in the body of judgment expeditiously say, within three months.
(v) No orders as to costs.
