(Order of the Court was made by D.MURUGESAN,J) The petitioner is a practising Advocate. He has filed this writ petition in public interest, particularly in the interest of Judiciary. According to him, he came to understand that there were definite proposals for introducing Bills on the following. (vide Press Release issued by the respondents dated 09.06.2009, 27.06.2009, 24.08.2009 and 25.08.2009.)
(i) Fixation of Accountability of Judges
(ii)Judges to Disclose their Assets
(iii)Judges' Inquiry Bill The petitioner apprehends that appropriate legislations may be brought in by placing the Bills before the Parliament and in the event these Bills are passed into laws, it would amount to direct interference with the independence of the Judiciary. The petitioner has further stated that due to the separation of powers of the Legislature, Executive and Judiciary which are the three pedestals of Democracy, which is governed by Rule of Law enshrined in the Constitution, the attempt to table the Bills relating to the above issues would certainly amount to interference in the independent functioning of the judiciary. Hence, the petitioner made a representation on 27.06.2009 to all the respondents. In the representation, the petitioner, as a responsible citizen of this country and a legal professional, requested that the Government may forbear from attempting to bring about any sort of curbs under the guise of progressive legislations or reforms on the higher judiciary. According to the petitioner, the said representation was acknowledged by the respondents. Hence he is constrained to file the present petition.
2.The petitioner has further stated, at the time of hearing, that he was informed by the Communication of Cabinet Secretary, Ministry of Law and Justice, Government of India, dated 22.07.2009, that his representation has been forwarded to the Director (PG), Department of Justice, New Delhi, for suitable reply but, no reply was received. After filing of the writ petition, the petitioner sent a reminder on 07.09.2009 and according to him, till date no reply has been received from the respondents.
3.We have heard Mr.W.Peter Ramesh Kumar, learned counsel appearing for the petitioner. He has reiterated the averments made in the affidavit as well the averments made in the representation. The core contention of the petitioner is that under the guise of introduction of Bills on the above said issues, the independence of the judiciary is sought to be interfered with and in the long run it would be detrimental to the interest of the public, particularly the litigant public. Hence, according to him, the representation of the petitioner must be considered before any attempt is made to table the Bills before the Parliament.
4.We have carefully considered the said submission.
5.In the democratic structure enunciated in the Constitution, separation of powers is well recognised. There cannot be any two opinion that the independence of the Judiciary is one of the facets of the basic structure of the Constitution and it must be preserved.
6.In the above background, we should consider as to whether a writ as prayed for could be issued. The representation of the petitioner seeks the Government to forbear from attempting any sort of curbs under the guise of progressive legislation or reforms on the higher judiciary. Writ of mandamus is neither a writ of course nor a writ of right but, it will be granted if the duty is in the nature of public duty and specifically affecting the rights of an individual, provided also that there is no more appropriate remedy. That apart, the person or the authority against whom it is issued must be either under a statutory or legal duty to do some thing or not to do some thing and the duty is imperative in nature. Unless there is a corresponding duty to act on the representation, a writ cannot be issued.
7.Apart from the above, there is one more aspect. We, the people of India, have given ourselves to the well-built document, namely the Constitution of India. That Document assigns different roles to three wings of the governance, namely Legislature, Executive and Judiciary. By virtue of the above respective roles, the Legislature has to enact laws, the Executive has to enforce them and the Judiciary has to interpret those laws and issue commands for implementation of the same, in case of failure. Generally, each wing should operate within the strict demarcation of functions.
8.Undoubtedly, as to whether a particular law should be enacted or not is entirely the function of the Legislature and the Courts have no say on it, except to scrutinize the same in exercise of the power of judicial review only to find out as to whether those laws are within the framework of the Constitution of India. It has been well settled that writ of mandamus cannot be issued to the Legislature to enact or not to enact a particular legislation. For the said proposition, we may refer to the judgment of the Supreme Court in the State of Jammu and Kashmir vs. A.R.Zakki and others, reported in AIR 1992 SC 156. For a similar proposition, we may also refer to the judgment of the Apex Court reported in AIR 1971 SC 2399 - M/s.Narinder Chand v. U.t. Him. Pra., wherein the Apex Court has said that no Court can direct a subordinate legislative body to enact or not to enact a law which it was competent to enact.
9.In the given case, the representation which is sought to be considered and disposed of, in effect, seeks the Government not to enact laws in respect of the issues raised by the petitioner. Issue of mandamus, even for consideration of such representation, would, in our considered view, amount to indirectly directing the Government not to table any such Bill relating to the issues before the Parliament and would in turn amount to issuance of directions to the legislature not to enact laws.
10.The Bills which are now sought to be pre-empted by the petitioner are yet to be tabled before the Parliament and are yet to be debated. Tabling the Bills, debating on the same and passing the Bills are entirely within the realm of the Parliament and any direction even for consideration of representation made to the respondents to forbear from tabling the Bills would amount to interference with the wisdom and powers which are enjoined by the Parliament. In that view of the matter, we are not inclined to issue direction for consideration of the representation made by the petitioner, as it would be also too pre-mature.
11.Hence the writ petition deserves to be dismissed and accordingly the same is dismissed. No order as to costs. Connected M.P.(MD)No.1 of 2009 is also dismissed.
gb To:
1.The Cabinet Secretary, Union of India, Central Secretariat, New Delhi-1.
2.The Principal Secretary, to Her Excellency The President of India, The President's Secretariat, Rashtrpati Bhavan, New Delhi-1.
3.The Principal Secretary to the Hon'ble Prime Minister of India, The Prime Minister's Secretariat, New Delhi-1.
4.The Secretary General, The Lok Sabha, The Parliament House, New Delhi-1.
5.The Secretary General, Rajya Sabha, The Parliament House, New Delhi-1.
6.The Secretary, Department of Law and Justice, Law Department, Central Secretariat, New Delhi-1.