TMI Blog2007 (8) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... he law in a particular manner are clearly unsustainable. Appeals preferred by the State as well as Municipal Committee, Patiala should be allowed. - C.A. 684 OF 2003 - - - Dated:- 1-8-2007 - B. Sudershan Reddy, J. JUDGMENT While I entirely agree with my esteemed brother Kapadia, J. in the judgment proposed to be delivered by him, I wish to add particularly to supplement what he has said to the topic of separation of powers. My excuse for inflicting this epilogue is for obvious reasons. The Constitution is filled with provisions that grant Parliament or to State legislatures specific power to legislate in certain areas. These granted powers are of course subject to constitutional limitations that they may not be exercised in a way that violates other specific provisions of the Constitution. Nothing in the text, history or structure of the Constitution remotely suggest the High Courts jurisdiction under Article 226 of the Constitution should differ in this respect that invocation of such power should magically give High Court a free ride through the rest of Constitutional document. If such magic were available the High Court could structure, restructure legislative enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of non-application of mind or malafides or that the prevailing circumstances did not warrant the issue of an Ordinance held that validity of an Ordinance cannot be decided on grounds similar to those on which an executive or judicial action is decided. It is observed : "Any law made by the Legislature, which it is not competent to pass, which is violated of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the Legislature concerned, dependant upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus depriving them of the rights and benefits conferred upon them, the court certainly can and must intervene and compel the executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realize their social and economic rights. When the court passes any orders in public interest litigation, the court does so not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the constitution and the law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the Constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large members of half-clad, half hungry people of this country. That is a feeling which should never be allowed to grow. But at the same time the court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere of the difference. It is not easy to stand aloof and allow want to wisdom to prevail to disregard once own strongly held view of what is wise in the conduct of affairs. But it is not the business of this court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the courts giving effect to its own notion of what is wise of politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do." 19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self imposed limits. The court sits in judgment of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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