TMI Blog1988 (8) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... f the public at large. 2. It is stated in the writ petition that the petitioners not for their individual interests, but for the sake of the country at large have filed the present writ petition by way of a public interest litigation, stating that the respondents 1 and 2, being Union of India and the Secretary, Ministry of Home Affairs, and the respondents 3 and 4 being the Government of West Bengal and itsSecretary, Home Department, are taking steps contrary to and inconsistent with the spirit of the Constitution of India and/or the acts caused to have been done by the said respondents which would result in spreading communal ill-feeling and the word specially used in the proposed agreement, being 'Gorkha' should be avoided otherwise by conceding to such demand, the steps have been taken in the way of dividing the country and the entire interest of the State is in jeopardy. These facts have been elaborated by making various averments by giving examples of Jharkhand activities and other political activities within the State. It is also stated that by conceding to the demand of a section of people, who have no locus standi to enter into such agreement and/or accord, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India) as well as another decision . Lastly he has drawn the attention of this Court to the decision reported in AIR 1986 SC 18 (Sic) as to the test of the reasonableness of the act complained of. 6. Mr. Somnath Chatterjee, learned counsel appearing on behalf of the respondents Nos. 3 and 4 has submitted by producing a copy of the memorandum of settlement that the said memorandum of settlement is an instrument which should be implemented after an appropriate legislation and per se il has no legal effect and until and unless a legislation is brought in the appropriate forum there cannot be any implementation of the said accord in any manner whatsoever. He has devoloped his submission by submitting, inter alia, that the memorandum of settlement is an outcome of the exercise of the executive power which is the residuary power indeed and such a step was taken to bring peace and to avoid conflict and tension in the area in question. By entering into the said memorandum of settlement nothing has been conceded as to the interest of the State of West Bengal or the interest of the people of the State of West Bengal in any manner whatsoever, Besides the said memorandum of settlement wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be enquired into by the court and moreover, the steps taken by the responsible Government may be founded on information and apprehensions which are not known to and cannot always be made known to those who seek to impugn what has been done. One thing however has been made certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds the court would have jurisdiction to examine it because in that case there would be satisfaction of the President of India in regard to the matter in which he is required to be satisfied. 8. He has referred to another decision reported in AIR 1980 Delhi 114 (Dinesh Chandra Pande v. Chaudhury Charan Singh). It would appear from the said decision that political questions are unjusticiable by courts. The main reason is that legitimate use of political power is generally non-justiciable since it has political sanction which issufficient in view of the separation of powers between the executive, the legislature and the judiciary in the Constitution of India. But when it is alleged that political power has not been used in accrdance with the Constitution or the law, the courts have to examine if the issues are le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered in details in a case (Ram Jawaya Kapur v. State of Punjab). In that case Hon'ble Chief Justice Mukherea was pleased to find that the executive function comprised both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, maintenance of law and order, the promotion of socio-economic welfare, the direction of foreign policy and in fact, the carrying on and supervision of the general administration of the State. All these questions have been very elaborately considered and dealt with in the cases , , (Ram Kishore Sen v. Union of India) and . : This Court has further found out that the Memorandum of Settlement per se has got no legal entity. Mr. Somnath Chatterjee has very fairly submitted that there is nothing in the Memorandum of Settlement itself and there is no machinery to enforce the same in any forum by any of the parties who have signed the same. There must be proper legislation to that effect. Without an appropriate legislation, the settlement and/or accord, is nothing but an empty rhetoric. Before legislation it has per se no legal effect. It is true that peace is required but peace ..... X X X X Extracts X X X X X X X X Extracts X X X X
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