TMI Blog2017 (2) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... The doctrine of separation of powers entrusts to the court the constitutional function of deciding upon the validity of a law enacted by the legislature, where a challenge is brought before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law should be enacted. For the Court to mandate an amendment of a law as did the Himachal Pradesh High Court is a plain usurpation of a power entrusted to another arm of the state. There can be no manner of doubt that the High Court has transgressed the limitations imposed upon the power of judicial review under Article 226 by issuing the above directions to the state legislature to amend the law. The government owes a collective responsibility to the state legislature. The state legislature is comprised of elected representatives. The law enacting body is entrusted with the power to enact such legislation as it considers necessary to deal with the problems faced by society an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an agriculturist is not called into question to that extent. The lis between the respondent and the state has come to a conclusion with the following direction of the High Court :- Accordingly, impugned annexure P-9 dated 23.4.2014 is quashed and set aside. Respondents are directed to attest the mutation within a period of eight weeks from today by treating the petitioner to be an agriculturist . The state is, however, aggrieved by the mandamus which was issued by the Division Bench for amending the legislation, in the following terms :- However, before parting with the judgment, this Court deems it fit and proper to direct the State Government to make suitable amendments to Section 118 of the HP Tenancy and Land Reforms Act, 1972 read with HP Tenancy and Land Reforms Rules, 1975 in order to facilitate to purchase any land (agricultural and non-agricultural) in the State of Himachal Pradesh by the non-agriculturist Himachalis residing in the State for decades together prior to the date of commencement of the HP Tenancy and Land Reforms Act, 1972, within a period of ninety days from today . The appeal is confined to a challenge to the above direction to amend the legislation. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge is brought before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law should be enacted. Whether a provision of law as enacted subserves the object of the law or should be amended is a matter of legislative policy. The court cannot direct the legislature either to enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of the legislature. For the Court to mandate an amendment of a law as did the Himachal Pradesh High Court is a plain usurpation of a power entrusted to another arm of the state. There can be no manner of doubt that the High Court has transgressed the limitations imposed upon the power of judicial review under Article 226 by issuing the above directions to the state legislature to amend the law. The government owes a collective responsibility to the state legislature. The state legislature is comprised of ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f subordinate legislation. Section 110 of the J K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointment of persons other than the District Judges to the Judicial Service of the State of J K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court. In V.K. Naswa v. Union of India [(2012) 2 SCC 542] , this Court referred to a large number of decisions and held that : 18. Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner. A discordant note had been struck by a Bench of two judges in Gainda Ram v. MCD [(2010) 10 SCC 715] . A direction was issued to the legislature to amend legislation before a particular date. The Constitution Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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