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CASE NO.: Appeal (civil)  2740 of 2007

PETITIONER: State of U.P. & Ors.

RESPONDENT: Jeet S. Bisht & Anr.

DATE OF JUDGMENT: 18/05/2007

BENCH: Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of Special Leave Petition (Civil) No.6928 of 1999)

MARKANDEY KATJU, J.

1.      Leave granted. 2.      This appeal furnishes a typical instance of a widespread malady  which has infected the judicial system in India, namely, the tendency in  some courts of not exercising judicial restraint and crossing their limits  by encroaching into the legislative or executive domain, contrary to the  broad separation of powers envisaged under our Constitution.     3.      Heard learned counsel for the parties as well as Shri Amarendra  Sharan, learned Additional Solicitor General and Shri M.N.  Krishnamani, Sr. Advocate.

4.      This appeal arises out of  a writ petition filed in the Allahabad  High Court in which the grievance of the writ petitioner was of  charging excessive electricity bills by the U.P. State Electricity Board.   In para 19 of the writ petition it was also mentioned that the petitioner  had, before filing the writ petition, approached the District Consumer  Forum, Chamoli but the same was not decided because the term of two  members of the District Consumer Forum had expired and till the filing  of the petition new members were not appointed and hence the District  Consumer Forum, Chamoli was not working.

5.      In the counter affidavit to the writ petition it was stated by the  Special Secretary, Department of Food and Civil Supplies, U.P.  Government, that appropriate steps were being taken to fill up the  vacancies of the District Consumer Forum, Chamoli vide paragraphs 4  to 12 of the counter affidavit.  In the said counter affidavit mention was  also made about the grants given by the State Government for the State  Consumer Forum and also mentioned the statistics about the number of  cases filed and disposed off.   

6.      By the impugned judgment dated 8.1.1998 the High Court apart  from making observations on the merits of the controversy issued the  following directions :

"We direct the State Government to constitute  at least five State Consumer Forums at State level as  used under Section 16 of Consumer Protection Act  by making necessary amendment. The State  Government can also make law by making local  amendment with the prior consent of the President of  India under Article 254 of Constitution of India if it  falls under concurrent list and the Benches can be  constituted at "Commissionery level" at the  beginning with at five places on the pattern of

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Benches constituted under Administrative Tribunal  Act.  We further direct that the Presiding Officer of a  Bench will be a retired High Court Judge who would  enjoy the same facilities and amenities as enjoyed by  a sitting High Court Judge as in Vice Chairman of  Administrative Tribunal.  At present the President of  State Commission is not enjoying the facilities of a  Judge of High Court.

We are also of the view that the infrastructure  facilities of proper building and recruitment powers  of staff be given to the Presiding Officer of State  Commission or Vice President and be given proper  budgetary power to regulate the budget within the  allocated sufficient budget so that he has not to run to  the administrative department off and on.

We make it clear that in case if it does not fall  within the jurisdiction of State Government to issue  ordinance by local amendment or enact law then the  State Government is to approach immediately in view  of the above discussion to the Central Government  for making necessary infrastructure facilities  regarding constitution of Benches and proper staff,  building etc. so that the functioning starts within four  months to mitigate the suffering of the consumers."   

7.      Against the aforesaid judgment of the High Court the State of  U.P. and others filed this appeal before us in which a ground inter alia  taken was that the aforesaid directions issued by the High Court were  contrary to the provisions of the Consumer Protection Act.  It was also  urged that the court cannot issue a direction that the law be amended.  It  was further contended that the various directions of the High Court  related to policy matters in which the judiciary cannot interfere.   

8.      When the appeal was taken up for hearing on the earlier  occasions this Court passed interim orders expressing its anguish that  the very purpose of the Consumer Protection Act was frustrated and the  Act was becoming non functional due to the indifference of the State  Government in filling up vacancies at the State and District Levels and  providing in sufficient funds for salaries of members and  the staff, and  for the infrastructure without which the State and District Consumer  Fora cannot operate.  By the order dated 8.1.2001 this Court requested  the Solicitor General of India to assist the Court and seek instructions.   Thereafter, on 16.4.2001 the learned Solicitor General submitted that  he had discussed the matter with the Chairman of the National  Consumer Forum with a view to find out the difficulties being faced by  the various Fora created at the National level, State level and District  level so that effective steps can be taken to make these Fora functional  and the object of the Act achieved.

9.      Thereafter by an interim order dated 26.11.2001 this Court  observed:

"After hearing learned counsel for the parties we  direct the Union of India to file, within two weeks  from today, a comprehensive scheme with regard to  the structuring of Consumer Forums at all the three  levels.  The emphasis has to be with regard to service  conditions, not only of the members of the District,  State and the National Consumer Forums but also  with regard to the staff in each of the said Forums.  In  formulating the scheme, the report of the Bagla  Commission may be taken into consideration.         

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On the scheme being filed in Court, notices will  then be issue to all the State Governments for their  comments.  The effort has to be to see that these  Consumer Forums become effective institutions  where the consumers can give vent to their  grievances rather then their going to the courts of  law. List for further orders on 11th December,  2001."

10.     Thereafter it appears that a series of interim orders have been  passed by this Court (including issuance of notices to all State  Governments) relating to various matters concerning the Consumer  Fora at the National, State and District level.  It appears that the scope  of the writ petition in the appeal before us has been expanded so as to  cover not only the State and District Consumer Fora in U.P., but also of  those all over India.  Thus the initial controversy relating to the District  Forum, Chamoli was expanded by the Allahabad High Court to the  State level, and further expanded by this Court to the National level.

11.     It was contended before us by Shri Amarendra Sharan,  Additional Solicitor General of India that this Court should fix the  salaries and allowances of members of the State Consumer Dispute  Redressal Commission in all States of India as well as the salaries and  allowances of the District Fora all over India.

12.     We pointed out to learned Additional Solicitor General that this  cannot be validly done as it would be contrary to the provisions of the  Act.  Thus, Section 10(3) of the Consumer Protection Act states : "The salary or honorarium and other allowance  payable to, and the other terms and conditions of  service of the members of the District Forum shall be  such as may be prescribed by the State Government."    

Similarly, Section 16(2) of the Act states:    "The salary or honorarium and other allowances  payable to, and the other terms and conditions of  service (including tenure of office) of, the members  of the State Commission shall be such as may be  prescribed by the State Government."    

13.     We pointed out to the learned Additional Solicitor General of  India that the salaries and allowances of the members of the State  Commissions as well as the District Consumer Fora can only be  prescribed by the State Government and not by this Court.  When  Parliament in its wisdom has nominated a particular authority (in this  case the State Government) to fix the salaries and allowances of the  members of the State and District Fora, this Court cannot override the  clear language of the statute and substitute the words "the Supreme  Court" for the words "the State Government" under section 10(3) and  section 16(2).  It is a well settled principle of interpretation that the  Court cannot add or substitute words in a statute.

14.     No doubt the Court can make a recommendation to the State  Governments that the salaries and allowances of the members of the  State and District Fora are inadequate and should be increased, but that  is about as far as the Court can go.  It can only make  recommendations  but it cannot give binding directions in this connection.  By a judicial  verdict the court cannot amend the law made by Parliament or the State  Legislature.

15.     Learned Additional Solicitor General submitted that such a  direction can be given, and for this proposition he relied on the decision

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of  this Court in All India Judges’ Association & Ors.  Vs.  Union of  India & Ors. 1993(4) SCC 288.  

16.     We have carefully gone through the above decision.  We fully  agree with the observations in this judgment that Judges should get  adequate salaries and allowances to enable them to function impartially  and with a free mind, but we do not agree that that decision has laid  down any principle of law that the salaries, allowances and other  conditions of Judges should be fixed by the judiciary.

17.     The salaries, allowances and other conditions of service of Judges  are either fixed by the Constitution (e.g. the age of superannuation and  salaries of Supreme Court and High Court Judges) or by the legislature  or the executive.  In fact this is the position all over the world.

18.     No doubt in the aforesaid decision various direction have been  given by this Court but in our opinion that was done without any  discussion as to whether such directions can validly be given by the  Court at all.  The decision therefore passed sub silentio .  The meaning  of a judgment sub silentio has been explained by this Court in  Municipal Corporation of Delhi Vs. Gurnam Kaur (1989) 1 SCC  101 (vide paras 11 and 12) as follows :- "A decision passes sub silentio, in the technical sense  that has come to be attached to that phrase, when the  particular point of law involved in the decision is not  perceived by the court or present to its mind.  The  court may consciously decide in favour of one party  because of point A, which it considers and  pronounces upon.  It may be shown, however, that  logically the court should not have decided in favour  of the particular party unless it also decided point B  in his favour; but point B was not argued or  considered by the court.   In such circumstances,  although point B was logically involved in the facts  and although the case had a specific outcome, the  decision is not an authority on point B.  Point B is  said to pass sub silentio.

       In General v. Worth of Paris Ltd. (k) (1936) 2  All ER 905 (CA), the only point argued was on the  question of priority of the claimant’s debt, and, on  this argument being heard, the court granted the  order.  No consideration was given to the question  whether a garnishee order could properly be made on  an account standing in the name of the liquidator.   When, therefore, this very point was argued in a  subsequent case before the Court of Appeal in  Lancaster Motor Co. (London) Ltd. v. Bremith Ltd.  (1941) 1 KB 675, the court held itself not bound by  its previous decision.  Sir Wilfrid Greene, M.R., said  that he could not help thinking that the point now  raised had been deliberately passed sub silentio by  counsel in order that the point of substance might be  decided.  He went on to say that the point had to be  decided by the earlier court before it could make the  order which it did; nevertheless, since it was decided  "without argument, without reference to the crucial  words of the rule, and without any citation of  authority", it was not binding and would not be  followed.  Precedents sub silentio and without  argument are of no moment.  This rule has ever since  been followed."

19.     The principle of sub silentio has been thereafter followed by this  Court in State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. &

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Anr. (1991) 4 SCC 139, Arnit Das Vs. State of Bihar (2000) 5 SCC  488,  A-One Granites Vs. State of U.P. & Ors. (2001) 3 SCC 537,  Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. (2003)  7 SCC 197 and State of Punjab & Anr. Vs. Devans Modern  Breweries Ltd. & Anr. (2004) 11 SCC 26.    

20.     The direction to increase the age of superannuation is really the  function of the legislature or executive. It has been held in several  decisions of this Court that the Court cannot fix the age of  superannuation e.g. T.P. George Vs. State of Kerala, 1992 Supp. (3)  SCC 191 (vide para 6).

21.     It is well settled that a mere direction of the Supreme Court  without laying down any principle of law is not a precedent.  It is only  where the Supreme Court lays down a principle of law that it will  amount to a precedent.   

22.     In Municipal Committee, Amritsar vs. Hazara Singh, AIR  1975 SC 1087, the Supreme Court observed that only a statement of  law in a decision is binding.  In State of Punjab vs. Baldev Singh,  1999 (6) SCC 172, this Court observed that everything in a decision is  not a precedent.  In Delhi Administration vs. Manoharlal, AIR 2002  SC 3088, the Supreme Court observed that a mere direction without  laying down any principle of law is not a precedent.  In Divisional  Controller, KSRTC vs. Mahadeva Shetty 2003 (7) SCC 197, this  Court observed as follows:  

"\005..The decision ordinarily is a decision on the case before  the Court, while the principle underlying the decision  would be binding as a precedent in a case which comes up  for decision subsequently.  The scope and authority of a  precedent should never be expanded unnecessarily beyond  the needs of a given situation.  The only thing binding as an  authority upon a subsequent Judge is the principle, upon  which the case was decided\005\005"    

23.     In Jammu & Kashmir Public Service Commission vs. Dr.  Narinder Mohan AIR 1994 SC 1808, this Court held that the  directions issued by the court from time to time for regularization of ad  hoc appointments are not a ratio of this decision, rather the aforesaid  directions were to be treated under Article 142 of the Constitution of  India.  This Court ultimately held that the High Court was not right in  placing reliance on the judgment as a ratio to give the direction to the  Public Service Commission to consider the cases of the respondents for  regularization.  In that decision this Court observed:  

"11. This Court in Dr. A.K. Jain vs. Union of India  1988 (1) SCR 335, gave directions under Article 142  to regularize the services of the ad hoc doctors  appointed on or before October 1, 1984.  It is a  direction under Article 142 on the particular facts and  circumstances therein.  Therefore, the High Court is  not right in placing reliance on the judgment as a  ratio to give the direction to the PSC to consider the  cases of the respondents.  Article 142 power is  confided only to this Court.  The ratio in Dr. P.C.C  Rawani vs. Union of India 1992 (1) SCC 331, is also  not an authority under Article 141.

24.     In the present case there are clear statutory provisions in Sections  10(3) and 16(2) of the Consumer Protection Act which prescribe that it  is the State Government which alone can fix the salaries and  allowances and conditions of service of the members of the State and  District Consumer Fora.  How then can the court fix them?  

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25.     If this Court itself fixes such salaries and allowances, it will be  really amending the law, and it is well settled that the Court cannot  amend the law vide Union of India  Vs.  Association for Democratic  Reforms & Anr.  AIR 2002 SC 2112 and  Supreme Court  Employees Welfare Association  Vs.  Union of India & Ors.  AIR  1990 SC 334.

26.     This Court cannot direct legislation vide Union of India  Vs.   Prakash P. Hinduja AIR 2003 SC 2612 (vide para 29) and it cannot  legislate vide Sanjay Kumar  vs.  State of U.P. 2004 ALJ 239, JT  2006(2) SC 361, Suresh Seth  vs.  Indore Municipal Corporation  AIR 2006 SC 767 (vide para 5) and Union of India & Anr.  vs.   Deoki Nandan Aggarwal AIR 1992 SC 96.              

27.     The Court should not encroach into the sphere of the other organs  of the State vide N.K. Prasada  vs.  Government of India & Ors. JT  2004 Supp.(1) SC 326 (vide paras 27 and 28).

28.     Thus in Supreme Court Employees Welfare Association  Vs.   Union of India & Ors.  AIR 1990 SC 334 (vide para 55) this Court  observed :    \005\005\005. "There can be no doubt that an  authority exercising legislative function cannot be  directed to do a particular act.  Similarly the  President of India cannot be directed by the Court to  grant approval to the proposals made by the Registrar  General of the Supreme Court, presumably on the  direction of the Chief Justice of India."\005\005\005                   29.     In Union of India  Vs.  Association for Democratic Reforms &  Anr.  AIR 2002 SC 2112 (vide para 21) this Court observed :         "At the outset, we would say that it is not  possible for this Court to give any directions for  amending the Act or the statutory rules.  It is for  Parliament to amend the Act and Rules.  It is also  established law that no direction can be given, which  would be contrary to the Act and the Rules."     

30.     If we issue the direction as prayed for by learned Additional  Solicitor General in this case, we would be issuing a direction which  would be wholly illegal being contrary to Section 10(3) and Section  16(2) of the Consumer Protection Act.  This Court is subordinate to the  law and not above the law.

31.     When it is said "Be you howsoever so high, the law is above  you" this dictum applies even to the Supreme Court, since the law is  above the Supreme Court and the Supreme Court is not above the law.   The Judges of the Supreme Court and High Court should have the  modesty and humility to realize this.

32.     In Union of India  Vs.  Prakash P. Hinduja AIR 2003 SC 2612  (vide para 29) this Court observed : "Under our constitutional scheme the  Parliament exercises sovereign power to enact laws  and no outside power or authority can issue a  direction to enact a particular piece of legislation.  In  Supreme Court Employees’ Welfare Association  v.   Union of India  (1989) 4 SCC 187 (para 51) it has  been held that no Court can direct a legislature to  enact a particular law.  Similarly, when an executive  authority exercises a legislative power by way of  subordinate legislation pursuant to the delegated

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authority of a legislature, such executive authority  cannot be asked to enact a law which he has been  empowered to do under the delegated legislative  authority.  This view has been reiterated in State of  J&K  v.  AR Zakki and others, AIR 1992 SC  1546."\005\005\005\005  

33.     In Union of India & Anr.  Vs.  Deoki Nandan Aggarwal AIR  1992 SC 96 (vide para 14) this Court observed :               "It is not the duty of the Court either to enlarge the  scope of the legislation or the intention of the  legislature when the language of the provision is  plain and unambiguous.  The Court cannot rewrite,  recast or reframe the legislation for the very good  reason that it has no power to legislate.  The power to  legislate has not been conferred on the courts.  The  Court cannot add words to a statute or read words  into it which are not there.  Assuming there is a  defect or an omission in the words used by the  legislature the Court could not go to its aid to correct  or make up the deficiency.  Courts should decide  what the law is and not what it should be. The Court  of course adopts a construction which will carry out  the obvious intention of the legislature, but it could  not legislate itself.  To invoke judicial activism to set  at naught the legislative will is subversive  of the  constitutional harmony and comity of  instrumentalities vide P.K. Unni v. Nirmala  Industries, (1990) 1 SCR 482 at p.488: (AIR 1990  SCC 933 at p.936), Mangilal v. Sugamchand Rathi  (1965) 5 SCR 239: (AIR 1965 SC 101), Sri Ram  Ram Narain Medhi v. The State of Bombay 1959  Supp. (1) SCR 489: (AIR 1959 SC 459), Smt. Hira  Devi v. District Board, Shahjahanpur 1952 SCR 1122  at p. 1131: (AIR 1952 SC 362 at p.365), Nalinakhya  Bysack v. Shyam Sunder Haldar (1953 SCR 533 at  p.545): (AIR 1953 SC 148 at p.152), Gujarat Steel  Tubes Ltd. V. Gujarat Steel Mazdoor Sabha (1980) 2  SCR 146: (AIR 1980 SC 1896), S. Narayanaswami v.  G. Punnerselvam (1973) 1 SCR 172 at p.182: (AIR  1972 SC 2284 at p.2289), N.S. Vardachari v. G.  Vasantha Pai (1973) 1 SCR 886): (AIR 1973 SC 38),  Union of India v. Sankal Chand Himatlal Sheth  (1978) 1 SCR 423: (AIR 1977 SC 2328) and Commr.  of Sales Tax, U.P. v. Auriaya Chamber of  Commerce, Allahabad (1986) 2 SCR 430 at p.438:  (AIR 1986 SC 1556 at pp.1559-60).  Modifying and  altering the scheme and applying it to others who are  not otherwise entitled to under the scheme will not  also come under the principle of affirmative action  adopted by courts sometimes in order to avoid  discrimination.  If we may say so, what the High  Court has done in this case is a clear and naked  usurpation of legislative power."  

34.     Thus the above decision clearly lays down that in the garb of  affirmative action or judicial activism this Court cannot amend the law  as that would be a naked usurpation of legislative power.  This Court  must exercise judicial restraint in this connection.

35.     We regret to say that the directions of the High Court (which  have been quoted in this judgment) are really an encroachment into the  legislative and executive domain.  Whether there should be one State  Consumer Forum or five or more State Consumer Fora is entirely for

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the legislature and executive to decide.  The High Court has directed  that the State Government should constitute at least five State  Consumer Forums at the State level by making necessary amendments  in the Act.  In our opinion such a direction was clearly illegal.  The  Court (including this Court) cannot direct amendment of an Act made  by the legislature.  The establishment of the District, State and National  level Consumer Fora is done under Section 9 of the Consumer  Protection Act by the authorities mentioned in that Act.  The  composition of these Fora is also prescribed in that section, and so are  the salaries and allowances and other conditions of service of the  members.  It is only the authorities mentioned in the Act who can do  the needful in this connection, and this Court cannot arrogate to itself   the powers given by the Act to the said authorities.

36.     For instance, the salaries and allowances of member of the State  and District Fora can only be prescribed by the State Government.  We  have been informed that in some States these salaries and allowances  are very low.  Be that as it may, this Court cannot arrogate to itself the  powers and functions of State Government in this connection.   Different State Governments have different constraints and  considerations e.g. financial constraints, the number of cases, etc. and it  is entirely for the State Governments to exercise the powers prescribed  to them by the Act.  Similarly it is entirely for the Central Government  to perform the functions given to it by the Act, and this Court cannot  interfere with the Central or State Government in the exercise of their  functions.  At best this Court or the High Court can make  recommendations for increase of salaries, allowances and betterment of  working conditions, etc.  but there its jurisdiction ends.  It cannot give  binding directions in this connection.

37.     We regret to say that even the interim order of this Court dated  26.11.2000 by which it directed the Union of India to file a  comprehensive scheme with regard to the structuring of the Consumer  Forums at all the three levels does not seem to be within its jurisdiction  as it is contrary to the clear provisions of the Consumer Protection Act.

38.     It has been nowhere provided in the Consumer Protection Act  that the Central Government has a duty, or power, to prepare a  comprehensive scheme with regard to the structure of Consumer Fora  at all the three levels.

39.     No doubt the High Court, as well as this Court, are concerned  that the Consumer Fora in many parts of the country are not  functioning properly, but the Court could at most have given some  recommendations to the Central and State Government in this  connection, and it is entirely upto the Central and State Governments  whether to accept those recommendations or not, at their discretion.   This Court cannot amend the Consumer Protection Act by issuing  directions contrary to the clear provisions of the Act nor can the High  Court do so.

40.     The High Court apart from directing that there should be five  Consumer Fora in U.P. has also directed that the Presiding Officer of a  Bench will be a retired High Court Judge who would enjoy the same  facilities and amenities as enjoyed by a sitting High Court Judge.  This  again is contrary to the provisions of the Act.  Section 16(2) of the Act  (which we have quoted above) clearly states that the salaries,  allowances and conditions of service of the members of the State  Commission shall be such as may be prescribed by the State  Government.  Hence it was not open to the High Court to practically  amend Section 16(2) by its judicial verdict and prescribe the salaries or  conditions of service of the members of the State Commission.  Such  salaries or conditions of service can only be prescribed by the State  Government and not by the High Court as is clear from Section 16(2).

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41.     We are constrained to make these strong observations because in  recent years it has been noticed that the judiciary has not been  exercising self restraint and has been very frequently encroaching into  the legislative or executive domain.  We should do introspection and  self criticism in this connection.   

42.     It is true that there is no rigid separation of powers under our  Constitution but there is broad separation of powers, and it not proper  for one organ of the State to encroach into the domain of others.

43.     In this connection, this Court in Asif Hameed & Ors.  Vs.  State  of Jammu and Kashmir & Ors.  AIR 1989 SC 1899 observed (vide  para 17 to 19) :       "Before adverting to the controversy directly  involved in these appeals we may have a fresh look  on the inter se functioning of the three organs of  democracy under our Constitution.  Although the  doctrine of separation of powers has not been  recognized under the Constitution in its absolute  rigidity but the constitution makers have  meticulously defined the functions of various organs  of the State.  The Legislature, executive and judiciary  have to function within their own spheres demarcated  under the Constitution.  No organ can usurp the  functions assigned to another.  The Constitution  trusts to the judgment of these organs to function and  exercise their discretion by strictly following the  procedure prescribed therein.  The functioning of  democracy depends upon the strength and  independence of each of its organs.  The Legislature  and executive, the two facets of the people’s will,   have all the powers including that of finance. The  Judiciary has no power over the sword or the purse,  nonetheless it has power to ensure that the aforesaid  two main organs of the State function within the  constitutional limits.  It is the sentinel of democracy.  Judicial review is a powerful weapon to restrain  unconstitutional exercise of power by the legislature  and executive.  The expanding horizon of judicial  review has taken in its fold the concept of social and  economic justice. While exercise of powers by the  legislature and executive is subject to judicial  restraint, the only check on our own exercise of  powers is the self imposed discipline of judicial  restraint.

  Frankfurter, J. of the U.S. Supreme Court  dissenting in the controversial expatriation case of  Trop v. Dulles (1958) 356 US 86 observed as under :-          "All power is, in Madison’s phrase, "on an  encroaching nature".  Judicial power is not immune  against this human weakness.  It also must be on  guard against encroaching beyond its proper bounds,  and not the less so since the only restraint upon it is  self-restraint\005\005\005.

Rigorous observance of the difference between  limits of power and wise exercise of power \026 between  questions of authority and questions of prudence \026  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 to the difference.  It is not easy to stand aloof  and allow want of wisdom to prevail to disregard

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one’s 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 Court’s giving effect to its own  notions of what is wise or 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."

   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 on the action of a coordinate  branch of the Government.  While exercising power  of judicial review of administrative action, the court  is not an appellate authority.  The constitution does  not permit the court to direct or advise the executive  in matters of policy or to sermonize qua any matter  which under the constitution lies within the sphere of  legislature or executive, provided these authorities do  not transgress their constitutional limits or statutory  powers."  

44.     Courts have to maintain judicial self-restraint and they should not try  to take over the functions of the Executive or the Legislature.  In the present  case, we can understand the concern of the High Court that the District  Consumer Forum, Chamoli and other Consumer Fora in U.P. were not  functioning properly, but then it could not and should not have overstepped  its limits and taken over the functions of the authorities prescribed in Section  9 and other provisions of the Act.

45.     It is well settled that the High Court cannot takeover the function of  the statutory authorities under an Act, vide G. Veerappa Pillai, Proprietor,  Sathi Vihar Bus Service Porayar, Tanjore District, Madras  vs.  Raman  and Raman Ltd. Kumbakonam, Tanjore District and others AIR 1952  SC 192,  State of U.P.  vs.  Section Officer Brotherhood and Anr.  2004  (8) SCC 286, U.P. State Road Transport Corporation and Anr.  vs.   Mohd. Ismail and others 1991(3) SCC 239 (paragraph 12) and State of  U.P. and Anr.  vs.  Raja Ram Jaiswal and Anr.  1985(2) SCC 131  (paragraph 16).

46.     For instance, this Court in G. Veerappa Pillai’s case (supra) held that  the High Court cannot direct the Regional Transport Authority to grant a  permit, because in that event, the High Court itself will be acting as the  permit granting authority.  Similarly, in State of U.P. and Anr.  vs.  Raja  Ram Jaiswal and Anr. (supra) this Court observed : "The High Court was, of course, clearly in error in  issuing a mandamus directing the District  Magistrate to grant a licence.  Where a statute  confers power and casts a duty to perform any  function before the power is exercised or the  function is performed, the Court cannot in exercise  of writ jurisdiction supplant the licensing authority  and take upon itself the functions of the licensing  authority.  The High Court was hearing a writ  petition praying for a writ of certiorari for  quashing the order of remand.  The High Court  could have quashed the order of remand if it was

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satisfied that the order suffers from an error  apparent on the record.  But there its jurisdiction  would come to an end.  The High Court cannot  then proceed to take over the functions of the  licensing authority and direct the licensing  authority by a mandamus to grant to licence."

 47.     Under our Constitution the Judiciary, the Legislature and the  Executive have their own broad spheres of operation.  It is important that  these organs do not encroach on each other’s proper spheres and confine  themselves to their own, otherwise there will always be danger of a reaction.   Of the three organs of the State, it is only the judiciary which has the right to  determine the limits of jurisdiction of all these three organs.  This great  power must therefore be exercised by the judiciary with the utmost humility  and self-restraint.

48.     The judiciary must therefore exercise self-restraint and eschew the  temptation to encroach into the domain of the legislature or the  administrative or statutory authorities.  By exercising self-restraint it will  enhance its own respect and prestige.  Of course, if a law clearly violates  some provision of the Constitution, it can be struck down, but otherwise it is  not for the Court to sit in appeal over the wisdom of the legislature, nor can  it amend the law.

49.     The Court may feel that the law needs to be amended or the Forum  created by an Act needs to be made more effective, but on this ground it  cannot itself amend the law or take over the functions of the legislature or  executive.  The legislature and the executive authorities in their wisdom are  free to choose different methods of solving a problem and the Court cannot  say that this or that method should have been adopted.  As Mr. Justice  Cardozo of the U.S. Supreme Court observed in Anderson vs. Wilson 289  U.S. 20 : "We do not pause to consider whether a statute  differently conceived and framed would yield  results more consonant with fairness and reason.   We take this statute as we find it".   

50.     Judicial restraint is consistent with and complementary to the balance  of power among the three independent branches of the State.  It  accomplishes this in two ways.  First, judicial restraint not only recognizes  the equality of the other two branches with the judiciary, it also fosters that  equality by minimizing interbranch interference by the judiciary.   In this  analysis, judicial restraint may also be called judicial respect, that is, respect  by the judiciary for the other coequal branches.  In contrast, judicial  activism’s unpredictable results make the judiciary a moving target and thus  decreases the ability to maintain equality with the co-branches.  Restraint  stabilizes the judiciary so that it may better function in a system of  interbranch equality.

51.     Second, judicial restraint tends to protect the independence of the  judiciary.  When courts encroach into the legislative or administrative fields  almost inevitably voters, legislators, and other elected officials will conclude  that the activities of judges should be closely monitored.  If judges act like  legislators or administrators it follows that judges should be elected like  legislators or selected and trained like administrators.  This would be  counterproductive.  An essential feature of an independent judiciary is its  removal from the political or administrative process.  Even if this removal  has sometimes been less than complete, it is an ideal worthy of support and  one that has had valuable effects.

52.     The constitutional trade \026 off for independence is that judges must  restrain themselves from the areas reserved to the other separate branches.   Thus, judicial restraint complements the twin, overarching values of the

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independence of the judiciary and the separation of powers.

53.     As observed by the Supreme Court in M.H. Qureshi vs. State of  Bihar  1959 SCR 629, the Court must presume that the legislature  understands and correctly appreciates the need of its own people.  The  legislature is free to recognize degrees of harm and may confine its  restrictions to those where the need is deemed to be the clearest.  In the same  decision it was also observed that the legislature is the best judge of what is  good for the community on whose suffrage it came into existence, and it is  for the legislature to amend the law, if it so wishes.  The court can at most  make a recommendation to the legislature in this connection, but it is upto  the legislature to accept the recommendation or not.

54.     The function of a judge has been described thus by Lawton LJ :  

"A Judge acts as a referee who can blow his  judicial whistle when the ball goes out of play, but  when the game restarts he must neither take part in  it nor tell the players how to play" (vide Laker  Airways Ltd. vs. Department of Trade (1977)  QB 643(724).

55.     In writing a biographical essay on the celebrated Justice Holmes of  the U.S. Supreme Court in the dictionary of American Biography, Justice  Frankfurter wrote : "It was not for him (Holmes) to prescribe for  society or to deny it the right of experimentation  within very wide limits.  That was to be left for  contest by the political forces in the state.  The  duty of the Court was to keep the ring free.  He  reached the democratic result by the philosophic  route of skepticism \026 by his disbelief in ultimate  answers to social questions.  Thereby he exhibited  the judicial function at its purest." (See ‘Essays on  Legal History in Honour of Felix Frankfurter’  Edited by Morris D. Forkosch).

56.     In our opinion adjudication must be done within the system of  historically validated restraints and conscious minimization of the Judges  preferences.  The Court must not embarrass the legislature or the  administrative authorities and must realize that the legislature and authorities  have to take into account various considerations, some of which the court  may not even be aware of.  In the words of Chief Justice Neely: "I have very few illusions about my own  limitations as a Judge.  I am not an accountant,  electrical engineer, financer, banker, stockbroker  or system management analyst.  It is the height of  folly to expect Judges’ intelligently to review a  5000 page record addressing the intricacies of a  public utility operation.  It is not the function of a  Judge to act as a super board, or with the zeal of a  pedantic school master substituting its judgment  for that of the administrator."

57.     In Lochner vs. New York 198 US 45 (1905), Mr. Justice Holmes of  the U.S. Supreme Court in his dissenting judgment criticized the majority of  the Court for becoming a super legislature by inventing a ’liberty of  contract’ theory, thereby enforcing its particular laissez-faire economic  philosophy.  Similarly, in his dissenting judgment in Griswold vs.  Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that  "unbounded judicial creativity would make this Court a day-do-day  Constitutional Convention".  In "The Nature of the Judicial Process’ Justice

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Cardozo remarked : "The Judge is not a Knight errant, roaming at will in  pursuit of his own ideal of beauty and goodness".  Justice Frankfurter has  pointed out that great judges have constantly admonished their brethren of  the need for discipline in observing their limitations (see Frankfurter’s  ’Some Reflections on the Reading of Statutes’).  

58.     However, the Central and State Governments are requested to  consider fixing adequate salaries and allowances for members of the  Consumers Fora at all three levels, so that they can function effectively and  with a free mind.  They are also requested to fill up vacancies expeditiously  so that the Fora can function effectively.