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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: S.B. Sinha

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO. 2740                 OF 2007 [Arising out of  SLP (Civil) No. 6928 of 1999] W I T H W.P. (C) No. 164 of 2002

S.B. SINHA, J :          1.      Leave granted.

2.     Although I agree with my learned Brother Katju, J. that having regard  to the question involved in the present appeal, we should request the Central  Government as also the respective State Governments to consider the  desirability of fixing appropriate salaries and allowances for members of the  consumer fora at all three levels so that they can function effectively and  with a free mind, I deeply regret my inability to agree with various  observations made by my learned Brother for whom I have the highest  respect.

3.     The Consumer Protection Act, 1986 was enacted to provide for better  protection of the interests of the consumers and for that purpose to make  provisions for the establishment of consumer councils and other authorities  for the settlement of consumer disputes and for matters connected therewith.   The said Act is in addition to and not in derogation of the provisions of any  other law for the time being in force.  The following Statement of Objects  and Reasons preceding the Act are clear pointers to show the purport and  object for which the Act was enacted:

"2. It seeks, inter alia, to promote and protect the  rights of consumers such as \026  

(a) the right to be protected against marketing of  goods which are hazardous of life and property;

(b) the right to be informed about the quality,  quantity, potency, purity, standard and price of  goods to protect the consumer against unfair trade  practices;

(c) the right to be assured, wherever possible,  access to an authority of goods at competitive  prices; (d) the right to be heard and to be assured that  consumers interests will receive due consideration  at appropriate forums;

(e) the right to seek redressal against unfair trade  practices or unscrupulous exploitation of

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consumers; and  

(f) right to consumer education.

3. These objects are sought to be promoted and  protected by the Consumer Protection Councils to  be established at the Central and State level."

4.      The Act not only provides for new rights for the citizens of India in  their capacity as consumers, it envisages their empowerment in this behalf.   The same, in my opinion, deserves due consideration in the matter of  determination.   

5.     It is indisputably the solemn duty of the executive of both the  Government of India as also the Governments of States to implement the  provisions of the Act in true letter and spirit.  

6.     In my opinion, in a situation of this nature where the action or inaction  on the part of the executive government of a State or Union Territory would  lead to virtual closure and/ or non-functioning of such an important judicial  fora created under the Act, it is permissible for the Superior Courts, and  particularly this Court, while exercising its constitutional functions, to issue  necessary directions for proper and effective implementation of the  provisions thereof.

7.     The public interest litigation which was filed in the High Court of  Allahabad was not in the nature of an adversarial litigation.  It was filed for a  specific purpose and to serve a public cause.  The directions issued by the  High Court in its impugned judgment were, of course, at one point of time  challenged by the State of Uttar Pradesh, but the same had not only since  then been complied with, but also this Court from time to time, on the  intervention of several bodies, had issued various directions.  Brother Katju,  J. in the accompanying judgment has noticed some of them.   

8.      Indian Supreme Court has achieved world-wide acclaim in fashioning  new rights under Part III of the Constitution and also using Directive  Principles as interpretive devices for giving a contemporaneous meaning to  Part III. Innovations in the field of PIL or Social Interest Litigation as some  people like to call it, have been institutionalized; methods and rules in that  regard have been streamlined to a great extent through later directives of this  court. The journey of PIL from rhetoric to a trusted court procedure  showcases in ample the potential of constructive exchange between organs  of polity, remaining well within their limits. At the same time, we are not  unmindful of some decisions which have brought disrepute to the institution  as well the innovation itself. James Madison once when similarly situated  remarked, that it is better to leave a few of its noxious branches to their  luxuriant growth, than, by pruning them away, to injure the vigour of those  yielding the proper fruits. As has been mentioned, subsequent directives of  SC have come down heavily on such instances. 9.      Although this phase has been widely documented but the last such  mention was in Public Law, 2006 Autumn, Human Rights Transformed:  Positive Duties and Positive Rights (P.L. 2006, AUT, 498-520 at pg. 513)  where the author (Sandra Fredman) sees inspiration in the wide-ranging  work of Indian SC for European Court of Justice. It was noted therein: "Two points should, however, be noted (about  Indian Supreme Court’s record on Public Interest  Law). First, the Court has adapted its procedure to  enable it to adjudicate polycentric issues more  appropriately. Wide standing rules require the  court to conduct some of its own fact-finding,  sometimes through establishing its own  commissions. It has also fashioned its own  remedial orders to provide ongoing  management. For example, in the "Right to Food"  case, it has issued a continuing mandamus to

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require states to fully implement specific schemes  including mid-day meals at school. Secondly,  affirmation of wide duties is often used to  counter maladministration rather than to initiate  new projects. Thus the right to livelihood of  pavement dwellers gave rise only to a duty to  consult before removing them; and the right to a  road gave rise only to a duty to complete a project  for which funds had already been allocated. In the  right to food case, a primary problem was  maladministration: the Court found that about half  of the food subsidy was being spent on holding  excess stocks; reducing stocks would free up large  resources to distribute food and provide hot mid- day meals for school children.  

The Indian approach is relevant to the domestic  scene in that there are clear signs that the  principles in the EU Charter of Fundamental  Rights will be used as interpretative aids by the  European Court of Justice, and thereby have a  direct influence on domestic law."

(Emphasis supplied) 10.     The matter at hand also involves consideration of a PIL. A different  set of expectations stares us in the face, and significantly, we are also  anchored with a unique sense of responsibility. Judicial apathy with a value- neutral outlook would neither help the functioning of consumer fora nor our  self-belief. We attend to the matter with a similar approach.

11.    We, however, would fail in our duties if we do not acknowledge the  extent of cooperation which had been rendered to us not only by Mr. A.  Sharan, learned Additional Solicitor General of India but almost all counsels  appearing for different States in assisting us to issue directions from time to  time which indisputably have served greater positive purpose.

12.    Brother Katju, J. has noticed that even the learned Additional Solicitor  General appearing on behalf of the Union of India had been more than fair in  taking a bold stand agreeing for effective implementation of the provisions  of the Act, this Court’s intervention is necessary.   

13.     It may be true that the salary, honorarium or other allowances of the  members of the District Forum as also those of the State Commission are  ordinarily to be prescribed by the State Governments in terms of the  provisions of the Act but even in that behalf, most of the State Governments  have taken a very reasonable stand by agreeing to pay reasonable salaries  and other allowances to the Chairman and members of the different fora.

14.     In this context, we agree that the provisions of Consumer Protection  Act envisage the role of the executive in laying down the particulars of pay- scale as also the associated benefits, but the fact situation as agreed on  record by both the sides, portends a rather grime future for consumer fora at  different levels. It will not be the spirit of any statute for that matter to put  forward a framework of narrow rules which will impede issuing of  directions to set in motion the machinery with respect to that law. Consumer  Protection Act embodies a certain value in protecting the interests of  consumers in the age of consumerism, and the institution of consumer fora  has a specific mission in that behalf. Instant order needs to be seen in the  perspective of achieving that ’point behind the law’.    15.     With the advent of globalization, we are witnessing a shift from  Formalism to a Value-laden approach to law. In the contemporary  scholarship, especially with the decimation of law as purely an autonomous  discipline (with the emergence of cross-cutting realms such as Law and  Economics, Law and Philosophy, Law and Society, IPR et al), we see that

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laws embody a goal, which may have its provenance in sciences other than  law as well. It is no more the black letter in the law which guides the  interpretation but the goal which is embodied by the particular body of law,  which may be termed as the rationality of law.   

16.     Law, in its value-laden conception, is not entirely endogenous in its  meaning and purpose: the construction thereof also depends on the statement  of purport and object. There is a spill-over of the aforementioned shift in  philosophy of law to statutory interpretation. Purposive interpretation, of  lately, has gained considerable currency, which is relevant for the sake of  maximizing the efficiency in respect to the point behind the rule. There may  be a situation when purposive interpretation is required even in the context  of deciphering the Constitutional mandate by invoking the notion of active  liberty discovered by Justice Stephen Breyer of American Supreme Court.  This is the precise role which was exhorted by Bruce A. Ackerman in the  famous Storrs Lecture:

"If we are to make sense of our constitution, we  must cut ourselves off from the Framers’ theory  of democracy. The Least Dangerous Branch  opens with a second declaration of independence,  not an effort at constitutional interpretation. The  beginning of constitutional wisdom, apparently,  is that Hamilton, Marshall, and the rest were  utterly mystified by representative government."

17.     The ultimate justification for the creation of new rights and renewed  emphasis on implementation of statutory rights is that they have to be made  justifiable, simply because of their primacy in living a life with dignity and  the matching recognition thereof with the values that our constitution  inheres. Following this philosophy the SC has developed new methods and  new remedies. The same is to be considered to be a part of wider  civilization.  (See Stephen Breyer, Active Liberty: Interpreting Our Democratic  Constitution, (2005) Knopf; Ronald Dworkin, Taking Rights Seriously  (1977); Ronald Dworkin, A Matter of Principle (1985); Bruce A. Ackerman,  93 Yale Law Journal 1013 (May 1984), The Storrs Lectures: Discovering  the Constitution)

18.     In this situation, this Court had only been considering the matter  relating to better implementation of the provisions of the Act so as to uphold  the dignity and impartiality of the Chairman and members of the fora which  would help them in discharging their judicial functions.

19.    It is a matter on record that even the salary and other allowances  payable to the members of the National Consumer Commission, as directed  by this Court, have been accepted by the Union of India and an appropriate  notification in this behalf has been published.

20.    Separation of power is a favourite topic for some of us. Each organ of  the State in terms of the constitutional scheme performs one or the other  functions which have been assigned to the other organ.  Although drafting of  legislation and its implementation by and large are functions of the  legislature and the executive respectively, it is too late in the day to say that  Constitutional Court’s role in that behalf in non-existent.  The judge made  law is now well recognised throughout the world.  If one is to put the  doctrine of separation of power to such a rigidity, it would not have been  possible for any superior court of any country, whether developed or  developing, to create new rights through interpretative process.   

21.     Separation of power in one sense is a limit on active jurisdiction of  each organ. But it has another deeper and more relevant purpose: to act as  check and balance over the activities of other organs. Thereby the active  jurisdiction of the organ is not challenged; nevertheless there are methods of  prodding to communicate the institution of its excesses and shortfall in duty.

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Constitutional mandate sets the dynamics of this communication between  the organs of polity. Therefore, it is suggested to not understand Separation  of Power as operating in vacuum. Separation of power doctrine has been  reinvented in modern times.   

22.     It is interesting to note here the decision in Youngstown Sheet & Tube  Co. v. Sawyer, 343 U.S. 579, 635 (1952) wherein court commented on the  utility of separation of power within the constitutional scheme to maximize  good governance:  

"The actual art of governing under our  Constitution does not and cannot conform to  judicial definitions of the power of any of its  branches based on isolated clauses or even single  Articles torn from context. While the  Constitution diffuses power the better to secure  liberty, it also contemplates that practice will  integrate the dispersed powers into a workable  government. It enjoins upon its branches  separateness but interdependence, autonomy  but reciprocity." (emphasis supplied)

23.     The modern view, which is today gathering momentum in  Constitutional Courts world over, is not only to demarcate the realm of  functioning in a negative sense, but also to define the minimum content of  the demarcated realm of functioning. Objective definition of function and  role entails executing the same, which however may be subject to the plea of  financial constraint but only in exceptional cases.  In event of any such  shortcoming, it is the essential duty of the other organ to advise and  recommend the needful to substitute inaction. To this extent we must be  prepared to frame answers to these difficult questions.  

24.     John Rawls in Political Liberalism (1996) at pg. 231 notes in relation  to a similar situation:

"By applying public reason the court is to prevent  that (higher) law from being eroded by the  legislation of transient majorities, or more likely,  by organized and well-situated narrow interests  skilled at getting their way. If the court assumes  this role and effectively carries it out, it is incorrect  to say that it is straight-forwardly antidemocratic."

This perspective helps us all towards the wholesome realization of the  democratic ideal of good governance and rule of law.   25.     In the American context, it will be in the fitness of the discussion to  quote from an illuminating piece by Cass R. Sunstein (Constitutionalism  After The New Deal, 101 HVLR 421):  

"In the New Deal period, the original  constitutional framework was thus reformulated in  three fundamental ways. The New Deal set out a  different conception of legal rights, rejecting  common law and status quo baselines for  deciding what constituted governmental  ’action’ and ’inaction’; it proposed a dramatically  different conception of the presidency and a novel  set of administrative actors; and it rejected  traditional notions of federalism. The term ’New  Deal constitutionalism’ describes the resulting  structure."

(Emphasis supplied)

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26.     If we notice the evolution of Separation of Power doctrine,  traditionally the checks and balances dimension was only associated with  governmental excesses and violations. But in today’s world of positive rights  and justifiable Social and Economic entitlements, hybrid administrative  bodies, private functionaries discharging public functions, we have to  perform the oversight function with more urgency and enlarge the field of  checks and balances to include governmental inaction. Otherwise we  envisage the country getting transformed into a state of repose. Social  engineering as well as Institutional engineering therefore forms part of this  obligation.

27.     In this context, Bruce A. Ackerman in We, the People (1991) refers to  constitutional moment in the lives of nations in which foundational premise  of system finds seminal turnaround guided by popular awareness. A decision  of change in the background of a constitutional moment has a transformative  constitutional power, equivalent to a constitutional amendment.

28.     All India Judges’ Association and Others v. Union of India and Others  [(1993) 4 SCC 288 : AIR 1993 SC 2493] is an instance to show that in  appropriate cases the Judiciary may step in even for the purpose of making  recommendations in regard to the scale of pay and other allowances payable  to the judicial officers.  While making its suggestion to the state, this court  noted :

"These are only suggestions which are made and it  will be more appropriate for each State, taking into  consideration the local requirements, to adopt  appropriate nomenclatures. It would be appropriate  to mention at this stage that in some States, the  entry point to the judicial service was at the level  of a munsiff or a subordinate Judge. Those are  nomenclatures which are also to be considered but  what is important is that in respect of each scale,  the nomenclature should be different. In this way,  a judicial officer will get a feeling that he has made  progress in his judicial career with his  nomenclature or designation changing with an  upward movement within the service."

29.    We may notice that the Shetty Commission appointed to go into these  matters had submitted its report and the same has been accepted by almost  all the States.

30.    It is also interesting to note that the Central Government evidently  accepted the recommendations of the Shetty Commission and deleted the  consideration in respect of the pay scales of the judicial officers from the  terms of the reference of the Fifth Pay Commission.

31.    A further order was passed in the said decision on or about 21st  March, 2002 by a Three-Judge Bench of this Court in All India Judges’  Association and Others v. Union of India and Others [(2002) 4 SCC 247].    Apart from referring to Article 50 of the Constitution of India, the Three- Judge Bench of this Court in repelling the contention of some of the States  that this Court should not interfere in such matters raised constitutional  questions in regard to the increase in retirement age from 60 to 62 years. The  court went into the merits of the recommendations, sifted through them and  also in the end gave suggestions to various State Governments.  We may  place on record that the Three-Judge Bench is still monitoring  implementation of the report of the Shetty Commission and the various  directions issued by this Court.

32.    A Three-Judge Bench of this Court in Dr. J.J. Merchant and Others v.  Shrinath Chaturvedi [(2002) 6 SCC 635], while opining that all complaints  filed before different fora constituted under the Act should be required to be

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determined as expeditiously as possible with regard to purport and object of  the Act, observed:   "35. From the proposed amendment in the Act, it  is apparent that Parliament is alive to the problems  faced by the consumers and the consumer forums  and, therefore, further directions are not required  to be given.  

36. However, apart from the contemplated  legislative action, it is expected that the  Government would also take appropriate steps in  providing proper infrastructure so that the Act is  properly implemented and the legislative purpose  of providing alternative, efficacious, speedy,  inexpensive remedy to the consumers is not  defeated or frustrated.  

37. Similar action is also expected from the  National Commission as well as State  Commissions. Hence, for avoiding delay in  disposal of complaints within the prescribed  period, the National Commission is required to  take appropriate steps including:  

( a ) By exercise of administrative control, it can  be seen that competent persons are appointed as  members on all levels so that there may not be any  delay in composition of the Forum or the  Commission for want of members.   

( b ) It would oversee that the time-limit prescribed  for filing the defence version and disposal of  complaints is strictly adhered to.   

( c ) It would see that the complaint as well as the  defence version should be accompanied by  documents and affidavits upon which parties  intend to rely.

( d ) In cases where cross-examination of the  persons who have filed affidavits is necessary,  suggested questions of cross-examination be given  to the persons who have tendered their affidavits  and reply may be also on affidavits.   ( e ) In cases where the Commission deems it fit to  cross-examine the witnesses in person, video  conference or telephonic conference at the cost of  the person who so applies could be arranged or  cross-examination could be through a commission.  This procedure would be helpful in cross- examination of experts, such as doctors."

33.     We have only noticed a different approach of the Court with the  changing times.  In a given case, the court may or may not issue any  direction but the Supreme Court of India in an appropriate case should not  stop its journey to creative interpretation of the constitutional provisions vis- ‘-vis the independence of judiciary.           34.    Even if we, for the time being, do not take note of the Constitution  Bench decision of this Court in Supreme Court Advocates-On-Record  Association and Others v. Union of India and Another [(1993) 4 SCC 441]  apart from Vishaka v. State of Rajasthan [(1997) 6 SCC 241] and Vineet  Narain and Others v. Union of India and Another [(1998) 1 SCC 226] and  several other judgments following the same, there are cases and cases where

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this Court had, on one occasion or the other, dealt with the question of  fixation of pay-scale not only with regard to judicial officers but also of  other employees connected with the justice delivery system.   35.     This Court in Union of India and Others v. All Gujarat Fed. of Tax  Consultants and Others (SLP Nos. 6904-6905 of 1998) disposed of on   September 16, 2003, issued directions in regard to various amenities and  perks to be given to the members of the Income Tax Appellate Tribunal.   The manner in which transfers and postings of the members of the Income  Tax Appellate Tribunal should be effected was the subject matter of the  decision of this Court in Ajay Gandhi and Another v. B. Singh and Others  [(2004) 2 SCC 120].

36.    In Union of India v. S.B. Vohra [(2004) 2 SCC 150], a Three-Judge  Bench of this Court again considered the question of jurisdiction of the  Chief Justice in fixing the scale of pay of the various officers of the Delhi  High Court.  This Court opined:

"49. The matter as regards fixation of scale of pay  of the officers working in the different High Courts  must either be examined by an expert body like the  Pay Commission or any other body but in absence  of constitution of any such expert body the High  Court itself is to undertake the task keeping in  view the special constitutional provisions existing  in this behalf in terms of Article 229 of the  Constitution of India.  

50. We agree with the submission of the learned  Additional Solicitor General to the effect that the  decision of the High Court had been rendered  having its origin in A.K. Gulati (CWP No. 289 of  1991) which had a spiralling effect, particularly in  the case of Assistant Registrars. That was more a  reason why a competent authority of the appellant  should have taken immediate steps in holding a  meeting with the Chief Justice or an authorized  officer of the High Court.  

51. Having regard to the aforementioned  authoritative pronouncements of this Court, there  cannot be any doubt whatsoever that the  recommendations of the Chief Justice should  ordinarily be approved by the State and refusal  thereof must be for strong and adequate reasons. In  this case the appellants even addressed themselves  on the recommendations made by the High Court.  They could not have treated the matter lightly. It is  unfortunate that the recommendations made by a  high functionary like the Chief Justice were not  promptly attended to and the private respondents  had to file a writ petition. The question as regards  fixation of a revision of the scale of pay of the  High Court being within the exclusive domain of  the Chief Justice of the High Court, subject to the  approval, the State is expected to accept the same  recommendations save and except for good and  cogent reasons."

37.     Yet again recently in High Court Employees’ Welfare Association,  Calcutta & Ors. v. State of West Bengal & Ors. [2007 (1) SCALE 180], this  Court made a reference in context of institutional exchange holding:

"Though the power to make rules in regard to pay  and allowances of the High Court employees is

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vested in the Chief Justice subject to any law made  by the Parliament, the Constitution has advisedly  made the power of the Chief Justice to make such  rules conditional upon approval of such rules by  the Governor of the State, that is the State  Government. The requirement of approval under  the proviso Clause 2 of Article 229 is not a mere  formality. We find that the State has approved all  provisions except one clause. It has expressed its  inability to agree to para 2 of Rule 4 as it provides  for a general increase in pay of all existing  employees by two stages, after fixation of pay in  the revised pay scale. The non-approval is in  consonance with the Minutes of the meeting dated  13/18.4.2005 between the Chief Justice and the  Ministers representing the State. But for the  unfortunate misunderstanding relating to  second para of Rule 4 of the modified draft Pay  Rules, the High Court and the State  Government have shown understanding of each  other’s problems and by exchange of views and  discussions, sorted out the outstanding issues,  thereby maintaining the high constitutional  traditions. Therefore there is no need for any  interference."                                                 (Emphasis Supplied)  38.    We have only referred to some of the decisions of this Court which  are binding on us, where pay scales have been fixed or amenities have been  granted by the Courts or at least strong recommendations have been made.

39.    In the instant case, Mr. M.N. Krishnamani, learned Amicus Curiae  and the learned Additional Solicitor General of India have made the  following common submissions:

"1) Court is competent to issue directions when  State has either failed to perform its duty conferred  on it under a statute or has exercised its power  arbitrarily or on irrelevant considerations.

2) The pay fixation of Members is not directly  related to the work load but it is a matter of status  and dignity. 3) Nature of duties performed by the Members  being judicial in nature, is entirely different from  the other Govt. Services and, therefore, different  considerations come into play."

40.     It is also interesting to note that expanding citizen’s right to food as  envisaged under Article 21 of the Constitution of India, a Division Bench of  this Court in People’s Union For Civil Liberties v. Union of India [2006 (13)  SCALE 399] inter alia directed the Government to sanction and  operationalize minimum of 14 lakh AWCs under ICDS.

41.    If financial constraint was not considered to be a criterion for issuing a  direction to create and sanction a huge number of posts by one Bench, it  would be inappropriate for us to restrain ourselves from doing so in respect  of judicial officers and other members of different fora created under the Act  who perform judicial functions.  The consumer courts, it must be borne in  mind, in effect and substance, are virtual substitutes for the civil court in  respect of certain categories of cases.   

42.    As has already been mentioned, although functional tests and positive  tests have not yet been fully evolved in the context of new separation of  power doctrine, undoubtedly their application would, in appropriate cases,

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be necessary so as to consider  the institutional balance between various  branches of the polity.  It will be wholly inappropriate if we fail to consider  the expanding jurisdiction.  It is worth noticing that the Superior Courts of  various other countries including Israeli Supreme Court and South African  Constitutional Court, apart from those of the developed countries, have  marked the beginning in this behalf.

43.    For the views been taken herein, I regret to express my inability to  agree with Brother Katju, J. in regard to the criticisms of various orders  passed in this case itself by other Benches.  I am of the opinion that it is  wholly inappropriate to do so.  One Bench of this Court, it is trite, does not  sit in appeal over the other Bench particularly when it is a coordinate Bench.   It is equally inappropriate for us to express total disagreement in the same  matter as also in similar matters with the directions and observations made  by the larger Bench.  Doctrine of judicial restraint, in my opinion, applies  even in this realm.  We should not forget other doctrines which are equally  developed viz., Judicial Discipline and Respect for the Brother Judges.

44.    I would, therefore, while concurring with the conclusion of my  learned Brother Kaju, J. for whose learning and erudition, I have the highest  respect, differ with all his reasonings in support thereof.

45.    List the matter after vacations, before another bench to be nominated  by Hon’ble the Chief Justice of India.