IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9996 OF 2014
[Arising out of S.L.P. (Civil) No. 480 of 2012]
Census Commissioner & Others ... Appellants
Versus
R. Krishnamurthy ... Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal depicts and, in a way, sculpts the non-
acceptance of conceptual limitation in every human sphere including
that of adjudication. No adjudicator or a Judge can conceive the idea
that the sky is the limit or for that matter there is no barrier or
fetters in one’s individual perception, for judicial vision should not
be allowed to be imprisoned and have the potentiality to cover
celestial zones. Be it ingeminated, refrain and restrain are the
essential virtues in the arena of adjudication because they guard as
sentinel so that virtuousness is constantly sustained. Not for
nothing, centuries back Francis Bacon[1] had to say thus:-
“Judges ought to be more learned than witty, more reverend than
plausible, and more advised than confident. Above all things,
integrity is their portion and proper virtue......Let the judges
also remember that Solomon’s throne was supported by lions on
both sides: let them be lions, but yet lions under the throne.”
2. Almost half a century back Frankfurter, J.[2] sounded a note of
caution:-
“For the Highest exercise of judicial duty is to subordinate
one’s personal pulls and one’s views to the law of which we are
all guardians-those impersonal convictions that make a society a
civilized community, and not the victims of personal rule.”
3. In this context, it is seemly to reproduce the warning of Benjamin N.
Cardozo in The Nature of the Judicial process[3] which rings of
poignant and inimitable expression:-
“The Judge even when he is free, is still not wholly free. He
is not to innovate at pleasure. He is not a knight errant
roaming at will in pursuit of his own ideal of beauty or of
goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by
system, and subordinated to ‘the primordial necessity of order
in social life’.”
4. In Tata Cellular V. Union of India (1994) 6 SCC 651, while dealing
with the concept of judicial review, this Court referred to a passage
worded by Chief Justice Neely, which is as follows:-
‘I have very few illusions about my own limitations as a judge and
from those limitations I generalize to the inherent limitations of
all appellate courts reviewing rate cases. It must be remembered
that this Court sees approximately 1262 cases a year with five
judges. I am not an accountant, electrical engineer, financier,
banker, stock broker, or systems management analyst. It is the
height of folly to expect judges intelligently to review a 5000
page record addressing the intricacies of public utility
operation.’
5. The fundamental intention of referring to the aforesaid statements may
at various times in the history of law is to recapitulate basic
principles that have to be followed by a Judge, for certain sayings at
times become necessitous to be told and re-narrated. The present case
exposits such a situation, a sad one.
6. The chronology has its own relevance in the instant case. One Dr. E.
Sayedah preferred W.P No. 25785 of 2005 in the High Court of Madras
for issue of a writ of certiorari for quashment of the order passed by
the Central Administrative Tribunal in O.A. No.3/2002 on the
foundation that when there is no Scheduled Tribe population in the
Union Territory of Pondicherry and there is no Presidential
notification under Article 342 of the Constitution of India there
cannot be any reservation for Scheduled Tribe in the said Union
Territory and, therefore, the appointment of the applicant in the
Original Application who was appointed solely on the base that he
belonged to Scheduled Tribe was illegal. However, the High Court
declined to interfere with the appointment considering the length of
service but observed that the appointee was not entitled for any
reservation in promotion. The High Court also recorded certain other
conclusions which are really not relevant for the present purpose.
The direction that really propelled the problem is as follows:-
“When it is the position that after 1931, there had never been
any caste-wise enumeration or tabulation and when there can not
be any dispute that there is increase in the population of
SC/ST/OBC manifold after 1931, the percentage of reservation
fixed on the basis of population in the year 1931 has to be
proportionately increased, by conducting caste-wise census by the
Government in the interest of the weaker sections of the society.
We direct the Census Department of the Government of India to
take all such measures towards conducting the caste-wise census
in the country at the earliest and in a time bound manner, so as
to achieve the goal of social justice in its true sense, which is
the need of the hour.”
7. At this juncture, to continue the chronology, it is pertinent to
mention that a Writ Petition No. 21172/2009 was filed before the High
Court of Judicature at Madras, which was disposed of on 21.1.2010.
While disposing of the writ petition, the High Court had directed as
follows:
“6. The second respondent, has filed a counter and in paragraph
5 thereof, it is stated that the second respondent have taken up
the matter with the Ministry of Social Justice and Empowerment,
as the issues relating to SCs, STs and OBCs; are within the
domain of that Ministry. The learned counsel for the
respondents, on the instructions of the Regional Director,
Chennai from the office of the second respondent, states that the
petitioner will got a reply from the respondents within eight
weeks from today. We hope that the respondents will consider the
representation of the petitioner Association in all seriousness
and send them an appropriate reply.”
8. Be it stated, the Registrar General and Census Commissioner was
the respondent no.2 therein. After the writ petition was disposed of,
the representation preferred by Mr. K. Balu, President, Advocates
Forum for Social Justice, was disposed and the order was communicated
to the writ petitioner. It reads as follows:-
“2. Caste-wise enumeration in the census has been given up as a
matter of policy from 1951 onwards. In pursuance of this policy
decision, castes other than Scheduled Castes and Scheduled Tribes
have not been enumerated in all the Censuses since 1951. In
Census 2011 also no question on enumeration of castes other than
Scheduled Castes and Scheduled Tribes has been included. As
such, the first phase of Census 2011 enumeration, namely, the
Houselisting and Housing Census is commencing on the 1st of
April, 2010. The forms required for this phase of the Census
has already been printed in many States and Instruction Manuals
required for training the enumerators has also been finalized and
printed. The second phase of Census 2011, namely, Population
Enumeration, is due to be conducted in February 2011. The data
gathered in the first phase (April to September 2010) is linked
to the data to be collected in February-March 2011. Hence,
enumerating castes other than Scheduled Castes and Scheduled
Tribes will not be possible in that phase also. As such, it is
not possible to include any question relating to the enumeration
of Castes other than Scheduled Castes and Scheduled Tribes in the
Census of India 2011.
3. As regards the policy decision whether castes other than
the Scheduled Castes and Scheduled Tribes should be enumerated,
the manner in which such enumeration should be done and by whom,
the matter has been referred to the nodal Ministry, i.e. Ministry
of Social Justice and Empowerment.”
9. At this juncture, it may be noticed that the Writ Petition(C)
No. 132/2010 was filed before this Court by one Kishore Govind Kanhere
Vidharbha and Another seeking the similar relief, which was disposed
of on 13.09.2010 by passing the following order:
“Learned counsel for the petitioners states that as the purpose
of the writ petition stands worked out, he would like to withdraw
the petition. The writ petition is, accordingly, dismissed as
withdrawn.”
10. Presently, we shall proceed to state how the purpose of the
writ petition had worked out. The respondent, R. Krishnamurthy had
preferred Writ Petition(C) No. 10090/2010 which stood disposed of by
Division Bench by the impugned order. As is manifest, the Division
Bench has referred to its earlier decision passed in W.P.(C) No.
25785/2005 and after reproducing the paragraph from the said judgment,
opined as follows:-
“Since the relief sought for in the present writ petition has
already been answered in the affirmative by issuing a direction
to the authorities to take all measures towards conducting the
caste-wise census in the country, we are of the considered
opinion that this petition is also entitled to be allowed.
Accordingly, this writ petition is allowed on the same terms.”
11. Criticizing the aforesaid direction, it is submitted by Mr. R.S.
Suri, learned senior counsel that the High Court on the earlier
occasion had issued a direction without making the Census Commissioner
as a party and further there was no justification for issuance of such
a direction. As far as the impugned order is concerned, it is urged
by Mr. Suri that the direction issued by the Division Bench
tantamounts to interference in a policy decision as framed under
Section 8 of the Census Act, 1940, (for brevity ‘the Act’) as amended
in 1993. Learned senior counsel would contend that the policy
stipulates for carrying out the census which includes scheduled castes
and scheduled tribes, but not the other castes. He would urge that
many a High Court have dismissed similar writ petitions and, in fact,
this Court in WP(C) No. 133/2009 have declined to interfere and the
same was dismissed as withdrawn. It is proponed by him the view
expressed by the High Court is absolutely vulnerable and hence,
deserved to be lancinated.
12. Despite service of notice, there has been no appearance on
behalf of the respondent.
13. To appreciate the submissions canvassed by the learned counsel
for the appellant, it is necessary to refer to Section 8 of the Act,
which reads as follows: -
“Section 8 – Asking of questions and obligation to answer
(1) A census officer may ask all such questions of all persons
within the limits of the local area for which he is appointed as,
by instructions issued in this behalf by the [Central Government]
and published in the Official Gazette, he may be directed to ask.
(2) Every person of whom any question is asked under sub-
section(1) shall be legally bound to answer such question to the
best of his knowledge or belief:
Provided that no person shall be bound to state the name of
any female member of his household, and no woman shall be
bound to state the name of her husband or deceased husband
or of any other person whose name she is forbidden by
custom to mention.”
14. On the foundation of the aforesaid provision, the competent
authority of the Central Government, in exercise of the power
conferred by sub-section(1) of section 8 of the Census Act, had issued
a Notification on 13.1.2000 which relates to instructions meant for
Census Officers. Clause 8 of the said Notification being relevant is
reproduced below:
“8. Information relating to the head of the household
(a) Name of the head of the household
(b) Male – 1/Female – 2
(c) If SC(Scheduled Caste) or ST (Scheduled Tribe) or Other?
SC(Scheduled Caste)-1/ST(Scheduled Tribe)-2/Other-3”
15. After the said census was carried out, another Notification
dated 25.2.2010 was issued. Clause 10 of the said Notification reads
as follows:
“10. If Scheduled Caste/Scheduled Tribe/Others.
16. After the Notification in the year 2010 was issued, the Office
of the Registrar General and Census Commissioner issued the
Instruction Manual for Houselisting and Housing Census. In Paragraph
1.2, the historical background has been stated. It is as follows:
“Historical background of Indian Census
1.2 The Indian Census has a rich tradition and enjoys the
reputation of being one of the best in the world. The first
Census in India was conducted in the year 1872. This was
conducted at different points of time in different parts of the
country. In 1881 a Census was taken for the entire country
simultaneously. Since then, Census has been conducted every ten
years, without a break. Thus, the Census of India 2011 will be
the fifteenth in this unbroken series since 1872 and the seventh
after independence. It is through the missionary zeal and
dedication of Enumerators like you that the great historical
tradition of conducting the Census uninterruptedly has been
maintained in spite of several adversities like wars, epidemics,
natural calamities, political unrest, etc. Participation in the
Census by the people of India is indeed a true reflection of the
national spirit of unity in diversity.”
17. Thereafter, the Instruction Manual provides for objectives of
conducting a census. We think it appropriate to reproduce the same:
“1.3 India is a welfare State. Since independence, Five Year
Plans, Annual Plans and various welfare schemes have been
launched for the benefit of the common man. All these require
information at the grass root level. This information is
provided by the Census.
4. Have you ever wondered how the number of seats in
Parliamentary/Assembly Constituencies, Panchayats and other
local bodies are determined? Similarly, how the boundaries of
such constituencies are demarcated? Well the answer to that is
also the Census. These are just a few examples. Census provides
information on a large number of areas. Thus, you are not merely
collecting information; you are actually a part of a massive
nation building activity.
5. The Houselisting and Housing Census has immense utility as it
will provide comprehensive data on the conditions of human
settlements, housing deficit and consequently the housing
requirement to be taken care of in the formulation of housing
policies. This will also provide a wide range of data on
amenities and assets available to the households, information
much needed by various departments of the Union and State
Governments and other non-Governmental agencies for development
and planning at the local level as well as the State level.
This would also provide the base for Population Enumeration.
6. Population Enumeration provides valuable information about the
land and its people at a given point of time. It provides
trends in the population and its various characteristics, which
are an essential input for planning. The Census data are
frequently required to develop sound policies and programmes
aimed at fostering the welfare of the country and its people.
This data source has become indispensable for effective and
efficient public administration besides serving the needs of
scholars, businessmen, industrialists, planners and electoral
authorities, etc. Therefore, Census has become a regular
feature in progressive counties, whatever be their size and
political set up. It is conducted at regular intervals for
fulfilling well-defined objectives. One of the essential
features of Population Enumeration is that each person is
enumerated and her/his individual particulars are collected at a
well-defined point of time.”
18. From the aforesaid, it is graphically vivid that at no point of
time, the Central Government had issued a Notification to have a
census conducted on the caste basis. What is reflectible is that
there is census of Scheduled Castes and Scheduled Tribes, but census
is not done in respect of other castes or on caste basis. That
apart, the instructions elaborately spell out the necessity and the
purpose. It is reflectible of the concern pertaining to assimilation
of certain datas that would help in nation-building, trends of
population, availability of requisite inputs for planning and
fostering the welfare of the country. Be it noted, the Notifications
dated 13.01.2000 and 25.02.2010 enumerate collection of many an
information including household number, total number of persons
normally residing in the household (persons, males, females), name of
the head of the household, ownership status of the house, number of
married couple(s) living in the household, main source of drinking
water, availability of drinking water source, main source of lighting,
latrine within the premises, type of latrine facility, waster water
outlet, bathing facility, kitchen, fuel used for cooking,
Radio/Transistor, Television, Computer/Laptop, Telephone/Mobile
phone, Bicycle, Scooter/Motor Cycle/ Moped, Car/Jeep/Van, and availing
banking services, etc. Thus, the Central Government has framed a
policy and the policy, as is demonstrable, covers many an arena
keeping in view certain goals and objectives.
19. As we evince from the sequence of events, the High Court in the
earlier judgment had issued the direction relating to carrying of
census in a particular manner by adding certain facets though the lis
was absolutely different. The appellant, the real aggrieved party,
was not arrayed as a party-respondent. The issue was squarely raised
in the subsequent writ petition where the Census Commissioner was a
party and the earlier order was repeated. There can be no shadow of
doubt that earlier order is not binding on the appellant as he was not
a party to the said lis. This view of ours gets fructified by the
decision in H.C. Kulwant Singh and others V. H.C. Daya Ram and
others[4] wherein this Court, after referring to the judgments in
Khetrabasi Biswal V. Ajaya Kumar Baral & Ors.[5], Udit Narain Singh
Malpaharia V. Board of Revenue[6], Prabodh Verma & Ors. Vs. State of
U.P. & Ors.[7] and Tridip Kumar Dingal & Ors. V. State of W.B. &
Ors.[8] has ruled thus:
“..... if a person who is likely to suffer from the order of the
court and has not been impleaded as a party has a right to ignore
the said order as it has been passed in violation of the
principles of natural justice.”
20. The earlier decision being not a binding precedent, it can be
stated with certitude that the impugned judgment has really compelled
the appellant to question the defensibility of the same.
21. The centripodal question that emanates for consideration is
whether the High Court could have issued such a mandamus commanding
the appellant to carry out a census in a particular manner. The High
Court has tried to inject the concept of social justice to fructify
its direction. It is evincible that the said direction has been
issued without any deliberation and being oblivious of the principle
that the courts on very rare occasion, in exercise of powers of
judicial review, would interfere with a policy decision. Interference
with the policy decision and issue of a mandamus to frame a policy in
a particular manner are absolutely different. The Act has conferred
power on the Central Government to issue Notification regarding the
manner in which the census has to be carried out and the Central
Government has issued Notifications, and the competent authority has
issued directions. It is not within the domain of the Court to
legislate. The courts do interpret the law and in such interpretation
certain creative process is involved. The courts have the
jurisdiction to declare the law as unconstitutional. That too, where
it is called for. The court may also fill up the gaps in certain
spheres applying the doctrine of constitutional silence or abeyance.
But, the courts are not to plunge into policy making by adding
something to the policy by way of issuing a writ of mandamus. There
the judicial restraint is called for remembering what we have stated
in the beginning. The courts are required to understand the policy
decisions framed by the Executive. If a policy decision or a
Notification is arbitrary, it may invite the frown of Article 14 of
the Constitution. But when the Notification was not under assail and
the same is in consonance with the Act, it is really unfathomable how
the High Court could issue directions as to the manner in which a
census would be carried out by adding certain aspects. It is, in
fact, issuance of a direction for framing a policy in a specific
manner. In this context, we may refer to a three-Judge Bench decision
in Suresh Seth V. Commr., Indore Municipal Corporation[9] wherein a
prayer was made before this Court to issue directions for appropriate
amendment in the M.P. Municipal Corporation Act, 1956 so that a person
may be debarred from simultaneously holding two elected offices,
namely, that of a Member of the Legislative Assembly and also of a
Mayor of a Municipal Corporation. Repelling the said submission, the
Court held:
“In our opinion, this is a matter of policy for the elected
representatives of people to decide and no direction in this
regard can be issued by the Court. That apart this Court cannot
issue any direction to the legislature to make any particular
kind of enactment. Under out constitutional scheme Parliament
and Legislative Assemblies exercise 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 Assn. v. Union of India[10] (SCC 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 a subordinate legislation pursuant to
the delegated authority of a legislature, such executive
authority cannot be asked to enact a law which it has been
empowered to do under the delegated legislative authority. This
view has been reiterated in state of J & K v A.R. Zakki[11]. In
A.K. Roy v. Union of India[12] it was held that no mandamus can
be issued to enforce an Act which has been passed by the
legislature.”
22. At this juncture, we may refer to certain authorities about the
justification in interference with the policy framed by the
Government. It needs no special emphasis to state that interference
with the policy, though is permissible in law, yet the policy has to
be scrutinized with ample circumspection. In N.D. Jayal and Anr. V.
Union of India & Ors.[13], the Court has observed that in the matters
of policy, when the Government takes a decision bearing in mind
several aspects, the Court should not interfere with the same.
23. In Narmada Bachao Andolan V. Union of India[14], it has been
held thus:
“It is now well settled that the courts, in the exercise of
their jurisdiction, will not transgress into the field of policy
decision. Whether to have an infrastructural project or not and
what is the type of project to be undertaken and how it has to be
executed, are part of policy-making process and the courts are
ill-equipped to adjudicate on a policy decision so undertaken.
The court, no doubt, has a duty to see that in the undertaking of
a decision, no law is violated and people’s fundamental rights
are not transgressed upon except to the extent permissible under
the Constitution.”
24. In this context, it is fruitful to refer to the authority in
Rusom Cavasiee Cooper V. Union of India[15], wherein it has been
expressed thus:
“It is again not for this Court to consider the relative merits
of the different political theories or economic policies... This
Court has the power to strike down a law on the ground of want of
authority, but the Court will not sit in appeal over the policy
of Parliament in enacting a law”.
25. In Premium Granites V. State of Tamil Nadu[16], while dealing
with the power of the courts in interfering with the policy decision,
the Court has ruled that it is not the domain of the court to embark
upon unchartered ocean of public policy in an exercise to consider as
to whether a particular public policy is wise or a better public
policy could be evolved. Such exercise must be left to the discretion
of the executive and legislative authorities as the case may be. The
court is called upon to consider the validity of a public policy only
when a challenge is made that such policy decision infringes
fundamental rights guaranteed by the Constitution of India or any
other statutory right.
26. In M.P. Oil Extraction and Anr. V. State of M.P. & Ors.[17], a
two-Judge Bench opined that:
“.......... The executive authority of the State must be held to
be within its competence to frame a policy for the administration
of the State. Unless the policy framed is absolutely capricious
and, not being informed by any reason whatsoever, can be clearly
held to be arbitrary and founded on mere ipse dixit of the
executive functionaries thereby offending Article 14 of the
Constitution or such policy offends other constitutional
provisions or comes into conflict with any statutory provision,
the Court cannot and should not outstep its limit and tinker with
the policy decision of the executive functionary of the State.”
27. In State of M.P. V. Narmada Bachao Andolan & Anr.[18], after
referring to the State of Punjab V. Ram Lubhaya Bagga[19], the Court
ruled thus:
“The Court cannot strike down a policy decision taken by the
Government merely because it feels that another decision would
have been fairer or more scientific or logical or wiser. The
wisdom and advisability of the policies are ordinarily not
amenable to judicial review unless the policies [pic]are contrary
to statutory or constitutional provisions or arbitrary or
irrational or an abuse of power. (See Ram Singh Vijay Pal Singh
v. State of U.P.[20], Villianur Iyarkkai Padukappu Maiyam v.
Union of India[21] and State of Kerala v. Peoples Union for Civil
Liberties[22].)”
28. From the aforesaid pronouncement of law, it is clear as noon day
that it is not within the domain of the courts to embark upon an
enquiry as to whether a particular public policy is wise and
acceptable or whether a better policy could be evolved. The court can
only interfere if the policy framed is absolutely capricious or not
informed by reasons or totally arbitrary and founded ipse dixit
offending the basic requirement of Article 14 of the Constitution.
In certain matters, as often said, there can be opinions and opinions
but the Court is not expected to sit as an appellate authority on an
opinion.
29. As has been stated earlier, the Central Government had issued a
Notification prescribing the series of informations to be collected
during the census. It covers many areas. It includes information
relating to Scheduled Castes and Scheduled Tribes and does not refer
to any other caste. In such a situation, it is extremely difficult to
visualize that the High Court, on the first occasion, without having a
lis before it in that regard, could even have thought of issuing a
command to the Census Department to take all such measures towards
conducting the caste-wise census in the country so that the social
justice in its true sense, which is the need of the hour, could be
achieved. This, irrefragably, is against the power conferred on the
court. The High Court had not only travelled beyond the lis in the
first round of litigation, but had really yielded to some kind of
emotional perspective, possibly paving the adventurous path to
innovate. It is legally impermissible. On the second occasion, where
the controversy squarely arose, the High Court did not confine to the
restrictions put on the jurisdiction and further without any kind of
deliberation, repeated the earlier direction. The order is
exceptionally cryptical. That apart, it is legally wholly
unsustainable. The High Court, to say the least, had no justification
to pave such a path and we have no hesitation in treating the said
path as a colossal transgression of power of judicial review, and that
makes the order sensitively susceptible.
30. Consequently, the appeal is allowed, the judgments and orders
dated 24.10.2008 and 12.5.2010 passed in W.P.(C) No. 25785/2005 and
W.P.(C) No. 10090/2010 respectively are set aside. There shall be no
order as to costs.
........................J.
(DIPAK MISRA)
........................................J.
(ROHINTON FALI NARIMAN)
................................J.
(UDAY UMESH LALIT)
NEW DELHI;
NOVEMBER 07, 2014
-----------------------
[1] BACON, Essays: Of Judicature in I The Works of Francis Bacon (Montague,
Basil, Esq. ed., Philadelphia: A Hart, late Carey & Hart, 1852), pp. 58-59.
[2] FRANKFURTEER, Felix in Clark, Tom C., “ Mr. Justice Frankfurter: ‘A
Heritage for all Who Love the Law’” 51 A.B.A.J. 330, 332 (1965)
[3] Yale University Press 1921 Edn., Pg- 114
[4] JT 2014 (8) SC 305
[5] (2004) 1 SCC 317
[6] AIR 1963 SC 786
[7] (1984) 4 SCC 251
[8] (2009) 1 SCC 768
[9] (2005) 13 SCC 287
[10] (1989) 4 SCC 187
[11] 1992 Supp (1) SCC 548
[12] (1982) 1 SCC 271
[13] (2004) 9 SCC 362
[14] (2000) 10 SCC 664
[15] (1970) 1 SCC 248
[16] (1994) 2 SCC 691
[17] (1997) 7 SCC 592
[18] (2011) 7 SCC 639
[19] (1998) 4 SCC 117
[20] (2007) 6 SCC 44
[21] (2009) 7 SCC 561
[22] (2009) 8 SCC 46
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9996 OF 2014
[Arising out of S.L.P. (Civil) No. 480 of 2012]
Census Commissioner & Others ... Appellants
Versus
R. Krishnamurthy ... Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal depicts and, in a way, sculpts the non-
acceptance of conceptual limitation in every human sphere including
that of adjudication. No adjudicator or a Judge can conceive the idea
that the sky is the limit or for that matter there is no barrier or
fetters in one’s individual perception, for judicial vision should not
be allowed to be imprisoned and have the potentiality to cover
celestial zones. Be it ingeminated, refrain and restrain are the
essential virtues in the arena of adjudication because they guard as
sentinel so that virtuousness is constantly sustained. Not for
nothing, centuries back Francis Bacon[1] had to say thus:-
“Judges ought to be more learned than witty, more reverend than
plausible, and more advised than confident. Above all things,
integrity is their portion and proper virtue......Let the judges
also remember that Solomon’s throne was supported by lions on
both sides: let them be lions, but yet lions under the throne.”
2. Almost half a century back Frankfurter, J.[2] sounded a note of
caution:-
“For the Highest exercise of judicial duty is to subordinate
one’s personal pulls and one’s views to the law of which we are
all guardians-those impersonal convictions that make a society a
civilized community, and not the victims of personal rule.”
3. In this context, it is seemly to reproduce the warning of Benjamin N.
Cardozo in The Nature of the Judicial process[3] which rings of
poignant and inimitable expression:-
“The Judge even when he is free, is still not wholly free. He
is not to innovate at pleasure. He is not a knight errant
roaming at will in pursuit of his own ideal of beauty or of
goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by
system, and subordinated to ‘the primordial necessity of order
in social life’.”
4. In Tata Cellular V. Union of India (1994) 6 SCC 651, while dealing
with the concept of judicial review, this Court referred to a passage
worded by Chief Justice Neely, which is as follows:-
‘I have very few illusions about my own limitations as a judge and
from those limitations I generalize to the inherent limitations of
all appellate courts reviewing rate cases. It must be remembered
that this Court sees approximately 1262 cases a year with five
judges. I am not an accountant, electrical engineer, financier,
banker, stock broker, or systems management analyst. It is the
height of folly to expect judges intelligently to review a 5000
page record addressing the intricacies of public utility
operation.’
5. The fundamental intention of referring to the aforesaid statements may
at various times in the history of law is to recapitulate basic
principles that have to be followed by a Judge, for certain sayings at
times become necessitous to be told and re-narrated. The present case
exposits such a situation, a sad one.
6. The chronology has its own relevance in the instant case. One Dr. E.
Sayedah preferred W.P No. 25785 of 2005 in the High Court of Madras
for issue of a writ of certiorari for quashment of the order passed by
the Central Administrative Tribunal in O.A. No.3/2002 on the
foundation that when there is no Scheduled Tribe population in the
Union Territory of Pondicherry and there is no Presidential
notification under Article 342 of the Constitution of India there
cannot be any reservation for Scheduled Tribe in the said Union
Territory and, therefore, the appointment of the applicant in the
Original Application who was appointed solely on the base that he
belonged to Scheduled Tribe was illegal. However, the High Court
declined to interfere with the appointment considering the length of
service but observed that the appointee was not entitled for any
reservation in promotion. The High Court also recorded certain other
conclusions which are really not relevant for the present purpose.
The direction that really propelled the problem is as follows:-
“When it is the position that after 1931, there had never been
any caste-wise enumeration or tabulation and when there can not
be any dispute that there is increase in the population of
SC/ST/OBC manifold after 1931, the percentage of reservation
fixed on the basis of population in the year 1931 has to be
proportionately increased, by conducting caste-wise census by the
Government in the interest of the weaker sections of the society.
We direct the Census Department of the Government of India to
take all such measures towards conducting the caste-wise census
in the country at the earliest and in a time bound manner, so as
to achieve the goal of social justice in its true sense, which is
the need of the hour.”
7. At this juncture, to continue the chronology, it is pertinent to
mention that a Writ Petition No. 21172/2009 was filed before the High
Court of Judicature at Madras, which was disposed of on 21.1.2010.
While disposing of the writ petition, the High Court had directed as
follows:
“6. The second respondent, has filed a counter and in paragraph
5 thereof, it is stated that the second respondent have taken up
the matter with the Ministry of Social Justice and Empowerment,
as the issues relating to SCs, STs and OBCs; are within the
domain of that Ministry. The learned counsel for the
respondents, on the instructions of the Regional Director,
Chennai from the office of the second respondent, states that the
petitioner will got a reply from the respondents within eight
weeks from today. We hope that the respondents will consider the
representation of the petitioner Association in all seriousness
and send them an appropriate reply.”
8. Be it stated, the Registrar General and Census Commissioner was
the respondent no.2 therein. After the writ petition was disposed of,
the representation preferred by Mr. K. Balu, President, Advocates
Forum for Social Justice, was disposed and the order was communicated
to the writ petitioner. It reads as follows:-
“2. Caste-wise enumeration in the census has been given up as a
matter of policy from 1951 onwards. In pursuance of this policy
decision, castes other than Scheduled Castes and Scheduled Tribes
have not been enumerated in all the Censuses since 1951. In
Census 2011 also no question on enumeration of castes other than
Scheduled Castes and Scheduled Tribes has been included. As
such, the first phase of Census 2011 enumeration, namely, the
Houselisting and Housing Census is commencing on the 1st of
April, 2010. The forms required for this phase of the Census
has already been printed in many States and Instruction Manuals
required for training the enumerators has also been finalized and
printed. The second phase of Census 2011, namely, Population
Enumeration, is due to be conducted in February 2011. The data
gathered in the first phase (April to September 2010) is linked
to the data to be collected in February-March 2011. Hence,
enumerating castes other than Scheduled Castes and Scheduled
Tribes will not be possible in that phase also. As such, it is
not possible to include any question relating to the enumeration
of Castes other than Scheduled Castes and Scheduled Tribes in the
Census of India 2011.
3. As regards the policy decision whether castes other than
the Scheduled Castes and Scheduled Tribes should be enumerated,
the manner in which such enumeration should be done and by whom,
the matter has been referred to the nodal Ministry, i.e. Ministry
of Social Justice and Empowerment.”
9. At this juncture, it may be noticed that the Writ Petition(C)
No. 132/2010 was filed before this Court by one Kishore Govind Kanhere
Vidharbha and Another seeking the similar relief, which was disposed
of on 13.09.2010 by passing the following order:
“Learned counsel for the petitioners states that as the purpose
of the writ petition stands worked out, he would like to withdraw
the petition. The writ petition is, accordingly, dismissed as
withdrawn.”
10. Presently, we shall proceed to state how the purpose of the
writ petition had worked out. The respondent, R. Krishnamurthy had
preferred Writ Petition(C) No. 10090/2010 which stood disposed of by
Division Bench by the impugned order. As is manifest, the Division
Bench has referred to its earlier decision passed in W.P.(C) No.
25785/2005 and after reproducing the paragraph from the said judgment,
opined as follows:-
“Since the relief sought for in the present writ petition has
already been answered in the affirmative by issuing a direction
to the authorities to take all measures towards conducting the
caste-wise census in the country, we are of the considered
opinion that this petition is also entitled to be allowed.
Accordingly, this writ petition is allowed on the same terms.”
11. Criticizing the aforesaid direction, it is submitted by Mr. R.S.
Suri, learned senior counsel that the High Court on the earlier
occasion had issued a direction without making the Census Commissioner
as a party and further there was no justification for issuance of such
a direction. As far as the impugned order is concerned, it is urged
by Mr. Suri that the direction issued by the Division Bench
tantamounts to interference in a policy decision as framed under
Section 8 of the Census Act, 1940, (for brevity ‘the Act’) as amended
in 1993. Learned senior counsel would contend that the policy
stipulates for carrying out the census which includes scheduled castes
and scheduled tribes, but not the other castes. He would urge that
many a High Court have dismissed similar writ petitions and, in fact,
this Court in WP(C) No. 133/2009 have declined to interfere and the
same was dismissed as withdrawn. It is proponed by him the view
expressed by the High Court is absolutely vulnerable and hence,
deserved to be lancinated.
12. Despite service of notice, there has been no appearance on
behalf of the respondent.
13. To appreciate the submissions canvassed by the learned counsel
for the appellant, it is necessary to refer to Section 8 of the Act,
which reads as follows: -
“Section 8 – Asking of questions and obligation to answer
(1) A census officer may ask all such questions of all persons
within the limits of the local area for which he is appointed as,
by instructions issued in this behalf by the [Central Government]
and published in the Official Gazette, he may be directed to ask.
(2) Every person of whom any question is asked under sub-
section(1) shall be legally bound to answer such question to the
best of his knowledge or belief:
Provided that no person shall be bound to state the name of
any female member of his household, and no woman shall be
bound to state the name of her husband or deceased husband
or of any other person whose name she is forbidden by
custom to mention.”
14. On the foundation of the aforesaid provision, the competent
authority of the Central Government, in exercise of the power
conferred by sub-section(1) of section 8 of the Census Act, had issued
a Notification on 13.1.2000 which relates to instructions meant for
Census Officers. Clause 8 of the said Notification being relevant is
reproduced below:
“8. Information relating to the head of the household
(a) Name of the head of the household
(b) Male – 1/Female – 2
(c) If SC(Scheduled Caste) or ST (Scheduled Tribe) or Other?
SC(Scheduled Caste)-1/ST(Scheduled Tribe)-2/Other-3”
15. After the said census was carried out, another Notification
dated 25.2.2010 was issued. Clause 10 of the said Notification reads
as follows:
“10. If Scheduled Caste/Scheduled Tribe/Others.
16. After the Notification in the year 2010 was issued, the Office
of the Registrar General and Census Commissioner issued the
Instruction Manual for Houselisting and Housing Census. In Paragraph
1.2, the historical background has been stated. It is as follows:
“Historical background of Indian Census
1.2 The Indian Census has a rich tradition and enjoys the
reputation of being one of the best in the world. The first
Census in India was conducted in the year 1872. This was
conducted at different points of time in different parts of the
country. In 1881 a Census was taken for the entire country
simultaneously. Since then, Census has been conducted every ten
years, without a break. Thus, the Census of India 2011 will be
the fifteenth in this unbroken series since 1872 and the seventh
after independence. It is through the missionary zeal and
dedication of Enumerators like you that the great historical
tradition of conducting the Census uninterruptedly has been
maintained in spite of several adversities like wars, epidemics,
natural calamities, political unrest, etc. Participation in the
Census by the people of India is indeed a true reflection of the
national spirit of unity in diversity.”
17. Thereafter, the Instruction Manual provides for objectives of
conducting a census. We think it appropriate to reproduce the same:
“1.3 India is a welfare State. Since independence, Five Year
Plans, Annual Plans and various welfare schemes have been
launched for the benefit of the common man. All these require
information at the grass root level. This information is
provided by the Census.
4. Have you ever wondered how the number of seats in
Parliamentary/Assembly Constituencies, Panchayats and other
local bodies are determined? Similarly, how the boundaries of
such constituencies are demarcated? Well the answer to that is
also the Census. These are just a few examples. Census provides
information on a large number of areas. Thus, you are not merely
collecting information; you are actually a part of a massive
nation building activity.
5. The Houselisting and Housing Census has immense utility as it
will provide comprehensive data on the conditions of human
settlements, housing deficit and consequently the housing
requirement to be taken care of in the formulation of housing
policies. This will also provide a wide range of data on
amenities and assets available to the households, information
much needed by various departments of the Union and State
Governments and other non-Governmental agencies for development
and planning at the local level as well as the State level.
This would also provide the base for Population Enumeration.
6. Population Enumeration provides valuable information about the
land and its people at a given point of time. It provides
trends in the population and its various characteristics, which
are an essential input for planning. The Census data are
frequently required to develop sound policies and programmes
aimed at fostering the welfare of the country and its people.
This data source has become indispensable for effective and
efficient public administration besides serving the needs of
scholars, businessmen, industrialists, planners and electoral
authorities, etc. Therefore, Census has become a regular
feature in progressive counties, whatever be their size and
political set up. It is conducted at regular intervals for
fulfilling well-defined objectives. One of the essential
features of Population Enumeration is that each person is
enumerated and her/his individual particulars are collected at a
well-defined point of time.”
18. From the aforesaid, it is graphically vivid that at no point of
time, the Central Government had issued a Notification to have a
census conducted on the caste basis. What is reflectible is that
there is census of Scheduled Castes and Scheduled Tribes, but census
is not done in respect of other castes or on caste basis. That
apart, the instructions elaborately spell out the necessity and the
purpose. It is reflectible of the concern pertaining to assimilation
of certain datas that would help in nation-building, trends of
population, availability of requisite inputs for planning and
fostering the welfare of the country. Be it noted, the Notifications
dated 13.01.2000 and 25.02.2010 enumerate collection of many an
information including household number, total number of persons
normally residing in the household (persons, males, females), name of
the head of the household, ownership status of the house, number of
married couple(s) living in the household, main source of drinking
water, availability of drinking water source, main source of lighting,
latrine within the premises, type of latrine facility, waster water
outlet, bathing facility, kitchen, fuel used for cooking,
Radio/Transistor, Television, Computer/Laptop, Telephone/Mobile
phone, Bicycle, Scooter/Motor Cycle/ Moped, Car/Jeep/Van, and availing
banking services, etc. Thus, the Central Government has framed a
policy and the policy, as is demonstrable, covers many an arena
keeping in view certain goals and objectives.
19. As we evince from the sequence of events, the High Court in the
earlier judgment had issued the direction relating to carrying of
census in a particular manner by adding certain facets though the lis
was absolutely different. The appellant, the real aggrieved party,
was not arrayed as a party-respondent. The issue was squarely raised
in the subsequent writ petition where the Census Commissioner was a
party and the earlier order was repeated. There can be no shadow of
doubt that earlier order is not binding on the appellant as he was not
a party to the said lis. This view of ours gets fructified by the
decision in H.C. Kulwant Singh and others V. H.C. Daya Ram and
others[4] wherein this Court, after referring to the judgments in
Khetrabasi Biswal V. Ajaya Kumar Baral & Ors.[5], Udit Narain Singh
Malpaharia V. Board of Revenue[6], Prabodh Verma & Ors. Vs. State of
U.P. & Ors.[7] and Tridip Kumar Dingal & Ors. V. State of W.B. &
Ors.[8] has ruled thus:
“..... if a person who is likely to suffer from the order of the
court and has not been impleaded as a party has a right to ignore
the said order as it has been passed in violation of the
principles of natural justice.”
20. The earlier decision being not a binding precedent, it can be
stated with certitude that the impugned judgment has really compelled
the appellant to question the defensibility of the same.
21. The centripodal question that emanates for consideration is
whether the High Court could have issued such a mandamus commanding
the appellant to carry out a census in a particular manner. The High
Court has tried to inject the concept of social justice to fructify
its direction. It is evincible that the said direction has been
issued without any deliberation and being oblivious of the principle
that the courts on very rare occasion, in exercise of powers of
judicial review, would interfere with a policy decision. Interference
with the policy decision and issue of a mandamus to frame a policy in
a particular manner are absolutely different. The Act has conferred
power on the Central Government to issue Notification regarding the
manner in which the census has to be carried out and the Central
Government has issued Notifications, and the competent authority has
issued directions. It is not within the domain of the Court to
legislate. The courts do interpret the law and in such interpretation
certain creative process is involved. The courts have the
jurisdiction to declare the law as unconstitutional. That too, where
it is called for. The court may also fill up the gaps in certain
spheres applying the doctrine of constitutional silence or abeyance.
But, the courts are not to plunge into policy making by adding
something to the policy by way of issuing a writ of mandamus. There
the judicial restraint is called for remembering what we have stated
in the beginning. The courts are required to understand the policy
decisions framed by the Executive. If a policy decision or a
Notification is arbitrary, it may invite the frown of Article 14 of
the Constitution. But when the Notification was not under assail and
the same is in consonance with the Act, it is really unfathomable how
the High Court could issue directions as to the manner in which a
census would be carried out by adding certain aspects. It is, in
fact, issuance of a direction for framing a policy in a specific
manner. In this context, we may refer to a three-Judge Bench decision
in Suresh Seth V. Commr., Indore Municipal Corporation[9] wherein a
prayer was made before this Court to issue directions for appropriate
amendment in the M.P. Municipal Corporation Act, 1956 so that a person
may be debarred from simultaneously holding two elected offices,
namely, that of a Member of the Legislative Assembly and also of a
Mayor of a Municipal Corporation. Repelling the said submission, the
Court held:
“In our opinion, this is a matter of policy for the elected
representatives of people to decide and no direction in this
regard can be issued by the Court. That apart this Court cannot
issue any direction to the legislature to make any particular
kind of enactment. Under out constitutional scheme Parliament
and Legislative Assemblies exercise 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 Assn. v. Union of India[10] (SCC 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 a subordinate legislation pursuant to
the delegated authority of a legislature, such executive
authority cannot be asked to enact a law which it has been
empowered to do under the delegated legislative authority. This
view has been reiterated in state of J & K v A.R. Zakki[11]. In
A.K. Roy v. Union of India[12] it was held that no mandamus can
be issued to enforce an Act which has been passed by the
legislature.”
22. At this juncture, we may refer to certain authorities about the
justification in interference with the policy framed by the
Government. It needs no special emphasis to state that interference
with the policy, though is permissible in law, yet the policy has to
be scrutinized with ample circumspection. In N.D. Jayal and Anr. V.
Union of India & Ors.[13], the Court has observed that in the matters
of policy, when the Government takes a decision bearing in mind
several aspects, the Court should not interfere with the same.
23. In Narmada Bachao Andolan V. Union of India[14], it has been
held thus:
“It is now well settled that the courts, in the exercise of
their jurisdiction, will not transgress into the field of policy
decision. Whether to have an infrastructural project or not and
what is the type of project to be undertaken and how it has to be
executed, are part of policy-making process and the courts are
ill-equipped to adjudicate on a policy decision so undertaken.
The court, no doubt, has a duty to see that in the undertaking of
a decision, no law is violated and people’s fundamental rights
are not transgressed upon except to the extent permissible under
the Constitution.”
24. In this context, it is fruitful to refer to the authority in
Rusom Cavasiee Cooper V. Union of India[15], wherein it has been
expressed thus:
“It is again not for this Court to consider the relative merits
of the different political theories or economic policies... This
Court has the power to strike down a law on the ground of want of
authority, but the Court will not sit in appeal over the policy
of Parliament in enacting a law”.
25. In Premium Granites V. State of Tamil Nadu[16], while dealing
with the power of the courts in interfering with the policy decision,
the Court has ruled that it is not the domain of the court to embark
upon unchartered ocean of public policy in an exercise to consider as
to whether a particular public policy is wise or a better public
policy could be evolved. Such exercise must be left to the discretion
of the executive and legislative authorities as the case may be. The
court is called upon to consider the validity of a public policy only
when a challenge is made that such policy decision infringes
fundamental rights guaranteed by the Constitution of India or any
other statutory right.
26. In M.P. Oil Extraction and Anr. V. State of M.P. & Ors.[17], a
two-Judge Bench opined that:
“.......... The executive authority of the State must be held to
be within its competence to frame a policy for the administration
of the State. Unless the policy framed is absolutely capricious
and, not being informed by any reason whatsoever, can be clearly
held to be arbitrary and founded on mere ipse dixit of the
executive functionaries thereby offending Article 14 of the
Constitution or such policy offends other constitutional
provisions or comes into conflict with any statutory provision,
the Court cannot and should not outstep its limit and tinker with
the policy decision of the executive functionary of the State.”
27. In State of M.P. V. Narmada Bachao Andolan & Anr.[18], after
referring to the State of Punjab V. Ram Lubhaya Bagga[19], the Court
ruled thus:
“The Court cannot strike down a policy decision taken by the
Government merely because it feels that another decision would
have been fairer or more scientific or logical or wiser. The
wisdom and advisability of the policies are ordinarily not
amenable to judicial review unless the policies [pic]are contrary
to statutory or constitutional provisions or arbitrary or
irrational or an abuse of power. (See Ram Singh Vijay Pal Singh
v. State of U.P.[20], Villianur Iyarkkai Padukappu Maiyam v.
Union of India[21] and State of Kerala v. Peoples Union for Civil
Liberties[22].)”
28. From the aforesaid pronouncement of law, it is clear as noon day
that it is not within the domain of the courts to embark upon an
enquiry as to whether a particular public policy is wise and
acceptable or whether a better policy could be evolved. The court can
only interfere if the policy framed is absolutely capricious or not
informed by reasons or totally arbitrary and founded ipse dixit
offending the basic requirement of Article 14 of the Constitution.
In certain matters, as often said, there can be opinions and opinions
but the Court is not expected to sit as an appellate authority on an
opinion.
29. As has been stated earlier, the Central Government had issued a
Notification prescribing the series of informations to be collected
during the census. It covers many areas. It includes information
relating to Scheduled Castes and Scheduled Tribes and does not refer
to any other caste. In such a situation, it is extremely difficult to
visualize that the High Court, on the first occasion, without having a
lis before it in that regard, could even have thought of issuing a
command to the Census Department to take all such measures towards
conducting the caste-wise census in the country so that the social
justice in its true sense, which is the need of the hour, could be
achieved. This, irrefragably, is against the power conferred on the
court. The High Court had not only travelled beyond the lis in the
first round of litigation, but had really yielded to some kind of
emotional perspective, possibly paving the adventurous path to
innovate. It is legally impermissible. On the second occasion, where
the controversy squarely arose, the High Court did not confine to the
restrictions put on the jurisdiction and further without any kind of
deliberation, repeated the earlier direction. The order is
exceptionally cryptical. That apart, it is legally wholly
unsustainable. The High Court, to say the least, had no justification
to pave such a path and we have no hesitation in treating the said
path as a colossal transgression of power of judicial review, and that
makes the order sensitively susceptible.
30. Consequently, the appeal is allowed, the judgments and orders
dated 24.10.2008 and 12.5.2010 passed in W.P.(C) No. 25785/2005 and
W.P.(C) No. 10090/2010 respectively are set aside. There shall be no
order as to costs.
........................J.
(DIPAK MISRA)
........................................J.
(ROHINTON FALI NARIMAN)
................................J.
(UDAY UMESH LALIT)
NEW DELHI;
NOVEMBER 07, 2014
-----------------------
[1] BACON, Essays: Of Judicature in I The Works of Francis Bacon (Montague,
Basil, Esq. ed., Philadelphia: A Hart, late Carey & Hart, 1852), pp. 58-59.
[2] FRANKFURTEER, Felix in Clark, Tom C., “ Mr. Justice Frankfurter: ‘A
Heritage for all Who Love the Law’” 51 A.B.A.J. 330, 332 (1965)
[3] Yale University Press 1921 Edn., Pg- 114
[4] JT 2014 (8) SC 305
[5] (2004) 1 SCC 317
[6] AIR 1963 SC 786
[7] (1984) 4 SCC 251
[8] (2009) 1 SCC 768
[9] (2005) 13 SCC 287
[10] (1989) 4 SCC 187
[11] 1992 Supp (1) SCC 548
[12] (1982) 1 SCC 271
[13] (2004) 9 SCC 362
[14] (2000) 10 SCC 664
[15] (1970) 1 SCC 248
[16] (1994) 2 SCC 691
[17] (1997) 7 SCC 592
[18] (2011) 7 SCC 639
[19] (1998) 4 SCC 117
[20] (2007) 6 SCC 44
[21] (2009) 7 SCC 561
[22] (2009) 8 SCC 46
