12 Dec 2016

High Courts not to issue directions akin to policy-framing: Supreme Court

In a recent decision the Supreme Court has set aside an order passed by the Allahabad High Court "since the High Court has travelled much beyond the lis to issue directions which" in its view "it could not have". In its decision in State of Uttar Pradesh v. Subhash Chandra Jaiswal [Civil Appeal No. 11381/2016 decision dated 29.11.2016] the Supreme Court notes that "it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter". According to it, "the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it." The Court observed;
"11. Having noted the aforesaid submissions, it is necessary to state that it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter. The concept, what is thought of or experienced cannot be ingrained or engrafted into an order solely because such a thought has struck the adjudicator. It must flow from the factual base and based on law. To elaborate, there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner. To say the least, some of the directions issued are not permissible and all of them are totally unrelated to the case before the High Court. We are constrained to say that the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it."
Noting its observations in earlier cases, the Supreme Court went on to lay certain parameters to be observed by the High Court judges while dealing with crucial aspects which make inroads in the functions and ambit of the executive and legislative operations in the following terms;
"17. A Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law.

23. Some of the directions, as we perceive, are in the sphere of policy. A court cannot take steps for framing a policy. As is evincible, the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. Be it stated, the directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. ..."
24. ... Thus anlaysed, we are of the convinced opinion that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it. Additionally, the High Court should have reminded itself that it cannot enter into the domain where amendment to legislations and other regulations are necessary. We are absolutely conscious that it is the duty of the State Government to discharge its obligations in the matters relating to law and order and remain alert to the issues that emerge. It has a duty also to see that the investigations are speedily completed in an appropriate manner. If there is a failure of law and order situation, the executive is to be blamed. In the maintenance of law and order situation the judicial officers are not to be involved. But the executive has to remain absolutely alive to its duties and we are sure, the State Government shall look into the aspects and endeavour to see that appropriate steps are taken to maintain the law and order situation.
25. A few words by way of clarification. Though we have not appreciated the opinion expressed and the directions issued by the High Court as the opinions are general in nature and directions fall in the legislative domain and some of them are beyond the scope of the litigation, yet we have observed certain aspects in the preceding paragraph. Our observations made hereinabove are words of caution for the State and we are sure that the State shall remain alive to its obligations."
However, before concluding on the subject, we feel that it is pertinent to point out the background in which the High Court felt compelled to issue the 'directions' as the Supreme Court opines them to be. The High Court was dealing with a case related to forgery being committed by some to obtain excise licences for sale of liquor in the State. Considering the material before it the High Court opined that even though investigation was carried out by the police officers, it was wanting in many respects. The High Court had sought an explanation from senior police functionaries who admitted to the lapse but attributed it to the fact that the investigation officers "remained busy carrying on other duties which resulted in getting less time for investigation purposes". As a fact it was pointed out that "in Allahabad district about 250 officers were conducting investigation for more than 11000 offences registered". The High Court opined that these aspects reflect "a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order" and accordingly proceeded certain directions as in its view "time has come where State should be asked to show its real sincerity required in the field not only for effective registration of cognizable offences but also proper and well studied investigation and effective prosecution to ensure appropriate punishment to guilty persons."

Accordingly the High Court, directed the senior police officers to "consider" over certain aspects which in the view of the High Court could remedy these issues. The High Court required these officers to consider separation of "investigation of crime and prosecution" "from normal policing or prevention of crime and other works, by constituting separate specialized cadre managed by officials well trained in respective fields"; etc. In other words the directions of the High Court were not for the police officials to abide by but to consider them and if found appropriate, to engulf them in the State police machinery in the form of reform. The observations of the High Court were only in the context of proposals to be examined by the State Government and yet the Supreme Court concludes that these were in the nature of directions which the High Court should not have issued. In our view there seems to be an appraisal by the Supreme Court that the police officials considered bound by these observations of the High Court irrespective of the High Court itself termed them as proposals and it was in this perceived nature of the High Court's observations that the Supreme Could termed as as directions. While the appellate powers of the Supreme Court and its ability to modify or reverse any order of the High Court is undoubted, the Supreme Court instead of setting aside the High Court could also have resolved the State's appeal by merely clarifying that the observations of the High Court were in the nature of proposals and the State Government was not bound to treat them as directions. 

Nonetheless, as things stand, the Supreme Court has set aside the High Court's order and directed all High Courts to confine their powers to adjudicating the lis and not go beyond. This could be a significant change in legal landscape in particularly so that the powers of the High Court in writ jurisdiction may come under scanner in the wake of the observations made in this decision of the Supreme Court.

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