Supreme Court of India
CENSUS COMMISSIONER & OTHERSversusR. KRISHNAMURTHY
- Citation
- 2014 INSC 762
- Decided
- 7 November 2014
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The High Court exceeded its jurisdiction; courts cannot direct the manner of the census, and the orders directing a caste‑wise census are set aside.
Summary
The Supreme Court examined a challenge to two orders of the Madras High Court that had directed the Census Department to conduct a caste‑wise census, including Scheduled Castes and Scheduled Tribes, in order to achieve social justice. The appellant, the Census Commissioner, was not a party to the earlier writ petition that issued the direction, and the High Court later repeated the order in a second writ petition. The Court held that the High Court had exceeded its jurisdiction by issuing a mandamus directing the manner of the census, a policy decision vested in the Central Government under Section 8 of the Census Act, 1940. It emphasized that courts may not legislate or dictate executive policy and that the earlier High Court order was not binding on the Commissioner. Consequently, the Supreme Court set aside the High Court judgments and allowed the appeal.
Issues considered
- The High Court’s jurisdiction to issue a mandamus directing the Census Department to conduct a caste‑wise census.
- Whether a direction issued by a court is binding when the affected party (Census Commissioner) was not a party to the proceeding.
- Whether courts may interfere with policy decisions made under the Census Act, 1940.
Legislation cited
- Census Act, 1940s. 8
Subjects
Administrative lawPolicy decisionJudicial reviewMandamusCensus ActCaste‑wise censusNatural justiceSeparation of powers
Judgment
• (2014] 11 S.C.R. 463
CENSUS COMMISSIONER & OTHERS
v.
A
R. KRISHNAMURTHY
(Civil Appeal No. 9996 of 2014)
NOVEMBER 07, 2014
B
[DIPAK MISRA, ROHINTON FALi NARIMAN AND
UDAY UMESH LAUT, JJ.]
Administrative law:
c
Policy decision - In an earlier writ petition regarding the
appointment and reservation for Scheduled Tribe, the High
Court passed directions to the Census Department 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 D
to achieve the goal of social justice in its true sense - Census
Department was not arrayed as a party in that writ petition -
In the instant writ petition, the High Court referred to the said
directions and allowed the writ petition - Held: High Court had
travelled beyond the /is in the first round of litigation - High
E
Court could not have issued such a mandamus commanding
the Census Department to carry out a census in a particular
manner and it erroneously tried to inject the concept of social
justice to fructify its direction - Earlier order was not binding
on the Census Department as it was not party to the said /is
- High Court's order was wholly unsustainable - Census Act, F
1940 - s.8.
Policy decision - Interference by courts, scope of.
Allowing the appeal, the Court G
HELD: 1. 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
463 H
464 SUPREME COURT REPORTS [2014) 11 S.C.R. ,.
A 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
s doubt that earlier order is not binding on the appellant as
he was not a party to the said lis. [Para 19] [476-F-G]
Tata Cellular V. Union of India 1994 (2) Suppl. SCR
122: (1994) 6 SCC 651; H. C. Ku/want Singh and Ors. \/. H. C.
C Daya Ram & Ors. JT 2014 (8) SC 305; Khetrabasi Biswa/ V.
Ajaya Kumar Baral & Ors. 2003 (6) Suppl. SCR 8: (2004)
1 SCC 317; Udit Narain Singh Malpaharia V. Board of .
Revenue 1963 Suppl. SCR 676: AIR 1963 SC 786;
Prabodh Verma & Ors. Vs. State of U.P. & Ors. 1985 (1) SCR
216:(1984) 4 SCC 251; Tridip Kumar Dingal & Ors. V. State
D bf W.B. & Ors. 2008 (15) SCR 194:(2009) 1 sec 768 -
relied on.
2. The direction was issued wit~out any deliberation
and being oblivious of the principle that the courts on
: E 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 Census Act, 1940 has conferred
F 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. [Para 21] [477-E-G]
G Suresh Seth V. Commr. Indore Municipal Corporation
(2005) 13 SCC 287; Supreme Court Employees' Welfare
Assn. v. Union of India 1989 (3) SCR 488: (1989) 4 SCC 187;
J & K v A.R. Zakki 1991 (3) Suppl. SCR 216:1992 Supp
(1) SCC 548; A.K. Roy v. Union of India 1982 (2) SCR
H 272:(1982) 1 SCC 271 - relied on.
.CENSUS COMMISSIONER v. R. KRISHNAMURTHY 465
3. It is not within the domain of the courts to embark A
upon an enquiry as to whether a particular public policy
is wise and acceptable or whether a better policy could
be evolved. The Central Government had issued a
Notification prescribing the series of information to be
collected during the census. It includes information B
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 c
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 is against the
power conferred on the court. The High Court had not 0
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
E
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
cryptic. That apart, it is legally wholly unsustainable.
[Paras 28 and 29] [481-F; 482-8-F]
F
N.D. Jayal and Anr. V. Union of India & Ors. 2003 (3)
Suppl. SCR 152: (2004) 9 SCC 362: Narmada Bachao
Ando/an V. Union of India 2000 (4) Suppl. SCR 94: (2000)
10 SCC 664; Rusom Cavasiee Cooper V. Union of India
1970 (3) SCR 530:(1970) 1 SCC 248; Premium Granites V. G
State of Tamil Nadu 1994 (1) SCR 579: (1994) 2 SCC 691;
M.P. Oil Extraction and Anr. V. State of M.P. & Ors. 1997 (1)
Suppl. SCR 671: (1997) 7 SCC 592; State of M.P. V.
Narmada Bachao Ando/an & Anr. 2011 (6) SCR 443: (2011)
H
466 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A 7 SCC 639; State of Punjab V. Ram Lubhaya Bagga 1998
(1) SCR 1120:(1998) 4 SCC 117; Ram Singh Vijay Pal Singh
v. State of U.P. 2007 (5) SCR 1060:(2007) 6 SCC 44;
Vi/lianur lyarkkai Padukappu Maiyam v. Union of India 2009
(9) SCR 225:(2009) 7 SCC 561; State of Kera/a v. Peoples
B Union for Civil Liberties 2009 (11) SCR 142: (2009) 8 SCC
46 - relied on.
Case Law Reference:
1994 (2) Suppl. SCR 122 relied on Para 4
c JT 2014 (8) SC 305 relied on Para 19
2003 (6) Suppl. SCR 8 relied on Para 19
1963 Suppl. SCR 676 relied on Para 19
D 1985 (1) SCR 216 relied on Para 19
2008 (15) SCR 194 relied on Para 19
.(2005) 13 sec 281 relied on Para 21
1989 (3) SCR488 relied on Para 21
E
1991 (3) Suppl. SCR 216 relied on Para 21
1982 (2) SCR 272 relied on Para 21
2003 (3) Suppl. SCR 152 relied on Para 22
F
2000 (4) Suppl. SCR 94 relied on Para 23
1970 (3) SCR 530 relied on Para 24
1994 (1) SCR 579 relied on Para 25
G
.,
1997 (1) Suppl. SCR 671 relied on Para 26
2011 (6) SCR 443 relied on Para 27
1998 (1) SCR 1120 relied on Para 27
H 2007 (5) SCR 1060 relied on Para 27
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY 467
2009 (9) SCR 225 relied on Para 27 A
2009 (11) SCR 142 relied on Para 27
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9996 of 2014.
B
From the Judgment & Order dated 12.05.2010 of the High
Court of Judicature at Madras in Writ Petition (Civil) No. 10090
of 2010.
R.S. Suri, Rachana Srivastava, Indra Sawhney, Sushma C
Suri, Sreekant N. Terdal for the Appellants.
R. Krishamurthy (Respondent-in-person)
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The present appeal depicts and, in D
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 E
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' had to say thus:- F
"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 G
throne was supported by lions on both sides: let them be
lions, but yet lions under the throne."
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. H
A
468 SUPREME COURT REPORTS (2014) 11 S.C.R.
2. Almost half a century back Frankfurter, J2. 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 ·
B
make a society a civilized community, and not the victims
of personal rule."
3. In this context, ii is seemly to reproduce the warning of
Benjamin N. Cardozo in The Nature of the Judicial process'
C 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
D 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'." ,
E
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:-
F
'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
G 1262 cases a year with five judges. I am not an
accountant, electrical engineer, financier, banker, stock
2. FRANKFURTEER, Felix in Clark, Tom C., " Mr. Justice Frankfurter: 'A
Heritage for all Who Lpve the Law"' 51 A.BAJ. 330, 332 (1965).
H 3. Yale University Press 1921 Edn., Pg- 114.
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY
[DIPAK MISRA, J.]
broker, or systems management analyst. It is the height of
folly to expect judges intelligently to review a 5000 page
469
A
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 8
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 C
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 0.A. No.3/2002 on the foundation that when there
is no Scheduled Tribe population in the Union Territory of D
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 E
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 F
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 G
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
i~terest of the weaker sections of the society. We direct H
470 SUPR!=ME COURT REPORTS (2014] 11 S.C.R. •
A 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."
B
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:
c
"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
D 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
E that the respondents will consider the representation of the
petitioner Association in all seriousness a11d send them an
appropriate reply."
8. Be it stated, the Registrar ~eneral and Census
F Commissioner w~s 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:-
G "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
H question on enumeration of castes other than Scheduled
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY 471
[DIPAK MISRA, J.]
Castes and Scheduled Tribes has been included. As such, A
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 B
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, c
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.
D
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 shou.ld
be done and by whom, the matter has been referred to the
nodal Ministry, i.e. Ministry of Social Justice and E
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 F
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, G
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 H
472 SUPREME COURT REPORTS [2014) 11 S.C.R..
A 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:-
B.
"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
c to be allowed. Accordingly, this writ petition is allowed on
the same terms."
11. Criticizing the aforesaid direction, it is submitted by Mr.
RS. Suri, learned senior counsel that the High Court on the
D 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
E 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
F 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.
G 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
H Section 8 of the Act, which reads as follows: -
• CENSUS CQMMISSIONER v. R. KRISHNAMl!JRTHY 473
[DIPAK MISRA, J.] ·
"Sectiol) 8 - Asking of questions and obligation to answer A
(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 il1structions issued in this behalf by the
[Central Government] and published in the Official Gazette, B
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:
c
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 o
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
t;:ensus Act, had issued a Notification on 13.1.2000 which E
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 th~j;iousehold
' F
(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 G
Tribe)-2/0ther-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:
H
474 SUPREME COURT REPORTS [2014] 11 S.C.R . •
A "10. If Scheduled Caste/Scheduled Tribe/Others.
16. After the Notification in the year 201 O 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
8
stated. It is as follows:
"Historical background of Indian Census
1.2 The Indian Census has a rich tradition and enjoys the
c 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
D 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
E
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."
;>.·
F 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
G 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.
1.4 Have you ever wondered how the number of seats in
H
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY 475
[DIPAK MISRA, J.]
Parliamentary/Assembly Constituencies, Panchayats and A
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; B
you are actually a part of a massive nation building activity.
1.5 The Houselisting and Housing Census has immense
utility as it will provide comprehensive data on the
conditions of human settlements, housing deficit and C
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 D
planning at the local level as well as the State level. This
would also provide the base for Population Enumeration.
1.6 Population Enumeration provides valuable information
about the land and its people at a given point of time. It E
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 F
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 G
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."
H
476 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 18. From the aforesaid, it is graphically vivid that at no point
oftime, 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
B caste basis. That apart, the instructions elaborately spell out the
necessity and the purpose. It is reflectible of the concern
pertaining to assimilation of ce"rtain datas that would help in
nation-building, trends of population, availability of requisite
inputs for planning and fostering the welfare of the country. Be
c it rioted, 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
D 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/JeepNan,
E 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.
F 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.
G 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 wiew of ours gets fructified by the
H decision in H.C. Ku/want Singh and others V. H.C. Daya
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY 477
[DIPAK MISRA, J.]
Ram and others• wherein this Court, after referring to the A
judgments in Khetrabasi Biswal V. Ajaya Kumar Baral &
Ors. 5, Udit Narain Singh Ma/paharia V. Board of Revenue6 ,
Prabodh Verma & Ors. Vs. State of U.P. & Ors7 • and Tridip
Kumar Dingal & Ors. V. State of W.B. & Ors6. has ruled thus:
B
"..... 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 C
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 D
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 tpe said direction has been issued without any deliberation
E
and being oblivious of the principle that the courts on very rare
occasidn, 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
F
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
G
4. JT 2014 (8) SC 305.
_5c- .(2004) 1 sec 317.
6. AIR 1963 SC 786.
7. (1984) 4 sec 251.
8. (2Jl09) 1 sec 768. H
478 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A 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
B 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
c 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
0
out by adding certain aspects. It is, in fact, issuance of a
direction fodraming 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• wherein a prayer
E 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:
F
"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
G 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
H 9. (2005) 13 sec 287.
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY
[DIPAK MISRA, J.]
of legislation. In Supreme Court Employees' Welfare
Assn. v. Union of lndia 10 (SCC para 51) it has been held
479
A
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 B
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. Zakkt11 • In A.K. Roy v. Union of lndia 12 it
was held that no mandamus can be issued to enforce an c
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 D
policy has to be scrutinized with ample circumspection. In N.D.
Jaya/ and Anr. V. Union of India & Ors. 13, the Court h.as
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. E
23. In Narmada Bachao Ando/an V. Union of lndia 14 , it
has been held thus:
"It is now well settled that the courts, in the exercise
F
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
G
10. (1989) 4 sec 101.
11. 1992 Supp (1) sec 548.
12. (1982) 1 sec 211.
13. (2004) 9 sec 362.
14. (2000) 10 sec 664. H
480 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A 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."
B
24. In this context, it is fruitful to refer to the authority in
Rusom Cavasiee Cooper V. Union of lndia 15 , wherein it has
been expressed thus:
"It is again not for this Court to consider the relative merits
c 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".
0 25. In Premium Granites V. State of Tamil Nadu1•, 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
E 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
F 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.", a two-Judge Bench opined that:
G • .......... 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
15. (1970) 1 sec 248.
16. (1994) 2 sec 691.
H 11. (1997) 1 sec 592.
• CENSUS COMMISSIONER v. R. KRISHNAMURTHY 481
[DIPAK MISRA, J.]
absolutely capricious and, not being informed by any A
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 B
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 Ando/an &
Anr. 1 ~, after referring to the State of Punjab V. Ram Lubhaya C
19
Bagga , 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 D
amenable to judicial review unless the policies 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.2°, Villianur /yarkkai Padukappu Maiyam v. Union of
lndia 21 and State of Kera/a v. Peoples Union for Civil E
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
F
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 an~ founded ipse dixit offending the basic requirement
G
16. c2011) 1 sec 639.
19. (1996) 4 sec 111.
20. c2007) 6 sec 44.
21. c2009) 1 sec 561.
22. c2009) 6 sec 46. H
482 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 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
8 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 referto any other caste. In such
a situation, it is extremely difficult to visualize that the High Court,
C 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.
D 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
E 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
F 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 12.5.201 O passed in
G 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.
Devika Gujral Appeal allowed.
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