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[Has the High Court power to issue directions to the State Government to
constitute “statutory body” for making admissions?]
Jyotshana Sharma and a number of other unsuccessful candidates for admission to the
two medical colleges of Jammu & Kashmir for the year 1986-87 challenged the selection by
filing writ petitions. A Division Bench of the High Court upheld the selection in general but
allowed some individual writ petitions on different grounds. The bench, after adjudicating
upon the points involved in the writ petitions, made the following observations:
“In future State Government shall entrust the selection process of the two
medical colleges to a statutory independent body who will be vested with the power
to conduct examination of written as also of viva voce.
Therefore, it is ideal that an independent statutory body is constituted for conduct
of entrance test for the MBBS/BDS course in the State which body shall be kept free
from executive influence. Till that is done, State may entrust the process of selection
to such a body which will be free from executive influence. At any rate we do not
approve Training Branch, or any other department of the State Government under the
control of administration or associated with the process of selection for the
MBBS/BDS course in the State Medical Colleges. Selection Committee, till a
statutory body is constituted, shall consist of such persons who are academicians of
high calibre and with the process of selection principals of the two medical colleges
shall necessarily be associated”.
KULDIP SINGH, J. – 17. Before adverting to the controversy directly involved in these
appeals we may have a fresh look on the inter se functioning of the three organs of democracy
under our Constitution. Although the doctrine of separation of powers has not been
recognised under the Constitution in its absolute rigidity but the Constitution makers have
meticulously defined the functions of various organs of the State. Legislature, executive and
judiciary have to function within their own spheres demarcated under the Constitution. No
organ can usurp the functions assigned to another. The Constitution trusts to the judgment of
these organs to function and exercise their discretion by strictly following the procedure
prescribed therein. The functioning of democracy depends upon the strength and
independence of each of its organs. Legislature and executive, the two facets of people’s will,
they have all the powers including that of finance. Judiciary has no power over sword or the
purse nonetheless it has power to ensure that the aforesaid two main organs of State function
within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful
weapon to restrain unconstitutional exercise of power by the legislature and executive. The
expanding horizon of judicial review has taken in its fold the concept of social and economic
justice. While exercise of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of power is the self-imposed discipline of
judicial restraint.
- Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation
in case of Trop v. Dulles [356 US 86], observed as under:
18
“All power is, in Madison’s phrase, “of an encroaching nature”. Judicial power is
not immune against this human weakness. It also must be on guard against
encroaching beyond its proper bounds, and not the less so since the only restraint
upon it is self-restraint….
Rigorous observance of the difference between limits of power and wise exercise
of power – between questions of authority and questions of prudence – requires the
most alert appreciation of this decisive but subtle relationship of two concepts that
too easily coalesce. No less does it require a disciplined will to adhere to the
difference. It is not easy to stand aloof and allow want of wisdom to prevail to
disregard one’s own strongly held view of what is wise in the conduct of affairs. But
it is not the business of this Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this precludes the court’s giving effect to
its own notions of what is wise or politic. That self-restraint is of the essence in the
observance of the judicial oath, for the Constitution has not authorized the judges to
sit in judgment on the wisdom of what Congress and the executive branch do.” - When a State action is challenged, the function of the court is to examine the action in
accordance with law and to determine whether the legislature or the executive has acted
within the powers and functions assigned under the Constitution and if not, the court must
strike down the action. While doing so the court must remain within its self-imposed limits.
The court sits in judgment on the action of a coordinate branch of the government. While
exercising power of judicial review of administrative action, the court is not an appellate
authority. The Constitution does not permit the court to direct or advise the executive in
matters of policy or to sermonize qua any matter which under the Constitution lies within the
sphere of legislature or executive, provided these authorities do not transgress their
constitutional limits or statutory powers. - Now coming to the judgment under appeal the High Court says that its directions
issued in Jyotshana Sharma case have not been complied with thereby rendering the State
action in making selections for admission to the medical colleges invalid. To examine the
High Court reasoning we have to see as to which of the three organs of the State is entrusted,
under the Constitution, with the function of taking a policy decision regarding management
and admissions to medical colleges in the State. Both the medical colleges at Jammu and
Srinagar are government institutions. Entry 25 List III of Seventh Schedule, Article 246(2)
and Article 162 of the Constitution of India and Section 5 of the Constitution of Jammu &
Kashmir which are relevant, are reproduced hereinafter:
“Entry 25. Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64,65 and 66 of List I; vocational
and technical training of labour.”
“Article 246. Subject-matter of laws made by Parliament and by the legislatures
of States. – (2) Notwithstanding anything in clause (3), Parliament, and, subject to
clause (1), the legislature of any State also, have power to make laws with respect to
any of the matters enumerated in List III in the Seventh Schedule (in this Constitution
referred to as the “Concurrent List”).”
19
“Section 5. Extent of executive and legislative power of the State. – The executive
and legislative power of the State extends to all matters except those with respect to
which Parliament has power to make laws for the State under the provisions of the
Constitution of India.” - The High Court’s directions for constituting “Statutory Independent Body” obviously
mean that the State legislature must enact a law in this respect. The Constitution has laid
down elaborate procedure for the legislature to act there under. The legislature is supreme in
its own sphere under the Constitution. It is solely for the legislature to consider as to when
and in respect of what subject matter, the laws are to be enacted. No directions in this regard
can be issued to the legislature by the courts. The High Court was, therefore, patently in error
in issuing directions in Jyotshana Sharma case and reiterating the same in the judgment under
appeal. - This Court in Narinder Chand Hem Raj v. Lt. Governor, Union Territory, Himachal
Pradesh [(1971) 2 SCC 747] observed as under:
“The power to impose tax is undoubtedly a legislative power. That power can be
exercised by the legislature directly or subject to certain conditions the legislature
may delegate that power to some other authority. But the exercise of that power,
whether by the legislature or by its delegate is an exercise of a legislative power. The
fact that the power was delegated to the executive does not convert that power into an
executive or administrative power. No court can issue a mandate to a legislature to
enact a particular law. Similarly no court can direct a subordinate legislative body to
enact or not to enact a law which it may be competent to enact.” - In the State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla
[(1985) 3 SCC 169], this Court held as under:
“The direction given by the Division Bench was really nothing short of an
indirect attempt to compel the State Government to initiate legislation with a view to
curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and
categorical statement by the Chief Secretary on behalf of the State Government that
the government will introduce legislation if found necessary and so advised, the
Division Bench should have proceeded to again give the same direction. This
Division Bench was clearly not entitled to do. It is entirely a matter for the executive
branch of the government to decide whether or not to introduce any particular
legislation. Of course, any member of the legislature can also introduce legislation
but the court certainly cannot mandate the executive or any member of the legislature
to initiate legislation, howsoever necessary or desirable the court may consider it to
be. That is not a matter which is within the sphere of the functions and duties
allocated to the judiciary under the Constitution…. But at the same time the court
cannot usurp the functions assigned to the executive and the legislature under the
Constitution and it cannot even indirectly require the executive to introduce a
particular legislation or the legislature to pass it or assume to itself a supervisory role
over the law-making activities of the executive and the legislature.”
20 - The legislature of Jammu & Kashmir having not made any law pertaining to medical
education the field is exclusively to be operated by the executive under Article 162 of the
Constitution of India read with Section 5 of Jammu & Kashmir Constitution. When the
Constitution gives power to the executive government to lay down policy and procedure for
admission to medical colleges in the state then the High Court has no authority to divest the
executive of that power. The State Government in its executive power, in the absence of any
law on the subject, is the competent authority to prescribe method and procedure for
admission to the medical colleges by executive instructions but the High Court transgressed
its self-imposed limits in issuing the aforesaid directions for constituting statutory authority.
We would make it clear that the procedure for selection laid down by the executive as well as
the selection is always open to judicial review on the ground of unreasonableness or on any
other constitutional or legal infirmity. - Mr Altaf Ahmed, learned Advocate General, Jammu & Kashmir, appearing for the
State, Mr M.H. Baig and Mr G.L. Sanghi, learned counsel appearing for the selected
candidates, have contended that the observations in Jyotshana Sharma case were in the nature
of suggestions by the court. It is further argued that even if those are taken to be directions,
the same have been complied with by the State Government. There was no issue before the
court in Jyotshana Sharma case regarding method or procedure adopted by the government
for making selections. None of the parties argued for Statutory Body on the ground of lack of
confidence in the executive. A bare reading of the judgment shows that the bench, before
parting with the judgment, laid down some guidelines for the government to follow. The
learned Chief Justice in his judgment in Farooq Bacha case reiterated the necessity of having
an autonomous independent statutory body “on the lines suggested by the Division Bench in
Jyotshana Sharma case”. The learned Chief Justice rightly treated the bench’s observations as
suggestions and we agree with the same. There is also force in the contention that assuming
the said suggestions to be the directions; the same have been complied with. SRO 291 was
issued as a consequence of the judgment in Jyotshana Sharma case. The notification
specifically states “whereas a Division Bench of the High Court by judgment and order 17-4-
1987 inter alia made certain suggestions for improving the system for making admission to
MBBS/BDS course in the State, now, therefore, in deference to the observations of the High
Court of Jammu & Kashmir… the government hereby makes the following order….” Mr Bhim
Singh, learned counsel appearing for the unsuccessful candidates, however, argued that the
principals of two medical colleges have not been associated with the selections. That may be
so but we are satisfied that SRO 291 read with 1987 Order issued by the State Government
which provide method and elaborate procedure for making selections to the medical colleges
of Jammu & Kashmir substantially comply with the directions of the High Court. - In view of the above discussion civil appeals filed by the State of Jammu & Kashmir
and the successful candidates are allowed, the judgment of the Jammu & Kashmir High Court
is set aside and the writ petitions filed by the unsuccessful candidates before the Jammu &
Kashmir High Court are dismissed.
The students are advised to read State of Himachal Pradesh v. A Parent of a Student of
Medical College, Simla (1985) 3 SCC 169.
