TaxTMI 
TaxTMI 
2014 (11) TMI 1080
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....art, late Carey & Hart, 1852), pp. 58-59) 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. (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)) 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 (Yale University Press 1921 Edn., Pg- 114) 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 erran....
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....evant 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....
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.... 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 castewise census in the country, we are of the considered opinion that t....
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....s 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 countr....
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....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 o....
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....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....
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....CC 271 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., (2004) 9 SCC 362 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, (2000) 10 SCC 664 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 undertaki....
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.... 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 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. (2007) 6 SCC 44, Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561 and State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46.)" 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 ....