Utt HC | Power conferred on the Supreme Court, under Article 142 to do complete justice, not available to High Courts under Article 226 of the Constitution

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. entertained a PIL which sought mandamus to direct the respondents to constitute a Committee for management/trust of the affairs of the ‘Purnagiri Temple’; to prepare a list of important temples in terms of the order passed in Writ 2015; and a mandamus to direct the first respondent to appoint Commissioners in such important temples, where till date no management committee was appointed.

The learned counsel for the petitioner Ayush Negi and Amit Kapri, placed reliance on In the matter of ‘Constituting a Trust / Board at the Jageshwar Dham, (Jyotirlinga) Almora v. State of Uttarakhand, 2013 SCC OnLine Utt 4074,  whereby certain directions were issued regarding constitution of a Committee of Management for the Jageshwar Dham. The learned counsel also relied upon several judgments where recommendations to the State Government to frame suitable legislation for the proper functioning of Hindu Public Religious Institutions and Charitable Endowments were given, and had directed the State Government to prepare a list of all the public temples throughout the State to bring them within the Schedule. Counsel submitted that power was conferred both on Parliament and State Legislature under Article 246 of the Constitution of India. In the absence of any legislation (plenary or subordinate), power was also conferred on the Executive, under Article 162 of the Constitution of India, to issue administrative instructions.

The Court relied upon various judgments of the Supreme Court and stated that, 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. The Court further stated that, while they had the power to strike down a law on the ground of want of authority, not necessarily Court would not sit in appeal over the policy of Parliament or the State Legislature in enacting a law. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State.

It was held by the Court that, “As the duty to formulate policies is entrusted to the executive, which is accountable to the legislature, the Court would not direct the executive to adopt a particular policy or the legislature to convert it into enacted law.” Court further relied upon the judgment in, Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796, where it was rightly held that, the exercise of making policy must be left to the discretion of the executive and legislative authorities. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes the fundamental rights guaranteed by the Constitution of India or any other statutory right. As the petitioner had highlighted various illegalities in the manner in which the subject temple is being managed, the Court directed the respondent to consider it appropriate to examine the specific allegations made in the said representation.[Narendra Kumar v. State of Uttrakhand, 2019 SCC OnLine Utt 406, decided on 30-05-2019]

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