Courts cannot usurp functions assigned to executive, legislature: Supreme Court on Shimla Development Plan

Satya Prakash

New Delhi, January 12

Noting that the Constitution recognises the independence and separation of powers amongst the three branches of the state, viz, the legislature, the executive and the judiciary, the Supreme Court has said courts cannot usurp functions assigned to the other two organs of the state.

A Bench led by Justice BR Gavai – which on Thursday upheld the Shimla Development Plan -‘Vision 2041’ and allowed the state of Himachal Pradesh and its instrumentalities to proceed with its implementation — disapproved of the NGT’s action, saying it transgressed its limitations and attempted to encroach upon the field reserved for the enactment of delegated legislation.

“We are of the considered view that when the TCP (Himachal Pradesh Town & Country Planning Act, 1977) Act empowers the state government and the director to exercise the powers to enact a piece of delegated legislation, the NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner,” a Bench led by Justice BR Gavai said, setting aside the NGT’s orders on the Shimla Development Plan.

“The judiciary is entrusted with the function to ensure that the laws enacted by the legislature are within the four corners of the Constitution and that the executive acts within the four corners of the Constitution and the laws enacted by the legislature. As to what should be the laws and the policy behind the said laws is clearly within the domain of the legislature. It is a different matter for the judiciary to examine as to whether a particular piece of legislation stands the scrutiny of law within the limited grounds of judicial review available,” the top court said.

“However, giving a direction or advisory sermons to the executive in respect of the sphere, which is exclusively within the domain of the executive or the legislature would neither be legal nor proper. The court cannot be permitted to usurp the functions assigned to the executive, the legislature or the subordinate legislature. The court cannot also assume a supervisory role over the rule-making power of the executive under Article 309 of the Constitution,” it said.

“It is a settled position of law that neither the high courts while exercising powers under Article 226 of the Constitution nor this court while exercising powers under Article 32 of the Constitution can direct the legislature or its delegates to enact a law or subordinate legislation in a particular manner,” the Bench said.

“It is a settled law that the Constitution does not permit the courts to direct or advise the executive in the matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or executive. It is also settled that the courts cannot issue directions to the legislature for enacting the laws in a particular manner or for amending the acts or the rules. It is for the legislature to do so,” it said.