K. PUSHPAVANAM Vs. UNION OF INDIA

JUDGEMENT

(1.) What is the use of constitutional Courts in passing judgments, giving recommendations for enacting laws, when they are not actually acted upon by legislature?" "What is the use of having a Law Commission without its recommendation being acted upon?" "BLACKSTONIAN" principle is being followed in our country by which the role of judiciary is to propound and interpret the law and not to legislate the law. Though the separation of powers between judiciary, executive and legislature has not been specifically spelt out in constitution of India, the same is maintained without crossing their respective boundaries. However, the way in which things are moving, it is very difficult to maintain the limits or the boundaries as legislature fails consistently to take notice of many of Courts' suggestions, which have been in the interest of the society to enact laws. It is still worse with regard to acceptance of recommendations of Law Commission which after getting inputs, from various stakeholders and discussions on various issues, made to the Government to enact law, which are neither accepted nor acted upon whereas they are kept it in cold storage for decades together.

(2.) One such recommendation was made by the first Law Commission as early as in 1956. When the first Law Commission submitted its reports, Report No.1 titled "Liability of the State in Tort" and recommended to the Central Government to enact the law covering the field of liability of State in Tort, the said recommendation has not been enacted as law, inspite of the judgments of the Hon'ble Supreme Court. In the case of Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and others reported in 2011 (14) SCC 481 in paragraph 109, the Hon'ble Supreme Court pointed out about the lack of legislation, regarding tortious claims against States and need for a comprehensive legislation in dealing with the tortious liability of the States and its instrumentalities and hoped and trusted that utmost attention would be given by the legislature for bringing in appropriate legislation to deal with claims in public law for violation of fundamental rights therein to its citizens at the hands of the State and its officials. Subsequently in Vadodara Municipal Corporation V. Purshottam V. Murjani and others reported in (2014) 16 SCC 14 again the Hon'ble Supreme Court reiterated the necessity for a comprehensive legislation dealing with the tortious liability of the State and its instrumentalities and referred the matter to Law Commission for further necessary action. Inspite of the recommendations made by the Hon'ble Supreme Court about a decade ago in 2011 and thereafter in 2014, the Government has not taken the recommendations positively and enacted a comprehensive legislation.

(3.) In the above circumstances only, the Petitioner has come before this Court seeking Writ of Mandamus, directing the respondents to propose a comprehensive legislation in the field of "Torts and State Liability" as per the directions of Hon'ble Supreme Court of India in "MCD V. Uphaar Tragedy Victims Assn reported in (2011) 14 SCC 481" and "Vadodara Municipal Corporation V. Purshottam V. Murjani and others reported in (2014) 16 SCC 14" in .