ASIF HAMEED V. STATE OF J. & K. AIR 1989 SC 1899

ASIF HAMEED V. STATE OF J. & K. AIR 1989 SC 1899

 

FACTS

1. 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.
2. 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.
3. In a nutshell the High Court issued directions for constituting “Statutory Independent Body” which meant that the State legislature must enact a law in this respect. These directions were questioned through petitions by the unsuccessful candidates.
4. In Narinder Chand Hem Raj v. Lt. Governor, Union Territory, Himachal Pradesh [(1971) SCC 747] observed as under:

“The power to impose tax is undoubtedly a legislative 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.”

1. 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:

“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”

 

ISSUE

Does the High Court have power to issue directions to the State Government to constitute a “statutory body” for making admissions?

 

RATIONALE 

1. The Apex  Court discussed the 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, the Constitution makers have meticulously defined the functions of various organs of the State.
2. The SC examined the High Court reasoning by seeing 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.
3. 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. Article 246 (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”).” 

“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.”

1. The legislature is supreme in its own sphere under the Constitution. It is solely for the legislature to consider 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.

 

HELD

Civil appeals filed by the State of Jammu & Kashmir and the successful candidates were allowed, the judgment of the Jammu & Kashmir High Court was set aside and the writ petitions filed by the unsuccessful candidates before the Jammu & Kashmir High Court were dismissed.