Can Court Direct Union Govt To Make Law Commission A Statutory Body? Supreme Court Reserves Judgment

After hearing the Counsels appearing for the parties, a Bench comprising Justice AS Oka and Justice Sanjay Karol granted a week’s time to the Additional Solicitor General, Aishwarya Bhati to file submissions on behalf of the Union Government.

A writ petition was filed before the Madras High Court seeking directions to propose a comprehensive legislation in the field of ‘Torts and State Liability’ as per the directions of the Supreme Court in MCD v. Uphaar Tragedy Victims Association and Vadodara Municipal Corporation v. Purshotam V. Murjani And Ors. It was pointed out to the High Court that in 1965 - 1967 the Law Commission had made recommendations for a comprehensive legislation in the said field, but the same has not been implemented. During the course of the hearing, it came to the notice of the High Court that the Chairman and Members of the 22nd Law Commission of India was not appointed. Considering that their non-appointment would adversely affect the progress of the law making process in India, the High Court passed certain directions related to the Law Commission. The directions issued by the High Court are enumerated below -

1. Directed Union Government to consider introducing a Bill that relates to Liability in Tort within six months.
2. Directed Union Government to take decision with regard to suggestion for making Law Commission as statutory body or constitutional law within six months.
3. Directed the Union Government to allot more funds to the Commission for research and more infrastructures to the Law Commission of India.
4. Directed the Union Government to appoint Chairman and Members of the Law Commission within three months
5. Directed the Union Government to appoint Nodal Officer who is well qualified in law in each department within six months

On 26.09.2022, when the Apex Court issued notice in the plea challenging the High Court’s order it noted that it was of the prima facie view that four out of the five directions (a, b, c and e) issued by the High Court, deserves to be stayed.

Looking at the nature of directions issued by the Madras High Court, on Monday, at the very outset, Justice Oka asked Advocate Haripriya Padmanabhan appearing for the original petitioners if the High Court could have passed directions to the Government to legislate.

“We want to know if the High Court can issue such a writ? Directing the legislature whether an enactment can be passed. Can it direct a Government to legislate? You have to justify directions 1,2, 3, and 5”, the Judge enquired.

Padmanabhan submitted that the directions of the High Court were not mandamus against the Union Government. She argued that the High Court intended the Centre to consider the issues raised in the petition. It was stated that the Apex Court has passed similar orders on several occasions.

“Only direction to consider, not to legislate”, she submitted.

Referring to the judgment in Vineet Narain And Ors. v. Union of India And Anr. she submitted that therein the Apex Court had said that the Central Vigilance Commission (CVC) be made a statutory body and eventually it was made so.

Considering the direction pertaining to the appointment of nodal officers who are qualified in law, Justice Oka reckoned that the same reflects that the Court is usurping Government’s power to appoint officers.

“Direction 5 is like running the Govt. The Court wants to run the Govt. How an officer is to be appointed etc.”

The ASG argued that the mandamus issued by the High Court directing the Government to legislate is not sustainable.

[Case Title: Union of India And Ors. v. K. Pushpavanam And Ors. SLP(C) No. 478/2022]