21 Aug 2007, 2007 hrs IST,PTI
NEW DELHI: The courts cannot arrogate to themselves the role of the Union Government or investigate facts which are purely the executive's domain, the Supreme Court has held.
It said that if an order passed by the Government is not justified then it is the duty of the courts to remit it back to the authorities concerned for a fresh consideration, "but the courts cannot assume the power of the Union of India."
"Courts have only judicial power to review an executive order," a bench of Justices A K Mathur and Markandeya Katju observed, while quashing a Kerala High Court order which directed the Centre to pay freedom pension to a claimant.
The claimant, M S Mohammed Rawther had earlier approached a single judge bench of the Kerala High Court seeking direction to the Union Government for sanctioning him pension benefits under the Swatentrata Samman Sainik (SSS) pension scheme.
The judge gave a direction to the Union Government to consider and pass an appropriate order on Rawther's plea.
However, the Centre challenged the order before a Division Bench which in turn directed the Government to grant Rawther pension under the scheme.
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Courts cannot encroach upon legislative domain: apex court
|“Have only judicial power to review the executive order”|
New Delhi: Courts cannot encroach into the executive or legislative domain and cannot assume the role of investigation of facts, the Supreme Court has held. “The court has only judicial power to review that executive order on Wednesbury principles, but it cannot arrogate to itself the power of the executive. If the order passed by the Union of India is not justifiable on Wednesbury principles, the court can only set it aside and remit the matter back to the executive for a fresh decision, but the court cannot assume the power of the Union of India,” said a Bench of Justice A.K. Mathur and Justice Markandey Katju.
“The court must exercise judicial restraint in such matters. There is broad separation of powers under the Constitution, and one organ of the State should not ordinarily encroach into the domain of another. Montesquieus theory broadly applies in India too,” the Bench said.
A single Judge of the Kerala High Court had quashed the orders passed by the Union of India rejecting the prayer of the petitioner, M.S. Mohammed Rawther, for Swatendtrata Samman Sainik pension and remitted the matter back to the Centre to consider it afresh.
However, the Division Bench directed the Union of India to grant the pension. The present appeal by the Centre is directed against this judgment.
The Bench said “We are of the opinion that the course adopted by the Single Judge was the correct course and the matter should have been remitted back to the Union of India to decide the question of grant of freedom fighters’ pension afresh. ”
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