Do not frame policies while exercising powers of judicial review, Supreme Court tells Allahabad HC


In a case where the Allahabad high court had issued detailed directions relating to police investigation, the Supreme Court while setting aside those directions, observed that the High Court had crossed the boundaries of the controversy that was before it, and that some of the directions, as we perceive, are in the sphere of policy. The Supreme Court advised the high court that the courts are required to exercise the power of judicial review regard being had to the controversy before it, and that a court cannot take steps for framing a policy. This order was issued by a two-judge bench of the Supreme Court, comprising Justice Dipak Misra and Justice Amitava Roy, on 29 November 2016, in the case of State of Uttar Pradesh and Others v. Subhash Chandra Jaiswal and Others [CIVIL APPEAL NO.11381OF 2016 (Arising out of S.L.P.(C) No.26961 of 2016)].

In this case, District Magistrate, Allahabad and Raibareli had granted excise licence to run country liquor shops under U.P. Excise (Settlement of Licenses Retail Sale of Country Liquor) Rules, 2002, license for foreign liquor under U.P. Excise Settlement of Licenses for Retail Sale of Foreign Liquor (excluding Beer and Wine) Rules, 2001 and license for model shop under U.P. Excise (Settlement of Licenses for Retail License for Model Shop of Foreign Liquor) Rules, 2003. One of the eligibility conditions for grant of license is that licensee and his family members must possess good moral character and have no criminal background.

A writ petition was filed before Allahabad high court challenging the grant of these licences on the ground of criminal background of the licensees. The allegation was that an FIR was registered which showed that they had committed fraud and forgery by opening bank account in the name of the another person by affixing his photograph, submitting his ID and had withdrawn amount by forging his signature and deposited the security amount with District Excise Officer, Allahabad.

The high court called for the case diary which showed that a final report had been submitted by the Investigating Officer in the office of the Circle Officer. Certain defects were noticed in the investigation. Taking a serious view of the defects, and observing that “time has come where State should be asked to show its real sincerity required in the field not only for effective registration of cognizable offences but also proper and well studied investigation and effective prosecution to ensure appropriate punishment to guilty persons”, the high court issued certain far-reaching directions as an interim measure, directing Principal Secretary (Home), U.P., Lucknow and Director General of Police, U.P., Lucknow to consider over following aspects and submit their reply through personal affidavits, by 16th September, 2016:

“(i) Work of investigation of crime and prosecution be separated from normal policing or prevention of crime and other works, by constituting separate specialized cadre managed by officials well trained in respective fields. These officials be given due status, designation and appropriate perks and facilities so that State may attract deserving, talented and meritorious persons, willing to work with all sincerity in respective wings. Both these wings be separately headed by independent officers of the level of Director General so that one wing may not get influenced by another.

(ii) The prosecution wing after separation, should be headed by an Officer of Secretary level, taken on deputation from Higher Judicial Services, so that it may function independently and effectively.

(iii) Whether sanctioned strength of police for maintaining law and order and normal police functions including prevention of crime, investigation and prosecution is sufficient? If not, what is actual requirement for the said purposes and why required number of posts were/are not created by Government so that problem of law and order in State is effectively managed?

(iv) What is actual number of sanctioned strength in the respective fields of Police Department and what is normal period of time taken for filling existing vacancies?

(v) Whether any existing qualification or specific eligibility conditions are prescribed for appointing Investigating Officer? If not, why such conditions should not be prescribed considering the fact that in these days, investigation process involves multifaceted scientific, technical and advanced techniques requiring an efficient and well conversant person to deal with all such techniques etc.

(vi) How many cases are pending for investigation in the State, older than six months, and what is the actual number of Investigating Officers available. These figures shall be supplied in the form of a chart, district-wise.

(vii) Why Forensic Labs with modern equipments and sufficient staff be not established at every District Headquarters. State should also provide adequate staff looking to the size of District, general trend, number of criminal cases reported every year and nature of cases, normally reported in that area and maintain it regularly so that Investigating Officers may be able to get Forensic test/ opinion/ report with the utmost expeditiousness and as early as possible.

(viii) A report shall be submitted to this Court obtained from each and every Autopsy Centre as to what facilities are available thereat, how many Postmortem/ Autopsy they are conducting every day and show preservation of body organs etc. is being maintained. (The officers submitting report shall bear in mind that veracity of report, whatever is submitted, may got cross-checked by Court through Judicial Officers and, therefore, there should be no attempt to submit a casual and shallow report but it should be true and complete report in all respect.)”

The State of Uttar Pradesh challenged these directions given by the high court. In such circumstances, the Supreme Court held that the High Court in a case of the present nature could not have issued such directions, and that some of the directions are in the field of exclusive domain of the Legislature.

The Supreme Court held that it is expected that the High Courts while dealing with the lis are expected to focus on the process of adjudication and decide the matter. The concept, what is thought of or experienced cannot be ingrained or engrafted into an order solely because such a thought has struck the adjudicator. It must flow from the factual base and based on law. There cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner. To say the least, some of the directions issued are not permissible and all of them are totally unrelated to the case before the High Court. The Supreme Court observed that the High Court should have been well advised to restrict the adjudicatory process that pertained to the controversy that was before it.

The Supreme Court referred to following decisions to highlight the limitations within which a court should decide a case:

  • Subrata Roy Sahara v. Union of India and others, (2014) 8 SCC 470.
  • Gurdev Kaur and others v. Kaki and others, (2007) 1 SCC 546.
  • Census Commissioner v. R. Krishnamurthy, (2015) 2 SCC 796.
  • Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323.
  • Vemareddy Kumaraswamy Reddy v. State of A.P., (2006) 2 SCC 670.
  • Suresh Seth v. Commr., Indore Municipal Corporation, (2005) 13 SCC 287.
  • Supreme Court Employees’ Welfare Association v. Union of India, (1989) 4 SCC 187.
  • State of Jammu & Kashmir v. A.R. Zakki, 1992 Supp (1) SCC 548.
  • Manoj Sharma v. State, (2008) 16 SCC 1.
  • State of U.P. v. Mahindra and Mahindra Ltd., (2011) 13 SCC 77.

The Supreme Court observed that a Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law.

The court further observed:

“Some of the directions, as we perceive, are in the sphere of policy. A court cannot take steps for framing a policy. As is evincible, the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. Be it stated, the directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country.”

Accordingly, the Supreme Court held that the High Court has crossed the boundaries of the controversy that was before it. The court observed as under:

“The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it. Additionally, the High Court should have reminded itself that it cannot enter into the domain where amendment to legislations and other regulations are necessary. We are absolutely conscious that it is the duty of the State Government to discharge its obligations in the matters relating to law and order and remain alert to the issues that emerge. It has a duty also to see that the investigations are speedily completed in an appropriate manner. If there is a failure of law and order situation, the executive is to be blamed. In the maintenance of law and order situation the judicial officers are not to be involved. But the executive has to remain absolutely alive to its duties and we are sure, the State Government shall look into the aspects and endeavour to see that appropriate steps are taken to maintain the law and order situation.”

Resultantly, the appeal was allowed and the impugned order passed by the High Court was set aside.

Read full order of the court:


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