Jammu & Kashmir High Court - Srinagar Bench
Mujeeb Andrabi vs State Of J&K And Ors on 2 July, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR PIL No. 05 of 2013 Mujeeb Andrabi Petitioners State of J&K and ors Respondents !Mr. R. A. Jan, Sr. Advocate Mr. Anis-Ul-Islam, Advocate ^Mr. M. I. Qadri, Advocate Mr. M. A. Chashoo, Advocate Mr. F. A. Mir, Advocate Mr. G. J. Bala, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Dhiraj Singh Thakur, Judge Date: 02/07/2013 : J U D G M E N T :
M. M. Kumar, CJ
1. On 22.05.2013, we have issued comprehensive direction in the instant PIL and in purported compliance of those directions, Commissioner, Srinagar Municipal Corporation have filed compliance report on 26.06.2013 supported by an Affidavit. In last part of para 8 of the so called compliance report, some disparaging remarks were made by the deponent, Dr. G.N.Qasba, Commissioner, Srinagar Municipal Corporation. We took a strong exception to the averment made in para 8, which impinges upon the authorities of the Court to issue interim order. However, learned counsel for the Municipal Corporation instantaneously tendered unconditional apologies on behalf of the Commissioner and requested for some time to file the affidavit of the Commissioner in that regard. He also pleaded that the Commissioner shall be personally present to tender apologies.
2. An effort was then made to file an affidavit. However, the affidavit was found against the provisions of law as is evident from the detailed order dated 28.06.2013. The aforesaid affidavit was rejected, granting liberty to the Commissioner to file fresh affidavit in accordance with the provisions of law.
3. We take this opportunity to clear some cobwebs renting the mind of some bureaucrats and others because the tendency to comment upon the interim orders passed by the Courts is on the rise. In the constitutional scheme there is adequate demarcation of powers and it leaves hardly any area for the one wing to interfere in the working of the other wing. The basic rudiments and constitutional principles are well known to all the authorities and no one can feign ignorance about the constitutional position of the judiciary.
4. In S. P. Gupta v. Union of India and anr, 1981 (Supp) SCC 87 a Constitutional Bench of Honble the Supreme Court has talked about the concept of independence of the judiciary. According to the views expressed in para 27, the concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution it is the principle of the rule of law and under the Constitution. It is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armory of the law, that the judiciary seeks to protect the citizens against violation of their constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive and therefore it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution-makers by making elaborate provisions in Constitution to which detailed reference has been made in the case of Union of India v. Sankalchand Himmat Lal Seth [1977 (4) SCC 193]. But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong. Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, Be you ever so high, the law is above you. This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.
5. The aforesaid principle concerning the majesty of law and supremacy of judiciary which has repeatedly followed established rule of law. In the case of E. T. Sunup v. C.A.N.S.S. Employees Association and anr, (2004) 8 SCC 683, in some what similar circumstances, Honble the Supreme Court observed in para 16 that it has become a tendency with the government officers to somehow or the other circumvent the orders of Court and try to take a recourse to one justification or other. This shows complete lack of grace in accepting the orders of the Court. This tendency of undermining the Courts order cannot be countenanced. Honble the Supreme Court has time and again emphasised that in a democratic polity like ours the role of the Court cannot be subservient to administrative fiat. The judiciary has been given the role of a watch dog to keep the other wings of the State within check and constitutional limits.
6. We do not wish to multiply the citations and all that need to be stated is that all the Courts are free to pass such orders to serve the interest of justice and what is the interest of justice, has been left to the wisdom of the Courts. No outside authority is competent to comment upon such orders and it is open for any aggrieved party to avail the remedy of appeal. Accordingly, we wish to make it clear that if any officer or authority is found making disparaging remarks against the orders passed by the courts then they would be strictly dealt with.
7. Coming back to the present case, the affidavit filed by the Commissioner today in the Court dated 27.06.2013, withdrawing the earlier affidavit which was purported to be compliance report to the order dated 22.05.2013, is taken on record.
8. Mr. Qasba, who is present before us has profusedly tendered apologies. A request has been made for withdrawal of the compliance report filed in the shape of an affidavit on 26.06.2013. We accept the apologies tendered by Mr. Qasba with one reservation that if such a conduct is ever repeated again, contempt proceedings shall be initiated for any such lapse and the apologies tendered today would de deemed to be rejected. The present case would also be treated as a part of contempt proceedings.
9. Let a fresh compliance report as per the order dated 22.05.2013 be filed with a copy in advance to the other side within one week.
10. List on July 9, 2013.
(Dhiraj Singh Thakur) (M. M. Kumar)
Judge Chief Justice
Srinagar
02.07.2013
Anil Raina, Secy