Document Fragment View

Matching Fragments

8. Another legal question which needs our examination is the scope of a writ court to issue mandamus to exercise a discretionary power, as distinguished from issuing a writ of certiorari in quashing a decision taken in exercise of the power. For this legal knowledge, reference to one Constitution Bench decision alone would be sufficient as the learned Advocate-General has also relied on that, the same being A. K. Roy v. Union of India, AIR 1982 SC 710 : (1982 Cri LJ 340). This decision needs a close look. We are concerned with that part of the aforesaid decision which dealt with the prayer of the petitioner to issue a writ in the nature of mandamus to the Central Government to bring into force the Constitution (44th Amendment) Act. Chandrachud, C.J., who spoke for the majority of the Bench, observed thus in this connection in para 52 :--

"But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, 'lies in its discretion to do when it considers it opportune to do it'. The Executive is responsible to the Parliament and if the Parliament considers that the Executive has betrayed us thrust by not bringing any provision of the Amendment into force, it can censure the Executive. It would be quite anomalous that the inaction of the Executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus ...... But the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether Section 3 of the Amendment Act should be brought into force....... It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of Section 3 of the 44th Amendment into force...... If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament."

9. Learned Advocate-General submits that the aforesaid reasons, because of which writ of mandamus was refused in that case, apply proprio vigore here. Let us examine whether this contention is acceptable. To do so, we have to note the nature of the power which has been conferred on the Central Government dealt in A. K. Roy's case. The section conferring power on the Central Government to bring into force the Constitution (44th Amendment) Act, 1978 was couched in the following language:--

"It (meaning the Constitution (44th Amendment) Act) shall come into force on such date as the Central Government may by notification in the Official Gazette appoints"