Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9996 OF 2014

[Arising out of S.L.P. (Civil) No. 480 of 2012]

Census Commissioner & Others ... Appellants

Versus

R. Krishnamurthy ... Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal depicts and, in a way, sculpts the

non-acceptance of conceptual limitation in every human

sphere including that of adjudication. No adjudicator or a

Judge can conceive the idea that the sky is the limit or for that

matter there is no barrier or fetters in one’s individual

perception, for judicial vision should not be allowed to be

imprisoned and have the potentiality to cover celestial zones.

Be it ingeminated, refrain and restrain are the essential

virtues in the arena of adjudication because they guard as

Page 2 sentinel so that virtuousness is constantly sustained. Not for

nothing, centuries back Francis Bacon

1

had to say thus:-

“Judges ought to be more learned than witty, more

reverend than plausible, and more advised than

confident. Above all things, integrity is their portion

and proper virtue......Let the judges also remember

that Solomon’s throne was supported by lions on

both sides: let them be lions, but yet lions under the

throne.”

2.Almost half a century back Frankfurter, J.

2

sounded a

note of caution:-

“For the Highest exercise of judicial duty is to

subordinate one’s personal pulls and one’s views to

the law of which we are all guardians-those

impersonal convictions that make a society a

civilized community, and not the victims of personal

rule.”

3.In this context, it is seemly to reproduce the warning of

Benjamin N. Cardozo in The Nature of the Judicial process

3

which rings of poignant and inimitable expression:-

“The Judge even when he is free, is still not wholly

free. He is not to innovate at pleasure. He is not a

knight errant roaming at will in pursuit of his own

ideal of beauty or of goodness. He is to draw his

inspiration from consecrated principles. He is not

to yield to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a

1

BACON, Essays: Of Judicature in I The Works of Francis Bacon (Montague, Basil, Esq. ed., Philadelphia: A Hart,

late Carey & Hart, 1852), pp. 58-59.

2

FRANKFURTEER, Felix in Clark, Tom C., “ Mr. Justice Frankfurter: ‘A Heritage for all Who Love the Law’” 51

A.B.A.J. 330, 332 (1965)

3

Yale University Press 1921 Edn., Pg- 114

2

Page 3 discretion informed by tradition, methodized by

analogy, disciplined by system, and subordinated

to ‘the primordial necessity of order in social life’.”

4.In Tata Cellular V. Union of India (1994) 6 SCC 651,

while dealing with the concept of judicial review, this Court

referred to a passage worded by Chief Justice Neely, which is

as follows:-

‘I have very few illusions about my own limitations as a

judge and from those limitations I generalize to the

inherent limitations of all appellate courts reviewing rate

cases. It must be remembered that this Court sees

approximately 1262 cases a year with five judges. I am

not an accountant, electrical engineer, financier, banker,

stock broker, or systems management analyst. It is the

height of folly to expect judges intelligently to review a

5000 page record addressing the intricacies of public

utility operation.’

5.The fundamental intention of referring to the aforesaid

statements may at various times in the history of law is to

recapitulate basic principles that have to be followed by a

Judge, for certain sayings at times become necessitous to be

told and re-narrated. The present case exposits such a

situation, a sad one.

6.The chronology has its own relevance in the instant case.

One Dr. E. Sayedah preferred W.P No. 25785 of 2005 in the

High Court of Madras for issue of a writ of certiorari for

3

Page 4 quashment of the order passed by the Central Administrative

Tribunal in O.A. No.3/2002 on the foundation that when there

is no Scheduled Tribe population in the Union Territory of

Pondicherry and there is no Presidential notification under

Article 342 of the Constitution of India there cannot be any

reservation for Scheduled Tribe in the said Union Territory

and, therefore, the appointment of the applicant in the Original

Application who was appointed solely on the base that he

belonged to Scheduled Tribe was illegal. However, the High

Court declined to interfere with the appointment considering

the length of service but observed that the appointee was not

entitled for any reservation in promotion. The High Court also

recorded certain other conclusions which are really not

relevant for the present purpose. The direction that really

propelled the problem is as follows:-

“When it is the position that after 1931, there had

never been any caste-wise enumeration or

tabulation and when there can not be any dispute

that there is increase in the population of

SC/ST/OBC manifold after 1931, the percentage of

reservation fixed on the basis of population in the

year 1931 has to be proportionately increased, by

conducting caste-wise census by the Government in

the interest of the weaker sections of the society.

We direct the Census Department of the

Government of India to take all such measures

towards conducting the caste-wise census in the

4

Page 5 country at the earliest and in a time bound manner,

so as to achieve the goal of social justice in its true

sense, which is the need of the hour.”

7.At this juncture, to continue the chronology, it is

pertinent to mention that a Writ Petition No.

21172/2009 was filed before the High Court of

Judicature at Madras, which was disposed of on

21.1.2010. While disposing of the writ petition, the High

Court had directed as follows:

“6.The second respondent, has filed a counter

and in paragraph 5 thereof, it is stated that the

second respondent have taken up the matter

with the Ministry of Social Justice and

Empowerment, as the issues relating to SCs,

STs and OBCs; are within the domain of that

Ministry. The learned counsel for the

respondents, on the instructions of the Regional

Director, Chennai from the office of the second

respondent, states that the petitioner will got a

reply from the respondents within eight weeks

from today. We hope that the respondents will

consider the representation of the petitioner

Association in all seriousness and send them an

appropriate reply.”

8.Be it stated, the Registrar General and Census

Commissioner was the respondent no.2 therein. After

the writ petition was disposed of, the representation

preferred by Mr. K. Balu, President, Advocates Forum for

5

Page 6 Social Justice, was disposed and the order was

communicated to the writ petitioner. It reads as follows:-

“2.Caste-wise enumeration in the census has

been given up as a matter of policy from 1951

onwards. In pursuance of this policy decision,

castes other than Scheduled Castes and

Scheduled Tribes have not been enumerated in

all the Censuses since 1951. In Census 2011

also no question on enumeration of castes other

than Scheduled Castes and Scheduled Tribes

has been included. As such, the first phase of

Census 2011 enumeration, namely, the

Houselisting and Housing Census is

commencing on the 1

st

of April, 2010. The

forms required for this phase of the Census has

already been printed in many States and

Instruction Manuals required for training the

enumerators has also been finalized and

printed. The second phase of Census 2011,

namely, Population Enumeration, is due to be

conducted in February 2011. The data gathered

in the first phase (April to September 2010) is

linked to the data to be collected in February-

March 2011. Hence, enumerating castes other

than Scheduled Castes and Scheduled Tribes

will not be possible in that phase also. As such,

it is not possible to include any question relating

to the enumeration of Castes other than

Scheduled Castes and Scheduled Tribes in the

Census of India 2011.

3.As regards the policy decision whether

castes other than the Scheduled Castes and

Scheduled Tribes should be enumerated, the

manner in which such enumeration should be

done and by whom, the matter has been referred

to the nodal Ministry, i.e. Ministry of Social

Justice and Empowerment.”

6

Page 7 9.At this juncture, it may be noticed that the Writ

Petition(C) No. 132/2010 was filed before this Court by one

Kishore Govind Kanhere Vidharbha and Another seeking the

similar relief, which was disposed of on 13.09.2010 by passing

the following order:

“Learned counsel for the petitioners states that

as the purpose of the writ petition stands

worked out, he would like to withdraw the

petition. The writ petition is, accordingly,

dismissed as withdrawn.”

10.Presently, we shall proceed to state how the purpose of

the writ petition had worked out. The respondent, R.

Krishnamurthy had preferred Writ Petition(C) No. 10090/2010

which stood disposed of by Division Bench by the impugned

order. As is manifest, the Division Bench has referred to its

earlier decision passed in W.P.(C) No. 25785/2005 and after

reproducing the paragraph from the said judgment, opined as

follows:-

“Since the relief sought for in the present writ

petition has already been answered in the

affirmative by issuing a direction to the authorities

to take all measures towards conducting the caste-

wise census in the country, we are of the considered

opinion that this petition is also entitled to be

allowed. Accordingly, this writ petition is allowed

on the same terms.”

7

Page 8 11.Criticizing the aforesaid direction, it is submitted by Mr.

R.S. Suri, learned senior counsel that the High Court on the

earlier occasion had issued a direction without making the

Census Commissioner as a party and further there was no

justification for issuance of such a direction. As far as the

impugned order is concerned, it is urged by Mr. Suri that the

direction issued by the Division Bench tantamounts to

interference in a policy decision as framed under Section 8 of

the Census Act, 1940, (for brevity ‘the Act’) as amended in

1993. Learned senior counsel would contend that the policy

stipulates for carrying out the census which includes

scheduled castes and scheduled tribes, but not the other

castes. He would urge that many a High Court have

dismissed similar writ petitions and, in fact, this Court in

WP(C) No. 133/2009 have declined to interfere and the same

was dismissed as withdrawn. It is proponed by him the view

expressed by the High Court is absolutely vulnerable and

hence, deserved to be lancinated.

12.Despite service of notice, there has been no appearance

on behalf of the respondent.

8

Page 9 13.To appreciate the submissions canvassed by the learned

counsel for the appellant, it is necessary to refer to Section 8

of the Act, which reads as follows: -

“Section 8 – Asking of questions and obligation

to answer

(1)A census officer may ask all such

questions of all persons within the limits of the

local area for which he is appointed as, by

instructions issued in this behalf by the [Central

Government] and published in the Official

Gazette, he may be directed to ask.

(2)Every person of whom any question is

asked under sub-section(1) shall be legally

bound to answer such question to the best of

his knowledge or belief:

Provided that no person shall be bound to

state the name of any female member of

his household, and no woman shall be

bound to state the name of her husband or

deceased husband or of any other person

whose name she is forbidden by custom to

mention.”

14.On the foundation of the aforesaid provision, the

competent authority of the Central Government, in exercise of

the power conferred by sub-section(1) of section 8 of the

Census Act, had issued a Notification on 13.1.2000 which

relates to instructions meant for Census Officers. Clause 8 of

the said Notification being relevant is reproduced below:

9

Page 10 “8.Information relating to the head of the

household

(a) Name of the head of the household

(b) Male – 1/Female – 2

(c)If SC(Scheduled Caste) or ST (Scheduled

Tribe) or Other? SC(Scheduled Caste)-

1/ST(Scheduled Tribe)-2/Other-3”

15.After the said census was carried out, another

Notification dated 25.2.2010 was issued. Clause 10 of the

said Notification reads as follows:

“10. If Scheduled Caste/Scheduled Tribe/Others.

16.After the Notification in the year 2010 was issued, the

Office of the Registrar General and Census Commissioner

issued the Instruction Manual for Houselisting and Housing

Census. In Paragraph 1.2, the historical background has

been stated. It is as follows:

“Historical background of Indian Census

1.2 The Indian Census has a rich tradition and

enjoys the reputation of being one of the best in the

world. The first Census in India was conducted in

the year 1872. This was conducted at different

points of time in different parts of the country. In

1881 a Census was taken for the entire country

simultaneously. Since then, Census has been

conducted every ten years, without a break. Thus,

the Census of India 2011 will be the fifteenth in this

unbroken series since 1872 and the seventh after

independence. It is through the missionary zeal and

dedication of Enumerators like you that the great

historical tradition of conducting the Census

10

Page 11 uninterruptedly has been maintained in spite of

several adversities like wars, epidemics, natural

calamities, political unrest, etc. Participation in the

Census by the people of India is indeed a true

reflection of the national spirit of unity in diversity.”

17.Thereafter, the Instruction Manual provides for objectives

of conducting a census. We think it appropriate to reproduce

the same:

“1.3India is a welfare State. Since independence,

Five Year Plans, Annual Plans and various welfare

schemes have been launched for the benefit of the

common man. All these require information at the

grass root level. This information is provided by the

Census.

1.4Have you ever wondered how the number of

seats in Parliamentary/Assembly Constituencies,

Panchayats and other local bodies are determined?

Similarly, how the boundaries of such

constituencies are demarcated? Well the answer to

that is also the Census. These are just a few

examples. Census provides information on a large

number of areas. Thus, you are not merely

collecting information; you are actually a part of a

massive nation building activity.

1.5The Houselisting and Housing Census has

immense utility as it will provide comprehensive

data on the conditions of human settlements,

housing deficit and consequently the housing

requirement to be taken care of in the formulation

of housing policies. This will also provide a wide

range of data on amenities and assets available to

the households, information much needed by

various departments of the Union and State

Governments and other non-Governmental

agencies for development and planning at the local

11

Page 12 level as well as the State level. This would also

provide the base for Population Enumeration.

1.6Population Enumeration provides valuable

information about the land and its people at a given

point of time. It provides trends in the population

and its various characteristics, which are an

essential input for planning. The Census data are

frequently required to develop sound policies and

programmes aimed at fostering the welfare of the

country and its people. This data source has

become indispensable for effective and efficient

public administration besides serving the needs of

scholars, businessmen, industrialists, planners

and electoral authorities, etc. Therefore, Census

has become a regular feature in progressive

counties, whatever be their size and political set up.

It is conducted at regular intervals for fulfilling

well-defined objectives. One of the essential

features of Population Enumeration is that each

person is enumerated and her/his individual

particulars are collected at a well-defined point of

time.”

18.From the aforesaid, it is graphically vivid that at no

point of time, the Central Government had issued a

Notification to have a census conducted on the caste

basis. What is reflectible is that there is census of

Scheduled Castes and Scheduled Tribes, but census is

not done in respect of other castes or on caste basis.

That apart, the instructions elaborately spell out the

necessity and the purpose. It is reflectible of the concern

pertaining to assimilation of certain datas that would

12

Page 13 help in nation-building, trends of population, availability

of requisite inputs for planning and fostering the welfare

of the country. Be it noted, the Notifications dated

13.01.2000 and 25.02.2010 enumerate collection of

many an information including household number, total

number of persons normally residing in the household

(persons, males, females), name of the head of the

household, ownership status of the house, number of

married couple(s) living in the household, main source of

drinking water, availability of drinking water source,

main source of lighting, latrine within the premises, type

of latrine facility, waster water outlet, bathing facility,

kitchen, fuel used for cooking, Radio/Transistor,

Television, Computer/Laptop, Telephone/Mobile phone,

Bicycle, Scooter/Motor Cycle/ Moped, Car/Jeep/Van,

and availing banking services, etc. Thus, the Central

Government has framed a policy and the policy, as is

demonstrable, covers many an arena keeping in view

certain goals and objectives.

19.As we evince from the sequence of events, the High

Court in the earlier judgment had issued the direction

13

Page 14 relating to carrying of census in a particular manner by

adding certain facets though the lis was absolutely

different. The appellant, the real aggrieved party, was

not arrayed as a party-respondent. The issue was

squarely raised in the subsequent writ petition where the

Census Commissioner was a party and the earlier order

was repeated. There can be no shadow of doubt that

earlier order is not binding on the appellant as he was

not a party to the said lis. This view of ours gets

fructified by the decision in H.C. Kulwant Singh and

others V. H.C. Daya Ram and others

4

wherein this

Court, after referring to the judgments in Khetrabasi

Biswal V. Ajaya Kumar Baral & Ors.

5

, Udit Narain

Singh Malpaharia V. Board of Revenue

6

, Prabodh

Verma & Ors. Vs. State of U.P. & Ors.

7

and Tridip

Kumar Dingal & Ors. V. State of W.B. & Ors.

8

has

ruled thus:

“..... if a person who is likely to suffer from the

order of the court and has not been impleaded

as a party has a right to ignore the said order as

4

JT 2014 (8) SC 305

5

(2004) 1 SCC 317

6

AIR 1963 SC 786

7

(1984) 4 SCC 251

8

(2009) 1 SCC 768

14

Page 15 it has been passed in violation of the principles

of natural justice.”

20.The earlier decision being not a binding precedent,

it can be stated with certitude that the impugned

judgment has really compelled the appellant to question

the defensibility of the same.

21.The centripodal question that emanates for

consideration is whether the High Court could have

issued such a mandamus commanding the appellant to

carry out a census in a particular manner. The High

Court has tried to inject the concept of social justice to

fructify its direction. It is evincible that the said

direction has been issued without any deliberation and

being oblivious of the principle that the courts on very

rare occasion, in exercise of powers of judicial review,

would interfere with a policy decision. Interference with

the policy decision and issue of a mandamus to frame a

policy in a particular manner are absolutely different.

The Act has conferred power on the Central Government

to issue Notification regarding the manner in which the

census has to be carried out and the Central

15

Page 16 Government has issued Notifications, and the competent

authority has issued directions. It is not within the

domain of the Court to legislate. The courts do interpret

the law and in such interpretation certain creative

process is involved. The courts have the jurisdiction to

declare the law as unconstitutional. That too, where it is

called for. The court may also fill up the gaps in certain

spheres applying the doctrine of constitutional silence or

abeyance. But, the courts are not to plunge into policy

making by adding something to the policy by way of

issuing a writ of mandamus. There the judicial restraint

is called for remembering what we have stated in the

beginning. The courts are required to understand the

policy decisions framed by the Executive. If a policy

decision or a Notification is arbitrary, it may invite the

frown of Article 14 of the Constitution. But when the

Notification was not under assail and the same is in

consonance with the Act, it is really unfathomable how

the High Court could issue directions as to the manner

in which a census would be carried out by adding certain

aspects. It is, in fact, issuance of a direction for framing

16

Page 17 a policy in a specific manner. In this context, we may

refer to a three-Judge Bench decision in Suresh Seth V.

Commr., Indore Municipal Corporation

9

wherein a

prayer was made before this Court to issue directions for

appropriate amendment in the M.P. Municipal

Corporation Act, 1956 so that a person may be debarred

from simultaneously holding two elected offices, namely,

that of a Member of the Legislative Assembly and also of

a Mayor of a Municipal Corporation. Repelling the said

submission, the Court held:

“In our opinion, this is a matter of policy for the

elected representatives of people to decide and

no direction in this regard can be issued by the

Court. That apart this Court cannot issue any

direction to the legislature to make any

particular kind of enactment. Under out

constitutional scheme Parliament and

Legislative Assemblies exercise sovereign power

to enact laws and no outside power or authority

can issue a direction to enact a particular piece

of legislation. In Supreme Court Employees’

Welfare Assn. v. Union of India

10

(SCC para 51)

it has been held that no court can direct a

legislature to enact a particular law. Similarly,

when an executive authority exercises a

legislative power by way of a subordinate

legislation pursuant to the delegated authority

of a legislature, such executive authority

cannot be asked to enact a law which it has

been empowered to do under the delegated

9

(2005) 13 SCC 287

10

(1989) 4 SCC 187

17

Page 18 legislative authority. This view has been

reiterated in state of J & K v A.R. Zakki

11

. In

A.K. Roy v. Union of India

12

it was held that no

mandamus can be issued to enforce an Act

which has been passed by the legislature.”

22.At this juncture, we may refer to certain authorities

about the justification in interference with the policy

framed by the Government. It needs no special emphasis

to state that interference with the policy, though is

permissible in law, yet the policy has to be scrutinized

with ample circumspection. In N.D. Jayal and Anr. V.

Union of India & Ors.

13

, the Court has observed that in

the matters of policy, when the Government takes a

decision bearing in mind several aspects, the Court

should not interfere with the same.

23.In Narmada Bachao Andolan V. Union of India

14

,

it has been held thus:

“It is now well settled that the courts, in

the exercise of their jurisdiction, will not

transgress into the field of policy decision.

Whether to have an infrastructural project or

not and what is the type of project to be

undertaken and how it has to be executed, are

part of policy-making process and the courts are

ill-equipped to adjudicate on a policy decision so

undertaken. The court, no doubt, has a duty to

11

1992 Supp (1) SCC 548

12

(1982) 1 SCC 271

13

(2004) 9 SCC 362

14

(2000) 10 SCC 664

18

Page 19 see that in the undertaking of a decision, no law

is violated and people’s fundamental rights are

not transgressed upon except to the extent

permissible under the Constitution.”

24.In this context, it is fruitful to refer to the authority

in Rusom Cavasiee Cooper V. Union of India

15

,

wherein it has been expressed thus:

“It is again not for this Court to consider the

relative merits of the different political theories

or economic policies... This Court has the power

to strike down a law on the ground of want of

authority, but the Court will not sit in appeal

over the policy of Parliament in enacting a law”.

25.In Premium Granites V. State of Tamil Nadu

16

,

while dealing with the power of the courts in interfering

with the policy decision, the Court has ruled that it is not

the domain of the court to embark upon unchartered

ocean of public policy in an exercise to consider as to

whether a particular public policy is wise or a better

public policy could be evolved. Such exercise must be left

to the discretion of the executive and legislative

authorities as the case may be. The court is called upon

to consider the validity of a public policy only when a

15

(1970) 1 SCC 248

16

(1994) 2 SCC 691

19

Page 20 challenge is made that such policy decision infringes

fundamental rights guaranteed by the Constitution of

India or any other statutory right.

26.In M.P. Oil Extraction and Anr. V. State of M.P.

& Ors.

17

, a two-Judge Bench opined that:

“.......... The executive authority of the State

must be held to be within its competence to

frame a policy for the administration of the

State. Unless the policy framed is absolutely

capricious and, not being informed by any

reason whatsoever, can be clearly held to be

arbitrary and founded on mere ipse dixit of the

executive functionaries thereby offending Article

14 of the Constitution or such policy offends

other constitutional provisions or comes into

conflict with any statutory provision, the Court

cannot and should not outstep its limit and

tinker with the policy decision of the executive

functionary of the State.”

27.In State of M.P. V. Narmada Bachao Andolan &

Anr.

18

, after referring to the State of Punjab V. Ram

Lubhaya Bagga

19

, the Court ruled thus:

“The Court cannot strike down a policy decision

taken by the Government merely because it feels

that another decision would have been fairer or

more scientific or logical or wiser. The wisdom

and advisability of the policies are ordinarily not

amenable to judicial review unless the policies

are contrary to statutory or constitutional

17

(1997) 7 SCC 592

18

(2011) 7 SCC 639

19

(1998) 4 SCC 117

20

Page 21 provisions or arbitrary or irrational or an abuse

of power. (See Ram Singh Vijay Pal Singh v.

State of U.P.

20

, Villianur Iyarkkai Padukappu

Maiyam v. Union of India

21

and State of Kerala v.

Peoples Union for Civil Liberties

22

.)”

28.From the aforesaid pronouncement of law, it is clear

as noon day that it is not within the domain of the courts

to embark upon an enquiry as to whether a particular

public policy is wise and acceptable or whether a better

policy could be evolved. The court can only interfere if

the policy framed is absolutely capricious or not

informed by reasons or totally arbitrary and founded ipse

dixit offending the basic requirement of Article 14 of the

Constitution. In certain matters, as often said, there

can be opinions and opinions but the Court is not

expected to sit as an appellate authority on an opinion.

29.As has been stated earlier, the Central Government

had issued a Notification prescribing the series of

informations to be collected during the census. It covers

many areas. It includes information relating to

Scheduled Castes and Scheduled Tribes and does not

refer to any other caste. In such a situation, it is

20

(2007) 6 SCC 44

21

(2009) 7 SCC 561

22

(2009) 8 SCC 46

21

Page 22 extremely difficult to visualize that the High Court, on

the first occasion, without having a lis before it in that

regard, could even have thought of issuing a command to

the Census Department to take all such measures

towards conducting the caste-wise census in the country

so that the social justice in its true sense, which is the

need of the hour, could be achieved. This, irrefragably,

is against the power conferred on the court. The High

Court had not only travelled beyond the lis in the first

round of litigation, but had really yielded to some kind of

emotional perspective, possibly paving the adventurous

path to innovate. It is legally impermissible. On the

second occasion, where the controversy squarely arose,

the High Court did not confine to the restrictions put on

the jurisdiction and further without any kind of

deliberation, repeated the earlier direction. The order is

exceptionally cryptical. That apart, it is legally wholly

unsustainable. The High Court, to say the least, had no

justification to pave such a path and we have no

hesitation in treating the said path as a colossal

22

Page 23 transgression of power of judicial review, and that makes

the order sensitively susceptible.

30.Consequently, the appeal is allowed, the judgments

and orders dated 24.10.2008 and 12.5.2010 passed in

W.P.(C) No. 25785/2005 and W.P.(C) No. 10090/2010

respectively are set aside. There shall be no order as to

costs.

........................J.

(DIPAK MISRA)

........................................J.

(ROHINTON FALI NARIMAN)

................................J.

(UDAY UMESH LALIT)

NEW DELHI;

NOVEMBER 07, 2014

23