T. D. Dayal v. The Union of India represented by its Secretary, Ministry of Home Affairs, New Delhi and others
2001-12-04
B.SUBHASHAN REDDY, K.P.SIVASUBRAMANIAM
body2001
DigiLaw.ai
B.Subhashan Reddy, C.J.: The pro bono publico petition seeks issuance of a writ of mandamus to the Union of India, the 1st respondent herein, to take appropriate action on the representation of the petitioner dated 20.20.2000, addressed to the Hon’ble President of India. 2. Prosecutions were launched against Ms.J.Jayalalitha, former Chief Minister of Tamil Nadu under the provisions of Prevention of Corruption Act, 1988 and three Special Courts were constituted for trying the said cases. The said Special Courts were constituted by the State Government in its exercise of power under Sec.3 of the Prevention of Corruption Act, 1988. The validity of the said provision was challenged in a batch of writ petitions before this Court, but unsuccessfully. Even the appeals filed before the Supreme Court were dismissed by judgment dated 14.5.1999. 3. According to the petitioner, who has argued in person, the action taken against Ms.J.Jayalalitha, including the judgment of the Supreme Court affirming the decision of this Court upholding the validity of Sec.3 of the Prevention of Corruption Act, and the consequent constitution of the Special Courts, are unsustainable, and as such, he had filed a representation to the Hon’ble President of India, seeking reference to the Supreme Court for its opinion under Art.143(1) of the Constitution of India, and since no action has been taken on the said representation, this Court should issue a direction to the first respondent to see that the said representation is expeditiously disposed of. 4. Art.143(1) of the Constitution to enables the President to obtain the opinion of the Supreme Court if it appears to the President that a question of law or fact has arisen or is likely to arise, which is of such a nature and of such public importance, that it is expedient to obtain the opinion of the Apex Court. In fact a question arises as to whether the representation made by the petitioner to the President of India is maintainable and whether opinion can be sought from the Supreme Court as to whether the judgment earlier rendered on 14.5.1999 is to be reviewed. But, suffice it to say that this writ petition is totally misconceived, as the power which vests in the President under Art.143(1) of the Constitution is purely discretionary and no direction can be issued by this Court even to consider the said representation.
But, suffice it to say that this writ petition is totally misconceived, as the power which vests in the President under Art.143(1) of the Constitution is purely discretionary and no direction can be issued by this Court even to consider the said representation. To sustain our view, analogy can be drawn from the authoritative pronouncement of the Supreme Court in Dr.Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif and others, A.I.R. 1962 S.C. 1210, wherein the Supreme Court has ruled that, in order that mandamus may issue to compel the respondents to do something, it must be shown that the Statutes impose a legal duty and the appellant has a legal under the Statutes to enforce its performance". Thus view was followed in a later judgment of the Supreme Court in State of Haryana v. Subash Chander Marwaha and others, A.I.R. 1973 S.C. 2216: (1962)2 S.C.J. 208 and was further reiterated in Mani Subrat Jain etc. v. State of Haryana and others, A.I.R. 1977 S.C. 276, wherein the Supreme Court held that, “it is elementary that it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right, as well as a legally protected right, before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something”. In the case of power under Art.143(1) of the Constitution too, it is only for the President to consider as to whether a particular matter has to be referred to the Supreme Court for its opinion and nobody can compel him even to consider as to whether a matter needs such a reference. This writ petition is thus dismissed, as the admission stage. Consequently, connected W.M.Ps. are also dismissed.