Asif Hameed v State of J. & K. (1989)

Ram Jawaya Kapur marks the outer limit of executive power. This case marks the outer limit of judicial power, and it is the authority for judicial self-restraint in Indian administrative law.

Unsuccessful candidates for admission to the two medical colleges of Jammu and Kashmir for 1986-87 challenged the selection. In Jyotshana Sharma's case a Division Bench of the High Court upheld the selection in general but, having decided the petitions, went on to direct: "In future State Government shall entrust the selection process of the two medical colleges to a statutory independent body who will be vested with the power to conduct examination of written as also of viva voce." Until such a body was constituted, the selection committee was to "consist of such persons who are academicians of high calibre".

No statutory body was constituted. In the present case the High Court held the later selections invalid on that ground alone. The State appealed.

Whether the High Court could direct the State Government to constitute a statutory independent body for selection, and invalidate selections made otherwise.

Appeals allowed. The High Court "was, therefore, patently in error in issuing directions in Jyotshana Sharma case and reiterating the same in the judgment under appeal."

The doctrine, restated. "Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State." Legislature, executive and judiciary "have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another."

The asymmetry between the organs. "Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive."

And the consequence of that asymmetry. "While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint."

Frankfurter J's warning, from his dissent in Trop v Dulles, is quoted: "Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint...." The distinction to be observed is "between limits of power and wise exercise of power - between questions of authority and questions of prudence", and "it is not the business of this Court to pronounce policy."

The limit of review. When State action is challenged "the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits." In particular, "While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."

Where the power lay. Medical education is Entry 25 of List III — "Education, including technical education, medical education and universities" — and by Article 246(2) and Article 162 (and section 5 of the State Constitution) it fell within the State's legislative and executive competence. A direction to constitute a statutory body was in substance a direction to legislate: "The legislature is supreme in its own sphere under the Constitution. It is solely for the legislature to consider as to when and in respect of what subject matter, the laws are to be enacted. No directions in this regard can be issued to the legislature by the courts."

The Court also cited Narinder Chand Hem Raj v Lt. Governor, Himachal Pradesh on the impossibility of a court directing the exercise of legislative power.

The court may strike down State action that exceeds constitutional or statutory power, but it may not direct the executive on matters of policy, and it may not direct the legislature to enact a law. The only restraint on judicial power is self-restraint.

• Pair with Ram Jawaya Kapur in every separation-of-powers answer: one case fences the executive, the other the judiciary.
• Use it as the closing limit in an answer on grounds of judicial review (Chapter 12) and on PIL (Chapter 13 §14): the court reviews process, never policy.