CUTTACK: The Orissa High Court has dismissed a petition seeking directions to the state to frame a scheme or rules for granting family pension to the families of non-jailed freedom fighters.
Initially, a single judge had observed that the issue involved greater importance concerning the framing of the scheme or the rules relatable to the family pension and directed the matter to be registered as a PIL. However, the division bench of Chief Justice Harish Tandon and Justice MS Raman on December 22 declined to entertain the PIL holding that courts cannot compel the executive or legislature to formulate policy.
Rushi Dei (96) of Nayagarh district filed the petition alleging inaction of authorities in granting her family pension as the widow of late Keshab Pradhan, a non-jail freedom fighter, who died in 2015. While freedom fighter pension is available to jailed freedom fighters, the petitioner contended that families of non-jail freedom fighters are excluded despite repeated representations to authorities.
The bench, however, framed the core issue as whether a high court exercising jurisdiction under Article 226 of the Constitution can direct the executive or legislature to enact a law, frame rules or evolve a policy. The court held that doing so would amount to crossing the constitutional line of separation of powers.
Emphasising constitutional boundaries, the bench observed that “the legislature is competent enough to legislate the law or make the rules and to run a government,” while policy decisions lie within the executive’s domain. The judiciary’s role, it said, is to uphold the law and test executive or legislative action against constitutional provisions.
Citing Supreme Court precedent, the court noted that the extraordinary jurisdiction under Article 226 should not be used to issue “sermons or advisory to the legislative body or the executive to frame the Policy or make the Rules or enact the Law”. It added that courts should refrain from issuing mandamus to frame rules or adopt policies unless a clear right is discernible from the Constitution or existing statutes.
Concluding that no such enforceable right was shown, the bench said, “We, thus, do not find any justification in entertaining the instant PIL in the manner the relief is couched and/or prayed for,” and dismissed the writ petition.