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Courts can’t legislate or direct executive to make law: SC

The Supreme Court on Friday held that it can neither legislate nor direct the executive to make a law on policy matters like granting reservation to Scheduled Caste (SC) and Scheduled Tribes (ST) in job promotions.

“Be it clearly stated, the courts do not formulate any policy, remain away from making anything that would amount to legislation, rules and regulation or policy relating to reservation,” the Bench headed by Justice Dipak Misra said.

The observation came in a verdict by which the Apex Court dismissed a batch of petitions, seeking direction to the Uttar Pradesh government to conduct a survey to collect necessary qualitative data regarding representation of SCs and STs in services for grant of reservation in promotion to them. 

“We have referred... as the court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamount to a prayer for issue of a mandamus to take a step towards framing of a rule or a regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions. In our considered opinion a writ of mandamus of such a nature cannot be issued,” the Bench said.

For making provisions of reservation, the state has to show compelling reasons like backwardness, inadequacy of representation and over all administrative efficiency, the petitioners wanted the Apex Court to issue direction to the state for conducting the survey and collecting of data of the SCs and STs in service for granting reservation in promotion.

“... It has been postulated that the State is not bound to make reservation for SC and ST in matter of promotions. Therefore, there is no duty. In such a situation, to issue a mandamus to collect the data would tantamount to asking the authorities whether there is ample data to frame a rule. This will be in a way, entering into the domain of legislation, for it is a step towards commanding to frame a legislation or a delegated legislation for reservation,” the Bench said.
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