Page 168 - ELT_1st August 2020_Vol 373_Part 3

350 EXCISE LAW TIMES [ Vol. 373

16. The power of the Court under writ jurisdiction has been discussed in
Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364, in paras 17 and 19,
which read as under :
“17. Before adverting to the controversy directly involved in these
appeals we may have a fresh look on the inter se functioning of the
three organs of democracy under our Constitution. 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 Constitution trusts
to the judgment of these organs to function and exercise their dis-
cretion by strictly following the procedure prescribed therein. The
functioning of democracy depends upon the strength and inde-
pendence of each of its organs. Legislature and executive, the two
facets of people’s will, they have all the powers including that of fi-
nance. 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 democ-
racy. Judicial review is a powerful weapon to restrain unconstitu-
tional exercise of power by the legislature and executive. The ex-
panding horizon of judicial review has taken in its fold the concept
of social and economic justice. While exercise of powers by the leg-
islature and executive is subject to judicial restraint, the only check
on our own exercise of power is the self-imposed discipline of judi-
cial restraint.
19. When a 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. The Court sits in judgment on the ac-
tion of a coordinate branch of the Government. 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 sermonise
qua any matter which under the Constitution lies within the sphere
of legislature or executive, provided these authorities do not trans-
gress their constitutional limits or statutory powers.”
17. The aforesaid doctrine of separation of power and limited scope of ju-
dicial review in policy matters is reiterated in State of Orissa v. Gopinath
Dash, (2005) 13 SCC 495 :
“5. While exercising the power of judicial review of administrative
action, the Court is not the appellate authority and the Constitution
does not permit the Court to direct or advise the executive in the
matter of policy or to sermonise qua any matter which under the
Constitution lies within the sphere of the legislature or the execu-
tive, provided these authorities do not transgress their constitution-
al limits or statutory power. (See Asif Hameed v. State of J&K (supra)
and Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223).

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