# 15 (ADDL.) S.C.R. 800 UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', COLLEGES, KERALA & OTHERS

- **Citation:** [2009] 15 S.C.R. 800
- **Court:** Supreme Court of India
- **Decided:** 2009-11-11
- **Case number:** Civil Appeal No. 887 of 2009
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-800-university-of-kerala-v-council-principals-colleges-kerala-25236
- **Pages:** 36

## Headnote

A
[2009] 15 (ADDL.) S.C.R. 800
UNIVERSITY OF KERALA
v.
COUNCIL, PRINCIPALS', COLLEGES, KERALA & OTHERS
(Civil Appeal No. 887 of 2009)
NOVEMBER 11, 2009 · · ·
B
CM!,\RKANDEY .KAT JU AND A.SOK KU""AR.
. GANGULY, JJ.]
CO!'JSTITUTION OF IND/A, 1950:
Arlie/es 141~ · 142,' 145, 32 and 226 - Pow,ers of sup€Jrior
C Courts to appoint Committees and to directimplementatiqri .of
reports 91suqh}~omrr~ttees-:- £Ject~of1.s~ (o.qoll~ge.s: Urions _:_
Appointment 9f L,yngdoh CofTJ.rnittee. by Supre,me Court 7 . By
interim-orde(_~ated_ ·2'2,9.200·6· Supreme Court. directing
implementation of report of _the said ·committee till furlher
orders-:- When mattei"ilsted before Court for,.hearing, the .. two
D Judge Bencf/ referred ihe matter tc) Constitution Bench to
consider the questions: ."(1) Whether the Court by an interim
order dated.22.9.2006 can validly direct implementation ofthe
Lyngdoh Committee!s Report; (2) Whether the order dated
22.9.2006_ .. real/y amounts to judicial/egislatlon; (3) Whether
E under our Constitution the judiciarycan legislate and, if so what
is the permissible limits of judicial legislation - Will judicial
legislatioff hot vid(ate. the ptinciple 'ht separation' "Jt pbweis
broadly ehvisagiM·'by our constitution,' t 4J Whether thil
judiciarf ca'n 'legislate whiin m· its 'opinion'thed:r is'·a pressing
F social pi'obferfr of ;public interest or it can only make a
recommendqtiqn tg;;ftJ~., legislt;JJwe. or: authority concerned.in
this co(u;.ec(ion,,; (9), Whf)ther Ar:ticle J9. (1 ){c)- and o.the.:r ..
. ' fundamental righ,t~ :are befl)g, violat~<;J whery .festrir;ticms are
·· being plac~d. ,by t,he .:f rnptfiment?tipn of ... the: Ly_ngdph
Committee report wifhP.111 authpfity pf /fiJW,' C;Jn,d ,(6) W~,gf: is-tf"Je
G scope of Artfqle~;-141.a.(l(i .14? p,f f.h!3,: Cor:1stitytion? pq they
permit the judiciary .to legislate 1;1ndlor P.~rform functions, of .the
;
t
'
•
~ ••
•
, •
,
•
•
'
,
I
c • -
.•
' , : .f • • ~ • •
,
executive wing of the State".,,. Constitut1onalism - Separation
,\
·. ·,
*
Order dated 22.9.2006 reproduced along with the instant order at page 820.
·' '
.
!?
... -
•
_:
H
800
··I
J
•
)!
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 801
COLLEGES, KERALA
otpowers - Judicial Legislation.
,
A
' Divisional Manager, Aravali Golf Club & Anothe,-, vs.
Chander Hass & Another (2008) 1 SCC 683; Common Cause
vs. Union of India (2008) 5 SCC 511; Ram Jawaya Kapur vs.
· State of Punjab AIR 1955 SC 549; Asif Hameed vs. State of •
Jammu and Kashmir, AIR 1989 SC 1899; Union of India vs.
B
PrakashP. Hinduja (2003) 6 SCC 195:AIR 2003 SC 2612; -t
Sanjay Kumar vs. State of U. P. 2004 All LJ 239; Verareddy
Kumaraswamy Reddy vs. State of A.P. (2006) 2 SCC
670:JT(2006) 2 SC 361; Suresh Seth vs. Commr. Indore
Municipal Corporation (2005) 13 SCC 287: AIR 2006 SC 767;
C
and Union of India vs. DeokiNandan Aggarwal 1992 Supp(1)
SCC 323:AIR 1992 SC 96; N.K. Prasada vs. Govt. of India
(2004)6 SCC 299: JT 2004 Supp (1) SC 326; Supreme Court
Employees' Welfare Assn. vs. Union India (1989) 4 SCC
187:AIR 1990 SC 334; Union of India vs. Assn. for Democratic
Reforms (2002) 5 SCC 294 : AIR 2002 SC 2112 and Vishaka
D
vs. State of Rajasthan (1997) 6 SCC 241; Bandhua Mukti
Morcha vs. Union oflndia (1984) 3 SCC 161; Minerva Mills
vs. Union of India - (1980) 3 SCC 625, referred to.
Hinds and others vs. The Queen - (1976) 1 A.E.R 353;
Duport Steels Limited and Others vs. Sirs and others reported
E
in (1980) 1 A.ER. 529; M vs. Home Office and another(1993)
3 A.E.R. 537, referred to.
I
'The Nature of Judicial Process' page 41 by Benjamin
Cardozo; "Fifty Years of the Supreme Court: Its Grasp and
Reach" by M.P. Jain; Lloyd's Introduction to Jurisprudence,
F
page 1403; and Cambridge Law Journal Vol. 60 pg. 59,
referred to.
Case Law Reference :
(2008) 1 sec 683
referred to
Para 14
(2008) 5 sec 511
referred to
Para 15
G
1955 SC 549
referred to
Para 16
1989 SC 1899
referred to
Para 17
(2003) 6 sec 195
referred to
Para120
2004 All LJ 239
referred to
Para 20
H
802

## Text

_Characters 0–39,978 of 71,398. This is a partial read: ask again with offset=39978 for what follows._

A
[2009] 15 (ADDL.) S.C.R. 800
UNIVERSITY OF KERALA
v.
COUNCIL, PRINCIPALS', COLLEGES, KERALA & OTHERS
(Civil Appeal No. 887 of 2009)
NOVEMBER 11, 2009 · · ·
B
CM!,\RKANDEY .KAT JU AND A.SOK KU""AR.
. GANGULY, JJ.]
CO!'JSTITUTION OF IND/A, 1950:
Arlie/es 141~ · 142,' 145, 32 and 226 - Pow,ers of sup€Jrior
C Courts to appoint Committees and to directimplementatiqri .of
reports 91suqh}~omrr~ttees-:- £Ject~of1.s~ (o.qoll~ge.s: Urions _:_
Appointment 9f L,yngdoh CofTJ.rnittee. by Supre,me Court 7 . By
interim-orde(_~ated_ ·2'2,9.200·6· Supreme Court. directing
implementation of report of _the said ·committee till furlher
orders-:- When mattei"ilsted before Court for,.hearing, the .. two
D Judge Bencf/ referred ihe matter tc) Constitution Bench to
consider the questions: ."(1) Whether the Court by an interim
order dated.22.9.2006 can validly direct implementation ofthe
Lyngdoh Committee!s Report; (2) Whether the order dated
22.9.2006_ .. real/y amounts to judicial/egislatlon; (3) Whether
E under our Constitution the judiciarycan legislate and, if so what
is the permissible limits of judicial legislation - Will judicial
legislatioff hot vid(ate. the ptinciple 'ht separation' "Jt pbweis
broadly ehvisagiM·'by our constitution,' t 4J Whether thil
judiciarf ca'n 'legislate whiin m· its 'opinion'thed:r is'·a pressing
F social pi'obferfr of ;public interest or it can only make a
recommendqtiqn tg;;ftJ~., legislt;JJwe. or: authority concerned.in
this co(u;.ec(ion,,; (9), Whf)ther Ar:ticle J9. (1 ){c)- and o.the.:r ..
. ' fundamental righ,t~ :are befl)g, violat~<;J whery .festrir;ticms are
·· being plac~d. ,by t,he .:f rnptfiment?tipn of ... the: Ly_ngdph
Committee report wifhP.111 authpfity pf /fiJW,' C;Jn,d ,(6) W~,gf: is-tf"Je
G scope of Artfqle~;-141.a.(l(i .14? p,f f.h!3,: Cor:1stitytion? pq they
permit the judiciary .to legislate 1;1ndlor P.~rform functions, of .the
;
t
'
•
~ ••
•
, •
,
•
•
'
,
I
c • -
.•
' , : .f • • ~ • •
,
executive wing of the State".,,. Constitut1onalism - Separation
,\
·. ·,
*
Order dated 22.9.2006 reproduced along with the instant order at page 820.
·' '
.
!?
... -
•
_:
H
800
··I
J
•
)!
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 801
COLLEGES, KERALA
otpowers - Judicial Legislation.
,
A
' Divisional Manager, Aravali Golf Club & Anothe,-, vs.
Chander Hass & Another (2008) 1 SCC 683; Common Cause
vs. Union of India (2008) 5 SCC 511; Ram Jawaya Kapur vs.
· State of Punjab AIR 1955 SC 549; Asif Hameed vs. State of •
Jammu and Kashmir, AIR 1989 SC 1899; Union of India vs.
B
PrakashP. Hinduja (2003) 6 SCC 195:AIR 2003 SC 2612; -t
Sanjay Kumar vs. State of U. P. 2004 All LJ 239; Verareddy
Kumaraswamy Reddy vs. State of A.P. (2006) 2 SCC
670:JT(2006) 2 SC 361; Suresh Seth vs. Commr. Indore
Municipal Corporation (2005) 13 SCC 287: AIR 2006 SC 767;
C
and Union of India vs. DeokiNandan Aggarwal 1992 Supp(1)
SCC 323:AIR 1992 SC 96; N.K. Prasada vs. Govt. of India
(2004)6 SCC 299: JT 2004 Supp (1) SC 326; Supreme Court
Employees' Welfare Assn. vs. Union India (1989) 4 SCC
187:AIR 1990 SC 334; Union of India vs. Assn. for Democratic
Reforms (2002) 5 SCC 294 : AIR 2002 SC 2112 and Vishaka
D
vs. State of Rajasthan (1997) 6 SCC 241; Bandhua Mukti
Morcha vs. Union oflndia (1984) 3 SCC 161; Minerva Mills
vs. Union of India - (1980) 3 SCC 625, referred to.
Hinds and others vs. The Queen - (1976) 1 A.E.R 353;
Duport Steels Limited and Others vs. Sirs and others reported
E
in (1980) 1 A.ER. 529; M vs. Home Office and another(1993)
3 A.E.R. 537, referred to.
I
'The Nature of Judicial Process' page 41 by Benjamin
Cardozo; "Fifty Years of the Supreme Court: Its Grasp and
Reach" by M.P. Jain; Lloyd's Introduction to Jurisprudence,
F
page 1403; and Cambridge Law Journal Vol. 60 pg. 59,
referred to.
Case Law Reference :
(2008) 1 sec 683
referred to
Para 14
(2008) 5 sec 511
referred to
Para 15
G
1955 SC 549
referred to
Para 16
1989 SC 1899
referred to
Para 17
(2003) 6 sec 195
referred to
Para120
2004 All LJ 239
referred to
Para 20
H
802
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
.._
"
A
(2006) 2 sec 610
referred to·
Para 20
(2005) 13 sec 2a1
referred to
Para 20
I..
1992 Supp(1) SCC 323 referred to
Para 20
(2004) & sec 299
referred to
Para 21
.·,
(1989) 4 sec 18!
referred to
Para 21
B
(2002) s sec 294
referred to
Para 22
(1997) 6 sec 241
referred to
Para 25
(1976) 1 A.E.R 353
referred to
Para 7
(1980) 1 A.E.R. 529
referred to
Para 7
:-.
c
(1993) 3 A.E.R. 537
referred to
Para 7
)..
(1984) 3 sec 161
referred to
Para 12
(1980) a sec 625
referred to
Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 887
of 2009.
D
From the Judgment and Order dated 24.06.2004 of the
High Court of Kerela at Ernakulam in W.P. No. 30845 of 2003.
WITH
.. -
SLP Nos. 24296-24299 of 2004.
SLP(C) No. 14356 of 2005.
E W.P. (C) No. 429of2009.
Mr. Gopal Subramanium, SG, Ranjit Kumar and Rajeev
Dhawan, Dr. Manish Singhvi, AAG, R. Sathish, Dr. Sushil
Balwada, Satbir Pillania, B.S. Narwal-in-person, E.M.S. Anam,
Fazlin Anam, K.R. Sasiprabhu (NP), M.K. Michael, Shivaji M.
.,.
L
I
F Jadhav, T.V. George, Savitri Pandey, Shrish Kr. Mishra (for Shail
Kumar'Dwivedi) V.G. Pragasam, S.J. Aristotle, Prabu
Ramasubramanian, Khwairakpam Nobin Singh, Radha Shyam
Jena, P.V. Dinesh, Sindhu T.P., P. Rajesh, Gangadetha, R.C.
Kohli, S. Chandra Shekhar, Gopal Singh, Amitesh Kum~r. Anil
G
K. Jha Manoranjan Kr. Jha, H.K. Puri, Udita Singh, Vivek Singh
(for Lakshmi Raman Singh), M.L. Lahoty, Paban K. Sharma,
Himanshu Shekhar, Himinder Lal, Bharathi Reddy, T. Anamika,
)(
R. Gopalakrishnan, Manoj Swarup, Lalita Kohli (for Manoj
Swarup & Co.) T.G.N. Nair, K. Rajeev, M.P. Vinod, G. Prakash,
A.D.N. Rao, Neelam Jain, T. Harish Kumar, Sanjay Parikh,
H Mamta ·saxena, A.N. Singh, (for Anitha Shenoy,) for the
•
'
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 803
COLLEGES, KERALA
appearing parties.
The following Order of the Court was delivered
ORDER
1. Heard learned counsel for the parties as also the learned
Solicitor General of India, Mr. Gopal Subramaniam, who has
A
appeared as amicus curiae.
B
2. This Appeal has been filed against the impugned
judgment of the Kerala High Court dated 24th June, 2004 in Writ
Petition No. 30845 of 2003.
3. The Writ Petition was filed by the Coun9il of Principals of
Colleges in Kerala, which is an association of Principals of C
various private aided colleges in the State of Kerala. The main
challenge in the writ petition before the High Court was that the
various universities in the State of Kerala had issued directibns
by way of letters/circulars to conduct election to the colleges'
unions. The challenge in the writ petition was to those letters/
0
circulars.
4. The Kerala High Court, by the impugned order, has
allowed the writ petition and quashed. those letters/circulars
directing following the presidential system of election in the
students' union election and left it free to the colleges to follow
the system of their choice. The directions in the concluding part
E
of the impugned judgment is as follows:
"In such circumstances the direction given in the letters to
conduct election following the presidential system of election
cannot be sustained and the affiliated colleges are free to
follow a system which is better for the administration and
F
discipline in the colleges. The writ petitions are allowed _
accordingly. The direction to conduct election follow1hg the
presidential system of election will stand set aside."
5. The High Court held that the impugned circulars/letters
had no statutory basis, and hence were invalid.
G
6. Against the aforesaid judgment, the University of Kera)a
has filed this appeal by grant of special leave.
7. It appears that when this matter came up before this Court,
the Court was concerned about the manner in which students'
union activities were carried on, including the manner of electiop
H
804
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A to the students' union, throughout the country. The Court was
concerned about the politicization/ criminalization in such
activities. Hence, this Court by order dated 12th December, 2005
~
directed appointment of a Committee and accordingly a
-~
Committee was constituted by the Ministry of Human Resources
B and Development, Union of 1-ndia. The members of the
Committee were:
1. Mr. J.M. Lyngdoh, Retd. Chief Election Commissioner
(Chairman).
2. Dr. Zaya Hassan
•
c
3. Professor Pratap Bhanu Mehta
4. Dr. Daya Nand Dongaonkar (Secretary General of the
Association of Indian Universities).
7. Apart from the aforesaid members in the Committee, two
other members were to be nominated by the Ministry of Human
D Resources and Development.
8. Consequent to the directions of this Court, the Committee
headed by Mr. J.M.Lyngdoh, former Chief Election
Commissioner, went into detail into all aspects of the matter and
•
after having very wide consultations, including consultations with
teachers, students' unions etc. submitted its Report dated 23rd
E May, 2006 to this Court.
9. This Court by a detailed order dated 22nd September,
2006 directed implementation -of the Report of the Committee
_ as an interim measure. By the said order, this Court directed that
the recommendations ofthe Committee shall be followed in all
F colleges/universities elections hereinafter, until further orders.
,..
10. I am not going into the details about various
.,
recommendations made by the Committee and we have no
doubt that many of them are wholesome. Mr. Lyngdoh is a man
of very high integrity and the whole nation is proud of him. I have
'
G no manner of doubt that the Committee headed by him
~
considered the entire matter, referred to it, in great detail.
However, I have grave reservations about the manner of
implementation of the recommendations of the Committee by
..
passing the order dated 22.9.2006.
H
11. The question of great constitutional importance which
""
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 805
COLLEGES, KERALA
has arisen is "whether after getting the recommendations of
A
""
some expert body by a court order, the Court itself can implement
the said recommendations by passing a judicial order or whether
the Court can only send it to the Legislature or its delegate to
consid~r making a law for implementation of these
recommendations".
B
12. The aforesaid question, therefore, raises a great
constitutional question about judicial legislation, whether it is
permissible at all under our Constitution, and even if it is, what
.J
is the extent of judicial legislation?
13. In my opinion, the interim order of this Court dated 22nd c
September, 2006, prima facie, amounts to judicial legislation
and the question before us is whether this is legally permissible.
I am prim a facie of the opinion that it is not. As held by this Court
in Divisional Manager, Aravali Golf Club & Another vs.
Chander Hass & Another (2008) 1 SCC- 683 (vide para 26):
" .... If there is a law, judges can certainly enforce it, but judges
D
cannot create a law and seek to enforce it."
"""
14. There is broad separation of powers under the
Constitution, and hence one organ of the State should not
encroach into the domain of another organ. The judiciary should
not therefore seek to perform legislative or executive functions
E
vide Common Cause vs. Union of India (2008) 5 SCC 511.
15. In Ram Jawaya Kapur vs. State of Punjab AIR 1955
SC 549 (vide paragraph 12), a Constitution Bench of this Court
..
. observed:
"12 .... The Indian Constitution has not indeed recognized
F
the doctrine of separation of powers in its absolute rigidity
but the functions of the different parts or branches of the
Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution
does not contemplate assumption, by one organ or part of G
the State, of functions that essentially belong to another."
..
.,.
(emphasis supplied)
16. Similarly, in Asif Hameed vs. State of Jammu and
Kashmir, AIR 1989 SC 1899, a three Judge bench of this Court
observed:
H
806
SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
A
"17~ Before adverting to the controversy directly involved in
these appeals we may have a fresh look at the inter se
functioning of the three organs of democracy under our
i. "
Constitut\on. Although the doctrine of separation of powers
has not been recognized under the Constitution in its
B
absolute rigidity but the constitution maker:s have
meticulously defined the functions of various organs of the
State. Legislature, executive andjudiciary 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
~-
c
function and exercise their discretion by strictly following the
procedure prescribed therein. The functioning of democracy
depends upon the strength and independence of each of
its organs. Legislature and executive, the two facets of
people's will, they have all the powers including that of
D
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
E
legislature and executive. The expanding horizon of judicial
review has taken in its fold the concept of social and
economic justice. 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.
F
Frankfurter, J. of the U.S. Supreme Court dissenting in the
..
controversial expatriation case of Trop v. Dulles ( 1958) 356
US 86 observed as under :
.... All power is, in Madison's phrase, "of an
encroaching nature". Judicial powers is not immune against
G
this human weakness. It also must be on gu::>.:.J against
encroaching beyond its proper bounds, and not the less so
since the only restraint upon it is self restraint.. ... "
17. In my respectful opinion, once the Committee's Report
'"
~
was received by the Court, the Court should have thereafter,
H instead of passing a judicial order directing implementation of
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 807
COLLEGES, KERALA
the recommendations, sent it to the appropriate Legislature or
A
-'
its delegate (which in this case is the University which can make
delegated legislation in the form of Statutes or Ordinances). It is
for the Legislature or the concerned authorities to make a law
accepting the Report in toto or accepting it in part, or not
accepting it at all but it is not for the Court to pass judicial orders
8
for implementations of the recommendations by the Committee,
because that would really amount to legislation by the judiciary.
18. Learned Solicitor General submitted that when there is
.J
a pressing social need the Court can validly pass an order such
as the one passed by this Court on 22.9.2006 in the public
interest. I am afraid I have some reservations about this
C
proposition, and that for two reasons. Firstly, there are hundreds
of pressing social needs e.g. the need to control price rise,
abolish unemployment and poverty etc. Should the Courts start
dealing with all these social
problems? Secondly, once the
Court starts doing legislation, as the order dated 22.9.2006 has o
really done, where does this end, and is this not encroaching into
the domain of the legislature or executive? In Divisional Manager,
Aravali Golf Club (supra), we have pointed at the grave dangers
for the judiciary in this.
19. It has been repeatedly held by this Court that this Court
E
cannot direct legislation vide Union of India vs. Prakash P.
Hinduja (2003) 6 sec 195: AIR 2003 SC 2612 and it cannot
legislate vide Sanjay Kumar vs. State of U.P. 2004 All LJ 239,
Verareddy Kumaraswamy Reddy vs. State of A.P. (2006) 2
'"" SCC 670:JT (2006) 2 SC 361, Suresh Seth vs. Commr. Indore
Municipal Corporation (2005) 13 SCC 287: AIR 2006 SC 767
F
and Union of India vs. Deoki Nandan Aggarwal1992 Supp(1)
sec 323: AIR 1992 SC 96.
20. The Court should not encroach into the sphere of the
other organs of the State vide N.K. Prasada vs. Govt. of India
(2004)6 SCC 299: JT 2004 Supp (1) SC 326. Thus in Supreme
G
Court Employees' Welfare Assn. vs. Union India (1989) 4 SCC
'
187: AIR 1990 SC 334, this Court observed:
"There can be no doubt that an authority exercising
legislative function cannot be directed to do a particular act.
Similarly the President of India cannot be directed by the
H
A
808
SUPREME COURT REPORTS [2009] 15 (AODL) $.C.R.
court to grant approval to the proposals mad~,.by the
Registrar General of the Supreme Court, presumably on the
direction of the Chief Justice of India".
21. In Union of India vs: Assn. for Democratic Reforms
(2002) 5 SCC 294: AIR 2002 SC 2112, this Court o~s.erved:
B
"19. At the outset, we would say that it is not possible for
this Court to give any directions for amending the Act or the
statutory rules. It is for Parliament to amend the Act and the
Rules. It is also established law that no direction can 'be
given, which would be contrary to the Act and the''Rules." ·
22. Learned Solicitor General submitted that there are a
C large number of decisions where such orders have been passed
by this Court, and there are a large number of pending cases .
where the issues mentioned above will arise, and hence !he
matter should be referred to a Constitution Be.nbh to be
constituted by Hon'ble the Chief Justice of India. He1rnvited our
D attention to Article j45(3) of the Const.itution which states that a
bench of at least 5 Judges should decide a case iny9lving a
substantial question of law as to the interpretation of the
Constitution.
.
. :
23. We agree with this submission. The points mentioned
E above certainly raise grave questions of Constitutional
importance e.g. about (1) the separation of powers of th~ different
organs of the State under our Constitution, (2) the validity of
judicial legislation and, if it is at all permissible, its limits, (3) .the
validity and limits of judicial activism and.the need for judicial·
F
restraint, etc.
.
.
.
..
24. It is true that this CoUrthas often being doing legislation
in various decisions but the question remains whether this was
constitutionally valid. For example, in Vishaka vs; State of
Rajasthan (1997) 6 SCC 241 Which was a case rel.~tir.g to
sexual harassment of women in work places, a three:: Judge
G Bench of this Court has issued various'directives .. and as,stated
therein these will be treated as law under ~rticle 141 of the
Constitution until Parliament makes a law on the subject. While
we fully agree that working women should be protected against
sexual harassment, the constitutional question remains whether
H such directives by this Court are constitutionally valid? In
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 809
COLLEGES, KERALA
substance the Court has said in Vishaka's case (supra) -that it
A
... will become an interim Parliament and legislate on the subject
until Parliament makes a law on the subject. Is this constitutionally
valid? Can the Court convert itself into an interim Parliament and
make law until Parliament makes a law on the subject? I have
grave doubts about this, and hence this point also needs to be
8
decided by a Constitution Bench.
25. It is not necessary to refer to the other decisions of this
Court where it has assumed legislative or executive powers, but
~ the time has come when a thorough reconsideration by an
authorttative Constitution Bench is required about the
constitutional correctness of these decisions.
C
1
26. Hence, I refer th~ following questions of law, preferably
to b_e d~Cided by an authoritative Constitution Bench of this
Court, to be nominated by Hon'ble the Chief Justice of India:
"1. Whether the Court by an interim order dated 22.09.2006
can validly direct implementation of the Lyngdoh
D
Committee's Report;
2. Whether the order dated 22nd September, 2006 really
amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate,
and if so, what is the permissible limits of judicial legislation.
Will' judicial legislation not violate the principle of separation
of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion
there is a pressing social problem of public interest or it can
only make a recommendation to the legislature or concerned
authority in this connection; and
5. Whether Article 19 (1)(c) and otherfundamental rights are
being violated when restrictions are being placed by the
implementation of the Lyng9oh Committee report without
authority of law.
6. Whatis the scope ofArticles 141 and 142 of the
C.onstitution? Do they permit the judiciary to legislate and/
or p6,rform functions of the executive wing of the State."
E
F
G
27. In our opinion, these are questions of great constitutional
importance and hence, inour respectful opinion they require
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810
SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
A careful consideration by a Constitution Bench of this Court. The
matters we are referring to a larger Bench are occurring in a
large number of cases all over the country and indeed all over
the world. Hence, the issues we have raised have to be decided
after careful· consideration preferably by a Constitution Bench
B and after hearing learned counsel for the parties, · and also
taking the help of some senior counsel as amicus c~riae.
c
D
28. Let the papers of this case be placed before Hon'ble
the Chief Justice of India for constituting preferably a Constitution
Bench at an early date for deciding the questions stated by us
above.
ORDER
GANGUL Y, J. 1. I agree with my learned Hon'ble Brother
Katju, J., that the questions formulated by His Lordship should
be referred to a Constitution Bench for an authoritative
pronouncement.
2. Since those questions concern the very core of our
Constitutional jurisprudence, I would like to add my perception
on those questions which may be a shade at a variance with
Brother Katju, J. The relevance of those questions is perennial
and they are bound to figure· in decisions of this Court in various
E situations. So while making an authoritative pronouncement on
those questions the Constitution Bench may consider the views
of both of us.
3. The rationale of the doctrine of Separation of Powers, to
my mind, is to uphold individual liberty and rule of law. Vesting
F of all power in one authority obviously promotes tyranny.
Therefore, the principle of Separation of Powers has to be
viewed through the prism of constitutional ism and for upholding
the goals of justice in its full magnitude.
4. The doctrine is normally associated with the French
·Philosopher Montesquieu, but the origin of this principle can be
G traced back to Aristotle who opined that government should be
composed of three organs, namely, the "deliberative" (i.e
legislative), the magisterial (i.e., executive) and the judicial.
However the scope of this doctrine was not worked out fully until
Locke and Montesquieu elaborated this concept in 18th Century.
H
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 811
COLLEGES, KERALA [ASOK KUMAR GANGULY, J.]
Following the principles of John Locke, James Madison wrote
A
_,,
in the Federalist Papers, (esp No.47) that:-
.A
"The accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or many,
and whether hereditary: self-appointed, or elective, may
justly be pronounced the very definition of tyranny."
5. The value of this doctrine lies in the fact that it seeks to
preserve human liberty by avoiding the concentration of powers
in one person or body of persons. This concept of separation of
power or of divided authority is clearly woven in the fabric of
B
American Co1Jstitutional Law.
C
6. Separation of powers may, therefore, be a plausible
Constitutional doctrine but as a matter of practice a complete
separation is never possible. In a modern governmental set up,
the legislative, executive and judicial functions may overlap, and
the power exercised by these three branches are potentially
coextensive' as viewed by Chief Justice Marshall in Osborn vs.
D
Bank of U.S. 6 L.Ed.204 (at page 222 of the report). Justice
Frankfurter of the U.S. Supreme Court also observed that
"enforcement of a rigid conception of separation of powers would
make modern government impossible."(See: Schwartz
American Constitution Law, page 310).
E
7. The Constitutional law of England recognizes this
doctrine but this was never given a Constitutional status nor was
it theoretically accepted. However in several judgments, the
....
existence of this doctrine has been acknowledged. (See the
speech of Lord Diplock in Hinds and others vs. The Queen -
F
(1976) 1 A.E.R 353, at page 370 (Placitum 'g'), Duport Steels
Limited and Others vs. Sirs and others reported in (1980) 1
A.E.R. 529, the opinion of Lord Diplock at 541 placitum, 'g', 'h'
and 'i' and that of Lord Scarman at page 557, there the learned
judge accepted that in the absence of statute, judges are virtually
'law makers', (placitum 'c') and the view of Lord Templeman in
G
r
M vs. Home Office and another, reported in (1993) 3 A.E.R.
537, at page 540, placitum 'f.
8. The doctrine has been most directly incorporated in the
U.S. Constitution by its provisions like "all legislative powers shall
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812
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A be vested in a Congress (Article I, Section 1 ), "The executive
powers shall be vested in a President" (Article II, Section 1) and
"the judicial powers shall be vP-sted in one Supreme Court and
in such inferior courts as Congress may from time to time ordain
and establish" (Article 111, Section 1 ).
B
9. In our Constitution there is no such defined and express
incorporation of the doctrine of Separation of Power, save and
except that the Executive power of the Union is vested in the
President under Article 53(1) and similarly the Executive power
of the State is vested on the Governor under Article 154(1 ). But
so far as legislative and judicial powers are concerned they are "
C not vested on any authority. Under Article 50, one of the directive
principles of State policy, State is to take steps to separate the
judiciary from the executive in the public services of the State.
But this has nothing to do with the vesting of power.
10. Under our Constitution the executive is endowed with
D certain legislative powers, for instance the Ordinance making
powers under Article 123 and Article 213. It also has certain
judicial powers under Article 103 and Article.192. The legislature
is also empowered to exercise certain judicial powers under
Article 105 and Article 195. The judiciary also exercises certain
E legislative and executive powers under Articles 145, 146, 227
and 229.
11. In addition, the executive also exercises substantial
quasi-judicial powers under several statutory provisions whereby
Tribunals have been set up. These Tribunals, with almost the
trappings of a Court, decide the lis between the parties. Of
F course, the same is subject to well known grounds of interference
by writ court under judicial review. The Parliament, the highest
legislative body in this Country also exercises quasi-judicial
power in the case of i1 npeachment of judges [Art. 124(5) and Art.
217] and also in respect of contempt of legislatures [Art. 194(3)].
G
12. Justice Pathak (as His Lordship then was) explained
these principles in Bandhua Mukti Morcha vs. Union of India
reported in ( 1984) 3 sec 161 , and which is of some relevance
in the context and which I quote:-
"lt is common place that while the Legislature enacts the law
H
the Executive implements it and the Court interprets it and,
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 813
COLLEGES, KERALA [ASOK KUMAR GANGULY, J.]
in doing so, adjudicates on the validity of executive action
A
~ ..
and, under our Constitution, even judges the validity of the
legislation itself. And yet it is well recognized that in a certain
sphere the Legislature is possessed of judicial power, the
executive possesses a measure of both legislative and
judicial functions, and the Court, in its duty of interpreting the 8
law, accomplishes in its perfected action a marginal degree
of legislative exercise. Nonetheless a fine and delicate
balance is envisaged under our Constitution between these
primary institutions of the State".
13. In so far as judicial power is concerned, no such limitation c
has been imposed under the Constitution. Rather the conferment
of judicial power under Articles 141, 142, 32 and 226 has been
plenary and very wide and enable the Supreme Court to declare
the law which shall be binding on all the courts within the territories
of India and Article 142 enables the Supreme Court to pass such
order as is required to do complete justice in the case. Those
D
two Articles (Article 141 and 142) are set out:-
-.
"141. Law declared by Supreme Court to be binding on all
•
courts:--The law declared by the Supreme Court shall be
binding on all courts within the territory of India.
142. Enforcement of decrees and orders of Supreme Court
E
and orders as to discovery, etc.- (1) The Supreme Court in
the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice
in any cause or matter pending before it, and any decree
-I
so passed or order so made shall be enforceable
throughout the territory of India in such manner as may be
F
prescribed by or under any law made by Parliament and,
until provision in that behalf is so made, in such manner as
the President may by order 103 prescribe.
(2) Subject to the provisions of any law made in this behalf·
by Parliament, the Supreme Court shall, as respects the
G
whole of the territory of India, have all and every power to
f
make any order for the purpose of securing the attendance
of any person, the discovery or production of any
documents, or the investigation or punishment of any
contempt of itself.
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"--
814
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
14. Following the aforesaid dispensation, it may perhaps
·1,.
be said that the framers of our Constitution never wanted to
..
introduce the doctrine of Separation of Powers rigidly to the
extent of dividing the three organs into water-tight compartments.
15. In this context the direction of Justice Bhagwati (as His
B
Lordship then was) in the Constitution Bench decision in Minerva
Mills vs. Union of India- [(1980) 3 sec 625], is very apt and is
quoted:-
" ... Under our Constitution we have no rigid separation of
\..
powers as in the United States of America, but there is a
c
broad demarcation, though, having regard to the complex
nature of governmental functions, certain degree of
overlapping is inevitable. The reason for this broad
separation of powers is that "the concentration of powers
in any one organ may" to quote the words of Chandrachud,
J., (as he then was) in Indira Gandhi case [(1975) Supp
D
sec 1], "by upsetting that fine balance between the three
organs, destroy the fundamental premises of a democratic
government to which we are pledged ... "
•
16. Similar principle has been reiterated by Chief Justice
A. N. Ray in Indira Nehru Gandhi vs. Raj Narain, [(1975) Supp
E SCC 1]. In para 46 at page 42 of the report the learned Chief
Justice Clearly stated:-
"The doctrine of separation of powers is carried into effect
in countries like America and Australia. In our Constitution
there is separation of powers in a broad sense ...... the
....
F
doctrine of separation of powers as recognized in America
is not applicable to our country."
17. The Learned Chief Justice made a categorical finding
at para 4 7 (page 42) that the rigid separation of powers as under
American Constitution or Australian Constitution does not apply
G
to our country.
18. In Indira Nehru Gandhi [Supra] the view of Chief Justice
Ray was affirmed by Justice Chandrachud in para 684 at pg. 259
and which are very pertinent in present context and I quote:-
The American Constitution provides for a rigid separation.
of governmental powers into three basic divisions the
H
executive, legislative and judicial. It is an essential principle
'
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 815
COLLEGES, KERALA [ASOK KUMAR GANGULY, J.]
of that Constitution that powers entrusted to one department
A
-
..;
should not be exercised by any other department. The
Australian Constitution follows the same pattern of
distribution 0f powers. Unlike these Constitutions, the Indian
Constitution does not expressly vest the three kinds of
power in three different organs of the State. But the principle
B
of separation of powers is not a magic formula for keeping
the three organs of the State within the strict confines of their
functions. As observed by Cardozo, J., in his dissenting
opinion in Panama Refining Company vs. Ryan (1934)
293 US 388, 440 the principle of separation of powers "is
not a doctrinaire concept to be made use of with pedantic c
rigour. There must be sensible approximation, there must
be elasticity of adjustment in response to the practical
necessities of Govt. which cannot foresee today the
-
developments of tomorrow in their nearly infinite variety".
Thus, even in America, despite the theory that the legislature
D
cannot delegate its power to the executive. a host of rules
-,
and regulations are passed by non-legislative bodies, which
have been judicially recognised as valid.
~
.~
19. In another Constitution Bench Judgment in A. K. Roy v.
Union of India AIR. 1982 SC 710 Chief Justice Chandrachlid
E
speaking for the majority held at para 23 pg. 723 that "our
constitution does not follow the American pattern of strict
separation of powers"
20. It may be noted that this Court has on several occasions
issued directions, directives in respect of those situations which
are not covered by any law. The d~cision in Visaka vs. State of F
Rajasthan, [ ( 1997) 6 SCC 241], is one such instance wherein
a three-Judge Bench of this Court gave several directions to
prevent sexual harassment of women at the workplace. Taking
into account the "absence of enacted law" to provide for effective
enforcement of the right of gender equality and guarantee G
against sexual harassment, Chief Justice Verma held that
~
guidelines and norms given by the Court will hold the field until
legislation was enacted for the purpose. It .1as clarified that this
Court was acting under Article 32 of the Constitution and the
directions "would be treated as the law declared by the Court
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816
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A under Article 141 of the Constitution." (para 16)
21. Similarly, the Supreme Court issued directions
.... -
regarding the procedure and the necessary precautions to be
followed in the adoption of Indian children by foreign adoptive
parents. While there was no law to regulate inter-country
·B adoptions, Bhagwati J., (as His Lordship then was) in Laxmikant
Pandey vs. Union of India, [AIR 1987 SC 232], formulated an
entire scheme for regulating inter-country and intra-country
adoptions. This is an example of judiciary filling up the void by
giving directions which are still holding the field.
,...
c
22. Such judicial intervention when there are gaps in the
legislation has served the cause of justice. It may be noted that
the judges make law is also shared by several accomplished
jurists. Judge Richard A. Posner, in 'The Federal Courts: Crisis
and Reform, 1985; argues that even though "judges are not .
...
supposed to and generally do not make law with the same
D freedom that legislatures can and do"; the "fact remains that
judges make, and do not just find and apply law."
,....
23. Lord Reid's observation in 'The Judge as Law Maker'
'-.
is crucial in this regard. The learned judge points out how "there
.
was a time when it was thought almost indecent to suggest that
E judges make law" and he. underscores how that has changed and
there is potential for creativity in the judicial role.
24. Benjamin Cardozo in his accomplished work - 'The
Nature of Judicial Process' accepts that a judge is not a legislator
in general but highlights how the judge does legislate new law in
.....
F close cases to fill gaps between existing rules. He offers this
theory as a departure from the traditional Blackstonian theory of
"pre-existing rules of law which judges found, but did not make."
(Banjamin Cardozo, The Nature of Judicial Process, page 41,
1921.)
25. Chief Justice Bhagwati's view in this regard is in tune
G with the jurists mentioned above. His Lordship held in His
Lordship's address on the 'Domestic Application of Human
.l
Rights Norms' - "It is recognized on all hands that judges do not
merely discover law, but they also make law .. : Even when a
judge is concerned with interpretation of a Bill of Rights or a
H statute, there is ample scope for him to develop and mould the
._,.
-,
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 817
COLLEGES, KERALA [ASOK KUMAR GANGULY, J.]
law. It is he who infuses life and blood into the dry skeleton
A
provided by the legislature and creates a living organism
appropriate and adequate to meet the needs of the society and
by thus making and moulding the law, he takes part in the work
of creation and this is much more true in the case of interpretation
of the Constitution ... Greatness on the Bench lies in creativity
8
and it is only through bold and imaginative interpretation that the
law can be moulded and developed and human rights
advanced ... To meet the needs of the society, the judges do
make law and it is now recognized everywhere that judges take
part in this law making function and, therefore, judges make law."
26. The law-making role of this Court has also been
C
acknowledged in various other decisions as well. In this context,
one must appreciate the scope and ambit of Articles 141 and
142.
27. In so far as Artide 141 is concerned, Sabyasachi
,, Mukharji's, C.J., view is of primary importance. In Delhi D
Transport Corporation vs. D. T.C. Mazdoor Congress, (AIR
1991 SC 101), the learned judge notes that_'we must do away
with the childish fiction that law is not made by the judiciary' and
cites Austin's description of the Blackstonian Principle in this
regard. Mukharji J. also refers to the observations made by Chief
E
Justice Subba Rao in Golak Nath vs. State of Punjab, (AIR 1967
SC 1643 at 1667), wherein it was pointed out that Article 141
and Article 142 "are designedly made comprehensive to enable
the Supreme Court to declare law and to give such directions or
pass such orders, as are necessary to do complete justice.
Subba Rao C.J. had made the following observation - "the
expression 'declared' is wider than the words 'found or made'.
To declare is to announce opinion. Indeed, the latter involves the
process, while the former expresses result. Interpretation,
ascertainment and evolution are parts of the process, while that
interpreted, ascertained or evolved is declared as law. The law
declared by this Court is the law of the land. To deny this power
to this Court on the basis of some outmoded theory that the Court
only finds law but does not make it, is to make ineffective the
powerful instruments of justice placed in the hands of the highest
judiciary of this Country. "(para 50)
F
G
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818
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
28. This particular view of Chief Justice Subba Rao, to my
mind, has not been departed from. M.P. Jain in his article titled
The Supreme Court and Fundamental Rights' comments on this
observation in Golak Nath (supra) and points out that the
declaratory theory which says that judges only declare the law
8
but do not make it has been discarded even in Britain and the
'general consensus of opinion at the present days is that new
law is created by fhe judiciary' (in Fifty Years of the Supreme
Court: Its Grasp and Reach). Mr.