UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS, COLLEGES, KERALA & OTHERS

Citation: [2009] 15 S.C.R. 800

Court: Supreme Court of India

Bench: MARKANDEY KATJU, A.K. GANGULY

Case summary

UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS, COLLEGES, KERALA & OTHERS.pdf

Judgment text

[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 · · · CM! ,\RKANDEY . KATJU 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 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 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 under our Constitution thejudiciarycan legislate and, ifso 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,' t4J Whether thil judiciarfca'n 'legislate whiin m· its 'opinion'thed:r is'·a pressing 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 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, instead of passing a judicial order directing implementation of the recommendations, sent it to the appropriate Legislature or -' 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 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 GolfClub (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 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 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 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 court to grant approval to the proposals mad~,. by the Registrar General ofthe 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: "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 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 1 constituted by Hon'ble the Chief Justice of India. He rnvited our 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 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· restraint, etc. . . . .. 24. It is true that this CoUrthas often being doing legislation in various decisions but the question remains whether thiswas 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 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 such directives by this Court are constitutionally valid?

In substance the Court has said in Vishaka's case (supra) -that it ... will become an interim Parliament and legislate on the subject until Parliament makes a lawon 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. 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 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 ofjudicial 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 1 C. onstitution? Do they permit the judiciary to legislate and/ or p6,rform functions of the executive wing of the State. " 27.

In our opinion, these are questions of great constitutional importance and hence, inour respectful opinion they require 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 and after hearing learned counsel for the parties, · and also taking the help of some senior counsel as amicus c~riae. 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 GANGULY, 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 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 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 ofjustice in its full magnitude. 4.

The doctrine is normally associated with the French ·Philosopher Montesquieu, but the origin of this principle can be 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. COLLEGES, KERALA [ASOK KUMAR GANGULY, J. ] Following the principles of John Locke, James Madison wrote _,, in the Federalist Papers, (esp No. 47) that:- "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 . A power or of divided authority is clearly woven in the fabric of American Co1Jstitutional Law. 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. 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). 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 - (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 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 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). 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 " 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 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 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 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 i1npeachment ofjudges [Art.

124(5) and Art. 217] and also in respect of contempt of legislatures [Art. 194(3)]. 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 the Executive implements it and the Court interprets it and, COLLEGES, KERALA [ASOK KUMAR GANGULY, J. ] in doing so, adjudicates on the validity of executive action 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 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 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 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 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 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. "-- 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 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 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 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 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 .... 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 47 (page 42) that the rigid separation of powers as under American Constitution or Australian Constitution does not apply 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 executive, legislative and judicial. It is an essential principle ' COLLEGES, KERALA [ASOK KUMAR GANGULY, J. ] of that Constitution that powers entrusted to one department .. ; 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 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 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 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 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 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 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 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 adoptions, Bhagwati J.

, (as His Lordship then was) in Laxmikant ·B 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. 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 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 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 ..... 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 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 statute, there is ample scope for him to develop and mould the . _,.

COLLEGES, KERALA [ASOK KUMAR GANGULY, J. ] law. It is he who infuses life and blood into the dry skeleton 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 lawmaking function and, therefore, judges make law. " 26. The law-making role of this Court has also been 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 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 Justice Subba Rao in Golak Nath vs. State ofPunjab, (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 ofthe highest judiciary of this Country. "(para 50) 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 but do not make it has been discarded even in Britain and the 8 '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.

Jain refers to Lloyd's Introduction to Jurisprudence, wherein it is pointed out how there ')o. remains a consensus of opinion that, within certain narrow and clearly defined limits, new law is created by the judiciary. As is rightly pointed out in this treatise, 'attention centers primarily not so much on the fact ofjudicial legislation but rather on the ways in which this occurs ... thus it is realized that in a sense whenever a court applies an established rule or principle to a new situation o or set of facts new law is being created. ' It is further stated that there may be times when a 'court may take a bolder step, by laying down a new rule or principle which itself contains the potentiality of creative expansion and development. ' (Lloyd's Introduction to Jurisprudence, page 1403-1404) 29. Article 142, which vests the Supreme Court with the repository of discretionary power that can be wielded in appropriate circumstances to deliver complete justice in a given case.

Only Bangladesh (Art. 104) and Nepal [Art. 88(2)] include similar provisions in their Constitution. [(2005) 3 SCC 281, para 32] In the context of Article 142, it is worthwhile to appreciate the observations made by Hegde J. in Kalyan Chandra Sarkar vs. Rajesh Ranjan, [(2005) 3 SCC 284], wherein His Lordship pointed out that Article 142 is an important constitutional power granted to the Court to protect its citizens. The learned judge observed - 'In a given situation when laws are found to be inadequate for the purposes of grant of relief, the Court can exercise its jurisdiction under Article 142 of the Constitution. ' (para 33) In para 39, Hegde J. refers to the decisionsjn Visaka ' vs. State of Rajasthan, [(1997) 6 SCC 241] and Vineet Narain vs. Union ofIndia, ([1_998) 1 SCC 226], to note that the directions issued by the Court under Article 142 form. the law of the land in COLLEGES, KERALA [ASOK KUMAR GANGULY, J. ] the absence of any substantive law covering that field.

Such directions, according to His Lordship, 'fill the vacuum' until the ~ legislature enacts substantive law. 30. We may note here that this attempted legislation by this Court has been applauded internationally. Reference in this \ connection may be made to an article on Separation of Powers by N. W. Barber in 2001 Cambridge Law Journal (Vol. 60 pg. 59). At page 82 of the article, the learned author has said:- "Thirdly, it is possible for a court deliberately to depart from the triadic structure in order to combat the resource J deficiencies of litigants. As interesting example of this can be found in India were the Supreme Court has attempted to meet the institutional challenges posed by a combination of a weak legislation and a poor citizenry. The Supreme Court has relaxed the formal restrictions on applications to -the court. An application can be made by a letter, or even a postcard, addressed to the court. " 31.

Further it is pointed at page 83 that:- "These measures must be commended as a significant attempt to adapt the court to the needs of the unempowered citizenship, but whilst this may be the best of all possible alternatives it remains a far from ideal solution. Though the court is able to mitigate the limitations of its structure, it cannot wholly escape them. " 32. Again Lord Woolf in his treatise on "The Pursuit of Justice" {Oxford University Press 2008) appreciated the innovative steps taken by this court in the realm of environmental law by observing on this court's willingness to devise new ~remedies while discussing Ve/lore Citizens' Forum vs. Union of India, [(1996) 5 SCC 647]. The learned Law Lord recognized that the principle of (a) sustainable development, (b) "' precautionary principle and (c) polluter pays-became part of the Indian law in view of the said judgment. 33.

Commenting on Vellores Citizens' judgment and devising of remedies by this Court Lord Woolf has said and which ~ I quote:- "... the proactive action taken by the Indian Supreme Court to protect the environment that I freely acknowledge could ,. I J:_ ~- 1 not be taken by English Courts. The Supreme Court of India has shown what can be done in the absence of 'black letter \.. weapons' in the judicial armoury. " [page 385] 34. For the reasons discussed above, I am humbly of the view that the questions formulated by Justice Katju may be considered by the Constitution Bench in the background of the inherent power of this Court under Article 141 and Article 142. Both these powers are unique and possibly in no other l -• jurisprudence has the highest Court been empowered by such provisions. That is why it has been observed that the Supreme i..

Court itself has been a source of law in as much as this Court held:- "Their Lordships decisions declare the existing law but do not enact any fresh law, is not in keeping with the plenary function of the Supreme Court under Article 141 of the F Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing ,r---of the State is by itself a source of law. The law is what the Court says it is. Patently the High Court fell into an error in ,_, its appreciation of the role of this Court. " [Nand Kishore vs. State of Punjab, (1995) 6 SCC 614, para 17] 35. However, I agree with all the directions given by brother Katju, J. , and the case may be placed before the Hon'ble Chief + Justice for referring the questions before the Constitution Bench. R. P. Matters referred to Constitution Bench. .... ORDER DATED 22. 9. 2006 .... , 1. Heard. 2.

We have perused the Report of the Committee } constituted by the Ministry of Human Resource Development, .. - Government of India in terms of the order of this court dated . - 12A2. 2005. The Committee headed by Mr. J. M. Lyngdoh has submitted the Report making recommendations and suggestions relating to Students' Union Elections. We are, primafacie, of the view that the recommendations need acceptance • and as an interin measure, we direct the following trecommendations to be implemented, subject to such -modifications indicated hereinafter. ,_ . )t Ir COLLEGES, KERALA & ORS. . -. 3. The recommendations are :- • "6. 1. 1. Universities and colleges across the country must ordinarily conduct elections for the appointment of students to student representative bodies. These elections may be conducted in the manner prescribed herein, or in a manner that conforms to the standards prescribed herein. ", 6. 1. 2.

Where the atmosphere of the university campus is adverse to the conduct of peaceful, free and fair elections, the university, its constituent colleges and departments must initiate a system of student representation based on nominations, especially where elections are being held at present. It would be advisable, however, not to base such nomination system on purely academic merit, as is being practiced throughout the country. 6. 1. 3. In cases where elections are not being held, or where the nomination model prevails, the nomination model should be allowed to continue for a limited period of time. It is to be noted that the nomination system suffers from several flaws, and must only be restored to as an INTERTM MEASURE. 6. 1. 4.

Subject to the recommendation in respect of the possible model of elections, all institutions must '· over a period of 5 years, convert from the nomination model to a structured election model, that may be based on a system of parliamentary (indirect) elections, or on the presidential (direct) system, or a hybrid of both. It is highly desirable that all institutions follow this mechanisn of gradual ... conversion, especially for privately funded institutions that prefer a status quo situation. 6. 1. 5. All institutions must conduct a review of the student representation mechanism. The first review may be conducted after a period of 2 years of the ·; implementation of the mechanism detailed above, and the second review may be conducted after the 3rd or the 4th year of implementation.

The primary objective of these reviews will be to ascertain the success of the representation and election mechanism in each individual institution, so as to decide whether or not to implement a full-fledged ,election structure. Needless to say these reviews will be based on a consideration of the views and "'.. suggestions of all stakeholders, such as students, faculty, administration, student bodies, and parents. 6. 1. 6. Institutions must, as a primary objective, subject to the pertinent issue of discipline on campus, seek to implement a structured system of student elections by conclusion of a period of 5 years from the date of the implementation of the recommendations. • 6. 1. 7. Subject to the autonomy of the universities in respect of the choice of the mode of election, all universities must institute an apex student representative body that represents all students, colleges, and departments coming under the particular university.

In the event that the university i~ grographically widespread, individual colleges may constitute their own representative bodies, which -~ would further elect representatives for the apex universities body. 6. 1. 8. The union/representative body so elected shall only comprise of regular students on the rolls of! ile institution. No faculty member, nor any memberofthe administration shall be permitted to holcl -::; •'/post on the executive of such representative body, nor shall be allowed to be a member of any such ..... representative body. 6. 2. Modes of Elections 6. 2. 1. A system of direct election ofthe office bearers COLLEGES, KERALA & ORS. of the student body, whereby all students of all ") constituent colleges, as well as all students of university departments vote directly for the office bearers. This model may be followed in smaller universities with well-defined single camp1. ,1ses (for e. g. JNU/University of Hyderabad, and with a 8 relatively smaller student population.

A graphic representation of this model is annexed herewith at Annexure IV-A. j In respect of universities with large, widespread campuses and Large student bodies either of the following models may be adopted. 6. 2. 2. A system of elections, where colleges and campuses directly elect college and campus office bearers, as well as university representatives. The university representatives form an electoral college, which shall elect the university student union office .... bearers. A graphic representation this model is annexed herewith at Annexure-IV-8. 6. 2. 3. A system of elections where on one hand, directly elected college and camps office bearers, as well as university represe! ltatives. The university representative form an electoral college, which shall elect the university student union office bearers. A graphic representation of this model is annexed ... herewith at Annexure IV-8. 6. 2. 3.

A system of elections where on one hand, directly elected class representative elect the office bearers of the college as well as the university representatives, and the campus itself directly elects the campus office bearers and the university representatives. The university representatives shall form an electoral college, which shall elect the office bearer of the university student union. A graphic ~ ' representation of this model is annexed herewith at Annexure IV-C. 6. 2. 4. A system of election wherein class A representatives shall be directly elected in the _,. colleges and universities campus and they in turn ~ shall eleet the office bearers for the college unions and the university campus union. Also they shall elect their representatives for university student union. These elected representative from colleges and B university campus shall form the electoral college, which shall elect the office b~arers of the university student union.

This model shall be applicable to large university with large number of affiliated coll~ges. A t graphic representation of this model is annexed c herewith at Annexure IV-D. '. 6. 3. Disassociation of Student Elections and Student Representation from Political Parties. 6. 3. 1. During the period of the elections no person, who is not a student on the rolls of the college/ ~ D university, shall be permitted to take part in the ";(. election process in any capacity. Any person, .. candidate, or member of the student organisation, violating this rule shall be subject to disciplinary. proceedings, in addition to the c~ndidature, as the case may be being revoked. E 6. 4. Frequency and Duration of Election Process. 6. 4. 1. It is recommended thafthe entire process of elections, commencing from the date of filing of ,... nomination papers to the date of declaration of -)( I F results, including the campaign period, should not ' exceed 10 days. l' 6. 4. 2.

It is further recommended that elections be '·f , held on a yearly basis and that the same shou! d be held between 6 to 8 weeks from the rate of commencement of the academic sessiun. G t- 6. 5. Eligibility Criteria for Candidates • . ;... ' 6. 5. 1. Under graduate students between the ages of 17 and 22 may contest elections. Thifage range may be appropriately relaxed in the case of H COLLEGES, KERALA & ORS. professional colleges, where courses often range A ... } between 4 to 5 years. 6. 5. 2. For Post Graduate Students the maximum age limit to legitimately contest and election would be 24-25 years. B 6. 5. 3. For research Students the maximum age limit t9 legitimately contest an election would be 28 years. 6. 5. 4. Although, the Committee would refrain from prescribing any particular minimum marks to be attained any candidate, the candidate should in no event have any academic arrears in the year of c contesting the election. 6. 5. 5.

The candidate should have attained the minimum percentage of attendance as prescribed by the university or 75% attendance, whichever is higher. D T / ' 6. 5. 6. The candidate shall have one opportunity of I ~ contest for the post of office bearer, and two opportunities to contest for the post of an executive member. 6. 5. 7. The candidate shall not have a previous criminal record, that is to say he should not have been tried and/or convicted of any criminal offence of misdemeanor. The candidate shall also not have been subject to any disciplinary action by the ~ ·· complaining and responding parties appear physically before the board to discuss the issues through a complaint, answered, rebuttal, and ' rejoinder format. The- purpose of the hearing is to ' gather the information necessary to make a.

decision, order, or ruling that will resolve an election dispute,·To effectuate this purpose, the following rules should prevail at all hearings : * Complaining parties shall pe allowed no more than two witnesses, however, the Grievance cell may call witnesses as required. If said witnesses are unable to appear at the hearing, signed affidavits maybe submitted to the Grievance Cell Chair for the purpose of testifying by proxy. * All questions and discussions by the parties in dispute shall be directed to the Grievance Cell. * There shall be no direct or cross-examination ofany party or witness by complaining or responding parties during hearings. * Reasonable time limits may be set by the Grievance Cell provided they give fare and equal treatment to both sides. * The complaining party shall bear the burden of proof.

* , Decisions, orders and rulings of the Grievance Cell must be concurred to by a majority of the Grievance Cell present and shall be announced as soon as possible after the hearing. The Grievance cell shall i~sue a written opinion of the ruling within 12 hours of announcement of the decision. The written opinion must set forth the findings of fact by the Grievance Cell and the conclusions of law in support of it. Written opinions shall set a precedent for a time period of three election cycles for Grievance Cell ruling, and shall guide the Grievance Cell in its proceedings. Upon consideration of prior ... written opinions. Upon consideration of prior written _l, opinions, the grievance cell may negate the decision, but mustprovide written documentation of reasons for doing so. * If the decision of the Grievance Cell is appealed to the institutional head, the Grievance Cell must immediately submits its ruling to the commission.

* The Grievance Cell shall select the remedy or sanction most appropriate to both the type and severity of the infraction, as well as the stand of mind or intent of the violator as determined by the Grievance Cell. Possible remedies and sanctions include, but are not limited to, fines, suspension of campaining privileges, and disqualification from the election. * Any fine or total amount of fines against candidate in an election cycle may not exceed the spending limit as defined herein above. * If, after a hearing, the Grievance Cell finds that provisions of this Code were viorated by a candidate, f or a candidate's· agent or workers, the Grievance Cell may restrict the candidate, or the candidates agents or workers, from engaging in some or 'all campaign activities for some or all of the remainder of the campaign.

If an order is issued covering only part of the remaining period, it shall take effect immediately so that after its termination, the candidate will have an opportunity to resume campaigning during the days immediately prior to and including the election days. * If, after a hearing, the Grievance Cell finds that provisions of either this Code or decision~:, opinions, orders, or ruling of the Grievance Cell have been willfully and blatantly violated by a candidate, or. a candidate's agents or workers, the Grievanr·e Cell may disqualify the candidate. * Any party adversely affected by a decision of the Grievance Cell may fine an appeal with the institutional head within twenty four (24) hou1:> after the adverse decision is announced. The institutional head shall have discretionary appellate jurisdiction over the Grievance Cell in all cases in which error on the part of the Grievance Cell is charged.

* The decision of the Grievance cell shall stand and shall have full effect until the appeal is heard and decided by the institutional heard. * The institutional head shall hear appeals of Grievance Cell rulings as soon as possible, but not within twenty four (24) hours after the Grievance cell 1 delivers to the Appellant and the institutional head a copy of its written opinion in the case. Appeal may . be heard prior to this time, but only if the Appellant waives the right to a written opinion and the institutional head agrees to accept the waiver: 8 * The institutional head can issue suitable orders to suspend or halt the operation of the ruling issued by the Grievance Cell until the appeals are decided. * The institutional head shall review findings of the Grievance cell when appealed. The institutional head may affirm or overturn the decision of the Grievance cell, or modify the sanctions imposed. 6. 9. Maintaining Law and order on the Campus during the Election Process 6. 9. 1.

Any instance of acute lawlessness or the commission of a criminal offence shall be reported to the police by the university/college authorities as soon as possible, but not later than 12 hours after the alleged commission of the offence. 6. 10. Miscellaneous Recommendations 6J 0. 1. Student representation is essential to the overall development of students, and, therefore, it is recommended that university statuted should ... expressly provide for student representation. 6. 10. 2. Student representation should be regulated by statute (either a. Central Statute, State Statute or individual university statutes), incorp'orating the recommendations prescribed· herein. 6. 10. 3. The institution should organize leadership- . training programs with the help of professional organizations so as to groom and instill in students leadership qualities. 6. 10. 4.

In the event of the office of any major post of office bearers falling vacant within two months of elections, re-elections should be conducted,