2009 Supreme(SC) 1724

2009(7) Supreme 569
SUPREME COURT OF INDIA
Markandey Katju and Asok Kumar Ganguly, JJ.
University of Kerala — Appellant
versus
Council, Principals’, Colleges, Kerala & Others — Respondents
Civil Appeal No. 887 of 2009
Decided on : 11-11-2009

IMPORTANT POINT
A bench of at least 5 Judges should decide a case involving a substantial question of law as to the interpretation of the Constitution.
ORDER
1. Heard learned counsel for the parties as also the learned Solicitor General of India, Mr. Gopal Subramaniam, who has appeared as amicus curiae.
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 Council of Principals of Colleges in Kerala, which is an association of Principals of 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 directions by way of letters/circulars to conduct election to the colleges’ unions. The challenge in the writ petition was to those letters/circulars.
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 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 discipline in the colleges. The writ petitions are allowed accordingly. The direction to conduct election following the presidential system of election will stand set aside.”
4. The High Court held that the impugned circulars/letters had no statutory basis, and hence were invalid.
5. Against the aforesaid judgment, the University of Kerala has filed this appeal by grant of special leave.
6. 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 election 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 and Development, Union of India. The members of the Committee were:
1. Mr. J.M.Lyngdoh, Retd. Chief Election Commissioner(Chairman).
2.Dr. Zoya Hassan
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 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 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 of the Committee shall be followed in all 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 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.
11. The question of great constitutional importance which has arisen is “whether after getting the recommendations of 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 consider making a law for implementation of these recommendations”.
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 is the extent of judicial legislation?
13. In my opinion, the interim order of this Court dated 22nd September, 2006, prima facie, amounts to judicial legislation and the question before us is whether this is legally permissible. I am prima facie of the opinion that it is not. As held by this Court in Divisional Manager, Aravali Golf Club & Another vs. Chander Hass & Another, 1 (2008) 1 SCC 683 (vide para 26):
“....If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it.” 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 vide Common Cause vs. Union of India, 2 (2008) 5 SCC 511.
14. In Ram Jawaya Kapur vs. State of Punjab, 3 AIR 1955 SC 549 (vide paragraph 12), a Constitution Bench of this Court observed:
“12. ...The Indian Constitution has not indeed recognized 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 the State, of functions that essentially belong to another.” (emphasis supplied)
15. Similarly, in Asif Hameed vs. State of Jammu and Kashmir, 4 AIR 1989 SC 1899, a three Judge bench of this Court observed:
“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 Constitution. Although the doctrine of separation of powers has not been recognized 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 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 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 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. 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 this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint.....”
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 for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary.
16. Learned Solicitor General submitted that when there is 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 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.
17. It has been repeatedly held by this Court that this Court cannot direct legislation vide Union of India vs. Prakash P. Hinduja, 5 (2003) 6 SCC 195:AIR 2003 SC 2612 and it cannot legislate vide Sanjay Kumar vs. State of U.P. 6 2004 All LJ 239, Verareddy Kumaraswamy Reddy vs. State of A.P. 7 (2006) 2 SCC 670:JT(2006) 2 SC 361, Suresh Seth vs. Commr. Indore Municipal Corporation, 8 (2005) 13 SCC 287:AIR 2006 SC 767 and Union of India vs. Deoki Nandan Aggarwal, 9 1992 Supp(1) SCC 323:AIR 1992 SC 96.
18. The Court should not encroach into the sphere of the other organs of the State vide N.K. Prasada vs. Govt. of India,10 (2004)6 SCC 299 : JT 2004 Supp (1) SC 326.
19. Thus in Supreme Court Employees’ Welfare Assn. vs. Union India, 11 (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 made by the Registrar General of the Supreme Court, presumably on the direction of the Chief Justice of India”.
20. In Union of India vs. Assn. for Democratic Reforms, 12 (2002) 5 SCC 294 : AIR 2002 SC 2112, this Court observed:
“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.”
21. 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 the matter should be referred to a Constitution Bench to be constituted by Hon’ble the Chief Justice of India. He invited our attention to Article 145(3) of the Constitution which states that a bench of at least 5 Judges should decide a case involving a substantial question of law as to the interpretation of the Constitution.
22. 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 the 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.
23. It is true that this Court has often being doing legislation in various decisions but the question remains whether this was constitutionally valid. For example, in Vishaka vs. State of Rajasthan, 13 (1997) 6 SCC 241 which was a case relating 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 Article 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 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 decided by a Constitution Bench.
24. 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 authoritative Constitution Bench is required about the constitutional correctness of these decisions.
25. Hence, I refer the following questions of law, preferably to be decided 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 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 other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State.”
26. In our opinion, these are questions of great constitutional importance and hence, in our 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 curiae.
27. 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.

Headnote:Constitution of India,1950 – Article 145(3) – Writ Petition filed by Council of Principals of Colleges in Kerala, an association of Principals of various private aided colleges in the State of Kerala – The main challenge in the writ petition was that the various universities in the State of Kerala had issued directions by way of letters/circulars to conduct election to the colleges’ unions –. The challenge in the writ petition was to those letters/circulars- High Court, by impugned order, allowed the writ petition and quashed said 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 – High Court had held that impugned circulars/letters had no statutory basis, and hence were invalid – Appeal against impugned judgment of High Court – When this matter had come up before this Court, the Court was concerned about the manner in which students’ union activities were carried on, including manner of election to the students’ union, throughout country – The Court was concerned about politicization/criminalization in such activities- Hence, this Court directed appointment of a Committee and accordingly a Committee was constituted by the Ministry of Human Resources and Development, Union of India- Consequent to the directions of this Court, Committee submitted its Report – This Court by a detailed order directed implementation of the Report of the Committee as an interim measure – The question of great constitutional importance which had arisen was “whether after getting recommendations of 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 consider making a law for implementation of these recommendations”- Interim order of this Court prima facie, amounted to judicial legislation and the question that arose was whether this was legally permissible – Dissenting opinion expressed by two judges – As per Markandey Katju ,J. there is broad separation of powers under 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- 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 for implementations of the recommendations by the Committee, because that would really amount to legislation by the judiciary – However as per Asok Kumar Ganguly,J. . separation of powers may 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 – Held since questions of great constitutional importance were involved in the case they required careful consideration by a Constitution Bench of this Court – Matters referred to a larger Bench

       Facts of the Case :

        The question of great constitutional importance which had arisen in this case was “whether after getting the recommendations of 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 consider making a law for implementation of these recommendations”.

       Findings of the Court :

        Since Dissenting opinion expressed by two judges and since questions of great constitutional importance were involved in the case and they required careful consideration by a Constitution Bench of Apex Court. Hence Matters were referred to a larger Bench.