Holding

The Court referred the six constitutional questions concerning the validity of the 22 September 2006 interim order and the scope of judicial legislation to a Constitution Bench for authoritative determination.

Summary

The Kerala High Court quashed circulars issued by universities directing a presidential system for student union elections, holding that the circulars lacked statutory authority. The University of Kerala appealed, arguing that the Supreme Court's interim order of 22 September 2006 directing implementation of the Lyngdoh Committee Report was a valid exercise of its powers. The Supreme Court examined whether such an order amounted to judicial legislation, whether it violated the doctrine of separation of powers, and whether the Court could legislate in the public interest. The Court noted extensive jurisprudence on judicial legislation and the limits of Articles 141 and 142 of the Constitution. It concluded that the questions raised were of constitutional importance and should be decided by a Constitution Bench. Accordingly, the matter was referred to a Constitution Bench for determination of the six questions framed by Justice Katju.

Issues considered

Whether the Supreme Court's interim order dated 22 September 2006 directing implementation of the Lyngdoh Committee Report amounts to judicial legislation.
Whether such judicial legislation violates the doctrine of separation of powers under the Constitution.
Whether the judiciary may legislate in cases of pressing public interest or must limit itself to recommendations to the legislature.
Whether the implementation of the Lyngdoh Committee recommendations infringes Article 19(1)(c) and other fundamental rights.
Whether Articles 141 and 142 empower the Supreme Court to enact law or perform executive functions.
Whether the High Court's quashing of university circulars directing a presidential election system was legally valid.

Subjects

judicial legislationseparation of powersArticle 141Article 142Lyngdoh Committeestudent union electionsconstitutional lawpublic interestjudicial activismconstitution bench

Judgment

[2009] 15 (ADDL.) S.C.R. 800

A UNIVERSITY OF KERALA
v.
COUNCIL, PRINCIPALS', COLLEGES, KERALA & OTHERS
(Civil Appeal No. 887 of 2009)
NOVEMBER 11, 2009 · · ·
B 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
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,' t4J 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 .:frnptfiment?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
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 801
COLLEGES, KERALA
otpowers - Judicial Legislation. , A
J ' 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
I..
(2005) 13 sec 2a1 referred to Para 20
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 :-.
(1993) 3 A.E.R. 537 referred to Para 7
c (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
Jadhav, T.V. George, Savitri Pandey, Shrish Kr. Mishra (for Shail
F
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
K. Jha Manoranjan Kr. Jha, H.K. Puri, Udita Singh, Vivek Singh
G (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. A
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
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
and Development, Union of 1-ndia. The members of the
B
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
Resources and Development.
D
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
colleges/universities elections hereinafter, until further orders.
,..
F
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 ~
G
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
H

""
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
September, 2006, prima facie, amounts to judicial legislation
c
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
absolute rigidity but the constitution maker:s have
B
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
legislature and executive. The expanding horizon of judicial
E 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

F
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
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,
instead of passing a judicial order directing implementation of
H
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
808 SUPREME COURT REPORTS [2009] 15 (AODL) $.C.R.

A 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
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. E
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 F
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.
G
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 H
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.
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.
c 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.
D 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:-
"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." B
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. 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
H
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
has been imposed under the Constitution. Rather the conferment c
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. H
"--
814 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

14. Following the aforesaid dispensation, it may perhaps
A
be said that the framers of our Constitution never wanted to
·1,. ..
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
broad demarcation, though, having regard to the complex
c 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 ....
doctrine of separation of powers as recognized in America
F
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
to our country.
G 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
speaking for the majority held at para 23 pg. 723 that "our E
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
H
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.
22. Such judicial intervention when there are gaps in the
c 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 .....
close cases to fill gaps between existing rules. He offers this
F 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 F
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 G ',
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)
H
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
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
C 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 of judicial 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
E 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
F 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
G 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 of India, ([1_998) 1 SCC 226], to note that the directions
issued by the Court under Article 142 form.the law of the land in
H
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 819
COLLEGES, KERALA [ASOK KUMAR GANGULY, J.]
the absence of any substantive law covering that field. Such A
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 B
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
c
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." D
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 E
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
F
~-
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. G
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 H
,.
I
J:_
820 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

~-

not be taken by English Courts. The Supreme Court of India 1
A
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
B 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
c 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
D 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]
E 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 ....,
F
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 .-
G submitted the Report making recommendations and
suggestions relating to Students' Union Elections. We are, prima-
facie, of the view that the recommendations need acceptance •
and as an interin measure, we direct the following
recommendations to be implemented, subject to such t-

H -modifications indicated hereinafter.
,_
. )-
t
Ir
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 821
COLLEGES, KERALA & ORS.
.-•. 3. The recommendations are : - A
"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 B
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 c
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, D
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 E
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 F
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 G
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
H
822 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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
B
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,
c 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
D 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
E 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

F
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 member of the
administration shall be permitted to holcl -::; •'/post on
G 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 of the office bearers
H
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 823
COLLEGES, KERALA & ORS.
of the student body, whereby all students of all A
")
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.
c
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 D
.... 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 E
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, F
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 G
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
H
824 SUPREME COURT REPORTS [2009] 15 (ADDL.) $.C.R.

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
E case may be being revoked.
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.
6.4.2. It is further recommended that elections be 'l'·,
f
held on a yearly basis and that the same shou!d be
held between 6 to 8 weeks from the rate of
G commencement of the academic sessiun. t-
6.5. Eligibility Criteria for Candidates •
6.5.1. Under graduate students between the ages of
'
.;...
17 and 22 may contest elections. Thif age range
may be appropriately relaxed in the case of
H
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 825
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.
6.5.3. For research Students the maximum age limit B
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
I
/ ' 6.5.6. The candidate shall have one opportunity of
~
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 E
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
<.
University authorities. F
6.5.8. The candidate must be a regular, full time
student of the college/university and should not be a
distance/proximate education student.
That is to say that all eligible candidates must
---t be enrolled in a full time course, the course duration G
being at least one year.
l .J 6.6. Election-Related Expenditure and Financial
Acconutability.
6.6.1. The maximum permitted expenditure per
candidate shall be Rs.5000/-. H
826 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A 6.6.2. Each candidate shall, within two weeks of the
declaration of the result, submit complete and ( ¥

~Jdited accounts to the college/university
a~thorities. The college/university shall publish such
audited accounts within.2 day of submission of such
accounts, through a suitable medium so that any
8
member of the student body may freely examine the
same. · '.
6.6.3. The election of the candidate will be nullified
in the event of any non-compliance or in the event of · i
any excessive expenditure.
c
6.6.4. With the view to prevent the inflow offunds from
political parties into the student election process, the
candidates are specially barred from utilizing funds
from any other sources than voluntary contributions
from the student body.
D
6. 7. Code of Conduct for Candidates and Elections
Administrators.
6.7.1.No candidate shall indulge in, nor shall abet, any
activity, which may aggravate existing differences or
create mutual hatred or cause or cause tension
E
between different castes and communities, religious
or linguistic, or between any group (s) of students.
•.-6.7.2. Criticism of other candidates, when made,
shall be confined to their policies and programs, past
record and work. Candidates shall refrain from
F criticism of all aspects of private life, not connected
with the public activities of the other candidates or
supporters of such other candidates. Criticism of
other candidates, or their supporters based on
unverified allegations or distortion shall be avoided.
G 6. 7.3. There shall be no appeal to caste or communal
feelings for securign votes. Places of worship, within
or without the campus shall not be used for election
propaganda.
6. 7.4. All candidates shall be prohibited from
H indulging or abetting, all activities which are
.i
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 827
cqLLEGES, KERALA & ORS.
considered to be '"corrupt practices' and offences, A
.., such as bribing of voters, intimidation of voters,
impersonation of voters canvassing or the use of
propaganda within 100 meters of polling stations,
holding public meetings during the period of 24
hours ending with the hour fixed for the close of the
B
poll, and the transport and conveyance of voters to
and from polling station.
6.7.5. No candidate shall be permitted to make use
of printed posters, printed pamphlets; or any other
printed material for the purpose of canvassing.
Candidates may only utilize hand-made posters for c
the purpose of canvassing, provided that such hand-
made posters are procured within the expenditure
limit set out herein above.
6.7.6. Candidates may only utilize hand-made
posters at certain places in the campus, which shall D
)<
be notified in advance by the election commission/
..... university authority .
6.7.7. No candidate shall be permitted to carry out
processions, or public meetings, or in any way
canvass or distribute propaganda outside the E
university/college campus.
6. 7 .8. No candidate shall, nor shall his/her
supporters, deface or cause any destruction to any

• - property of the university/college campus, for any
purpose whatsoever, without the prior written
permission of the college/university authorities. All
F

candidate shall be held jointly and severally liable for
any destruction/defacing of any university/college
property.
(
6.7.9. During the election period the candidates may <B
hold processions and/or public meetings, provided
that such processions and/or public meetings do not,
~ _)( • in any manner, disturb the classes and other
(
academic and co-curricular activities of the college/
ml(
university. Further, such processions/public meeting
H
828 SUPREME COURT REPORTS [2009} 15 (ADDL.) S.C.R.

may not be held without the period written
A
permission of the college/university authority.
6.7.10. The use of loudspeakers, vehicles and
.
animals for the purpose of canvassing shall be
prohibited.
B 6.7.11. On the day of polling, student organizations
and candidates shall -
(i) co-operate with the officers on election duty to
ensure· peaceful and orderly polling and complete
freedom to the voters to exercise their franchise :\
c without being subjected to any annoyance or
obstruction;
(ii) not serve or distribute any eatables, or other solid
and liquid consumables, except water on polling day;
(iii) not hand out ·any propaganda on the polling d_qy.
0 6.7.12. Excepting the voters, no one without a valid
pass/letters of authority from the election ,,
commission or from the college/university authorities ~

shall enter the polling booths. ·
6. 7 .13. The election commission/college/university
E authorities shall appoint impartial observers. In the
case of deemed universities and self-financed
institution, government servants may be appointed
as observers. If the candidates have any specific
complaint or problem regarding the conduct of the
....;::.
F elections they may bring the same to the notice of
the observer.
Observers shall also be appointed to oversee the
process o1 nomination of students in institutions that
are following the nominations model of student
G representation.
6.7.14. All candidates shall be jointly responsible for
ensuring the cleaning up of the polling area within 48 I
hours of the conclusion of polling. -J..-~,_

6. 7 .15. Any contravention of any of the above
H recommendations may make the candidate liable to

'•
~
I

• UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 829
COLLEGES,, KERALA
be stripped of his candidature, or his elected post, A

(
-. as the case may be. The election commission/
cotlege/university authorities may also take
appropriate disciplinary action against such a
violator.
6.7.16. In addition to the above-mentioned code of B
conduct, it is also recommended that certain
provisions of the Indian Penal code, 1860 (Section
153-A and Chapter IX-A - "offences Relating to
Election"), may also be made applicable to student
)
elections.
c
6.8. Grievances Redressal Mechanisn
6.8.1. There should be a Grievances Redressal Cell
with the Dean (Student Welfare)/teacher in charge
of student affairs as its chairman. In addition, one
senior faculty member, one senior administrative D
9. officer and two final year students-One boy and one
girl (till the election results declared, students can be
- nominated on the basis of merit and/or participation
in the co-curricular activities in the previous year).
The grievance cell shall be mandated with the
redressal of election-related grievance, including, E
but not limited to breaches of the code of conduct of
elections and complaints relating to election-related
expenditure. This cell would be the regular unit of the
institution.
t
... 6.8.2. In pursuit of its duties, the grievance cell may F
prosecute violators of any aspect of the code of
conduct or the rulings of the grievance cell. The
grievance cell shall serve as the court of original
jurisdiction. The institutional head shall have
appellate jurisdiction over issues of law and fact in G
all cases or controversies arising out of the conduct
of the elections in which the grievance cell has issued

- a final decision. Upon revie'lf', the institutional head
may revoke or modify the sanctions imposed by the
grievance cell.
H
·•.
830 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 6.8.3. In carrying out the duties of the office, the
Grievance cell shall conduct proceedings and -r /

hearing necessary to fulfill those duties, In executing
those duties they shall have the authority :
(1) to issue a writ of subpoena to compel candidates,
B agents, and workers, and to request students to
appear and give testimony, as well as produce
necessary records; and
(ii) to inspect the financial reports of any candidate
and make the records available for public scrutiny {
c upon request.
6.8.4. Members of.the Grievance cell are prohibited
from filing complaints. Any other student may file a
complaint with the Grievance cell, within a period of
3 weeks from the date of declaration of results .. All
complaints must be filed under the name of the
D
student filing the complaint. The Grievance cell shall
act on all complaints within 24 hours after they are -:.:~

.,,
received by either dismissing them or calling a
hearing.
6.8.5. The Grievance eell may dismiss a complaint
E
if:
(iii) the complaint was not filed within the time frame
prescribed in Recommendation 8.4 above;
(iv) the complai~t fails to state a cause of action for
~

F which relief may be granted. <'!~.

(v) the complainant has not and/or likely will not suffer
injury or damage.
6.8.6. If a complaint is not dismissed, then a hearing
must be held. The Grievance cell shall inform, in
G writing, or via-a-mail, the complaining party and
individuals or groups named in the complaint of the
time and place of the hearing. The parties are not
considered notified until they have recei~ed a copy
_,__
of the complaint.
H 6.8.7. The hearing shall be held at the earliest
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 831
COLLEGES, KERALA
possible time, but not within twenty-four (24) hours A
,. ~
-. after receipt of the notice described above, unless
all parties agree to waive the 24-hour time constrain~.
6.8.8. At the time, notice of hearing is issued, the
Grievance Cell, by majority vote, may issue a
temporary restraining order, if it determines that such B
action is necessary to prevent undue or adverse
effects on any individual or entity. Any restraining
order, once issued, will remain in effect until ~
! decision of the Grievance Cell is announced after th~
hearing or until rescinded by the Grievance cell.
c
6.8.9. All Grievance Cell hearing, proceedings, and
meetings must be open to thy public.

..
'
6.8.10. All parties of the Grievance Cell hearing shall
present themselves at the hearing, may be
accompanied by any other student from which they 0

.. can receive counsel, and have the option to be
represented by that counsel.
6.8.11. For any hearing, a majority of sitting
1
:
Grievance Cell members must be in attendance with
the Chair of the Grievance Cell presiding. In the
E
absence of the Chair, the responsibility to preside
shall fall to an Grievance Cell member designated
•' by the Chair.
'
6.8.12. The Grievance cell determines the formatfo~
~.
the hearing, but must require that both the
-
>··
complaining and responding parties appear F
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 G
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 H
832 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A unable to appear at the hearing, signed affidavits
may be 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.
B * There shall be no direct or cross-examination
of any 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
c 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
D 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
E 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,
F opinions, the grievance cell may negate the decision,
but must provide written documentation of reasons
for doing so.
* If the decision of the Grievance Cell is
appealed to the institutional head, the Grievance Cell
G 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
H or intent of the violator as determined by the
UNIVERSITY OF KERALA v. COUNCIL, PRINCIPALS', 833
COLLEGES, KERALA
Grievance Cell. Possible remedies and sanctions A
include, but are not limited to, fines, suspension of
campaining privileges, and disqualification from the
election.
* Any fine or total amount of fines against a
candidate in an election cycle may not exceed the B
spending limit as defined herein above.
* If, after a hearing, the Grievance Cell finds that
f provisions of this Code were viorated by a candidate,
or a candidate's· agent or workers, the Grievance
Cell may restrict the candidate, or the candidates c
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 D
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 E
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 F
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. G
* 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 H
834 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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
c 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
D 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.
E 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. ...
F 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-
G . 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
H elections, re-elections should be conducted,