CASE ANALYSIS

UNIVERSITY OF KERALA vs. COUNCIL, PRINCIPALS, COLLEGES, KERALA &

ORS

CASE DETAILS:

Civil Appeal no.887 of 2009 was filed by the Appellant in the Hon’ble Supreme Court

challenging the impugned judgment of the Kerala High Court, quashing the directions by way of

letters/circulars issued by various universities directing change of the election mechanism from

existing parliamentary to presidential, thereby allowing the colleges to carryout elections

following system of their choice.

BENCH:

Markande Katju, J and Ashok Kumar Ganguly, J

CITATION:

(2010) 1 SCC 353

FACTS:

BA degree course student fell short of attendance and was not allowed to take the examination.

The shortage of attendance was a result of his participation in the student’s union activities. The

Principal did not allow him to appear for the examinations. This action of the Principal was

challenged in a writ petition in the Kerala High Court, stating that the same was also politically

motivated in order to restrain the functioning of student’s union in the college. The Hon’ble

Court upheld the action of the Principal as the same was according to the rules.

The another issue raised in the said writ petition is that whether it is legal to prohibit politics in

college premises and restricting the students from participating in the political activities apart

from official ones and whether the same is violation of rights under Article 19(1) (a) and (c) of
the Constitution. The Hon’ble division bench of the Court opined that the educational institutes

are free to lay down their own code of conduct to maintain discipline in their respective

institutions, therefore the restriction imposed on students regarding attending and organizing

political activities where held not to be in violation of the articles 19(1)(a) and (c) of the

Constitution. The Kerala High Court also opined that the directions issued to carryout elections

in presidential system shall stand set aside. This is the impugned judgment of the Hon’ble Court

which was challenged in the Hon’ble Supreme Court.

The Supreme Court was concerned about the method of carrying out student’s union elections

resulting in criminalization of the said activities, therefore the Hon’ble Court vide its order dated

12th December 2005 directed appointment of Lynhdoh Committee, headed by Mr. J M Lyngdoh,

Former Chief Election Commissioner along with five other members. The committees submitted

its report on 23rd May 2006 and vide its order dated 22nd September 2006; the Supreme Court

directed that the said recommendations be followed in all universities for carrying out elections.

ISSUES:

1. Whether after getting recommendations from an expert committee can the Court

implement the same by a judicial order or it has to send to same to legislature for its

consideration and implementation, i.e. can the court by its interim order implement the

recommendations of the Lyngdoh Committee?

2. Whether the order dated 22nd September 2006 results in judicial legislation?

3. Whether the Constitution of India permits the Judiciary to legislate and if it does, will the

same not amount to a direct violation of the doctrine of separation of power?

OPINION OF MARKANDE KATJU, J:

Justice Katju has answered issue no. 2 in affirmative, stating that the interim order dated 22nd

September 2006 amount to judicial legislation, which as per his opinion is not permitted under

the Constitution of India.

He made reference to various judgment of the Hon’ble Supreme Court, such as, Employees

welfare Association vs. Union of India1, wherein the Supreme Court held that any authority

carrying out legislative functions cannot be directed, also in the case of Union of India vs.

Prakash P Hinduja2, it was held that the court cannot direct legislation. In the case of Divisional

Manager, Aravali Golf Club & Anr. vs. Chnadra Hass & Anr.3 it was held that if there is a law

the judges definitely can enforce it but they cannot create a law and seek to enforce it. This

according to Justice Katju is a clear violation of the doctrine of separation of powers and that the

Court after receiving the report of the committee, instead of passing an order for implementation

of the same, should have sent it to the legislature or the concerned authority to make law on the

same, either accepting the report in its entirety or parts thereof. In the case N K Prasada vs. Govt.

of India4, it was held that the Court should not encroach in the functions of the other organs of

state. Justice Katju stated that the question are of great constitutional importance and therefore

shall be examined by Constitutional Bench of the Supreme Court.

While agreeing with the opinion of Justice Katju on requirement of opinion of a constitutional

bench, Justice Ashok Kumar Ganguly stated that, the importance of doctrine of separation of

powers lies in preservation of human liberty by avoiding concentration of power in one hand.

This doctrine is of great importance but in practice to impose a complete separation of powers is

1
AIR 1990 SC 334
2
(2003) 6 SCC 195
3
(2008) 1 SCC 683
4
(2004)6 SCC 299
impossible. According to him in modern world the powers and area of function of the legislature,

executive and judiciary overlaps and the power so exercised by them is coextensive. In the case

of Nand Kishor vs. State of Punjab5, it was held that the court is not a mere interpreter of law,

but it is much beyond that. It as an organ of the state is a source of law.

CONCLUSION:

Separation of powers is an important principal which is envisaged in the constitution of India,

each of the organs has its defined functions that it is required to perform. But the said doctrine

has not been implemented in its strictest sense in our country therefore one can clearly observe

some overlap in the functions of the legislature, executive and the judiciary for example Article

123 of the Constitution provides for ordinance making power to the Executive, similarly articles

103 and 192 provides judicial powers to the executive etc. In the case of Indira Nehru Gandhi

vs. Raj Narain6, it was held by Chandrachud, J that “the concentration of power in one organ

may by upsetting that fine balance between the three organs, destroy the fundamental premises

of a democratic government to which we are pledged.” So far as the role of judiciary and

importance of judicial legislations is concerned it is a known fact that the judiciary is the

guardian of the fundamental rights and in case of any violation of the same can declare

legislation void. The power of judicial review vested with the judiciary is an important weapon,

as it can check the action of both the legislature and executive. In areas where there are no

legislations or rules the judiciary can issue guidelines which can later be made into legislation

upon the consideration of the legislature, this has been done in the past in the Vishakha case 7,

wherein the guidelines against sexual harassment at work place was laid down by the Supreme

Court. In various cases it has been observed that the judges not only interpret the law but also

5
(1995) 6 SCC 614
6
(1975) Supp SCC 1
7
Vishakha & Ors. Vs. State of Rajasthan
make laws, the present society demands an active judiciary, which can interpret make the

previously existing laws applicable in the present times. Also Article 141 also provides that the

decisions of the Supreme Court shall be binding on all the lower courts in India. It is important to

widen the power of judiciary and allow judicial legislation for the progress of the society and

benefit of the people.