University Of Kerala vs Council, Principals', Colleges, Kerala & Others

University of Kerala ..Appellant

versus

Council, Principals', Colleges, Kerala & Others ..Respondents

WITH

S.L.P.(C) NOS.24296-24299 OF 2004 S.L.P.(C) NO.14356 OF 2005 WRIT PETITION(C) NO.429 OF 2009

O R D E R

Heard learned counsel for the parties as also the

learned Solicitor General of India, Mr. Gopal Subramaniam,

who has appeared as amicus curiae.

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.

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 -2-

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."

The High Court held that the impugned

circulars/letters had no statutory basis, and hence were

invalid.

Against the aforesaid judgment, the University of

Kerala has filed this appeal by grant of special leave.

-3-

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).

Apart from the aforesaid members in the Committee,

two other members were to be nominated by the Ministry of

Human Resources and Development.

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.

-4-

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.

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.

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".

The aforesaid question, therefore, raises a great

constitutional question about judicial legislation, whether

-5-

it is permissible at all under our Constitution, and even

if it is, what is the extent of judicial legislation?

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

(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

(2008) 5 SCC 511.

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 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

-6-

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)

Similarly, in Asif Hameed vs. State of Jammu and

Kashmir, 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 -7-

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.

-8-

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.

It has been repeatedly held by this Court that this

Court cannot direct legislation vide Union of India vs.

Prakash P. Hinduja (2003) 6 SCC 195:AIR 2003 SC 2612 and it

cannot legislate vide Sanjay Kumar vs. State of U.P. 2004

All LJ 239, Verareddy Kumaraswamy Reddy vs. State of A.P.

(2006) 2 SCC 670:JT(2006) 2 SC 361, Suresh Seth vs. Commr.

Indore Municipal Corporation (2005) 13 SCC 287:AIR 2006 SC

767 and Union of India vs. Deoki Nandan Aggarwal 1992

Supp(1) SCC 323:AIR 1992 SC 96.

-9-

The Court should not encroach into the sphere of the

other organs of the State vide N.K. Prasada vs. Govt. of

India (2004)6 SCC 299 : JT 2004 Supp (1) SC 326.

Thus in Supreme Court Employees' Welfare Assn. vs.

Union India (1989) 4 SCC 187:AIR 1990 SC 334, this Court

observed:

"There can be no doubt that an authority exercising legislative function cannot be directed to do a particular act. Similarly the President of India cannot be directed by the court to grant approval to the proposals made by the Registrar General of the Supreme Court, presumably on the direction of the Chief Justice of India".

In Union of India vs. Assn. for Democratic Reforms

(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."

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,

-10-

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.

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.

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 (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

-11-

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.

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.

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;

-12- 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."

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

-13-

curiae.

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.

...........................J. [MARKANDEY KATJU]

NEW DELHI;

NOVEMBER 11, 2009.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.887 OF 2009

University of Kerala ...Appellant(s)

Vs.

Council, Principals', Colleges, Kerala and Others ...Respondent(s)

With

S.L.P.(C) No. 24296-24299 of 2004 S.L.P. (C) No. 14356 of 2005 Writ Petition (C) No. 429 of 2009

O R D E R

GANGULY, J.

1. I agree with my learned Hon'ble Brother Katju,

J., that the questions formulated by His Lordship

should be referred to a Constitution Bench for an

authoritative pronouncement.

2. Since those questions concern the very core of

15 our Constitutional jurisprudence, I would like to add

my perception on those questions which may be a shade

at a variance with Brother Katju, J. The relevance

of those questions is perennial and they are bound to

figure in decisions of this Court in various

situations. So while making an authoritative

pronouncement on those questions the Constitution

Bench may consider the views of both of us.

3. The rationale of the doctrine of Separation of

Powers, to my mind, is to uphold individual liberty

and rule of law. Vesting of all power in one

authority obviously promotes tyranny. Therefore, the

principle of Separation of Powers has to be viewed

through the prism of constitutionalism 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 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

16 fully until Locke and Montesquieu elaborated this

concept in 18th Century. Following the principles of

John Locke, James Madison wrote in the Federalist

Papers, (esp No.47) that:-

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

5. The value of this doctrine lies in the fact

that it seeks to preserve human liberty by avoiding

the concentration of powers in one person or body of

persons. This concept of separation of power or of

divided authority is clearly woven in the fabric of

American Constitutional Law.

6. Separation of powers may, therefore, be a

plausible Constitutional doctrine but as a matter of

practice a complete separation is never possible. In

a modern governmental set up, the legislative,

executive and judicial functions may overlap, and the

power exercised by these three branches are

potentially coextensive' as viewed by Chief Justice

Marshall in Osborn V. Bank of U.S. 6 L.Ed.204 (at

17 page 222 of the report). Justice Frankfurter of the

U.S. Supreme Court also observed that "enforcement of

a rigid conception of separation of powers would make

modern government impossible."(See: Schwartz American

Constitution Law, page 310).

7. The Constitutional law of England recognizes

this doctrine but this was never given a

Constitutional status nor was it theoretically

accepted. However in several judgments, the existence

of this doctrine has been acknowledged. (See the

speech of Lord Diplock in Hinds and others vs. The

Queen - (1976) 1 A.E.R 353, at page 370 (Placitum

`g'), Duport Steels Limited and Others vs. Sirs and

others reported in (1980) 1 A.E.R. 529, the opinion

of Lord Diplock at 541 placitum, `g', `h' and `i' and

that of Lord Scarman at page 557, there the learned

judge accepted that in the absence of statute, judges

are virtually `law makers', (placitum `c') and the

view of Lord Templeman in M vs. Home Office and

another, reported in (1993) 3 A.E.R. 537, at page

540, placitum `f'.

18

8. The doctrine has been most directly

incorporated in the U.S. Constitution by its

provisions like "all legislative powers shall be

vested in a Congress (Article I, Section 1), "The

executive powers shall be vested in a President"

(Article II, Section 1) and "the judicial powers

shall be vested in one Supreme Court and in such

inferior courts as Congress may from time to time

ordain and establish" (Article III, Section 1).

9. In our Constitution there is no such defined

and express incorporation of the doctrine of

Separation of Power, save and except that the

Executive power of the Union is vested in the

President under Article 53(1) and similarly the

Executive power of the State is vested on the

Governor under Article 154(1). But so far as

legislative and judicial powers are concerned they

are not vested on any authority. Under Article 50,

one of the directive principles of State policy,

State is to take steps to separate the judiciary from

the executive in the public services of the State.

But this has nothing to do with the vesting of power.

19

10. Under our Constitution the executive is endowed

with certain legislative powers, for instance the

Ordinance making powers under Article 123 and Article

213. It also has certain judicial powers under

Article 103 and Article 192. The legislature is also

empowered to exercise certain judicial powers under

Article 105 and Article 195. The judiciary also

exercises certain legislative and executive powers

under Articles 145, 146, 227 and 229.

11. In addition, the executive also exercises

substantial quasi-judicial powers under several

statutory provisions whereby Tribunals have been set

up. These Tribunals, with almost the trappings of a

Court, decide the lis between the parties. Of course,

the same is subject to well known grounds of

interference by writ court under judicial review.

The Parliament, the highest legislative body in this

Country also exercises quasi-judicial power in the

case of impeachment of judges [Art. 124(5) and Art.

217] and also in respect of contempt of legislatures

[Art. 194(3)].

12. Justice Pathak (as His Lordship then was)

20 explained these principles in Bandhua Mukti Morcha

vs. Union of India reported in (1984) 3 SCC 161, and

which is of some relevance in the context and which I

quote:-

"It is common place that while the Legislature enacts the law the Executive implements it and the Court interprets it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself. And yet it is well recognized that in a certain sphere the Legislature is possessed of judicial power, the executive possesses a measure of both legislative and judicial functions, and the Court, in its duty of interpreting the law, accomplishes in its perfected action a marginal degree of legislative exercise. Nonetheless a fine and delicate balance is envisaged under our Constitution between these primary institutions of the State".

13. In so far as judicial power is concerned, no

such limitation has been imposed under the

Constitution. Rather the conferment of judicial

power under Articles 141, 142, 32 and 226 has been

plenary and very wide and enable the Supreme Court to

declare the law which shall be binding on all the

courts within the territories of India and Article

142 enables the Supreme Court to pass such order as

21 is required to do complete justice in the case.

Those two Articles (Article 141 and 142) are set

out:-

"141. Law declared by Supreme Court to be binding on all courts:--The law declared by the Supreme Court shall be binding on all courts within the territory of India.

142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.- (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order 103 prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

14. Following the aforesaid dispensation, it may

perhaps be said that the framers of our Constitution

never wanted to introduce the doctrine of Separation

of Powers rigidly to the extent of dividing the three

22 organs into water-tight compartments.

15. In this context the direction of Justice

Bhagwati (as His Lordship then was) in the

Constitution Bench decision in Minerva Mills vs.

Union of India - [(1980) 3 SCC 625], is very apt and

is quoted:-

"...Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" to quote the words of Chandrachud, J., (as he then was) in Indira Gandhi case [(1975) Supp SCC 1], "by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged..."

16. Similar principle has been reiterated by Chief

Justice A. N. Ray in Indira Nehru Gandhi vs. Raj

Narain, [(1975) Supp SCC 1]. In para 46 at page 42

of the report the learned Chief Justice clearly

stated:-

"The doctrine of separation of powers is carried into effect in countries like America

23 and Australia. In our Constitution there is separation of powers in a broad sense...... the doctrine of separation of powers as recognized in America is not applicable to our country."

17. The Learned Chief Justice made a categorical

finding at para 47 (page 42) that the rigid

separation of powers as under American Constitution

or Australian Constitution does not apply to our

country.

18. In Indira Nehru Gandhi [Supra] the view of

Chief Justice Ray was affirmed by Justice Chandrachud

in para 684 at pg. 259 and which are very pertinent

in present context and I quote:-

The American Constitution provides for a rigid separation of governmental powers into three basic divisions the executive, legislative and judicial. It is an essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers. Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. As observed by Cardozo, J., in his dissenting opinion in Panama Refining Company v. Ryan (1934) 293 US 388, 440 the principle of separation of

24 powers "is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Govt. which cannot foresee today the developments of tomorrow in their nearly infinite variety". Thus, even in America, despite the theory that the legislature cannot delegate its power to the executive. a host of rules and regulations are passed by non- legislative bodies, which have been judicially recognised as valid.

19. In another Constitution Bench Judgment in A. K.

Roy v. Union of India AIR 1982 SC 710 Chief Justice

Chandrachud speaking for the majority held at para 23

pg. 723 that "our constitution does not follow the

American pattern of strict separation of powers"

20. It may be noted that this Court has on several

occasions issued directions, directives in respect of

those situations which are not covered by any law.

The decision in Visaka vs. State of Rajasthan,

[(1997) 6 SCC 241], is one such instance wherein a

three-Judge Bench of this Court gave several

directions to prevent sexual harassment of women at

the workplace. Taking into account the "absence of

enacted law" to provide for effective enforcement of

the right of gender equality and guarantee against

25 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 was clarified that this Court was acting under

Article 32 of the Constitution and the directions

"would be treated as the law declared by the Court

under Article 141 of the Constitution." (para 16)

21. Similarly, the Supreme Court issued directions

regarding the procedure and the necessary precautions

to be followed in the adoption of Indian children by

foreign adoptive parents. While there was no law to

regulate inter-country adoptions, Bhagwati J., (as

His Lordship then was) in Laxmikant Pandey vs. Union

of India, [AIR 1987 SC 232], formulated an entire

scheme for regulating inter-country and intra-country

adoptions. This is an example of judiciary filling up

the void by giving directions which are still holding

the field.

22. Such judicial intervention when there are gaps

in the legislation has served the cause of justice.

It may be noted that the judges make law is also

shared by several accomplished jurists. Judge Richard

26 A. Posner, in `The Federal Courts: Crisis and Reform,

1985' argues that even though "judges are not

supposed to and generally do not make law with the

same freedom that legislatures can and do"; the "fact

remains that judges make, and do not just find and

apply law."

23. Lord Reid's observation in `The Judge as Law

Maker' is crucial in this regard. The learned judge

points out how "there was a time when it was thought

almost indecent to suggest that judges make law" and

he underscores how that has changed and there is

potential for creativity in the judicial role.

24. Benjamin Cardozo in his accomplished work -

`The Nature of Judicial Process' accepts that a judge

is not a legislator in general but highlights how the

judge does legislate new law in close cases to fill

gaps between existing rules. He offers this theory as

a departure from the traditional Blackstonian theory

of "pre-existing rules of law which judges found, but

did not make." (Banjamin Cardozo, The Nature of

Judicial Process, page 41, 1921.)

27

25. Chief Justice Bhagwati's view in this regard is

in tune with the jurists mentioned above. His

Lordship held in His Lordship's address on the

`Domestic Application of Human Rights Norms' - "It is

recognized on all hands that judges do not merely

discover law, but they also make law... Even when a

judge is concerned with interpretation of a Bill of

Rights or a statute, there is ample scope for him to

develop and mould the law. It is he who infuses life

and blood into the dry skeleton provided by the

legislature and creates a living organism appropriate

and adequate to meet the needs of the society and by

thus making and moulding the law, he takes part in

the work of creation and this is much more true in

the case of interpretation of the Constitution...

Greatness on the Bench lies in creativity 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

28 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 Article 141 is concerned,

Sabyasachi Mukharji's, C.J., view is of primary

importance. In Delhi Transport Corporation vs. D.T.C.

Mazdoor Congress, (AIR 1991 SC 101), the learned

judge notes that `we must do away with the childish

fiction that law is not made by the judiciary' and

cites Austin's description of the Blackstonian

Principle in this regard. Mukharji J. also refers to

the observations made by Chief Justice Subba Rao in

Golak Nath vs. State of Punjab, (AIR 1967 SC 1643 at

1667), wherein it was pointed out that Article 141

and Article 142 "are designedly made comprehensive to

enable the Supreme Court to declare law and to give

such directions or pass such orders, as are necessary

to do complete justice. Subba Rao C.J. had made the

following observation - "the expression `declared' is

wider than the words `found or made'. To declare is

to announce opinion. Indeed, the latter involves the

process, while the former expresses result.

Interpretation, ascertainment and evolution are parts

29 of the process, while that interpreted, ascertained

or evolved is declared as law. The law declared by

this Court is the law of the land. To deny this power

to this Court on the basis of some outmoded theory

that the Court only finds law but does not make it,

is to make ineffective the powerful instruments of

justice placed in the hands of the highest judiciary

of this Country."(para 50)

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 `general consensus of opinion

at the present days is that new law is created by the

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 remains a consensus of opinion that,

within certain narrow and clearly defined limits, new

law is created by the judiciary. As is rightly

30 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 or set of facts new law is being

created.' It is further stated that there may be

times when a `court may take a bolder step, by laying

down a new rule or principle which itself contains

the potentiality of creative expansion and

development.' (Lloyd's Introduction to Jurisprudence,

page 1403-1404)

29. Article 142, which vests the Supreme Court with

the repository of discretionary power that can be

wielded in appropriate circumstances to deliver

complete justice in a given case. Only Bangladesh

(Art. 104) and Nepal [Art. 88(2)] include similar

provisions in their Constitution. [(2005) 3 SCC 281,

para 32] In the context of Article 142, it is

worthwhile to appreciate the observations made by

Hegde J. in Kalyan Chandra Sarkar vs. Rajesh Ranjan,

[(2005) 3 SCC 284], wherein His Lordship pointed out

31 that Article 142 is an important constitutional power

granted to the Court to protect its citizens. The

learned judge observed - `In a given situation when

laws are found to be inadequate for the purposes of

grant of relief, the Court can exercise its

jurisdiction under Article 142 of the Constitution.' (para 33) In para 39, Hegde J. refers to the

decisions in Visaka vs. State of Rajasthan,[(1997) 6

SCC 241] and Vineet Narain vs. Union of India,

([1998) 1 SCC 226], to note that the directions

issued by the Court under Article 142 form the law of

the land in the absence of any substantive law

covering that field. Such directions, according to

His Lordship, `fill the vacuum' until the legislature

enacts substantive law.

30. We may note here that this attempted

legislation by this Court has been applauded

internationally. Reference in this connection may be

made to an article on Separation of Powers by N. W.

Barber in 2001 Cambridge Law Journal (Vol. 60 pg.

59). At page 82 of the article, the learned author

has said:-

32

"Thirdly, it is possible for a court deliberately to depart from the triadic structure in order to combat the resource deficiencies of litigants. As interesting example of this can be found in India were the Supreme Court has attempted to meet the institutional challenges posed by a combination of a weak legislation and a poor citizenry. The Supreme Court has relaxed the formal restrictions on applications to the court. An application can be made by a letter, or even a postcard, addressed to the court."

31. Further it is pointed at page 83 that:-

"These measures must be commended as a significant attempt to adapt the court to the needs of the unempowered citizenship, but whilst this may be the best of all possible alternatives it remains a far from ideal solution. Though the court is able to mitigate the limitations of its structure, it cannot wholly escape them."

32. Again Lord Woolf in his treatise on "The

Pursuit of Justice" {Oxford University Press 2008)

appreciated the innovative steps taken by this court

in the realm of environmental law by observing on

this court's willingness to devise new remedies while

discussing Vellore Citizens' Forum vs. Union of

India, [(1996) 5 SCC 647]. The learned Law Lord

recognized that the principle of (a) sustainable

33 development, (b) precautionary principle and (c)

polluter pays- became part of the Indian law in view

of the said judgment.

33. Commenting on Vellores Citizens' judgment and

devising of remedies by this Court Lord Woolf has

said and which I quote:-

"... the proactive action taken by the Indian Supreme Court to protect the environment that I freely acknowledge could not be taken by English Courts. The Supreme Court of India has shown what can be done in the absence of `black letter weapons' in the judicial armoury." [page 385]

34. For the reasons discussed above, I am humbly of

the view that the questions formulated by Justice

Katju may be considered by the Constitution Bench in

the background of the inherent power of this Court

under Article 141 and Article 142. Both these powers

are unique and possibly in no other jurisprudence has

the highest Court been empowered by such provisions.

That is why it has been observed that the Supreme

Court itself has been a source of law in as much as

this Court held:-

"Their Lordships decisions declare the

34 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 Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing 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 v. State of Punjab, (1995) 6 SCC 614, para 17]

35. However, I agree with all the directions given

by brother Katju, J., and the case may be placed

before the Hon'ble Chief Justice for referring the

questions before the Constitution Bench.

.......................J. New Delhi (ASOK KUMAR GANGULY) November 11, 2009

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