REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 887 OF 2009

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

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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.

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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.

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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  

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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  

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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  

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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.

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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.   

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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,  

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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  

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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;

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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  

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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  

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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  

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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’.

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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.  

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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  

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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  

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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  

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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  

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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.)    

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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  

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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  

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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  

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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  

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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:-

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“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  

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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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