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

UNIVERSITY OF KERALA v.

COUNCIL, PRINCIPALS', COLLEGES, KERALA & OTHERS

(Civil Appeal No. 887 of 2009)

NOVEMBER 11, 2009 · ·

CM!,\RKANDEY .KAT JU 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}omrrttees-:- £Jectof1.s~ (o.qollge.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,' t 4J 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 placd. , by t, he .:f rnptfiment?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

otpowers - Judicial Legislation. , A

' 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

SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. .._ " A

(2006) 2 sec 610 referred to Para 20

(2005) 13 sec 2a1 referred to Para 20

I..

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 :-. c

(1993) 3 A.E.R. 537 referred to Para 7 )..

(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 F Jadhav, T.V. George, Savitri Pandey, Shrish Kr. Mishra (for Shail

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 Kumr. Anil

G K. Jha Manoranjan Kr. Jha, H.K. Puri, Udita Singh, Vivek Singh (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

appearing parties.

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.

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.

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

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

B and Development, Union of 1-ndia. The members of the 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

D Resources and Development.

8. Consequent to the directions of this Court, the Committee headed by Mr. J.M.Lyngdoh, former Chief Election Commissioner, went into detail into all aspects of the matter and • after having very wide consultations, including consultations with teachers, students' unions etc. submitted its Report dated 23rd 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 F colleges/universities elections hereinafter, until further orders. ,..

10. I am not going into the details about various .,

recommendations made by the Committee and we have no doubt that many of them are wholesome. Mr. Lyngdoh is a man of very high integrity and the whole nation is proud of him. I have ' G no manner of doubt that the Committee headed by him considered the entire matter, referred to it, in great detail.

However, I have grave reservations about the manner of implementation of the recommendations of the Committee by .. passing the order dated 22.9.2006.

11. The question of great constitutional importance which

has arisen is "whether after getting the recommendations of 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

considr making a law for implementation of these recommendations".

12. The aforesaid question, therefore, raises a great constitutional question about judicial legislation, whether it is permissible at all under our Constitution, and even if it is, what

.J is the extent of judicial legislation?

13. In my opinion, the interim order of this Court dated 22nd c September, 2006, prima facie, amounts to judicial legislation 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

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

B absolute rigidity but the constitution maker:s have 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

E legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.

F 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,

H instead of passing a judicial order directing implementation of

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

SUPREME COURT REPORTS [2009] 15 (AODL) $.C.R.

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 os.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

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.

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.

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 otherfundamental rights are being violated when restrictions are being placed by the implementation of the Lyng9oh Committee report without authority of law.

6. Whatis the scope ofArticles 141 and 142 of the 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

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 criae.

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.

ORDER GANGUL Y, 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 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.

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."

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 Co1Jstitutional 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 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).

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

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 ).

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)].

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,

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 c 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 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.

"--

14. Following the aforesaid dispensation, it may perhaps

1,. 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 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 c 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 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 ....

F 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 4 7 (page 42) that the rigid separation of powers as under American Constitution or Australian Constitution does not apply

G 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 H executive, legislative and judicial. It is an essential principle

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 E 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 dcision 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

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 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 .....

F 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.)

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

._,.

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 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 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)

G ',

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

8 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 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

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 G 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 H

J:_

~- A not be taken by English Courts. The Supreme Court of India 1

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]

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 ....,

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, primafacie, 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

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 D nomination system on purely academic merit, 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

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

B success of the representation and election 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 constitute their own representative bodies, which - would further elect representatives for the apex

~ F 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

G administration shall be permitted to holcl -::; •'/post on the executive of such representative body, nor shall be allowed to be a member of any such representative body. .....

6.2. Modes of Elections

H 6.2.1. A system of direct election of the office bearers

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 c following models may be adopted. 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,

D which shall elect the university student union office

.... 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, E as well as university represe!ltatives. The university 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

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.

B These elected representative from colleges and university campus shall form the electoral college, which shall elect the office barers of the university student union. This model shall be applicable to large university with large number of affiliated collges. 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,

D who is not a student on the rolls of the college/ 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 cndidature, 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. l' 6.4.2. It is further recommended that elections be 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

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.

T / ' 6.5.6. The candidate shall have one opportunity of

~ I 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/-.

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

~Jdited accounts to the college/university

athorities. The college/university shall publish such audited accounts within.2 day of submission of such accounts, through a suitable medium so that any 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.

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.

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 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 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.

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 indulging or abetting, all activities which are

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. c Candidates may only utilize hand-made posters for the purpose of canvassing, provided that such handmade posters are procured within the expenditure limit set out herein above.

6.7.6. Candidates may only utilize hand-made D posters at certain places in the campus, which shall

)< 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 E canvass or distribute propaganda outside the 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 F permission of the college/university authorities. All 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

A may not be held without the period written 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.

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 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

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 E redressal of election-related grievance, including, 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. ... 6.8.2. In pursuit of its duties, the grievance cell may F t

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.

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

D complaints must be filed under the name of the 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.

E 6.8.5. The Grievance eell may dismiss a complaint if:

(iii) the complaint was not filed within the time frame prescribed in Recommendation 8.4 above;

(iv) the complait fails to state a cause of action for which relief may be granted.

~ F

<'!~.

(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 receied a copy _,__

of the complaint.

H 6.8.7. The hearing shall be held at the earliest

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 >·· F - complaining and responding parties appear physically before the board to discuss the issues through a complaint, answered, rebuttal, and

' rejoinder format. Thepurpose 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

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.

* 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 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 Grievance Cell present and shall be announced as soon as possible after the hearing. The Grievance cell shall isue 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 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 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 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 or intent of the violator as determined by the

... _l,

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 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 Grievanre 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.

* 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

within twenty four (24) hours after the Grievance cell 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: * 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 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

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.

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. 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- . 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 elections, re-elections should be conducted,