Seminar VIII - University of Kerala v. Council of Principals of Colleges, Kerala and Others

Please find below the abstract for the upcoming seminar. Kindly post your clarifications, views and comments on the issues identified herein. Comments may include insights, suggestions for improvement etc. We will try and align the discussions with the presenter.

THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar VIII
03.03.10
(10:00 A.M. to 12:15 P.M.)


University of Kerala v. Council of Principals of Colleges, Kerala and Others


Moderator : Vikram Singh.
Presenter : Garima Budhiraja.
Discussants : Pragya Singh and Subhagam Kumar.
Rapporteur : Pathak Rakesh Kaushik.


I. Facts

THE GENESIS of the case dates back to the writ petition filed in the Kerala High Court dated 24-6-2004 by the Council of Principals of Colleges in Kerala against the directions issued by way of letters/circulars by respective universities to conduct elections to the colleges’ unions. The high court quashed the letters/circulars and left the colleges free to follow the system of their choice. Against the aforesaid judgment, the University of Kerala filed the appeal by special leave. The court by an order dated 12-12-2005 directed Ministry of Human Resource and Development to appoint a committee and accordingly a committee was constituted. The committee headed by Mr. J. M. Lyngdoh submitted a report to the court on 23-5-2006. The court by a detailed order dated 22-9-2006 directed that the recommendations of the committee shall be followed in all colleges/universities elections as an interim measure, until further orders. When the matter came up again before the present division bench, a question arose as to the validity of the said interim order.

II. Judgment

The division bench comprising of Katju J and Ganguly J expressed divergent views about the validity of the interim order. Katju J opined that the interim order dated 22-9-2006 prima facie amounts to judicial legislation which is not legally permissible. Ganguly J, on the other hand, was of the view that the Indian Constitution does not expressly incorporate separation of powers, save and except as provided under certain articles. Insofar as judicial power is concerned, no limitation is imposed under the Constitution and articles 141, 142 and 32 enable the Supreme Court to declare the law which shall be binding on all the courts within the territory of India and the court can pass such orders as required to do complete justice in the case. Both judges, after expressing divergent views, referred the matter to the constitution bench.


III. Issues

1) Whether the court can validly direct constitution of committees and implementation of their reports as done by the Supreme Court in University of Kerala v. Council of Principals of Colleges, Kerala, (2006) 8 SCC 304?
2) 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?
3) 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?


Suggested readings:


1. Lyngdoh Committee Report available at http://www.education.nic.in/higheredu/Lyngdohcommitteereport.pdf
2. M. P. Jain, Indian Constitutional Law 1021-1026 (5th edn., Wadhwa, Nagpur, New Delhi, 2006).
3. M. P. Jain & S.N. Jain, Principles of Administrative Law 31-38 (6th edn., Wadhwa, Nagpur, 2007).
4. B.P. Jeevan Reddy, “Judicial Activism : A Perspective”, available at http://www.thehindu.com/2008/04/30/stories/2008043055791000.htm
5. Anil Divan, “Judicial Activism and Democracy”, available at http://www.hinduonnet.com/2007/04/02/stories/2007040200941000.htm

Welcome!

We are pleased to announce the launch of a blog dedicated to discussions related to Wednesday Seminar proceedings of Indian Law Institute. It would provide a platform for all members of the House to engage in pre-seminar discussions for enhancing the understanding of issues. It would also provide a forum for post-seminar deliberations and updates on the Seminar Report, which will be published after each seminar. We are looking forward to your co-operation, acceptance and involvement in making this blog an engaging exercise.

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