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Separation of Powers

According to Jain & Jain, "If the 'rule of law' as enunciated by Dicey hampered the recognition of Administrative Law in Britain, for a while, the doctrine of 'Separation of Powers' had an intimate impact on the growth of administrative process & Administrative Law in the United States."

Davis also stated, "Probably, the principal doctrinal barrier to the development of the administrative process has been the theory of separation of powers."

It's generally accepted that there are three main categories of governmental functions, i.e., the legislative, the executive, and the judicial. Likewise, there are three main organs of the government in a State:
  • Legislature
  • Executive
  • Judiciary

According to the theory of separation of powers, these three powers & functions of the government must, in a free democracy, always be kept separate & be exercised by three separate organs of the government. Thus, the legislature can't exercise executive or judicial power; the executive can't exercise legislative or judicial power & the judiciary can't exercise legislative or executive power of the government.

Historical Background:
The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato & Aristotle. In the 16th & 17th centuries, French philosopher John Bodin & British politician Locke expressed their views about the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine systematically, scientifically & clearly in his book Esprit des Lois (The Spirit of the Laws), published in the year 1748.

He said, "when the legislative & executive powers are united in the same person, or in the same body of magistrates, there can be no liberty if the judicial power be not separated from the legislative & the executive powers. Were it joined with the legislative, the life & liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.

Were it joined with the executive power, the judge might behave with violence & oppression. Miserable indeed would be the case, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions & that of judging the crimes or differences of individuals."

Montesquieu was very much impressed by the liberal thoughts of Locke & he also based doctrine on analysis of the British Constitution during the first part of the 18th century, as he understood it. According to him, the secret of an Englishman's liberty was the separation & functional independence of the 3 departments of the government from one another.

According to Wade & Phillips, separation of powers may mean 3 different things:
  • That the same person(s) shouldn't form part of more than one of the 3 organs of Government, e.g. the Ministers should not sit in the Parliament
  • That one organ of the government shouldn't control or interfere with exercise of its function by another organ, e.g. the judiciary should be independent of the executive or that Ministers should not be responsible to Parliament
  • That one organ of the government should not exercise the functions of another, e.g. the Ministers should not have legislative powers.

Effect:
The doctrine of separation of powers as propounded by Montesquieu had a tremendous impact on the development of administrative law & functioning of governments. It was appreciated by English and American jurists & accepted by politicians. In his book Commentaries on the Laws of England, published in 1765, Blackstone observed that if legislative, executive & judicial functions were given to one man, there was an end to personal liberty.

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

The Constituent Assembly of France declared in 1789 that there would be nothing like a Constitution in the country where the doctrine of separation of powers was not accepted.

Cases On Doctrine Of Separation Of Powers:

Madras Bar Association vs Union Of India

Date of Decision: 14 July, 2021
Bench: L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat

Statutes involved: Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance Act, 2021, Finance Act 2017

Issues:
  • Does amendment of Section 184 in relation to the Tribunal Reforms Ordinance violate the principle of Separation of Power?
  • Is the amendment violative of Article 14 of the Constitution?

Background of the Case:
The Madras Bar Association had filed a writ petition seeking to declare Section 184 of the Finance Act 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance Act, 2021 to be against Article 14 of the Constitution of India, as it violates the principle of Separation of Power along with independence of judiciary.

Petitioners argued that Section 184(1) which fixed the allowances and benefits of the Members of Tribunals as admissible to Central Government officers that occupy a post having the same salary, cannot be sustained.

Petitioners argued that Section 184(7) is also unsustainable as it provided that the Government can take decisions about recommendations by SCSC in a period of three months.

Moreover, Section 184(11) was argued to be unconstitutional as it fixed the tenure of the Chairperson and Members to four years.

Judgement:
Legislature must follow the principle of separation of power as enshrined in Article 14 by way of the principles of equality between legislature, executive and judiciary. Any interference of the judicial sphere by the other two wings of government would be unconstitutional.

The Ordinance cannot be said to be against the constitution, by being violative of Article 14, as no feature of this article is considered in the instant case.

Section 184(1) was declared to be unconstitutional, as it tries to override a writ of mandamus of the Court.

Section 184(7) which relates to the decision of the recommendation of names by the SCSC, to be taken by the Government in three months is also seen to be unconstitutional, as it went against the Court's directions.

Section 184(11) which prescribed the tenure of four years is held to be contrary to the principles of separation of power and Article 14 of the Constitution.

Analysis:
Based on the facts, the amendments that were struck down were seen to be against the doctrine of separation of powers, as the legislature tried to overrule powers of the judiciary and went against the directions of the court.

However, the Court noted that the vast amount of vacancies in tribunals is quite disturbing, and urged the legislature to fill up these vacancies while upholding the doctrine of separation of powers and respecting the independence of judiciary.

Saregama India Limited vs Next Radio Limited

Date of Decision: 27 September, 2021
Bench: D.Y. Chandrachud, B.V. Nagarathna

Statutes involved: Copyright Rules 2013

Issues:
  • Is Rule 29 (4) of the Copyright Rules 2013 valid as per Article 226?

Background of the Case:
Some broadcasters approached the Madras High Court to question the validity of Rule 29(4) of Copyright Rules 2013, which provided for detailed information needed for a notice to the owner of a copyright for publication of literary and musical works, by arguing that it was against Rule 31D of the Copyright Rules 2013.

The High Court held that while Section 31D of the Rules required a prior notice to be sent to the owners, while making the more detailed Rule 29(4) a 'routine procedure', changing it from previously being an 'exception.'

This change was then challenged in relation to the power of the High Court in an appeal to the Supreme Court.

Judgement:
The court held that the judicial re-drafting of Rule 29(4) is not permissible under the jurisdiction Article 226 of the Constitution provides for.

Such a decision was not permissible as it would replace a statutory rule made within powers of delegated legislation, with a new provision which the High Court considers to be more useful and practical.

Analysis:
In this case, although doctrine of separation of powers is not explicitly mentioned, it is noted that the judiciary cannot trespass on the powers of the legislature, and thus, is a case of the judiciary stepping into the role of legislature and making its own rules.

It is not permissible for a decision made by an unelected judiciary to overrule one made by the elected legislature. Doctrine of separation of powers calls for division of powers between legislature, executive and judiciary. Neither can overstep into the powers of the other.

Atul Gupta & Anr. vs Union Of India Through Ministry Of Home

Date of Decision: 18 June, 2020
Bench: Anil Kumar, Virendra Kumar Srivastava

Issue:
  • Can a High Court directing the CBI to an investigation, in absence of consent from the concerned State government, count as violation of doctrine of separation of powers?

Background of the Case:

The petitioner, who had been arrested upon implication of a grave offence, brought into question the transfer of the investigation of the case in which he was involved, to the Central Bureau of Investigation.

This transfer was on the grounds that the Police had not been doing a satisfactory job in the investigation. This use of Article 226 was thus challenged on the grounds of violation of doctrine of separation of powers.

Judgement:
The court held that the High Court in using its jurisdiction under Article 226, did not violate the doctrine of separation of powers when it told the CBI to take up the investigation in a cognizable offence case, without the consent of the state in question.

Analysis:
In this case, the usage of a court's power to redirect investigation to the CBI on grounds of unsatisfactory police work did not count to be going against the doctrine of separation of powers.

However, the court cautioned that such a redirection should not become a thing of routine, as it would put extra pressure on the limited resources of the Central Bureau of Investigation, and thus, this power is to be used sparingly.

Union of India v. State of Maharashtra:

Date of Decision: May 5, 2021
Bench: Justice Abdul Nazeer, Justice LN Rao, Justice Hemant Gupta, Justice Ashok Bhushan, Justice SR Bhat

Issue:
  • Whether the judgment in Indra Sawhney needs to be referred to a larger bench for a 're-look' in the light of subsequent Constitutional Amendments, judgments and changed social dynamics etc.?
  • Whether the SEBC Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% reservation is covered by 'exceptional circumstances' in Indra Sawhney's case, allowing a breach of the 50% limit?
  • Whether the Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situations and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
  • Whether the 102nd Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
  • Whether the State's power to legislate in relation to "any backward class" under Articles 15(4) and 16(4) is anyway abridged by Article 342A read with Article 366(26c) of the Constitution of India?
  • Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of "any backward class of citizens" and thereby affects the federal structure of the Constitution of India?

Background of the Case:
The Maharashtra Government promulgated an ordinance on July 9, 2014, granting 16% reservation in education & public employment to the Maratha caste. However, the Bombay High Court on November 9, 2014, issued an interim order staying the ordinance's implementation. The Supreme Court also dismissed the plea challenging the High Court's order.

Thereafter, the state enacted the Socially & Educationally Backward Classes Act, 2014, granting 16% reservation to educationally & socially backward classes, including the Marathas. Citing semblance to the previous ordinance, the Bombay High Court stayed the implementation of the Act on April 7, 2016.

On January 4, 2017, the state government established the Maharashtra State Backward Class Commission, chaired by Justice Gaikwad. The Commission recommended 12%-13% reservation for Marathas in educational institutions and appointments in public services, respectively. Based on the recommendations of the Commission, the state passed the Socially & Educationally Backward Classes Act, 2018, granting 16% reservation for Marathas in the State's Educational institutions & appointments to public services.

The Act's validity was challenged before the Bombay High Court. But the Court upheld the validity of the Act on June 27, 2019. Opposing the decision, the petitioners challenged this decision at the Supreme Court on July 12, 2019.The Court chose not to stay the decision of the High Court & referred the case to the larger bench, citing the involvement of substantial questions of law around the interpretation of the Constitution. Also, it halted the application of the Act for educational institutions, except for post-graduate medical courses.

Judgement:
The Court struck down the reservation quota of Marathas, stating that neither the Gaikwad Commission, the SEBC Act of 2018 nor the Bombay High Court's verdict able to lay out an "extraordinary situation" to fall within the limit of 50%, imposed by the Supreme Court in Indira Sawhney v. Union of India case.

M/S. Hyundai Motor India Limited vs The Deputy Commissioner Of Income Tax, Transfer Pricing Officer

Date of Decision: 16 July, 2018
Bench: S.M. Subramaniam

Issue:
  • Can a high court issue a writ of Mandamus as pleaded by petitioners to the order given by Transfer Pricing Officer under Article 226?

Background of the Case:
Petitioner submitted a writ petition in Madras High Court challenging the order passed by the Income Tax Appellate Tribunal on 06.09.2016.

Writ petitioner submitted that the said order is erroneous and the respondents do not have authority to override the findings given by the Income Tax Appellate Tribunal (ITAT) related to the problem of payment of royalty to a foreign entity.

It was also argued that this writ petition deserves to be heard, on the ground that a show cause notice should have been given to the petitioner, but this wasn't done so.

Judgement:
  • The court held that this issue cannot be heard via a writ petition. Such factual disputes can be adjudicated by competent authorities, and the ITAT
  • Writ petitioner has not been able to establish that there has been an error on the side of the TPO, nor that any natural justice principles were infringed.
  • If the petitioner is indeed aggrieved, they must approach the Disputes Resolution Panel. If after that they are further aggrieved, they can approach the ITAT.
  • Petitioners cannot bypass appellate forums to approach the High Court under Article 226 of the Constitution of India, for deciding upon these factual issues.
  • The court also held that separation of powers provided by the constitution need to be respected, and thus, a high court cannot interfere in the Appellate powers without good reason.
  • If such writ petitions end up being entertained routinely, by disallowing the competent Appellate authority, the court's judicial review power would not be exercised in a manner that is appropriate.

Analysis:
In this case, the Madras High Court refused to entertain a writ petition on the grounds that doing so would be violative of the jurisdiction it has been provided under Article 226.

Moreover, it noted that by not approaching the authorities that are competent to hear the issues of the petitioner, the petitioner is bypassing the given grievance addressal system.

If the High Court were to take up such writ petitions, it would not allow the competent authorities to function accordingly, and this would violate the principle of Doctrine of Separation of Power.

SP Gupta v. Union of India:

Date of Decision: December 30, 1981
Bench:
Justice P.N. Bhagwati Justice A.C. Gupta Justice S.M. Fazal Ali Justice V.D. Tulzapurkar Justice D.A. Desai Justice R.S. Pathak Justice F.S. Venkataramaiah

Issue:
  • Regardless of whether the correspondence is shielded from legal investigation under the arrangements of the Constitution of India and the Indian Evidence Act as referred to by the respondents in their contentions?
  • Regardless of whether the exposure of the correspondence is in opposition to the public intrigue and could prompt the injury of public interest?

Background:
A number of writ petitions were filed at different high courts across the country. A writ petition was also filed at the Supreme Court, referring it as "writs of great constitutional importance affecting the independence of the judiciary". These writs were filed in response to the non-appointment of two judges and the transfer of a judge.

However, an important issue raised in these petitioners was regarding the central government's orders of not appointing 2 judges. To prove this claim, the petitioners sought to disclose a correspondence between the Union Law Minister, Chief Justice of Delhi High Court & the Chief Justice of India.

But the respondents denied these claims & sought the protection of correspondence under Article 74(2) of the Indian Constitution, implying any advice tendered by the Council of Ministers to the President of India shall not be the subject of judicial scrutiny.

Also, the respondents questioned the validity & application of section 123 of Indian Evidence Act, 1872, which says that evidence derived from unpublished unofficial records on state affairs can't be given without the permission of the head of the concerned department.

Judgement:
The court addressed the issues in this case in a much needed approach. They refused the claim made by the respondents, stating that the correspondence can only be protected if its disclosure is in contrary to the public interest & will cause injury to it. Also, the judgement mentioned about setting up a collegium for appointment of judges.

Supreme Court Advocates on Record Association v. Union of India

Date of Decision: October 16, 2015
Bench: J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel

Issue:
  • Whether The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 are violative of the 'Principles of Separation Of Powers' or not?

Background:
This case is based on the independence of judiciary as an essential part and parcel of "basic structure" of the Constitution.

In early 2015, the Supreme Court Advocates on-Record Association, along with some senior advocates, filed writ petitions before the Supreme Court, challenging the constitutional validity of the 99th Constitutional Amendment Act & the NJAC ACt, 2014. The petitions alleged that these acts violated the basic structure of the Constitution by compromising the judiciary's autonomy.

In 2014, the central government introduced the 121st constitutional amendment bill, which was passed by both the houses of the parliament, ratified by the legislative assemblies of 16 states and asserted by the Parliament; thus coming into effect from April 13, 2015.

Judgement:
The court held that the 99th Constitutional Amendment Act, 2014 & the NJAC Act, 2014 were unconstitutional, because it was against the principles of "separation of powers" & "independence of judiciary", thus declaring the Acts null and void.

Indira Gandhi v Raj Narayan

Date of Decision: November 7, 1975
Bench: Chief Justice A.N. Ray, Justice H.R. Khanna, Justice K.K Mathew. Justice Y.V. Chandrachud, Justice M.H. Beg

Issue:
  • Questions were raised on the constitutionality of the 39th Amendment Act of 1975.
  • Whether the 39th Amendment was passed by the Parliament constitutionally.
  • Regarding the constitutionality of Representation of People (Amendment) Act, 1974 and Election Laws (Amendment) Act, 1975
     
Background:
During the 1971 general elections, the then Prime Minister Indira Gandhi was accused of electoral malpractices on the basis of 7 grounds by her rival in her constituency, Rae Bareli, Raj Narain of Samyukta Socialist Party & decided to challenge her election at the Allahabad High Court.

The trial judge upheld the allegations on 2 grounds & declared the election as vitiated by corrupt practices. The High Court subsequently awarded costs to the election petitioner.

The High Court delivered its verdict on June 12, 1975, declaring the election of Indira Gandhi as void. She decided to file a cross-appeal in the Supreme Court. During the pendency of cross-appeal, the Election Laws (Amendment) Act, 1975 (39th Constitutional Amendment Act) was passed by the Parliament, which amended the existing laws & imposed parliamentary control over appeals lying before the court.

Judgement:
The much awaited judgement was delivered on November 7,1975 & adjudged the impugned clause 4 of Article329 as unconstitutional based on the basic structure doctrine. The court also opined that this act violates the principles of separation of powers by compromising the independence of judiciary, by "destroying" a set provision of the Constitution, namely, the "resolution of election disputes by the exercise of judicial power by ascertaining the adjudicative facts and applying the relevant law for determining the real representative of the People."

Ram Jawaya Kapur v State of Punjab

Date of Decision: April 12, 1955
Bench: Mukherjea, V Bose, Jagannath Das, V Ayyar, Imam

Issue:
  1. Are the petitioners' Fundamental Rights violated in their creation of monopolistic control over the business of printing and publishing textbooks for school a violation of their powers?
  2. If the State created a monopoly in its favour, could it have been done with an executive act or would it have required specific legislation?

Background:
According to the Education Department of Punjab, the recognized schools in Punjab had to use alternate texts from 1905 to 1950. Various publishers and independent authors submitted their textbooks prepared with their own resources to the Punjab government for approval.

In accordance with its guidelines, the Education Department approved a few textbooks from various textbooks published by various publishers. After the partition of erstwhile Punjab into three zones in May 1950, certain resolutions passed by the Punjab government altered this procedure. The government prepared and published textbooks on a few subjects without consulting publishers or authors.

Instead of approving a list of textbooks, the Government only approved one textbook per subject on the remaining subjects. On all approved textbooks, the government also charges 5% as royalty. An additional notification was issued in August 1952 inviting only authors to submit textbooks for approval. Additionally, the authors whose textbooks were approved were made to enter into an agreement according to which the copyright in these books belong entirely to the Government and they would only receive 5% of the proceeds from the sale of the books at the price or prices specified in the list.

Therefore, the government-controlled the publishing, printing, and selling of books. This petition was filed under Article 32 of the Indian Constitution in response to the government's notification of August 1952. Six petitioners engaged in the business of publishing, printing, and selling textbooks, complained that the Government of Punjab not only imposed on them unreasonable restrictions on the regular conduct of their occupation, but had evicted them altogether from their business.

A petitioner alleged that this act of government violated their fundamental to carrying out any type of trade or commerce contained in Art. 19 (1) (g) but was also ultra-vires to the constitutional power vested in the government, which as an executive body of the State does not have the authority to do so without specific legislation authorizing them to operate in that way.

Alternatively, the respondents, the Government of Punjab, argued that the said action was fully covered by the implied executive power as owing to the changing age, the executive now has a broader range of powers and functions as opposed to just maintaining state security and decorum. The government also argued that by acting in accordance with the procedure, they were acting not only in accordance with their powers but also with the basic rights of the petitioner.

Judgement:
While dealing with the issues of the case, the Court had to answer the nature of executive power and the extent of the functions of executive. In order to determine the nature of executive power, the Court referred to the two Australian cases of The Commonwealth and the Central Wool Committee v. The Colonial Combing, Spinning and Weaving Co. Ltd., and Attorney-General for Victoria v. The Commonwealth.

In the opinion of the Court, the Australian Constitution specifically defines executive power so as to include only maintenance of the Constitution and of the laws of the Commonwealth. But since no such restriction on the extent of executive power is defined in the Indian Constitution, the Court held that the understanding of executive power in the Australian context does not apply to India and cannot be restricted to mere implementations of legislations.

While dealing with the nature of executive function, the Court relied on the federal structure of the Indian Constitution that is based on the British Parliamentary system where the executive is deemed to have the function to formulate governmental policy and to incorporate it into law while retaining the confidence of the Legislature.

Generally, the executive has the function of implementing the legislation put in place by the legislature. But, in modern times, owing to the expansion of the functions of the state, there are overlaps between various functions of the legislature, executive, and the judiciary.

In the Indian context, the executive can exercise legislative function through subordinate legislation when such powers are delegated to it by the legislature and is also empowered to exercise judicial functions in a limited way provided that in exercise of such functions, the executive cannot go against the provisions of the Constitution or of any law as in provided in Article 154 of the Constitution.

Hence, the Court noted that in India there is no strict separation of powers. Also, the Court relied on the case of Motilal v. Government of State of Uttar Pradesh to conclude that in order to enable the executive to function, there is no need for a specific law to be already in existence and the executive function is not merely restricted to implementing such laws.

Backing of specific legislations is only required when the government requires certain extra powers in addition to what they by default possess under ordinary law for carrying out a particular trade or business. In cases where such activities require expenditure of funds, the only requirement is authorization of the Parliament regarding such expenditure either directly or under the provisions of a statute.

In the present case, the Government of Punjab, had estimated and shown the expenses to be incurred in the process in the annual financial statement and were also sanctioned by the State Legislature and due Appropriation Acts were passed. Hence, the Court did not agree with the petitioners on their contention that the Government of Punjab was not entitled to make such a notification without a specific legislation sanctioning such a course.

With respect to the question of violation of Fundamental Rights, the Court held that the government action in question was not in violation of the fundamental right of the petitioner, which are mentioned in Art. 19(1)(g) of the Constitution of India as the government by the said notice may have restricted the book used in schools but still these publishers and authors were free to approach the private book shops for business.

The Court further held that since there was no violation of any Fundamental Rights of the petitioners in the first place, the Government could not be said to have infringed such FR through the notifications. Hence, the Court dismissed the petition holding that in India, there is a strict separation of powers, but the separation of functions is not observed in the strictest sense.

Asif Hamid & Ors. Etc v. State of Jammu & Kashmir

Date of Decision: May 3, 1989
Bench: Kuldip Singh

Issue:
  • Does the High Court have the authority to direct the State Government to establish a "statutory body" for admissions?
Background:
Several unsuccessful candidates to the MBBS/BDS course in the two Government medical colleges of Jammu & Kashmir for the 1988-89 Session had challenged in the High Court of Jammu and Kashmir the selection to the above courses on the ground that the selection was violative of the directions of the High Court in Jyotshana Sharma & Ors. v. State of Jammu & Kashmir, which was decided on April 17, 1987.

In that case, the High Court had directed the State of Jammu and Kashmir to entrust the selection process of the two medical colleges to a statutory independent body, and till that was done, to entrust the process of selection to such a body which was to be free from executive influence.

Due to the High Court's observations, the State Government issued the Jammu & Kashmir Government Medical Colleges (selection of candidates for admission to first year MBBS/BDS courses and other professional courses) Procedure Order, 1987. For the purpose of making selections for professional courses, the Order established a Competent Authority. The Competent Authority's functions, conditions of service, powers, and duties are outlined in another order. Due to the selection violating the case directions of Jyotshana Sharma, the High Court allowed the writ petitions.

The High Court ruled that the directions in Jyotshana Sharma's case were binding, which it reiterated by issuing a mandamus. Earlier, the petitioners filed a writ petition with the High Court challenging the appointment of Prof. Satish Raina as the Competent Authority and denial of implementation of directions in Jyotshana Sharma's case.

In a consent order, the High Court dismissed the writ. According to the order, the State Government reconstituted the Competent Authority by appointing two additional members. The reconstituted competent authority shall conduct the selection process, and the petitioners are free to challenge the selection if they remain aggrieved on any ground. To assist the Competent Authority, the Government later constituted a committee of three academicians.

On behalf of the State and the selected candidates, it was argued that the High Court did not have the authority to issue directions to the State Government to set up a "Statutory Body" to select candidates for medical colleges. Furthermore, it was urged that the observations in Jyotshana Sharma's case were suggestions only and that even if they were taken as directions, they had been met. On behalf of the unsuccessful candidates, it was argued, inter alia:
  • The reconstituted competent authority consisting of three members was never functional because Shri J.P. Kesar never joined the other two members during the selection process.
  • The scrutiny was not conducted by the competent authority but by a committee appointed by the Governor.
  • The committee selected to assist the Competent Authority must be appointed by the Authority alone, not by the Government.

Judgement:
All petitions were granted special leave by the court. The court held, further, that the selection to the MBBS/BDS course for the session 1988-89 in the two Government medical colleges of Jammu & Kashmir has been quashed on the following grounds by a Division Bench of the Jammu & Kashmir High Court:

In an earlier case, Jyotshana Sharma and Ors. v. State of Jammu & Kashmir, decided on 24th April 1987 (hereinafter known as Jyotshana Sharma's case), the said court had directed that the selection be conducted in accordance with its directions. The High Court directed that the State Government entrust the selection process to an independent statutory body and that until then, such a body should be free from executive influence. Because no statutory body was constituted, according to the High Court, any selection made by any other authority was in violation of its directions and was therefore unconstitutional.

According to the order of the High Court dated 17th of October 1988, the selection was not conducted by the competent authority. The competent authority was supposed to consist of three individuals. The High Court ruled that the three individuals never met and did not examine the cases of the candidates who appeared for the entrance examination and viva voce, and therefore, the selection was invalid.

In these appeals, the State of Jammu and Kashmir and the selected candidates challenge the above judgment of the High Court. In addition to the grounds for challenge to the selection, some of the unsuccessful petitioners have raised various other grounds for challenge.

Our primary focus in these appeals is to decide whether the High Court has the authority to direct the State Government to form a "Statutory Body" for selection to medical colleges and if the selection by any other authority is invalid merely for that reason. Various arguments have been raised by the learned counsel for the parties, and we propose to examine them all.

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