State
of Maharashtra Vs. Manubhai Pragaji Vashi &
Ors [1995] INSC 394 (16
August 1995)
Paripoornan,
K.S.(J) Paripoornan, K.S.(J) Kuldip Singh (J) Paripoornan,J.
CITATION:
1996 AIR 1 1995 SCC (5) 730 JT 1995 (6) 119 1995 SCALE (4)797
ACT:
HEAD NOTE:
Leave
granted.
Stete
of Maharashtra represented by the Education Department -the appellant in both
the appeals- filed special leave petitions against the common Judgment and
Order of the High Court of Judicature of Bombay dated 19.8.1988 rendered in
Writ Petition No.2303 of 1987 and Writ Petition No.4816 of 1987. The writ
petitions are public interest litigations, wherein the State of Maharashtra was the first respondent.
The
petitioner, who filed writ petition No.2303 of 1987, is the first respondent in
the appeal filed in S.L.P. No.14017 of 1988 and the writ petitioners in Writ
Petition No.4816 of 1987 are respondents Nos.51, 52 and 53 in the appeals. The
other respondents in the High Court and also in this Court are the University
of Bombay, various universities in the State of Maharashtra, various law
colleges affiliated to the Bombay University and the University of Pune, Marathwada,
Nagpur and Kolhapur, the Bar Council of Maharashtra and the Bar Council of
India. The University Grants Commission is also a respondent. It should be
stated at the outset that the common appellant in these civil appeals (State)
(petitioner in the S.L.Ps. and the common first respondent inthe writ petitions
in the High Court) was the sole contesting party in the High Court. The other
respondents in the High Court and still before us support the petitioners in
the writ petitions - respondents in the civil appeals.
2.
Writ petition No. 2303 of 1987 is the main petition.
The
prayer therein was to direct the Government of Maharashtra to extend the
grant-in-aid scheme to the non- Government Law Colleges in the State
retrospectively from April, 1982 or from the date of filing of the writ
petition.
Respondents
51 to 53 in the civil appeals addressed a letter to the High Court the raising
certain grievances of retired employees of Law
College, Pune. The said letter was treated
by the High Court suo motu as Writ petition No. 4816 of 1987. The prayer
therein was that the benefit of pension- cum- gratuity scheme introduced by the
Government for all teaching and non-teaching staff in colleges with faculties
in Arts, Science, Commerce, Engineering and Medicines as per GR No.
NCC-1983(865)-INI-4 dated 21.7.1983 should be made applicable to the staff of
the non-Government Law Colleges.
A Division
Bench of the High Court of Bombay, consisting of consisting of Lentin and Agarwal,
JJ. by judgment dated 19.8.1988, held that the action of the Government is not
extending the grants-in-aid, afforded to faculties like Arts, Science,
Commerce, Engineering and Medicine to non- Government recognised law colleges
is discriminatory. It was held that withholding of facility of grants-in-aid to
non- Government Law College would be discrimination between such law college
from whom grants-in-aid are withheld and other non-Government colleges with
faculties viz., Arts, Science, Commerce, Engineering and Medicine, to whom
grants-in-aid are given. After referring to the relevant facts, the Division
Bench passed an order in paragraph 34 of the judgment dated 19.8.1988, to the
following effect:- "A. Commencing from academic year June, 1988,
Government is directed to extend the Grant-in-aid Scheme to all Government recognised
private law colleges on the same criteria as such grants are given to other
faculties viz. Arts, Science, Commerce, Engineering and Medicine.
B. The
scheme shall be implemented within 12 weeks from today.
C.
Regarding non-Government law colleges which have closed down or are about to
close down, their statistics shall be considered by Government as of academic
year 1985-86 for the purpose of extending grants.
D.
Government shall implement the pension-cum-gratuity scheme in favour of the
staff of non-Government law colleges with effect from 1.10.1982 on such staff
exercising their option in writing within four weeks from Government's
declaration to implement Grant-in-aid scheme to non-Government law colleges.
E. No
order as to costs of the petitions. Rule is made absoluted in terms
above."
3. A
Division Bench of this Court,by order dated 9.12.1988, ordered issued of notice
in the S.L.Ps. and passed the following order:- "Issue notice returnable
on 31.1.1989.
The
state of Maharashtra is directed to consider the
question of implementation of the impugned judgment of the High Court in
accordance with the grant-in- aid scheme framed by the Government for recognised
private colleges. Such consideration shall be made within four weeks from date
and the law colleges which will be considered by the State of Maharashtra as eligible for the grant- in-aid shall
be paid the grant-in-aid within two weeks thereafter. Mr. S.K. Agnihotri,
learned counsel appearing on behalf of Respondent No.1 is discharged as prayed
for by him as the Respondent No.1 has himself appeared in person before us and
accepts notice. The State of Maharashtra
shall supply copies of the grant-in-aid scheme to the appearing respondents
within four weeks from today."
4. By
Order dated 14.2.1989, a Bench of this Court passed an interim order to the
following effect:- "List the matter on 28th March, 1989, subject to overnight part-heard for final disposal. There
will be interim stay of the operation of the judgment of the High Court and
also the hearing of the application for contempt which has been filed by the
1st Respondent in the High Court. Additional affidavits, if any, shall be filed
in the meantime." Still later, on 23.10.1990, a Bench of this Court passed
the following interim order:- "After hearing the learned counsel Mr.S.K.Dholakia,
Sr. Adv. for a considerable length of time, we think that for the ends of
justice and fair play, the State of Maharashtra will file before us the Rules
or Acts or administrative instructions on the basis of which sanction has been
accorded to the instant law college and also other 38 law colleges. The petitioner
shall also produce before this Court the original sanction memos issued by the
State not only in respect of the instant law college, but also of other law
colleges established either before 1983 or after 1983. We also direct the State
Government to produce before this Court the facts which were taken into account
in determining that these colleges which are accorded saction will be self
sufficient in running their respective institutions without asking for or
awaiting for the grant from the State Government. We also further clarify that
if there is any undertaking given by any of the colleges, the said undertaking
in its original form or a copy of the same with an affidavit by a responsible
officer be filed before this Court.
These
documents be filed within a period of five weeks from this date positively with
an advance copy of the affidavit filed, if any, to the counsel for the other
side. The matter may be listed on 28.11.1990 subject to overnight part- heard. Liberty is also given to the counsel for
the respondents to file affidavits in counter, if any, within that
period." The office report, available at pages 515 D and E of the paper
book, shows that the parties did not comply with aforesaid directions issued by
this Court.
5. On
30.8.1991, a Bench of this Court passed the following order:- "Shri M.P. Vashi
states that the Government of Maharashtra has already put some amount being
allocated for law colleges in the Budget in the Maharashtra Assembly for the
years 1988 and onwards. He would file documents in suport of this contention
and give a copy in advance to the counsel for the state of Maharashtra."
6.
Still later, on 3.10.1991, a Bench of this Court has passed the following order:-
" The respondents have furnished Budget estimates for the years 1990 -91
and 1991-92 showing that the State Government had allocated some grant for law
colleges. Learned counsel for the petitioner/State wants time to seek further
instructions from the State in this regard. He prays for one month's
adjournment. The prayer for adjournment is contested from the side of the
respondents. We consider it proper in the interest of justice to grant a last
opportunity of one month to the petitioner to file an affidavit stating all the
details with regard to the allocation of Budget for the law colleges in the
State of Maharashtra. We also award a cost of Rs.1,000/-
for adjournment. Put up on 22nd November, 1991 at the top of the hearing cases subject to overnight part-heard. The
amount of Rs. 1,000/- will be paid within two weeks to the respondents."
Along with the additional submission filed by the first respondent in the civil
appeal, papers evidencing `technical education in Maharashtra State 1989-90',
the statement showing grants-in-aid given to aided Engineering Colleges,
Polytechnic and other technical institutions have been annexed as Ext. Pl. In
Ext. P2, filed along with the additional submission, civil budget estimates of
expenditure for the year 1992-93 for Education and Employment Department of
Government of Maharashtra it is seen at SI. No.104 on page
E48 under the head 104(1)(I), ` grants to non- Government Arts, Science, Law
and Commerce Colleges'.
7. We
heard counsel on both sides. The appellant's counsel stressed the following
aspects:-
(A)
The High Court was in error in assuming that other non-Government private
professional colleges like Engineering Colleges, Medical Colleges, etc. were given the benefit of
grants-in-aid scheme and on this basis, it was discriminacory in not extending
the grants-in-aid scheme to non-Government Law Colleges. It was this erroneous
factual assumption which resulted in the High Court holding that there is
discrimination between the professional colleges - non-Government law collegs
on the one hand and other non- Government professional colleges like
Engineering Colleges, Medical Colleges on the other.
(B) It
is primarily for the Government to decide, taking into account the total
financial commitments and constraints, whether it is possible to extend the
benefit of grants-in- aid scheme to all or any private professional colleges.
Various non-Government Professional colleges were given recognition only on the
condition that none of the colleges would seek grant-in-aid scheme to be made
applicable. It is the policy decision of the Government whether it should
extend the benefit of grant-in-aid scheme to non- Government law colleges. The
decision on that score is not justiciable.
8. On
the other hand, counsel for the respondents submitted that in the High Court,
the plea that the professional colleges other than law colleges were given
grants-in-aid was not disputed and in fact, there was sufficient material
before the High Court to show that professional colleges like Engineering
Colleges, Ayurvedic non-Government coleges and B.ED. colleges were given the
benefit of grants-in-aid scheme. Even the affidavit filed by a responsible
senior official of the State of Maharashtra would go to show that private professional colleges other
than law colleges were extended the benefit of grants-in-aid scheme. The plea
of discrimination found by the High Court is based on substantial material and
no error has been committed on that score. Even the committee appointed by the
Government under the Chairmanship of the then Education Minister and other members
recommended that the existing grant-in-aid formula should be made applicable to
the non- Government law colleges with effect from 1985-86 and a Division Bench
of the High Court directed the State Government to take appropriate steps in
that behalf. The State Government was directed to file affidavits giving full
particulars in pursuance of the earlier order dated 27th August, 1987. Even so, no steps were taken in that behalf and no
statement was filed regarding the steps taken in pursuance of the recommendations
of the committee. What is more, in the interim order passed by this Court, the
State was directed to prepare the grant-in-aid scheme in accordance with the
judgment of the High Court and specify the law colleges which were found to be
eligible to be paid the grant-in-aid. Various law colleges submitted the
relevant documents to enable the Government to prepare the scheme. Though the
State Government prayed for extension of time to frame the scheme, no orders
were obtained thereon nor was the scheme prepared. Apart from the
discriminatory treatment meted out to one facet of education, viz., private law
colleges, the Division Bench also stressed the point that in the context of the
obligation of the State under the directive principle of the State policy to
provide free legal aid, legal education to a good number of students is
essential and in its absence, hardship and detriment to the general public will
ensue and the public will be deprived of the legal assistance. The inaction of
the executive should be set right by appropriate directions by the Court. By
reckoning this factor also, the High Court gave the directions as it did in para
34 of the judgment.
9. The
main facts highlighted and found by the High Court which were not successfully
assailed before us may be stated. The State of Maharashtra has a reputation of being the premier State in India. Educationwise, it has several
faculties, viz., Arts, Science, Engineering, Medicine and Law. Except law, all
other faculties run by the recognised non-Government colleges are given
grant-in-aid by the Government. The Government recognised non-Government law
colleges in Maharashtra is the only faculty which is denied
the above grant-in-aid. In the State of Maharashtra, there is only one Government law college at Bombay. There has been an increase in
demand for legal education. During the academic year 1985-86, the total number
of law students in Maharashtra was about 25,700. The Government
counsel himself stated before the High Court during the time when the writ
petitions were heard, that then the number of such students would be in the
vicinity of 27,000/- to 28,000. The heavy demand for legal education could not
be met by the solitary law college run by the Government in Bombay. It resulted in private or
non-Government law colleges coming up in Bombay and other parts of Maharashtra.
All such colleges are recognised by the Government. There are 38 law colleges.
The strength of the teaching staff is 544, comprising about 91 full-timers and
the remaining part-time staff. The full time non-teaching staff is about 400.
The Government recognised private law colleges applied for aid as early as
1975. It was reiterated by the Chairman of the Bar Council of India on
1.12.1982. Resolutions were passed. Discussions took place and meetings were
held. Information was invited and received by the Government from the various
principals and data was collected and the matter went on in like manner.
But no
final decision was taken nor was grants-in-aid afforded to the Government recognised
private law colleges.
It was
challenging this inaction or hostile discriminatory attitude towards legal
education in general and the Government recognised private law colleges in particular,
a public interest litigation was started by Mr. M.P.Vashi, a practising
Advocate and a member of the Bar Council of Maharashtra. The main plea of the
State was lack of funds and also the general or vague unsubstantiated statement
that other private professional educational institutions were not receiving
grants-in-aid. When, prima facie, a plea of discrimination is made out, the
burden of proof is on the State to show that it is not so; or that a valid and
permissible classification exists for the differential treatment meted out to
Government recognised private law colleges alone. There should be nexus between
the basis of classification and the object of the Act under consideration. On
the above crucial aspects, on an evaluation of Government's affidavits, they
are found to be wanting, replete as they are with generalisations, good
intention and achievements in other fields of education which are irrelevant.
The charge of discrimination stands unproved. It was further stated by the
State that the maximum effort is taken by it to provide primary and secondary
education to every child and that the weaker section of the society is taken
care of within available financial resources and private professional colleges
were given recognition only on condition that they will be self- supporting and
will not insist for affording grant-in-aid.
These
pleas urged by the State are no answer to the charge of discrimination pleaded
in the writ petitions. Paucity of funds can be no reason for discrimination.
One facet of education cannot be selected for hostile discriminatory treatment,
whatever may be the other laudable activities pursued by the Government in the
matter of education or its discretion to assign the order of priorities in
different spheres of education. In a fit case, it is open to the court to
direct the executive to carry out the directive principles of the Constitution,
when there is inaction or slow action by the State. In the report submitted by prof.
Mogh in August, 1986, he recommended that grant-in-aid should be extended to
non-Government law colleges and a sum of Rs. 89.92 lakhs is required for this
purpose with an increase every year depending on the number of colleges, etc.
The total budget for the State in the year 1987-88 was Rs. 5,351 crores, out of
which Rs. 791 crores had been earmarked for expenditure for education. Out of
659 colleges in the entire State, 198 colleges do not receive grant-in- aid. 38
non-Government law colleges form part of this 198 colleges. If the remaining
160 colleges which do not receive grant-in-aid (other than non-Government law
colleges) insist for the grant-in-aid, it was stated that the expenses will
amount to only Rs.2 crores. If the grant-in-aid is given to private law
colleges, the requirement will be less than 0.1% of the total budgetary
allocation for education which is not a high price for legal education. The
staff of Government law college and other Government run colleges having
faculties of Arts, Science, Commerce, Engineering and Medicine draw a much
higher scale of emoluments and enjoy greater benefits than what the private law
colleges with their depleted resources can possibly afford to pay by way of
salaries or other benefits to their staff. Out of eight law colleges in Marathwada,
seven are not in a position to pay salaries according to the scale fixed by the
UGC. A Dean of Faculty of Law in Marathwada University and the principal in Dayanand College, Latur, with a teaching experience of 29 long years, draw a
salary of Rs. 400/- per month. As against this, principals and staff of aided
colleges get as much as Rs. 4,000/- to Rs. 5,000/- per month with allowances
and other benefits. Slowly private law colleges, one by one, face the prospect
of closure. The Dayanand College of Law at Latur had closed the first and
second year of LLB. classes.
Law College at Usmanabad had closed the first year LL.B. Classes.
Similar is the case of Jalna Law College. This is an increasing epidemic and
the students will be starved of legal education and will be deprived of practising
law as a profession which will cause hardship and detriment to the general
public who will be deprived of legal assistance.
10. On
hearing counsel, we are of the view that no dispute seems to have been raised
in the High Court regarding the grant-in-aid made available to recognised
private professional colleges other than law. Nor was any material placed
before the court on this score. The conclusion of the High Court to the effect
that not extending the grant-in-aid to non-Government law colleges and at the
same time extending such benefit to non-Government colleges with faculties
viz., Arts, Science, Commerce, Engineering and Medicine (other professional
non-Government colleges) is patently discriminatory, and based on material and
sustainable. The State has not discharged the burden of proof cast on it to
sustain the differential treatment meted out to one of the Government recognisd
professional colleges, (private law colleges). It is patent that likes have
been treated unlike; without proper justification or reason and the private law
colleges have been singled out for hostile discriminatory treatment. The
disparity in the service conditions in not affording the benefit of pension-
cum-gratuity scheme to the non-teaching staff in non- Government law colleges
and at the same time affording the same benefit to non-teaching staff of
colleges with faculties in Arts, Science, Commerce, Engineering and Medicine
with effect from 1.10.1982 is discriminatory as correctly opined by the High
Court and requires to be set right.
11. We
hold that there is sufficient material on record to show that the Division
Bench of the High Court was justified in stating that several non-Government
professional colleges, like Engineering Colleges, Medical Colleges, etc. are
receiving grant-in-aid from the Government. Smt. Kumud Bansal, Secretary,
Education and Employment Department, Government of Maharashtra, in her
additional affidavit filed on 24.1.1989, available at pages 155 to 161, has
referred to the fact that out of the total budget for the year 1988-89, a sum
of Rs.1,033.74 crores was earmarked for educational purposes. The break-up is
as follows:
Total
budget 1988-89 Rs. 1,044.74 crores Primary Education Rs. 469.37 crores
Secondary Education Rs. 390.59 crores Higher Education Rs. 99.39 crores
Technical Education Rs. 65.89 crores Other Education Rs. 8.58 crores For
technical education (Polytechnics and Engineering Colleges), a sum of Rs. 65.81
crores was set apart and for `other education', Rs. 8.58 crores has been spent.
What faculty represents the head `other education' is anybody's guess. One
thing is clear, that the said amount is not for `legal education', and should
be for subjects other than the one previously dealt with in the narrative. The
matter is not made clear by the State. It is also stated therin that in view of
paucity of funds, the Government do not think it possible toafford grant-in-aid
to law colleges. Denying that there was any discriminatory attitude against the
law colleges in particular, it is stated that out of, sixty-one private
engineering colleges, only six of them started earlier have been granted the
facility of grant-in-aid (pages 157 and 158 of the paper book). The further
averment to the effect that private professional colleges were allowed to start
only on condition that they would not get grant-in-aid stands belied, in view
of the grant to six private engineering colleges. On what basis six private
engineering colleges were admittedly given grant-in-aid, is not evident. It
does not stand to reason. The affidavit filed by Sri Madhusudan Balakrishna Karmarkar
(Respondent No. 45) dated 17.3.1989, available at pages 244 to 253 of the paper
book, discloses the following facts:- "On the contrary medical,
engineering and ayurvedic colleges which were started before 1983 were either
fully financed by the Government or were run by the Government itself.
Government of Maharashtra has approved grant-in-aid scheme for the
non-Government engineering colleges on 18th May, 1978 (hereto annexed and
marked Ext.`A' is a copy of the said scheme) to the Ayurvedic non-Government
colleges on 4th September, 1978 and thereafter on 2nd May, 1980 (hereto annexed
and marked Ext. `B' and `C' are the copies of the said scheme). So far as
medical colleges are concerned, they are either being run by the Government itself
or by the Municipal Corporation. It is only after 1983 that two medical
colleges were allowed to be started by private management, one Krishna
Institute of Medical Science at Karad and another Prawara Medical College at Prawanagar,
Dist, Ahmednagar. However, these colleges are allowed to charge tuition fees of
Rs. 30,000/- per year. There are 62 B.Ed. colleges in the State of Maharashtra
at present. Out of these, 40 colleges were started prior to 1983 and out of
these 40 colleges, 28 are being run by the private managements and 12 by the
State Government itself. They give training to the students to qualify them as
professional teachers. In other words, it is a professional course and all 28
non-Government B.Ed. Colleges started before 1983 are getting grants from the
State Government. All these B.Ed. colleges are treated at par with Arts,
Science and Commerce colleges. The Government of Maharashtra has approved
grant-in-aid scheme for all such colleges on 3rd October 1979 (hereto annexed
and marked Ext. `D' is the copy of the said scheme). Therefore, the argument of
petitioner that the law course is professional course and hence they are not
eligible for grants has no basis. The same is falsified by the above facts
supported by the respective exhibits." Annexure A dated 18.5.1978, the
order of the Government of Maharashtra, shows that grant-in-aid is afforded to
non- Government Engineering, Technical and Technological colleges and
polytechnics in the State (page 254 of the paper book).
Annexure
B to the said affidavit is the order of the Government dated 4th September,
1978 (page 270 of the paper book). Annexure C is the order of the Government
dated 2nd May, 1980 (page 278 of the paper book) and Annexure D (page 288) is
an order of the Government dated 3.10.1979. Annexure A dated 18.5.1978,
Annexure B dated 4.9.1978, Annexure C dated 2.5.1980 and Annexure D dated
3.10.1979 indisputaby show that the Government of Maharashtra was affording
grant- in-aid to the non-Government Engineering, Technical and Technological
colleges and polytechnics and also to Government recognised private ayurvedic
teaching institutions or hospitals and non-Government Arts, Science, Commerce
Colleges. Thus, Engineering and Medical College (professional College) were
given grant-in-aid. In the light of the above unassailable state of affairs, it
is idle for the State to contend that the High Court was in error in assuming
that non-Government private professional colleges like Engineering Colleges,
Medical Colleges, etc. were given the benefit of grant-in-aid scheme. It is
perhaps, due to this undoubted state of affairs, there was no dispute before
the High Court on this count. Our attention was invited to the fact that the
working group constituted by the Government of Maharashtra, by order G.R. No.
NCC/2086/(7) INI-2A dated 24th April, 1986
under the Chairmanship of Prof. D.R.Meghe, Principal of University College of
Law, Nagpur, submitted a report for
non-Government Law Colleges in the State of Maharashtra (available at pages 208 to 218 of the paper book). The
working group has recommended that the revised unified and integrated
grant-in-aid formula laid down to colleges of Arts, Commerce,Science and
Education, as reflected in Resolution No. NGC 1279/157796 - XXV dated 3.10.1979
(page 162 of the paper book) should be made applicable to the non-Government
law colleges with effect from 1985-86. It was also brought to our notice that
the Government of Maharashtra passed a resolution [No. USG. 1177/135330/XXII
(Cell)] dated 25th September, 1978 accepting the recommendation of the Central
Government incorporating the recommendation of the UGC that the benefit of the
revised scales recommended by the UGC should be given to the full-time teachers
in law colleges and that the additional burden on this count will be subsidised
by the Central Government to the extent of 80 % during the Fifth plan period
and the remaining 20 % being borne either by the management or the State
Government. The implementation of the scheme of the revision of pay scales for
full-time teachers in law colleges in Maharashtra was sanctioned with retrospective effect from 1.1.1973, as could be
seen from Annexure I -pages 86 to 108 of the paper book. But, even so the UGC
scale was not implemented so far as full-time teachers in private law colleges
are concerned.
12.
The facts stated above amply bring out the fact that recognised private law
colleges alone were singled out for hostile discriminatory treatment. The
recommendations of the committee (pages 198-208) to apply the new formula for
the grant to private law colleges and the resolution adopted by the Government
to extend the UGC scales to teachers of law colleges (pages 86-87) remained
only in `paper' and no concrete steps were taken to implement them. It is not
explained as to why recognised private law colleges alone are disentitled to
receive grant-in-aid from the Government.
The
burden of proof cast on the State, that discrimination against recognised
private law colleges is based on a reasonable classification having nexus to
the object sought to be achieved, has not been discharged. The High Court has
held so, placing reliance on the decisions of this Court reported in Budhan Choudhary
and others v. State of Bihar (AIR 1955 SC 191), Express Newspaper Ltd. v. Union
of India (AIR 1958 SC 578), Mehant Moti Das v. S.P.Sah (AIR 1959 SC 942) Babulal
Amthalal Mehta V. Collector of Customs (AIR 1957 SC 877) and D.S.Nakara v.Union
of India (AIR 1983 SC 130). We hold that the aforesaid reasoning and conclusion
of the High Court is fully justified and no exception can be taken to the
decision so arrived at by the High Court. The High Court has further referred tothe
plea of paucity of funds pleaded by the State and has held that paucity of
funds can be no reason for discrimination, placing reliance on the decision of
this Court in Municipal Council, Ratlam v.Vardhichand (AIR 1980 Sc 1622). This
reasoning of the High Court is also fully justified and no exception can be
taken to the said proposition as well. We hold so.
13. A
plea was taken in the High Court that the petitioner has no right to seek a
writ of mandamus under Article 226 of the Constitution basing his relief on a
directive principle contained in the Constitution. The High Court, rightly in
our opinion, repelled this plea relying on the decision of this Court in State
of Himachal Pradesh v. Umed Ram Sharma (AIR 1986 SC 847). The High Court
referred to the dictum laid down in the aforesaid decision to the effect (a)
the Court can in a fit case direct the executive to carry out the directive
principles of the Constitution, and (b) when there is inaction or slow action
by the executive the judiciary must intervene. We have no doubt that the above
conclusion of the court below is also justified.
14. On
an analysis of the various aspects discussed above, it is evident that the High
Court was right in holding that recognised private law colleges have been
singled out for hostile discriminatory treatment in withholding grant-in-aid
and so interference in the nature of affirmative action or direction in the
form of remedial measure was called for.
Except
to the extent of modifications contained hereinafter, the directions given in para
34 of the judgment in that behalf are justified and proper in all the
circumstances of the case.
15.
Quite apart from the above, we are also inclined to hold that the conclusion
arrived at by the High Court can be sustained independently on the basis of
Article 21 read with Article 39A of the Constitution of India. Articles 21 and
39A are as follows:- "21. Protection of life and personal liberty.- No
person shall be deprived of his life or personal liberty except according to
procedure established by law.
39-A .
Equal justice and free legal aid.- The State shall secure that the operation of
the legal system promotes justice, on a basis, of equal opportunity, and shall
in particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities." (emphasis
supplied) Article 21 is a fundamental right conferred under part III of the
Constitution, whereas Article 39A is one of the directive principles of the
State Policy under part Iv of the Constitution. As held by the Constitution
Bench of this Court in Chandra Bhawan Boarding and Lodging, Bangalore v. State
of Mysore (AIR 1970 SC 2042) at page 2050, para 13:
"While
rights conferred under part III are fundamental, the directives given under
part IV are fundamental in the governance of the country. We see no conflict on
the whole between the provisions contained in Part III and Part IV. They are
complementary and supplementary to each other." In Unnikrishnan J.P. v.
State of A.P., (which again is a Constitution Bench decision) [1993 (1) SCC 645
at page 730], B.P.Jeevan Reddy, J. stated the law thus:
"It
is thus well established by the decisions of this Court that the provisions of
Parts III and IV are supplementary and complementary to each other and that
fundamental rights are but a means to achieve the goal indicated in Part IV. It
is also held that the fundamental rights must be construed in the light of the
directive principles." (Emphasis supplied) At page 732, the learned Judge
has further declared thus:
"The
right to education which is implict in the right to life and personal liberty
guaranteed by Article 21 must be construed in the light of the directive
principles in Part IV of the constitution." (Emphasis supplied) Article 21
of the Constitution dealing with personal liberty has many dimensions as held
by the series of decisions of this Court. A few of them have been catalogued in
the judgment of Mohan, J. in Unnikrishnan's case [1993 (1) SCC 645) at pages
669 and 671. It is now fairly settled that the right to legal aid and speedy
trial are part of the guarantee of human rights envisaged by Aticle 21 of the
Constitution of India (see M.H. Hoskot v. State of Maharashtra - 1978 (3) SCC
544, Hussainara Khatoon v. Home Secretary, State of Bihar 1980 (1) SCC 98, and A.R.Antulay
v. R.S.Nayak - 1992(1) SCC 225.
16. In
the light of the above, we have to consider the combined effect of Article 21
and Article 39A of the Constitution of India. The right to free legal aid and
speedy trial are guaranteed fundamental rights under Article 21 of the
Constitution. The preamble to the Constitution of India assures `justice,
social, economic and political'.
Article
39A of the Constitution provides `equal justice' and `free legal aid'. The
State shall secure that the operation of the legal system promotes justice. It
means justice according to law. In a democratic polity, governed by rule of
law, it should be the main concern of the State, to have a proper legal system.
Article 39 A mandates that the State shall provide free legal aid by suitable
legislation or schemes or in any other way to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities. The principles contained in Article 39A are fundamental and cast
a duty on the State to secure that the operation of the legal system promotes
justice, on the basis of equal opportunities and further mandates to provide
free legal aid in any way - by legislation or otherwise, so that justice is not
denied to any citizen by reason of economic or other disabilities. The crucial
words are (the obligation of the State) to provide free legal aid `by suitable
legislation or by schemes' or `in any other way', so that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities. (Emphasis supplied). The above words occuring in Article 39A are
of very wide import. In order to enable the State to afford free legal aid and
guarantee speedy trial, a vast number of persons trained in law are essential.
Legal aid is required in many forms and at various stages, for obtaining
guidance, for resolving disputes in courts, tribunals or other authorities. It
has manifold facets. The explosion in population, the vast changes brought
about by scientific, technological and other developments, and the all round
enlarged field of human activity reflected in modern society, and the
consequent increase in litigation in courts and other forums demand that the
service of competent persons with expertise in law is required in many stages
and at different forums or levels and should be made available. The need for a
continuing and well orgaised legal education, is absolutely essential reckoning
the new trends in the world order, to meet the ever growing challenges. The
legal education should be able to meet the ever growing demands of the society
and should be thoroughly equipped to cater to the complexities of the different
situations. Specialisation in different branches of the law is necessary. The
requirement is of such a great dimension, that sizeable or vast number of
dedicated persons should be properly trained in different branches of law,
every year by providing or rendering competent and proper legal education. This
is possible only if adequate number of law colleges with proper infrastructure
including expertise law teachers and staff are established to deal with the
situation in an appropriate manner. It cannot admit of doubt that, of late
there is a fall in the standard of legal education. The area of
"deficiency" should be located and correctives should be effected
with the co-operation of competent persons before the matter gets beyond
control.
Needless
to say that reputed and competent academics should be taken into confidence and
their services availed of, to set right matters. As in this case, a sole
Government law college cannot cater to the needs of legal education or
requirement in a city like Bombay. Lack
of sufficient colleges called for the establishment of private law colleges. If
the State is unable to start colleges of its own, it is only appropriate that
private law colleges, which are duly recognised by the concerned University
and/or the Bar Council of India and/or other appropriate authorities, as the
case may be, should be afforded reasonable facilities to function effectively
and in a meaningful manner. That requires substantial funds. Under the label of
self financing institutions, the colleges should not be permitted to hike the
fees to any extent in order to meet the expenses to provide the infrastructure
and for appointing competent teachers and staff. The private law colleges, on
their own, may not afford to incur the huge cost required in that behalf. The
`standard' of legal education and discipline is bound to suffer. It should not
so happen for want of funds.
The
`quality' should on no account suffer in providing free legal aid and if it is
not so, `the free legal aid' will only be a farce or make believe or illusory
or a meaningless ritual. That should not be. It is in that direction the
grant-in-aid by the State will facilitate and ensure the recognised private law
colleges to function effectively and in a meaningful manner and turn out
sufficient number of well trained or properly equiped law graduates in all
branches year after year. That will in turn enable the State and other
authorities to provide free legal aid and ensure that opportunities for
securing justice are not denied to any citizen on account of any disability.
These aspects necessarily flowing from Articles 21 and 39A of the Constitution
were totally lost sight of by the Government when it denied the grant-in-aid to
the recognised private law colleges as was afforded to other faculties. We
would add that the State has abdicated the duty enjoined on it by the relevant
provisions of the Constitution aforesaid. In this perspective, we hold that
Article 21 read with Article 39A of the Constitution mandates or casts a duty
on the State to afford grant-in-aid to recognised private law colleges, similar
to other faculties, which qualify for the receipt of the grant. The aforesaid
duty cast on the State cannot be whittled down in any manner, either by
pleading paucity of funds or otherwise. We make this position clear.
17.
Before closing, we may observe that the content of Article 21 read with Article
39A did not (in terms) arise for consideration in this court on any previous
occasion.
Even
in the recent Constitution Bench decision reported in Unnikrishnan's case
(supra), Article 21 read with Articles 41, 45 and 46 alone came up for
consideration. The scope of Article 21 in the light of Article 39A never arose
for consideration nor was it considered in the said decision.
18.
For the above reasons, we uphold the judgment and order of the High Court of
Bombay under appeal as detailed herein below and dismiss the civil appeals.
19. In
view of the fact that the decision of the High Court was rendered nearly seven
years ago and the operation of the judgment was stayed by this court as early
as 14.2.1989, we are of the view that taking into account the subsequent
events, the ends of justice call for suitable and appropriate modification
regarding the operative portion of the judgment contained in paragraph 34 we, therefore,pass
the following order or directions in substitution of paragraph 34 of the
judgment of the court below.
We
direct the State of Maharashtra to the following effect :- A.
Government is directed to extend the grant-in- aid scheme to all Government recognised
private law colleges, on the same criteria as such grants are given to other
faculties viz.
Arts,
Science, Commerce, Engineering and Medicine from the academic year 1995;
B. The
scheme shall be implemented within three months from today;
C.
Regarding non-Government law colleges which have closed down or are about to
close down, the data will be collected by the Government of Maharashtra
forthwith and sincere attempt must be made to re-start the colleges as they
existed in the academic year 1985-86 for the purpose of extending grant-in-aid
from the academic year 1995-96;
D. As
stated by the High Court, Government shall implement the pension-cum-gratuity
scheme in favour of the staff of non-Government law colleges with effect from
April 1, 1995 on such staff exercising their option, on notice being served on
them individually or by public notice, within three months from the
Government's declaration to implement grant- in-aid scheme to non-Government
law colleges;
E.
Government shall ensure, by taking appropriate steps, that those private law
colleges duly and properly recognised by Government and/or other competent
authorities, including the Bar Council of India, and conforming to standards
laid down by appropriate authorities and affiliated to an established
University alone are afforded the grant-in- aid. Steps shall be taken to ensure
that the aided institutions, abide by all the rules and regulations of the
aforesaid authorities for recognition and affiliation including such of those
rules and regulations in the matter of recruitment of teachers, staff, their
conditions of service, syllabus, standard of teaching and discipline. In this
context, the Bar Council of India Rules, Part IV, standards of legal education
and recognition of degrees in law or admission as Advocates, should be the
guiding factor;
F.
Government should further ensure that a high standard is maintained in legal
education and in that behalf, Government of Maharashtra shall, with the
concurrence of the concerned University, the Bar Council of India, Bar council
of Maharashtra and other competent bodies or persons, as the case may be, take
all necessary steps, so that excellence in legal education is achieved. This
shall be done expeditiously; and G. There shall be no order as to costs in
these appeals.
The
appeals are disposed of, as above.
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