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Report No. 184

Chapter II

Respective Roles of The Bar Council of India And UG.- A Constitutional and Statutory Perspective:

2. At the outset, the Commission proposes to examine the existing Constitutional and Statutory scheme concerning legal education.

2.1 The UGC Act & Entry 66 of List I:-

The University Grants Commission Act, 1956 was an Act passed by Parliament with respect to the subject matter of Entry 66 of List I of the Constitution of India, viz.,

"Entry 66, List I: Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

The Statement of Objects and Reasons appended to the original Bill which preceded the UGC Act, states that the word "standards" in Entry 66 of List I means standards of 'teaching and examinations in Universities'. It says that the

"Commission will also have the power to recommend to any University, the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such 15 recommendations. The Commission will act as an expert body to advise the Central Government on problems connected with the coordination of facilities and maintenance of standards in Universities.

The Commission, in consultation with the University concerned, will also have the power to cause an inspection or inquiry to be made of any University and to advise on any matter which has been the subject of an inquiry or inspection." The Preamble to the UGC Act states that the Act is intended "to make provision for the co-ordination and determination of standards in Universities." In view of section 2(f) of the UGC Act, the UGC has control over the Universities as well as affiliated colleges. In Premchand Jain v. R.K. Chhabra (AIR 1984 S.C. 981), the Supreme Court referred to Entry 66, List I as being the basis of the UGC Act of 1956. Later, in Osmania University Teachers Association v. State of AP (AIR 1987 S.C. 2034), the Supreme Court observed:

"The University Grants Commission has, therefore, greater role to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a high standard in the Universities."

2.2 It was pointed out that the UGC could take all steps necessary to maintain standards, including fixing qualifications, written tests etc. and the UGC could withhold grants to the Universities if its directives were not 16 implemented. In University of Delhi v. Raj Singh: (1994 Suppl (3) SCC 516), the Supreme Court held that qualifications for the teaching staff could also be prescribed by Regulations of the UGC and the said Regulations would override any other legislation, even if made by Parliament, such as the Delhi University Act, 1922. The Court observed, while dealing with the UGC Act, as follows:

"These are very wide ranging powers. Such powers, in our view, would comprehend the power to require those who possess the educational qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test."

"These (powers) include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendations (clause (d)). The UGC is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions (clause (j)). These two clauses are also wide enough to empower the UGC to frame the said Regulations."

Thus, regulations made by the UGC could override any other statute made by Parliament. The recent decision of the Supreme Court in Preeti Srivastava v. State of MP 1999(7) SCC 120, in relation to medical education, is of great relevance in as much as the Court was there 17 considering the provisions of another statute like the UGC Act, passed by Parliament under the same Entry 66, List I of the VII Schedule, namely, the Indian Medical Council Act, 1956, which specifically deals with "standards" of medical education.

The Preamble to that Act also states (like the Preamble to the UGC Act, 1956) that the Act is intended, among other things, to provide for the prescription of standards of post graduate medical education. Section 20 of the Medical Council Act, 1956 deals with the constitution of the P.G. Medical Education Committee to assist the Medical Council in matters concerning P.G. Medical education and it states that in case there is difference between the Medical Council and the P.G. Medical Education Committee, the Medical Council "shall forward them together with its observations, to the Central Government for decision."

Once Regulations are made by the Medical Council on the basis of the recommendations of the P.G. Medical Education Committee, they would be binding on the State Governments. The Regulations are not to be treated as merely recommendatory. Standards of education under Entry 66, List I include calibre of teaching staff, proper syllabus, student-teacher ratio, calibre of students admitted to the institution, equipment and lab facilities, adequate accommodation for the college, the standards of examination, including the manner in which the papers are set and examined.

2.3 From the above decisions of the Supreme Court, the scope and effect of a law made under Entry 66 of List I dealing with 'standards of education' is quite clear. The law, be it the UGC Act, 1956 or the Medical Council Act, 1956 (in so far as the latter authorized the laying down of standards of PG Medical Education), and laws made under the said entry 18 for the purpose of laying down the 'standards', which include standards of teaching, syllabus, examination, at the admission level or later and they would override any made by Parliament.

2.4 University Acts, passed by the State Legislatures under Entry 25 of List III or under old Entry 1 of List II would also be subject to the provisions of the UGC Act, 1956.

2.5 The Advocates Act, 1961 & Entries 77 and 78 of List .- The Advocates Act, 1961 has been passed by Parliament by virtue of its powers under Entries 77 and 78 of List I of Schedule VII of the Constitution of India. The legislative subject here is "practice in the Supreme Court or in the High Court." (see O.N. Mohindroo v. Bar Council, AIR 1968 SC 888), (Bar Council of UP v. State of UP, AIR 1973 SC 231). In ase, namely, the Bar Council of UP case, AIR 1973 SC 231, the Supreme Court specifically held (see p. 238) that in pith and substance, the Advocates Act, 1961 deals only with the following subject-matter referred to in Entries 77, 78 of List I:

"Entry 77: Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such court) and the fees taken therein; persons entitled to practice before the Supreme Court".

Entry 78: Constitution, organization (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts."

The Advocates Act, 1961 thus deals with the conditions which a person has to satisfy before he can be permitted to practice in the Supreme Court or the High Court, but the Statement of Objects and Reasons or the Preamble of the Advocates Act, 1961 does not expressly refer to 'standards of legal education' as do the Preamble and Statement of Objects and Reasons of the UGC Act, 1956 or the Medical Council Act, 1956. It is only section 7(1)(h) of the Advocates Act which refers to this aspect.

2.6 In the view of the Commission, so far as law courses in Universities which offer certain law degrees or diplomas (and where such students are notified that those degrees or diplomas will not entitle them to practice are concerned) which do not enable a person to practice, the Bar Council of India cannot impose mandatory conditions.

The UGC has the prerogative in such cases. However, in the laying down of standards by the Universities even in regard to such courses, though the prerogative is with the UGC and the Universities, they would benefit much by consulting the Bar Council of India. In other words, in regard to courses in law which do not lead to a professional career, the UGC and the Universities could, at their option, consult the Bar Council of India, though it is not mandatory.

2.7 Width of Entries in one List of Schedule VII of the Constitution not to be limited by Entries in other List or even same List:- Whenever there are provisions in the Constitution referring to separation of legislative powers between a federal and state legislatures, it is necessary to examine the width of the subject upon which the Federal or 20 State legislature, as the case may be, is primarily entitled to legislate. This exercise is performed by examining the pith and substance of the legislation which is made with reference to those legislative entries. Certain well-settled principles of interpretation apply.

2.8 Firstly, each entry in each list has to be given its widest scope, without any limitation. Incidental encroachment into the field of legislation of another legislature is permissible to a limited extent, i.e. if it is not in direct conflict with the latter's express provisions. For example, where a federal legislature legislates on one of the subjects within its field, it may incidentally encroach into the field of a State legislation and viceversa, so long as it does not directly conflict with express provisions of the other statute.

As long as the pith and substance of the legislation is attributable to a subject within the field of that legislature, as allocated by the Constitution, such a limited incidental encroachment into the field of another legislature, is permissible and is not liable to be struck down as ultra-vires.

2.9 However, conflict, in the present context, does not arise between legislations made under Entries pertaining to the Federal legislature and the State legislature. Here the issue arises between two legislations made by the same legislature, i.e. UGC Act and Advocates Act, both made by Parliament. In the case of the UGC Act, 1956 and Advocates Act, 1961, we are concerned with two legislations in List I itself though they are made under different entries.

2.10 If the UGC Act, 1956 is expressly meant to deal with standards of education, can the Advocates Act, 1961, which is meant to deal with the 'right to practice' be deemed as a law which is in pith and substance, one also relating to 'standards of education'? The point here is that, as stated above, both laws are made under different entries in List I. In that event, what is the principle of interpretation that is applicable?

2.11 It was stated in India Cement v. State of TN, 1990(1) SCC 12, that the constitutional principle mentioned in the preceding paragraph as between laws made by a Federal legislature and a State legislature is equally applicable in the case of legislation made under different entries in the same List by the same legislature. In the above case, Sabyasachi Mukherji, J (as he then was) observed (see p 23, para 18):

"In interpreting an entry, it would not be reasonable to import any limitation by comparing or contrasting that entry with any other one in the same list."

2.12 The same principle as in India Cement was reiterated by Sabyasachi Mukherji, J (as he then was) in Synthetics & Chemicals Ltd. v. State of UP 1990(1) SCC 109 at 151 (para 67).

2.13 In other words, provisions of the UGC Act under Entry 66 of List I dealing with standards of education and the provisions of the Advocates Act must be given as wide a scope as possible. The UGC Act was passed under Entry 66, List I and deals with standards of education while the Advocates Act owes its existence to Entries 77, 78 of List I. That Entry no 22 doubt, does not refer to 'standards of legal education' but deals with a subsequent stage, 'the right to practice'.

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