IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 06/09/2002 Coram The Honourable Mr.B.SUBHASHAN REDDY, CHIEF JUSTICE and The Hon'ble Mr.JUSTICE K.GOVINDARAJAN W.P.No.24625 of 2002 and W.P.No. 24696 of 2002 and Wp.Nos. 25014, 25015 & 25632 of 2002 S.Mazhaimeni Pandian, .. W.P.24625/02 Advocate. S.Packiaraj .. W.P.24696/02 K.Thanga Mohan .. W.P.25014/02 C.L.Shaji .. W.P.25015/02 Dr.S.D.Raajadevan, .. W.P.25632/02 Advocate. ..... Petitioners. -Vs- 1.The State of Tamil Nadu, Rep. by Chief Secretary to Govt., Fort St. George, Chennai.600009. .. 1st respondent, W.P.24625/02 & R5, W.P.25632/02. The Principal, Dr.Ambedkar Law College, Madras High Court Complex, Chennai.1. .. 1st respondent, W.P.25632/02. 2.The Govt. of Tamil Nadu, Rep., its Secretary, Dept. of Law Fort St. George, Chennai.9. .. 1st respondent, W.Ps.25014 & 25015/02 & 2nd respondent,W.Ps.24625 &24696/02, & R4, W.P.25632/02. Director of Legal Studies, Dr. Ambedkar law College, Madras High Court Complex, Chennai.1. .. 2nd respondent, W.P.25632/02. 3.The Registrar, Tamil Nadu Dr. Ambedkar Law University, Poompozhil, 5 Greenways Road, Chennai.600 035. .. 3rd respondent,W.P.24625/02 & W.P.25632/02. The Chairman, Bar Council of India, New Delhi .. 3rd respondent,W.Ps.25014 & 25015/02. 4.The Director of Legal .. 4th respondent,W.P.24625/02, Studies, Nandanam, 1st respondent,W.P.24696/02 & Chennai.600 035. 2nd respondent,W.Ps.25014 & 25015/02. W.P.No.24625/2002, under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, as stated therein. W.P.No.24696/2002, under Article 226 of the Constitution of India praying to issue a Writ of declaration, as stated therein. W.P.Nos.25014 and 25015 of 2002, under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, as stated therein. W.P.No.25632/2002, under Article 226 of the Constitution of India praying to issue a writ of mandamus as stated therein. Mr.S.Mazhaimeni pandiyan : W.P.24625/02. Petitioner-in-person For Petitioners in : Miss R.Vaigai, M/s.K.Bharathi, W.Ps.25014 & 25015/02. S.M.Mohan Gandhi, For M/s.S.Ravi, S.Sivakumar, Mr.N.Paul Vasanthakumar, : For Petitioners, for M/s.R.Sankarasubbu, W.P.24696/02. K.Kanagaraj For Respondents 1,2, & 4 : Mr.R.Muthukumaraswamy, in W.P.No.24625/2002 Addl.Advocate General, Assted by For Respondents 1 & 2, Mr.V.R.Rajasekaran,Spl. W.P.25014 &25015/02; G.P. For For Respondents 1 & 2, W.P.24696/02; For Respondents 1,2,4 &5 in W.P.25632/02; Mr.P.Jothimani, for : For R3in W.P.25014 &25015/02. Bar Council of India, Mr.T.D.Vasu, for : For R3 inW.P.24625/02 & University, for for R3 inW.P.25632/02. :COMMON ORDER K.GOVINDARAJAN,J. The petitioners in W.P.Nos.24625, 24696, 25014 and 25015 of 2002, who are probono public have challenged the correctness of the action of the Government in discontinuing the B.L. Degree Course both three years and five years in Dr. Ambedkar Government Law College, Chennai, and have sought for a direction to the Government to continue the same, as it was done earlier. 2.The petitioner in W.P.No.25632/2002, a practicing advocate and social worker has prayed to issue a writ of mandamus, to direct the respondents to stop all processes relating to the notification given on or about 6.7.2002, announcing about the new five-year B.A.,B.L. ( Hons.) Course, without providing for age and marks relaxations for Most Backward Class and Backward Class students. 3.Originally, there was only one Law College at Chennai, for the entire Madras State, called Government Law College, Chennai. Taking into consideration the demand for law course, the Government wanted to have Law Colleges in the other regions also. So, first, the Government Law College at Madurai was started. Thereafter, it was started at Tiruchi and Coimbatore, and recently a Law College was started at Tirunelveli also. 4.Similarly, originally, the Law College at Madras was conducting two-year course and subsequently three-year course was introduced. Thereafter, five-year law course was also introduced. To meet the demand of the working people, evening law courses were started in addition to the regular law courses, and it was discontinued as directed by the Bar Council of India. 5.The Director of Legal Studies seems to have sent a proposal on 9.5 .2002 to the Government recommending for upgradation of the Ambedkar Government Law College at Chennai to the level of National Law School of India, Bangalore. The Government also after considering the said proposal took a policy decision to upgrade Dr. Ambedkar Government Law College, Chennai. On the basis of the said decision, the Government issued orders in G.O.Ms.No.332, Law Department, dated 30.5.2002. In the said Order, the Government has passed the following order:- "(i) Admission will be made only for the Five Year B.L. (Hons.) Degree course to be commenced in Dr.Ambedkar Government Law College, Chennai from the Academic Year 2002-2003. (ii) There shall not be more than two sections in each year of the Course and the student strength shall not exceed 40 in each section. (iii) Efficient teachers will be selected, by a Committee to be constituted by the Government for the purpose, from among the Government Law College Teachers for the B.L. (Hons.) Degree Courses. The number of such teachers will be decided after finalisation of the syllabus and as per the need. (iv) The class room, furniture, Library, etc., available in the Dr. Ambedkar Government Law College, Chennai shall be made use of for this purpose. (v)The eligibility criteria for admission, procedure for admission, the syllabus for B.L. (Hons.) Degree Course and other matters which are not specifically mentioned in this order will be the same as fixed by the Tamil Nadu Dr.Ambedkar Law University or the Course to be conducted by the 'School of Excellence'." Pursuant to the said Government Order, the Tamil Nadu Dr. Ambedkar Law University issued a Notification in the Newspaper, "The Hindu", dated 30.6.2002, calling for Applications for the admission of Fiveyear B.L. (Hons.) Degree Course 2002-2003. It is relevant to mention here that the Applications were not called for by the College, but by the Registrar of the said University. The Director of Legal Studies called for Applications for admission to three-year and five-year B.L. Course for 2002-2003, only in the Law Colleges situated in Madurai, Tiruchirappalli, Coimbatore and Tirunelveli. No Applications were called for, for admission to such course in Dr. Ambedkar Government Law College, Chennai. So the petitioners have come forward with the above Writ Petitions on the basis that pursuant to the said Government order, the respondents have decided to discontinue Five-year and Three-year B.L. Degree Course in Dr.Ambedkar Government Law College, Chennai. 6.According to the petitioners, the students hailing from northern districts will be deprived of getting studies in Law by discontinuing five-year and three-year B.L. Course in Dr. Ambedkar Government Law College, Chennai. The students who can join the Law College in Chennai are forced to join the course in other colleges which are situated in remote places, and they have to stay either in hostels or in other places by spending huge amount. It is also stated that the students who intend to apply for the new course started pursuant to the said Government Order should obtain at least 70% marks in Plus 2 examination, even to appear for the Entrance Examination, and they have to pay a sum of Rs.39,000/- per annum towards fees, instead of Rs.600/- which was paid earlier. On that basis, it is stated that the right to get legal education for the students hailing from northern parts of Tamil Nadu is denied completely, and so the action of the respondents in discontinuing the three-year and five-year B.L. Course is arbitrary and illegal, besides being violative of Articles 14, 16 and 21 of the Constitution. It is also stated that before making such changes by introducing B.L. (Hons.) Degree Course and also discontinuing the said course already conducted, the respondents have not followed the schemes and norms prescribed by the Bar Council of India and the University Grants Commission. 7.The Additional Secretary to Government of Tamil Nadu has filed a counter affidavit. In the counter, it is specifically stated that in view of the decision taken to introduce five-year B.L. (Hons.) Degree Course in Dr. Ambedkar Government Law College, Chennai from academic year 2002-2003, the infrastructural facilities available in the said Law College were made available for conducti ng the said course. Since there is no scope for creating additional infrastructural facilities within the campus of the said College, the Government was constrained to discontinue the Five-year and Three-year B.L. Degree course so far conducted in the said College. But, with a view to maintain the existing intake in Government Law Colleges, the Government had increased the intake in the other Government Law Colleges situated at Tiruchirappalli, Coimbatore and Tirunelveli, as per G.O.Ms.No.466 Law ( Legal Studies) Department dated 19.7.2002. It is further specifically stated that having regard to the non-availability of space in the campus of Dr. Ambedkar Government law College, Chennai, the Government is not in a position to continue the Three-year and Five-year B.L. Degree course as well as the newly introduced Five-year B.L. (Hons.) Course. 8.We heard the arguments of Ms.R.Vaigai, learned counsel appearing for the petitioners in W.P.Nos.25014 and 25015 of 2002, Mr.Paul Vasanthakumar, learned counsel appearing for petitioner in W.P.No.24696/200 2, the petitioner in W.P.Nos.24625/2002 and 25632/2002, Mr. Muthukumarasway, learned Additional Advocate General, appearing for the Government and the Director of Legal Studies, Chennai, Mr.T.Vasu, learned counsel appearing for Tamil Nadu Dr. Ambedkar law University and Mr.P.Jothimani, learned counsel appearing for the Bar Council of India. 9.From the above pleadings and arguments of the learned counsel on both sides, we have to decide whether the discontinuance of Threeyear and Five-year B.L. Degree course in Dr. Ambedkar Government Law College, Chennai is sustainable in law. 10.Till the Government Order in G.O.Ms.No.332, Law Department, dated 30.5.2002 was issued, the Five-year and Three-year B.L. Degree courses were conducted in Dr. Ambedkar Government Law College, Chennai. It is relevant to mention here that there is no notification nor announcement regarding the discontinuance of the said courses in the said college. The petitioners came to know about the discontinuance of the said courses only when the Applications for Entrance Examination were called for by the Director of Legal Studies, Chennai, for the Three-year and Five-year B.L. Degree courses for the academic year 2002 -2003, as the Director of Legal Studies, Chennai, called for Applications only for the colleges situated at Madurai, Tiruchirappalli, Coimbatore and Tirunelveli, and not for Dr. Ambedkar Government Law College, Chennai. The said notification was notified in "The New Indian Express", dated 3.7.2002. Moreover, the Registrar, Tamil Nadu Dr. Ambedkar Law University, Chennai, called for Applications for admission to Five-year B.A.,B.L. (Hons.) Degree Course for the academic year 2002-2003 to be conducted in Dr. Ambedkar Government Law College, Chennai. The said notification was published in the newspaper, "The Hindu", dated 30.6.2002 and in other Dailies. Thereafter, the petitioners came to know about the said Government Order dated 30.5.2002, and the intention of the Government to discontinue the Three-year and Five-year B.L. Courses in Dr. Ambedkar Government Law College, Chennai. So they have approached this Court by way of filing these writ petitions. 11.Though no specific notification or announcement was made about the discontinuance of the said course, the said action has been admitted in the counter affidavit. So, we have to proceed further on the basis that in view of the decision taken by the Government to start Five-year B.L.(Hons.) Degree Course in Dr. Ambedkar Government Law College, Chennai from the academic year 2002-2003, the Tamil Nadu Dr. Ambedkar Law University, the respondents, have decided to discontinue the Three-year and Five-year B.L. Degree courses. The reason for such discontinuance as stated in the counter affidavit filed by the Government is that in view of the decision of the Government to start Fiveyear B.L. (Hons.) degree course in Dr. Ambedkar Government law College, Chennai, no space is available to conduct the courses already in existence also in the said college and so they are constrained to discontinue the said courses. To justify their action, they have come forward with the plea that they have increased the intake in the other law colleges at Tiruchirappalli, Coimbatore and Tirunelveli as per G.O. Ms.No.466 Law (Legal Studies) Department dated 19.7.2002. So, we have to now consider whether such reasonings are justifiable, to discontinue the said course which was in existence already in the said college. The Government, though originally was conducting only one law college in Chennai, in view of the increasing demand for legal education, had started the other law colleges in various regions. Further, there is another law college at Salem which is being run by a private trust. 12.The issue raised has to be tested on the basis of the rights provided under the Constitution and with reference to the relevant provisions of Advocates Act, 1961 and the Bar Council of India Rules. Though under part III of the Constitution "right to education" as such has not been guaranteed as a fundamental right, the Apex Court in a number of decisions laid down that inv iew of Articles 41 and 45, which were brought in under Chapter IV of the Constitution, it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizen. To develop the personality of a person for the purpose of keeping up the human dignity as assured in the preamble of the Constitution, he has to be educated. Art.41 of the Constitution recognises the individual's right to have education and compels the State to make effective provision for securing the right to education within the limits of its economic capacity and development. So the State Government is under an obligation to make endeavour to provide educational facilities to its citizens. 13.So, the grievance of the petitioners can be tested on the basis of Article 21 and Article 39-A of the Constitution of India. Article 21 of the Constitution of India is the heart of a Fundamental Right conferred on the citizens under Part-III of the Constitution. Article 39-A is one of the Directive Principles of State policy under PartIV of the Constitution of India. The Fundamental Right conferred under Part-III and the Directive Principles of State policy under PartIV of the Constitution are complementary and supplementary to each other. The Fundamental Right conferred under Part-III of the Constitution can be achieved by enforcing the Directive Principles enumerated in Part-IV of the Constitution. 14.While considering the importance of these Part III and Part IV, the Courts have held that Part IV constitutes the stairs to climb the high edifice of a socialistic State and Part III is the means through which one can reach the top of the same. 15.The Apex Court in the decision in Miss Mohini Jain vs. State of Karnataka & others, AIR 1992 S.C. 1858, had considered the scope of application of Art.21 of the Constitution to claim "right to education" as a fundamental right and held as follows:- "9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Art.41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. ... ... ... ... (12) "Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Art.21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to it citizens. 13. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Art.19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. 14. The "right to education", therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional-mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening of several new medical colleges under various private bodies and organisations. These institutions are charging capitation fee as a consideration for admission. Capitation fee is nothing but a price for selling education. The concept of "teaching shops" is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage. As back as December, 1980 the Indian Medical Association in its 56th All India Medical Conference held at Cuttack on December 28-30, 1980 passed the following resolutions: "The 56th All India Medical Conference views with great concern the attitude of State Governments particularly the State Government of Karnataka in permitting the opening of new Medical Colleges under various bodies and organisations in utter disregard to the recommendations of Medical Council of India and urges upon the authorities and the Government of Karnataka not to permit the opening of any new medical college, by private bodies." It further condemns the policy of admission on the basis of capitation fees. This commercialisation of medical education endangers the lowering of standards of medical education and encourages bad practice." ... ... ... ... ... 17. We hold that every citizen has a 'right to education' under the Cnostitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through State-owned or Staterecognised educational institutions. When he State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institution- whether State-owned or State-recognised – in reconition of their 'right to education' under the constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen's right to education under the Constitution. 18.Indian civilisation recognises education as one of the pious obligations of the human society. To establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale. Looking at he economic-front, even forty five years after achieving independence, thirty per cent of the population is living below poverty-line and the bulk of the remaining population is struggling for existence under poverty-conditions. The preamble promises and the directive principles are a mandate to the State to eradicate poverty so that the poor of this country can enjoy the right to life guaranteed under the Constitution. The State action or inaction which defeats the constitutionalmandate is per se arbitrary and cannot be sustained. Capitation fee makes the availability of education beyond the reach of the poor. The State action in permitting capitation fee to be charged by Staterecognised educational institutions is wholly arbitrary and as such violative of Art.14 of the Constitution of India. During the last two decades the horizon of equality clause has been widened as a result of the Court's judgments. Earlier the violation of Art.14 was judged on the twin tests of classification and nexus. This Court in E.P.Royappa v. State of Tamil nadu (1974)2 SCR 348 : (AIR 1974 SC 555) gave new dimension to Art.14 in the following words (at p.583 of AIR): "Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art.14." 16.It is well settled that a right to have a free legal aid and speedy trial are also guaranteed fundamental rights under Article 21 of the Constitution. Equal justice and free legal aid are provided under Article 39-A of the Constitution. Article 39-A of the Constitution declares 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 economy or other disabilities. To discharge the said constitutional obligation, the States have to afford free legal aid and guarantee speedy trial. For that, large number of persons trained in law are essential. In effect, to guarantee the obligation given under the Constitution as enumerated under Articles 21 and 39-A of the Constitution, there is a need for a continuing and well-organized legal education. It also should be provided sufficiently to match with the increasing demand. The State cannot ignore such obligation either by pleading paucity of funds or otherwise. This view of ours is supported by the decision of the Apex Court in State of Maharashtra v. Manubhai Pragaji Vashi, (1995)5 S.C.C. 730, in which Their Lordships have held as follows:- "17.In the light of the above, we have to consider the combined effect of Article 21 and Article 39-A 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 39-A 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 39-A 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 occurring in Article 39-A 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-organised legal education, is absolutely essential reckoning, the new trends in the world order,to meet the