IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-8-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.2003 of 2009 M.P.No.1 of 2009 Vanniyar Educational Trust, Konerikuppam, Malathur Post, Tindivanam Taluk, Villupuram District – 604 307 rep.by its President G.K.Mani ... Petitioner Vs. 1. The State of Tamil Nadu, rep.by Secretary to Government, Law Department, Fort St.George, Chennai – 600 009. 2. The Tamil Nadu Dr.Ambedkar Law University, "Poompozhil", No.5, Greenways Road, Chennai – 600 028. rep.by its Registrar 3. The Bar Council of India, rep.by its Secretary, No.21, Rouse Avenue, New Delhi – 110 002. ... Respondents Amended Prayer : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of Certiorarified Mandamus calling for the concerned records relating to the letter No.1524/S/P/LS/2008, dated 23.1.2009 passed by the first respondent and quash the same and consequently direct the first respondent to grant permission/NOC as claimed by the petitioner for starting a private law college in the name and style of Saraswathi Law College at Tindivanam, to enable the petitioner to approach the second and third respondents for the grant of affiliation and final approval for the said college. (Prayer amended as per order of the Court dated 12.6.2009 in M.P.No.2 of 2009) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.N.R.Chandran, Senior Counsel for Mr.K.Balu For 1st Respondent : Mr.P.Wilson, Additional Advocate General assisted by Mr.A.Suresh, Government Advocate (Edu) For 2nd Respondent : Mr.V.M.C.Ramakannan For 3rd Respondent : Mr.K.Venkatakrishnan O R D E R The prayer in the writ petition is to quash the order of the first respondent rejecting the request of the petitioner for the grant of permission/NOC for starting a private Law College under the name and style 'Saraswathy Law College' at Tindivanam, for the grant of affiliation by the second respondent University and for approval by the Bar Council of India. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioner is a Trust, registered under the Indian Trusts Act, 1882 (Act 2 of 1882). The object of the Trust is to start educational institutions for the welfare of the public in all districts and to give scholarships, donations to the students and to promote education in the branches of Health, Arts and Science, Management, Technical, Agricultural, Law, etc., and to start job- oriented courses for the students belonging to the weaker sections of the Society and also to conduct coaching classes for candidates attending the competitive examinations conducted by the Staff Selection Commission, Public Service Commission, Union Public Service Commission, for various services including Indian Administrative Service and Indian Police Service. (b) On 9.7.2007 the petitioner Trust submitted an application before the first respondent for the grant of permission/No Objection Certificate (NOC) to start a new law college in the name and style of 'Saraswathy Law College' at Tindivanam, Villupuram District, from the academic year 2008-2009 along with relevant records for the purpose of granting permission/NOC. The said application was filed under https://hcservices.ecourts.gov.in/hcservices/ Section 6(2) of the Tamil Nadu Dr.Ambedkar Law University Act, 1996, which states that 'No Law College or institution imparting legal education affiliated to, or associated with, or maintained by, any other University, whether within the State of Tamil Nadu or outside the State of Tamil Nadu, shall be recognised by the University for any purpose except with the prior approval of the Government and the University concerned'. (c) On 25.9.2007 a further representation was submitted stating that the petitioner Trust is having 10 acres of land and other infrastructural facilities. The Director of Legal Studies by letter dated 8.10.2007 stated that the petitioner's representation was forwarded to the Government for further action. According to the petitioner, as the first respondent failed to issue permission/NOC, the petitioner Trust could not approach the Bar Council of India for approval and the second respondent University for affiliation. (d) The petitioner earlier filed W.P.No.27590 of 2008 and prayed for a direction to the first respondent to grant permission/NOC based on the application of the petitioner for establishing private law college under the name and style of 'Saraswathy Law College' at Tindivanam. This Court by order dated 20.11.2008 directed the first respondent to consider the application dated 25.9.2007 and pass orders in accordance with law within a period of twelve weeks. (e) In compliance of the said order, the representation of the petitioner was considered and the impugned order dated 23.1.2009 was passed by the first respondent by stating that since no guidelines for granting permission/NOC has been framed by the Government so far, the grant of permission/NOC to start a new private law college at Tindivanam cannot be complied with. The said order is challenged in this writ petition on various grounds. 3. The first respondent has filed counter affidavit contending that there are seven Government Law Colleges functioning in the State of Tamil Nadu and the same are located at Chennai, Madurai, Tiruchirapalli, Coimbatore, Tirunelveli, Chengalpet and Vellore, and there is one School of Excellence, attached to the Tamil Nadu Dr.Ambedkar Law University. The said law institutions fulfils the requirements of all sections of the student community throughout the State of Tamil Nadu. The claim of the petitioner Trust is unable to be considered as guidelines for considering the application seeking grant of permission/NOC is under active consideration of the Government. It is further stated in the counter affidavit that the candidates seeking admission to the Law Colleges are gradually decreasing for the past five years and therefore there is no necessity to start a new private Law College at Tindivanam, Villupuram District. https://hcservices.ecourts.gov.in/hcservices/ 4. The second respondent has filed separate counter affidavit contending that as per Section 5(v) of the Tamil Nadu Dr.Ambedkar Law University Act, 1996, permission of the Government is necessary for the grant of affiliation of any law college by the University. The affiliation request after obtaining prior permission/NOC alone can be entertained by the University. 5. The third respondent, even though was served, has not chosen to file any counter affidavit in spite of granting time on several occasions. The learned counsel for the third respondent submitted that the third respondent is not interested in filing counter affidavit at this stage as the relief sought for is only against the first respondent. 6. Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioner argued that merely because the State Government has not framed any guidelines for the issue of permission/grant of NOC to start private Law Colleges due to bureaucratic delay, the permission/NOC sought for by the petitioner Trust to start a new private Law College in a backward area of Villupuram District at Tindivanam, cannot be rejected as the requirement of having a law college at the District is a paramount consideration for deciding the issue by the State Government. The learned Senior Counsel also submitted that by the enactment of new legislations by the State Government as well as Central Government, recognising the rights of the citizens, the illiterate people may not have knowledge of their legal and constitutional rights and unless more law colleges are granted permission and number of lawyers are increased in proportion to the population and litigations, which have increased many-fold, the speedy justice as guaranteed under Article 21 of the Constitution of India cannot be achieved. The legal profession being a self- employed profession, acquiring knowledge of law through law colleges will not cause any disadvantage to the Government and it will increase the potentiality of preserving and achieving the valuable statutory rights of the litigants. The learned Senior Counsel also submitted that no policy decision prohibiting establishment of law colleges can be taken by the Government on any ground and such policy decision taken by the Government insofar as Medical education, Dental education, Technical education and Teacher education were set aside by this Court as well as by the Honourable Supreme Court and therefore the impugned order is liable to be set aside and the first respondent is bound to consider the request of the petitioner Trust for the establishment of a private law college at Tindivanam. 7. Mr.P.Wilson, learned Additional Advocate General on the other hand submitted that the law colleges available in the State of Tamil Nadu as on today is sufficient to cater the needs of the legal profession and number of applications for admission to law colleges gets reduced year after year for the past five years and therefore there is no need to consider the request of the petitioner for the https://hcservices.ecourts.gov.in/hcservices/ grant of permission/NOC by the State Government. The learned Additional Advocate General further submitted that if this Court comes to the conclusion that the impugned order is bad for any reason, the Government is willing to consider the request of the petitioner afresh, within a given time. 8. The learned counsel for the third respondent supported the arguments advanced by the learned Additional Advocate General and submitted that about 3500 law graduates are enrolling as advocates every year in the Tamil Nadu Bar Council and the said number of advocates enrolling every year is sufficient to cater the needs of the litigant public of the State and if new law colleges are granted permission/NOC, there would be more number of law graduates. which will cause over crowding of advocates in all Courts of Tamil Nadu. 9. I have considered the rival submissions made by Mr.N.R.Chandran, learned Senior Counsel for the petitioner; Mr.P.Wilson, learned Additional Advocate General for the first respondent; Mr.V.M.C.Ramakannan, learned counsel for the 2nd respondent; and Mr.K.Venkatakrishnan, learned counsel appearing for third respondent. 10. The points arise for consideration in this writ petition are as follows: (1) Whether the present sanctioned strength of law colleges available in the State of Tamil Nadu is sufficient to meet the requirement of the people in Tamil Nadu for getting their legal remedies adjudicated without delay ? (2) Whether the State Government can take a policy decision not to consider any private law college within the state of Tamil Nadu on any reason based on the seats available in various law Colleges in Tamil Nadu and the number of enrollment of advocates enrolling in the Bar Council of Tamil Nadu ? 11. Rules of Legal Education including the standards of Legal Education and recognition of degrees in Law for enrollment as Advocate is framed by the Bar Council of India under Sections 7(1) (h) and (i), 24(1)(c)(iii) and 3(a), 49(1)(af) and (ag) and (d) of the Advocates Act, 1961. Under Rule 16(vi), Centres of Legal Education can impart education only with the approval of the Bar Council of India and no Centres of Legal Education shall admit any student and impart instruction in the course of study in Law for enrollment as Advocate, unless recognition of degree or affiliation of Centres of Legal Education has been approved by the Bar Council of India after inspection. For continuance of affiliation also approval of the Bar Council of India is necessary if any College was not granted approval by the Bar Council of India. Under Rule 16(vi) every law College applying for approval of affiliation shall obtain https://hcservices.ecourts.gov.in/hcservices/ permission/No objection for establishment of a Law College from the Government or Higher Education Department of the State, if the same is a requirement under the prevailing law or any Law in the State. 12. The second respondent is the affiliating University of Law Colleges in the State of Tamil Nadu and the said affiliation is governed under the Tamil Nadu Dr.Ambedkar Law University Act, 1996. Under the said Act, "affiliated college" is defined under Section 2 (a), which reads as follows: " "affiliated college" means a college or institution situate within the University area and affiliated to the University; a college deemed to be affiliated to the University and an autonomous college" The "Government" is also defined under Section 2(h), which says, " "Government" means the State Government" Under Section 5, powers and functions of the University is mentioned. Rule 5(v) states the powers to affiliate Colleges to the University under conditions prescribed and withdraw such affiliation. Proviso to the said rule states that 'no college shall be affiliated to the University unless the permission of the Government to establish such College has been obtained and the terms and conditions, if any, of such permission has been complied with'. Section 6(1) states that 'No law college or institution imparting legal education within the University area shall be affiliated to any other University other than the Tamil Nadu Dr.Ambedkar Law University'. 13. From the above statutory provisions viz., the Bar Council of India Rules, which were framed under the rule making power of the Advocates Act, 1961, as well as the Tamil Nadu Dr.Ambedkar Law University Act, 1996, it is evident that for establishing a law College approval of the Bar Council of India has to be obtained and the said College should be affiliated to the University which conducts examinations and for getting approval, prior permission/NOC is to be obtained from the State Government concerned. 14. The contention of the petitioner Trust is that in Villupuram Revenue District no Law College is functioning and there is a local need to establish a law college and therefore the petitioner Trust has submitted its application to get permission/NOC from the State Government as early as in the year 2007 and the same having not been considered this Court gave direction to consider the same and pass orders and thereafter the impugned order passed not on the ground of a reason that no law college is required to be established, but on the reason that the guidelines are yet to be issued by the Government cannot be sustained. Such a stand was taken by the first respondent on 23.1.2009. Now more than 18 months have https://hcservices.ecourts.gov.in/hcservices/ passed and even today the first respondent has not come up with the guidelines. This attitude of the first respondent establishes an element of bureaucratic approach as contended by the learned Senior Counsel for the petitioner. The Bar Council of India Rules and the Tamil Nadu Dr.Ambedkar Law University Act, 1996, having fixed the guidelines for the requirement of law colleges, namely infrastructural and instructional and facilities to be provided by the Colleges, the State Government cannot frame any new guideline regarding that aspects. 15. During the course of the arguments, the learned Additional Advocate General relying upon the counter affidavit filed by the first respondent submitted that in the State of Tamil Nadu seven Government Law Colleges and one private Law College are functioning as on today and two Deemed Universities are also conducting law degree courses, apart from the School of Excellence, which is established and administered by the second respondent University, and the said institutions are sufficient to get the required number of law graduates for enrollment as advocates in the State of Tamil Nadu and contended that there is decrease in the number of applications received from the students for admission to Government Law Colleges and therefore there is no necessity to establish another Law College by the Petitioner Trust at Tindivanam, Villupuram District. It is also urged before this Court that yearly 3,500 new advocates are getting enrolled before the Bar Council of Tamil Nadu for practising law profession and the said strength of 3,500 per year and about 60,000 Advocates practising in Tamil Nadu as on this date, are sufficient enough to meet the requirements of the general public throughout the State of Tamil Nadu. The State of Tamil Nadu is having a population of about 6,17,74,000 as per the Census of the year 2001, and for the said population it has to be ascertained whether the enrollment of about 3,500 Advocates every year is adequate. Several enactments of new legislations by the Central as well as State Governments recognises the rights of individuals including human rights, pollution free living to all individuals. To quote some, rights of labourers including bonded labourers, women, physically disabled, consumers, scheduled caste and scheduled tribe persons, etc. 16. For giving Legal Aid and Legal Literacy, the Government of India enacted Legal Services Authorities Act, 1987, which came into force from the year 1995. The said Act was enacted with the following object and reason: "An Act to constitute Legal Services Authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise https://hcservices.ecourts.gov.in/hcservices/ Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity." The said Act guarantees free legal aid to several categories of persons and also obligates the State Legal Services Authority, District Legal Services Authorities and Taluk Legal Services Committees to provide legal aid and conduct Legal Literacy Camps to several persons, particularly to the poor and downtrodden, prisoners, etc., as majority of our people are not having legal knowledge and living below poverty line. It is an accepted fact that several crores of cases are pending across India due to various reasons. The Law Commission of India in its 120th report has recommended that there should be 50 Judges for every ten lakh population, instead of 10.5 Judges now available. It is true that neither the Bar Council, nor the Universities, nor the State Governments can allow the mushroom growth of sub-standard law schools. However, it is imperative to have more number of Law Colleges with high standards. The law institute must provide a realistic and comprehensive picture of structure and functions of the Society and promote democratic values. The law student will not only be an advocate for the future, but also be a Social Technician. The Bar Council of India and the Universities have already taken initiatives to improve the legal education by introducing five years law course, mostly residential colleges. If legal education is wisely reformed, it will be most beneficial for the development of our nation. Legal Education is the heart and very soul of the Society for administering the rule of law for our democratic country. Due to the long pendency of cases the Government of India and State Government of Tamil Nadu have created new courts like Nayayalayas, Fast Track Courts, Evening Courts and recently Holiday Courts. Demand to create more courts to give speedy justice is also pending. Legal Aid Centres/Clinics are established at Taluk level. For meeting the said requirements large number of advocates are to be enrolled. The National Litigation Policy framed by the Government of India 2010 suggests various measures to reduce the pendency of cases. One of the recommendation is panels will be drawn up of willing, energetic and competent Lawyers to develop special skills in drafting pleadings on behalf of the Government. More and more advocates must be encouraged to get on to such panels. Thus, requirement of more number of competent Lawyers is accepted by the Government of India in its litigation policy. 17. The right of free Legal Aid and speedy justice are guaranteed fundamental right and constitutional rights under Article 21 and 39A of the Constitution of India. The State is obliged to provide free legal aid. In the State of Maharashtra, during the year 1985-86, the total number of law students were about 25,700. Even the said sanctioned strength was found not adequate by the Supreme Court in the decision reported in AIR 1996 SC 1 : (1995) 5 SCC 730 https://hcservices.ecourts.gov.in/hcservices/ (State of Maharashtra v. Manubhai Pragaji Vashi). In paragraph 9 it is stated as follows: "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 grants-in-aid by the Government. The government recognised non-government law colleges in Maharashtra is the only faculty which is denied the above grants-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. ...................... ........... 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 said decision it is further held that to achieve the free legal aid mentioned in Article 39A of the Constitution of India, more number of Lawyers are required. In paragraphs 13 and 16 (in AIR) it is held as follows: "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 https://hcservices.ecourts.gov.in/hcservices/ 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 H.P. v. Umed Ram Sharma. 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." "16. .............. 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 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 https://hcservices.ecourts.gov.in/hcservices/ located and correctives should be effected with the cooperation of competent persons before the matter gets beyond control. Needless to say that reputed and