Tuesday, May 25, 2010

Islamic Acadmey of education Vs State of Karnatakaand others

Islamic Academy of Education VS State of Karnataka and others
CASE NO.:Writ Petition (civil) 350 of 1993
Islamic Academy of Education and another Respondent’s. State of Karnataka and others
DATE OF JUDGMENT: 14/08/2003
JUDGMENT:(With S.L.P.(Civil) Nos. 11286/2003, 11391/2003, 11189-11195/2003,
W.P(Civil) Nos. 355/1993, 174/2003, T.P.(Civil) No. 286-288/2003, S.L.P.(Civil) Nos. 3465-3466/2003, 3942-3943/2003, 4002-4003/2003, 9253-9254/2003, 10561/2003, W.P.(Civil) Nos. 261/2003, 275/2003, 280/2003, 289/2003)
V. N. KHARE, CJI for himself and for Variava, Balakrishnan and Pasayat, JJ.
On 31st October, 2002 eleven Judge Bench of this Court delivered the Judgment in the case of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002 (8) SCC 481). A brief history as to how a eleven Judge Bench of this Court came to decide this case is set out in para 3 of the judgment, which reads as under:"3. The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of five Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St Stephens College versus University of Delhi was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench. These cases were then placed before a bench of seven Judges. The questions framed were recast and on 6-2-1997, the Court directed that the matter be placed before a Bench of at least eleven Judges, as it was felt that in view of the Forty-second Amendment to the Constitution, whereby
"education" had been included in Entry 25 of List III of Seventh Schedule, the question of who would be regarded as a "minority" was required to be considered because the earlier case-law related to the pre-amendment era, when education was only in the State List……………."
After the Judgment was delivered, on 31st October 2002, the Union of India, various State Governments and the educational institutions understood the majority judgment in different perspectives. Different statutes/regulations were enacted/framed by different State Governments. These led to litigations in several Courts. Interim orders passed therein have been assailed before this Court. When these matters came up before a Bench of this Court, the parties to the writ petitions and special leave petitions attempted to interpret the majority decision in their own way as suited to them and therefore at their request all these matters were placed before a Bench of five Judges. It is under these circumstances that this Bench has been constituted so that doubts/anomalies, if any, could be clarified.
Most of the petitioners/applicants before us are unaided professional educational institutions (both minority and non-minority). On behalf of the petitioners/applicants it was submitted that the answers given to the questions, as set out at the end of the majority Judgment, lay down the true ratio of the Judgment. It was submitted that any observation made in the body of the judgment had to be read in the context of the answers given. We are unable to accept this submission. The answers to the questions, in the majority Judgment in Pai's case, are merely a brief summation of the ratio laid down
in the Judgment. The ratio decidendi of a Judgment has to be found out only on reading the entire Judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment.
We, therefore, while giving our clarifications, are deposed to look into other parts of the Judgment other than those portions which may be relied upon. Very briefly stated the other submissions were as follows: On behalf of the petitioners/applicants it was also submitted that fixation of percentages of seats that could be filled in the unaided professional colleges both minority and non minority by the management, as done by various State Governments, was impermissible. It is further submitted that the private unaided professional educational institutions, had been given complete autonomy not only as regards the admission of students but also as regards the determination of their own fee structure. It was submitted that these institutions could fix their own fee structure, which could include a reasonable revenue surplus for purposes of development of education and expansion of the institution, and that so long as there was no profiteering or charging of capitation fees, there could be no interference by the Government. It was submitted that the right to admit students is an essential facet of the right to administer, and so long as admission to the unaided educational institutions is on a fair and transparent basis and on the basis of merit, government cannot interfere. It was submitted that these institutions are entitled to fill up all their seats by adopting/evolving a rational and transparent method of admission which ensures that merit is adequately taken care of. It was submitted that in any event the institutions should be given a choice and be allowed to admit students on basis of the ICSC or SSC or other such examination. It was also suggested that educational institutions of a particular type may be permitted to associate themselves for the purposes of holding a common entrance test in each State. On behalf of minority institutions, it was submitted that they are entitled to fill up all the seats with students of their own community/language. On behalf of non-minority institutions, it was submitted that they also had a fundamental right to establish and administer educational institutions and that the majority Judgment puts them on a par with the minority institutes. As against this, on behalf of the Union of India, various State Governments and some students, who sought to intervene, it was submitted that the right to set up and administer an educational institution was not an absolute right, and this right is subject to reasonable restrictions and that this right is subject (even in respect of minority institutions) to national interest. It was submitted that imparting education was a State function but, due to resources crunch, the States were not in a position to establish sufficient number of educational institutions. It was submitted that, because of such resources crunch, the States were permitting private educational institutions to perform State functions. It was submitted that the Union of India, the States, Universities had statutory rights to fix the fees and to regulate admission of students in order to ensure (a) that there was no profiteering; (b) capitation fees were not charged; (c) admissions were based on principles of merit and (d) to ensure that persons from the backward classes and poorer sections of society also had an opportunity to receive education, particularly, professional education. It was submitted that if these educational institutions were permitted to have their own tests for admission, the students would be put to undue harassment and hardship inasmuch as they would have to pay for application forms in various colleges and appear for tests in various colleges. It was pointed out that even if each institution charged Rs. 500 to Rs. 1000 a student would ultimately have to pay a large amount by way of application fees as, in the absence of a common entrance test and
admission procedure the students would have to apply to a number of colleges. It is submitted that the students would also have to spend for transport from and to each college and may find it difficult, if not impossible to travel, from one college to another, to appear in all the tests. It was submitted that unless it was ensured that colleges admit students strictly on the basis of merit at a common entrance test, it would be impossible to ensure that capitation fees were not charged and that there was no profiteering. It was pointed out that some colleges do not even issue admission forms unless and until the student agrees to pay a hefty sum. It was submitted that the majority Judgment clarified that Article 30 had been enacted not for the purposes of giving any special right or privileges to the minority educational institutions, but to ensure that the minorities had equal rights with the majority. It was submitted that minority educational institutions cannot claim any higher or better rights than those enjoyed by the non-minority educational institutions.
Both sides relied upon various passages from the majority judgment in support of
the respective submissions. These passages are reproduced hereinafter. In view of the rival submissions the following questions arise for consideration: 1) whether the educational institutions are entitled to fix their own fee structure; 2) whether minority and non minority educational institutions stand on the same footing and have the same rights;3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not to what extent; and 4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission;
Question No. 1.So far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are
t dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. As, at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in TMA PAI's case the respective State Governments concerned authority shall set up, in each State, a committee headed by a retired High Court judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short 'MCI') or the All India Council for Technical Education (in short 'AICTE'), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that total number of members of the Committee shall not exceed 5. Each educational Institute must place before this Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee.. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations the same
would amount to charging of capitation fee. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, where under if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalized and also face the prospect of losing its recognition/affiliation. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalized bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.
Question No. 2
The next question for consideration is whether minority and non minority educational institutions stand on the same footing and have the same rights under the Judgment. In support of the contention that the minority and non minority educational institutions had the same rights reliance was placed upon paragraphs 138 and 139 of the Judgment. These read as follows:"138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities; thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage
when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xaviers College case, at page 192, that "the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality." In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavored or, for that matter receive more favorable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do." "139 Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the condition of recognition, which cannot be
such as to whittle down the right under Article 30." Undoubtedly at first blush it does appear that these paragraphs equate both types of educational institutions. However on a careful reading of these paragraphs it is evident that the essence of what has been laid down is that the minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their
choice. These paragraphs merely provide that laws, rules and regulations cannot be such that they favour majority institutions over minority institutions. We do not read these paragraphs to mean that non minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot and do not stand on similar footing as minority educational institutions. Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages. Just to take a few examples, the Government may decide to nationalize education. In that case it may be enacted that private educational institutions will not be permitted. Non minority educational institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly even though the government may have a right to take over management of a non minority educational institution the management of a minority educational institution cannot be taken over because of the protection given under Article 30. Of course wemust not be understood to mean that even in national interest a minority institute cannot be closed down. Further minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non minority educational institutions are concerned.
Questions Nos. 3 and 4: Questions 3 and 4 pertain to private unaided professional colleges. Thus all observations in answer to questions 3 and 4 are therefore confined to such educational institutions.
In order to answer the third and fourth questions it is necessary to see the manner in which the majority judgment is framed and to consider certain paragraphs of the judgment. The majority judgment considered various aspects under different heads. The 3rd head is "In case of private institutions, can there be government regulations and, if so, to what extent?". This is further divided into four subheadings viz. "Private unaided non minority educational institutions"; "Private unaided professional colleges"; "Private aided professional institutions (non minority)" and "Other aided institutions". The paragraph which has been strongly relied upon is paragraph 68 which is under the sub-heading "Private unaided professional colleges". The said paragraph reads as under:"68. It would be unfair to apply the same rules and regulations egulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of
merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post graduation non-professional colleges or institutes." Reliance was also placed on paragraphs 58 and 59 which read as follows:"58. For admission into any professional institution, merit must play an important role. While it may be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a
disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.""59. Merit is usually determined for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." Based on the above paragraphs it had been submitted, on behalf of the Union of India, various State Governments and students that the majority Judgment makes a clear
distinction between professional educational institutions (both minority submission was that in professional institutions merit had to play an important role and that excellence in professional education required that for purposes of admission merit is determined by Government agencies. It is submitted that paragraph 68 provides that in unaided professional colleges only a "certain" percentage of seats can be reserved for admission by the management. It is submitted that the said paragraph provides that it is permissible for the University or the Government to require a private unaided professional institute to provide for a merit based selection. It was submitted that paragraph 68, read with paragraph 59, lays down that in unaided professional colleges merit is to be determined by a common entrance test conducted by Government agencies. Paragraph 68 of the majority judgment in Pai's case can be split into seven parts :-
Firstly, it deals with the unaided minority or non-minority professional colleges.
Secondly, it will be unfair to apply the rule and regulations framed by the State Government as regards the government aided professional colleges to the unaided professional colleges.
Thirdly, the unaided professional institutions are entitled to autonomy in their administration; while at the same time they should not forego or discard the principles of merit.
Fourthly, it is permissible for the university or the Government at the time of granting recognition to require an unaided institution to provide for merit based admission while at the same time giving the management sufficient discretion in admitting students.

Fifthly, for unaided non-minority professional colleges certain percentage of seats can be reserved for admission by the management out of those students who have passed the common test held by itself or by the State/University and for applying to the college/university for admission, while the rest of the seat may be filled up on the basis of counseling by the State agency.
Sixthly, the provisions for poorer and backward sections of the society in unaided professional colleges are also to be provided for.
Seventhly, the prescription for percentage of seats in unaided professional colleges has to be done by the government according to the local needs. A different percentage of seats for admission can be fixed for minority unaided and non-minority unaided professional colleges.
Undoubtedly the majority judgment makes a distinction between private unaided professional colleges and other educational institutions i.e. schools and undergraduate colleges. The subheading "Private unaided professional colleges" includes both minority as well as non minority professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the Judgment
recognises that it is in national interest to have good and efficient professionals. The Judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criteria for admission. However a proper reading, of paragraph 68, indicates that a further distinction has been made between minority and non minority professional colleges. It is provided that in cases of non minority professional colleges "a certain percentage of seats" can be reserved for admission by the management. The rest have to be filled up on bases of counseling by State agencies. The prescription of percentage has to be done by the Government according to local needs. Keeping this in mind provisions have to be made for the poorer and backward sections of the society. It must be remembered that, so far as medical colleges are concerned, an essentiality certificate has to be obtained before the college can be set up. It cannot be denied that whilst issuing the essentiality certificate the respective State Governments take into consideration the local needs. These aspects have been highlighted in a recent decision of this Court in State of Maharashtra vs. Medical Association and others [2002 (1) SCC 589]. Whilst granting the essentiality certificate the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. A reading of paragraphs 59 and 68 shows that in non minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance tests conducted by government agencies. The manner in which the percentage given to the management can be filled in is set out hereinafter. Paragraph 68 provides that a different percentage can be prescribed for unaided minority institutions. That the same yardstick cannot be applied to both minority and non minority professional colleges is also clear from the fact that paragraph 68 also falls under main heading "In case of private institutions, can there be government regulations and, if so, to what extent?". Paragraph 47, which is one of the first paragraph under this heading, inter-alia provides as follows:"It is appropriate to first deal with the case of private unaided institutions and private aided institutions that are not administer the by linguistic or religious minorities. Regulations that can be framed relating to minority institutions will be considered while examining the merit an effect of Article 30 of the Constitution.” Whilst discussing Article 30 under heading "To what extent the rights of aided private minority institutions to administer can be regulated" reliance has been placed, in the majority Judgment, on previous judgments in the cases of Re Kerala Education Bill (AIR 1958 Supreme Court page 956); Rev Sidhajbhai V State of Bombay (1963 (3) SCR page 837); Rev Father Proost V State of Bihar (AIR 1969 Supreme Court page 465); State of Kerala V Very Rev Mother Provincial (1970 2 SCC page 417); Ahmedabad St Xaviers
College Society V State of Gujarat (1974 (1) SCC page 717). All these cases have recognized and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/language. Thus an unaided minority professional college cannot be in a worse position than an aided minority professional college. It is for this reason that paragraph 68 provides that a different percentage can be
fixed for unaided minority professional colleges. The expression "different percentage for minority professional institutions" carries different meaning than the expression "certain percentage for unaided professional colleges." In fixing percentage for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the State. The need of that community, in the State, would be paramount vis-a- vis the local needs.
It must be clarified that a minority professional college can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language the inter-se merit of those students cannot be ignored. In other words whilst selecting/admitting students of their own community/language they cannot ignore the inter-se merit amongst students of their community/language. Admission, even of members of their community/language, must strictly be on the basis of merit except that in case of their own students it has to be merit inter-se those students only. Further if the seats cannot be filled up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government agencies. That brings us the question as to how the management of both minority and non minority professional colleges can admit students in the quota allotted to them. Undoubtedly the majority Judgment has kept in mind the sad reality that there are a large number of professional colleges which indulge in profiteering and/or charging of capitation fees. It is for this reason that the majority Judgment provides that in professional colleges admission must be on the basis of merit. As has been rightly submitted it is impossible to control profiteering/charging of capitation fees unless it is ensured that admission is on the basis of merit. Also as has been rightly pointed out if a student is required to appear at more than one entrance test it would lead to great hardship. The application fees charged by each institute, even though they may be only Rs. 500 to Rs. 1000 for each institute, would impose a heavy burden on the students who will necessarily have to apply to a number of colleges. Further as has been rightly pointed out, students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each College. If a student has to go for test to each institute it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit based selection. Paragraph 68 provides
that admission by the management can be by a common entrance test held by "itself or by State/University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and
the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. election of students must then be strictly on basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on basis of inter-se merit amongst those students. The list of students admitted, along with the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the Committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted de-hors merit penalty can be
imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn. At this juncture it is brought to our notice that several institutions, have since long, had their own admission procedure and that even though they have been admitting only students of their own community no finger has ever been raised against them and no complaints have been made regarding fairness or transparency of the admission procedure adopted by them. These institutions submit that they have special features and that they stand on a different footing from other minority non-aided professional institutions. It is submitted that their cases are not based only on the right flowing from
Article 30(1) but in addition they have some special features which requires that they be permitted to admit in the manner they have been doing for all these years. A reference is made to few such institutions i.e. Christian Medical College, Vellore, St. Johns Hospital, Islamic Academy of Education etc . The claim of these institutions was disputed. However we do not think it necessary to go into those questions. We leave it open to institutions which have been established and who have had their own admission procedure for, at least, the last 25 years to apply to the Committee set out hereinafter.
Lastly, it must be mentioned that it was urged by learned counsel for the appellant that paragraph 68 of the majority judgment only permits University/State to provide for merit based selection at the time of granting recognition/affiliation. It was also submitted that one recognition/affiliation is granted to unaided professional colleges, such a stipulation cannot be provided subsequently. We are unable to accept this submission. Such a provision can be made at the time of granting recognition/affiliation as well as subsequently after the grant of such recognition/affiliation.
We now direct that the respective State Government do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the
institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice Chancellors of University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper/s, to know the names of the paper setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college/s shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove. Our direction for setting up two sets of Committees in the States has been passed under Article 142 of the Constitution of India which shall remain in force till appropriate legislation is enacted by the Parliament. The expenses incurred on the setting up of such
Committees shall be borne by each State. The infrastructural needs and provision for allowance and remuneration of the Chairman and other members of the Committee shall also be borne by the respective State Government. So far as the year 2003-2004 is concerned, time is running out as the outer time limit for admission is fast approaching or has gone. To meet the urgent situation without going into the issues involved in the various petitions/applications, we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the time constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases.
With these clarifications we now direct that all the matters be placed before the regular benches for disposal on merits. All Interlocutory applications as regard interim matters stand disposed of.



SPAM- NEED FOR AN EFFECTIVE LEGISLATION:-The term spam was first used in the early 1990s to describe e-mail messages, not related to the topic of discussion and postings that swamped newsgroups. Spam is frequently described as e-mail that is sent in bulk; flooding the Internet with copies of the same message and forcing these unwanted messages on Internet users who might otherwise have chosen not to receive them.
Most spam is commercial advertising and in some ways is analogous to “junk mail” people receive through the postal system. One of the reasons that spam has achieved such infamous notoriety is that it has often been used for advertising “dubious products, get-rich-quick schemes and other such fraudulent purposes”. Spammers target both groups, by mass mailing the spam simultaneously to multiple groups and individual users with direct mail messages.
Anti-spammers contend that spam is much more than just a nuisance or inconvenience to the message recipients in that it places physical as well as financial burdens on the Internet system and Internet service providers. This is because spam costs very little for the spammer to send while most of the costs, such as transmission costs and measured telephone service, are paid for by the carriers and recipients of the messages. It is estimated that in 2004, spam cost US businesses $ 21 Billion in lost productivity. After a small decrease, spam is again on the rise. Although most of the developed countries now have an anti-spam legislation, these laws are incapable of providing a very effective remedy. Two reasons could be cited for the same (i) spam involves a variety of legal issues requiring political will power on the part of state legislatures to be addressed (ii) there is a constant change in the nature of spam activity which requires the legislation to adapt to these changes at the same pace.
Should all commercial non-solicited e-mail advertising be condemned and restricted because the authorities deem it to be spam? Will it be considered spam when a publisher does an unsolicited e-mail advertising of its new book, entitled 101 Ways To Achieve Physical Fitness After Your Heart Attack, to the e-mail addresses of people who have recently suffered a heart attack?. This is just one aspect of spam which requires deliberation, some more of them have been discussed here.
IS SPAM A PART OF FREEDOM OF SPEECH?Freedom of speech guarantees you the right to say what you want, within reason; it does not guarantee you a platform to make yourself heard in. Your daily newspaper will take any commercial advertisement, subject to two constraints: (a) it must fit within their advertising guidelines, and (b) the advertiser must pay for the costs of distribution. Spam fails on both of these counts. There are many commonsense restrictions on the freedom of speech, as a person from legal field would call them ?Reasonable Restrictions?. For instance, abusive phone calls are considered harassment and no one would try to argue that restrictions on them would impinge on freedom of speech. As another example, you can not be forced to pay postage on paper junk mail sent to you. Every medium is different; common sense dictates that different rules apply to handing out free leaflets in the park and calling people in their homes. It is time to enforce some common sense on the Internet.
IS SPAM LEGAL OR IS IT ?BAD??There are many reasons why anti-spammers believe that spam mailings are “bad”. These reasons include the following:
Spam provides a “free ride” to the spammer in that the spammer’s costs are relatively small as compared to the costs to the Internet system and to the recipient.
The burden and cost are placed on the recipient resulting from the increasing volume of spam messages that are received on a daily basis. Some have even conjectured that if spam volume continues to increase that it will swamp our mailboxes and make it more difficult for the recipients to identify their “real” mail.
Spammers are dishonest in that it has been seen that the spam messages they send out only advertise “stuff that is worthless, deceptive, and partly or entirely fraudulent”. Furthermore, the spam message usually states that the recipients can remove their name on request, however, the likelihood of doing this is not very high, since the spammer frequently places a false return address on the message so that they do not incur any cost of receiving responses.
Spammers use without payment or misuse resources that do not belong to them. This occurs when the spam is sent through intermediate systems in order to avoid the blocks that many systems have placed against mail coming directly from a spammers’ system. When this occurs the intermediate systems’ networks and disks become burdened with unwanted spam that makes use of resources that the spammer has not paid for. Furthermore, it often subjects the intermediate system to complaints from recipients of the spam who have erroneously concluded that because the intermediate system delivered the spam that they did so because of a business relationship with the spammer. Another technique that has been used by spammers is that of obtaining trial accounts at Internet service providers. The spammer then disregards the account’s usage terms by sending spam before abandoning the account. This then forces the provider to expend time and effort to cleanup the situation and/or monitor more carefully their trial accounts.
Particular types of spam, such as pornography or anti-Semitism, is illegal in India and in most foreign countries too.
WOULD BLOCKING SPAM AMOUNT TO CENSORSHIP?Censorship is blocking information based on its content. Spam-blocking will keep the content in its proper place. The local public library has a bulletin board where people can post for-sale ads and business cards; they would be rightfully upset at someone who inserted an advertising flyer inside every book on the shelves, which is the equivalent of posting a notice to every group on the Internet.It would be censorship to try to restrict advertising from all parts of the Internet. However, asking someone to pay the fair costs of their actions is not censorship, this would be simple economics.Any or all of these reasons lend credence to the belief that “spam is bad”, but the question is – are these reasons sufficient for prohibiting all unsolicited commercial or non-commercial advertising?
Even if one assumes that spam is bad, there are many countervailing issues that must be analyzed with respect to any legislation that prohibits or restricts spam. These countervailing issues include the following:
Civil liberties advocates say there are constitutional issues to consider that could trickle down to other types of speech over the Internet. Furthermore, different countries have different free speech laws. What may be legal in one country may be entirely unlawful elsewhere. In India, there are strong and explicit freedom of speech protections, the Supreme Court has held commercial advertising to be an inalienable part of freedom of speech which is enshrined in Article 19 of the Constitution. This is the reason why some legislators and advocates argue that the anti-spam legislation has to be very specific in that the proposed legislation has to truly limit itself to only “commercial e-mail”.
Consumer protection laws already exist to protect the consumer from fraudulent and deceptive advertising. Legislation prohibiting pornography already exists although some modification to such legislation may be required so Internet users have some protection from receiving pornographic materials via spam.
Protecting users from spam makes the Internet more conducive to commerce and not less. Using e-mail for business is much easier if mailboxes aren’t clogged with extraneous material. People are much likelier to take Internet commerce seriously if they do not get the impression of the Internet as a cesspool of scams, questionable products, and pyramid schemes.In the final analysis the issue becomes one of restriction and control of spam versus the freedom of speech. Throughout our country’s history of independence freedom of speech has been controlled when it inflicts harm upon others. During such instances legislation has usually been narrowly tailored to provide protection without unduly interfering with the right to express oneself. The Internet is our newest “mail delivery system” and now requires answers to such older problems including fraudulent and deceptive advertising, advertising for illegal products and services and receipt of unwanted advertising. Internet commerce has to be pushed, protected and supported if India has to compete with ?Big? economies of developed countries in near future. An anti-spam legislation is the need of the hour but the new legislation must be drafted very narrowly and unambiguously so that it balances all our rights and interests. This new legislation may be made most effective if it is drafted by taking cue from legislations of developed countries and identifying the fronts on which these legislations have failed to deliver.
Bibologrphy By:-- Karnika Seth – Founder, CCC, Seth Associates, Cyber lawyer practicing in the Supreme Court of India and Delhi High Court

Note of Cr. P. C for BA LLB -5 years course 6th sem.

The Code of Criminal Procedure,1973:- The Provision of the Cr,P C provide for an early investigation and for a speedy and fair trial’s. P C 1973 was enacted to consolidate and amend the law relating to criminal procedure. All matters included in Cr. P C at the time of commencement of the constitution finds places in term of the list -3. Evidently therefore the state legislature has the requite power to make law amending the Cr. P C -1973 subject to the other provisions of Const. (AIR 1988 Pat-309).
Where a statute releating to Cr. P C is altered or repeated any proceeding commenced after the amendment or repeal would be governed by new procedure 1970 Cr. L. J 421(Goa).
In this code , unless the context otherwise requires:-
a) Bailable Offence:- means an offnce which is shown as bailable in the Ist schedule or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence.
New Cr. P C -1973:-Changes made in new Cr. P C 1973 can be senile under from heads and these changes were made for ensure fair trail. In court to void needless delay to offered . Defect and fact related to power sections of society and many other miscellaneous changes:-
So the changes were made in following heads,
i) To ensure fair trails
ii) To avoid needless clearly in proceedings
iii) To afford relief and facilities to the pros
iv) Miscellaneous sections.
To Ensure Fair Trails.
What is Trail?:-Trail means U/S 147 and 153-A read with S.149 of IPC which pertain to unlawful assembly and inciting communal hatered among others. Judiciary made, separate for enealratecture sating criminal court all over India.
Judge:- The u/s Cr P C can be exercise by him only when presides over the court having raisin a case. Finally he becomes fumousofico when he disposed of the case finally a judge is empowered by law to give in judicial proceedings, civil or criminal, a legal/ judgment in a person who is officially designated.
Magistrate:- i. As soon as a person is appointee as Magistrate . he is vested with power irrespective of the fact whether he holds the court or not :
i) Maintain Law and order
ii) Assists Investigation
iii) The committing magisterial
iv) A court but not a Judge according to III(d) of S… of IPC.
Cognizable Offence:- means a offence for which a Police Officer may arrest without warrant.
Non- cognizable Offence:- means a offence for which a police officer may arrest with warrant.
Bails:- means releasing an arrested person from legal custody, until his trail is completed.
Investigation:- According to S.2(h):- all the proceeding under this code for collection of evidence conducted by police officer or by any person(Other than magistrate) who is authorized by a magistrate in this behalf. Investigation proceeds Inquiry. S-159 empower a magistrate , on receipt of a police report U/S-157 to hold a preliminary Inquiry in order to ascertain whether an offence has been committed and , if so, whether any persons should be put upon their trail, Thus Inquiry proceeds trails.
Inquiry and Trail:-
An Inquiry does not necessary means an Inquiry into an offence, it may relate to matters which are not offence. For instance an Inquiry may be madder in disputes as to Immovable Property with regards to possession public nuisance or for the maintained of wives and children.
Trails is always in the case of an offence. An Inquiry in respect of an offence never ends in conviction or acquittal, at the most… may result in discharge or committed of the case to session at on the other hand, when tails is over, it must invariably end in acquittal or conviction of the accused.
Meaning of Conviction:- under sub section(i) (2) and (3) of S.8 is disqualification starts from the date of conviction. As held by SC in “Rama Narang”case 1995(2) SCC513 unlike under the repeated code of Cr. P C 1888, the new ode of 1973 provides for two stages in trials.
Ist:- Recording a finding of guilt and second questionery the accused on the question of sentence and delivering the Judgment. Imposing sentence , the recording of the finding is not an order or Judgment and is not appeasable. The appeal provision in the Cr., P C 1973(here after referred to as code) also make this clear. A Judgment where a person is found guilty and sentenced is called ‘conviction” and a Judgment finding not guilty is called” Acquittal”.
Constitution of Criminal Courts and others
Classes of Criminal Courts:- Besides the High courts and its courts constituted under any law, other than this code, there shall be every state, the following classes of Cr. Courts namely:-
a) Court of Sessions
b) Judicial Magistrate of Ist class and, in any metropolitan area, Metropolien Magistrate]
c) Judicial Magistrate
d) Executive Magistrate
Territorial Divisions:- i. Every state shall be a sessions divisions or shall consists of session divisions, and every session divisions shall, for the purpose of this code, be a distt. Or consists of districts:
Provides that every metropolitan area shall, for said purposes, be a separate sessions division and districts.
That state govt. may, after constitution with high court after the limits or the number of such divisions and districts.
the state govt. may, after consultation with high court divide any distt. Into sub division and may aftr the limits or the number of such sub-divisions.
The sessions divisions, distt. And sub-divisions existing in a state at the commencement of this code, shall be deemed to have both formed under this section.

Consumer Protection Act

Consumer Protection Act :- The issues relating to consumer welfare affects the entire 1986 million people since everyone is a consumer in one way or the other. Ensuring consumer welfare is the responsibility of the government. Accepting this, policies have been framed and the Consumer Protection Act, 1986, was introduced. A separate Department of Consumer Affairs was also created in the Central and State Governments to exclusively focus on ensuring the rights of consumers as enshrined in the Act. This Act has been regarded as the most progressive, comprehensive and unique piece of legislation. In the last international conference on consumer protection held in Malaysia in 1997, the Indian Consumer Protection Act was described as one "which has set in motion a revolution in the fields of consumer rights, the parallel of which has not been seen anywhere else in the world."The special feature of this Act is to provide speedy and inexpensive redressal to the grievance of the consumer and provide him relief of a specific nature and award compensation wherever appropriate. The aim of the Act is also to ensure the rights of the consumer, viz. the right of choice, safety, information, redressal, public hearing and consumer education.The Act defines the consumer as one who purchases goods and services for his/her use. The user of such goods and service with the permission of the buyer is also a consumer. However, a person is not a consumer if he purchases goods and services for resale purpose.The most important feature of the Act is the provision for setting up a three-tier quasi-judicial machinery popularly known as "consumer courts" at national, state and district levels. The apex court, National Commission functions in Delhi. Every State Government has a State Commission. The third tier is in each district and is called district forum. As on January 1999, there are 543 district forum. All these courts have handled nearly 13 lakh cases of which about 10 lakhs cases have been disposed of. The disposal of 77 per cent of the cases is not a mean achievement. However, it should be noted that only 27 per cent of the total cases have been disposed of within the prescribed period of 90 days or 150 days (where testing is required). This fact really causes concern for the Government and the consumers in general. The National Commission has identified the reasons for the slow disposal and have come out with suggestions for amending the Act with a view to improving the disposal rate within the time limit prescribed in the Act. The Government has been contemplating a number of amendments to the Act and these amendments will be brought out in the next session of Parliament.The consumer movement in India is as old as trade and commerce. In Kautilya's Arthashastra, there are references to the concept of consumer protection against exploitation by the trade and industry, short weighment and measures, adulteration and punishment for these offences. However, there was no organised and systematic movement actually safeguarding the interests of the consumers. Prior to independence, the main laws under which the consumer interests were considered were the Indian Penal Code, Agricultural Production, Grading and Marketing Act, 1937, Drugs and Cosmetics Act, 1940. Even though different parts of India exhibited different levels of awareness, in general, the level of awareness was pretty low.An average Indian consumer is noted for his patience and tolerance. Perhaps because of these two traditional traits and due to the influence of the Mahabharata, the Ramayana and the Bhagavad Gita, he considers the receipt of defective goods and services as an act of fate or unfavourable planetary position in his horoscope.When a new television or refrigerator purchased by him turns out to be defective from day one, he takes it reticently, blaming it on his fate or as the consequence of the wrongs committed by him in his previous birth. Very often he is exploited, put to avoidable inconveniences and suffers financial loss. It is rather paradoxical that the customer is advertised as the "king" by the seller and service provider, but in actual practice treated as a slave or servant.Goods are purchased by him along with the label "Items once sold by us will never be received back under any circumstances whatsoever."This unethical, illegal and unilateral declaration has to be viewed in the light of the practice in developed countries where the seller declares, "In case you are not fully satisfied with our product, you can bring the same to us within a month for either replacement or return of your money." This will clearly indicate the level of consumer consciousness. However, things are changing - slowly but steadily - and the momentum has increased considerably since the establishment of consumer courts and due to the efforts of a number of consumer organisations and the media. The next millennium will witness a high degree of consumer awareness and the concepts of "comparative costs", "consumer preference/ resistance/ abstinence" and "consumer choice" will become vital aspects of the economy.An analysis of the data from the consumer courts in different States shows that there is a direct relationship between literacy and consumer awareness. Statistics relating to Kerala and Bihar will justify this. The question to be considered is what can the Government do to improve the position?The Government wears three hats to deal with cases of three different categories. The first one is dealing with the ministries and departments of government. Recently, the Standing Committee of Parliament on Health said Government hospitals should be brought under the purview of the Consumer Court. To this, we had pointed out the latest ruling of the Supreme Court which lays down that the Consumer Protection Act will apply only when the consumer pays for the goods and services and on this count the government hospital, where the services are not charged on the consumer, will not come under the Act. For such cases the government has developed the concept of "Citizen's Charter". All government departments dealing with the public are to publish a "Citizen's Charter" clearly indicating the services offered and the procedure to be followed. All the information has to be made available in a single window. This programme is in its incipient stage and has a long way to go to achieve the desired levels of consumer satisfaction. The general reaction of the consumer to this is - what happens if what is stated in the Citizen Charter is not adhered to? Unless and until this is clarified, the responsibility fixed and those held accountable are dealt with, the purpose will not be achieved.The second area is where the services/ utilities are provided and charged either by the government department or the agencies under its control. At present, a number of regulatory authorities have been constituted and the country is entering a new regime of "regulatory economies" in the services sector. It is heartening to note that the regulatory bodies like the Telecom Regulatory Authority of India (TRAI) have given importance to the interests of consumers and this has been publicly declared as one of the main objectives. In the field of telecom, power, transport and water supply, the consumers today are going through a number of problems not knowing how to get their grievances redressed. The number of cases relating to these sectors are increasing in the consumer courts. It must be possible for the government to take steps to see that the areas of grievances are identified and remedial steps taken through proper systematisation of procedure and working style.There are a number of areas where the procedure has to be made simple and consumer-friendly. For example, when it was felt that the quality of bottled water purchased by the consumer has to be ensured by fixing standards, it came out that even though it is necessary and desirable, under the existing laws it cannot be done. The Ministry of Law pointed out and rightly so, that water is not "food" as per the provisions in the Food Adulteration Act. The process of getting statutory notification in the interest of the consumer in this case, where all concerned are agreeable, is likely to take 12 to 18 months. In such a situation the only answer is to prevail upon the manufacturers to go for voluntary ISI (Indian Standards Institution) certification. This method is working in the case of bottled water, thanks to the cooperation of producers and the clear preference expressed by the active consumer groups.Similarly in the area of "investor protection" in spite of several steps taken by the regulatory authorities such as the Reserve Bank of India and the Securities and Exchange Board of India, the case of exploitation of consumers is increasing. This is an area of grave concern and requires concerted action by the regulators, government and the consumer organizations. We must find a way out to save the consumers from the unscrupulous functioning of Non-banking finance companies.The third category is the protection of consumers from the private sector dealing with goods and services. It is not to be construed that the entire business sector is keen on exploiting the consumers. These are established business firms which really care for consumer satisfaction, their own reputation and goodwill. Voluntary bodies like the Fair Business Practices Forum are functioning effectively and are quick in removing the grievances of the consumers. These can go a long way in reducing the number of cases in the consumer courts.If the Government is to take a pro-active role in increasing consumer awareness, encourage consumer education, training and research and administer the infrastructural need of the consumer courts - then it should have enough funds. It is not easy to get adequate budget allocations for obvious reasons. The best way appears to be to work out methods by which the Central Consumer Welfare Fund is augmented and a similar fund is set up at State level also. It is gratifying to note that action has been initiated in this direction and there is every reason to hope that the future will be better.The consumer has to be aware of his rights and play a key role. The success of "consumerism" is a strong function of consumer awareness and the assistance the movement gets from the government. The consumer movement got a boost and moral support from the late U.S. President John F. Kennedy in the historic declaration in Congress on March 15, 1962, declaring four basic consumer rights (choice, information, safety and the right to be heard). Subsequently, March 15 every year is celebrated as World Consumer Rights Day. However this annual ritual observation does not appear to have produced the desired results. A sub-continent like India with regional imbalances and diversity of languages, requires not one but several Ralph Nadars. A recent survey has revealed that a number of consumers in the urban as well as rural areas are not very much aware of the consumer movement and the rights of the consumers. It is in this context that it is considered relevant to quote the objectives adopted by the General Assembly of United Nations in 1985.The U.N. guidelines for consumer protection are meant to achieve the following objectives:
i.To assist countries in achieving or maintaining adequate protection for their population as consumers,
ii.To facilitate production and distribution patterns responsive to the needs and desires of consumers,
iii.To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers,
iv.To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers,
v.To facilitate the development of independent consumer groups,
vi.To further international cooperation in the field of consumer protection,
vii.To encourage the development of market conditions which provide consumers with greater choice at lower prices.
It is interesting to note that in spite of U.N. recognition, encouragement from the developed countries and the pro-active role played by the Government, the consumer in India still does not get his due. It is time that he wakes up and realizes his rights. Even the great Hanuman required someone older and wiser to remind him of his potential strength. It will be useful if voluntary consumer organizations take up this role and make way for the realization of the objectives of the U.N. guidelines and the Consumer Protection Act.In the next millennium, every consumer in his own interest has to realize his role and importance in the right perspective. Each citizen in a democracy derives his power at the time of elections and exercises it through the ballot. In a competitive economic environment the consumer has to exercise his choice either in favour of or against the goods and services. His choice is going to be vital and final. He should realize his importance and prepare himself to exercise his rights with responsibility. It is very often stated "Customer is sovereign and consumer is the King." If that is really so, why do we have the Consumer Protection Act? Why is there a need for protecting the King? Should it not be rightly called "Consumer Sovereignty Act"? It is for the consumers to decide. After all the dictum in democracy is, the citizens get a government they deserve. Similarly the consumers in society get a position in the market depending upon what they do or do not do. It is agreed on all hands that "consumer empowerment" in India has a long way to go. This is the right time to act. Let us prepare for the next millennium and usher in a new era of "Consumerism". When we cross the winter, spring cannot be far behind.

Legal Notes of LL.B-3 year course.

LLB(Hons)- 3 years course- Ist Semester Professional Ethics & Professional Accounting System

Nature of Legal Profession:- The legal profession plays on important role in the administration of Justice. The lawyer assists the court in arriving at a correct judgment. The lawyer collects legal material relating to the case and thereby helps the court or judge to arrive at a correct judgment. Without the assistance of the lawyer it would be a superhuman task for the judge to arrive at a satisfactory judgment.
Actually the law is very complicated. The language of Acts and regulations is often found to be very complicated and confusing and not easy to the understood. The citizen of the country requires the advice of the advocate to understand the exact meaning of the provisions of the Act and regulations.
The lawyers are not puppets compelled to obey the dictate of their clients, where matters of good faith and honorable conduct are concerned. They are responsible to the court for the fair and honest conduct of a case. They are agent, not of man who pays them but are acting in the administration of justice. It has rightly been observed that a sound system of the administration of justice should possess three ingredients, namely a well-planned body of laws based on wise concepts of social justice, a judicial hierarchy comprised of the bench and bar, learned in the law and inspired by high principles of professional conduct and insistence of suitable generation of ensure fair trial.
The layer play important role in the maintenance of peace and order in the society. The peace and order, no doubt are necessary of the very existence of the society. The advocates share with the judge the responsibility for maintaining order in the community. Thus, the legal profession is a profession of great honor. It has been created not for private gain but for public good. It is not a money-making occupation but a branch of administration of justice. The supreme court has rightly observed that the legal profession is a partner with the judiciary in the administration of Justice.


LEGAL PROFESSION IN PRE-BRITISH INDIA:- It is now well settled as to whether the legal profession was in existence in the pre-British India. However it is clear that in pre-British India, it was not as organized as today. Actually, the legal profession as it exists today was created and developed during the British period.
During the Hindu period, the courts derived their authority from the king who was considered the fountain head of justice. The king’s court was superior to all other courts. The king was advised by his councilor in hearing and deciding the case but he was not bounding by their advice. The institution of lawyer as it exists today was not in existence during this period. The plaintiff was required to present plaint before the defendant to submit his reply thereafter the court was required to investigate the matter and deliver its judgment. The courts delivered judgment on the basis of evidence gathered from various sources, eg. Witnesses, documents etc. ordeal was also recognized as means of proof.
According to R P Kangle there is no mention in the Kautilya Arthasasstr about the existence of legal profession and therefore most probably such a class did not exists. However, justice Mukenerjee has expressed a contrary opinion. According to him, the legal profession was in existence during the Hindu period.
During the Muslim period the litigants were represented by a body of persons known as vakils. The vakils was paid a percentage of the amount in the suit. The court of the native administration concerned determined who should be allowed to appear as vakil in a zaila court. Even during this period, the legal profession was not organized. The vakils acted more as agents for principals than as lawyer.
LEGAL PROFESSION DURING BRITISH PERIOD:- The legal profession as it exists today was created and developed during the British period. However, it is notable that in early days of the British period the legal profession was not well organized. Actually the East-India Company was not interested in organisng the legal profession. There was no uniform judicial system in the settlements of the East- India co. In 1726 by a charter known as charter of 1726 in each presidency town a Mayar’s court was established and thus, by the charter a uniform judicial system was introduced in all the three presidency town- Bombay, Calcutta and Madras. The Mayor’s court established under the charter of 1726 was the Royal courts and they derived their authority from the British crown and not from East India co. The Mayer’s courts were to fellow well-defined procedure based on the English law and procedure.
The Regulating Act, 1773 and the charter of 1774 contribute much to the development on legal profession in India. The regulating Act, 1773 empowered the British crown to established a supreme court at Calcutta by issuing a charter. The exercise of this power the British crown issued a charter in 1774 establishing the supreme court of judicature at Calcutta. The charter of 1774 superseded the provisions of the charter of the Mayer court at Calcutta. In 1801 the Supreme Court was established at madras and in 1823 the supreme court was established t Bombay by the British crown by issuing charters.
Clause 11 of the charter 1774 empowered the supreme court to approve and enroll advocates and attorney at law. The supreme court had power to remove any advocate or attorney on reasonable cause.
The Indian High court Act,1861, occupies an important place in the development of judicial administration in India. It empowered the British crown to established one High Court in each presidency Town.
ETHICS OF LEGAL PROFESSION:-Need of Ethics of legal Profession: Rules are necessary even for the best self-interest is a misleading factor when you have to decide on the spur of the movement what is best to be done in the circumstances. The fact that these are definite rules and that much discretion is given to the individual will itself be an additional source of temptation. Never adopt the standard of business profession. But after all whatever light we may seek to get from rules of conduct which have been in prescribed in England or other countries, a great deal will have to be left to individual a conscience.
Nothing but a determination err always on the safe side in case of doubt well enable us to do our duty consciously. In this country it must be confessed that very often petitions are guilty of questionable conduct owing to ignorance. They do not really know what is proper to be done in any particular case and as there are no rules to guide there, no settled traditions to serve as an inspiration, each one is a law unto himself. It has further observed that it is not desirable that the lawyer’s guidance should be altogether under the judicial control. It would be impossible for judge to control the bar satisfactorily. Too strict a discipline on the part of the courts is likely to unfair the independence and self-reliance of the member of the abr. It is all the mere necessary therefore, that there should be disciplinary bodies and that the profession itself should try and frame rules for its guidance.
Legal profession is not business but a profession. It has been created by the state for the public good. Consequence, the essence of the profession lies in these things:-
i) Organization of its members for the performance of their function;
ii) Maintenance of certain standards, intellectual and ethical, for the dignity of their profession; and
iii) Subordination of pecuniary gains of efficient services.
Meaning & Nature:- According to Lord Boom,” a lawyer must know everything about something and something about everything”.
Legal professions is now a noble Profession having high traditional and has been catering to the needs of the society long time. Today lawyer has too many tasks to deal with and achieve in the comp enmities of social, economic, political and scientific matter. The role of lawyer is to be an advocate of his client. The lawyer of today, has to act as social engineer in the best traditions of his understanding of various socialistic process as law is only filtering a system as differentiate between chaffs and the gain.
Professional ethics may be defined as a code of conduct written or unwritten for regulating the behaviors of prelisting lawyer towards the court. Thus, ethics of legal profession means the body of the rules and practice which determine the professional conduct of the members of bar. When a person becomes an advocate his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the special rules of professional ethics of the abr. The main object of the ethics of the legal profession is to maintain the dignity of the legal profession and the friendly relation between the bench and bar.
The Amercian bar Association Committee has well observed the need of the code of the legal ethics. It has observed that the legal profession is necessarily the keystone of the arch of the government. If it is weakened by allowing it to be increasing for subject to the corroding and demoralizing influence of these who are controlled by craft, greed and gain or other influenced unworthy motive, sooner or later the arch must full. The future of the country, thus depends upon the maintenance of the shrine of justice pure and unrolled by the advocate and it cannot be so maintained , unless the conduct and motive of the legal profession are what they object to be. It , therefore, becomes the plain and simple duty of the lawyers to use their influence in every legitimate way to help and make the bar what it ought to be.
Advocate Act, 1961
Introduction:- Prior to 1961, there were different classes of legal practitioner in India, for eg: Advocate, Attorney at law, Solicitor, Pleader and Muktyrat. They were registered and enrolled under various legal practice.
In 1961, the Advocate Act was passed by the Indian Parliament which consolidated and amalgated those various classes of legal practioner into one class known as Advocate and abolish other classes of legal prctinoer by repairing the legal practical Act-1979, the government Act1920 and the Govt. Act 1926. Now there is only one legal practinoer Act in whole India and that is Advocate Act(25 of 1961).
Its governing , administration, enrollment, constitution of one council were enforced in Dec.1961. In present, there is only one category of legal practitioner and at a senior Advocates are entitled to practise lane in Supreme Court in India. According to section 30 of the Advocate Act, 1961 every advocate whose name has entered on the state roll shall be entitled to practice throughout the territories to which this Act intents, i.e. in all the court including the supreme court and before any tribunal or person who is legally authorized to advocate is entitled to practice under any law for the time being in force. In order to understand who can be effect of senior designation:
· The establishment of an all India Bar council and a common role of advocate and the advocate on the common role having a right to practice law in any part of the country of law including supreme court of India.
· Uniform qualification for admission of person to be an advocate.
· The division of the advocate into senior advocate and the other advocates.
· Bar council of India to have general supervision and control over state bar councils.
Advocate Act:- An Act to amend and Consolidated the law relating to legal practitioners and to provide for the constitution of Bar council and All India Bar.
Meaning of Advocate:- Sec. 2 of Advocate Act,1961, defines the meaning of advocate. An advocate enacted any wrong under the provision of this act one punishable. It is the duty of an advocate to assist the court in the due administration of justice. It is the duty of an advocate to assist the court in the administration of justice.
Rights of an Advocate:-Under section 30 of the Advocate Act,1961:- every advocate whose name has been enrolled in the state roll shall be entitled at right to practice throughout the territory of India which act intend.
i. All over India including supreme court,
ii. Before any tribunal or a person legally authorized to the evidence.
iii. Before any authority
Advocate enjoys various rights:
i. Right to hold himself out as a lawyer
ii. Right to advise the clients
iii. Right to represent the client counsel
iv. Right to appear for the client in the court proceedings.
v. Right to change reasonable fees from clients
vi. Right to go in the honorary officers
vii. Right to write the books and the legal literature
viii. Right to take up the teaching works
ix. Right to provide legal aid to the needy and poor people.
x. Right to deliver speech on the legal conference.

Advocacy:- A lawyer should be jack of all traders but master of none except the case which he is pleadings in the court of law. In this regards he should passes the knowledge of humanities, social and technological sciences. For instance, when he is pleading a case relating to building constructions, he must know about the architecture and he able to form an opinion as to the requirements of materials needs for the constructions of a structures , secondly, when he is pleading a case relating to hurt and grievous hurt, he must know something about the medicine and surgery while examining or cross-examining a doctor. Thirdly, in a case relating to disseminations and disaffecting he has to depict himself as a poet, a noblest and an author.
In the words of Lord Boom, “ a lawyer must know everything about something and something about everything’s.”
The lawyer has to know about the human psychology. He has to act as psychologist while he is being instructed by his clients, there it is needed for lawyer that how quickly he can arrive at a conclusion in consonance with the mental trend of his client and satisfy him in relating relations to particular controversy in dispute.
Profound Learning:- The first and the formats essential in legal learning . This learning should be wide and accurate. A lawyer is to find out the particular law from literary which enable a lawyer to frame a right question and to locate the source of the answer.
High Morality:- Morality is no less an important equipment than intellectual learning . a lawyer should continue to enjoy the confidence of his client, court and the bar by his excellence. Money is not needed as much as the maintenance of honestly and character.
Legal Training:- Law schools are the first and the foremost places of legal training where after a specified period of legal training where after a specified one gets a requisite degree which entitles him to be called at the Bar. But this is not the only place for learning besides it there are other places, for instances, seniors chamber, court and actual trial before it. “ In the court house by watching carefully and constantly an actual trial, one trains himself by mistakes of others.”

Thursday, April 29, 2010

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acadmic achivement 2010

Seminars, Conferences, Articles, Papers & Publications:
International Seminar “Round Table on the Best Practices in NGOs Governance and Challenges” Organized by UK Charity Commission, London held on 10th,Feb.2010 at National Law University, New Delhi.
Ø International Conference on current Development on “Air and Space Law” held on 3rd & 4th March.,2010 organized by National Law University, New Delhi.
Ø International Conference of “Jurists on Judicial Reforms” on 13th & 14th March, 2010 Organised by Bar Council of Punjab & Haryana & International Council of Jurists, Panchkula (Chandigarh).
Ø National Seminar “National Policy on Legal Education and Issues” organized by Lexis Nexus Wadhawa, Nagpur held at National Law University New Delhi in the month of 5th & 6th Dec..2009.
Papers & Publications
Ø Paper submitted on “Indian Criminal Legal Informatics management System and Human Rights to Victims” in National Seminar of IIPM at Ghaziabad (UP) 2009.
Ø An
article on the topic Indian Criminal Legal Informatics management system and Human rights of Victims.
Ø Right of Gender Equality and protection of Human Right.
Ø Quality of good Leadership as an Advocate in legal profession
Ø Patent Condition in International Standard :International Patent System, Patentable Inventions, Prior Art in Patent, Monopoly rights in Patent, Non-obviousness, Patentability condition.
Ø What is Intellectual Property
Ø New Partnership rule
Ø Strict anti-ragging regulations needed