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A call for Legal shake-up
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Indian society is becoming complex. We have always believed that our legal system was next to none. When all other existing disciplines such as technology, science, medicine and education made changes and conversions, the discipline of law refused to make the change, clinging to its age old provisions. Our legal system is frozen in time, a time hundred of years ago, out of date and out of touch.
The legal system touches and affects the daily lives of all of us; Freedom and democracy cannot exist without it. Our legal system needs to make some very big changes to help cut down on the rising problems in the society. If we believe we are to serve the law, as it was created to uphold the rights of all citizens, then we are all accountable to act in ways to change today's system.
Our modern society offers freedoms and opportunities unheralded a generation ago. But with new freedoms come new crimes and threats to our society. We are yet to formulate specific and comprehensive cyber laws to cover all acts of computer criminals and proactive mechanism to tackle such offenses. The link between crime and punishment has almost entirely been severed. New crimes and threats demand not only ‘more stringent’ laws, but also real-time legislative responses that accommodate each significant transformation of criminal conduct.
Retired people are conned out of their life's savings, businesses loose lakhs of rupees when their handshake agreement goes sour. There are many lives that have been irrevocably changed by their encounter with the Indian legal system, as it exists today.
Problems in Punjab, Nandigram, UP and other places across the country are eye openers. These are issues at stake. Its adverse impact on the economy can’t be ignored. Each disruption causes delays, hold-ups, confusion and wastages. These events erode investor confidence, and the claim that India has a perfect legal system starts sounding hollow. These incidents are evidence of flaws in exisiting legal system. We should have legal reforms that facilitate economic activity by protecting property rights, enforcing contracts, and taking collective action to provide the required physical and organizational infrastructure.
Legal reform and development strengthen a country’s judicial system and develop a more impartial, effective, and well-organized judicial/social system. We must now act upon our legal system with a sense of urgency, purpose, and passion in order to bring the long-overdue changes. It is necessary to devise new laws, procedures and processes that provide confidence and respect for legal system among the Indian citizenry.
The rule of law is protected only when there is a fairly relevant legal system that responds to needs and problems in a fair, non-discriminatory, and effective manner .   Only a formally rational legal system can achieve "legal domination" (rule of law) through consistent reforms and application of general rules. Excellence in legal research and reforms is extremely important, because it will help shape the quality of the rule of law.
The issue of legal reforms attacks the very basis of democracy in India, and the time has come to tackle it in a systematic manner.
Unmanned railway level crossing and perpetual human rights violation
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When you open the news paper it is frequent phenomena that some accidents news appeal due to unmanned level crossing. After sixty five years of independence happening of this type of accident in civilized society is uncalled for. This is one of the worst form of Human Rights violation.
Department of Railways   Continue  to   violate  Human Rights by non  making  these 10 ,797 numbers (40% of total  level crossing)  of unmanned railways crossing  manned  thereby allowing for accidents to happen in future.
There are  number of  Unmanned  Level crossing which was not made manned yet now. The information relating to some state /division in this regards is eye opening.
As per information from RTI approximately Lucknow Division (Eastern Railways) has 423 unmanned railways crossing, West Bengal has 228 unmanned railways crossing  & Jharkhan has 228 unmanned level crossing presently  existing.
The above information indicates that hundred of unmanned railways crossing are pending in each state. In the Economics Times of  12- December-2013  it is mentioned  that there are 10,797  unmanned railways crossing excising   thought the country.
Further as per UNECE’s (United Nation Economic Commission for Europe) 67th session of working party on Road Traffic Safety and ESCAP ( Economic and Social Commission for Asia and Pacific) at IRTE(Institute of Road Traffic Education) Faridabad from 4th to 6th December 2013 there 31,254 numbers (as on 01.04.2013) of Level crossing out of which 18,672 numbers (60%) are manned and balance 12,582 (40%)  are unmanned in the Indian  Railways Network.
As per existing Law in India the onus for safe movement over unmanned level crossing lies with the road users (Section 131 of “Motor Vehicle Act” and Section 161 of “Indian Railway Act”)  as mentioned below.
Section 161 in The Railways Act, 1989
161. Negligently crossing unmanned level crossing.- If any person driving or leading a vehicle is negligent in crossing an unmanned level crossing, he shall be punishable with imprisonment which may extend to one year. Explanation.-- For the purposes of this section," negligence" in relation to any person driving or leading a vehicle in crossing an unmanned level crossing means the crossing of such level crossing by such person--
(a) without stopping or caring to stop the vehicle near such level crossing to observe whether any approaching rolling stock is in sight, or
(b) even while an approaching rolling stock is in sight.
Section -131 of Motor  Vehicle Act, 1988
131. Duty of the driver to take certain precautions at unguarded railway level crossings. –
Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and the driver of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk up to the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing, and where no conductor or cleaner or attendant or any other person is available in the vehicle, the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed.
Whoever after formulation of  absolute liability principle by Honorable SC according to which if a person’s used dangerous object he must keep it under its perils , the above provisions of the Laws violates  such principal . These provisions are also violates. Article-21 of constitution as it violates right to life  as well as Artcile-14 as it is discriminatory and  arbitrary.
As per Railways  data  average  15  Lakhs amount  required to make  unmanned railways crossing manned. Hence to make  10,797  unmanned railways crossing manned approximately 1619.55 cores are required. As per economics times Railways is claiming  6000 cores  to make the unmanned crossing manned by exaggerating the amount of requirements.
As  per right to life enshrined in Art-21 of constitution and human life can  not be equated with  money and  Railways is Big Government Department having revenue of  lakhs of corers rupees  and  it is central government which  in turn is responsible for such accidents as defined in absolute liability principle by Honorable SC .
Hence government   must come forwards and immediately do the following things
1) Giving Instruction to Ministry of  Railways for   immediate manning of Unmanned Railways crossing within schedule.
2) Railways minister and central Government must allocate required fund for its immediate completion.
3) Setting of a commission for monitoring the progress of  making unmanned railways crossing manned work by railways and submitting its reports to central Government.
In addition some of  the advocate may come forwards  and  raise the matter in the Honorable  SC and HC  as PIL.
Technology and Judiciary
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When a person files a complaint/petition/application/appeal whatever it may be called in different judicial forum it contains opposite party against whom he is going to fight the lis. Now the question of notice come into play as one of the fundamental principle of  natural justice i.e. audi alterm pertam which means listen to the other side or let the other side be heard as well. Without proper notice to the opposite parties arbitration of lis is non est in law except few type of cases.
Now the question that arises is who the notice is to be served. In civil law Civil Procedure Code defines the serving notice and when court assume that notice is being properly served. Same principle also applies in other cases also such as family  dispute, NI cases etc.
In our country this procedure consumes lot of time. In many cases defendant /opposite party intentionally delayed the serving of notice upon him and Lawyer also plays a great role in delaying the process.
Now telecom has brought revolution in the world  and made it shorter and  facilitated one most  method of communication i.e. through electronic mail. If notice delivery through mail is considered as due notice served then the hurdle of serving notice to defendent can easily mitigated. Although it may not be possible to get the mail address of all the defendant  whoever in cases involving govt organization/PSU etc  it can be easily ascertained.
Government also make it mandatory for providing mail address of  petitioner so that subsequent stage of notice i.e. at the inquiry/trial stage  any communication required to be made to plaintiff will be easily made . If plaintiff does not have a mail account then he may be provided a government   mail account in the court registry itself.
Till trial starts litigant have to traverse   through discovery of facts and other process before trial. In India we have number of LAW colleges  with thousands of students  we reading LAW. If we can take the help of these students in making brief of the cases so that  when judges see the files they will find the brief ready before them and it will be  easy to determine the fact in issue.
In the same manner such student can be utilized in mediation/conciliatory proceeding by allowing them internship in different court and including that in their curriculum.
Further the records of the cases can also be digitalized which will reduce the burden of the court in keeping voluminous records and record keeping. The certified copy of the order of the court order can be eliminated by giving order judgment of all the courts online.
This is few example who technology can be used to minimize the  time of proceeding in the courts. However  it is upto the government to use such technology in judicial field by constituting a committee and implementing its decision  in letter and spirit.
License to kill: An Hour for Amendment
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“It may be easier for a state to prove gross negligence than proving that she knew she struck a person”.
The above quote has much relevance to a Section under Indian Penal Code, that is, Section 304A, which was inserted by the Indian Penal Code (Amendment) Act, 1870. The language of the Section sounds like a privilege given to those who cause death by negligence. The Code is on its last legs it seems.
Section 304A of Indian Penal Code, 1860 deals with “Death caused by Negligence”. The section reads as “whoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
The maximum punishment that an accused gets for causing the death of a person is two years. Also, he can escape by giving a nominal fine. Even though the imprisonment is of either description, still it is of no use because the punishment is too less for such an atrocious crime. The Law seems to be more in the favour of accused than the victims. How can an accused be slapped with only two years imprisonment for committing murder? By the sustenance of mere two words “rash and negligent”, the accused finds an easy route to evade. Therefore, the section entails and calls for an amendment.
By adducing some of the instances, it will be evident that this section works more in favour of the culprit. A teenager sheared two youngsters and injured 3 people in Panambur District by recklessly driving in an early morning. The teenager as expected was released on bail and a case against the mother who was the owner of the vehicle was booked. The teenager was charged under section 279 of Indian Penal Code, 1860 for rash driving in public way and his mother was charged under Section 304A of the Code for causing death by negligence. Since the teenager was 16 years old and a minor, he would be treated as a juvenile which is a signal for his release on bail by the Court. This was what exactly happened to the teenager. The Panambur police who was investigating the case said that a warrant would be issued against the mother, the owner of the vehicle. Now, as the punishment is in the form of fine and two years imprisonment, any offender would easily accept his mistake and pay a heavy fine and walk off. This has been happening since decades. Considering what law is, the families of the victims will have a tough time in getting any sort of compensation from the accused because that will take years before the Court gives any sort of judgment. “There will be adjournments and the case will take different turns over a period of years and confiscating the property to compensate the victims will be difficult”.
To cite few more examples, in Satnam Singh v. State of Rajasthan, it couldn’t be proved that the truck driver purposefully mowed a man on the scooter and the truck driver was punished under section 304A of the Code. In Murari v. State of Madhya Pradesh, it was critically observed that the truck driver knew that the passengers were sitting on the slabs he was carrying. Even though he drove negligently in spite of the protests by the passengers and thereby caused the death of a woman and two children. In Kannaiyalal Arjandas v. Tribhuvandas , the prosecution was unable to prove that the accused was driving a vehicle. Another connotation regarding the applicability of this section is that if the driver of a motor vehicle does not blow the horn because of the prevailing traffic rules prohibit him in doing so, it can neither be said that he failed to exercise reasonable and proper care nor that the duty to blow horn was imperative upon him, so as to hold him guilty of negligence under this section. Further the Supreme Court has laid down that, to render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little slip or mistake that will make a man so liable. So it can be observed that at times this section creates such conditions, whereby one can use it as a defensive and protective measure in order to escape from the clutches of culpable homicide amounting to murder. In State of Karnataka v. Mohd. Ismail, a 28 year old motor cyclist hit an old man of 82 years who sustained injuries on the head and died on the spot. The death was held to be due to the rash and negligent act. What a marvel! A person can with no trouble take the defense of rash and negligent and evade even though he causes the death of any person by such act.
The instances of rich and powerful drunk drivers going crazy on the roads are becoming too recurrent. The famous BMW-hit-and-run case , the man behind the scene was Sanjeev Nanda. In this case, the accused was allegedly in a drunken state and he drove his BMW so rashly through the police checkpoint that he mowed on the persons who were sleeping. He left seven people dead and injured 8 others. After running through the policeman, he stopped his car and saw people underneath. The prosecution contended that he told his co-passenger Manik Kapoor to run quickly from the spot. His car was later cleaned by his servants. Our tardy law system as expected extended the case for almost a decade. After about ten years and ten months, the Trial Court sentenced Sanjeev Nanda to five year imprisonment. But the Delhi High Court, on July 21, 2009, had overridden the judgment by the former court and awarded him a maximum punishment of two years for rash and negligent driving. The Delhi High Court did not concur with the fact that Nanda had knowledge that such a high speed would result in the death of persons. This is really absurd and derisive. Our Penal Code provides under section 86 that unless a person is voluntarily intoxicated, he commits no crime but he will be blameworthy and culpable if the reverse happens. In the said case, the person was drunk of his own accord. How could he plead a defense that he had no knowledge of any thing that happened? He administered the contents of the alcohol himself. So, knowledge becomes completely irrelevant and inapt to my assessment in this case. The Indian law, sometimes, calls for criticisms and it makes a mockery of itself I guess after every inapt and irrational verdict it gives.
To mention an another famous case of Salman Khan, the popular bollywood figure, taken into custody in the early hours of September 28, 2002 and booked under section 304A for rash and negligent driving. He was also found to be driving under the influence of alcohol. The trial of the case began in 2005. If found guilty, he would be imprisoned for a term of ten years in jail. But he was released on bail. Not only this, he was accused of ramming his SUV into a bakery, killing one person and injuring four others. On March 14, 2011, the prosecution moved an application before the Bandra Magistrate’s Court to enhance the charges against him. Till the charges against him are established, he is free to move the way he wishes. Instead of this, he should have been kept in detention. It’s very obvious that he will find his escape by paying a huge amount. This is the most criticizing aspect of this section.
As per the current situation speaks, if a drunken driver is caught by the police, he is demanded a fine up to Rs 2000 only. Some of them don’t mind paying the amount and they move on. If they repeat the same within three years they will be sent to the prison for six months or so. But the saddest part is rarity of such imprisonments. Escaping by giving fine has become a normal course of business for the drunk drivers. In foreign countries, if a person is found drunk while driving, his license is hung up. There is no such system for the suspension of license in our country. This calls for a change in the present scheme and order. And even if we have one, then today people do not hesitate driving without a license. People love to break rules than to follow them. They believe in the famous line used by most of us today, “rules are meant to be broken”. And later, they reproach the law system that duty holders are corrupt. Today, people are furiously going behind the path which will fetch them more money. So, why will a duty holder keep themselves away if openly money is offered to them? They too belong to the same world and they too have families to support. Why will they keep their hands back? A person found drunk while driving should be kept in detention for a period of at least one month. Besides, the media should play an active and lively role here to publish the photographs of such offenders in news channels and newspapers so that he may think at least twice before repeating the same error again. Also, the term of imprisonment under section 304A should be increased from two years to ten years making it a more stringent punishment so that the drunkards refrain themselves from consuming alcohol before driving. This will work as a safeguard to other road users who come into the chains of such accidents.
The offence under this section is cognizable and bailable. This exhibit to work more in favour of the offenders than the victims. There should be an endeavor to make this offence non bailable. If not attempted then the police will, like it has been doing, arrest and release the accused on bail for even causing the death by such rash and negligent act. The accused is also released without being produced before the Magistrate. In a case where the Trial Court had sentenced the driver to fifteen months imprisonment for causing death of motorcyclist due to rash and negligent driving, the High Court acquitted holding the view that driving vehicle at a ‘high speed’ did not necessarily mean that the accused had driven the vehicle in a rash and negligent manner to invite sections 279 and 304A of the IPC. In this case, if it does not mean rash or negligent act, then what does it connote? If it fair and adequate to acquit a person who is guilty of causing death or such bodily injury that it could have proved fatal to a person? Law here seems to be biased. It can stretch its hands to seek evidence but it has no heart to show pity to those who suffer because of its verdict.
There have been tumultuous changes in society. Human relations have faced many ups and downs. This has not spared even a doctor-patient relationship. The rapid changes in the medical field have strained the age-old good relations between the patient and the treating physician or surgeon. Criminal law is applicable to even doctors and they are no exception to it. It is estimated that about 98, 000 people die every year in United States because of mistakes committed by Medical Professionals. One can well imagine the figures in India. However, law does not punish the doctors for every act but only the negligent ones. Doctors are required to take reasonable care before treating their patient. After the declaration form is duly filled by the family members of the patient, it does not mean that a doctor can evade from his liability. Leaving a scissor, while operating, inside the body is a gross negligence. Here, the doctor will be amenable if such an act proves fatal for the patient. A doctor can also be culpable under this section if he operates a patient not being qualified for the same. According to the recent Supreme Court decision, “the standard of negligence required to be proved against a doctor in cases of criminal negligence especially that under section 304A of Indian Penal Code, should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care”
The Indian Penal Code (Amendment) Bill, 2010 , proposed that in section 304A, for the words “any rash or negligent act” the words “any rash or negligent act, except by any act of rash and negligent driving of motor vehicle,” shall be substituted. After section 304B of the principal Act, a new section 304C was proposed to be inserted which would read as “Whoever drives any motor vehicle, or rides, in any public place in a rash or negligent manner or drives or rides the motor vehicle under the influence of liquor so as to endanger human life, and causes death by his rash and negligent act, shall be committing the offence of murder and shall be punished with death or imprisonment for life and shall also be liable to fine which shall not be less than fifty thousand rupees. The statement of object and reasons which sustained the proposition and incorporation of the above provision in the Bill was that when the section was inserted, there were no motor vehicles in the country. They arrived only during the first decade of the twentieth century. This section was inserted mainly to protect the Britishers who possessed the vehicles that could cause an accident. That is why the offence under this section was made bailable and that too with a minimum punishment to serve their interests. But the conditions have changed now. This works as an advantageous section for the accused. After the passage of one hundred and fifty years and by looking at the present scenario, the provisions should be made more stern and strict. And the deaths caused by such rash and negligent act should be a murder punishable under section 300 of Indian penal Code. Hence, having regard to all this, the Bill for amending the section was to be introduced. But as one can anticipate, the Bill is still pending before the Lok Sabha.
Amendment to Section 304A is of urgent need. If threatening a person under section 506 of Indian Penal Code is made non-bailable then it is really difficult and intricate for one to digest that someone charged under section 304A can get away with a license to kill. Considering what law has been and what it is today, it seems as the families of the victims will have to struggle hard to get any sort of compensation because it takes years for a case to be considered by the Courts. Right to speedy trial is one of the fundamental rights under the wide scope of Article 21 of the Constitution of India. But most of the under trials are the victims of the same. They have to remain in jail for a period greater than their offence. Therefore, not only amendment is required but there should be the establishment of Fast Track Courts. That will help in quickly winding up cases especially under Section 304A of Indian Penal Code. All depends upon the way the Court handles the cases. Unless any reformation in the present legal system is brought, all such suggestions will remain in the pages and it will never get a chance to be made effective. We should remember that good words on paper, which are for the betterment of all, should be respected and an endeavor should be made for its implementation. Otherwise, it will lose its essence and when we look back to them, they will turn their faces around because it will be too late then.
Fee Structure vis-a-vis Private Unaided Educational Institutions
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The specific question that: “How far is it permissible under the Constitution for the State to control and regulate admission and fee in private unaided educational institutions?” has bothered the Supreme Court on a plethora of occasions. The apex court in its wisdom has answered the above-mentioned question although meticulously but has left it open-ended. The primary and the contemporaneous issue that whether the constitution of India guarantees a fundamental right to education to its citizens, was answered in affirmative by the Supreme court in the case of Unnikrishnan, J.P. v. State of Andhra Pradesh. [1] An eleven judge bench of the Supreme Court for the first time, inter alia addressed the issue of fee structure in detail in the case of T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.[2] (hereinafter referred to as the Pai Foundation case). A bench of eleven judges was constituted so that it would not be bound by any of their earlier decisions. The fact that merits consideration is that the apex court was divided in its opinion in this case, which gave rise to subsequent questions, arising from the different interpretations by the different High courts.
The apex court was vigilant enough to take into cognisance the ambiguities which had arisen from the aforesaid judgment, hence it constituted a constitution bench comprising of five judges to clarify the doubts which had arisen in the Pai foundation case. The Pai foundation case was elaborated and simplified in the case of Islamic Academy of Education and Anr. v. State of Karnataka and Ors.[3] Despite the sincere efforts made by the Supreme Court to clarify the doubts and to answer the questions which had arose subsequent to the Pai Foundation case, the Islamic Academy case had its own lacuna and failed to serve the said purpose.
Finally, in 2007 another bench of the Supreme Court comprising of seven judges in P.A. Inamdar and Ors. v. State of Maharashtra and Ors.[4] assembled to clarify the Pai Foundation case and to address the issues which had cropped up pursuant to the Islamic Academy case. The apex court for the first time delivered a unanimous opinion. The decision in the Inamdar case illuminated several vital aspects which were conducive towards the answering of several questions posed after the Pai foundation and the Islamic Academy cases.
However, even after the decision in the Inamdar case there are still some doubts or grey areas in relation to the question of extent of State control over the private unaided institutions imparting education. The same conclusion can be derived on perusal of Para 153 of the Inamdar judgement which is being mentioned herein:
“153. There are several questions which have remained unanswered and there are certain questions which have cropped up post Pai Foundation and Islamic Academy. To the extent the area is left open, the Benches hearing individual cases after this judgment would find the answers. Issues referable to those areas which are already covered by Pai Foundation and yet open to question shall have to be answered by a Bench of a larger coram than Pai Foundation. We leave those issues to be taken care of by posterity.”
The same view has been expressed by the Supreme Court in some of the very recent judgments. The apex court after carefully marshalling its three aforesaid judgements was of the following opinion:
In Modern Dental College & Research Centre v. State of M.P[5] the apex court opined:
“…….Thus, it is evident that even in Inamdar case, it has been observed that there are still some doubts or grey areas in relation to the question of extent of State control over the private unaided institutions imparting professional education.”
The Supreme Court reiterated the above notion vis-à-vis fee structure, in Action Committee, Unaided Private Schools of Delhi v. Director of Education [6] in the following words.
“24. In this context it may be noted that in T.M.A. Pai Foundation Case and in Islamic Academy of Education the principles for fixing fee structure have been illustrated. However, they were not exhaustive. They did not deal with determination of surplus and appropriation of savings.”
The open ended question post Inamdar case is ‘to what degree the State can interfere with respect to private unaided institutions.’
The Mandate of the Constitution and the reality
In a democratic and welfare country like India, the state has the primary responsibility to impart education among all ages of students. The constitution has through Ar. 21-A specifically mandated that it shall be the duty of the Government to impart free and compulsory education among students of six to fourteen years of age. Education and matters incidental to it have been incorporated in Entry 25[7] of the Concurrent list or List III (mentioned in schedule VII) of the Constitution of India. But the same is subject to entries 63, 64, 65 and 66 of List I. The intention of the legislature by the said entries is that education is both a State and Union subject, i.e. matters pertaining to education are to be dealt both by the state and the union. Both, the centre and the state governments are within their legislative competence to enact laws pertaining to education. But, it is well settled that in case of conflict between the State and Union laws, the latter prevails.
Ar. 41 of the Constitution which is a directive principle of State policy, inter alia, contemplates that the State within the limits of its economic capacity and development, make effective provision for securing the right to education. The article does not prescribe any particular age group of students for which this right is to be secured as contrasted from Ar. 21-A of the Constitution. The article being only a directive is unenforceable in a court of law as different from Ar. 21-A which is enshrined in the form of a Fundamental right of children. But the fact that merits attention in Ar. 41 is that the right can only be secured within the limits of economic capacity of the State. A state has to cater to the multiple needs of its citizens, which no doubt requires a large amount of capital, which it indirectly receives either from the Union or from the taxes or revenues collected by it. The state due to financial constraints is often unable to secure effectively all the rights which have been mandated by the Constitution. The right to education is not an exception to this notion and it has clearly been expressed by the Supreme Court in the following judgment. The same notion has been acknowledged by the apex court in the Islamic case[8] as follows:
“Imparting of education is a State function. The State, however, having regard to its financial and other constraints is not always in a position to perform its duties. The function of imparting education has been, to a large extent, taken over by the citizens themselves. Some do it as pure charity; some do it for protection of their minority rights whether based on religion or language and some do it by way of their "occupation". Some such institutions are aided by the State and some are unaided.”
The necessity of Private Unaided Educational Institutions
Specifically Article 38 harmoniously read with Articles 41, 45 and 46 of the Constitution proclaims about education of the people, naturally subject to availability of the funds, is the duty of the States. But if state is not in a position of provide equal opportunities of the education to all sections of the human being it may liberate the opportunities through private educational institutions. The words "within the economic capacity" in Article 41 empowers the states to permit the private educational institutions to be established and administered on its own. And for this they should have their funds which will naturally and reasonably be incurred from the students in the form of fees collected from them by the institutions.[9]
Hence, the need of private institutions crops up. Private unaided institutions are the bulwark of Right to education and the reality is that in the present scenario they are a necessity. The same principle has been acknowledged by the apex court:
In Unni Krishnan’s[10] case, it has been observed by Jeevan Reddy, J., at page 749, para 194, as follows:
"The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions - including minority educational institutions - too have a role to play."
Justice Kirpal,C.J (as the lordship was at that time) in the Pai Foundation case recognised the importance of private unaided educational institutions by citing dismal figures that while the number of Government colleges in certain states had remained stagnant, private institutions had constantly mushroomed:
39. “That private educational institution are a necessity becomes evident from the fact that the number of government-maintained professional colleges has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 Dental Colleges in Karnataka, only one has been established by the government, while in the same State, out of 51 Engineering Colleges, only 12 have been established by the government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education.[11]
Education as a business: lucrative and recession proof
Education no doubt is big business which in the contemporary scenario is regarded as lucrative and recession proof. The notion that education has been a business from times immemorial has been acknowledged by the apex court in the case of Modern School v. union of India[12] in the following words: (Paras 3, 4 and 5 of the judgement)
“3. In modern times, all over the world, education is big business. On 18th June, 1996, Professor G. Roberts - Chairman of the Committee of Vice-Chancellors and Principals commented:"The annual turnover of the higher education sector has now passed the $10 billion mark. The massive increase in participation that has led to this figure, and the need to prepare for further increases, now demands that we make revolutionary advances, in the way we structure, manage and fund higher education."
4. In the book titled 'Higher Education Law' (Second Edition) by David Palfreyman and David Warner, it is stated that in modern times, all over the world, education is big business…”
It is for the same reason that for the past few decades India has experienced the mushrooming of private unaided educational institutions. The education sector has lately caught the attention of large MNC’s and the Corporate, experiencing large amount of investments, as the education sector is not only lucrative but recession proof. With thinning demand for real estate and growing cash constraints, many developers are now looking at thriving sectors. They are divesting in non-core businesses such as education with a conviction that it’s a recession-proof sector. High rate of return on investment coupled with huge demand-supply gap is attracting realtors to this sector, who will be comfortable setting up the required infrastructure.[13] The AEZ group has recently announced a tie-up with Mother’s Pride, a chain of schools, by investing Rs 500 crore in the company. This unprecedented investment in the education sector, although termed as a philanthropic measure by the investors, needs careful scrutiny.
In all of these cases, the central issue is that when the private party invests money in education, the question of control comes in. The experience has been that wherever private control is high, educators feel stifled and education ultimately suffers.
The Tatas and Birlas have many educational interests for a long time. In a different way, so do the Manipal Group, the Apeejay group or the Amity group. While in the former case, values and philanthropy has been the riding motive, the latter have dedicated themselves largely to education alone. Education is perhaps seen more as a commercial venture for making money. The primary question which concerns us is that whether and to what to extent the State can impose restrictions and regulations vis-à-vis the fee structure of such institutions. The primary objective of the state is to ensure that quality education is imparted by such institutions and to ensure excellence in it. However, the issue of commercialisation of education and illegal profiteering by such institutions is of paramount importance and it is in this light that the apex court has laid down the guidelines in the Pai foundation case and subsequently clarified it in the Islamic and the Inamdar case vis-à-vis fee structure.
Guidelines Laid Down By The Pai Foundation Case And Its Clarifications In The Subsequent Cases
Although the Pai foundation case overruled Unnikrishnan’s case, the notion that there should be no charging of capitation fee or commercialisation of education laid down in the latter was upheld. The Pai foundation case was in consonance with the Unnikrishnan’s case in this aspect. In Pai foundation case, the court was of the opinion that there has to be a distinction between the aided and non-aided educational institutions and it would be unfair to apply the same set of restrictions and regulations to the two set of institutions. The right of the private unaided educational institutions to regulate their fee structure for their respective courses derives its competence from the right to administer with sufficient autonomy. Now, the contemporaneous question which crops up is that what degree of autonomy should be permissible to these institutions and where and in which areas should the state restrictions come into play? The question has been left open by the Pai foundation and the subsequent cases. However, the answer to this question cannot be encompassed within a straight jacket formula to enable the state to interfere in the administrative matters of private unaided educational institutions in specific areas and at fixed points. Private Unaided Educational Institutions enjoy greater autonomy in matters of administration, including the fixation of fee structure
Noticing in extenso paras 68, 69 and 70 of the Pai foundation case, it was held in P.A. Inamdar’s case:
“129. In T.M.A. Pai it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.”[14]
The above notion that allows greater autonomy to private educational institutions was incorporated by the apex Court in the case of Modern School v. Union of India. The court pointed out vis-à-vis fee structure specifically, that the said institutions were allowed to generate reasonable surplus out of the fees levied, but what was prohibited was commercialisation of education. (Para 14 of the judgement is being mentioned herein)
“14. … is now well settled by catena of decisions of this court that in the matter of determination of the fee structure the unaided educational institutions exercises a greater autonomy as, they, like any other citizen carrying on an occupation are entitled to a reasonable surplus for development of education and expansion of the institution. Such institutions, it has been held, have to plan their investment and expenditure so as to generate profit. What is however, prohibited is commercialisation of education. Hence, we have to strike a balance between autonomy of such institutions and measures to be taken to prevent commercialization of education. However, in none of the earlier cases, this court has defined the concept of reasonable surplus, profit, income and yield….”[15]
The above notion has been reiterated by the apex court in a very recent judgement in the following words in the case of Modern Dental College & Research Centre v. State of M.P.:
“10. It was also observed, following the decision in T.M.A. Pai Foundation that greater autonomy must be granted to private unaided institutions as compared to private aided institutions the reason for this is obvious. The unaided institutions have to generate their own funds and hence they must be given more autonomy as compared to aided institutions, so that they can generate these funds. However, this does not mean that the private unaided professional institutions have absolute autonomy in the matter. There can validly be a certain degree of State control over the private unaided professional institutions for the reason that recognition has to be granted by the State authorities and it is also the duty of the State to see that high standards of education are maintained in all professional institutions. However, to what degree the State can interfere with respect to private unaided institutions is a matter deserving careful consideration.”[16]
General findings of the Supreme Court vis-à-vis Fee Structure in the Pai Foundation Case
As regards fee structure of private unaided professional institutions the Supreme Court was of the opinion (Pai Foundation case):
“69… … A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible.”[17]
In the Pai foundation case, the court drew a reasonable nexus between the fixation of fees by the private unaided educational institutions and the standards maintained by them. The court accepted the harsh reality that the standards maintained in private unaided educational institutions was far better than Government institutions and curtailing their fee structure or manipulating it would give rise to unwarranted consequences affecting the excellence of such institutions. The court inter alia was of the opinion that it was in fact the standards maintained by such institutions that encouraged the students to enrol in private institutions rather in the Government institutions. The abovementioned notion was envisaged by the apex court in the Pai foundation case in the following words:
“In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. At the school level, it is not possible to grant admission on the basis of merit. It is no secret that the examination results at all levels of unaided private schools, notwithstanding the stringent regulations of the governmental authorities, are far superior to the results of the government-maintained schools. There is no compulsion on students to attend private schools. The rush for admission is occasioned by the standards maintained in such schools, and recognition of the fact that state-run schools do not provide the same standards of education. The State says that it has no funds to establish institutions at the same level of excellence as private schools. But by curtailing the income of such private schools, it disables those schools from affording the best facilities because of a lack of funds. If this lowering of standards from excellence to a level of mediocrity is to be avoided, the state has to provide the difference which, therefore, brings us back in a vicious circle to the original problem, viz., the lack of state funds. The solution would appear to lie in the States not using their scanty resources to prop up institutions that are able to otherwise maintain themselves out of the fees charged, but in improving the facilities and infrastructure of state-run schools and in subsidizing the fees payable by the students there. The fear that if a private school is allowed to charge fees commensurate with the fees affordable, the degrees would be "purchasable" is an unfounded one since the standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations.”[18]
Summary of Findings of the Supreme Court vis-à-vis Fee structure in the Islamic Case
The first question which came before the apex court in Islamic academy of Education v. State of Karnataka[19], which we are concerned herein, was whether the private unaided educational institutions are entitled to fix their own fee structure. Clarifying stand of reasonable fee structure as mentioned in the Pai foundation case and harmonising the interests of the educational institutions to earn reasonable surplus and to prevent the commercialisation of education, the findings of the apex court can be summarised as follows:
It was held per Khare, CJ. (for himself and for Variava, Balkrishnan and Pasayat, JJ) that so far as fee structure is concerned the majority Judgement in the Pai Foundation case 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 institute and to provide facilities necessary for the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. Again, it was re-iterated 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 not dependent upon any funds from the government. Each institute will be entitled to have its own fee structure. The fee structure for each institution must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plan for expansion and/or betterment of the institution etc.[20] Of course, there can be no profiteering and capitation fee cannot be charged. It thus needs to be emphasised that as per majority Judgment in the Pai foundation case imparting the 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. Surplus/profits cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise.[21]
The Court noticed that there were various statutes/regulations which governed the fixation of fee and, therefore, this Court directed the respective State Governments to set up committee headed by a retired High Court Judge to be nominated by the Chief Justice of that State to approve the fee structure or to propose some other fee which could be charged by the institute.
The position as clarified by Inamdar’s case vis-à-vis Fee structure
In Inamdar’s case the court classified the aggrieved persons into two classes, i.e. unaided minority and non-minority institutions imparting professional education. The third issue which came up before the bench for consideration, concerns us herein, i.e. the fee structure of such institutions.[22] As regards regulation of fee, in Inamdar’s case, it was opined:
“139. To set up a reasonable fee structure is also a component of "the right to establish and administer an institution" within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form (Paras 56 to 58 and 161 [Answer to Q.5(c)] of Pai Foundation are relevant in this regard).”[23]
Right to Administer includes the right to fix a reasonable fee structure
Regulation of fee structure stems from the broader right to administration of educational institutions. However, this right is not absolute in nature, i.e. blanket powers to frame its rules and regulations and to set a fee structure of their own choice cannot be given to the private unaided educational institutions. The state can interfere in matters of fee regulation where it deems fit that the institution is exploiting the students by providing inadequate facilities which is not commensurate to the fee charged. However, it is not to say that these restrictions or regulations imposed by the state are always to be regarded pristine in nature or undisputable. If the private unaided educational institutions can fairly prove that the fee structure framed by them is conducive to the welfare of the students who are being provided commensurate facilities which is to achieve the greater goal of excellence in education, then the state would be obliged to withdraw the charges or the restrictions imposed by it earlier. But the contentions of the educational institutions that the fee charged by them is reasonable and not in excess shall be supported by sufficient material to prove beyond reasonable doubt that institution is in no manner indulging in the commercialization of education.
The correct position as to the extent of state regulation on private educational institutions and the autonomy to fix the fee structure was envisaged by the apex court in the Pai foundation case in the following words: (Paras 54, 56 and 57 of the Pai foundation case are herein being produced)
“54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating for admissions would be unacceptable restrictions.”
“56. ….The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.”
“57………There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.”
The Burning issue of Capitation Fee
The expression capitation fee does not have a fixed meaning; it neither has been defined by any central statute nor by the Supreme Court. However, different state legislatures in have defined the term differently. The Tamil Nadu Educational Institutions (Prohibition of Collection of Capitalisation Fee) Act, 1982, defines Capitation fee as:
"capitation fee means any amount by whatever name called, paid or collected directly or indirectly in excess of the fee prescribed, under Section 4;"
The expression ‘capitation fee’ as defined in S. 2(a) of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, (6 of 1988) is:
“ Capitation fee means ‘any amount, by whatever name called, whether in cash or kind, in excess of the prescribed or as the case may be approved, rate of fees….”
The wide prevalent notion that capitation fee is only in cash is erroneous. As the above definition suggests, capitation fee can be in kind also. The term ‘kind’ is of wide import and can be construed to include any property, favour, a commodity or anything which is given not being commensurate to the fee charged.
The Right of Children to free and Compulsory Education Act, 2009 defines capitation fee in S. 2(b) as follows:
“Capitation fee means any kind of donation or contribution or payment other than the fee notified by the school.”
On perusal of the above two definitions it is evident that the term capitation fee may have different characteristics at different levels of education. At the primary or elementary level, the term is confined to donation or contribution, whereas at the higher education level the term in addition to the meaning attributed to it at the primary level also envisages the qualities of favours.
The prohibition against the charging of capitation fee has been laid down by the Supreme Court in a catena of judgments. However, the reality is that the unscrupulous activity of charging capitation fee is still being marshalled by some of the institutions. The need of the hour is to pierce the veil and to expose the activity of charging capitation fee, which is not in consonance with the constitutional fabric. Charging capitation fee is the patent denial of the fundamental right to education of citizens of India.
The question arose for the first time before a two Judge bench of the Supreme Court in Mohini Jain v. State of Karnataka[24], in the following context:
With a view to eliminating the practice of collecting capitation fee for admitting students in educational institutions, the Karnataka Legislature passed an Act purporting to regulate tuition fee in private medical colleges in the State. By issuing a notification under the act, the Government fixed Rs. 2000/- per year as tuition fee payable by candidates admitted against ‘government seats’, but other students from the State were to pay Rs. 25,000/- per annum. The Indian students from outside the State were to pay Rs. 60,000/- per annum. On a writ petition filed by an out of the State student, the Supreme Court quashed the notification under Ar. 14.In justification of the notification, the private medical colleges had argued that they did not receive any financial aid from the Government and so they must charge much higher fees from private students to make good the loss incurred o government students.
“The bench characterised capitation fee as “nothing but a price for selling education” which amounts to commercialisation of education adversely affecting educational standards, characterising such institutions charging capitation fee as “teaching shops”. “The concept of teaching shops is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage.”
Thus, the notion which was first observed in Mohini Jain’s case[25], was upheld in the Unikrishnan’s case[26], in Father Thomas Shingare and others v. State of Maharashtra and others[27], the Pai foundation case[28], Islamic Academy of Education[29], Modern School v. Union of India[30], P.A. Inamdar and finally in Modern Dental College & Research Centre v. State of M.P[31] in the following words:
“17………Capitation fee is prohibited, both to the State Government as well as the private institutions, vide Para 140 of Inamdar case….”[32]
The States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh enacted statutes prohibiting collection of capitation fee and regulating admission in professional colleges. In terms of the provisions of the said Acts, the management of the professional colleges is prohibited from charging any fee other than fee determined under the said Acts.
The Reasonable Surplus Doctrine
Private Unaided Educational Institutions are allowed to make Profits but not Profiteering.
The unanimous opinion of the Supreme Court in all the above mentioned cases was that while the private unaided institutions were allowed to make some profits, in the course of their occupation, charging of capitation fee and illegal profiteering was and is strictly prohibited. Therefore what is prohibited is illegal profiteering and not profits. The term ‘profiteering’ was defined by Sinha, J. in the Islamic case taking the aid of Black’s law dictionary in the following manner:
“137. Profiteering has been defined in Black's Law Dictionary, Fifth edition as:
"Taking- advantage of unusual or exceptional circumstances to make excessive profits."[33]
The notion that private unaided educational institutions are entitled to earn profits and not to profiteer has been affirmed by the Supreme Court in a very recent case, namely Unaided Private Schools of Delhi v. Director of Education in the following words:
“68. On a perusal of T.M.A Pai Foundation and P.A. Inamdar, it can be inferred that private unaided institutions are permitted to have a profit but not permitted to profiteer….”[34]
Reasonable Surplus
The apex court was also of the opinion that such institutions were justified in earning reasonable surplus in the course of their occupation. The apex court was of the following opinion vis-à-vis reasonable surplus in the Pai foundation case:
“69…Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible…..”[35]
The fact that merits attention is that the apex court has constantly reiterated that the reasonable surplus earned by such institutions can only be utilised for the purpose of education, i.e. for the expansion and augmentation of education and not for any other purpose. Further the reasonable surplus doctrine is only available to those institutions making profits out of their own investments. In the Pai foundation case it has been clearly mentioned that reasonable surplus would not come in the ambit of profiteering:
“….Reasonable surplus to meet the cost of expansion and augmentation of facilities does not, however, amount to profiteering.”[36]
The above position was affirmed and further elaborated. The apex court was of the opinion that earning reasonable surplus was an integral part of an occupation, hence it was valid. Para 128 of the Islamic case is worthy of perusal in this regard:
“128…..They, (unaided educational institutions) like any other citizens carrying on an occupation, must be held to be entitled to a reasonable surplus for development of education and expansion of the institution. Reasonable surplus doctrine can be given effect to only if the institutions make profits out of their investments. As stated in paragraph 56(of the Pai foundation case), economic forces have a role to play. They, thus, indisputably have to plan their investment and expenditure in such a manner that they may generate some amount of profit. What is forbidden is (a) capitation fee and (b) profiteering.”[37]
The notion of reasonable surplus was further crystallized by the apex court in the Inamdar case. In this case the court tried to explain the gist of the answers which had been formulated by the Supreme Court in the Pai foundation case as follows:
“16……A provision for reasonable surplus can be made to enable future expansion. The relevant factors which would go into determining the reasonability of a fee structure, in the opinion of majority, are: (i) the infrastructure and facilities available, (ii) the investments made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the institution etc.”[38]
The Supreme Court for the first time in the Inamdar case after the Modern school case (2004) discussed the concepts of revenue expenditure vis-à-vis reasonable surplus, reiterating its earlier stand, but this time backing it with a cogent reason for the institutions to earn reasonable surplus in the following words:
“Equally, a reasonable surplus should be permitted so that the fees charged cover the entire revenue expenditure and in addition leaves a reasonable surplus for future expansion. This alone would prevent the clandestine collection of capitation fees and would result in entrepreneurs investing in new medical colleges.”
Expense as distinct from Expenditure 
Right from the Modern School v. U.O.I case to the Inamdar case, the Supreme Court has termed education as a charitable occupation. This implies that educational institutions are run on philanthropic purposes and the accounting principles to be applied to them are that of not-for –profit or non-business organisations. In the recent years, it has been a usual phenomenon that such institutions have tried to cash in excessive profits by manipulating their books of account, showing frivolous entries which will entitle them to recover money on the annual or recurring basis, although with depreciating interest. In this regard it is imperative to get cognisant with the concepts of ‘expense’ and ‘expenditure’. These concepts were defined by the Supreme Court in the case of Modern School v. Union of India:
“20. Under the Generally Accepted Accounting Principles, expense is different from expenditure. All operational expenses for the current accounting year like salary and allowances payable to employees, rent for the premises, payment of property taxes are current revenue expenses. These expenses entail benefits during the current accounting period. Expenditure, on the other hand, is for acquisition of an asset of an enduring nature which gives benefits spread over many accounting periods, like purchase of plant and machinery, building etc. Therefore, there is a difference between revenue expenses and capital expenditure. Lastly, we must keep in mind that accounting has a linkage with law. Accounting operates within legal framework. Therefore, banking, insurance and electricity companies have their own form of balance-sheets unlike balance-sheets prescribed for companies under the Companies Act 1956.” Therefore, we have to look at the accounts of non-business organizations like schools, hospitals etc. in the light of the statute in question.”[39]
Thus the fine thread which differentiates ‘expense’ from ‘expenditure’ is that while the former is on annual basis, the latter is of enduring nature and is not accounted during the financial year. The unjustified practise observed by some of the institutions is to show frivolous entries in their expense accounts so that they can incur profits on the same.
Ex. It is a usual feature that the private institutions advertise their colleges in the newspapers throughout the year. The monies incurred for the same is shown in the expense accounts. However, this practise is erroneous in nature as advertising is only a measure to popularise the brand name of such institutions and cannot be termed as a proper expense. Hence, the institutions are not entitled to earn profits on the same.
The scheme formed by the Islamic case that the books of account are to be scrutinised by a Charted Accountant acts as a safety valve against such unwarranted practices. Another feature that distinguishes expense from expenditure and which is relevant in regard to the fee charged by the institutions is that while expenses are to come out of the fee charged, whereas the expenditure has to come out of the savings of the institutions. This concept was pointed out by the apex court in the Modern school case (2004) in the following words:“21…..
Therefore, rule 177 (of the Delhi school Education act, 1973) shows that salaries and allowances shall come out from the fees whereas capital expenditure will be a charge on the savings. Therefore, capital expenditure cannot constitute a component of the financial fees structure as is submitted on behalf of the schools. It also shows that salaries and allowances are revenue expenses incurred during the current year and, therefore, they have to come out of the fees for the current year whereas capital expenditure/capital investments have to come from the savings…….”[40]
What amount of Reasonable Surplus is Reasonable?
Now, the terms ‘reasonable’ and ‘surplus’ are somewhat repugnant to each other. Although the apex court did not elaborate on the issue of reasonable surplus, abstaining from fixing a certain amount which could be called as reasonable surplus, Sinha, J. in the Islamic Academy case was of the following opinion:
“135. While this Court has not laid down any fixed guidelines as regard fee structure, in my opinion, reasonable surplus should ordinarily vary from 6% to 15%, as such surplus would be utilized for expansion of the system and development of education.”[41]
However, it is submitted that in order to fix the reasonable surplus care has to be taken in respective cases. An institution charging exorbitant fees and not providing commensurate facilities to its pupils cannot be allowed to earn a reasonable surplus of 15%. The notion of reasonable surplus cannot be cabined within doctrinaire limits or generalized, hence special care has to be taken while examining the issue of reasonable surplus.
Although the Supreme Court has dealt the issue of fee structure in detail, it is evident as has been pointed out by the apex court itself, that the findings are not exhaustive in nature. It is my sincere opinion that the instant issue cannot be cabined within a straight jacket formula. The basic notion that has to borne in mind while forming any statute or while imposing any regulation on such institutions is that education is a charitable occupation, in which the private players are allowed to earn profits but not to profiteer, i.e. to make unreasonable or excessive profits. A harmonious balance has to be struck between the conflicting interests of the autonomy of private unaided educational institutions in fixing a reasonable fee structure on one side, ensuring that they earn a reasonable surplus, while the students are not compelled to pay exorbitant or unjustified fees, on the other hand. The golden thread which runs through this issue is that private unaided educational institutions enjoy a greater autonomy in matters of administration which encompasses the fixation of fee structure also. A workable formula, which is not rigid in nature needs to be formulated so that the institutions can be allowed to earn reasonable surplus, taking into consideration the nature of the course i.e. super speciality courses or other courses etc. The objective is not only to fix a reasonable fee structure vis-à-vis educational institutions, but that the students get commensurate facilities and quality education in exchange of the fee paid by them.
[1] (1993) 1 SCC 645. Although this case was overruled by the Pai Foundation case subsequently, the notion that the citizens have a fundamental right to education, which inherently flows from Ar. 21 and the practice of charging capitation fee was abhorrent to the constitutional scheme, hence prohibited, were upheld by the later. The Pai foundation case was in consonance with this case in these 2 aspects. 
[2] (2002) 8 SCC 481. The majority judgment was delivered by Kirpal, CJ with Ruma Pal, S. N. Variava and Ashok Bhan, JJ concurring with him. Khare, J. delivered a separate but concurring opinion. The judgment was delivered on 31st October, 2002. 
[3] (2003) 6 SCC 697. The majority judgement was delivered by Khare, CJ on behalf of Variava, Balakrishnan and Pasayat, JJ. While Sinha, J delivered a separate opinion. The judgement was delivered on 14th August, 2003.
[4] (2005) 6 SCC 537. The decision which was delivered by Lahoti, CJ. 
[5] (2009) 7 SCC 751. Para 4.
[6] (2009) 10 SCC 1. Para 24, per Kapadia, J.
[7] Entry 25 of List III (VIIth schedule) of the Constitution of India: Education, including technical education, medical education and universities and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
[8] Islamic Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697; Para 1, per Sinha, J. 
[9] Chaturbhuj Nath Tewari, Capitation Fee Vis-à-vis Surplus Fund In Higher Education
[10] J.P. Unnikrishnan v. State of Andhra Pradesh (1993) 1 SCC 645
[11] T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, para 39.
[12] (2004) 5 SCC 583, Para 3, 4 and 5, per Kapadia, J (Khare, C.J concurring with Sinha,J. dissenting)
[13] Praveen K. Singh, - Education is recession proof.
[14] P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, Para 129
[15] Modern School v. Union of India (2004) 5 SCC 583, Para 14
[16] Modern Dental College & Research Centre v. State of M.P. (2009) 7 SCC 751, Para 10.
[17] T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Para 69, per Kirpal, C.J.
[18] T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Para 61, per Kirpal, C.J.
[19] Islamic Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697
[20] Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, Para 56
[21] Ibid. Paras 5 and 6
[22] P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537, Para 26
[23] Ibid. para 139
[24] (1992) 3 SCC 666
[25] (1992) 3 SCC 666
[26] (1993) 1 SCC 645
[27] AIR 2002 SC 463
[28] (2002) 8 SCC 481
[29] (2003) 6 SCC 697
[30] (2004) 5 SCCLE 583
[31] (2009) 7 SCC 751
[32] Ibid. Para 17
[33] Per Sinha,J. in the Islamic academy case, Para 137
[34] Unaided Private Schools of Delhi v. Director of Education (2009) 10 SCC 1. Per Sinha,J. Para 68. This case came before the apex court in the form of a review petition under Ar. 137 of the Constitution of India. The court reviewed its earlier decision in the case of Modern School v. Union of India (2004) 6 SCC 537. Sinha,J. dissented in this case on the same lines as he did in the Modern School case.
[35] Per Kirpal, C.J. in the Pai Foundation case, Para 69 (as per Manupatra citation)
[36] Per Kirpal, C.J. in the Pai foundation case. (answer to Q. 9)The court at this point overruled the Unnikrishnan case, but upheld it to the extent that right to education is a fundamental right and charging capitation fee is prohibited. 
[37]Per Sinha, J. in the Islamic Academy Education case, Para 128 (as per Manu citation)
[38] Para 16(1) of the Inamdar case (as per Manu citation)
[39] Modern School v. Union of India AIR 2004 SC 2236, per Kapadia, J. Para 20.
[40] Ibid. Para 21
[41] Ibid. Para 135
CBDT Issues a Circular with Second Set of FAQ on Tax Compliance Provision Under Chapter VI of the Black Money Act
113 : Page View
The Central Board of Direct Taxes (CBDT) has considered the queries received from the public about the tax compliance provisions under Chapter-VI of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (‘Black Money Act’) and issued a Circular here today clarifying another set of 27 queries.   Earlier the Board had issued a Circular on 6th July, 2015 clarifying 32 queries regarding tax compliance provision under the said Act.. 
The Black Money Act has introduced a tax compliance provision under Chapter-VI of the Act. The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Rules, 2015 (the Rules) were also notified vide Notification no. G.S.R. 529 (E) dated 2nd July, 2015.
The Basic Structure of the Indian Constitution
227 : Page View
The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's
constitutional history during the last decade of the 20th century, has reappeared in the public realm.
While setting up the National Commission to Review the Working of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition of 24 national and
regional level parties) stated that the basic structure of the Constitution would not be tampered with.
Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions
that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's
Several political parties -- notably the Congress (I) and the two Communist parties which are in the
opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy
for its design to adopt radical constitutional reforms thus destroying the basic structure of the
Much of the public debate has been a victim of partial amnesia as even literate circles of urban India
are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s.
The following discussion is an attempt to chart the waters of that period rendered turbulent by the
power struggle between the legislative and the judicial arms of the State.
According to the Constitution, Parliament and the state legislatures in India have the power to make
laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests
in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has
the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding
fathers wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. Hence Parliament was invested with the power to amend the Constitution. Article 368
of the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of preserving the original
ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the pretext of amending it. The
phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this
concept for the first time in the historic Kesavananda Bharati case in 1973.1 Ever since the Supreme
Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Nature, Definition and elements of crime
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Certain moral sentiments develop in the history of human society, how they
developed is not our present concern certain of these moral sentiments become of
such interest to the whole group that conduct out ranging then a made a crime. There
is a relation between crime and immorality. In early societies these crimes arrows out
of the feeling that conduct that offended the diety threatened the general security.
Crime is a changing concept, dependent upon the social development of a people that
is upon the fundamental interests and values dominating their common beliefs.
Crime Definition
The concept of crime involves the idea of a public as opposed to a private wrong with
the consequent intervention between the criminal and injured party by an agency
representing the community as whole. Crime is thus the international commission of
an act deemed socially harmful; or dangerous and the reason for making any given act
a crime is the public injury that would result from its frequent participation. The
society therefore takes steps for its preventation by prescribing specific punishments
for each crime.


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Ola assures Delhi High Court to run only CNG cabs in Delhi
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Popular Cab Service, Ola has made changes in its app and assured Delhi High Court that it will only allow CNG cabs to ply under its banner in the capital. The Delhi government reportedly also asked Ola to plant 50,000 trees to make good the loss caused to the environment due to the flouting of the ban.
Before contempt petition could be heard against CEO Bhavish Aggarwal, former Union Minister P. Chidambaram assured the Court that Ola would do away with all diesel taxis in Delhi within two weeks.
It told the court that in compliance of its order, the company’s diesel taxis would be restricted to inter-city travel only from Thursday.
Ola App now enquires whether a passenger wants to ride to a destination within Delhi or outside. In case the destination selected is within Delhi, only a CNG cab will arrive. “We have introduced a technology that will help distinguish CNG and diesel vehicles on its app, which will help the company, keep track of the drivers’ compliance with the cleaner fuel norms in Delhi. It will also enable users to choose only CNG vehicles for usage within Delhi,” Ola cab spokesperson was quoted as saying.
Justice Manmohan Singh has now directed ANI Technologies, which operates under the brand name, Ola, to submit an affidavit by October 5, showing its compliance with the July 29 guidelines
It has been speculated that Uber cabs might also come under the scanner of the Delhi High Court since it continues to run diesel taxis on the city roads.
On January 1st, the Delhi government had banned the operation of app-based cab services till they complied with the guidelines of the Radio Taxi Scheme of 2006 which was amended on December 26, 2014.
Following this, a Single Judge bench of the Delhi High Court had, on July 29 directed the Delhi government and traffic police to enforce the ban order issued on January 1. A challenge to the single Judge order was dismissed by a Division bench in August. You may read the LiveLaw story here.
The Court was then approached by the Association of Radio Taxis, alleging that despite the order dated July 29, Ola was running diesel vehicles in the capital city.

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