As per case facts, Shrikant, after completing his First Year Arts course through English medium, was denied admission to the Intermediate Arts Examination classes in English medium by the St. ...
No Acts & Articles mentioned in this case
1962
Sobhraf Odharmal
v.
State of Rajasthan
Shah, J.
1962
September 21.
112 SUPRE,ME COURT REPORTS [1963] SUPP.
are set out in the order dated May 3/4, 1962 were
lawfully cancelled.
The objectors had since cancella
tion
of their permits no fundamental right which
could be infringed by the
State Government plying its
vehicles with or without permits issued by the Regional
Transport Authority under s.42(
1) of the Motor
Vehicles Act.
The appeal and the writ petition therefore fail
and are dismissed with
costs. There will be one
hearing· fee.
Appeal and writ petition dismissed.
THE GUJARAT UNIVERSITY, AHMEDABAD
v.
KRISHNA RANGANATH MUDHOLKAR
AND OTHERS
(B. P. SINHA c. ]., jAFER IMAM, K. SUBBA RAO,
K. N. WANCHOO, J. c. SH.AH AND
N. RAJAGOPALA AYYANGAR, lJ.)
University Education-F·ixation of exclusive ""'4ium of
mstruction-Legislative Competence of State Legislature-Consti
tution of India, Art. 254 (1), Seventh Schedule, List I,
Entry 66, List II, Entry lr---Gujarat Univer8ity Act, 1949
(Bom. 56 of 1949) as amended by Act 4 of 1961, 88. 4, 18, 20,
22, 38A-Univer8ity Statutes, 207, 208 209.
The second respondent joined the First Year Arts Class
of the St. Xavier's College, affiliated to the Gujarat University,
where instruction was imparted through the medium of English
and after successfully completing that course sought admission
to the cla~ses preparing for the Intermediate Arts Examin
ation of the University through the medium of English. The
Principal of the college informed him that in view of the
provisions
of the Gujarat University Act, 1949, and statutes
267,
208 and 209 framed by the Senate of the University, as amended
in J 961, . he could not be admitted without the "11\Clion of the
University The first respondent (father of the second respondent)
1
I S.C.R. SUPREME COURT REPORTS 113 ..
moved the Vice-Chancellor but sanction was refused. The
respondents then moved the High Court under Art. 226 of the
Constitution for v.rrits requiring the university and the Principal
of the College not to enforce the provisions of ss. 4 (27) 18 (1)
(XIV)
and 38 A of the Gujarat University Act and Statutes
207,
208, 209 and that Court holding in favour of the respondents
issued the writs prayed for.
The
State and the University filed
separate appeals to this Court. It was contended on behalf of
the University that s. 4 of the Act conferred power on the
University
to impose Gujarati or Hindi as the exclusive medium
of instruction and examination,
and that the impugned
provisions were valid. The questions for deternlination were,
(1) whether the Gujarat University had the power under the
Act to prescribe Gujarati
or Hindi or both as exclusive 1nedium
or media of instruction and examination, (2) whether legislation
authorising the University to impose such 1nedia
was
constituti
onally valid in view of Entry 66 of list I of the Seventh Schedule
to the Constitution.
Held, (Per Sinha, C. J., Imam, Wanchoo, Shah and
Ayyangar,JJ.), that neither under the Gujarat Uniyersity Act,'
1949, as originally enacted nor as amended by Act
4of1961,
was power conferred on the University to impose Gujarati or
Hindi or both as exclusive medium or media of instruction or
examination and since no power
\Vas conferred on the University
the Senate could exercise no such power.
Clause (27) of s. 4 of the Act, which alone expressly dealt
with the subject
of medium of instruction, properly construed,
did not indicate
that the Legislature was therein indirectly
dealing with the subject
of prescribing an exclusive medium of
instruction. From the use of the word
"Promote" read in the
context
of the indefinite article
"a", it was clear that the Univer.
sity was not empowered to impose Gujarati or Hindi as exclusive
medium
of instruction and examination.
Use of the definite
article "the" in the proviso in relation to English as the medium
of instruction supported this view.
Since cl. (27) was not intended to authorise the imposition
of Gujarati or Hindi or both as exclusive medium or media,
cl. (28)
of s. 4 could not also be held to do so. Nor did ss. 18, 20, 22 or any other section of the Act confer that authority.
J- corporation has ordinarily an implied power to carry
out its objects;
but that rule could not by itself, in the absence
of express provisions in the Act, authorise the University to
·
impose an oxclusive 1nedium of instn1ction.
The letter dated Angus! 7, 1949, addressed by the Govern
ment of India to the Universities and ProvincLtl G·Jvernments
1962
Gujarat University
Ahmedabad
v.
Krishna Rangarullh
A1udholkar
J
1962
Gujarat Unilldrsity,
Ahmttfabd
v.
Krishna Rangan"th
Mudholkar
114 SUPREME COURT REPORTS [1963) SUPP
requesting them to gradually replace English as the medium
of instruction· at the University stage by the regional or State
language cou] d not affect the interpretation of the plain language
of the Act.
Nor could the Statement of Objects and Reasons of the Act,
which proposed to empower the University to adopt Gujarati or
the national language as the medium of instruction, justify the
court in assuming that the proposal \Vas carried out, the State ..
ment of Objects and ·Reasons must be ignored in interpreting
the statute.
It was not correct to
3ay that legislation prescribing
the medium or media
of instruction in higher education and
other instructions must fall within
Item l l of List II of the
Seventh Schedule to the Constitution. The use of the expres
sion "subject to" in that Item clearly indicates that legislation
in respect of matters excluded
by that Item cannot be
under
taken by the, State Legislature.
Hingir-Rampur Coal Co. v. State of Orissa, (196\]
I S.C.R. 537, referred to.
I tern
11 of List II and Item 66 of List I must be
harmoniously construed
and where they overlap the power
conferred by Item
66 on the
Parliament must prevail over the
power conferred on the Stale Legislatures by Item 11.
The test of the validity of a State Legislation on
University education or education
in Technical and
Scientific
Iii.stitutions not covered by Entry 64 of List I, would be whether
•uch legislation impinges "11 the field reserved for the Uriion
by Item 66 of List I and prejudicially affects coordination and
determination of standards, and not the existence of some
definite Union Legislation
to that end. If there he one, that
would prevail over the State-legislation under Art. 254(1)
of
the Constitution. Even if there is no such legislation, State law
trenching upon the Union field must still be invalid.
Item 66
of List I cannot be narrowly construed and the
power it confers extends to all ancillary or subsidiary matters
which can
be fairly and reasonably comprehended by it,
such
as disparities resulting from the adoption of a regional medium
of instruction resultin(( in a falling of standards in higher
education. The, word 'co-ordination' does not merely mean
evaluation but also harmonising relationship for concerted
action. . The power under this Item is absolute and not condi
tioned by the existence of a state of emergency or unequal
standards calling for its exercise.
Since medium of instruction is not an item ill the legis
lative Lists, it necessarily falls within Item 11 of List II, at
)
1 S.C.R. SUPREME COURT REPORTS 115
also within items 63 to 66 of List I and in so far as it is a
necessary incident
of the power under Item 66 it must be deemed
to
be excluded from Item 11 of List II.
If a legislation imposing a regional language or Hindi
as the exclusive medium of instruction is likely to result in
lowering
of standards, it must necessarily fall within Item 66
of List I and be excluded to that extent from Item 11 of
List
II.
Per Subba Rao, J.-Under what entry a legislation falls
must be decided by the scope and effect of the legislation and
by its pith and substance. Case-law has laid down various
tests to get at the core
of the legislation but no case has yet
held
that even if the pith and substance of a legislation falls
within one entry,
it is liable to be struck down on the ground
that
it may possibly come into conflict with another by a
co-ordinate legislature under another entry.
If the impact of a
State law on a Central subject has the effect of wiping out or
a bridging the Central field, then the State law may be held to
be a colourable exercise of power and that in pith and substance
it falls not under the State entry but under the Union entry.
The case-law does not, hoV1rever, recognise an independent
principle of direct impact outside the doctrine of pith and
substance.
Prafulla Kumar v. Bank of Commerce, Khulna, A.I.R.
1947 P.C. 60, State of Bombay v. F. N. Balsara, [1951] S.C.R.
682, A. S. Kmhna v. Stn,te of Madras, (1957) S.C.R. 399,
Union Colliery Co. of British Columbia Ltd. v. Bryden [1899)
A.C. 580, Bank of Toronto v. Lambe, [1882112 A.O. 515 and
Atlorney General for Alberta v. Attorney General for Canada,
[I 939) A.C. l! 7, discussed.
The well-settled rules of interpretation arc that the widest
amplitude should be given to the language of the Entries and
when they overlap this Court should reconcile and harmonise
them. So construed, it was clear that mediun1 of instruction
was included in Entry I I of List II and not in Entry 66 of List
1 \vhich relates to "co-ordination" and "determination of
standards". The State legislature could, therefore, make a law
empowering the University to prescribe a regional language as
the exclusive medium
of instruction. The Gujarat
University
Act wa' thus within Entrv I I and did not affect the Union
Entry which does not neceSsarily involve a particular medium
of instruction.
Calcu.tta (',as Co. v. The State of West Bengal (I 962)
Supp. 3 S. C. R. I applied.
1962
Gujarat University,
Ahmtdabad
v.
Krishna Ranganath
Mudholkar
1962
Gujarc! University,
Ahm1dabad
v.
Krishna Rar1ganalh
Mwiholkar
116 SUPREME COURT REPORTS [1963).SUPP.
When an act confers a power on a corporation such as
the University, it impliedly grants the power
of doing all acts
which are essentially
acce5sary for exercisiM that power. The
provisions of the Act leave no manner~ of doubt that the
University had the implied power to prescribe for the purposes
of higher education a number of rr1edia or instructions or even
a sol.e and exclusive medium. That power is implicit in cl.
(I)
of •A and the other clauses thereof. Clause (27) did not curtail
that power but conferred an additional power, to promote the
study
of Gujarati or Hindi and the use of them as medium of
instruction
aiid examination; the proviso to it also corresponds
with the scheme.
CIVIL APPELLATEJURISDICTION: Civil Appeals
Nos. 234 and 262 of 1962.
Appeals from the judgment and order dated
January 24, 1962, of the Gujarat High Court in
Special Civil Application
No.
624 of 1961.
J. C. Bhatt, H.K. Thakore and V. J. Merohand,
for the appellants (in C.A. No. 234/62) and
respondents
Nos. 2. and 3 (in C.A. No. 262/62).
N. A. Palkhivala,
C. T. Daru, J. B.
Dadachanji, 0. 0. Mathur and Ravinder Narain, for
the respondent No. 1 (in both the appeals.)
M. C. Setalvad, Attorney-General of India
J, M. Thakore, Advocate-General for the State of
Gujarat, M. G. Doshit and R. H. Dhebar, for the
respondent No. 3 (in C.A.
No. 234/62) and the
appe·
Hant (in C. A. No. 262 of 1962).
I. M. Nanavati and G. Gopalakrishna, for the
intervener
(in C.A. No.
234/62).
Frank Anthony, Charanjit Talwar, P. C.
Agarwala, J.B. Dad.achanji, 0. 0. Mathur and
Ravinder Narain, for Intervener No. 2 (in both \Pe
appeals).
1962. September 21. The Judgment of Sinha,
C. J., Imam, Wanchoo, Shah and AyYangar, JJ.,
was delivered by Shah, J., Subba Rao, J. delivered a
separate Judgment.
1 S.C.R. SUPREME COURT REPORTS 117
SHAH, J.-Shrikant son of Shri Krishna
Madholkar appeared for the Secondary School Certi
ficate Examination held by the State
of Bombay in
March,
1960, and was declared successful. He took
instruction in the various subjects prescribed for the
examination through the medium of Marathi (which
.
is his mother-tongue) and answered the questions at
the examination
also in the medium of Marathi.
Shrikant joined the
St. Xavier's College affiliated to
the University
of Gujarat, in the First
Year. Arts
class and was admitted in the section in which
instructions were imparted through the medium
of
English. After successfully completing the First
Year
Arts. course in :Miarch, 1961, Shrikant applied for
admission to the classes preparing for the Intermediate
Arts examination
of the University
· through the
medium of English. The Principal
of the College
informed Shrikant that in
view of the provisions of
the Gujarat
University Act, 1949, and the Statutes
207, 208 and 209 framed by the Senate of the Uni
versity, as amended in 1961 he could not without
the sanction
of the University permit him to attend
classes in which instrnctions were imparted through
the medium
of English.
Shri Krishna, father of
Shrikant then moved the Vice-Chancellor of the
University
for sanction to permit
Shrikan• to attend the
"English medium classes" in the St. Xavier's College.
The Registrar of the University declined
to grant the
request, but
by another letter Shrikant
was "allowed
to keep English as a medium of examination" but
not. for instruction.
A petition
was then filed by
Shri Krishna
Madholkar on behalf of himself and his minor son
Shrikant in the High Court
of Gujarat for a writ or
order in the nature
of .Mandamus or other writ, direc
tion or order requiring the University
of Gujarat to
treat
ss. 4(27), 18 (i) (xiv) and 38A of the Gujarat
University Act, 1949, and Statutes
207, 208 and 209
as void and inoperative and to forbear from acting
1962
Gujarat University,
A.hmedabad
v.
Krishna Ranganath
Mudholkar
Shah, J,
1962
Gujarat Universil.J,
Ahmedabad
v.
Krishna Ranga11ath
Mudlwlkar
Sh'lh, J.
-
118 SUPREME COURT REPORTS [1963) SUPP.
upon or enforcing those provisions and requiring the
Vice-Chancellor
to treat the letters or circulars issued
by him in connection with the medium of instruction
as illegal and to forbear from acting upon or enforcing
the same, and
also requiring the
University to forbear
from objecting
to or from prohibiting the admission
of
Shrikant to "the English medium Intermediate
Arts class." and requiring the Principal of the College ·
to admit Shrikant to the "English medium Inter
mediate
Arts
class" on the footing that the impugned
provisions
of the Act,
Statutes and letters and circulars
were void and inoperative.
The High Court
of Gujarat by qrder dated
January
24, 1962, issued the writs prayed for. The
University and the State of Gujarat have separately
appealed to this Court with certificates
of fitness
granted by the High Court.
The judgment
of the High Court proceeded
upon diverse grounds which are summarised in their
judgment
as follows
:-
( 1) Statutes 207 and 209 in so far as they seek
to lay down and impose Gujarati and/or
Hindi in Devanagri script
as media of ins
truction and examination in institutions
other than those maintained by the
Uni
versity are unauthorised and therefore null
and void, for neither
s. 4(27) nor any other
provision
of the Act empowers the
Univer
sity to lay down Gujarati or Hindi as a
medium
of instruction and examination in
such institutions or to forbid the
use of
English as a medium of instruction and
examination for and in such institutions;
(
2) In any event, the
University has the power
only
to lay down Gujarati or Hin.di as one of
the medium of instruction and examination
and not
as the only medium of instruction
1 S.C.R. SUPREME COURT REPORTS 119
and examination
to the exclusion of other
languages;
(3) The proviso to cl. 27 of s. 4 of the Gujarat
University Act
as amended by Act 4 of
1961 constitutes an encroachment on the
field
of Entry 66 of List I of the Seventh
Schedule to the Constitution and
is there
fore beyond the legislative competence of
the State and the Statutes 207 and 209
made thereunder arc null and void ; and
(
4)
·~ven if on a true construe lion of s. 4(27)
and other provisions
of the Act, the
Uni
versity is authorised to prescribe a parti
cular language or languages
as medium or
media
of instruction and examination for
affiliated colleges and
to prohibit
the us•: of
English as a medium of instruction and
examination in afliliated colleges, the
provisions authorising the imposition
of
exclusive media and the Statutes and cir
culars issued in pursuance thereof arc void
and infringing Articles
2!) ( 1) and 30 ( 1)
of the Constitution.
We have declined to hear arguments about the
alleged infringement
of fundamental rights
under
Articles 29 ( l) and :lo ( l) by the Act assuming as it
authorises imposition of Gujarati or Hindi as an
exclusive medium
of instruction, for, in our view, the
petition suffers from a singular lack
of pleading in
support
of that case, and even the St. Xavier's
College
authorities who had at one stage adopted a non
contentious attitude but later supported the case
of
the petitioner, did not choose to place evidence on
the record which would justify the
Court in entering
upon an investigation
of this plea of far reaching
importance. Manifestly, the decision
of the question
whether such legislation infringes Arts.
29 ( l) and
30(1) depends upon proof of several facts such as
existence of a distinct language, script or culture of a
1962
Gujarat Uniuersily
Ahmedabad ·
v.
Krishna Ranganat.
Mudholkar
Shah,/.
..
1962
;ujarat University,
Ahmedilhad
v.
;rishnw Ranganath
Mudholkar
Shah) J.
...
120 SUPREl.vlE COURT REPORTS [1963] SUPP.
section of citizens for whom the St. Xavier's College
caters or the existence
of a minority based on religion
or language having been
by the enactment of the
impugned legislation obstructed or likely
to be
obs
tructed in the exercise of its rights to establish and
administer educational institutions of its choice.
We,
therefore, express no opinion on the question whether
the provisions of the Act and the
Statutes and cir
culars issued infringe any fundamental rights of any
section
of citizens or any minority religious or
linguistic.
We must, however, make it clear that we
refuse to decide the question not because the petitioner
had
no right to maintain the petition under Art. 226
of the Constitution as contended by the University
and the
State of Gujarat, but because of the paucity
of pleading and evidence on the record.
Two substantial questions survive
for determi
nation-(l) whether under the Gujarat University
Act,
1949, it is open to the University to prescribe
Gujarati or Hindi or both
as an exclusive medium or
media
of instruction and examination in the affiliated
colleges, and
(2) whether legislation authorising the
University to impose such media would infringe Entry
66 of List I,
Seventh Schedule to the Constitution.
St. Xavier's College was affiliated to the
University
of Bombay under Bombay Act 4 of
1921;l.
The Legislature of the Province of Bombay en acted
the G1tjarat University Act, 1949, to establish and
incorporate a teaching and affiliating University "as
a measure of decentralization and re-organisation" of
University education in the province. Bys. 5(3) of
the Act, fmm the prescribed date all educational insti
tutions admitted to the privileges of the University of
Bombay and situate within the University area of
Gujarat were deemed to be admitted to the privileges
of the University of Gujarat. Section 3 incorporated
by the University with perpetual
succession and a
common seal.
Section 4 of the Act enacted a provision
which
is not normally found in similar Acts constituting
1 S.C.R. SUPREME COURT REPORTS 121
Universities. By that section various powers of
the University were enumerated. These powers
were made exercisable
by diverse authorities of the
University
set out in s. 15. We are concerned in these
appeals with the
Senate, the Syndicate and the
Academic Council. Some of the powers conferred by
s. 4 were made exercisable by s. 18 by the Senate.
The Senate was by that section authorised, subject to
conditions as may be prescribed by or under the
provisions
of the Act, to exercise the powers and to
perform the duties as set out in sub-s. ( 1 ). By s.
20
certain powers of the University were made exercisable
by the Syndicate, and by s. 22, the Academic Council
was invested with the control and general regulation
of, and was made resporisible for, the maintenance of
standards of teaching and examinations of the Uni
versity and was authorised to exercise certain powers
of the University. The powers and the duties of the
Senate are to be exercised and performed by the pro
mulgation
of
Statutes, of the Syndicate by Ordinances
and
of the Academic
Council by Regulations. In
1954, the Gujarat University framed certain Regula
tions dealing with the media of instruction. They are
Statutes 207, 208 and 209. Statute 207 provided :-
( 1) Gujarati shall be medium of Instruction and
Examination.
(2) Notwithstanding anything in clause ( 1)
above, English shall continue to be the
medium
of instruction and examination for
a period not exceeding ten years
from the
date on which section 3
of the Gujarat
University Act
comes into force, except as
prescribed from time to time by
Statutes.
(3) Notwithstanding anything in clause (1)
above, it is hereby provided that non
Gujarati students and teachers
will have the
option, the former for their examination
and the latter for their teaching
work, to
use Hindi as themedium, if they so desire.
1962
Gujarat Unil.iersity
AhmeiabaJ
v.
K rislma Rant an ct/,
Mutllwlkar
SiuJh, J.
1962
iujarat University,
Ahmedabad
v.
-tri'.ikna Ranganath
Mudholkar
Shah, J;
122 SUPREME COURT REPORTS [1963}SUPP.
(4)
The Syndicate will regulate this by making
suitable Ordinances in this behalf, if,
as
and when necessary.
Notwithstanding anything in
(1), (2), (3)
above, the medium of examination and
instruction
for modern Indian Languages
and English may be the respective langua
ges.
Statute 208 provided that the medium of instruction
and examination in all subjects from June, 1955, in
First Year Arts, First Year Science and First Year
Commerce in all subjects and from June, 1956, in
Inter Arts, Inter Science, Inter Commerce and First
Year Science (Agri.) shall cease to be English and
shall
be as laid down in
Statute 207(1). This Statute
further provided that a student or a teacher who feels
that he cannot "use Gujarati or Hindi tolerably well",
would be permitted the use of English in examination
and instruction respectiveiy up
to November, 1960,
(which according
to the academic year would mean
June, 1961) in one or more subjects.
Statute 209 is
to the same effect enumerating therein the permitted
use of English for the B.A., B.Sc., and other examina
tions. After the constitution of a separate State of
Gujarat, Act 4
of 1961 was enacted by the Gujarat State Legislature. By that Act·the proviso to s. 4(27)
was amended
so as to extend the use of English as
the medium of instruction beyond the period originally
contemplated and
s. 38A which imposed an obligation
upon all affiliated colleges and recognised institu
tions
to comply with the provisions relating to the
media
of instruction was enacted. It was provided by
s. 38A(2) that if an affiliated college or recognised ins
titution contravenes the provisions of the Act, Rules,
Ordinances & Regulations in respect of media of
instruction the rights conferred on such institution or
college shall stand withdrawn from the date of the
contravention and that the college or institution shall
cease
to be affiliated college or recognised institution
jl
I
1 S.C.R. SUPREME COURT REPORTS 123
for the purpose
of the Act. The
Senate of the Uni
versity thereafter amended Statutes 207 and 209.
Material part of Statute 207 as amended is as
follows:-
( 1) Gujarati shall be the medium of instruction
and examination :
Notwithstanding anything contained in sub
item (I) above, Hindi will be permitted as an
alternative medium
of instruction and
examina
tion in the following faculties :
(i) Faculty of Medicine,
(ii) Faculty
of Technology including
En
gineering, and
(iii) Faculty
of Law ; and
(iv) in all faculties for post-graduate
studies ;
(2) Notwithstanding anything contained m
clause (I) above, English may continue to
be the medium
of instruction and
exa
mination for such period and in respect
of such subjects and courses of studies as
may, from time to time, be prescribed by
the Statutes under sec. 4(27) of the Gujarat
University Act for the time being in force.
(
3) Notwithstanding anything contained in
clause (I) above, it
is hereby provided that
students and teachers, whose mother-tongue
is not Gujarati will have the option, the
former for their examination and the latter
for their instruction to
use Hindi as the
medium,
if they so desire.
(4) Notwithstanding anything contained in
clauses (I)
& (3) above, it is hereby
provid
ed that the affiliated Colleges, recognised
Institutions and University Departments, as
the case may be, will have the option to
1962
Gujarat U11iversitv,
Ahmedabad
v.
Krirhna Ranganaih
Afudholkar
Shah, J.
1962
Gujarat Universitp,
Ahmedah•d
v.
Krishna Ranganath
Mudho/kcr
Shah, J.
124 SUPREME COURT REPORTS [1963) SUPP.
use, for one or more subjects, Hindi as a
medium
of instruction and examination for
students
whose mother-tongue is not
Gujarati.
(5) Notwithstanding anything in clauses (1), (2),
(3) and (
4) above, the medium of examina
tion and instruction for modern Indian
languages and English may be the respective
languages. ·
Statute
209
as amended provides that the medium of
instruction and examination in all subjects in the
examinations enumerated therein shall
cease to be
English and shall be
as laid down in
Statute 207 as.
amended with effect from the years mentioned against
the respective examinations.
The Registrar
of the
University thereafter issued
a Circular on June 22, 1961, addressed to Principals
of Affiliated Colleges stating that the Vice-Chancellor
in exercise
of the powers vested in him under
s. 11(4)(a) of the Act was pleased to direct that-
(i)
Only those students who have done their
Secondary education through the medium
of English and who have further continued
their studies in First Year (Pre-University)
Arts Class in the year 1960-61 through
English, shall
be permitted to continue to
use English as the medium of their exami
nation in the Intermediate Arts
Class for
one year i.e.
in the year 1961-62, and
(ii) The Colleges be permitted to make arrange
ments
for giving instructions to students
mentioned in
(i) above through the medium
of English for only one year i.e. during the
academic year 1961-62, and
(iii)
That the Principals shall satisfy themselves
that only
such students as
mentioned in (i)
I
;
1 S.C.R. SUPREME COURT REPORTS 125
above are permitted to avail themselves of
the
concession mentioned therein.
Shrikant had not app~ared at the S.S.C. Examination
in the medium
of English and under the first clause
of the circular he could not be
j)ermitted by the
Principal
of the
St. Xavier's College to continue to
use English as the medium of instruction in the
Intermediate Arts
class: if the Principal permitted Shrikant to do so the College would be exposed to
the penalties prescribed by
s. 38A.
The petitioner challenged the authority
of the
University
to impose Gujarati or Hindi as the exclu
sive medium of instruction under the powers conferred
by the Gujarat University Act,
1949, as amended by
Act 4 of 1961. The University contended that autho
rity in that behalf
was expressly conferred under
diverse
clauses of s.
4, and it being the duty of the
Senate to exercise that power under s. lS(XIV), Sta
tutes 207 and 209 were lawfully promulgated. In any
event, it
was submitted that the University being a Cor
poration invested with control over higher education
for the area in which it functions such a power must be
deemed to
be necessarily implied.
In considering whether power to impose Gujarati
or
Hindi or both as exclusive medium or media of
instruction is conferred upon the University by the
Gujarat University Act, 1949, clauses (l),
(2), (7),
(8),
(10), (14), (27), and (28) ofs. 4 only need be
ronsidered. By cl. (1) power is conferred upon the
University "to provide for instruction, teaching and
training in such branches
of learning and courses of
study as it may think fit to make provision for
rese3.!'ch
and dissemination of knowledge". We do not, having
regard to the phraseology used by the Le_gisla~e,
agree with the High Court that this power IS ~tnc
ted in its exercise to institutions set up by the Univer
sity and d0es not extend to affiliated colleges. T~e
language used in the clause. does n~t warrant this
l'C9triction. But we agree with the High Court that
1962
Gujarat Uniwrsi~
A/und«h•d
v.
Krishru1 Ro.ntan•
Mudholktir
Shilh, J.
1962
-Cujarct University,
Ahmedabad
v.
-rrislma Ranganath
Mudholkar
Shah, J.
126 SUPREME COURT REPORTS [1963] SUPP.
the power conferred by cl. (1) docs not relate pri
marily to the medium of instruction but to the syllabi
in diverse branches of learning and
courses of study.
The clause confers authority upon the University
to
direct that instruction, teaching and training be
impar
ted in different branches of learning and courses of
study as the University thinks fit, but not to prescribe
an exclusive medium in which instruction in the
branches
of learning and courses of study is to be
imparted. Clause (2) which authorises the University
"to make such provision as would enable affiliated
colleges and recognised institutions to undertake
specialisation of studies", has no direct bearing on the
subject
of an exclusive medium of instruction. Nor
does cl. (7) which enables the University
"to lay down
the courses of instruction for various examinations"
authorise the University to prescribe an exclusive
medium
of instruction. Clause (8) which confers
power
"to guide the teaching in colleges or recognised
institutions" has no bearing on the power to prescribe
an exclusive medium. Power to designate branches
of learning, or courses of study in which instruction
is to be imparted, or power to take steps to facilitate
specialized studies, or
to guide teaching in
institutions
affiliated to or recognised by the University undoub
tedly includes the power to indicate the medium
through which instructions were at the date of the Act
normally imparted, but that power by itself
does not
include, in the absence
of a provision
express or by
clear implication, power to compel instruction through
an exclusive medium. Clause ( 10) provides that the
University shall have the
power
"to hold examina
tions and confer degrees, titles, diplomas and other
academic distinctions on persons
who -(a) have
pur
sued approved COW'SCS of study in the University or
in an affiliated college unless exempted therefrom in
the manner
p1'escribed by the Statutes,
Ordinances
and Regulations and have passed the examination
prescribed by the University, or (b) have carried on
research under conditions prescribed
by the
Ordinances
1 S.C.R. SUPREME COURT REPORTS 127
and Regulations". Counsel for the University con
tended that by cl. lO(a), the University had the autho
rity to approve courses of study in the manner pres
cribed by the Statutes, Ordinances and Regulations
and
as power was given by s. 18
(XIV) to the Senate
to frame Statutes providing either Gujarati or Hindi
or both
as medium or media of instruction, the power
of the University to impose an exclusive medium of
its choice was expressly entrusted to the University.
But the argument proceeded upon an incorrect reading
of the section. The provision does not by itself
empower the
University to prescribe the use of any
exclusive medium of instruction and examination.
The University
is thereby authorised to confer degrees
or academic
distinctio;ms upon persons who have
pursued approved
courses of study and have passed
the examination prescribed by the University.
Power
is also reserved to the University to confer degrees or
academic distinctions upon persons who have not
pursued the
courses prescribed by the University if
exemption in that behalf is prescribed by the Statutes,
Ordinances or Regulations. The expression
"in the
manner" prescribed by the Statute, Ordinance or
Regulation has
no reference to the class of persons
who have pursued approved
courses of study in the
University or in an affiliated college, but qualifies
the expression
"unless exempted therefrom" imme
diately preceding. By the clause the University is
authorised to confer degrees, diplomas or distinctions
not only upon persons who have pursued the courses
of instruction prescribed and have passed the qualify
ing examination, but upon other persons
as well who
have not pursued the
courses of instruction but have
passed the prescribed examination,
if exemption in
behalf
is
given by the Statutes. Ordinances or Regula
tions. The power under sub-cl. (a) of cl. (10) does not
carry with it the power to impose an exclusive medium
such
as Gujarati or Hindi. By cl. (14) power among
others to take measures
to
·ensure that proper standards
of instructions, teaching or training are maintained in
1962
Gujarat University,
Ahmulabad
v.
Krishna Ranganath
Mudholkar
Shah, J.
1962
Gujarat llniversity,
A.hmedabad
v.
Krishna Rangmiath
Mud!ltJlkar
Shah, J,
128 SUPREME COURT REPORTS [1963]SUPP.
the affiliated colleges and recognised institutions is
granted, and cl.(15) invests the University with power
to control and co-ordinate the activities of, and give
financial aid to affiliated
colleges and recognised
ins
titutions, but not the power to provide for an exclusive
medium
as claimed by the University. The Legislature
in
cl.(27) has dealt with the subject of medium of
instructions and the other clauses on which reliance
is placed do not expressly deal with that topic. It
would be difficult then to hold that the Legislature
while providing in
cl.(27) about the medium of
instruction was also dealing indirectly with the subject
of prescribing an exclusive medium of instruction,
when
it made provisions relating to instruction,
teach
ing and ,training in educational institutions or for
enabling those institutions to undertake specialized
studies or giving guidance in teaching in colleges, or
for providing for degrees or academic distinctions or
for taking measures ensuring proper standard of
instructions, teaching or training or the conduct
of
activities.
Clause
(27), before it was amended, by Act IV
of 1961, ran as follows :-
"to promote the development of the study of
Gujarati and Hindi in Devnagari script and the
use of Gujarati or Hindi in Devnagari script
or both
as a medium of instruction and
exami
nation;
Provided that English may continue to
be
the medium of instruction and examination in
such subjects and for such period not exceeding
,ten years from the date on which section 3
comes into force as may from time to time be
prescribed by the
Statutes."
By the first paragraph of cl.( 27) power is confen-ed to
promote the development and use of Gujarati OI'
Hindi or both as a medium of instruction. That clause
is not in its expression, grammatically accurate. It
1 S.C.R. SUPREME COURT REPORTS. 129
should,
if it had been drafted in strict accordance
with the rules of
grnmmar, have stated that the
University
was invested with power to promote the
use of Gujarati or Hindi or both as a medium or
media of instruction and examination. The use of
the expression
"promote" suggests that power was
conferred upon the University to encourage the study
of Gujarati and Hindi and their use as media of
instruction and examination: it does not imply that
power
was given to provide for exclusive use of
Gujarati or Hindi or both as a medium or media
cif
instruction and examination and that inference is
strengthened by the indefinite article "a" before the
expression "medium of instruction''. The use of the
expression "a medium of instruction" clearly suggests
that Gujarati or Hindi was to be one of several
media of instruction, and steps
were to be taken to
encourage the development
of Gujarati and Hindi
and their
use as media of instruction and
examination. From the
use of the expression
"promote" read in the context of the indefinite article
"a" it is abundantly clear that power to impose
Gujarati or Hindi
as the medium of instruction and
examination
to the exclusion of other media was not
entI'ljsted to the University. It may be noticed that
if the expression "promote the use of Gujarati or
Hindi
as a medium of instruction and
examination"
was intended to mean "to promote the exclusive use
of Hindi or Gujarati", a similar interpretation would
have to be put on the
use of the expression
"to
promote the development of Gujarati and Hindi",
thereby ascribing to the Legislature an intention that
no other languages beside Gujarati and Hindi were
to be developed. Use in the proviso of the definite
article "the" in relation to English as medium
of instruction further supports this view. When the
Legislature enacted that English was to continue as
the medium of instruction and examination in
certain subjects it merely provided
for continuance
of an existing and accepted exclusive medium of
1962
Gujarat
University
1
Ahmedobad
v.
A~rishna Ranganat!i
Mudho/kar
Shah, J.
130 SUPREJ'.IE COURT REPORTS [1963] SUPP .
.!!!!__ instruction. It is common ground that in the
Gujarat University, • University of Bombay the exclusive medium of
Ah":dabad instruction was English, in the various affiliated
Kdshn" Ranganath colleges in the region or area over which the Gujarat
Mudholkar University acquired authority. By the proviso to
Shah, 1. cl.(27) of s.4 in the subjects to be prescribed under
the proviso the medium
of instruction was to continue
to remain English.
By the operative part of cl.(27)
therefore the Legislature provided that
use of
Gujarati or Hindi or both as a medium or media of
instruction
was to be promoted thereby indicating
that Gujarati or Hindi or both
was or were not to
be the exclusive medium or media but
to be adopted
in addition
to the accepted medium viz. English, for
instruction and examination, whereas under the
proviso
in respect of the subjects prescribed, English
was to
be the only medium for the periods specified.
Clause
(28) which confers authority upon University "to do all acts and things whether incidental to the
powers aforesaid or not
as may be requisite in order
to further the objects
of the University and generally
to cultivate and promote arts, science and other
branches
of learning and
culture" confers additional
powers which though not necessarily incidental to the
powers already conferred by. cls.(l) and
(27) were
intended to be exercised to further the object of the
University. But
if the object of the University as
indicated hy cl.(27) was not to authorise the
imposi
tion of Gujarati or Hindi or both, as an exclusive
medium or media it would be straining the language
of cl.(28) to interpret it as exhibiting an intention to
confer upon the University by using the somewhat
indefinite expression
"requisite in order to further
the objects" power to provide for such an exclusive
medium.
Reliance
was also
placed upon s.18(1 )(xiv) by
counsel
for the University in support of the contention
that the
Senate was bound to make provision relating
to the
use of Gujarati or Hindi in Devanagri script
I S.C.R. SUPREME COURT REPORTS 131
or both as a medium of instruction and examination.
It is true that s.18(1) deals with powers and duties
of the Senate. Phraseology nsed in the diverse
clauses
is
prinw. facie not susceptible of the meaning
that each clause authorises the Senate to exercise the
powers
of the
University and imposes also a concomi
tant dutv. Assuming, however, that the power
conferred 'upon the Senate also carries with it a duty
to exercise the power,
we do not think that the exercise
of power or performance of duty relating to the
use
of Gujarati or Hindi or both as a medium
or media
of instruction and
examination postulates a
duty to make exclusive
use of Gujarati or Hindi or
both for that purpose. The use of the indefinite
article
"a" even in this clause clearly indicates that
Gujarati or Hindi
or both were to be selected out of
several media of instruction and examination and not
the sole medium. No other clause
of ss.18,
20 and
22 relating to the powers and duties of the Senate.
the Syndicate and the Academic Council was relied
upon and
we are unable to find any which invests
the
University or its organs, such as the Senate,
the Syndicate or the Academic Council with power
to impose Gujarati
or Hindi as an exclusive medium
of instruction.
A corporation has ordinarily an implied power
to
~arry out its ohjects; power to indicate a medium
of mstruction in affiliated or constiturnt colleges may
therefore
be deemed tn be vested in a
University but
the power to indicate a medium
of instruction docs
not
~~rry with it, in the absence of an express
~rov1S1on, power to impose upon the affiliated institu
t10ris an exclusive medium of instruction.
. Reliance
was placed by counsel for the
Univer-
sity
up,;m
a letter dated August 7. 1949, (which is
reproduced in the University Commission's report),
addressed by the Government
of India to various Universities and Provincial Governments. It was
recited in the letter that the Government of India
1962
Gujarat University
Ahmedabad ·
v.
Krishna Ranganatl
Afudholkar
Shah, J.
1962
,'ujarat l!niversity,
Ahrrudahad
v.
~rislma Rangnn'lth
Mudho/k(/r
S!t1h, J.
132 SUPREME COURT REPORTS [1963] SUPP.
were of the opinion that in the interest of national
education it
was hoped that
Universities and Pro
vincial Governments will take early steps towards the
implementation
of certain recommendations viz
:-
"!tern !.-The Government of India requests
the University and Provincial Governments
to take steps to :-
(a) replace English as the medium of ins
truction at the University stage, by
gradual stage during next
five years
and
(b) adopt in its place the language of the
State or
Province or region as the
medium of instruction and examina
tion.
Item
JJ.-Universities are requested to:-
( i) provide for a compulsory test in the
Federal language during the first
degree course of the University without
prejudice
to the results of the Degree
Examination, and
(ii) provide facilities for the teaching
of
the Federal language to all students
who wish
to take it up as optional
subject."
Item 111.-x x x x x x
Item
IV and V-x
Item VI.
Itern VII.-
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
The Government of India may have in the
year 1948 intended
that English should be replaced
in gradual stages
as the medium of instruction by the
language
of the
State or the Province, or region, but
that will not be a ground for interpreting .the p;o
visions of the Act in a manner contrary to the mtention
1
'
1 s.C.R. SUPREME COURT REPORTS 133
of the Legislature plainly expressed. This recom
mendation
of the Government of India has been
ignored
if not by all, by a large majority of
Univer
sities. It is also true that in the Statement of Objects
and Reasons of the Gujarat University Act, it was
stated
"............... As recommended by the
Com
mittee, it is proposed to empower the University to
adopt Gujarati
or the
national language as the
medium
of instruction except that for the first t.en
years English may be allowed as the medium of
instruction in subjects in which this medium is consi
dered
necessary". But if the Legislature has made
no provision in that behalf a mere proposal by the
Government, which
is incorporated in the
Statement
of Objects and Reasons will not justify the Court in
assuming that the proposal was carried out. State
ments of Objects and Reasons of a Statute may and
do often furnish valuable historical material in as
certaining the reasons which induced the Legislature
to enact a Statute, but in interpreting the Statute
they must be ignored. We accordingly agree with
the High Court that power to impose Gujarati or
Hindi or both
as an exclusive medium or media has
not been conferred under cl.
(27) or any other clauses
of s. 4.
The proviso to cl. (
27) was amended by Act 4
of 1961 and the following proviso was substituted :-
"Provided that English may continue to be the
medium-·
(i) of instruction and examination for such
period
as may from time to time be
prescribed
by the
Statutes until the
end.
of May 1966 in respect of such
subjects and courses
of study as may
be
so prescribed.
(ii)
of instruction and examination for
such period
as may from time to time
be prescribed by the
Statutes until
1962
Gujarat Uni<·'t:r;itp,
Ahmedabad
v.
](riJhna Ranganath
A1udholkar
Shah, J.
1962
Gujarat Universil],
Ahmedabad
v.
Krishna Ra11ganath
Mudholkar
Shalt, J.
134 SUPREME COURT REPORTS [1963] SUPP.
the end of :May 1968 in respect of
post-brraduate instruction, teaching and
trainmg in subjects comprised in
Faculties
of Agriculture and
Techno
logy including Engineering and until
the end
of May
1969 in respect of
post-graduate instruction, teaching and
training in the sulijects comprised in
the Faculty
of Medicine, and
(iii)
of examination at two successive
examinations in any subjects held
next after the period prescribed under
clause
(i) or as the case may be, the
period prescribed under clause (ii) in
respect
of those candidates who during
such period have failed to appear in
or
pass the respective examination
held with English
as the medium of
examination in the same
su~jects :
Provided further that nothing in
this clause shall effect the
use of English
as the medium of instruction and
examination in respect
of English as a
subject."
It is common ground bdore us that if power to
impose Gujarati or Hindi
as an exclusive medium
is not conferred by the operative part of cl. (27)
there is nothing in the proviso which independently
conferred such a power upon the
University. The
proviso merely extends the
use of English as the
medium
of instruction in certain branches beyond
the period
of ten years originally prescribed. The
proviso has however some bearing on the
interpre
tation of cl. (21) : in the second proviso the distinction
between the definite article "the" preceding "medium
of instruction and examination" in so far as it relates
to English
is
further accentuated. The second proviso
savs-''Provided further that nothing in this clause
shall affect the use of English as the medium of
1 S.C.R. SUPREME COURT REPORTS 135
instruction and examination in respect of English as
a subject". \Then the Legislature intended to pro
vide English
as the sole medium of instruction,
definite article
the was used while in other cases
indefinite article
a was used denoting thereby that
the medium would be one out of several. Therefore,
neither under the Act
as originally framed nor under
the Act
as amended by Act 4 of 1961 was there any
power conferred on the University to impose
Gujarati
or Hindi or both as exclusive medium or media of
instruction and examination and if no such power
was conferred upon the University, the
Senate could
not exercise such a power. The Senate is a body
acting on
behalf of the University and its powers to
enact
Statutes must lie within the contour of the
powers
of the University conferred
by the Act.
On the view we have expressed, consideration
of the question whether the State Government is
competent to enact laws imposing Gujarati or Hindi
or both as an exclusive medium or media of instruc
tion in the Universities,
may appear academic.
But
we have thought it necessary to consider the question
because the
High
Court has declared certain provi
sions
of Act
4 of ]!)()l relating to medium of ins
truction as nltra. l'ire8 the State Legislature and on
the question which was argued
at considerable length
we were invited by counsel for the appellants to
express
our
_view for their guidance in anv future
legislation which
may
be undertaken. '
Power of the Bombay Provincial Legislature to
enact the
Gujarat University Act
was derived from
Entry No. 17 of the Government of India Act, rn:J;;,
List II of the Seventh Schedule--" Education inclu<ling
Univers!ties other than those specified in paragraph
13 of List I". In List I item J :J were included the
Bcnaras
Hindu University and the Aligarh Muslim l!ni_vernity .. Therefore, except to the cxten~ expressly
limited by Item 17 of List II read with Item rn of
List I. a Provincial Lcgisbturc w;is invested ith
1962
Gujarat University,
Ahmedabad
v.
Kri~hna Rariganath
~'1udholkar
Shah
1 J.
1962
Gujan1t University,
Ahmedabad
v.
J(rishna Ranganath
Mudholkar
Shah, J.
13fi SUPREME COURT REPORTS [l!Jfi3] SUPP.
plenary power to enact legislation in respect of all
matters pertaining to education including education
at
University level. The expression 'education' is of
wide import and includes all matters relating to
imparting and controlling education; it may therefore
have been open to the Provincial Legislature to enact
legislation prescribing either a federal or a regional
language
as an exclusive medium for subjects selected
by the
University. If bys. 4 (27) the power to select
the federal or regional language as an exclusive
medium
of instruction had been entrusted by the
Legislature to the
University, the validity of the
impugned statutes 207, 208 and 209 could not be
open to question. But the Legislature did not entrust
any power ·to the University to select Gujarati or
Hindi
as an exclusive medium of instruction under
s. 4 (27). By the Constitution a vital change has been
made in the pattern
of distribution of legislative
powers relating to education between the
Union Parlia
ment and the State Legislatures. By item No. 11 of
List II of the Seventh Schedule to the Constitution,
the State Legislature has power to legislate in respect
of "education including Universities subject to the
provisions
of items 63, 64, 65 and 66 of List I and 25
of List
III". Item No. 63 of List I replaces with
modification item
No. 13 of List I to the
Seventh
Schedule of the Government of India Act, 1935. Power
to· enact legislation with respect to the institutions
known
at the commencement of the Constitution as the
Benaras Hindu
University, the Aligarh Muslim Uni·
versity and the Delhi University and other institutions
declared by Parliament by laws to be an institution
of national importance is thereby granted exclusively
to Parliament. Item 64 invests the Parliament with
power to legislate in respect of "institutions for scien ·
tific or technical education financed by the Govern·
ment of India wholly or in part and declared by
Parliament, by law, to be institutions of national
importance". Item 65 vests in t~e Parlia~ent. po_wer
to legislate for "Union agencies and mstltut1ons
-
1 S.C.R. SUPREME COURT. REPORTS 137
for (a) professional, vocational or technical training,
including the training
of police officers; or (b) the
promotion
cif special studies or research; or (c} scien
tific or technical assistance in the investigation or
detection
of
crime". By item 66 power is entrusted
to Parliament to legislate on "co-ordination and
determination
of standards in institutions for higher
education or research and scientific and technical institutions". Item 25 of the Concurrent List confers
power upon the Union Parliament and the State
Legislatures
to enact legislation with respect to
"vocational and technical training of labour". It
is manifest that the extensive power vested in the
Provincial Legislature to legislate with respect to
higher, scientific and technical education and voca
tional and technical training of labour, under the
Government
of India Act is under the Constitution
controlled by the
five items in List I and
Ust III
mentioned in item 11 of List II. Item 63 to 66 of
List I are carved out of the subject of education and
in respect
of these items the power to legislate is
vested exclusively in the Parliament.
Use of the
expression "subject to" in item 11 of List II of the
Seventh Schedule clearly indicates that legislation
in respect
of excluded matters cannot be undertaken
by the
State Legislatures. In Hingir-Rampur Coal
Company v. State of Orissa (
1
), this Court in consider
ing the import of the expression "subject to" used in
an entry in List
II, in relation to an entry in List I
observed that to the extent of the restriction imposed
by the
use of the expression
"subject to" in an entry
in List
II, the power is taken away from the
State
Legislature. Power of the State to legislate in
respect
of education including Universities must to
the extent to which it
is entrusted to the Union
Parliament, whether such power
is exercised or not,
be deemed to be restricted. If a subject of legislation
is covered by items 63 to 66 even if it otherwise falls
within the larger
field of
"education including
Universities" power to legislate on that subject must
, (1) [1961] 2 S.C.R. 537.
1962
Gujarat University,
Alime.dabad
v.
Krishna Ranganal!r.
Mudholkar
Shah, J.
1962
Gujarat Vnfoenity,
Ahmedabad
v.
Krishna Ranganath
Mudlwlkar
Shuh.-J.
138 SUPREME COURT REPORTS [1963] SUPP.
lie with the Parliament. The plea raised by counsel
for the University and for the State of Gujarat that
legislation prescribing the medium
or media in which
instruction should be imparted in institutions
of
higher education and in other institutions always
falls within item
11 of List II has no force. If it be
assumed from the terms
of item 11 of List II that
power to legislate in respect
of medium of instruction
falls only within the competence
of the
State Legis
lature and never in the excluded field, even in respect
of institutions mentioned in items 63 to 65, power to
legislate on medium
of instruction would rest with
the
State, whereas legislation in other respects for
excluded subjects would fall within the competence
of the
Union Parliament. Such an interpretation
would lead to the somewhat startling result
that even
in respect
of national institutions or
Universities of
national importance, power to legislate on the
medium
of instruction would vest in the
Legi~lature
of the States within which they are situate, even
though the State Legislature would have no other
power in respect
of those institutions. Item 11 of
List II and item 66 of List I must be harmoniously
construed. The two entries undoubtedly overlap :
but to the extent of overlapping, the power conferred
by item
66 List I must prevail over the power of the
State under item 11 of List II. It is manifest that
thy excluded heads deal primarily with education in
institutions
of national or special importance and
institutions
of higher education including research,
sciences, technology and vocational training
of labour.
The power to legislate in respect
of primary or
secondary education is exclusively vested in the States
by item No. 11 of List II, and power to legislate on
medium
of instruction in institutions of primary or
secondary education must therefore rest with the State Legislatures. Power to legislate in resp_ec.t of
medium of instruction is, however, not a d1stmct
legislative head;
it resides with the
State. Le~islatures
in which the power to legislate on educat10n 1s vested,
1 S.C.R. SUPREME COURT REPORTS 139
unless it is taken away by necessary intcndment to
the contrary. Under items 63 to 65 the power to
legislate in respect of medium of instruction having
regard
to the width of those items, must be deemed
to vest
in the
Union. Power to legislate in respect of
medium of instruction, in so far it has a direct bear
ing and impact upon the legislative head of co-ordi
nation and determination of standards in institutions
of higher education or research and scientific and
technical institutions, must
also be deemed by item 66
List I to be vested in the
Union.
The State has the power to prescribe the
syllabi and courses
of study in the institutiom named
in Entry
66 (but not falling within entries 63 to 65)
and as an incident thereof it has the power to indicate
the medium in which instruction should be hnparted.
But the
Union Parliament has an overriding legislative
power
to ensure that the syllabi and courses of study
prescribed and the
miodium selected do not impair
standards of education or render the co-ordination of
such standards either
on an All India or other basis
impossible or even difficult. Thus, though the powers
of the
Union and of the State are in the Exclusive
Lists, a degree
of overlapping is inevitable. It is not
possible to lay down any general test which would
afford a solution
for every question which might
arise
on this head.
On the one hand, it is certainly
within the province
of the
State Legislature to pres
cribe syllabi and courses of study and, of course, to
indicate the medium or media
of instruction.
On
the other hand, it is also within the power of the
Union
to legislate in respect of media of instruction
so as to ensure co-ordination and determination of
standards, that is to ensure maintenance or
improve
ment of standards. The fact that the Union has not
legislated, or refrained from legislating
to the full
ex
tent of its powers does not invest the State with the
power
to legislate in respect of a matter assigned by
the Constitution
to the Union. It does not, however,
1962
Gujarat
UniversitP,
Ahmedabad
v.
1t:rishna Ranganalh
Afudholkar
Shah, J.
140 SUPREME COURT REPORTS [1963] SUPP.
1962
Gujarat University,
Ahmedabad
follow that even within the permitted relative fields
there might not be legislative provisions in enactmf'.nts
made each in pursuance of separate exclusive and
distinct powers which may conflict Then would arise
the question
of repugnancy and paramountcy which
v.
K
ri:hna Ranganath
Mudholkar
Shah, J. may have to be resolved on the application of the
"doctrine of pith and substance" of the impugned en
actment. The validity of the State legislation on
University education and as regards the education in
technical and scientific institutions not falling within
Entry
64 of List I would have to be judged having ;« regard to whether it impinges on the field reserved for
the Union under Entry 66. In other words, the
validity
of
State legislation would depend upon
"-'hether it prejudicially affects co-ordination and de
termination of standards, but not upon the existence
of
some definite
Union legi~lation directed to achieve
that purpose.
If there be
Union legislation in respect
of co-ordination and determination of standards, that
would have paramountcy over the State law by virtue
of the first part of Art. 254( I) ; even if that power be
not exercised by the Union Parliament the relevant
legislative entries being
in
the exclusive lists, a State
law trenching upon the Union field would still be
invalid.
Counsel for the University submitted that the
power conferred by item
No. 66 of List I is merely a power to co-ordinate and to determine standards i. e.
it is a power merely to evaluate and fix standards of
education, because, the expression "co-ordination'.'
merely means evaluation, and "determination" means
fixation. Parliament has therefore power to legislate
only for the purpose
of evaluation and fixation of
standards in institutions referred to in item 66. In the
course
of the argument, however, it
was somewhat re
luctantly admitted that steps to remove disparities
which have actually resulted from the adoption
of a
regional medium and the falling
of standards, may
~e
undertaken and legislation for equalising standards m
1 S.C.R. SUPREME COURT REPORTS 141
higher education may be enacted by the Union
Parliament.
We are unable to agree with this con
tention for several reasons. Item No. 66 is a legislative
head and in interpreting it,
unless it is expressly or of
necessity found conditioned by
the words used therein,
a narrow or restricted interpretation will not be put
upon the generality of the
words.
Power to legislate
on a subject should normally
be held to extend to all
ancillary or subsidiary matters which can fairly and
reasonably
be said to be comprehended in that subject.
Again there
is nothing either in items 66 or elsewhere
in the Constitution which supports the submission that
the expression
"co-ordination" must mean in the
context
in which it is used merely evaluation, co-ordi
nation in its normal connotation means harmonising
or bringing into proper relation in which all the
things co-ordinated participate in a common pattern
of action. The power to co-ordinate, therefore, is not
merely power
to evaluate, it is a power to harmonise
or secure relationship
for concerted action. The power
conferred by item
66 List I is not conditioned by the
existence
of a state of emergency or unequal standards
calling for the exercise
of the power.
There
is nothing in the entry which indicates
that the power to legislate on co-ordination
of stan
dards in institutions
of higher education, does not
include the power to legislate
for preventing the
occurrence
of or for removal of disparities in standards.
This power
is not conditioned to be
exercised merely
upon the existence
of a condition of disparity nor is
it a power merely to evaluate standards but not to
take steps
to rectify or to prevent disparity. By ex
press pronouncement of the Constitution makers, it
i~
a power to co-ordinate, and of necessity, implied
therein
is the power to prevent what would make co
ordination impossible or difficult. The power is ab
solute and unconditional, and in the absence
of any
controlling reasons
it
must be given full effect accord
ing to its plain and expressed intention.
It is true
1962
Gujarat
Univtrsi('1,
Ahmtdahad
v.
Krishna Ranganath
Mudholkar
Si\ah, J.
1962
Gujarat University,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Shah, J.
142 SUPREME COURT REPORTS [1963) SUPP.
that "medium of instruction" is not an item in the
legislative list.
It falls within item No. 11 as a
necessary incident
of the power to legislate on educa
tion : it
also falls with;n items 63 to 66.
In so far
as it is a necessary incident of the powers under item
66 List I it must be deemed to be included in that
item and therefore excluded from item
11 List II.
How far State legislation relating to medium of
instruction in institutions has impact upon co-ordina
tion
of higher education is a matter which is not
susceptible, in the absence of any concrete challenge
to a specific statute,
of a categorical answer. Mani
festly, in imparting
instructiom in certain subjects,
medium may have subordinate importance and
little bearing on standards
of
educatiori while in cer
tain others its importance will be 'Vital. Normally, in
imparting ~cientific or technical instructions or in
training students for professional
courses like law,
engineering, medicine and the like existence
of ade
quate text
books at a given time, the existence of
journals and other literature, availability of competent
instructors and the capacity
of students to under
stand instructiom imparted through the medium
in
which it is imparted are matters which have an im
portant bearing on the effectiveness of instruction and
resultant standards achieved thereby.
If adequate
text-books are not available or competent instructors
in the medium, through
whkh instruction is directed
to
be imparted, are not available, or the students are
not able to receive or imbibe instructions through the
medium in which
it is imparted, standards must of
necessity fall, and legislation for co-ordination of
standards in such matters would include legislation
relating to medium
of instruction.
If legislation relating to imposition of an
ex
clusive medium of mstruction in a regional language
or in Hindi, haying regard to the absence
of
text·
books and journals, competent teachers and incapacity
of the students to understand the subjects, is likely to
1 S.C.R. SUPREME COURT REPORTS 143
result in the lowering of standards, that legislation
would, in our judgment, necessarily fall within item
66 of List I and would be deemed to be excluded to
that extent from the amplitude of the power confer
red by item No.
11 of list II.
It must be observed, that these observations
have been made by
us on certain abstract considera
tions which have been placed before
us. We have
no
specific statute the validity of which, apart from the
one which we will presently mention, is challenged.
Counsel for the State and the University invited
us to express our opinion on the question whether
legislation which the State may undertake with a
view to rectify the deficiency pointed
out by us in
interpreting
s. 4 (27), would be within the competence
of the
State Legislature. What shape such legisla
tion may take
is for the
State to decide. We have,
however, proceeded somewhat broadly to deal with
what
we conceive is the true effect of item 66 in List
I in its relation to item
11 in List II in so far as the
two items deal with the power
of the
Parliament and
the State Legislature to enact laws in respect of
medium of instruction.
We are unable, however, to agree with the High
Court that Act 4 of 1961 in so far as it amended the
proviso to
s. 4(27) is invalid, because it is beyond the
competence
of the
State Legislature. By the <imend
ment of the proviso to s. 4 (27), the Legislature
purported to continue the
use of English as the
medium
of
instruct!on in subjects selected by the
Senate beyond a period of ten years prescribed by'
the Gujarat University Act,
1949. Before the date
on which the parent Act was enacted, English was
the .traditional
medh~m o~ instruction in respect of all
subJ~cts at .the ~~uvers1ty level. By enacting the
proviso as 1t ongmally stood, the University was
authorised to continue the
use of English as an exclu
sive medium of instruction in respect of certain sub
jects to be selected by the
Senate. By the amendment
1962
Gu.jaral Universit_y,
Ahm~dabad
v.
Krishna Ranganath
Mudholkar
Shah, J,
1962
Gujarat Universtv,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Shah J.
Su/Jba Rao, J.
144 SUPREME COURT REPORTS [1963] SUPP.
it is common ground that no power to provide an
exclusive medium other than the pre-existing medium
is granted. Manifestly, imparting instruction through
a common medium, which
was before the Act the
only medium
of instruction all over the country,
cannot by itself result
in lowering standards and
co
ordination and determination of standards cannot be
affected thereby. By extending the provisions relat
ing to imparting of instruction for a period longer
than ten years through the medium
of English in the
subjects selected by the University,
no attempt was
made to encroach upon the powers of the Union
under item
No. 66 List I. If the University have no
power to prescribe an exclusive medium, the
enact
ment of s. 38A which prescribes penalties for failing
to carry out directions relating
to the media of
instruc
tion will doubtless be not invalid.
The order
of the High
Court relating to the
invalidity
of the
Statutes 207 and 209 of the Univer
sity in so far as they purport to impose "Gujarati or
Hindi or both
as exclusive medium or
media" of
instruction, and the circulars enforcing those statutes
must therefore
be confirmed.
We
do not express any opinion on the alleged
infringement
of fundamental rights of the petitioner
under
Arts. 29(1),
30(1) of the Constitution. We set
aside the order of the High Court in so far as it dec
lares s. 4 cl. (27) proviso and s. 38A invalid. This
will be, however, subject to the interpretation placed
by
us upon the relevant provisions, and the power of
the
State Legislature to impose Gujarati or Hindi or
both
as exclusive medium or media for instructions
in the affiliated and constituent colleges.
The appellants
will pay the
co~ts of the respon
dents in the two appeals. One heanng fee.
SuBBA RAO, J.-With the greatest respect,. I
cannot agree.
The facts have been fully stated m
the judgment
of my learned brother,
Shah, J., and I
1 S.C.R. SUPREME COURT REPORTS 145
need not restate them. Two questions arise for
consideration, namely, (1) whether the State Legis
lature has the constitutional competence to make a
law prescribing an exclusive medium
of instruction
in the affiliated colleges, and
(2} whether under the
Gujarat
University Act, as amended by Act IV of
1961, the said University has the power to prescribe
an exclusive medium
of instruction.
The first question may be elaborated thus: Is
the
State Legislature competent to make a law
under entry
11 of List II of the Seventh Schedule to
the Constitution prescribing an exclusive medium
of
instruction in the affiliated colleges of the University?
To
put it in other words, can a State law enable a
University to prohibit, expressly or
by necessary
implication, any media
of instruction other than
those prescribed by it? Learned counsel, appearing
for the University
of Gujarat and for the State of
Gujarat, contend that the State Legislature has such
a power under entry
11 of List II of the Seventh
Schedule to the Constitution, whereas learned counsel
for the respondents, while conceding
that a State
Legislature has the power to empower a university to
prescribe a medium
of instruction, broadly contend
that a State law which prohibits the use of a medium
of instruction, such as English, which is traditionally
the exclusive current medium
of instruction in the
universities
of this country, and directs the use of a
regional language
as the sole medium or as an
addi
tional medium of instruction, along with other Indian
languages, impinges directly on entry 6(i of List I of
the Seventh Schedule to the Constitution, since, it is
said, the fixation of standards and co-ordination on
all-India basis
is rendered difficult, if not made
impos
sible, by such a State law.
. Before I conside~ the ~mpact of entry 66 of
List I on entry II of List II, 1t would be convenient
t? notice briefly the relevant principles of construc
tion. Learnrd counsel. for the respondents contrnd
1962
Gujarat University,
Ahmedabad
v.
Krishna Ran,i:anath
Jrfudholkar
Suhba RafJ, J.
1961
Gujarat University,
Ahmedahad
v.
Krishna Ranganath
Mudhokar
Subba Rao, J,
146 SUPREME COURT REPORTS [1963] SUPP.
that the principle of pith and substance has no rele
vance to a case where one entry is made subject to
another entry;
if
-0ut of the scope of one entry, the·
argument proceeds, a field of legi5lation covered by
another entry
is
C<!rved out, there is no scope for over
lapping and, therefore, there is no occasion for in
voking the principle of pith and substance in the
matter
of interpreting the said entries; to meet such
a situation,
his further argument is, the courts have
evolved another principle of
"direct impact", i.e.,
if a State law has a "direct impact" on an entry in
the Union List, the said law falls outside the scope of
the State entry. Let us see whether there is any such
independent doctrine
of construction in decided cases
or in principle. The Judicial Committee, in Prafulla Kumar v. Bank of Commerce, Khulna{'), had
invoked the principle of "pith and substance" to
ascertain whether the Bengal Money-lenders Act
(X
of
1940) was ultra vires the Provincial Legislature.
There, the conflict
was between items 28 and 38 of
List I of the
Seventh Schedule to the Government of
India Act, 1935, namely, promissory notes and bank
ing, and item 27 of List II thereof, namely, money
lending. The Judicial Committee held that the pith
and substance of the Act being money-lending, it
came under item
27 of List II and was not rendered
invalid because
it incidentally trenched upon matters
reserved to the Federal Legislature, namely,
promis
sory notes and banking. At p.65 of. the report the
following instructive passage appears :
"But the overlapping of subject-matter is not
avoided by substituting three lists for two or
even by arranging for a hierarchy
of
juris
dictions.
Subjects must still overlap and where they
do the question must be asked what fa pith and
substance
is the effect of the enactment of which
complaint
is made and in what list is its true
nature and character to
be found."
(1) A. I. R. 1947 P. C. 60, 65.
1 S.C.R. SUPREME COURT REPORTS 147
Then their Lordships proceeded to state :
"Thirdly, the extent of the invasion by the
Provinces into subjects enumerated in the
Federal List has to be considered.
No doubt it
is an important matter, not, as their Lordships
think, because the validity
of an Act can be
determined by discriminating between degrees
of
invasion, but for the purpose of determining
what
is the pith and substance of the impugned
Act. Its provisions may advance
so far into
Federal territory
as to show that its true nature
is not concerned with
Provincial matters, but the
question
is not, has it trespassed more or less,
but is the trespass, whatever it be, such as to
show that the pith and
substanc~ of the im
pugned Act is not money-lending om promissory
notes or banking ?"
It is clear from the said passage that the degree of
invasion cf a law made by virtue of an entry in one
List into the
field of an entrv in another List is not
governed by a separate doctrine but
is only a circum
stance relevant for ascertaining the pith and substance
of an impugned Act. This
Court, in The Stare of
Bombay v. F. N. Balsara (1), has accepted that prin
ciple. There, the constitutional validity
of the
Bombay
Prohibition Act (XXV of 1949) was in issue.
The question was whether that Act fell under entry
31 of List II of the Seventh Schedule to the Govern
ment
of India Act, 1935, namely,
"intoxicating
liquors, that is to say, the production, manufac
ture,
possession, transport, purchase and sale of in
toxicating
liquors", or under entry 19 of List I,
namely, import and export
across customs frontier,
which
is a dominion subject. This
Court held that
the pith and substance
of the Act fell under the for
mer entry and not under the latter, though the Act
incidentally encroached upon the Dominion
field of
legislation. It was
a~gued, inter alia, that the pro
hibition-of purchase, use, transports and sale of liquor
(I) [1951] S. C.R. 682.
1962
Gujarat University,
Ahmedabad
v.
Krishna Rangariath
Mudholkar
liubba Raa, J.
1962
Gujarat lJniversity,
Ahmtdabad
v.
Krishna Ranganath
Mudholkar
Suhba Rao, J.
148 SUPREME COURT REPORTS [1963] SUPP.
would affect the import. The argument was advanced
as a part of the doctrine of pith and substance and
was rejected on the ground
that the said encroach.
ment did not affect the true nature and character
of
the legislation. This
Court again had to deal with the
vires of the provisions of the Madras Prohibition Act
in
A.
S. Krishna v. The ~late of Jladras(1). There, the
argument was
that the said provisions were
repug
nant to the provisions of the existing Indian laws
with respect to the same matter, to wit, Indian Evi·
dence Act I of 1872 and Criminal Procedure Code
Act No. V of 1898. In that context the argument
based upon impact
of the former legislation on the
latter was advanced. This
Court rejecting the con·
tention observed :
"That is to say, if a statu~ is found in subs
tance to relate to a topi-c within the competence
of the legislature, it should be held to be intra
vires,
even though it might incidentally trench
on topics not within its legislative competence. The extent of the encroachment on matters be
yond its competence may be an element in de
termining whether the legislation is colourable,
that is, whether in the guise of making a law
on a
matter within its competence, the
legisla
ture is, in truth, making a law on a subject
beyond its competence. But where that
is not
the position, then the fact
of encroachment does
not affect the vires of the law even as regards
the area
of
encroachment."
But it is said that the separate existence of the doc
trine of "direct impact" was conceded in Union
Colliery Company of British Col,umhia, Ltd. v.
Bryden('). There, the question was whether s.4 of the
British Columbia Coal Mines Regulation Act, 1890,
which prohibited Chinamen of full age from employ·
ment in underground coal workings, was in that
respect ultra vires of the provincial legislature · uas·
much as the subject of "naturalization and al ;ns"
(1) [1957] S. C.R. 399, 106. (2) [1899] A. C. 580, 587.
•
1 S.C.R. SUPREM'.E COURT REPORTS 149
was within the exclusive authority of the Dominion
Parliament conferred under s.91, sub-s.25 of the
British North America Act, 1867. On a considera
tion of the material factors and on a construction of
the relevant provisions, the Judicial Committee ob
served:
"But the leading feature of the enactments
consists in
this-that they have, and can have,
no application except to Chinamen who are
aliens or naturalized subjects, and that they
establish
no rule or regulation except that these
aliens or naturalized subjects shall not work, or
be allowed to work, in underground coal mines
within the
Province of British Columbia."
After arriving at that finding, their Lordships
proceeded to say :
"Thl'ir Lordships see no reason to doubt that,
by virtue
of s. 91, sub-s. 25, the legislature of
the Dominion is invested with exclusive
autho
rity in all matters which directly concern the
rights, privileges, and disabilities
of the class
of Chinamen who are resident in the provinces
of Canada. They are also of opinion that
the whole pith and substance of the enactments
of s. 4 of the
Coal Mines Regulation Act, in so
far as objected to by the appelhtnt company,
consists in establishing a statutory prohibition
which affects aliens or naturalised subjects, and.
therefore trench upon the exclusive authority
of the
Parliament of Canada."
This passage indicates that the Judicial Committee
found that, in pith and substance, the impugned
law affected the rights and privileges of Chinamen
which subject
was within the exclusive authority of
the
Parliament of Canada. This judgment only
reiterates the principle
of pith and substance; and
it
does not in any way countenance a new principle
of
"direct impact" outside the scope of the said
1962
Gujarat !Jniversity,
Ah,,,,Jabad
v.
Krishna Ranganath
Mudholkar
Subha R®, J.
1962
Gujarat University,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J,
150 SUPREME COURT REPORTS [19G3] SUPP.
doctrine. In Bank of Toronto v. Lambe (1) the
Qµebec Act was attacked on two grounds, first that
the
tax was
not "taxation within the Province", and
secondly, that the tax
was not a
"direct tax". The
Judicial Committee held that the Act
was within
the legislative competence
of the Province. It was
observed therein :
"If (the Judges) find that on the due cons
truction of the Act a legislative power falls
withins.
92, it would be quite wrong of them
to deny its existence because by
some possibility
it may be abused, or may limit the range which
otherwise would
be open to the Dominion
Parliament."
The argument of anticipatory encroachment was
rejected. This case was considered and distinguished
in
Attorney-General for
Alberta v. Attorney-General
for Ct•na& ('). There, the Province of Alberta
passed an Act respecting "the taxation of Banks",
imposing on every corporation or joint stock com
pany, other than the Bank of Canada, incorporated
for the purpose
of doing banking or savings bank
business in the Province, an annual tax,
in addition
to any tax payable under any other Act, of
(a) 1/2
per cent. on the paid-up capital, and
(b) 1 per cent.
on the reserve fund and undivided profits. The
Board held that the proposed taxation
was not in
any true
sense taxation
"in order to the raising of a
revenue for Provincial purposes" so as to be within
the exclusive legislative competence
of the Provincial
11,.
Legislature under s. 92 (2) of the British North fe
America Act, but was merely part of a legislative
plan to prevent the operation within the Province
of those banking institutions which had been called
into existence and given the necessary
powers there
to conduct their business by the only proper autho-
rity, the Parliament
of the Dominion, under s. 91 of
the British North America Act. The Board in effect,
therefore, held that the Provincial Act, though
(I} [1882] 12 A. C. 575, 587, (2) [1939) A. C. 117, 130, 133,
1 S.C.R. SUPREME COURT REPORTS 151
couched as a taxation measure, was a colourable
attempt to prevent the functioning
of the banking
institutions, the regulation whereof
was the Dominion
subject. The pith and substance
of the statute was
not direct taxation or taxation within the Province
within the meaning of
s. 92 of the British North
America Act, but
was one that fell under the
Domi
nion subject of "banking". The reason for this
conclusion
is found at p. 133 and it is as follows :
"Their Lordships agree with the opinion
expressed by Kerwin,
J. (concurred in by
Crocket,
J.) that there is no escape from the
conclusion that, instead of being in any true
sense taxation in order to the raisirrg of a
revenue
for Provincial purposes, the Bill No. 1
is merely
"part of a legislative plan to prevent
the operation within the Province
of those
banking institutions which have been called
into existence and given the necessary powers
to conduct their business by the only proper
authority, the Parliament
of
Canada."
That is to say, the constitutional validity of the Bill
was sustained on the ground that it was a colourable
piece
of legislation in respect of a subject which in
substance
was within the Dominion field. The
Judicial Committee in coming to the conclusion laid
down the rules of guidance for ascertaining the true
nature of a legislation. Their Lordships premised
their discussion with the following statement :
" ......... it is well established that if a given
subject-matter
falls within any class of subjects
enumerated in
s. 91, it cannot be treated as
covered by any of those within s.
92."
And ~o ascertain whether a particular subject-matter
falls m one
class or other, their Lordships laid down
the following rules of guidance :
(I)
"It is therefore necessary to compare the
two complete lists
of categories with a
1962
Gujarat
U11iversity,
Ahmtdabad
v,
Krishna Ranganalh
Mudholkar
Subba Rao, J.
1962
Gujarat University,
Ahmedahad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
152 SUPREME COURT REPORTS [19G3] SUPP.
yiew to ~scertai?ing whether the legislation
1.n 9ues~10~, fairly considered, falls primu,.
jacte witlun s. 91 rather than within
s. 92.,,
(2) "The next step in a case of difficulty will
be to examine the effect of the legislation."
(3) "The object or purpose of the Act in
question." .
It will, therefore, be seen that the Judicial Committee
did not lay down any new principle
of
"direct
impact" dehors the doctrine of pith and substance.
The heavy impact and crippling effect of an impug
ned legislation on a Dominion subject was taken as
an important indication of its colourable nature.
The foregoing discussion
does not countenance the
suggestion that apart from the doctrine
of pith and
substance, the courts have recognized an independent
principle
of
"direct impact".
Nor can I agree with the argument of learned
counsel that the doctrine
of pith and substance has
no application
in a case where one entry in a list is
expressly made subject to another entry in a different
list.
In such a case it only means that out ol the
scope of the former entry a
field of legislation has
been carved out and put in the latter entry.
That
in itself has no bearing on the applicability or
other
wise of the doctrine. The position is exactly the same
as in the matter of construing two entries in different
lists. Whether
two entries are carved out of one
subject or deal with
two different subjects, the
prin
ciple of construction must be the same : in either case
the Court
is called upon to ascertain under what entry
the impugned law falls. The doctrine of pith and
substance only means.that
if on an examination of a
statute
it is found that the legisl,ation is in substance
one on a matter assigned to the Legislature, then
it
must be held to be valid in its entirety, even though
it may trench upon matters which are beyond its
1 S.C.R. SUPREME COURT REPORTS 153
comprehension: see The 8tate of Bombay v. Ji. N.
Balsara (1) and A. S. Ilriohna v. The &tate of Jfod
r.as ('). The true character of the legislation is the
criterion and its incidental encroachment on other
items
is not material. If that be
so, once we come to
the conclusion that the impugned legislation squarely
falls within one entry, its incidental encroachment
on another entrv, whether carved out
of the former
entry or has
an' independent existence althrough, will
not make
it any the less one made within the limits
of the former entry.
To summarize: When a question arises under
what entry
an impugned legislation falls,
the court
directs its mind to ascertain the scope and effect of
the legislation and its
pith and substance. Decided
cases afford many criteria to ascertain its scope,
namely, comparison
of conflicting entries, effect of the
impugned legislation, its object and purpose, its
legislative history, its colourable nature and similar
others-all or some of them would be useful guides to
get at the core of the legislation. But no authority
has gone
so far as to hold that even if the pith and
substance
of an Act falls squarely within the ambit
of a particular entry, it should be struck down on the
~pcculative and anticipatory ground that it may come
mto conflict with a law made by a co-ordinate Legis
lature by virtue of another entry. If the impact of a
State law on a Central subject is so heavy and devas
tating as to wipe out or appreciably abridge the
Central field, then it may be a ground for holding
that the State law is a colourable exercise of power
and
that in pith and substance it falls not under the State entry but under the Union entry. The case-law,
therefore, does not warrant the acceptance of a new
doctrine dehurs that of pith and substance.
In this context it will be useful to notice some
of the well settled rules
of interpretation laid down by
the Federal
Court and accepted by this Court in the
matter
of construing the entries. In
Calcutta Gas
(I) [1951] S. C. R, 682. (2) [1957} S. C. R. 399, 406.
1962
Gujarat [Jnil!ersity,
~ Ahmedabad
v.
Krishna Ranganath
Jfudhnlkar
Subba Rao, J.
1962
Gujarat University,
Ahmedabad
. v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
154 SUPREME COURT REPORTS [1963) SUPP.
Company v. The State of West Be'fl{]al ('), it is
observed:
"The power to legislate is given to the appro
priate Legislatures by Art. 246 of the constitu
tion. The entries in the three Lists are only
legislative heads or
fields of legislation: they
demarcate the area over which the appropriate
Legislatures can operate.
It is also well settled
that widest amplitude should
be given to the
language of the entries. But
some of the
ent
ries in the different Lists or in the same List
may overlap and sometimes may
also appear to
be in direct conflict with each other. It is then
the duty of this Court to reconcile the. entries
and bring about harmony between them
.......
It may, therefore, be
taken as a well settled
rule
of construction that every attempt should
be made to harmonize the apparently conflicting
entries not only
of different Lists but also of the
same List and to reject that construction which
will rob one of the entries
of its entire content
and make it
nugatory."
With this background let me look at the two entries,
namely, entry
11 of List II and entry 66 of List I.
The said entries read:
Entry 11 of List II. Education including
universities, subject to the provisions
of entries
63, 64, 65 and 66 of List I and entry 25 of
List III.
Entry 66 of
List I. Co-ordination and deter·
mination of Standards in institutions for higher
education or research and scientific and techno
logical institutions.
We are not concerned with the question of medium of
instruction in regard to that part which has been
specially carved out and included
in entries 63, 64
and
65 of List I. The entire field of education,
(I) [1962] SUPP. 3 S. C. R. I.
1 S.C.R. SUPREME COURT REPOR;i'S 155
including universities, subject to the exceptions men
tioned in entry 11 of List II, is entrusted to the State
Legislature. There cannot be education except
through a medium or media
of instruction.
Educa
tion can be imparted only through a medium. To
separate them
is to destroy the concept. It is
incon
ceivable that any reasonable body of constitution
makers would entrust the subject of medium
of
instruction to
Parliament and education dehorB
medium to a State: it is like cutting away the hand
that feeds the mouth. That no such separation was
made in the case
of elementary and secondary
educa
tion is conceded. It cannot also be doubted that
medium
of instruction is also included in entry 63 of
List I relating to the specified universities. If so
much is conceded, what is the reason for excluding it
from the university education in entry
11 of List II ?
There is none. Conversely, the express terms of entry
66 of List I does not prima facie take in the subject
of medium of instruction. The phraseology is rather
wide, but none the
less clear. Let me look at the
two crucial expressions
"co-ordination" and "deter
mination of standards". The contention of learned
counsel for the appellant that the composite term
means fixing of standards for the purpose
of
correla
tion and equating them if they vary, appears to be
plausible, but
is rather too restrictive and, if accepted
makes the role
of Parliament that of a disinterested
spectator.
it must be more purposive and effective.
The interpretation sought
to be
put upon it by lear
ned counsel for the respondents, namely, that under
certain circumstances the Parliament can make a law
displacing the medium of instruction prescribed by
the State law by another of its choice, cuts so deeply
into the State entry that it cannot be countenanced
unless the entry in List I is clear and unambiguous.
"To determine" is "to settle, or decide or fix". The
expression "co-ordination" is given the following
meanings, among others, in the dictionary: "to place
in the same order, rank or division
to place in proper
1962
Gujarat
Universit)•,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
1962
Gujarat University,
Ahmedabad
v.
·Krishna Ranganath
1\:fudholkar
Subba Rao, J.
156 SUPREME COURT REPORTS [1963] SUPP.
position relatively to each other and to the system of
which they form parts; to act in combined order for
the production
of a particular
result". That entry
enables Parliament to make a law for fixing the
standards in institutions
for higher education for the
purpose
of
harmonious co-ordination of the said
institutions
for the achievement of the desired result,
namely, the improvement
of higher education. The
expression
"co-ordination and determination of
standards" is a composite term; and the fixing up of
standards for the purpose of co-ordination does not
necessarily involve a particular medium
of
instruc
tion. To illustrate: education cannot be imparted
effectively without books, professors, students, equip
ment, buildings, finance, proper medium of instruc
tion, etc. All the said matters admittedly are compre
hended by the word "education", for they are the
necessary concomitants of education.
It would be
unreasonable to hold
that all the said matters fall
under the heading
"co-ordination and determination
of standards", for, if it was so held, the entry "edu
cation" would be robbed of its entire content. In
such a case the principle of harmonious construction
should be invoked and a demarcating line drawn;
the clue
for drawing such a line is found in the word
"co-ordination". So understood, the State can make
a .law
for imparting education and for maintaining
its standards; whereas
Parliament can step in only to
improve the said standards for the purpose of co
ordination. The standards of some universities may
fall because
of the deficiency in any of the aforesaid
things.
Parliament may make a law providing for
facilities in respect of any or all the aforesaid matters
so that the backward universities may pick up and
come to the level
of other advanced universities. It
may also make a law for raising the general standards
of all the universities. The law made by
Parliament
may determine the general standards in respect of the
said and similar matters and provide the necessary
financial and other help to enable the universities to
1 S.C.R. SUPREME COURT REPORTS 157
reach the level prescribed. It may also be that the
said law may provide for a machinery to enrich the
language adopted
as a medium of instruct!on by a
particular university
so that it may become a useful
vehicle
for higher educ a ti on and for technological
and scientific studies.
If the pith and substance of
the law is
"co-ordination and determination of stan
dards" its incidental encroachment on the medium of
instruction for the purpose of enriching it may pro
bably be sustained. But in the name of co-ordina
tion it cannot displace the medium of instruction,
for, in that event, the encroachment on the subject
of education is not incidental but direct. For the
said entry
does not permit the making of any law
which allows direct interference by an outside body
with the course
of education in any university, but
enables it generally
to prescribe standards and give
adventitious aids
for reaching the said standards. In
short, the role of a guardian angel is allotted to
Parliament so that it can make a law providing a
machinery to watch, advise,
give financial and other
help,
so that the universities may perform their
allot
ted role. The University Commission Act was passed
in the implementation of such a role. So understood,
there cannot be any possible dichotomy between the
two entries.
The scheme
of the Constitution also negatives
the idea
of legislation by Parliament in respect of
medium of instruction. When the Constitution was
passed, there ·were many fairly well developed
languages in different parts
of our country and they
were mentioned in the Eighth Schedule
to the
Consti
tution. At that time, English was the medium of
instruction at all levels and was also the official
language
of the administration. It was accepted on
all hands that English should be replaced
at all levels,
but the process should be phased. Article 343
of
the Constitution declares that the official language of
the
Union shall be Hindi in Devnagari script and it
1962
Gujarat University.,
Ahmedabad
v.
Krishna Ranganath
Mudholkor
Subba Rao, J.
1962
Gujarat Univer.1ity,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
158 SUPREME COURT REPORTS [1963] SUPP.
permits the use of English for all official purposes
for a specified period. But in the
case of education
no such go-slow process was indicated, presumably,
because it
was left to the wisdom ol the Legislatures
of States and educationists to work out the programme
for smooth transition. But the insistence on the
replacement of English by Hindi
for all official
purposes, the recognition
of regional languages, the
omission
of English in the Eighth
Schedule, the
direction under Art.
351 that Hindi should be
enriched by a process of assimilation from
. the
languages specified in the Eighth Schedule and from
Hindustani, all indicate that the makers
of the
Constitution were confident that the regional
languages
were rich or at any rate resilient enough
to be or to become convenient vehicles
of instruction
at all levels of education. That is why no express
reservation
was made for replacing English by regional
languages by convenient stages.
It may, therefore,
be accepted that the makers of the Constitution
thought that the specified regional languages would
be suitable vehicles of instruction, though it may
equally be conceded that they require to
be enriched
to meet the demands of higher education.
In this
context entry
66 of List I must be construed on the
assumption that the regional languages would be the
media
of instruction in all the universities, and if
so construed the law fixing the standards for
co
ordination cannot displace the medium of instruction.
Let me now
look at it from a different angle.
It is contended that English is the established medium
of instruction throughout the country, that following
the example
of the Gujarat University other
univer
sities might follow suit, that consequently there
would be a steep fall in the standards
of higher
education, and that
if the argument of the appellant
was accepted, Parliament would be a helpless spectator
witnessi11g the debacle. In effect, on the appellant's
construction,
th.e major part of the field of
1 S.C,R. SUPREME COURT REPORTS 159
co-ordination would be wiped out. This in effect was
the argument of learned counsel for the respondents
though couched in different phraseology. This
is
another way of saying that the pith and substance of
such legislation made by a
State prohibiting the use
of English falls not under the subject of "education"
but under the entry "co-ordination". This argument
though appears to be attractive,
is without legal or
factual basis.
If the pith and substance of the
impugned law
is covered by the entry
"education",
the question of effacing the Union entry does not
arise at all.
It is an argument of policy. rather than
a legal construction. The simple answer
is that the
Constituent-Assembly did not think
fit to entrust the
subject
of medium of instruction to Parliament, but
relied upon the wisdom of the Legislatures to
rise to the
occasion, and enact suitable legislation. Factually,
except in Gujarat, where the Legislature introduced
Gujarati
as the exclusive medium of instruction by
ari accelerated process, all other States are adopting
a
go-slow policy. Though that circumstance, in my
view, has no relevance in construing the relevant
provisions
of the Constitution there is no immediate
danger
of all the other States abolishing English as
an additional medium of instruction. I would prefer
to accept the natural meaning
of the word
"edu
cation" than to stretch the expression "co-ordination"
to meet a possible emergency when all the States,
following a policy adopted by a State, might set their
face against English. That apart, the picture drawn
by learned counsel
is rather extravagant. It presup
poses that, but for the continuance of English as one
of the media of instruction, education is bound to
fall in standards and co-ordination may become
impossible. But our Constitution-makers did not
think
so, and they did not provide for the continuance
of English in the universities. Further, the standards
can
be maintained, perhaps with some trouble and
expense, by imparting education through other media
of instruction, provided the languages are suitably
1962
Gufrct University,
Ahmedabad
v.
Krijhna Ranganatl
Mudholkar
Subha Rao, J.
160 SUPREME COURT REPORTS (1963] SUPP.
1962
Gujrat University,
Ahmedabad
en~iche?: The State Legislatures, and more so the
umvers1t1es, can be relied upon to make every
reasonable attempt to maintain the standards.
It v.
~rishna Ranganath
Mudholkar
Subba Rao, J.
cannot be assumed that the State tegislatures would
f~uction ~gainst t.he best interests of university educa
tion, while Parliament can safely be relied upon to
act always in its interest. All the legislative
bodies
under our Constitution are elected on adult franchise
and this
Court rightly presumes that they act with
wisdom and in the interests
of the people they
represent.
If the Legislature of a State could in a
particular instance act precipitately by replacing
English by a regional language,
Parliament also in
its wisdom,
if it has power to do so, may cut the
Gordian knot by replacing English
by Hindi in all
the universities.
It is after all a constitutional choice
of institutions to implement a particular purpose and
it
is, therefore, the duty of this
Court to interpret the
provisions
of the Constitution uninfluenced by
eph
emeral local conditions and situations. I would, there·
fore, hold that entry 11 of List II takes in the medium
of instruction and that it is not comprehended by the
phraseology
of entry 66 of List I of the
Seventh
Schedule to the Constitution. It follows that the
State Legislature can make a law empowering the
University to prescribe a regional language as the
exclusive medium of instruction.
The next question
is whether under the
pro·
visions of the Gujarat University Act, 1949, herein·
after called the Act, the University has the power
to prescribe a language
as the exclusive medium of · instruction; or to state it differently, whether the
University has power to prohibit, expressly or by
necessary implication, the use of <>.ny language other
than that prescribed
as the medium of instruction.
At the outset
it would be convenient to notice
briefly the scheme
of the Act so .that
~e relevant
provisions may be constned m their prope1
setting. Under the Act, the Chancellor and the
1 S.C.R. SUPREME COURT REPORTS 161
Vice-Chancellor of the University, and the members of
the Senate, the Svndicate and the Academic Council
of the University 'constitute a body corporate by the
name of "The Gujarat University". It is a teaching
and affiliating University.
It has, inter
alia, powers
to provide for instruction, teaching and training in
different branches
of learning and courses of study;
to hold examinations and confer degrees; to control
and co-ordinate the activities
of various institutions
connected with the University; and to
do all acts
and things incidental to the said powers. The said
purposes are carried out through three
instrument
alities, namely, the Senate, the legislative body, the
Syndicate, the executive, and the Academic Council,
which
is responsible fqr the maintenance of standards
in the examinations
of the University. The
Chance
llor is the head of the University. The Senate
passes statutes; the Syndicate, ordinances; and the
Academic Council, the regulations-all providing
for the subjects entrusted to them respectively. The
Chancellor and the
State Government have the power
of inspection over the affairs of the University and of
giving necessary instructions. Briefly stated, the
University is a corporate body with a large degree
of autonomy, forming an institution for the promotion
of education in the higher branches of learning. It
has power to confer degrees and other privileges on
the successfol alumni
of the institutions under its
control.
With this background let
me look at the
rele
vant provisions of the Act. Clause (1) of s. 4 em
powers the University to provide for instruction
teaching and training in such branches
of learning
and
~<?urses of study as it may think fit and to make
prov1s1ons for research and dissemination of know
!edge; c!. (7) thereof, to lay down the courses of
mstruct10~ for :'arious examinations; cl. (8), to guide
the teachmg m colleg~s or recognized institutions·
cl. (I 0 ), to hold examinations and confer degrees:
1962
Gujarat University
Ahmedahad
v.
Krishna Ranganath
Mudholk•r
Suhba Rao, J.
1962
Gujarat University,
Ahmedabad
v.
Krishna Ranganath
Mudlwlkar
Subha Rao, J.
162 SUPREME COURT REPORTS [1963] SUPP.
titles, diplomas and other academic distinctions;
cl. (14), to inspect colleges and recognized institutions
and to take measures
to ensure that proper standards
of instructions, teaching or training are maintained in
them; cl.
(15), to control and co-ordinate the
acti
vities of, and to give financial aid to affiliated
colleges and recognized institutions; and
cl. (28), to
do all such acts and things whether incidental to the
powers aforesaid or not
as may be requisite in order
to further the objects
of the
University and generally
to cultivate and promote arts, science and other
branches
of learning and culture. Apart from the
incidental powers expressly conferred by cl.
(28), it
is well settled that a corporation can also exercise
powers incidental
to or consequential upon those
expressly conferred on it. The legal position has
been neatly brought out by Viscount
Cave L. C. in
Deuchar v. Gas Light and Coke Company (1), by
placing two passages
of earlier decisions in
juxta
position, thus :
"Whenever a corporation is created by Act of
Parliament, with reference to the purposes of
the Act, and solely with a view to carrying
these purposes into execution, I am of opinion
not only that the objects which the corporation
may legitimately pursue must
be ascertained
from the Act itself, but that the
powen. which
the corporation may lawfully
use in furtherance
of these objects must either be expressly
con
ferred or derived by reasonable implication
from its provisions."
"I must stop there. To that statement I may
add a sentence from the speech
of Lord
Selbome
in the case of
Attorney-General v. Gre.at
Eastern Ry. Co. (') where he said this : "I
agree with Lord Justice .James that this doctrine
ought to
be reasonably, and not unreasonably, undi;rstood and applied, and that whatever
may fairly
be regarded as incidental to, or
(1) [1925]
A.C. 691, 695. 12) [1880] 5 A.C. 473, 478.
1 S.C.R. SUPREME COURT REPORTS 163
consequential upon, those things which the
Legislature has authorized, ought not
(unless
expressly prohibited) to be held, by judicial
construction,
to be
ultra vires."
When an Act confers a power on a corporation, it
impliedly also grants the power of doing all acts
which are essentially necessary for exercising the
same.
Bearing the aforesaid principles in mind, I
must
ask the question whether, on a fair reading of
the aforesaid provisions, it can be said that the
Uni
versity has the implied power to prescribe an. exclu
sive medium of instruction. If once I reach the
conclusion, namely, that
such a power is necessary
for carrying out the purposes expressly authorized by
the statute, I must hold that the said power
is not
beyond the competence of the University. The
University has to provide
for instruction, teaching
and training in different branches
of learning and
courses of study, to lay down the courses of
instruc
tions for various examinations and to guide the tea
ching in colleges or recognized institutions. The
power to prescribe a medium
of instruction is
impli
cit in the power to provide for instruction and the
power to guide the teaching. One can only instruct
through a medium.
It is impossible to conceive of
instruction without a medium. Indeed, they are parts
of the same process. A university cannot make a
provision for instruction or teaching without at the
same time prescribing a medium or media
for
teach
ing it. If it can fix two media, it can equally pres
cribe a sole medium if it thinks that for the proper
instruction a particular language
is the most
suitable medium. A perusal
of the earlier Bombay
statutes and similar statutes
of other
univer
sities of this country indicates that the said
universities prescribed the English medium only
in exercise
of similar powers conferred on them. If
this fundamental power to prescribe the medium is
1962
Gujarat
UniV1,sity
1
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
1962
Gujarat Unfrersity,
Ahmedabad
v.
Krishna Ran.r:anath
J udholkar
Subha Rao; J.
164 SUPREME COURT REPORTS [1963] SUPP.
denied to the universities, the substratum of their
~utono~y and utility under the Act will largely be
Jeopardized or affected. To illustrate, there may be
20 colleges affiliated
tq a university; if the university
cannot prescribe a
sole medium of instruction for all
the affiliated colleges, each one of them may adopt a
different language
as its medium, with the result that
there will be chaos in the sphere of higher education.
If such a power does not exist, how is it possible for
a university to hold examinations in a particular
medium?
It will be forced to hold examinations in
all the different languages chosen by the affiliated
colleges. Though the statute confers a plenary power
on the
University to hold examinations and confer
degrees,
it will not have the power, if the construc
tion suggested by learned counsel
for the respondents
be adopted, to hold examinations in the language
chosen by it. But it
is suggested that .though it has
such a power, it must exercise it reasonably
so as to
satisfy the needs
of the different colleges affiliated to
it. I do not
sec how, if the
University has the power
to hold examinations
in one language, the exercise of
that power could become unreasonable if affiliated
colleges
choEe to ply their own course in utter disre
gard
of the opinion of the
Uuiversity. Be that as it
may, I have no hesitatiqn in holding that the Univer
sity has the implied power to prescribe for the pur
poses of higher education a number of media of
instructions or even a sole medium of instruction to
the exclusion
of others.
It is then said that cl. (27) confers an express
power on the
University to prescribe a medium of
instruction and, therefore, whatever implied power it
mav have in its absence it can no longer be exercised
under the Act. As much of the argument turned
upon the construction of this dame, it would be
convenient to read it:
Clau.se (27): (The University shall have the
power) to promote the development
of the
1 S.C.R. SUPREME COURT REPORTS 165
study of Gujarati and Hindi in Dcvnagari
script and the
use of Gujarati or Hindi in
Devnagari script or both
as a medium of instruc
tion and examination:
Provided that English may continue to be
the medium-
(i) of instruction and examination for such
period
as may from
time to time be
prescribed by the Statutes until the
end
of May 1966 in respect of such
subjects and courses
of study as may
be
so prescribed,
x x x x x
It is said that this being the express. power conferred
upon the University in regard to the prescribing
of a
medium
of instruction, it can only exercise the said
power within the four corners of the said clause, and
that under that clause the University can only pro
vide for Gujarati
or Hindi or both of them in addi
tion to other medium or media
of instructions. To
put it in other words, the argument is that the Uni
versity has no power to provide for au exclusive
medium
of instruction, but it can only prescribe the
said languages
as additional media. This argument
is sought to be reinforced by a comparison of the
indefinite article used in the substantive
part of the
clause and the definite article used in the proviso
thereto. While the substantive
part of the clause
says that the University has the power to promote
the development
of the study of Gujarati and Hindi
in Devnagari script aud the
use of Gujarati or Hindi
in Devnagari script or both
as a medium of instruc
tion and examination, the proviso says that English
may continue to be
the medium of instruction and
examination. The
use of the indefinite article
"a" in the substantive part of the clause in
contradistinction to the definite article "the"
used in the proviso, the argument proceeds, is
1962
Gujarat lJniiiersity,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
1962
Gujarat U11ive1sity
1
Ahmrdabad
v.
Krishna Ranganath
Afudholkar
Subba Rao, J.
166 SUPREME COURT REPORTS [1963) SUPP.
decisive of the question that the University has no
power to prescribe Gujarati or Hindi
as the medium
i. e., the exclusive medium,
of instruction in the
University. I
do not find any merits in this argument.
Clause
(27) does not exhaust the power of the Univer
sity to provide for a medium: that power is implicit
in
cl. ( l) of s. 4 and other clauses thereof already
mentioned. Clause (27)
confers an additional· power
on the University
to promote the development of the
study
of Gujarati or Hindi in Devnagari script and
the
use of them as medium of instruction and exami
nation. This
is a composite power. It enables the
University not only to develop the study
of the
said languages but
also to use them as media of instruc
tion. There
is an essential distinction between the
expression
"providing" and ""promoting". To
promote the development
of the said languages means · to further their growth. It also implies some action
anterior to the existence or occurrence
of the thing
promoted. The power
of promotion confers upon the
Uuivcrsity the power to prescribe adventitious aids
for the purpose
of promotion. To
illustrate, Gujarati
or Hindi is not the medium of instruction in the
University; the said languages have not got suffici~nt
vocabulary to express scientific and technological
concepts; there are no professors who are traind to
teach the said subjects in those languages; there are
no
books in
the said languages of a standard appro
priate to the needs
of higher education. The Uni
versity can certainly help, financially
or otherwise, to
enrich the said languages
so as to make them suitable
vehicles for conveying scientific and technological
ideas.
It may provide for intensive training of the
professors and lecturers in those languages to enable
them to have sufficient knowledge for communicating
their ideas in those languages.
It may give conces
sions in
fees etc., for students who take those languages
as their media of instruction instead of English or any
other language.
It may start a pilot college where
the medium
is only any of those two languages. It
I S.C.R. SUPREME COURT REPORTS 167
may in extreme
cases prohibit the use of any medium
other than the said two languages. There are many
other ways
of subsidizing and helping the promotion
of the said languages. That apart, cl. ( 27) does not
deal only with
instructiou.., but also with examination.
Should it be held that the power of the University to
prescribe a medium
of instruction is derived only from
cl. (27)
it should also be held that the power to pres
cribe a medium
of instruction for examination is also
derived therefrom. If so, it would lead to the anom
alous position
of the
University not being in a position
to hold examinations in any language other than the
said two languages, while in the case
of instruction,
the affiliated colleges,
if the argument of learned
counsel
for the respondents be correct, will be able to
instruct
in media other than the said l wo languages:
the
University will be absolutely powerless to examine
the students
of a
colkge through the medium chosen
by it.
It is, therefore, obvious that cl. (27)
does not
in any way replace or even curtail the undoubted
power of the University to prescribe a medium of
instruction of its choice, but only confers an additional
power and a correlative duty to promote these two
languages.
If so understood, the proviso also squarely
fits in the scheme. What the proviso says is that
English may continue to be the medium of instruction
and examination in such subjects and
for such
period until the end
of May 1966. It is enacted
as a proviso to cl. ( 27), as, but for
that proviso,
English may continue to be
a medium of
instruction, but it cannot be the medium or
the sole medium
of instruction, for there is a
duty cast on the
University to introduce one or
other
of the aforesaid two languages as medium of
instruction. The proviso enables the
University to
postpone the introduction
of the aforesaid languages
as media
of instruction for a prescribed period. In
this context, the argument based upon the use of the
indefinite article in the substantive
part of the clause
and
of the definite article in the proviso may be
1962
Gujarat
University,
Ahmedabad
v.
Krishna Ranganalh
Mudholkar
Sttbba Rao, J.
1962
Gujarat Universif:)•,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
Subba Rao, J.
168 SUPREME COURT REPORTS [1963] SUPP.
considered. The use of the indefinite article, it is said,
shows that the power
of the
University is only to
prescribe an additional medium,
for otherwise the
Legislature would have used
the words "the medium"
as it has done in the proviso. Grammatically the
definite article "the" could not have been used in the
substantive
part: the definite article is used only to
mark the object as before mentioned or already
known or contextually particularized.
That is why
in the proviso the definite article
is used in the con
text
of the English language which is already in the
field
as the exclusive medium of instruction. But in
the substantive
part of cl. (27) the Legislature was
providing for an additional power to promote one or
other
of the two languages mentioned therein or both
of them. In that context when different languages,
which can alternatively be prescribed, are mentioned,
the appropriate article can only be the indefinite
article.
If the argument of learned counsel for the
respondents be accepted,
it may lead to a more serious
anomaly, namely, that after the prescribed period in
the proviso the
University becomes powerless to in
troduce any· language other than Gujarati or Hindi as
medium of instruction and examination. This diffi
culty is sought to be met by the 'contention that the
power to continue English
as a medium of instruction
after the period prescribed in the proviso,
is neces
sarily implied in the proviso. The doctrine of neces
sary implication as. applied to the law of statutory
construction means an implication that
is absolutely
necessary and unavoidable.
It is not implication by
.conjecture. I would be attributing to the Legislature
an ineptitude in drafting
if I should hold that such
an important power
of prescribing a medium of
instruction is left to be
•implied by construction. It
would also be against the natural meaning of the
phraseology used in the proviso.
The Legislature in
,.
enacting cl. (27) of s. 4 must Ix; deemed to have hacY
knowledge that the University has prescribed ~sh
as .the medium in exercis<: of the powers ves~ed m it
1 S.C.R. SUPREME COURT REPORTS 169
and with that knowledge the Legislature proceeded to
enact
in the proviso that the
University could continue
English
as the sole medium for a prescribed period.
The proviso, therefore,
was enacted on the assumption
of an existing power : it was not conferring the power
for the
first time.
Should it be held that the proviso
conferred the power
on the
University to prescribe
English
as a medium for the first time, it should also
be held that the
University could not prescribe any
medium other than English, Hindi or Gujarati after
the period prescribed in the proviso. But, on the
other hand,
if cl. (27) is construed in the manner I
have done, i.e., it
is
only a power conferred on the
University in addition to its existing power to pres
cribe a medium or media of instruction, the relevant
provisions fall into a piece. The University will then
have powers,
to prescribe any medium or media, to
promote Hindi and Gujarati, to introduce the use of
Hindi and Gujarati, to continue English
as the sole
medium of instruction for the prescribed period and
after the said period has run out to prescribe English
or any other language
as the medium of instmction
in addition
to Hindi or Gujarati. If the artificial
construction suggested by the respondents be accepted,
the Legislature should be held to have deprived the
University not only of its power to discontinue English
as the medium of instruction but also to have prevent
ed it from introducing any medium other than
English, Hindi or Gujarati. For the aforesaid reasons
I would hold that cl.(27)
of s. 4 of the Act gives only
an additional power and it
does not derogate from the
implied power derived from other provisions
of the
Act.
Some argument is advanced on the basis of
s. 18(l)(XIV) of the Act, which reads:
18. ( 1) Subject to such conditions as may be
prescribed by or under the provisions of this
Act, the Senate shall exercise the following
1962
Gujarat lfniversity,
Ahmedahad
v.
K 1iJhna Ranganalh
A-fudholkar
Subba Rao, J.
1962
Gujarat llniverjity,
Ahmedabad
v.
Krishna Ranganath
Mudholkar
170 SUPRE!\1E COURT REPORTS [1963] SUPP.
powers and perform the following duties,
namely:-
x x x x
(XIV) to make provision relating to the use
of Gujarati or Hindi in Devnagari script
or both
as a medium of instruction and
examination.
Learned counsel for the appellant contends that while
cl. (27)
of s. 4 confers a power on the University,
cl.
(XIV) of s. 18(1) confers both a power and a duty
on the Senate to provide for the use of Gujarati or
Hindi in Devnagari script
as medium of instruction
and examination. Learned counsel for the respondents
again emphasize upon the
use of the indefinite article
in the said clause. I cannot agree with either
of the
two contentions. When a power
is conferred on the
University to promote the said two languages
as
me
dium of instruction, presumably for public good, there
is a correlative duty on the University to exercise that
power. The fact that under
s. 4 only powers are
conferred, whereas under
s. 18 both powers and
duties are mentioned, does not make much difference
in a case where a power
is conferred for public good.
The statute
uses three expressions, namely,
"provide",
"promote", and "make a provision". Under the
statute the powers
of
'the University can only be
exercised through the instrumentalities
of the
Univer
sity in the manner prescribed. In s. 18 the words used
are neither "provide" nor ""promote" but "to make
provision" indicating thereby that specific provisions
have to be made presumably through statutes. As the
University has got power to provide for the exclusive
medium and also to promote the
use of the said two
languages
as media of instruction, the Senate is
authorized to make statutes providing for the former
in
exercise_ of its power under s. 18 (I) (i) and for
the latter under
s. 18 (I) (xiv). As to the promotion
of the development of the
~tudy of Gujarati and
1 S;C.R. SUPREME COURT REPORTS 171
Hindi in Devnagri script, the Senate, the Syndicate
and the Academic Council may make the requisite
laws in exercise
of the appropriate powers conferred
on them.
The use of the indefinite article
"a" in·
cl. (xiv) of s. l 8 (1) is not of much relevance, for, as
I have already pointed out, it is the appropriate
article in the context.
Another contention accepted
by the High
Court, namely, that s. 4 ( l) and other clauses of the
section apply only to residential colleges, was faintly
advanced by learned counsel for the respondents.
There
is absolutely no force in it, as the phraseology
of the said clauses is wide and comprehensive and
does not admit
of any such limitation.
The argument that this construction will enable
the
University to abolish English altogether as a
medium
of instruction, as it is done in the present
case, has no relevance, for it can certainly do
so, if it
has power in that regard. The Constitution depended
upon the
State Legislatures and the universities for
imparting education at the university level. The
Legislature in its turn, rightly in my view, conferred
the necessary powers on the university, in the interest
of higher education. No one is better qualified than
the representatives
of the intelligentsia of the
State
who man the various instrumentalities of the Univer
sitv to decide on the medium of instruction to be
introduced in the colleges affiliated to the University.
It may be that a particular university may have
accelerated the pace
of the introduction of a regional
language
as the medium of instruction at the
univer
sity level, but other universities are following a more
cautious policy.
It is for the university to decide its
own course.
If the statute has conferred the power,
as I have said it has, these considerations are of no
avail.
It is not disputed that if the University has the
power to prescribe an exclusive medium
of instruction
1962
Gujarat
Uninersity,
Ahmedabad
v.
KriJhna Ranganath
MudhfJlkar
Subba Rao, J f
1962
Gujarat University,
11hmedabad
v.
Krishna Rangariath
Mudholkar
Subba Rao, J.
1962
Septtmber 24.
172 SUPREME COURT REPORTS [1963] SUPP.
under a statute, s. 38A of the Act which is a conse·
quential provision would be valid.
For the aforesaid
reasons I hold that the
Uni
versity was w~ll within its rights in prescribing, by
statutes, the said two languages as media of instruc·
tion to replace English by stages.
. In the result the order of the High Court is set
aside and the appeals are allowed with costs of the
appeliants here and in the High Court.
BY COURT: In accordance with the view of the
majority, both the appeals stand
dismissed in the
manner indicated in the majority judgment, with
costs. There will
be one set of hearing fee.
Appeals dismissed.
THE AMALGAMATED
COALFIELDS LTD.
AND ANOTHER
v.
THEJANAPADA SABHA, CHHINDWARA
(And connected appeals)
(B.
P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N.
WANCHOO, K. c. DAB GUPTA AND J. c. SHAH, JJ.)
Coal Tax-Levy-ValUJity-Writ Petition, if barred by
rea ju&icata-Enhanced levy after first imposition-Absence of
premous sanction by Local Government-Legality of such levy-
Constitution of India, Arts. 19 (1) (f), 32, 141, 226-Central
Provinces Local Self Government Act, 1920 (C. P. IV of 1920),
8. 51(2).
The 1st appellant in the first batch of appeals ~>ad filed
a
writ petition in this Court challenging the nouces.
calh~g upon
him to pay the tax of 9 pies per ton on coal mcluding coal
despatched outside the State of Madhya Pradesh on two grounds,
namely,
that the levy of the tax by.
th~ J.ndepende~~ Mining
Board was invalid
at the date of
its uutial mtposttion and,
Date of Judgment: September 21, 1962
Bench: B. P. Sinha C.J., Jafer Imam, K. Subba Rao, K. N. Wanchoo, J. C. Shah, N. Rajagopala Ayyangar, JJ.
Citation: 1963 AIR 703, 1963 SCR Supl. (1) 112
The landmark 1962 Supreme Court judgment in The Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar stands as a critical exposition on the boundaries of state power in the realm of higher education. This case, a cornerstone ruling available on CaseOn, meticulously dissects the scope of the Gujarat University Act 1949 and delves deep into the constitutional framework governing legislative competence in education. At its heart, the judgment addresses a fundamental question: Can a state legislature empower a university to impose a regional language as the exclusive medium of instruction, and in doing so, does it overstep into the domain reserved for the Union Parliament?
The case arose when Shri Shrikant Mudholkar, a student at St. Xavier's College, an institution affiliated with Gujarat University, was denied admission to the Intermediate Arts classes in the English medium. Having completed his First Year Arts through English, he was informed by the college Principal that under the amended Gujarat University Act, 1949, and its statutes, Gujarati or Hindi was to be the exclusive medium of instruction. Admission to an English medium class was not possible without special sanction from the University, which was subsequently refused.
The student's father, Shri Krishna Ranganath Mudholkar, challenged this decision in the Gujarat High Court. The High Court ruled in their favor, declaring that the University's statutes imposing an exclusive medium were unauthorized by the Act and that the legislative provisions themselves were an unconstitutional encroachment on the Union's powers. The Gujarat University and the State of Gujarat then brought the matter to the Supreme Court on appeal.
The Supreme Court was tasked with resolving two pivotal legal questions:
The Court's decision hinged on the interpretation of key constitutional and statutory provisions:
The central conflict revolved around the potential overlap between the State's general power over education (Entry 11, List II) and the Union's specific power to maintain uniform national standards (Entry 66, List I).
The six-judge bench delivered a majority opinion, with Justice K. Subba Rao providing a dissenting view.
The majority first addressed whether the Gujarat University Act itself conferred the power of exclusivity. Through a meticulous textual analysis, the Court noted the Legislature's deliberate choice of words.
Based on this interpretation, the Court concluded that the Act did not empower the University to make Gujarati or Hindi the sole and exclusive medium of instruction. Therefore, the statutes and circulars enforcing this exclusivity were invalid.
Although this finding was sufficient to dismiss the appeal, the Court proceeded to discuss the larger constitutional question of legislative competence. It held that while the medium of instruction is part of "education" and generally falls under the State's domain, this power is not absolute. It is subject to the Union's power under Entry 66 of List I.
The power of "co-ordination and determination of standards" was interpreted broadly. The Court reasoned that if a State law imposing an exclusive regional language was likely to result in a fall in educational standards—due to a lack of quality textbooks, competent teachers, or access to academic literature—it would directly impinge upon the Union's legislative field. In any such conflict between List I and List II, the power of the Union Parliament must prevail.
Understanding the nuanced distinction between state and union powers in landmark cases like this can be complex. For legal professionals on the go, CaseOn.in offers 2-minute audio briefs that distill the core arguments and rulings of The Gujarat University v. Krishna Mudholkar, making it easier to grasp these critical legal precedents.
Justice Subba Rao, in his dissent, argued for a clearer separation of powers. He contended that "education," in its entirety, including the medium of instruction, falls squarely within the State's legislative power under Entry 11. He viewed the Union's power under Entry 66 as a tool to harmonize and uplift standards, for instance, by providing financial aid or establishing model institutions, but not to interfere with the fundamental aspects of education like the medium of instruction. In his view, the power to prescribe a medium, even an exclusive one, was an essential and inseparable part of the power over education, and the State Legislature was fully competent to grant this authority to the University.
The Supreme Court, by its majority decision, dismissed the appeals. It held that:
This case is a foundational text for understanding the federal structure of India, particularly in the context of education policy.
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal advice. For any legal issues, it is essential to consult with a qualified legal professional.
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