Gujarat University v. Krishna Ranganath Mudholkar AIR 1963 SC 703

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[Entry 11, List II referred to in this case is presently entry 25 of List III.]
Shrikant, son of Shri Krishna Mudholkar, appeared for the Secondary School Certificate
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 was his mother tongue and answered the questions at the examination also in
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
March 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
Statutes 207, 208 and 209 framed by the Senate of the University, as amended in 1961, he could
not permit him to attend classes in which instructions were imparted through the medium of
English without the sanction of the University. Shri Krishna, father of Shrikant then moved the
Vice Chancellor of the University for sanction to permit Shrikant to attend the“English medium
classes” in the St. Xavier’s College. The Registrar of the University declined to grant the
request. By another letter, Shrikant was “allowed to keep English as a medium of examination”
but not for instruction.
A petition was then filed by Shrikrishna 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, direction or order requiring the University of Gujarat to treat Sections 4(27), 18(i)(xiv)
and 38-A of the Gujarat University Act, 1949, and Statutes 207, 208 and 209 asvoid and
inoperative and to forbear from acting 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 Intermediate 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 issued the writs prayed for. The University and the State of
Gujarat separately appealed to the Supreme Court with certificates of fitness granted by the
High Court.
Two substantial questions, which came up before the Supreme Court for determination:
(1) whether under the Gujarat University Act, 1949 it is open to the University to
prescribe Gujarati or Hindi or both as an exclusive medium of 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.

J.C. SHAH, J. – 7. St. Xavier’s College was affiliated to the University of Bombay under
Bombay Act 4 of 1928. The legislature of the Province of Bombay enacted the Gujarat
University Act, 1949 to establish and incorporate a teaching and affiliating University “as a
measure of decentralisation and re-organisation” of University education in the Province. By
Section 5(3) of the Act, from the prescribed date all educational institutions 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 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 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 Section 15. We are concerned in these appeals
with the Senate, the Syndicate and the Academic Council. Some of the powers conferred by
Section 4 were made exercisable by Section 18 by the Senate. The Senate wasby 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- section (1). By Section 20 certain
powers of the University were made exercisable by the Syndicate, and by Section 22, the
Academic Council was invested with the control and general regulation of, and was made
responsible for, the maintenance of standards of teachingand examinations of the University
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 promulgation of Statutes of the Syndicate
by Ordinances and of the Academic Council by Regulations. In 1954, the Gujarat University
framed certain Regulations 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 the medium, if they so desire. The Syndicate will regulate
this by making suitable Ordinances in this behalf, if, as and when necessary.
(4) Notwithstanding anything in (1), (2), (3) above, the medium of examination and
instruction for modern indian languages and English may be the respective languages.

8. 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 allsubjects 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 respectively upto 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 BA,
   BSc, and other examinations. 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 Section 4(27) was amended so as to extend the use of English as the medium
of instruction beyond the period originally contemplated and Section 38-A which imposed an
obligation upon all affiliated colleges and recognised institutions to comply with the provisions
relating to the media of instruction was enacted. It was provided by Section 38-A(2) that if an
affiliated college or recognised institution contravenes the provisions of the Act, Rules,
Ordinance and Regulations in respect of media of instruction the rights conferred on such
institution or college shall stand withdrawn from the date of the contravention andthat the
college or institution shall cease to be affiliated college or recognised institution for the purpose
of the Act. The Senate of the University 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 (1) above, Hindi will be permitted as an
alternative medium of instruction and examination in the following faculties:
(i) Faculty of Medicine, (ii) Faculty of Technology including Engineering, and (iii)
Faculty of Law; and (iv) in all faculties for post graduate studies;
(2) Notwithstanding anything contained in clause (1) above, English may continue to be the
medium of instruction and examination 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 Section
4(27) of the Gujarat University Act for the time being in force.
(3) Notwithstanding anything contained in clause (1) 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 (1) and (3) above, it is hereby provided that
the affiliated colleges, recognised Institutions and University Departments, as the case may be,
will have the option to use, for one or more subjects, Hindi as a medium ofinstruction and
examination for students whose mother tongue is not Gujarati.
(5) Notwithstanding anything in clauses (1), (2), (3) and (4) above, the medium of examination
and instruction for modern Indian languages and English may be the respective languages.

9. 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.
10. 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 Section 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 examination in the Intermediate Arts class for one year i.e. in the year 1961-
    62, and
    (ii) the colleges be permitted to make arrangements 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) above
are permitted to avail themselves of the concession mentioned therein.

11. Shrikant had not appeared at the SSC Examination in the medium of English and under
    the first clause of the circular he could not be permitted 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 Section 38-A.
12. The petitioner challenged the authority of the University to impose Gujarati or Hindi as
    the exclusive medium of instruction under the powers conferred by the Gujarat University Act,
    1949 as amended by Act 4 of 1961. The University contended that authority in that behalf was
    expressly conferred under diverse clauses of Section 4, and it being the duty of theSenate to
    exercise that power under Section 18(XIV), Statutes 207 and 209 were lawfully promulgated.
    In any event, it was submitted the University being a Corporation invested with control over
    higher education for the area in which it functions such a power must be deemed to be
    necessarily implied.
    
    18. 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 provisions of the Act in a
    manner contrary to the intention of the legislature plainly expressed. This recommendation of
    the Government of India has been ignored if not by all, by a large majority of Universities. It
    is also true that in the Statement of Objects and Reasons of the Gujarat University Act, it was
    stated “… As recommended by the Committee, it is proposed to empower the University to
    adopt Gujarati or the national language as the medium of instruction except that for the first ten
    years English may be allowed as the medium of instruction in subjects in which this medium is
    considered 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. Statements of Objects
    and Reasons of a Statute may and do often furnish valuable historical material in ascertaining
    the reasons which induced the legislature to enact a Statute, but in interpretingthe 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 clause (27) or
    any other clauses of Section 4.
    
    20. [N]either 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
    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.
    
    22. Power of the Bombay Provincial Legislature to enact the Gujarat University Act was
    derived from Entry 17 of the Government of India Act, 1935, List II of the Seventh Schedule

• “Education including Universities other than those specified in para 13 of List I.” In List I
  Item 13 were included the Banaras Hindu University and the Aligarh Muslim University.

Therefore, except to the extent expressly limited by Item 17 of List II read with Item 13 of List
I, a Provincial Legislature was invested with 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 by Section 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 Section 4(27). By the Constitution a vital change has been made
in the pattern of distribution of legislative power relating to education between the Union
Parliament and the State Legislatures. By Item 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 Iand 25 of List III”.
Item 63 of List I replaces with modification Item 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 University 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 scientific
or technical education financed by the Government of India wholly or in part and declared by
Parliament, by law, to be institutions of national importance”. Item 65 vests in the Parliament
power to legislate for “Union Agencies and institutions for – (a) professional, vocational or
technical training, including the training of police officers; or (b) the promotion of special
studies or research; or (c) scientific or technical assistance in the investigation or detection of
crime.” By Item 66 power is entrusted to Parliament to legislate on “coordination and
determination of standards in institutions for higher education or research and scientific and
technical institutions. Item 25of 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 Legislatures to
legislate with respect to higher, scientific and technical education and vocational and technical
training of labour, under the Government of India Act is under the Constitution controlled by
the five items in List I and List III mentioned in Item 11 of List II. Items 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 11 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
[(1961) 2 SCR537] this Court in considering the import of the expression “subject to” used
in an entry inList 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 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 inwhich
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 Legislature 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 legislature 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 extentof overlapping,
the power conferred by Item 66 List I must prevail over the power of the Stateunder Item 11 of
List II. It is manifest that the 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 11 ofList 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 respect of medium of instruction
is, however, not a distinct legislative head; it resides with theState Legislatures in which the
power to legislate on education is vested, unless it is taken away by necessary intendment 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 tovest in the Union. Power to
legislate in respect of medium of instruction, insofar it has a directbearing and impact upon the
legislative head of coordination and determination of standardsin 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.

23. The State has the power to prescribe the syllabi and courses of study in the institutions
    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 imparted. But the Union
    Parliament has an overriding legislative power to ensure that the syllabi and courses of study
    prescribed and the medium selected do not impair standards of education or render the
    coordination of such standards either on an all-India or other basis impossible or evendifficult.
    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 whichwould 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 prescribe 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 coordination
    and determination of standards, that is, to ensure maintenance or

improvement of standards. The fact that the Union has not legislated, or refrained from
legislating to the full extent 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, follow
that even within the permitted relative fields there might not be legislative provisions in
enactments made each in pursuance of separate exclusive and distinct powers which may
conflict. Then would arise the question of repugnancy and paramountcy which may have to
be resolved on the application of the “doctrine of pith and substance” of the impugned
enactment. 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 whether it
prejudicially affects coordination and determination of standards, but not upon the existence
of some definite Union legislation directed to achieve that purpose. If there be Union legislation
in respect of coordination and determination of standards, that would have paramountcy over
the State law by virtue of the first part of Article 254(1); even if that power be not exercised by
the Union Parliament the relevant legislative entries being in the exclusivelists, a State law
trenching upon the Union field would still be invalid.

24. Counsel for the University submitted that the power conferred by Item 66 of List I is
    merely a power to coordinate and to determine standards i.e. it is a power merely to evaluate
    and fix standards of education, because, the expression “coordination” 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. In the course of the argument, however, it was somewhat reluctantly admitted that steps to
    remove disparities which have actually resulted from adoption of a regional medium and the
    falling of standards, may be undertaken and legislation for equalising standards in higher
    education may be enacted by the Union Parliament. We are unable to agree with this contention
    for several reasons. Item 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 Item
    66 or elsewhere in the Constitution which supports the submission that the expression
    “coordination” must mean in the context in which it is used merely evaluation, coordination
    in its normal connotation means harmonising or bringing into proper relation in which all the
    things coordinated participate in a common pattern of action. The power to coordinate,
    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.
25. There is nothing in the entry which indicates that the power to legislate on coordination
    of standards 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 express pronouncement of the Constitution makers, it is a power to coordinate,
and of necessity, implied therein is the power to prevent what would make coordination
impossible or difficult. The power is absolute and unconditional, and in the absence of any
controlling reasons it must be given full effect according to its plain and expressed intention.
It is true that “medium of instruction” is not an item in the Legislative List. It falls within Item
11 as a necessary incident of the power to legislate on education : it also falls within Items 63
to 66. Insofar 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 coordination of higher
education is a matter which is not susceptible, in the absence of any concrete challengeto a
specific statute, of a categorical answer. Manifestly, in imparting instructions in certain
subjects, medium may have subordinate importance and little bearing on standards of education
while in certain others its importance will be vital. Normally, in imparting scientificor technical
instructions or in training students for professional courses like law, engineering, medicine and
the like existence of adequate text books at a given time, the existence of journals and other
literature availability of competent instructors and the capacity of students to understand
instructions imparted through the medium in which it is imparted are matters which have an
important bearing on the effectiveness of instruction and resultant standards achieved thereby.
If adequate textbooks are not available or competent instructors in the medium, through which
instruction is directed to be imparted are not available, or the studentsare not able to receive or
imbibe instructions through the medium in which it is imparted, standards must of necessity
fall, and legislation for coordination of standards in such matters would include legislation
relating to medium of instruction.

26. If legislation relating to imposition of an exclusive medium of instruction in a regional
    language or in Hindi, having regard to the absence of text books and journals, competent
    teachers and incapacity of the students to understand the subjects, is likely to 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
    conferred by Item 11 of List II.
    
    29. We are unable, however, to agree with the High Court that Act 4 of 1961 insofar as it
    amended the proviso to Section 4(27) is invalid, because it is beyond the competence of the
    State Legislature. By the amendment of the proviso to Section 4(27), the legislature purported
    to continue the use of English as the medium of instruction 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 medium of instruction in
    respect of all subjects at the University level. By enacting the proviso as it originally stood,
    the university was authorised to continue the use of English as an exclusive medium of
    instruction in respect of certain subjects to be selected by the Senate. By the amendment 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 coordination and determination of standards cannot be affected

thereby. By extending the provisions relating 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.

30. The order of the High Court relating to the invalidity of the Statutes 207 and 209 of the
    University insofar as they purport to impose “Gujarati or Hindi or both as exclusive medium”
    of instruction, and the circulars enforcing those Statutes must therefore be confirmed.