Gujarat University v. Krishna Ranganath Mudholkar AIR 1963 SC 703
[Bhuvaneshwar Prasad Sinha, C.J. and S.J. Imam, K. Subba Rao, K.N. Wanchoo, J.C. Shah and N. Rajagopala Ayyangar, JJ.]
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LB-301-Constitutional Law-I |2022
[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” onthe 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.
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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
286 Gujarat University v. Krishna Ranganath Mudholkar
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
287 Gujarat University v. Krishna Ranganath Mudholkar (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.
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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 institutionsof national importance”. Item 65 vests in the Parliament power to legislate for “Unionagencies 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 thesubject of education and in respect of these items the power to legislate is vested exclusivelyin 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 undertakenby 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 Universitiesmust to the extent to which it is entrusted to the Union Parliament, whether such power is
289 Gujarat University v. Krishna Ranganath Mudholkar
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 respectof 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
290 Gujarat University v. Krishna Ranganath Mudholkar
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 66. 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. Thereisnothingintheentrywhichindicatesthatthepowertolegislateoncoordination 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
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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
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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.
