The Gujarat University, Ahmadabad Vs. Krishna Ranganath Mudholkar & Ors [1962] INSC 67 (21 February 1962)
21/02/1962 SHAH, J.C. SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SUBBARAO, K.
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 703 1963 SCR Supl. (1) 122
CITATOR INFO:
R 1964 SC1823 (6,34,35) R 1970 SC2079 (10) R 1971 SC1731 (12) RF 1979 SC 83 (2) RF 1987 SC2034 (16,17) RF 1988 SC 305 (7)
ACT:
University Education--Fixation of exclusive medium of instruction--Legislative Competence of State Legislature--Constitution of India, Art. 254 (1), Seventh Schedule, List I, Entry 66, List II, Entry 11--Gujarat University Act, 1949 (Bom. 56 of 1949) as amended by Act 4 of 1961, ss. 4, 18, 20, 22, 38A--University Statutes, 207, 208 209.
HEADNOTE:
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 classes preparing for the Intermediate Arts Examination 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 207, 208 and 209 framed by the Senate of the University, as amended in 1961, he could not be admitted without the sanction of the University. The first respondent (father of the second respondent) 113 moved the Vice-Chancellor but sanction was refused. The respondents then moved the High Court under Art. 226 of the Constitution for writs 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 thewrits 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 determination were, (1) whether the Gujarat University had the power under the Act to prescribe Gujarati or Hindi or both as exclusive medium or media of instruction and examination, (2) whether legislation authorising the University to impose such media was constitutionally 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 University Act, 1949, as originally enacted nor as amended by Act 4 of 1961, 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 was 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 University 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.
A 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 exclusive medium of instruction.
The letter dated August 7, 1949, addressed by the Government of India to the Universities and Provincial Governments 114 requesting them to gradually replace English as the medium of instruction at the University stage by the regional or State language could 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 was carried out, the Statement of Objects and Reasons must be ignored in interpreting the statute.
It was not correct to say that legislation prescribing the medium or media of instruction in higher education and other instructions must fall within Item 11 of List 11 of the Seventh Schedule to the Constitution. The use of the expression "subject to" in that Item clearly indicates that legislation in respect of matters excluded by that Item cannot be undertaken by the State Legislature.
Hingir-Rampur Coal Co. v. State of Orissa, [1961] 1 S.C.R.
537, referred to.
Item 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 State Legislatures by Item 11.
The test of the validity of a State Legislation on University education or education in Technical and Scientific Institutions not covered by Entry 64 of List I, would be whether such legislation impinges on the field reserved for the Union 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 be 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 resulting 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 conditioned by the existence of a state of emergency or unequal standards calling for its exercise.
Since medium of instruction is not an item in the legislative Lists, it necessarily falls within Item II of List II, as 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 II 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 abridging 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, however, 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. Krishna v. State 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, [1882] 12 A.C. 575 and Attorney General for Alberta v. Attorney General for Canada, [1939] A.C. 117, discussed.
The well-settled rules of interpretation are 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 medium of instruction was included in Entry 11 of List II and not in Entry 66 of List I which 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 was thus within Entry II and did not affect the Union Entry which does not necessarily involve a particular medium of instruction.
Calcutta Gas Co. v. The State of West Bengal [1962] Supp. 3 S. C. R. I applied, 116 When an act confers a power on a corporation such as the University, it impliedly grarnts the power of doing all acts which are essentially accessary for exercising a 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 media or instructions or even a sole and exclusive medium. That power is implicit in cl. (1) of s.4 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 and examination; the proviso to it also corresponds with the scheme.
CIVIL APPELLATE JURISDICTION: 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. Merchand, 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, O. C. Mathur and Ravinder Narain, for the respondent No. 1 (in both the appeals.) M. C. Setalvad, Attorney-General of lndia 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 appellant (in C. A. No. 262 of 1962).
I. M. Nanavati and 0. Oopalakrishna, for the intervener (in C.A. No. 234/62).
Frank Anthony, Charanjit Talwar, P. O. Agarwala, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 2 (in both the 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.
117 SHAH J.-Shrikant son of Shri Krishna Madholkar 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 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 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 the Statutes 207, 208 and 209 framed by the Senate of the University, as amended in 1961 he could not without the sanction of the University permit him to attend classes in which instructions were imparted through the medium of English. 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, 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, direction 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 118 upon or enforcing those provisions and requiring the ViceChancellor 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 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 by order 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 instruction and examination in institutions other than those maintained by the University are unauthorised and therefore null and void, for neither s. 4(27) nor any other provision of the Act empowers the University 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 Gujrati or Hindi as one of the medium of instruction and examination and not as the only medium of instruction 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 therefore beyond the legislative competence of the State and the Statutes 207 and 209 made thereunder are null and void ; and (4) Even if on a true construction of s. 4(27) and other provisions of the Act the University is authorised to prescribe a particular language or languages as medium or media of instruction and examination for affiliated colleges and to prohibit the use of English as a medium of instruction and examination in affiliated colleges, the provisions authorising the imposition of exclusive media and the Statutes and circulars issued in pursuance thereof are void and infringing Articles 29 (1) and 30 (1) of the Constitution.
We have declined to hear arguments about the alleged infringement of fundamental rights under Articles 29 (1)and 30 (1) 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 noncontentious 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 (1) and 30(1) depends upon proof of several facts such as existence of a distinct language, script or culture of a 120 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 obstructed 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 circulars 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 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 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 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 decentralization and re-organisation" of University education in the province. By s. 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 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 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 responsible for, the maintenance of standards of teaching and 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 save the option, the former for their examination and the latter for their teaching work, to use Hindi as themedium, if they so desire.
122 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.
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 respectively 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 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 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 institutions 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 institution 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 123 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 subitem (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 sec.
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) & (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 124 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 examination and instruction for modem 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 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) 125 above are permitted to avail themselves of the concession mentioned therein.
Shrikant had not appeared at the S.S.C. 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 s. 38A.
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 s. 4, and it being the duty of' the Senate to exercise that power under s. 18(XIV), Statutes 207 and 209 were lawfully promulgated.
In any event, it was submitted that 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.
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 (1), (2), (7), (8), (10), (14), (27), and (28) of s. 4 only need be considered. 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 research and dissemination of knowledge". We do not, having regard to the phraseology used by the Legislature, agree with the High Court that this power is restricted in its exercise to institutions set up by the University and does not extend to affiliated colleges. The language used in the clause does not warrant this restriction. But we agree with the High Court that 126 the power conferred by cl. (1) does not relate primarily 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 imparted 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 undoubtedly 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 examinations and confer degrees, titles, diplomas and other academic distinctions on persons who =(a) have, pursued approved courses of study in the University or in an affiliated college unless exempted there from in the manner prescribed 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 127 and Regulations". Counsel for the University contended that by cl. 10(a), the University had the authority to approve courses of study in the manner prescribed 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 distinctions 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 there from" immediately 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 qualifying 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 Regulations. 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 128 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 institutions, 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, teaching 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 examination;
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 conferred to promote the development and use of Gujarati or Hindi or both as a medium of instruction. That clause is not in its expression, grammatically accurate. It 129 should, if it had been drafted in strict accordance with the rules of grammar, 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 confer-red 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 of 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 entrusted 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 130 instruction. It is common ground, that in the University of Bombay the exclusive medium of instruction was English, in the various affiliated colleges in the region or area over which the Gujarat University acquired authority. By the proviso to 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.(1) and (27) were intended to be exercised to further the object of the University. But if the object of the University as indicated by cl.(27) was not to authorise the imposition 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 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 used in the diverse clauses is Prima facie not susceptible of the meaning that each clause authorises the Senate to exercise the powers of the University and imposes also a concomitant duty.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 carry out its objects; power to indicate a medium of instruction in affiliated or constituent colleges may therefore be deemed to be vested in a University but the power to indicate a medium of instruction does not carry with it, in the absence of an express provision, power to impose upon the affiliated institutions an exclusive medium of instruction.
Reliance was placed by counsel for the University upon 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 132 were of the opinion that in the interest of national education it was hoped that Universities and Provincial Governments will take early steps towards the implementation of certain recommendations viz :"Item I.-The Government of India requests the University and Provincial Governments to take steps to :(a) replace English as the medium of instruction 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 examination.
Item II.-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 III.x x x x x x Item IV and Vx x x x x x Item VI.x x x x x x Item VII. 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 provisions of the Act in a manner contrary to the intention 133 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 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.
(11) of instruction and examination for such period as may from time to time be prescribed by the Statutes until 134 the end of May 1968 in respect of postgraduate instruction., teaching and training in subjects comprised in Faculties of Agriculture and Technology including Engineering and until the end of May 1969 in respect of post-graduate instruction, teaching and training in the subjects 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 subjects :
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 before 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 interpretation of cl. (27) : 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 says-" Provided further that nothing in this clause shall affect the use of English as the medium of 135 instruction and examination in respect of English as a subject". When the Legislature intended to provide 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 instruction in the Universities, may appear academic, But we have thought it necessary to consider the question because the High Court has declared certain provisions of Act 4 of 1961 relating to medium of instruction as ultra vires 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 any 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, 1935, List 11 of the Seventh Schedule-"Education including Universities other than those specified in paragraph 13 of List I". In List I item 13 were included the Benaras 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 136 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 s. 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 Parliament and the State Legislatures. By item No. 1 1 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 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 137 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 "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 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. 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 considering 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.
138 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 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 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 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 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 respect of medium of instruction is, however, not a distinct legislative head; it resides with the State Legislatures in which the power to legislate on education. invested, 139 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 to vest in the Union. Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impact upon the legislative head of co-ordination 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 ;he 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 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 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 co-ordination 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, 140 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 co-ordination 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 co-ordination and determination of standards, that would have paramounty over the State law by virtue of the first part of Art. 254(1) ; 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 coordinate 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 reluctantly admitted that steps to remove disparities which have actually resulted from the adoption of a regional medium and the falling of standards, may be undertaken and legislation for equalising standards in 141 higher education may be enacted by the Union Parliament. We are unable to agree with this contention 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 comprehend 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-ordination 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 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 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 co-ordinate, 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 142 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 education :
it also falls within 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-ordination 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. 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 scientific or 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 text-books are not available or competent instructors in the medium, through which 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, standard is 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 exclusive medium of instruction in a regional language or in Hindi, having regard to the absence of textbooks and journals, competent teachers and incapacity of the students to understand the subjects, is likely to 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 conferred by item No. 11 of list II It must be observed, that these observations have been made by us on certain abstract considerations 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 legislation 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 amendment of the proviso to s. 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 144 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. If the University have no power to prescribe an exclusive medium, the enactment of s. 38A which prescribes penalties for failing to carry out directions relating to the media of instruction will doubtless be not invalid.
The order of the High Court relating to the invalidity of the Statutes 207 and 209 of the University 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 the
