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
therefore be confirmed.
We do not express any opinion on the alleged
infringement of fundamental rights of the petitioner under Arts. 29(1), 30(1)
of the Constitution. We set aside the order of the High Court in so far as it
declares s. 4 cl. (27) proviso and s. 38A invalid. This will be, however,
subject to the interpretation placed by us upon the relevant provisions, and
the power of the State Legislature to impose Gujarati or Hindi or both as
exclusive medium or media for instructions in the affiliated and constituent
colleges.
The appellants will pay the costs of the
respondents in the two appeals. One hearing fee.
SUBBA RAO, J.-.With the greatest respect,, I
cannot agree.
The facts have been fully stated in the
judgment of my learned brother:, Shah, J., and I 145 need not restate them. Two
questions arise for consideration, namely, (1) whether the State Legislature
has the constitutional competence to make a law prescribing an exclusive medium
of instruction in the affiliated colleges, and (2) whether under the Gujarat
University Act, as amended by Act IV of 1961. the said University has the power
to prescribe an exclusive medium of instruction.
The first question maybe elaborated thus: Is
the State Legislature competent to make a law under entry 11 of List II of the
Seventh Schedule to the Constitution prescribing an exclusive medium of
instruction in the affiliated colleges of the University? To put it in other
words, can a State law enable a University to prohibit, expressly or 'by
necessary implication, any media of instruction other than those prescribed by it?
Learned counsel., appearing for the University of Gujarat and for the State of
Gujarat, contend that the State Legislature has such a power under entry 11 of
List II of the Seventh Schedule to the Constitution, whereas learned counsel
for the respondents, while conceding that a State Legislature has the power to
empower a university to prescribe a medium of instruction, broadly contend that
a State law which prohibits the use of a medium of instruction, such as
English, which is traditionally the exclusive current medium of instruction in
the universities of this country, and directs the use of a regional language as
the sole medium or as an additional medium of instruction, along with other
Indian languages, impinges directly on entry 66 of List I of the Seventh
Schedule to the Constitution, since, it is said, the fixation of standards and
co-ordination on all-India basis is rendered difficult, if not made impossible,
by such a State law.
Before I consider the impact of entry 66 of
List I on entry II of List II., it would be convenient to notice briefly the
relevant principles of construction. Learned counsel for the respondents
contend 146 that the principle of pith and substance has no relevance to a case
where one entry is made subject to another entry; if out of the scope of one
entry, the argument proceeds, a field of legislation covered by another entry
is carved out, there is no scope for overlapping and, therefore, there is no
occasion for invoking the principle of pith and substance in the matter of
interpreting the said entries; to meet such a situation, his further argument
is, the courts have evolved another principle of "direct impact",
i.e., if a State law has a "direct impact" on an entry in the Union
List, the said law falls outside the scope of the State entry. Let us see
whether there is any such independent doctrine of construction in decided cases
or in principle.
The judicial Committee, in Prafulla Kumar v.
Bank of Commerce, Khulna(1), had invoked the principle of "pith and
substance" to ascertain whether the Bengal Money-lenders Act (X of 1940)
was ultra vires the Provincial Legislature.
There, the conflict was between items 28 and
38 of List I of the Seventh Schedule to the Government of India Act, 1935,
namely, promissory notes and banking, and item 27 of List II thereof, namely,
moneylending. The judicial Committee held that the pith and substance of the
Act being money-lending, it came under item 27 of List II and was not rendered
invalid because it incidentally trenched upon matters reserved to the Federal
Legislature, namely, promissory notes and banking. At p.65 of the report the
following instructive passage appears:
"But the overlapping of subject-matter
is not avoided by substituting three lists for two or even by arranging for a
hierarchy of jurisdiction%.
Subjects must still overlap and where they do
the question must be asked what in pith and substance is the effect of the
enactment-of which complaint is made and in what list is its true nature and
character to be found." (1) A. I. R. 1947 P. C. 60, 65.
147 Then their Lordships proceeded to state :
"Thirdly, the extent of the invasion by
the Provinces into subjects enumerated in the Federal List has to be
considered. No doubt it is an important matter, not, as their Lordships think,
because the validity of an Act can be determined by discriminating between
degrees of invasion, but for the purpose of determining what is the pith and
substance of the impugned Act. Its provisions may advance so far into Federal
territory as to show that its true nature is not concerned with Provincial
matters; but the question is not, has it trespassed more or less, but is the
trespass, whatever it be, such as to show that the pith and substance of the
impugned Act is not money-lending out promissory notes or banking It is clear
from the said passage that the degree of invasion of a law made by virtue of an
entry in one List into the field of an entry in another List is not governed by
a separate doctrine but is only a circumstance relevant for ascertaining the
pith and substance of an impugned Act.
This Court, in The State of Bombay v. F. N.
Balsara (1), has accepted that principle. There, the constitutional validity of
the Bombay Prohibition Act (XXV of 1949) was in issue.
The question was whether that Act fell under
entry 31 of list II of the Seventh Schedule to the Government of India Act,
1935, namely, "intoxicating liquors, that is to say, the production,
manufacture, possession, transport, purchase and sale of intoxicating liquors",
or under entry 19 of List I, namely, import and export across customs frontier,
which is a dominion subject. This Court held that the pith and substance of the
Act fell under the former entry and not under the latter, though the Act
incidentally encroached upon the Dominion field of legislation. It was argued,
inter alia, that the Prohibition of purchase, use, transports and sale of
liquor, (1) [1951] S. C. R, 682.
148 would affect the import. The argument was
advanced as a part of the doctrine of pith and substance and was rejected on
the ground that the said encroachment did not affect the true nature and
character of the legislation. This Court again had to deal with the vires of
the provisions of the Madras Prohibition Act in A. S. Krishna v. The State of
Madras(1). There, the argument was that the said provisions were repugnant to
the provisions of the existing Indian laws with respect to the same matter, to
wit, Indian Evidence Act I of 1872 and Criminal Procedure Code Act No. V of
1898. In that context the argument based upon impact of the former legislation
on the latter was advanced. This Court rejecting the contention observed:
"That is to say, if a statute is found
in substance to relate to a topic within th e competence of the legislature, it
should be held to be intra vires, even though it might incidentally trench on
topics not within its legislative competence. The extent of the encroachment on
matters beyond its competence may be an element in determining whether the
legislation is colourable, that is, whether in the guise of making a law on a
matter within its competence, the legislature is, in truth, making a law on a
subject beyond its competence. But where that is not the position, then the
fact of encroachment does not affect the vires of the law even as regards the
area of encroachment." But it is said that the separate existence of the
doctrine of "direct impact was conceded in Union Colliery Company of
British Columbia, Ltd. v. Bryden(2) . There, the question was whether s.4 of
the British Columbia Coal Mines Regulation Act, 1890, which prohibited Chinamen
of full age from employment in underground coal workings, was in that respect
ultra vires of the provincial legislature inasmuch as the subject of
"naturalization and aliens" (1) [1957] S. C. R. 399, 406.
(2) [1899] A. C. 580, 587.
149 was within the exclusive authority of the
Dominion Parliament conferred under s.91, sub-s.25 of the British North America
Act, 1867. On a consideration of the material factors and on a construction of
the relevant provisions, the judicial Committee observed :
"But the leading feature of the
enactments consists in this-that they have, and can have, no application except
to Chinamen who are aliens or naturalized subjects, and that they establish no
rule or regulation except that these aliens or naturalized subjects shall not
work, or be allowed to work, in underground coal mines within-the Province of
British Columbia." After arriving at that finding, their Lordships
proceeded to say :
"Their Lordships see no reason to doubt
that, by virtue of s. 91, sub-s. 25, the legislature of the Dominion is
invested with exclusive authority in all matters which directly concern the
rights, privileges, and disabilities of the class of Chinamen who are resident
in the provinces of Canada. They are also of opinion that the whole pith and
substance of the enactments of s. 4 of the Coal Mines Regulation Act, in so far
as objected to by the appellant company consists in establishing a statutory
prohibition which affects aliens or naturalised subjects, and therefore trench
upon the exclusive authority of the Parliament of Canada." This passage
indicates that the judicial Committee found that', in pith and substance., the
impugned law affected the rights and privileges of Chinamen which subject was
within the exclusive authority of the Parliament of Canada. This judgment only
reiterates the principle of pith and substance; and it does not in any way
countenance a new principle ,of "'direct impact" outside the scope of
the said 150 doctrine. In Bank of Toronto v. Lambe (1) the Qyebec Act was
attacked on two grounds, first that the tax was not "taxation within the
Province", and secondly, that the tax was not a "direct tax".
The judicial Committee held that the Act was within the legislative competence
of the Province. It was observed therein :
"If (the judges) find that on the due
construction of the Act a legislative power falls within s. 92, it would be
quite wrong of them to deny its existence because by some possibility it may be
abused, or may limit the range which otherwise would be open to the Dominion
Parliament." The argument of anticipatory encroachment was rejected.
This case was considered and distinguished in
Attorney General for Alberta v. Attorney-General for Canada (2).
There, the Province of Alberta passed an Act
respecting ""the taxation of Banks", imposing on every
corporation or joint stock company, other than the Bank of Canada, incorporated
for the purpose of doing banking or savings bank business in the Province, an
annual tax, in addition to any tax payable under any other Act., of (a) 1/2 per
cent.
on the paid-up capital, and (b) 1 per cent.
on the reserve fund and undivided profits. The Board held that the proposed
taxation was not in any true sense taxation "'in order to the raising of a
revenue for Provincial purposes" so as to be within the exclusive
legislative competence of the Provincial Legislature under s. 92 (2) of the
British North America Act, but was merely part of a legislative plan to prevent
the operation within the Province of those banking institutions which had been
called into existence and given the necessary powers there to conduct their
business by the only proper authority' the Parliament of the Dominion, under s.
91 of the British North America Act. The Board in effect, therefore, held that
the Provincial Act, though (1) [1882] 12 A. C. 575, 587.
(2) [1939] A. C. 117, 130, 133, 151 couched
as a taxation measure, was a colourable attempt to prevent the functioning of
the banking institutions, the regulation whereof was the Dominion subject. The
pith and substance of the statute was not direct taxation or taxation within
the Province within the meaning of s. 92 of the British North America Act, but
was one that fell under the Dominion subject of "banking". The reason
for this conclusion is found at p. 133 and it is as follows :
"Their Lordships agree with the opinion
expressed by Kerwin, J. (concurred in by Crocket,J.) that there is no escape
from the conclusion that, instead of being in any true sense taxation in order
to the raising of a revenue for Provincial purposes, the Bill No.
1 is merely "part of a legislative plan
to prevent the operation within the Province of those banking institutions
which have been called into existence and given the necessary powers to conduct
their business by the only proper authority, the Parliament of Canada."
That is to say, the constitutional validity of the Bill was sustained on the
ground that it was a colourable piece of legislation in respect of a subject
which in substance was within the Dominion field. The judicial Committee in
coming to the conclusion laid down the rules of guidance for ascertaining the
true nature of a legislation. Their Lordships premised their discussion with
the following statement :
"........... it is well established that
if a given subject-matter falls within any class of subjects enumerated in s.
91, it cannot be treated as covered by any of those within s. 92." And to
ascertain whether a particular subject-matter falls in one class or other,
their Lordships laid down the following rules of guidance :
(1) "It is therefore necessary to
compare the two complete lists of categories with a 152 view to ascertaining
whether the legislation in question, fairly considered, falls prima facie
within s. 91 rather than within s. 92." (2) "The next step in a case
of difficulty will be to examine the effect of the legislation." (3)
"The object or purpose of the Act in question. " It will, therefore,
be seen that the judicial Committee did not lay down any new principle of
"direct impact" dehors the doctrine of pith and substance. The heavy
impact and crippling effect of an impugned legislation on a Dominion subject
was taken as an important indication of its colourable nature. The foregoing
discussion does not countenance the suggestion that apart from the doctrine of
pith and substance, the courts have recognized an independent principle of
"direct impact".
Nor can I agree with the argument of learned
counsel that the doctrine of pith and substance has no application in a case
where one entry in a list is expressly made subject to another entry in a
different list. In such a case it only means that out of the scope of the
former entry a field of legislation has been carved out and put in the latter
entry.
That in itself has no bearing on the
applicability or otherwise of the doctrine. The position is exactly the same as
in the matter of construing two entries in different lists.
Whether two entries are carved out of one
subject or deal with two different subjects, the principle of construction must
be the same : in either case the Court is called upon to ascertain under what
entry the impugned law falls. The doctrine of pith and substance only means
that if on an examination of a statute it is found that the legislation is in
substance one on a matter assigned to the Legislature, then it must be held to
be valid in its entirety, even though it may trench upon matters which are
beyond its 153 comprehension: see The State of Bombay v. F. N. Balsara (1) and
A. S. Krishna v. The State of Madrass (2). The true character of the
legislation is the criterion and its incidental encroachment on other items is
not material. If that be so, once we come to the conclusion that the impugned
legislation squarely falls within one entry, its incidental encroachment on
another entry whether carved out of the former entry or has an independent
existence al through, will not make it any the less one made within the limits
of the former entry.
To summarize: When a question arises under
what entry an impugned legislation falls, the court directs its mind to
ascertain the scope and effect of the legislation and its pith and substance.
Decided cases afford many criteria to ascertain its scope, namely, comparison
of conflicting entries, effect of the impugned legislation, its object and
purpose, its legislative history, its colourable nature and similar others all
or some of them would be useful guides to get at the core of the legislation.
But no authority has gone so far as to hold that even if the pith and substance
of an Act falls squarely within the ambit of a particular entry, it should be
struck down on the speculative and anticipatory ground that it may come into
conflict with a law made by a co-ordinate Legislature by virtue of another
entry. If the impact of a State law on a Central subject is so heavy and
devastating as to wipe out or appreciably abridge the Central field, then it
may be a ground for holding that the State law is a colourable exercise of power
and that in pith and substance it falls not under the State entry but under the
Union entry. The case-law, therefore, does not warrant the acceptance of a new
doctrine dehors that of pith and substance.
In this context it will be useful to notice
some of the well settled rules of interpretation laid down by the Federal Court
and accepted by this Court in the matter of construing the entries. In Calcutta
Gas (1) [1951] S. C. R. 682. (2) (1957) S. C. R. 399,406.
154 Company v. The State of West Bengal (1),
it is observed "The power to legislate is given to the appropriate
Legislatures by Art. 246 of the constitution. The entries in the three Lists
are only legislative heads or fields of legislation: they demarcate the area
over which the appropriate Legislatures can operate. It is also well settled
that widest amplitude should be given to the language of the entries. But some
of the entries in the different Lists or in the same List may overlap and
sometimes may also appear to be in direct conflict with each other. It is then
the duty of this Court to reconcile the entries and bring about harmony between
them....... It may, therefore, be taken as a well settled rule of construction
that every attempt should be made to harmonize the apparently conflicting
entries not only of different Lists but also of the same List and to reject
that construction which will rob one of the entries of its entire content and
make it nugatory." With this background let me look at the two entries,
namely, entry 11 of List II and entry 66 of List I. The said entries read:
Entry 11 of List II. Education including
universities, subject to the provisions of entries 63, 64, 65 and 66 of List I
and entry 25 of List III.
Entry 66 of List I. Go-ordination and determination
of Standards in institutions for higher education or research and scientific
and technological institutions.
We are not concerned with the question of
medium of instruction in regard to that part which has been specially carved
out and included in entries 63, 64 and 65 of List I.
The entire field of education, (1) [1962]
SUPP. 3 S. C. R. 1.
155 including universities, subject to the
exceptions mentioned in entry 11 of List II, is entrusted to the State
Legislature. There cannot be education except through a medium or media of
instruction. Education can be imparted only through a medium. To separate them
is to destroy the concept. It is inconceivable that any reasonable body of
constitution makers would entrust the subject of medium of instruction to
Parliament and education dehors medium to a State: it is like cutting away the
hand that feeds the mouth. That no such separation was made in the case of
elementary and secondary education is conceded. It cannot also be doubted that
medium of instruction is also included in entry 63 of List I relating to the
specified universities. If so much is conceded, what is the reason for
excluding it from the university education in entry 11 of List II ? There is
none. Conversely, the express terms of entry 66 of List I does not prima facie
take in the subject of medium of instruction. The phraseology is rather wide,
but none the less clear. Let me look at the two crucial expressions
"co-ordination" and "determination of standards". The
contention of learned counsel for the appellant that the composite term means
fixing of standards for the purpose of correlation and equating them if they
vary, appears to be plausible, but is rather too restrictive and, if accepted
makes the role of Parliament that of a disinterested spectator. It must be more
purposive and effective. The interpretation sought to be put upon it by learned
counsel for the respondents, namely, that under certain circumstances the
Parliament can make a law displacing the medium of instruction prescribed by
the State law by another of its choice, cuts so deeply into the State entry
that it cannot be countenanced unless the entry in List I is clear and
unambiguous. "To determine" is "to settle, or decide or
fix". The expression "coordination" is given the following meanings,
among others, in the dictionary: "to place in the same order, rank or
division to place in proper 156 position relatively to each other and to the
system of which they form parts; to act in combined order for the production of
a particular result". That entry enables Parliament to make a law for
fixing the standards in institutions for higher education for the purpose of
harmonious co-ordination of the said institutions for the achievement of the
desired result namely, the improvement of higher education. The expression
co-ordination and determination. of standards" is a composite term; and
the fixing up of standards for the purpose of co-ordination does not
necessarily involve a particular medium of instruction. To illustrate:
education cannot be imparted effectively without books, professors, students,
equipment, buildings, finance, proper medium of instruction, etc. All the said
matters admittedly are comprehended by the word "education", for they
are the necessary concomitants of education. It would be unreasonable to hold
that all the said matters fall under the heading "co-ordination and
determination of standards", for, if it was so held, the entry
"education'.' would be robbed of its entire content. In such a case the
principle of harmonious construction should be invoked and a demarcating line
drawn; the clue for drawing such a line is found in the word "
co-ordination". So understood, the State can make a law for imparting
education and for maintaining its standards; whereas Parliament can step in
only to improve the said standards for the purpose of coordination. The
standards of some universities may fall because of the deficiency in any of the
aforesaid things.
Parliament may make a law providing for
facilities in respect of any or all the aforesaid matters so that the backward
universities may pick up and come to the level of other advanced universities.
It may also make a law for raising the general standards of all the
universities. The law made by Parliament may determine the general standards in
respect of the said and similar matters and provide the necessary financial and
other help to enable the universities to 157 reach the level prescribed. It may
also be that the said law may provide for a machinery to enrich the language
adopted as a medium of instruction by a particular university so that it may
become a useful vehicle for higher education and for technological and
scientific studies. If the pith and substance of the law is
"'co-ordination and determination of standards" its incidental
encroachment on the medium of instruction for the purpose of enriching it may
probably be sustained. But in the name of co-ordination it cannot displace the
medium of instruction, for, in that event, the encroachment on the subject of
education is not incidental but direct. For the said entry does not permit the
making of any law which allows direct interference by an outside body with the
course of education in any university, but enables it generally to prescribe
standards and give adventitious aids for reaching the said standards. In short,
the role of a guardian angel is allotted to Parliament so that it can make a
law providing a machinery to watch, advise, give financial and other help, so
that the universities may perform their allotted role. 'The University
Commission Act was passed in the implementation of such a role. So understood,
there cannot be any possible dichotomy between the two entries.
The scheme of the Constitution also negatives
the idea of legislation by Parliament in respect of medium of instruction. When
the Constitution was passed, there were many fairly well developed languages in
different parts of our country and they were mentioned in the Eighth Schedule
to the Constitution. At that time, English was the medium of instruction at all
levels and was also the official language of the administration. It was
accepted on all hands that English should be replaced at all levels, but the
process should be phased. Article 343 of the Constitution declares that the
official language of the Union shall be Hindi in Devnagari script and it 158
permits the use of English for all official purposes for a specified period.
But in the case of education no such goslow process was indicated, presumably,
because it was left to the wisdom of the Legislatures of States and
educationists to work out the programme for smooth transition. But the
insistence on the replacement of English by Hindi for all official purposes,
the recognition of regional languages, the omission of English in the Eighth
Schedule, the direction under Art. 351 that Hindi should be enriched by a
process of assimilation from the languages specified in the Eighth Schedule and
from Hindustani, all indicate that the makers of the Constitution were
confident that the regional languages were rich or at any rate resilient enough
to be or to become convenient vehicles of instruction at all levels of
education. That is why no express reservation was made for replacing English by
regional languages by convenient stages. It may, therefore, be accepted that
the makers of the Constitution thought that the specified regional languages
would be suitable vehicles of instruction, though it may equally be conceded
that they require to be enriched to meet the demands of higher education. In
this context entry 66 of List I must be construed on the assumption that the
regional languages would be the media of instruction in all the universities,
and if so construed the law fixing the standards for coordination cannot
displace the medium of instruction.
Let me now look at it from a different angle.
It is contended that English is the established medium of instruction
throughout the country, that following the example of the Gujarat University
other universities might follow suit, that consequently there would be a steep
fall in the standards of higher education, and that if the argument of the
appellant was accepted, Parliament would be a helpless spectator witnessing the
debacle. In effect, on the appellant's construction, the major part of the
field of 159 co-ordination would be wiped out. This in effect was the argument
of learned counsel for the respondents though couched in different phraseology.
This is another way of saying that the pith and substance of such legislation
made by a State prohibiting the use of English falls not tinder the subject of
"education" but under the entry "coordination". This
argument though appears to be attractive, is without legal or factual basis. If
the pith and substance of the Impugned law is covered by the entry "education",
the question of effacing the Union entry does not arise at all. It is an
argument of policy rather than a legal construction. The simple answer is that
the Constituent-Assembly did not think fit to entrust the subject of medium of
instruction to Parliament, but relied upon the wisdom of the Legislatures to
rise to the occasion, and enact suitable legislation. Factually, except in
Gujarat, where the Legislature introduced Gujarati as the exclusive medium of
instruction by an accelerated process, all other States are adopting a go-slow
policy. Though that circumstance, in my view, has no relevance in construing
the relevant provisions of the Constitution there is no immediate danger of all
the other States abolishing English as an additional medium of instruction. I
would prefer to accept the natural meaning of the word "'education"
than to stretch the expression "'co-ordination" to meet a possible
emergency when all the States, following a policy adopted by a State, might set
their face against English. That apart, the picture drawn by learned counsel is
rather extravagant.
It presupposes that, but for the continuance
of English as one of the media of instruction, education is bound to fall in
standards and co-ordination may become impossible. But our Constitution-makers
did not think so, and they did not provide for the continuance of English in
the universities.
Further, the standards can be maintained,
perhaps with some trouble and expense' by imparting education through other
media of' instruction, provided the languages are suitably 160 enriched. The
State Legislatures, and more so the universities, can be relied upon to make
every reasonable attempt to maintain the standards. It cannot be assumed that
the State Legislatures would function against the best interests of university
education, while Parliament can safely be relied upon to act always in its
interest. All the legislative bodies under our Constitution are elected on
adult franchise and this Court rightly presumes that they act with wisdom and
in the interests of the people they represent. If the Legislature of a State
could in a particular instance act precipitately by replacing English by a
regional language, Parliament also in its wisdom, if it has power to do so.,
may cut the Gordian knot by replacing English by Hindi in all the universities.
It is after all a constitutional choice of institutions to implement a
particular purpose and it is, therefore, the duty of this Court to interpret
the provisions of the Constitution uninfluenced by ephemeral local conditions
and situations.
I would, therefore, hold that entry 11 of
List IL takes in the medium of instruction and that it is not comprehended by
the phraseology of entry 66 of List I of the Seventh Schedule to the
Constitution. It follows that the State Legislature can make a law empowering
the 'University to prescribe a regional language as the exclusive medium of
instruction.
The next question is whether under the
provisions of the Gujarat University Act, 1949, hereinafter called the Act, the
University has the power to prescribe a language as. the exclusive medium of.
instruction; or to state it differently, whether the University has power to
prohibit, expressly or by necessary implication, the use of any language other
than that prescribed as the medium of instruction.
At the outset it would be convenient to
notice briefly the scheme of the Act so that the relevant provisions may be
constructed in their propel setting. Under the Act, the Chancellor and the 161
Vice-Chancellor of the University, and the members of the Senate, the Syndicate
and the Academic Council of the University constitute a body corporate by the
name of "'The Gujarat University". It is a teaching and affiliating
University. It has, inter alia, powers to provide for instruction, teaching and
training in different branches of learning and courses of study; to hold
examinations and confer degrees; to control and co-ordinate the activities of
various institutions connected with the University; and to do all acts and
things incidental to the said powers. The said purposes are carried out through
three instrumentalities,, namely, the Senate, the legislative body, the
Syndicate, the executive, and the Academic Council, which is responsible for
the maintenance of standards in the examinations of the University. The
Chancellor is the head of the University. The Senate passes statutes; the
Syndicate, ordinances; and the Academic Council, the regulations-all providing
for the subjects entrusted to them respectively. The Chancellor and the State
Government have the power of inspection over the affairs of the University and
of giving necessary instructions. Briefly stated, the University is a corporate
body with a large degree of autonomy, forming an institution for the promotion
of education in the higher branches of learning. It has power to confer degrees
and other privileges on the successful alumni of the institutions under its
control.
With this background let me look at the
relevant provisions of the Act. Clause (1) of s. 4 empowers the University to
provide for instruction, teaching and training in such branches of learning and
courses of study as it may think fit and to make provisions for research and
dissemination of knowledge; cl. (7) thereof, to Jay down the courses of
instruction for various examinations; cl. (8), to guide the teaching in
colleges or recognized institutions; cl. (10), to hold examinations and confer
degrees, 162 titles, diplomas and other academic distinctions; cl. (14), to
inspect colleges and recognized institutions and to take measures to ensure
that proper standards of instructions, teaching or training are maintained in
them; cl. (15), to control and co-ordinate the activities of, and to give
financial aid to affiliated colleges and recognized institutions; and cl. (28),
to do all such acts and things whether incidental to the power,% aforesaid or
not as may be requisite in order to further the objects of the University and
generally to cultivate and promote arts, science and other branches of learning
and culture. Apart from the incidental powers expressly conferred by cl. (28),
it is well settled that a corporation can also exercise powers incidental to or
consequential upon those expressly conferred on it. The legal position has been
neatly brought out by Viscount Cave L. C. in Deuchar v. Light and Coke Company
(1), by placing two passages of earlier decisions in juxtaposition thus :
"Whenever a corporation is created by
Act of Parliament, with reference to the purposes of the Act, and solely with a
view to carrying these purposes into execution, I am of opinion not only that
the objects which the corporation may legitimately pursue must be, ascertained
from the Act itself, but that the powers which the corporation may lawfully use
in furtherance of these objects must either be expressly conferred or derived
by reasonable implication from its provisions." "'I must stop there.
To that statement I may add a sentence from the speech of Lord Selborne in the
case of Attorney-General v. Great Eastern Py. Co. (2) where he said this :
"I agree with Lord justice james that this doctrine ought to be
reasonably, and not unreasonably, understood and applied, and that whatever may
fairly be regarded as incidental to, or (1) [1925] A.C. 691, 695.
(2) [1880] 5 A.C. 473, 478.
163 consequential upon, those things which'
the Legislature has authorized, ought not (unless.
expressly prohibited) to be held, by judicial
construction, to be ultra vires." When an Act confers a power on a
corporation, it impliedly also grants tee power of doing all acts which are
essentially necessary for exercising the same.
Bearing the aforesaid principles in mind, I
must ask the question whether, on, a fair reading of the aforesaid Provisions,
it can be said that the University has the implied power to prescribe an
exclusive medium of instruction. If once I reach the conclusion, namely, that
such a power is necessary for carrying out the purposes expressly authorized by
the statute, I must hold that the said power is not beyond the competence of
the University.
The University has to provide for
instruction, teaching and training in different branches of learning and
courses of study, to lay down the courses of instructions for various
examinations and to guide the teaching in colleges or recognized institutions.
The power to prescribe a medium of instruction is implicit in the power to
provide for instruction and the power to guide the teaching. One can only
instruct through a medium. It is impossible to conceive of instruction without
a medium. Indeed, they are parts of the same process. A university cannot make
a provision for instruction or teaching without at the same time prescribing a
medium or media for teaching it. If it can fix two media, it can equally
prescribe a sole medium if it thinks that for the proper instruction a
particular language is the most suitable medium. A perusal or the earlier
Bombay statutes and similar statutes of other universities of this country
indicates that the said universities prescribed the English medium only in
exercise of similar powers conferred on them. If this fundamental power to
prescribe the medium is 164 denied to the universities, the substratum of their
autonomy and utility under the Act will largely be jeopardized or affected. To
illustrate, there may be 20 colleges affiliated to a university; if the
university cannot prescribe a sole medium of instruction for all the affiliated
colleges, each one of them may adopt a different language as its medium, with
the result that there will be chaos in the sphere of higher education. If such
a power does not exist, how is it possible for a university to hold
examinations in a particular medium? It will be forced to hold examinations in
all the different languages chosen by the affiliated colleges . Though the
statute confers a plenary power on the University to hold examinations and
confer degrees, it will not have the power, if the construction suggested by
learned counsel for the respondents be adopted, to hold examinations in the
language chosen by it.
But it is suggested that though it has such a
power, it must exercise it reasonably so as to satisfy the needs of the
different colleges affiliated to it. I do not see how, if the University has
the power to hold examinations in one language, the exercise of that power
could become unreasonable if affiliated colleges chose to ply their own course
in utter disregard of the opinion of the University.
Be that as it may, I have no hesitation in
holding that the University has the implied power to prescribe for the purposes
of higher education a number of media of instructions or even a sole medium of
instruction to the exclusion of others.
It is then said that cl. (27) confers an
express power on the University to prescribe a medium of instruction and,
therefore, whatever implied power it may have in its absence it can no longer
be exercised under the Act. As much of the argument turned upon the
construction of this clause, it would be convenient to read it:
Clause (27): (The University shall have the
power) to promote the development of the 165 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(i) of instruction and examination for such period as may from time to
time be prescribed.
by the Statutes until the en of May 1966 in
respect of such subjects and courses of study as may be so prescribed, x x x x
x It is said that this being the express power conferred upon the University in
regard to the prescribing of a medium of instruction, it can only exercise the
said power within the four corners of the said clause, and that under that
clause the University can only provide for Gujarati or Hindi or both of them in
addition to other medium or media of instructions. To put it in other words,
the argument is that the University has no power to provide for an exclusive
medium of instruction, but it can only prescribe the said languages as
additional media. This argument is sought to be reinforced by a comparison of
the indefinite article used in the substantive part of the clause and the
definite article used in the proviso thereto. While the substantive part of the
clause says that the University has the power to promote the development of the
study of Gujarati and Hindi in Devnagari script and the use of Gujarati or
Hindi in Devnagari script or both as a medium of instruction and examination,
the proviso says that English may continue to be the medium of instruction and
examination. The use of the indefinite article " all in the substantive
part of the clause in contradistinction to the definite article
"'the" used in the proviso, the argument proceeds, is 166 decisive of
the question that the University has no power to prescribe Gujarati or Hindi as
the medium i. e., the exclusive medium, of instruction in the University. I do
not find any merits in this argument. Clause (27) does not exhaust the power of
the University to provide for a medium:
that power is implicit in cl. (1) of s. 4 and
other clauses thereof already mentioned. Clause (27) confers an additional
power on the University to promote the development of the study of Gujarati or
Hindi in Devnagari script and the use of them as medium of instruction and
examination. This is a composite power. It enables the University not only to
develop the study of the said languages but also to use them as media of
instruction.
There is an essential distinction between the
expression "providing" and "promoting". To promote the
development of the said languages means to further their growth. It also
implies some action anterior to the existence or occurrence of the thing
promoted. The power of promotion confers upon the University the power to prescribe
adventitious saids for the purpose of promotion. To illustrate, Gujarati or
Hindi is not the medium of instruction in the University; the said languages
have not got sufficient vocabulary to express scientific and technological
concepts; there are no professors who are trained to teach the said subjects in
those languages there are no books in the said languages of a standard
appropriate to the needs of higher education.
The University can certainly help,
financially or otherwise, to enrich the said languages so as to make them
suitable vehicles for conveying scientific and technological ideas.
It may provide for intensive training of the
professors and lecturers in those languages to enable them to have sufficient
knowledge for communicating their ideas in those languages. It may give
concessions in fees etc., for students who take those languages as their media
of instruction instead of English or any other language. It may start a pilot
college where the medium is only any of those two languages. It 167 may in
extreme cases prohibit the use of any medium other than the said two languages.
There are many other ways of subsidizing and helping the promotion of the said
languages.
That apart, cl. (27) does not deal only with
'instruction, but also with examination. Should it be held that the power of
the University to prescribe a medium of instruction is derived only from cl.
(27) it should also be held that the power to prescribe a medium of instruction
for examination is also derived there from. If so, it would lead to the
anomalous position of the University not being in a position to hold
examinations in any language other than the said two languages, while in the
case of instruction, the affiliated colleges, if the argument of learned
counsel for the respondents be correct., will be able to instruct in media
other than the said two languages: the University will be absolutely powerless
to examine the students of a college through the medium chosen by it. It is,
therefore, obvious that cl. (27) does not in any way replace or even curtail
the undoubted power of the University to prescribe a medium of instruction of
its choice, but only confers an additional power and a correlative duty to
promote these two languages.
If so understood, the proviso also squarely
fits in the scheme. What the proviso says is that English may continue to be
the medium of instruction and examination in such subjects and for such period
until the end of May 1966. It is enacted as a proviso to cl. (27), as, but for
that proviso, English may continue to be a medium of instruction, but it cannot
be the medium or the sole medium of instruction, for there is a duty cast on
the University to introduce one or other of the aforesaid two languages as
medium of instruction. The proviso enables the University to postpone the
introduction of the aforesaid languages as media of instruction for a
prescribed period. In this context, the argument based upon the use of the
indefinite article in the substantive part of the clause and of the definite article
in the proviso may be 168 considered. The use of the indefinite article, it is
said, shows that the power of the University is only to prescribe an additional
medium, for otherwise the Legislature would have used the words "the
medium" as it has done in the proviso. Grammatically the definite article
"the" could not have been used in the substantive part : the definite
article is used only to mark the object as before mentioned or already known or
contextually particularized. That is why in the proviso the definite article is
used in the context of the English language which is already in the field as
the exclusive medium of instruction. But in the substantive part of cl. (27)
the Legislature was providing for an additional power to promote one or other
of the two languages mentioned therein or both of them. In that context when
different languages, which can alternatively be prescribed, are mentioned, the
appropriate article can only be the indefinite article. If the argument of
learned counsel for the respondents be accepted, it may lead to a more serious
anomaly, namely, that after the prescribed period in the proviso the University
becomes powerless to introduce any language other than Gujarati or Hindi as
medium of instruction and examination. This difficulty is sought to be met by
the contention that the power to continue English as a medium of instruction
after the period prescribed in the proviso, is necessarily implied in the
proviso. The doctrine of necessary implication as applied to the law of
statutory construction means an implication that is absolutely necessary and
unavoidable It is not implication by conjecture. I would be attributing to the
Legislature an ineptitude in drafting if I should hold that such an important
power of prescribing a medium of instruction is left to be implied by
construction. It would also be against the natural meaning of the phraseology
used in the proviso. The Legislature in enacting cl. (27) of s. 4 must be
deemed to have had knowledge that the University has prescribed English as the
medium in exercise of the powers vested in it 169 and with that knowledge the
Legislature proceeded to enact in the proviso that the University could
continue English as the sole medium for a prescribed period. The proviso, therefore,
was enacted on the assumption of an existing power: it was not conferring the
power for the first time.
Should it be held that the proviso conferred
the power on the University to prescribe English as a medium for the first
time, it should also be held that the University could not prescribe any medium
other than. English, Hindi or Gujarati after the period prescribed in the
proviso. But, on the other hand, if cl. (27) is construed in the manner I have
done, i.e., it is only a power conferred on the University in addition to its
existing power to prescribe a medium or media of instruction, the relevant
provisions fall into a piece. The University will then have powers, to
prescribe any medium or media, to promote Hindi and Gujarati, to introduce the
use of Hindi and Gujarati, to continue English as the sole medium of
instruction for the prescribed period and after the said period has run out to
prescribe English or any other language as the medium of instruction in
addition to Hindi or Gujarati. If the artificial construction suggested by the
respondents be accepted, the Legislature should be held to have deprived the
University not only of its power to discontinue English as the medium of
instruction but also to have prevented it from introducing any medium other
than English, Hindi or Gujarati. For the aforesaid reasons I would hold that
cl.(27) of s. 4 of the Act gives only an additional power and it does not
derogate from the implied power derived from other provisions of the Act.
Some argument is advanced on the basis of s.
18(1)(XIV) of the Act, which reads:
18. (1) Subject to such conditions as may be
prescribed by or under the provisions of this Act, the Senate shall exercise
the following 170 powers and perform the following duties, namely :x x x x
(XIV) to make provision relating to the use of Gujarati or Hindi in Devnagari
script or both as a medium of instruction and examination.
Learned counsel for the appellant contends
that while cl.
(27) of s. 4 confers a power on the
University, cl. (XIV) of s. 18(1) confers both a power and a duty on the Senate
to provide for the use of Gujarati or Hindi in Devnagari script as medium of
instruction and examination. Learned counsel for the respondents again
emphasize upon the use of the indefinite article in the said clause. I cannot
agree with either of the two contentions. When a power is conferred on the
University to promote the said two languages as medium of instruction,
presumably for public good, there is a correlative duty on the University to exercise
that power The fact that under s. 4 only powers are conferred, whereas under s.
18 both powers and duties are mentioned, does not make much difference in a
case where a power is conferred for public good. The statute uses three
expressions, namely, "provide", " promote", and "'make
a provision".
Under the statute the powers of the
University can only be exercised through the instrumentalities of the
University in the manner prescribed. In s. 18 the words used are neither
"'provide" nor "'promote" but "'to make
provision" indicating thereby that specific provisions have to be made
presumably through statutes. As the University has got power to provide for the
exclusive medium and also to promote the use of the said two languages as media
of instruction, the Senate is authorized to make statutes providing for the
former in exercise of its power under s. 18 (1) (i) and for the latter under s.
18 (1) (xiv). As to the. promotion of the development of the study of Gujarati
and 171 Hindi in Devnagri script, the Senate, the Syndicate and the Academic
Council may make the requisite laws in exercise of the appropriate powers
confer-red on them. The use of the indefinite article "a" in cl.
(xiv) of s. 18 (1) is not of much relevance, for, as I have already pointed
out, it is the appropriate article in the context.
Another contention accepted by the High
Court, namely, that s. 4 (1) and other clauses of the section apply only to
residential colleges, was faintly advanced by learned counsel for the
respondents. There is absolutely no force in it, as the phraseology of the said
clauses is wide and comprehensive and does not admit of any such limitation.
The argument that this construction will
enable the University to abolish English altogether as a medium of instructions
it is done in the present case, has no relevance, for it can certainly do so,
if it has power in that regard. The Constitution depended upon the State
Legislatures and the universities for imparting education at the university
level. The Legislature in its turn, rightly in my view, conferred the necessary
powers on the university, in the interest of higher education. No one is better
qualified than the representatives of the intelligentsia of the State who man
the various instrumentalities of the University to decide on the medium of
instruction to be introduced in the colleges affiliated to the University. It
may be that a particular university may have accelerated the pace of the
introduction of a regional language as the medium of instruction at the
university level, but other universities are following a more cautious policy.
It is for the university to decide its own course. If the statute has conferred
the power, as I have said it has, these considerations are of no avail.
it is not disputed that if the University has
the power to prescribe an exclusive medium of instruction 172 under a statute,
s. 38A of the Act which is a consequential provision would be valid.
For the aforesaid reasons I hold that the
University was well within its rights in prescribing, by statutes, the said two
languages as media of instruction to replace English by stages.
In the result the order of the High Court is
set aside and the appeals are allowed with costs of the appellants here and in
the High Court.
By COURT: In accordance with the view of the
majority, both the appeals stand dismissed in the manner indicated in the
majority judgment, with costs. There will be one set of hearing fee.
Appeals dismissed.
Back
