This article is written by Subhangee Biswas. The article discusses the judgement of Gujarat University vs. Krishna Ranganath Mudholkar in the background of the entries related to education and the application of the principle of “harmonious construction” under the Constitution of India. The article proceeds to cover the facts of the case along with mentioning the contentions presented by both parties. Highlighting and explaining the legal concepts involved with the legal precedents, the article concludes with the judgement and an overall analysis of the case.

Introduction

The case of The Gujarat University, Ahmedabad vs. Krishna Ranganath Mudholkar and Ors. (1963) revolves around the question of whether a university or an educational institution can impose a particular language as a medium to impart education and conduct examinations. The Gujarat University, in this case, wanted to impose Gujarati and Hindi as the medium of instruction for imparting education as well as for the conduct of examinations. When this issue came up before the Supreme Court, it harmoniously construed the provisions of the Constitution of India, thereby stating that, in cases of conflict between the power of Parliament under the Union List and the power granted to the State under the State List regarding education, the former takes precedence over the latter and that the power of the State will always be restricted and not absolute. Let us deal with the case in detail and look into the provisions involved. 

Details of the case

• Case name: The Gujarat University, Ahmedabad vs. Krishna Ranganath Mudholkar and others
• Case number: Civil appeal numbers 234 and 262 of 1962
• Equivalent citations: AIR 1963 SC 703; (1963) GLR 450 (SC); 1962 INSC 263; [1963] Supp 1 SCR 112
• Laws and statutes involved:

1. Article 254(1)
2. Seventh Schedule, List I, Entry 66
3. Seventh Schedule, List II, Entry 11
4. The Gujarat University Act, 1949.
5. Statutes 207, 208 and 209 formulated by the Senate of the university, as amended in 1961.

• Court: The Supreme Court of India.
• Bench: Chief Justice Bhuvneshwar Sinha, Justice J. C. Shah, Justice K. Subbarao, Justice K. N. Wanchoo, Justice N. Rajagopala Ayyangar, and Justice Syed Jaffer Imam.
• Judgement date: 21st September 1962
• Final decision: The majority bench, in a ratio of 5:1 rejected the appeals and reversed the ruling of the Gujarat High Court. The judgement was made in favour of the respondents, ordering that the university can rightfully mandate the use of two languages as mediums of education, but such power is restricted by the related provisions of the Act.

Facts of the case

Background

The son of the appellant, Shrikant, cleared his Secondary School Certificate Examination, conducted by the State of Bombay in March 1960, through the medium of Marathi, his mother tongue. Then, Shrikant was admitted to the arts class of St. Xavier’s College, which was affiliated with Gujarat University. In the section where he took admission, the medium of instruction was English language. 

Shrikant completed his First arts course in March 1961. Further, he applied for admission to the classes preparing for the Intermediate Arts examination at the same university through English medium.

The principal informed him that, as per the Gujarat University Act, 1949 (hereinafter mentioned as “the Act”) and the Statutes 207, 208 and 209 formulated by the Senate of the university as amended in 1961, without the prior consent of the university, he could not be allowed to attend the classes that had English as the medium of instruction.

The appellant, who is the father of Shrikant, then approached the Vice-Chancellor of the university, asking for permission for Shrikant to attend the said classes. The Registrar of the university, though refusing to grant such permission, allowed Shrikant to keep English as a medium of examination but not as a medium of instruction.

On 22nd June 1961, a circular was issued by the Registrar of the university addressing the principals of the affiliated colleges. It was stated in the circular that the Vice-Chancellor, exercising his powers under Section 11(4)(a) of the Gujarat University Act, 1949, issued the following directions:

1. Only such students who have completed their secondary education in English medium and continued their studies in the First Year (Pre-university) Arts Class in 1960-1961 in English medium would be permitted to continue using English as a medium of examination in the Intermediate Arts Class for the year 1961-1962,
2. The colleges were directed to give instructions to the above-mentioned students in English medium for only one year, i.e., 1961-1962.
3. The principals need to make sure that only the mentioned students benefit from the arrangement of allowing English as a medium of examination. 

Shrikant did not qualify to be allocated to this section of students since he had appeared at the Secondary School Certificate Examination in Marathi and not English. Despite this fact, if the principal still had given permission to Shrikant, then the college would have attracted the penalties given in Section 38A of the Act of 1949.

Petition before the Gujarat High Court

The appellant then filed a writ petition on behalf of himself and his son, who was then minor, in the Gujarat High Court for issuing a writ of mandamus or any other suitable writ, direction or order for the following-

1. Directing the Gujarat University to treat Section 4(27) (Power of the university to make special provision for spreading university education among educationally backward classes and communities), Section 18(1) (Power of the court to consider and decide upon matters of general policy regarding the progress and development of the university), 18(14) Section 18(13) of the amended Act (Power of the Senate to frame statutes to impose Gujarati or Hindi or both as medium or media of instruction), and Section 38A (Withdrawal of recognition of a university; its condition and procedure) of the Gujarat University Act, 1949 and Statues 207, 208, and 209 as void and inoperative and to refrain from acting upon such provisions or enforcing them;
2. To direct the Vice-Chancellor to treat the letters or circulars issued by him regarding the medium of instruction as illegal and to refrain from acting on those or enforcing the same;
3. Directing the university to refrain from opposing or prohibiting the admission of the son of the appellant, that is, Shrikant, to the “English medium Arts class”; and
4. To direct the principal of the college to accept the admission of Shrikant to the Intermediate Arts class in English medium on the grounds that Sections 4(27), 18(1), 18(14), 38A of the Act of 1949 and the Statutes 207, 208 and 209, as well as the letters and circulars issued by the Vice-Chancellor were all void and invalid.

Verdict of Gujarat High Court

The High Court of Gujarat issued the writs as prayed for by the father of Shrikant (respondents before the Supreme Court) through an order dated 24th January 1962. The High Court held the following-

1. Statutes 207 and 209, as much as they attempt to enforce Gujarati and/or Hindi in Devanagari script as a medium of instruction and as a medium for conducting education in institutions excluding the ones that are maintained by the present university, were held to be unauthorised and, thus, were declared to be null and void. This was held keeping in view that neither Section 4(27) of the Act of 1949 nor any other provision empowers the university to prescribe Gujarati or Hindi as a medium of instruction and examination in such institutions, nor do the provisions prohibit the usage of English for the same purpose;
2. The university has the power to include Gujarati or Hindi as one of the mediums but it cannot be made the sole medium, excluding other languages;
3. The proviso to Section 4(27) of the Act of 1949 (as amended by 1961) infringes Entry 66 of List I of the Seventh Schedule to the Constitution of India and, thus, is beyond the legislative authority of the State. Therefore, Statutes 207 and 209 are null and void; and
4. If, on a true construction of Section 4(27) and other provisions of the Act of 1949, it is seen that the university possesses the authority to prescribe a specific language or languages as a medium for its affiliated colleges and has the power to prohibit the usage of English for the same purpose in the colleges affiliated by it, then the provisions that provide the authority to impose an exclusive language and the statutes and circulars corroborating the same would be void and in violation of Articles 29(1) and 30(1) of the Constitution of India.

Dissatisfied with the decision of the High Court, the State of Gujarat and the Gujarat University filed separate appeals to the Supreme Court, stating Section 4 of the Act of 1949 did empower the university to impose Gujarati and Hindi as a medium of instruction and examination and that all the related provisions are valid. For these appeals, they had obtained the certificate of fitness as granted by the High Court.

Issues raised in the case

The two issues raised before the Supreme Court in this case are as follows-

1. Whether the university can impose Gujarati, Hindi or both as an exclusive language for conducting education and examinations in its affiliated colleges?
2. Whether the statute providing such power to the university would result in the infringement of Entry 66 of List I of the Seventh Schedule to the Constitution?

Arguments of the parties

Petitioners 

The counsel on behalf of the university has contended the following-

1. According to Clause (10)(a) of Section 4, the university was empowered to sanction courses of study as per the statutes, ordinances and regulations. 
2. Section 4(27) empowers the university, and Section 18(1)(14) provides power and duty to the Senate to make provisions for allotting Gujarati, Hindi or both as a medium to carry out instruction and examination.
3. The counsel for the university had presented a letter dated 7th August 1949, by the Government of India to various universities and provincial governments. Through this letter, various recommendations were made. One of them is the replacement of the English language as a medium of instruction at the university stage with a state or provincial language, which was also requested.
4. The power given under Entry 66 of List I under the Seventh Schedule is the power to “coordinate’ and “determine standards”. The words coordinate and determine have been interpreted to mean “evaluate” and “fix” respectively. 
5. It was also contended that the state legislature, under Entry 11 of List II, possessed the power to legislate laws prescribing an exclusive medium of instruction in the colleges affiliated with the university.

Respondent

The respondent had contended the following arguments:

1. The counsel for the respondent accepted that the state legislature had the authority to empower a university to stipulate a language as a medium of instruction.
2. They contended that state law, which does not allow the use of English as a medium of instruction and directs using a regional language as the sole or additional medium along with other Indian languages, infringes upon Entry 66 of List I. Such a state law would make the fixation of standards and coordination on a national basis difficult or even impossible.
3. It was also contended that the doctrine of pith and substance was irrelevant when one entry was dependent on another entry. In such a case, when the matter is beyond the scope of one entry, it comes under the domain of the other one; hence, no overlapping takes place. This renders the invoking of the doctrine of pith and substance unnecessary for the interpretation of the entries. 
4. The respondent had added that, in the above-mentioned case, a principal named “direct impact” comes into play, according to which, if a state law has a “direct impact” on an entry mentioned in the Union List, then that state law is held to be beyond the scope of the State List.
5. As for the interpretation of Entry 66 of List I, it was contended that the Parliament, under certain circumstances, has the power to make legislation that replaces the medium of instruction prescribed by the State law with their chosen medium.

Laws and concepts involved in Gujarat University, Ahmedabad vs. Krishna Ranganath Mudholkar and Ors. (1963)

Article 254(1) of the Constitution

This article states that if there is a law made by the state legislature and it is in contradiction to either-

1. A provision or law made by the Parliament, which is within the legislative competence of the Parliament, or, 
2. Any provision of an existing law regarding any matter mentioned in the Concurrent List,

Then, the law made by the Parliament, irrespective of whether it came into force before or after the law made by the state legislature, will prevail over the law made by the state legislature. Moreover, the law made by the state legislature to the extent of the contradiction will be deemed to be void.

The three Lists of the Seventh Schedule

The Seventh Schedule of the Constitution of India allocates separate powers and functions between the Union and the state legislatures. It contains three lists, namely,

1. List I, also known as the Union List- The matters enumerated under this list come under the exclusive power of the Union Government, i.e., the Parliament. The Parliament has the sole and exclusive authority to make laws regarding the items mentioned thereunder.
2. List II, also known as the State List- As the name suggests and is similar to the concept of the Union List, the state legislatures hold the exclusive power to make laws regarding the matters enumerated under this list.
3. List III, also known as the Concurrent List- This list enumerates the matters that are under the joint authority of the Union as well as the States. This is a shared domain and both the Union and the state legislatures can legislate on these matters.

Entry 63 to 66 of List I

Since Entries 63 to 66 are concerned with the present case, it is necessary to mention these entries before going into the verdict of the Supreme Court. Entries 63 to 66 essentially list out certain universities and institutions which are given national importance and, hence, come under the domain of the Parliament for enactment of any legislation related to them.

Entry 63 of List I mentions certain institutions that are of national importance; it states that “The institutions known at the commencement of this Constitution as the Benares Hindu university, the Aligarh Muslim university and the Delhi university; the university established in pursuance of Article 371E; any other institution declared by Parliament by law to be an institution of national importance.”

Entry 64 also adds to the list of institutions of national importance, it states that “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.”

Entries 65 and 66 mention specific matters in the sphere of education which come under the exclusive power of the Parliament to make laws.

Entry 65 empowers the Parliament to legislate on matters regarding-

“Union agencies and institutions for- 

(a) professional, vocational or technical training, including the training of police officers; or 

(b) the promotion of special studies or research; or 

(c) scientific or technical assistance in the investigation or detection of crime.”

Entry 66 empowers the Parliament to make laws regarding the “coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”

Entry 11 of List II

Entry 11 mentions that the state legislature has the power to enact laws with regard to “Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III”.

The provision gives power to the state legislature to enact laws with regard to education but it also mentions exceptions, thus, giving priority to the Parliament in certain matters. However, this Entry has now been omitted by the Constitution (Forty-second Amendment) Act, 1976.

Entry 25 of List III

Entry 25 states that the power to enact laws regarding “Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour” lies with both the Union Parliament and state legislatures.

Similar to Entry 11 of List II, there are certain matters in which the Parliament has been given priority over the state legislatures. Apart from that, regarding subjects related to education, vocational and technical training, the union and the state legislature have a shared power to legislate.

Statutes 207, 208 and 209 formulated by the Senate of the university as amended in 1961

The Gujarat University framed certain regulations to deal with the medium of instruction in 1954. They were Statutes 207, 208 and 209.

Statute 207

Statute 207 provided the following-

1. The medium of instruction and examination shall be Gujarati language;
2. Despite Gujarati being the medium, English language shall continue to be a medium for a period of a maximum of 10 years from the date of enforcement of Section 3 of the Gujarat Universities Act, 1949, except as otherwise provided by the statutes from time to time;
3. Despite the inclusion of the Gujarati language as a medium, non-Gujarati students and teachers will have the option to use Hindi language as the medium. For this, the syndicate will enforce suitable ordinances for its regulation whenever necessary,
4. Irrespective of whatever has been mentioned in the above three points, the medium of instruction and examination for the modern Indian languages and English will be the respective languages. 

Statute 208

Statute 208 provided the following-

1. Some courses were named where the medium of instruction and examination shall no longer be English and shall be according to Statute 207(1). For two different lists of courses, two different application dates were provided. 

For the following courses, the above-mentioned arrangement was to be applicable from June 1955:

1. First Year Arts,
2. First Year Science, and
3. First Year Commerce.

For these below-mentioned courses, the arrangement was to be applicable from June 1956:

1. Inter Arts’ Inter Science,
2. Inter Commerce, and
3. First Year Science (Agriculture).
4. If any student or teacher felt that they could not use Gujarati or Hindi appropriately, then they would be permitted to use English as a medium until November 1960.

Statute 209

Statute 209 states the permitted use of English for Bachelor of Arts, Bachelor of Science, and other such examinations.

Amendment of 1961

Thereafter, with the 1961 Amendment of the Gujarat University Act, 1949, Statutes 207 and 209 were amended by the Senate of the university. Statute 207, as amended, provided the following-

1. Gujarati shall be the medium of instruction and examination. Hindi as an alternative medium will be permitted in the below-named faculties-
   1. Faculty of Medicine, 
   2. Faculty of Technology and Engineering, 
   3. Faculty of Law, and
   4. All faculties for post-graduate studies.
2. English will continue to be the medium of instruction and examination, but the period,  subjects and courses of studies in respect of which such allowance will be permitted will be prescribed by the Statutes under Section 4(27) of the Gujarat University Act, 1949.
3. Students and teachers, whose mother tongue is not Gujarati, will be given the option to use Hindi as a medium for examination and instruction.
4. The affiliated colleges, recognised institutions and university departments will have the option to use Hindi as a medium for one or more subjects. This will be applicable to those students whose mother tongue is not Gujarati.
5. Irrespective of what has been mentioned above, for modern Indian languages and English, the medium of instruction and examination will be the respective languages.

Statute 209, after amendment, stated that the medium of instruction and examination would no longer be English but would be as per Statute 207, effective from the years mentioned therein with their respective examinations.

The doctrine of harmonious construction

The doctrine of “harmonious construction” is a method of interpreting a statute. It is based on a cardinal principle that every statute has been formulated with a specific purpose and intention and must be read as a whole. In simple terms, this doctrine rules that, when there is a conflict between two different statutes or two provisions under the same statute, the courts must try to interpret them in such a manner that they are harmonised, they remain in force together and any form of inconsistency is avoided. 

To know more about the doctrine of harmonious construction, click here.

The doctrine of pith and substance

The doctrine of “pith and substance” is a legal doctrine used in constitutional interpretation. It is used in the federal system of government to determine under whose legislative competence the enacted law falls. The phrase “pith and substance” signifies “true nature and substance”. 

The Union and the state legislatures have supreme power to legislate on their respective subjects, separated into their respective lists under the Seventh Schedule of the Constitution. If either of them tries to infringe upon the subject of the other, then the doctrine of pith and substance is applied to determine the true object of the legislation. If the legislation is fundamentally concerned with the subject that is within the power of the legislature that enacted it, then it is held to be intra vires (within the power to legislate), even though it happens to infringe on matters beyond its powers.

To know more about this doctrine, click here.

The doctrine of colourable legislation

The doctrine of colourable legislation means that a legislature has enacted a law under the disguise of having the power to do so, though it does not possess the legislative competence to enact laws regarding the subject. The Constitution of India has demarcated subjects for legislation by the union and the states. If a legislature transgresses such demarcation and makes laws outside its assigned authority, this doctrine is used by the judiciary to identify such acts, review the law and declare them void if found to be unconstitutional.

The doctrine is derived from the Latin maxim “quando aliquid prohibetur ex directo, prohibetur et per obliquum”, which means that “things that cannot be done directly should not be done indirectly either”. It helps keep the legislative authority of the Union and the state legislatures in check. This doctrine is also known as “Fraud on the Constitution,” as the legislatures act beyond their powers entrusted by the Constitution.

To know in detail about this doctrine, click here.

The doctrine of direct impact

The doctrine of direct impact, also known as direct effect, is a European law-based doctrine that allows the people to invoke a provision of any European statute before a national or European court.

The Court of Justice of the European Union formulated this doctrine for the first time in the case of NV Algemene Transport-Expedite Onderneming Van Gend en Loos vs. Nederlandse Administratie der Belastingen (1963). In this case, the European Court also laid down the requirements necessary to establish direct impact. The requirements are:

1. The provision which is to be invoked must be clear;
2. The provision must confer some negative obligation;
3. It must be unconditional; and
4. It must not be dependent on any other provision.

Upon the fulfilment of the above-mentioned conditions, the rights or rights provided under the provision can be enforced before the courts.

There are two aspects to the direct impact doctrine:

1. Vertical direct effect- In this case, a person can invoke a European law in relation to the State. If some provision of European law is vertically and directly effective, then it is relied upon while bringing an action against the state or public bodies. Such provisions concern the relationship between European law and national law.
2. Horizontal direct effect- In this case, a person can invoke European law in relation to another person. If some provision of European law is horizontally and directly effective, then a person can rely upon to bring an action against another person. Such provisions concern the relationship between individuals.

Precedents involved in the case 

1. Hingir-Rampur Coal Co. Ltd. & Ors. vs. State of Orissa & Ors. (1961)– In this case, the constitutional validity of the Orissa Mining Areas Development Fund Act, 1952 was questioned. The Court analysed the phrase “subject to” used in the entries of List II while subjecting such entry to some other entry of List I. It held that the state legislature is deprived of legislative power to the extent of restriction implied by the phrase “subject to” in a List II entry.

This case was referred to state that, in the present case, the power of the State to make laws regarding education is restricted and is only up to the extent of powers possessed by the Union. Applying this, it was inferred that, if a subject of legislation is within the larger scope of “education including universities” and it is also covered by Entries 63 to 66, the Union will be deemed to have the power to legislate on that subject.

2. Prafulla Kumar Mukherjee vs. Bank of Commerce, Khulna (1947)– Justice Subba Rao, in his dissenting opinion, had mentioned this case while discussing the doctrine of “pith and substance”. In this case, the conflict was between Entries 28 (promissory notes) and 38 (banking) of List I of the Seventh Schedule to the Government of India Act, 1935 and Entry 27 of List II (money lending). The doctrine of pith and substance was invoked to determine, if the Bengal Money-Lenders Act, 1940 was ultra vires (beyond the powers tolegislate) for the State legislature. In this case, it was held by the Judicial Committee that the pith and substance of the Act, that is, its true nature, was money lending, which came under Entry 27 of List II. Hence, the Act was held to be valid because the Act infringing upon matters under the exclusive power of the Union, i.e., promissory note and banking under Entries 28 and 38 of List I, was coincidental.

The Court had also highlighted the need to consider the extent of infringement by the states on the subjects mentioned in the Union List to determine the pith and substance of the concerned statute. If the extent of infringement is far into the Union domain, it might suggest that the true nature is not concerned with State-related matters.

3. The State of Bombay vs. F. N. Balsara (1951)– In this case, the issue was regarding the constitutional validity of the Bombay Prohibition Act, 1949. The question was whether this Act fell within Entry 31 of List II (intoxicating liquors- production, manufacture, possession, transport, purchase and sale) of the Seventh Schedule to the Government of India Act, 1935 or under Entry 19 of List I (import and export across customs frontier). An argument was advanced to validate the involvement of the doctrine of pith and substance, which stated that, if the purchase, use, transport and sale of liquor were prohibited, the import of the same would be affected. This contention was rejected by the Court on the ground that the argued infringement did not affect the “true nature and character” of the legislation. The Court held that the pith and substance of the Act fell within Entry 31 of List II though there was coincidental infringement into the scope of legislation of the Union.
4. A. S. Krishna vs. The State of Madras (1957)– In this case, the issue was regarding the validity of the Madras Prohibition Act (now named the Tamil Nadu Prohibition Act, 1937). It was contended that the provisions of the Act contradicted the existing Indian laws, namely, the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1898, regarding the same matter. The Court reiterated that, if a statute is related to a subject matter which is within the legislative competence of either the Union or the State, then it would be held to be intra vires that legislature, even though it might encroach upon the matters beyond the legislative competence. The extent of encroachment helps to determine whether the legislation is colourable. Otherwise, the encroachment does not affect the law.
5. Union Colliery Company of British Columbia, Limited, and others vs. John Bryden (1899)– In this case, the issue was whether Section 4 of the British Columbia Coal Mines Regulation Act, 1890, was ultra vires of the State legislature. Section 4 of the said Act prohibited the employment of Chinamen of full age in underground coal workings. The subject matter of “naturalisation and aliens” was under the exclusive authority of the Union Parliament as per Section 91(25) of the British North America Act, 1867.

It was observed by the Judicial Committee of the Privy Council that the Act only applied to Chinamen who were considered to be alien or naturalised subjects. The Act had no effect except prohibiting these Chinamen from working or allowing them to work in underground coal mines. This was very much within the power of the Province of British Columbia. According to Section 91(25), the Dominion Legislature had exclusive authority in matters directly related to the rights, privileges and disabilities of the Chinamen residing in Canada. Applying the doctrine of pith and substance, the Judicial Committee of the Privy Council concluded that the concerned Act was regarding the right and privileges of the Chinamen which was a subject within the exclusive power of the Parliament.

This judgement is also related to the doctrine of pith and substance and is not concerned with the doctrine of “direct impact”.

6. Bank of Toronto vs. Lambe (1882)– In this case, the Quebec Act, 1774 was questioned. Two contentions were raised. First is that the tax in question was not “taxation within the Province” and second is that the tax was not “direct tax”. The Judicial Committee had held that the Act was within the legislative competence of the Provincial Legislature.
7. Attorney General of Alberta vs. Attorney General for Canada (1939)– In this case, the Province of Alberta had passed an Act regarding the “taxation of banks”. The effect of the Act was that every corporation or joint stock company, except the Bank of Canada, which is incorporated for carrying out banking or savings bank business in the Province, would be charged an annual tax along with the usual tax payable under other statutes. Such annual tax was calculated to be half per cent on the paid-up capital and one per cent on the reserve fund and undivided profits. 

It was held that the imposed tax was not to some regular taxation to “raise revenue for Provincial purposes” and, thus, could be said to be within the legislative competence of the Provincial Legislature in accordance with Section 92(2) of the British North America Act, but it was to prevent the operation of those banks that had been established by the proper authority of the Parliament in accordance with Section 91 of the British North America Act. 

Thus, the Board had concluded that the Act, though a statute related to taxation, was a colourable legislation aimed to prevent the functioning of the banking institutions, which came under the authority of the Dominion Legislature. It was observed that the pith and substance of the Act were not related to taxation, which came under the power of the Provincial Legislature as per Section 92 as mentioned above, but were related to the subject of “banking”, which was under the power of the Dominion Legislature. The judges also formulated some guidelines to help in determining the class, i.e., Section 91 or Section 92 of the Act, in which a particular subject belonged. Three rules were suggested, which are:

1. The two lists given under Sections 91 and 92 are to be compared to determine where the concerned legislation prima facie falls within,
2. The effect of the legislation is to be examined, and,
3. The object or purpose of the concerned legislation is to be considered.

8. Calcutta Gas Company vs. The State of West Bengal (1962)– In this case, the issue was regarding the competence of the State legislature to enact the Oriental Gas Company Act, 1960. The Court had observed that Article 246 of the Constitution of India empowers the legislatures with the power to legislate. The three Lists provided under the Indian Constitution are the demarcated areas specifying the area of operation for the separate legislatures. The language of the entries under the Lists is to be given priority but there may be cases of overlapping or direct conflict. In such cases, it is the duty of the court to harmoniously interpret them. The Court had observed that it is a well-settled rule of construction that attempts are to be made to harmonise the conflicting entries, irrespective of whether they belong to the same List or different Lists.
9. Deuchar vs. Gas Light and Coke Company (1925)– In this case, it was held that, when a corporation created by legislation, while considering the purposes of the Act and in furtherance of fulfilling these purposes, the objects to be pursued by the corporation are to be based on the Act and the powers are also to be conferred by the Act directly or by reasonable implication. 

Judgement of the case

Imposition of Gujarati or Hindi or both as exclusive medium

Section 4 and the Clauses under it

In this regard, the Supreme Court considered a few Clauses of Section 4 of the 1949 Act. The particular Clauses and the inferences from them are listed below in separate points for easy understanding:

1. Clause (1)- The 1949 Act originally contained the following provision under this Clause:

“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”

The present Act, which is modified up to 2016, provides the following under Clause (1):

“to provide for instruction, including correspondence courses, teaching and training in such branches of learning and courses of study as it may think fit, to make provision for research, advancement, and dissemination of knowledge, and to conduct special under-graduate courses for talented students”

The Supreme Court did not agree with the High Court in its opinion that the power under Clause (1) is limited in application only to institutions set up by the university and excludes the affiliated colleges. The language of the provision does not support this restriction. However, the Court agreed with the High Court on the statement that this power is not related to the medium of instruction but to the curriculum in the various branches and courses offered.

It was concluded that, as per this Clause, the university can direct instruction, teaching and training in branches and courses but it does not provide an exclusive medium for carrying out such instruction.

2. Clause (2)- “to make such provision as would enable affiliated colleges and recognised institutions to undertake specialisation of studies”

The Supreme Court stated that this Clause has no effect on the topic of the exclusive medium of instruction.

3. Clause (7)- The Act as modified up to 2016, places this provision to Clause (10) presently. The provision states:

“to lay down the courses of instruction for various examinations”

Likewise, this Clause was also stated by the Supreme Court not to be related to the laying down of an exclusive medium of instruction.

4. Clause (8)- As per the latest amended Act, this provision is now contained in Clause (9) under the same section. The provision states:

“to guide teaching and research work in colleges, university Departments, university centres and recognised institutions”

In this provision as well, there have been some additions made after the amendment but, since this Clause also does not have any relation with the power to impose an exclusive medium, as stated by the Court, we are not discussing it in detail.

5. Clause (10)- It is to be noted that the provision contained in this Clause is shifted to Clause (12) as per the latest amendment. The provision states that:

“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 therefrom 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 and Regulations”

This Clause has undergone slight changes as provided in the latest amended Act.

The Supreme Court had rejected the contention of the petitioner-university that Clause 10(a) expressly provides power to the university to impose a specific language of its choice, which in this case was Gujarati, Hindi or both, as an exclusive medium. The Court proceeded to state that such a provision by itself does not confer such empowerment. The Court clarified that, nevertheless, the university has the power to grant degrees or academic distinctions to persons who have pursued approved courses and passed the related examinations conducted by the university.

6. Clause (14)- The provision has now been shifted under Clause (20) and it provides the following:

“to inspect colleges, recognised institutions and approved institutions and to take measures to ensure that proper standards of instruction, teaching and training are maintained in them and that adequate library and laboratory provisions are made therein”

In short, this provision states that it is to be made sure that proper standards of teaching, instruction and training are maintained. Hence, it has no relation to the granting of an exclusive medium.

7. Clause (15)- This Clause has now been shifted under Clause (24)(a). Through this Clause, the university is empowered by stating:

“to control and co-ordinate the activities of, and give financial aid to affiliated colleges and recognised institutions.”

However, it is clear that the Clause does not mention any power to impose an exclusive medium of instruction and examination, as the university had contended.

8. Clause (27)- The unamended Clause states the following:

“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.”

The Supreme Court interpreted this provision as giving importance to the word “promote”, thus, stating that the university was given the power to “promote” the usage of these languages. The power that the university possessed was to encourage the study of these particular languages and their usage as a medium but it did not confer the power to make them an exclusive medium of instruction and examination.

Again, considering the usage of the article “a” in the phrase “as a medium of instruction and examination”, the Court stated that the legislature intended to make Gujarati or Hindi one of the mediums of instruction. There was clearly no intention to create a power through which Gujarati or Hindi could be imposed as an exclusive medium of instruction. This is supported by the usage of “the” in the proviso to the Clause in the phrase “English may continue to be the medium of instruction and examination”. 

In addition to this, the Supreme Court also highlighted the fact that the proviso shows that the legislature desired the continuation of an already existing exclusive medium of instruction and examination, that is, English.

Lastly, the Court mentioned that, as per the proviso, English was to continue as a medium of instruction in regard to certain subjects and, as per the operative part of the Clause, the use of Gujarati and Hindi as a medium was to be promoted. Thus, it can be inferred that Gujarati or Hindi was not to be used as an exclusive medium but was to be adopted along with English for instruction and examination.

9. Clause (28)- The unamended version as mentioned by the Court is:

“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”

This provision is to further promote the objectives of the university. This Clause works together with Clause (27). It depends on Clause (27) to conclude if this Clause can be interpreted so as to promote the object of the university to impose Gujarati or Hindi as the exclusive medium of instruction and examination.

Section 18 and the powers and duties under it

The Supreme Court considered the contention of the university that, as per the powers and duties of the university under Section 18, the Senate had the power to make provisions regarding the usage of Gujarati or Hindi or both as a medium of instruction and examination. In this regard, the Court mentioned that, apparently, the language of the different Clauses mentioned does not confer the meaning that the Clauses provide a collateral duty along with authorising the Senate to exercise the powers of the university. However, the Court accepted the assumption that every power of the Senate has a corresponding duty, but it refused to accept that the power related to the usage of Gujarati, Hindi or both as a medium presumes a duty to make it an exclusive medium of instruction and examination. The usage of “a” in the phrase “as a medium of instruction and examination” in the provision points out that the usage of these languages would be an addition to the existing multiple mediums and not the sole medium. Apart from this, no other provisions of Sections 18, 20, or 22 that confer various powers and duties to the different organs of the university were mentioned by the parties and the Court also could not find any provision that empowered the university organs to impose Gujarati or Hindi as an exclusive medium of instruction.

The Court also stated that the power to provide for a medium of instruction in affiliated colleges does not necessarily include the power to impose an exclusive medium of instruction and examination.

Recommendation by the Government of India

The petitioner-university had relied upon a letter dated 7th August 1949, which was addressed by the Government of India to the universities and state governments. In that letter, the Government of India had made certain recommendations for the benefit of national education and directed the universities and the state governments to implement the same in a timely manner. Among the seven items recommended, two were discussed in this case, which were as follows:

1. The universities and the State Governments were requested to take steps to replace the English language with the language of the state, province or region as a medium of instruction and examination at the university stage during the coming five years gradually, and,
2. The universities were requested to conduct a mandatory test in the Federal language during the first degree course and also to arrange for teaching facilities in the Federal language for those students to choose it as an optional subject.

The Court stated that though the Government of India had proposed the above-mentioned recommendations in 1949 to replace the English language with a regional language for the purpose of using it as a medium of instruction and examination, the same cannot be considered a proper cause to interpret the provisions in a manner that opposes the intention of the Legislature clearly conveyed. The Court also mentioned that these recommendations were disregarded by most of the universities. The Statement of Objects and Reasons of the Act of 1949 mentioned that as suggested by the Committee, the Act was to empower the university to take up Gujarati or Hindi, which is the national language, as the medium of instruction. The only exceptions provided were those subjects in which English medium was considered necessary. In such subjects, the English language was allowed as a medium of instruction for the first ten years.

It was stated that, in the absence of a direct provision incorporated by the legislature, a proposal by the government mentioned in the Statement of Object and Reasons would not be reason enough to assume that such a proposal was given effect. The Object and Reasons specify the reason behind the enactment of a statute but in cases of interpretation of the statute, the Object and Reasons are to be disregarded. 

The final decision in this regard

The Supreme Court mentioned that, when the operative part of Section 4(27) does not confer on the university a power to impose Gujarati or Hindi as an exclusive medium of instruction, the same cannot be said to have been independently conferred by its proviso, as amended by the Amendment of 1961. The proviso only declares an extension in the usage of English as a medium of instruction beyond the stipulated time of ten years for certain courses. The proviso also highlights the usage of the definite article “the” by the legislature when the intention was to portray the English language as the sole medium of instruction and the usage of indefinite article “a” when the intention was to portray the language to be one of the multiple media of instruction.

Thus, it was concluded by the Supreme Court that neither the unamended Act nor the amended Act conferred any such power to the university to impose Gujarati, Hindi or both as an exclusive medium or medium of instruction and examination. Thus, the Senate could not exercise such power since the Senate is a body that acts on behalf of the university and has only those powers that are within the scope of powers conferred on the university by the Act.

The Supreme Court concluded by agreeing with the High Court that the power to impose the languages Gujarati, Hindi or both as an exclusive medium of instruction and examination has not been conferred under any of the Clauses provided under Section 4 of the Act. 

Infringement of Entry 66 of List I of the Seventh Schedule

Need for harmonious construction of Entry 66 of List I and Entry 11 of List II

The Supreme Court discussed that Entry 17 of List II of the Seventh Schedule of the Government of India Act, 1935, empowered the State Legislature of Bombay to enact the Act of 1949. Entry 17 provided, “Education including Universities other than those specified in paragraph 13 of List I.”

Paragraph 13 of List I mentions two universities, namely, the Benaras Hindu University and the Aligarh Muslim University. Thus, a state legislature was empowered to make laws regarding all matters related to education except the two mentioned universities. The term “education” is wide enough to include all related matters so the Supreme Court assumed that the state legislature also possessed the power to make laws imposing a federal or any regional language as the exclusive medium in a university. The Court opined that, if by Section 4(27) the State Legislature empowered the university to prescribe a language as an exclusive medium of instruction, then there would be no doubt regarding the validity of Statutes 207, 208 and 209. However, Section 4(27) does not empower the university to impose Gujarati or Hindi language as an exclusive medium of instruction.

The Constitution of India made a significant change in the classification of the legislative powers regarding the subject of education between the Union and the state legislatures. The power of the state legislature to make laws regarding “higher, scientific and technical education and vocational and technical training of labour” under the Government of India Act, 1935 is now mentioned under Entry 11 of List II and is made subject to five entries, namely, Entries 63 to 66 under List I and Entry 25 under List III, under the Constitution of India. Entries 63 to 66 of List I mention those matters related to the subject of education that come under the exclusive legislative power of the Parliament.

The Supreme Court took notice of the phrase “subject to” used in Entry 11 of List II, which excludes Entries 63 to 66 of List I and Entry 25 of List III from the scope of legislation of the state legislature. Thus, it can be said that the state legislature has restricted power with respect to education-related matters. 

The Court rejected the contention of the parties that the laws prescribing the medium or media of instruction in higher educational institutions always fall within the scope of Entry 11 of List II. It further stated that, if the same is accepted and followed, then even for the excluded entries of 63 to 66, the power to legislate on the medium of instruction would lie with the State but, for the other areas of the excluded entries, apart from the medium of instruction, the power to legislate would continue to vest with the Union Parliament. This interpretation would lead to absurd results in the manner that, even for the national universities and institutions, the power to make laws relating to the medium of instruction would lie with the state legislature, though they would possess no other power with regard to those universities and institutions.

As a result, the Court suggested that the harmonious construction of Entry 11 of List II and Entry 66 of List I is to be done. It was accepted that the two entries are overlapping but, in the case of the intersection, Entry 66 of List I is to be given priority over the state power entrusted by Entry 11 of List II.

The Supreme Court further clarified that the state legislature has the power to legislate on matters regarding primary or secondary education, including the power to make laws regarding the medium of instruction therein. On the other hand, according to Entries 63 to 66, the institutions of national or special importance and the higher education institutions come under the purview of the Union, hence, the power to make laws regarding the medium of instruction is also vested with the Union.

Overriding power of the Union Legislature

The Court stated that, though the State has the power to decide the syllabi and courses of study in the institutions mentioned only in Entry 66, which includes deciding the medium of instruction, the Union Parliament exercises an overriding power. The Union Parliament has to ensure that the syllabi, courses, and medium of instruction maintain the standard of education and facilitate the coordination of the standards on a national basis. Though the legislatures have separate lists of powers, overlapping to some extent is unavoidable. The Court also observed that prescribing a common test to answer every emerging question in this regard is not attainable. Thus, the overlapping exists in the manner that, within a state, the state legislature will have the power to prescribe the syllabi, courses and medium of instruction, while the Union Government also withholds the power to ensure that the standards are met, maintained and improved. 

Another point highlighted by the Supreme Court was that, even if the Union has not legislated to the full potential of its powers, the State does not assume the power to legislate on a matter which is the domain of the Union under the Constitution. Even in the separate matters allocated to the Union and the state legislatures, there may be laws enacted in the respective separate exclusive powers of both legislatures, whose provisions are in conflict with each other. In such cases of conflict, the doctrine of “pith and substance” is to be applied to the concerned statute to decide which legislature possesses supremacy. The validity of the State legislation depends on whether it is affecting the “coordination and determination of standard” under Entry 66. For example, the Court had mentioned that the state legislature can legislate on education in such institutions that are not of national importance, that is, which are excluded in Entry 64 of List I. However, this act of the state legislature will be subject to affecting the “coordination and determination of standard” under Entry 66.

Article 254(1) of the Indian Constitution supports the contention that the Union legislation has superiority over state-made laws. Thus, if the Union and State both formulated laws regarding coordination and determination of standards, the Union-made laws would be given priority over the state-made laws. Even if the Union Parliament has not legislated on a matter mentioned in the exclusive Union List, the State does not assume the power to make a law on that matter. Still, if the State Legislature formulates any law on the matter belonging to the Union List, such a law would be deemed invalid.

Interpretation of Entry 66 of List I

The Court rejected the interpretation suggested by the counsel for the university regarding Entry 66 of List I. It was stated that unless it is expressly mentioned or there is a necessity, Entry 66 is not to be allowed to have a narrow and restricted interpretation. The power to legislate on a matter extends to and includes all related angles which can reasonably be said to be included in that matter. Nothing in Entry 66 or the Constitution of India implies that “coordination” in Entry 66 means merely “evaluation”. Normally, the word “coordination” means balancing or harmonising. Thus, the power of coordination is not only the power to evaluate but also the power to harmonise or balance something. Moreover, the power granted by Entry 66 of List I is not dependent on the happening of an emergency or the presence of incompetent standards which demand the exercise of such power. 

The Court stated that the power to make laws regarding “coordination and determination of standards” in higher education institutions includes the power to prevent and remove inconsistencies in standards. Through this provision, the Indian Constitution makers meant to authorise coordination and prevention of the existence of any condition acting as a barrier to the fulfilment of such coordination. The Court further defined this power as absolute and unconditional.

The concept of “medium of instruction” is included separately in both entries, that is, Entry 66 of List I and Entry 11 of List II. When it is included under Entry 66, it will fall under the excluding part of Entry 11. The role of the “medium of instruction” in maintaining the standard of education depends on the importance that the choice of medium holds for imparting instructions. The Court explained this matter by stating that if there is a law that imposes some regional language or Hindi as the medium of instruction, even though there are no study materials, teaching faculties or even students incapable of understanding the subjects, then it would lower the standards, and the law would then, fall within Entry 66 of List I and would be excluded from the power given under Entry 11 of List II.

Amendment to Section 4(27)

The Supreme Court disagreed with the High Court in declaring the amended proviso to Section 4(27) invalid on the ground that it was beyond the scope of the legislating power of the State. The Court reiterated that the purpose of the amended proviso was to allow the continuation of the usage of the English language as a medium of instruction beyond the stipulated period of ten years in certain selected subjects. Before the enactment of the Act of 1949, the English language was the only medium of instruction for all subjects in the universities. The proviso authorised the university to permit the usage of English as an exclusive medium of instruction in selected subjects. The amendment blocks the power to impose an exclusive medium other than the already existing medium.

Before the Act, there was a sole medium of instruction throughout the country. It was stated that the existence of a common medium of instruction cannot be said to have lowered standards and affected the coordination and determination of standards. The amendment aimed to allow the continuance of English as a medium for specific subjects and this cannot be considered to be a violation of the powers of the Union under Entry 66 of List I. 

If the university does not possess the power to impose an exclusive medium of instruction, then Section 38A of the Act of 1949 also doubtlessly becomes not invalid.

Verdict regarding Gujarat High Court decision

The Supreme Court upheld the order of the High Court in declaring Statutes 207 and 209 invalid so far as they are related to the imposition of Gujarati, Hindi or both as an exclusive medium or media of instruction. 

The order of the High Court declaring Section 4(27) proviso and Section 38A invalid was set aside by the Supreme Court. 

Dissenting opinion by Justice Subba Rao

The dissenting opinion was given by Justice Subba Rao. Apart from discussing the relevance of the doctrine of pith and substance, he considered two issues, which are:

1. Whether the state legislature has authority under the Constitution of India to formulate a law which prescribes an exclusive medium of instruction in affiliated colleges, and
2. Whether the university has power under the Act of 1949, amended in 1961, to impose an exclusive medium of instruction.

Relevance of the doctrine of pith and substance

Justice Subba Rao refused to accept the contention that the doctrine of pith and substance is irrelevant when one entry is conditional upon another entry and both entries are under different lists. Instead, he proceeded to state that, in such a case, a part of the legislation has been made out of the scope of one entry and has been inserted in the other entry. This has the same effect as interpreting two entries in separate lists. The doctrine of pith and substance means that if the substance of legislation falls under matters within the power of a particular legislature, then it will be considered valid even though the legislation expands into matters beyond the scope of that legislature. The true character of the legislation is the concern and any coincidental infringement on other entries is not to be considered. 

The Justice proceeded to summarise this entire discussion to state that, when the question is regarding the scope of power within which legislation falls, the court has to decide the scope, effect and pith and substance of the legislation. If any State law infringes the domain of a central subject so heavily that it severely curtails the central domain, then it has to be concluded that the state law is a colourable legislation and, in its pith and substance, it falls under the Union list and not the State list.

Authority of the State Legislature under the Constitution of India to formulate laws prescribing exclusive medium

Justice K. Subba Rao observed that, as per Entry 11 of List II, the entire field of education is entrusted to the state legislature. The only exceptions mentioned are Entries 63 to 66 of List I. The medium of instruction is an inseparable component of education, as there can be no education without it; it is the mode in which education is imparted. It is not reasonable that the subject of the medium of instruction is given under the power of the Parliament and the rest of the subject matter related to education is entrusted to the State. 

It is a fact that the medium of instruction in specific universities is included in Entry 63 of List I. At the same time, there is no reason to exclude the medium of instruction from university education, as mentioned under Entry 11 of List II. It was also noted that Entry 66 of List I does not expressly, prima facie, include the topic of the medium of instruction. 

The interpretation of the terms “coordination” and “determination of standards” by the appellant side was regarded as restrictive and, if accepted, completely ousted the Parliament from this scenario. The interpretation submitted by the respondent side was deemed to affect the State entry badly, which cannot be accepted unless the language of Entry 11 is clear and precise.

Justice K. Subba Rao stated that “to determine” means “to settle, decide or fix” and the term “coordination” means “to place in the same order, rank or division to place in proper 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”. 

Entry 66 empowers the Parliament to make laws for the “determination of standards” in higher education institutions. This leads to the harmonious coordination of the institutions which, in turn, is expected to lead to an overall improvement in the quality of higher education. It was also observed that it is not necessary for a particular medium of instruction to be involved to secure such standards. 

Justice K. Subba Rao discussed that education has multiple components and all are included when the term “education” is used. If the components are put under the heading of “coordination and determination of standards,”  then the entry of “education” would be left with no content. It is necessary to apply the principle of harmonious construction and to draw a demarcation between the range of power and interference of the state legislatures and the Union Legislature. The Judge concluded that the State can make laws for imparting education and also to maintain the standards of education. On the other hand, the Parliament is to interfere only when there is a necessity to improve such standards to help in coordination. For example, the Parliament may make laws to provide better facilities, upgrade general standards, provide necessary financial help, etc., all of which are supposed to enhance the standards of the university. 

The Parliament may also make a law that provides a mechanism to improve the language adopted as a medium of instruction so as to make it a useful means for higher education and technological and scientific studies. Even if the pith and substance of such a law is “coordination and determination of standards,”  the inclusion of the medium of instruction would not be considered to be an impediment since the purpose of improvement is present. But a complete displacement cannot be allowed under the garb of “coordination” as in such a case, there is a direct infringement on the subject of education.

Entry 66 of List I does not allow the enforcement of any provision which results in direct interference by an external organisation in the education of a university, it allows such external body to prescribe standards and help to reach those standards.

Scheme of the Indian Constitution regarding the medium of instruction

Justice K. Subba Rao highlighted that the Indian Constitution is also against the Parliament possessing powers to legislate regarding the medium of instruction. When the Constitution of India came into force, there were many regional languages, which are also mentioned in the Eighth Schedule but English language was the medium of instruction as well as the official language of the administration. It was intended that English be replaced at all levels but it should be done in phases. Article 343 of the Constitution of India was mentioned, which declares Hindi in Devnagari script as the official language of the Union. Simultaneously, this Article also mentions that English is to continue for official purposes but for a limited period. 

However, a similar procedure for the educational field was not mentioned and the reason can be presumed to be that the same was left to the free will of the state legislatures and educationists. 

He further mentioned that many steps were taken by the Indian Constitution makers, which point to the fact that they were sure of the enrichment of the regional languages and had envisioned that the regional languages would become suitable means of instruction in education. Some of the steps, as mentioned in the judgement, are:

1. Urge to replace English with Hindi for all official purposes, 
2. Recognition of regional languages, 
3. Removal of the English language from the Eighth Schedule,
4. The presence of Article 351 directed the development of the Hindi language.

Entry 66 is to be interpreted as assuming that regional languages would take the place of the medium of instruction in all universities and in such a scenario, the law fixing standards for coordination is not to be given priority over the medium of instruction.

The petitioner-university had contended that, if other universities were influenced by the action of the Gujarat University and proceeded to impose some regional language in place of English, which has been the accepted medium of instruction, the standard of higher education might be negatively affected. If the contentions of the petitioner are accepted, then Parliament would be powerless in such a situation. The effect of this interpretation would result in the eradication of a considerable portion of “coordination”. The same contention, in a different manner, had also been presented by the respondent. What they meant was that a state law abolishing the English language as a medium of instruction falls under Entry 66 under the phrase “coordination”. Justice K. Subba Rao declared this argument to be void of any factual or legal backing. The Indian Constitution makers had entrusted the subject of the medium of instruction to the state legislatures because they considered it to be a better choice.

The aim was to replace the English language with a regional language as a medium of instruction. For that, all the other states had been proceeding gradually, whereas only the Gujarat Legislature adopted a hasty process and proposed the Gujarati language as the sole and exclusive medium of instruction. The Judge preferred to go with the natural meaning of “education” rather than extend the word “coordination” to face the possibility of all states discarding the English language as a medium of instruction. Further, he discarded the contention that continuing English as a medium of instruction would result in the collapse of the standards and inconceivable cooperation. He suggested that other regional languages could serve as a means to impart education but, for that, efforts and expenses would also be incurred. He relied on the state legislatures to make attempts to maintain the standards. 

It was further stated that, if the state legislature can act on its own will and go against the interests of the universities, the Parliament can do the same. It has to be believed that, as a legislative body elected by the people, the bodies will act with wisdom and for the public good. For this reason, the Court must interpret the constitutional provisions without considering the irrelevant factors.

Justice K. Subba Rao finally held that the medium of instruction comes under Entry 11 of List II which means that the state legislature has the authority to make laws empowering a university to impose a regional language as the exclusive medium of instruction.

Power under the Gujarat University Act, 1949 to prescribe an exclusive medium of instruction 

Justice K. Subba Rao analysed the scheme of the Act. The Gujarat University is a body corporate and a teaching and affiliating university. There are three instruments, namely, the Senate, the Syndicate (the legislative body) and the Academic Council (the executive), which carry out the essential activities and also possess various powers. The Judge also took into consideration the related Clauses of Section 4 of the Act. 

He stated that, when an Act provides powers to a corporation created by itself, it also provides the power to do the acts necessary to exercise the said powers. If the same is accepted, then the university can be said to possess the power to impose an exclusive medium of instruction. The university decides the instruction, teaching, training, courses of study and examination, hence, it is natural that it would possess the power to prescribe a medium of instruction. If the university can prescribe multiple mediums of instruction, it can also prescribe the more suitable medium as the exclusive one.

Justice K. Subba Rao commented that, if the previous legislation applicable in Bombay and the comparable statutes related to other universities of India are considered, then it will be seen that the universities, applying similar powers, had prescribed the English language as a medium. This basic power of prescribing medium, if denied to the universities, will affect their autonomy and affect the rights provided to them under the Act. If such a power is not entrusted to the university, then all the affiliated colleges under it might adopt different languages as the medium, and then issues like in what language examinations are to be held would arise. However, the university must exercise this power reasonably. 

He mentioned that Clause (27) to Section 4 expressly empowers the university to prescribe a medium of instruction but the exercise of such power has to be as per the conditions of the provision. The same has been tried to be established by bringing out the usage of different articles in the operative and substantive parts of the Clause. This argument was rejected by the judge, who stated that the power to prescribe mediums of instruction and examination is already provided under Clause (1) to Section 4 and Clause (27) provides additional power for promoting the development and prescribing the usage of the languages as a medium of instruction.

Clause (27) mentions “instruction” as well as “examination”. If it is considered that the power to prescribe a medium of instruction is provided by only this Clause, then it would mean that the power to prescribe a medium of instruction for examination is also provided by this Clause. In such a scenario, the result would be that the university would not have the capacity to conduct examinations in any other languages but Gujarati and Hindi. On the other hand, if the affiliated colleges have the capacity to use some other language as the medium of instruction apart from Hindi and Gujarati, the university would not have any power to conduct examinations through its chosen medium. Thus, considering these, the Judge concluded that Clause (27) only provides an additional power with a duty to promote the mentioned languages, and the Clause, in no way, is meant to affect the power of the university to prescribe its chosen medium of instruction. 

Regarding the proviso, the Judge stated the meaning to be that English would continue as a medium of instruction but not as a sole medium. The university is to impose one or both of the mentioned languages as a medium of instruction.

Accepting the reasoning behind the usage of definite and indefinite articles in the operative and substantive part, he concluded that the fact that the university can prescribe the mentioned regional languages as an additional medium is apparent from the usage of the indefinite articles; and the fact that the English language is followed by definite article shows that it was in usage as the exclusive medium. Moreover, it is also implied by the proviso that the university has the power to continue English as a medium of instruction even after the period of termination mentioned. The proviso empowering the university to make English the sole medium for a definite period is presumed to have been enacted knowing that the university had the power to prescribe English as the medium.

The interpretation given by the Judge results in the university having the following powers:

1. Prescribing any medium or mediums of instruction;
2. Promoting Hindi and Gujarati;
3. Introducing the use of Hindi and Gujarati;
4. Continuing English as the sole medium of instruction for the mentioned period; and
5. After the completion of the mentioned period, prescribing English or some other language as the medium of instruction along with Hindi and Gujarati.

Final conclusions by the dissenting Judge, Justice K. Subba Rao

Justice K. Subba Rao concluded the following-

1. The university has the power to prescribe multiple mediums or an exclusive medium of instruction for higher education;
2. Clause (27) provides additional power and does not negatively affect the implied power derived from the other provisions;
3. The Constitution of India relies on the State legislatures and universities to look after education at the university level and the legislature, in turn, has entrusted the university with powers necessary for the upliftment of higher education;
4. The university has the authority to decide the pace at which regional language is to be introduced as the medium of instruction;
5. Since the university has the power to prescribe an exclusive medium of instruction, Section 38A of the Act stands valid;
6. The university was not acting ultra vires while allowing the replacement of English by Hindi and Gujarati as media of instruction; and
7. The order of the High Court was to be set aside and the appeals were allowed.

Analysis of the case

This case highlighted the extent of the power entrusted to the State and universities in the field of education. Though essentially it is seen that the Gujarat University Act, 1949 does empower the university to impose regional languages as a medium of instruction and education, the same is not an absolute and unrestricted power. If such an allowance is made, there will be a possibility that different universities adopt a different medium, thus, leaving no uniformity in education all over the country. For the same reason, the Supreme Court, in this case, interpreted the provisions, namely, Section 4 and 18 of the Gujarat University Act, 1949, in such a manner, taking into consideration the usage of constitutional provisions minutely, to lead to the conclusion that the universities have the power to look after the instruction, teaching, and medium used in its set-up colleges as well as the colleges affiliated by it, but the power to prescribe a medium is restricted in the manner that it cannot prescribe an exclusive medium. Referring to different Clauses under Section 4 and Section 18 of the Gujarat University Act, 1949, the Supreme Court concluded that the power of the university is to prescribe an additional medium, which was done to promote the usage of regional languages, but such a regional language cannot be made the sole medium.

Then, the Court proceeded to interpret the overlapping entries mentioned in the Constitution of India regarding education. It was debated in the case whether education and the related mediums of instruction and examination fall under the domain of the State or the Union Legislature. The two entries in question were Entry 66 of List I and Entry 11 of List II. Various interpretations were discussed and the interpretations forwarded by the parties were also considered, a few of them led to anomalous results. Hence, the Court deemed it appropriate to proceed with harmonious construction so that the best possible result is achieved which would work towards the standards of education in the country. Following the same, a clear demarcation was stated, that is, the state legislature being entrusted with the areas of primary and secondary education and the Union legislature being entrusted with the areas of higher education. Further, the Union was stated to exercise an overriding power over the State when it comes to matters falling under Entry 66, i.e., the Union is to have the upper hand in verifying whether the standards for higher education in institutions and universities are met. In this regard, the understanding of Entry 66 of List I in light of the “medium of instruction” becomes important. It was understood that, when the medium of instruction affects the standard of education, it would automatically come under the purview of Entry 66 of List I. 

The decision given by the bench in this case was in the ratio of 5:1. The majority supported that Hindi or Gujarati cannot be made an exclusive medium. It was accepted that the university can prescribe any language as a medium but that would be as an additional medium; such language cannot be made the sole and exclusive medium of instruction and education. 

If we look at the dissenting opinion, we find that Justice K. Subba Rao was of the view that the medium of instruction comes implied with education and is an inseparable element. Hence, when “education” as a subject is being entrusted to the State legislature, the medium of instruction remains affixed to it. The state possesses the power to legislate on matters related to education and the Parliament interferes when the improvement of standards is involved. He proceeded to mention the constitutional structure to conclude that the scheme of the Indian Constitution also supported the adoption of regional languages as a medium of instruction in education.

He further interpreted the provisions of the Gujarat University Act and opined that the university possessed the power to prescribe exclusive medium or media and, thus, in his opinion, the order of the High Court was to be negated, upholding that the university was well within its powers to replace English with the mentioned regional languages as a medium of instruction.

Conclusion 

The case of The Gujarat University, Ahmedabad vs. Krishna Ranganath Mudholkar and Ors. (1963) discussed some important doctrines of interpretation in light of matters related to higher education. The doctrine of harmonious construction, in particular, was resorted to in separating the scope of power in the area of education between the Union and the state legislatures.

The uncertainty regarding the authority to impose a language as a medium of instruction and examination was considered and dealt with by the Supreme Court in this case. The supremacy of the Union was ensured over the state legislatures in intersecting matters. In the event that the state legislature makes any law concerning the subject of education, it is to be ensured that the law does not interfere with any matter mentioned under the Union domain. 

The case serves as an important judicial decision regarding the subject of entries mentioned under the Indian Constitution and provides an insightful outlook on the interpretation of various provisions for the benefit of educational standards throughout the country.

Frequently Asked Questions (FAQs)

Which State Legislature enacted the Gujarat University Act, 1949?

The Act was enacted by the State Legislature of Bombay.

Where was the Act of 1949 applicable?

The Act was applicable in the province of Bombay.

Why was the Gujarat University Act, 1949 enacted?

The Act was enacted to establish a university for teaching and affiliating other colleges. It was done to decentralise and reorganise university education in the province of Bombay.

References

• https://www.ijlljs.in/wp-content/uploads/2014/06/Harmonious-Construction.pdf 
• https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/direct-effect 

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