The Gujarat University, Ahmedabad vs Krishna Ranganath Mudholkar And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 21 September 1962

Coram: B.P. Sinha, J.C. Shah, K. Subba Rao, K.N. Wanchoo, N. Rajgopala Ayyangar

In the factual background of the dispute, Shrikant, who was the son of Shri Krishna Madholkar, sat for the Secondary School Certificate Examination that was conducted by the State of Bombay in March 1960. He successfully passed the examination. Throughout his preparation for that examination he received instruction in all the subjects that were prescribed for the test through the medium of Marathi, which was his mother‑tongue, and he also wrote his answer papers in Marathi. After completing his secondary education, Shrikant enrolled in the First Year Arts programme at St. Xavier’s College, an institution that was affiliated to Gujarat University. The college placed him in a section of the First Year Arts class in which the instruction was delivered in English. He completed the First Year Arts course and obtained the requisite certification in March 1961. Following the successful completion of the first‑year course, Shrikant applied to the same college for admission to the Intermediate Arts programme, a course of study that prepared students for the university‑level Intermediate Arts examination, and he specifically sought to continue his studies in the English‑medium section of that programme. Upon receipt of his application, the Principal of St. Xavier’s College communicated to Shrikant that, pursuant to the provisions contained in the Gujarat University Act of 1949 together with Statutes numbered 207, 208 and 209 that had been framed by the Senate of the University and subsequently amended in 1961, the college was not empowered to admit him to English‑medium classes without first obtaining a sanction from the university itself.

Consequent upon the college’s refusal, Shri Krishna Madholkar, acting on behalf of his minor son, addressed a formal request to the Vice‑Chancellor of Gujarat University seeking the required sanction that would permit Shrikant to attend the “English medium classes” at St. Xavier’s College. The Vice‑Chancellor, through the office of the Registrar, declined to grant the requested permission. Nevertheless, the Registrar issued a separate communication in which he informed Shrikant that, while he would be allowed to continue using English as the medium for answering examination papers, he would not be permitted to receive instruction in English. In response to this refusal, Shri Krishna Madholkar instituted a petition in the Gujarat High Court on behalf of himself and his minor son. The petition sought the issuance of a writ of mandamus or any other appropriate writ, direction or order compelling Gujarat University to declare sections 4(27), 18(i)(xiv) and 38A of the Gujarat University Act, 1949, together with Statutes 207, 208 and 209, to be void and inoperative. The relief also demanded that the university refrain from enforcing or acting upon those statutory provisions, that the Vice‑Chancellor desist from issuing any letters or circulars concerning the medium of instruction, that the university cease to oppose or prohibit Shrikant’s admission to the “English medium Intermediate Arts class,” and that the Principal of St. Xavier’s College be required to admit Shrikant to that class on the ground that the challenged provisions of the Act, the Statutes and the administrative communications were invalid.

The Gujarat High Court entertained the petition and, by an order dated 24 January 1962, granted the writs that had been prayed for by the petitioners. Dissatisfied with that judgment, both Gujarat University and the State of Gujarat filed separate appeals before the Supreme Court of India, thereby bringing the matter before the apex Court for final determination.

The petitioners had obtained certificates of fitness that were issued by the High Court. The High Court’s judgment was based on several distinct grounds, which the Court summarized as follows. First, Statutes 207 and 209, insofar as they attempted to prescribe Gujarati and/or Hindi written in the Devanagari script as the sole medium of instruction and examination for institutions that were not directly maintained by the University, were held to be unauthorized and consequently void. The reasoning was that neither section 4(27) nor any other provision of the Gujarat University Act empowered the University to impose Gujarati or Hindi as the exclusive language of instruction and examination in such institutions, nor did it allow the University to ban the use of English for those purposes. Second, even assuming some authority existed, the University’s power was limited only to the ability to designate Gujarati or Hindi as one of the possible media of instruction and examination, not to the extent of making them the only permissible languages while excluding all others. Third, the proviso attached to clause 27 of section 4 of the Gujarat University Act, as amended by Act 4 of 1961, was found to intrude upon the field of Entry 66 of List I of the Seventh Schedule of the Constitution; therefore, that proviso, and consequently Statutes 207 and 209 made under it, were beyond the legislative competence of the State and thus void. Fourth, even if a strict interpretation of section 4(27) and other provisions of the Act were to permit the University to prescribe a particular language or languages as the medium of instruction and examination for affiliated colleges and to forbid the use of English in those colleges, the provisions that sought to impose an exclusive medium, together with the Statutes and the circulars issued to give effect to them, were declared void because they infringed Articles 29(1) and 30(1) of the Constitution. The Court declined to entertain arguments concerning the alleged violation of those fundamental rights, because the petition lacked a specific pleading on that issue. Moreover, the authorities of St. Xavier’s College, who initially had taken a non‑contentious stance but later supported the petitioner, did not place any evidential material on record that would enable the Court to investigate a matter of such significance. The Court observed that determining whether the legislation infringed Articles 29(1) and 30(1) required proof of several factual matters, including the existence of a distinct language, script, or culture among the community the college served, or the existence of a religious or linguistic minority whose right to establish and administer educational institutions of its choice was being, or was likely to be, obstructed by the impugned legislation. Consequently, the Court expressed that it could not form an opinion on the question of whether the Act, the Statutes, and the circulars issued under it infringed any fundamental rights of any citizen or minority group.

The Court stated that it did not express any opinion on whether the provisions of the Act, the statutes made under it, or the circulars issued pursuant thereto infringed any fundamental right of any class of citizens or of any religious or linguistic minority. The Court added that it was refusing to decide that question, not because the petitioner lacked a right to maintain the petition under Article 226 of the Constitution, as the University and the State of Gujarat had contended, but because the petition suffered from a serious deficiency of pleading and of supporting evidence on the record. Consequently, the Court could not entertain a substantive determination on the alleged violation of fundamental rights.

Two substantial questions remained for determination. The first question was whether, under the Gujarat University Act of 1949, the University possessed the authority to prescribe Gujarati, Hindi, or both languages as an exclusive medium of instruction and examination in the colleges affiliated to it. The second question was whether any legislation that authorised the University to impose such media of instruction would be unconstitutional by infringing Entry 66 of List I of the Seventh Schedule to the Constitution. The Court noted that St. Xavier’s College had originally been affiliated with the University of Bombay under the Bombay Act 4 of 1928. The Legislature of the Province of Bombay subsequently enacted the Gujarat University Act of 1949 to create a teaching and affiliating university as a measure of decentralisation and re‑organisation of university education within the province. Section 5(3) of that Act provided that, from a date to be prescribed, every educational institution that enjoyed the privileges of the University of Bombay and was situated within the university area of Gujarat would be deemed to enjoy the privileges of the University of Gujarat. Section 3 conferred upon the University a perpetual succession and a common seal. Section 4 introduced a provision that was not normally found in comparable university statutes; it enumerated various powers of the University, powers that were to be exercised by different authorities specified in Section 15. The appeals before the Court concerned the Senate, the Syndicate and the Academic Council. Some of the powers listed in Section 4 were made exercisable by the Senate under Section 18. The Senate, according to that section, was authorised, subject to conditions that could be prescribed under the Act, to exercise the powers and perform the duties set out in sub‑section (1). Section 20 conferred certain powers on the Syndicate, while Section 22 invested the Academic Council with the overall control and regulation of teaching standards and examinations and authorised it to exercise certain university powers. The powers and duties of the Senate were to be exercised through the promulgation of statutes, those of the Syndicate through ordinances and those of the Academic Council through regulations. In 1954 the University framed statutes dealing with the media of instruction, namely Statutes 207, 208 and 209. Statute 207 provided, in part, that Gujarati shall be the medium of instruction and examination, subject to further provisions concerning the use of English and Hindi for certain categories of students and teachers.

Statute 207 originally stated that Gujarati would be the medium of instruction and examination, but it also contained a provision allowing English to remain the medium of instruction and examination for a period not exceeding ten years from the date on which section three of the Gujarat University Act came into force, unless later statutes prescribed a different period. The same statute further provided that, notwithstanding the requirement to use Gujarati, non‑Gujarati students and teachers would be permitted, if they so wished, to use Hindi as the medium—students for their examinations and teachers for their teaching duties. The Syndicate was directed to regulate the use of Hindi by issuing suitable ordinances whenever it became necessary. In addition, the statute declared that, notwithstanding the earlier clauses, the medium of examination and instruction for modern Indian languages and for English could be the respective languages themselves.

Statute 208 stipulated that, beginning in June 1955, the medium of instruction and examination for all subjects in First‑Year Arts, First‑Year Science and First‑Year Commerce would no longer be English but would follow the language prescribed in Statute 207(1). From June 1956, the same change applied to Inter‑Arts, Inter‑Science, Inter‑Commerce and First‑Year Science (Agriculture). The statute also allowed any student or teacher who felt unable to use Gujarati or Hindi satisfactorily to continue using English for examination or instruction respectively, in one or more subjects, up to November 1960 (which, according to the academic calendar, corresponded to June 1961).

Statute 209 mirrored this arrangement by enumerating the circumstances in which English could be used for B.A., B.Sc. and other examinations. After the state of Gujarat was formed as a separate entity, the Gujarat State Legislature enacted Act 4 of 1961. This Act amended the proviso to section 4(27) of the Gujarat University Act, thereby extending the period during which English could be used as the medium of instruction beyond the original ten‑year limit. The same legislation introduced section 38A, which imposed a duty on every affiliated college and recognised institution to adhere to the rules governing the media of instruction. Section 38A(2) specified that any college or institution that violated the Act, its rules, ordinances or regulations concerning the medium of instruction would lose its rights under the Act from the date of the violation and would cease to be an affiliated college or recognised institution.

Subsequently, the Senate of the university amended Statutes 207 and 209. The amended portion of Statute 207 read as follows: (1) Gujarati would remain the medium of instruction and examination, but Hindi could be used as an alternative medium of instruction and examination in the Faculty of Medicine, the Faculty of Technology including Engineering, the Faculty of Law, and in all faculties for postgraduate studies; (2) notwithstanding clause (1), English could continue to be the

Statute 207, as amended, authorized the University to prescribe the medium of instruction and examination for any period, for any subjects or courses of study, whenever such matters were prescribed by the Statutes under section 4(27) of the Gujarat University Act then in force. Clause 3 of the amended statute stipulated that, notwithstanding the provisions of clause 1, students and teachers whose mother‑tongue was not Gujarati were given the option to use Hindi as the language of examination and instruction respectively, if they so chose. Clause 4 added that, notwithstanding the provisions of clauses 1 and 3, any affiliated college, recognised institution or University department could, at its discretion, adopt Hindi as the medium of instruction and examination for one or more subjects for students whose mother‑tongue was not Gujarati. Clause 5 further provided that, notwithstanding clauses 1, 2, 3 and 4, the medium of examination and instruction for modern Indian languages and for English could be the respective languages themselves. Paragraph 9 of the judgment noted that Statute 209, as amended, required that the medium of instruction and examination in all subjects listed in that statute would no longer be English; instead, the medium would be the one prescribed by the amended Statute 207, with the change taking effect from the years specified for each examination. Subsequently, the Registrar issued a circular on 22 June 1961 addressed to the principals of affiliated colleges. The circular reported that, exercising the powers conferred by section 11(4)(a) of the Act, the Vice‑Chancellor directed three specific measures: first, only those students who had completed their secondary education in English and who were continuing their studies in the First‑Year Pre‑University Arts class in the academic year 1960‑61 through English would be permitted to continue using English as the language of examination in the Intermediate Arts class for the single year 1961‑62; second, the colleges were authorized to arrange for instruction in English for those identified students solely for the academic year 1961‑62; and third, the principals were required to verify that only the eligible students described in the first point were allowed to benefit from this concession. In the present case, the petitioner Shrikant had not taken the S.S.C. examination in English, and therefore, under the first provision of the circular, the principal of St. Xavier’s College was unable to allow him to continue using English as the medium of instruction in the Intermediate Arts class, because permitting him would have exposed the college to the penalties provided under section 38A. The petitioner consequently challenged the University’s authority to impose Gujarati or Hindi as the exclusive medium of instruction, arguing that such power was not conferred by the Gujarat University Act of 1949 as amended by Act 4 of 1961. The University, for its part, maintained that it possessed the requisite authority, a contention that formed the core of the dispute.

According to the Court, the authority to act in this manner had been expressly given to the University by several different provisions of section 4, and it was the responsibility of the Senate to exercise that authority under section 18 (XIV). Consequently, statutes 207 and 209 had been validly issued. Moreover, the Court observed that, because the University functioned as a corporation with control over higher education within its jurisdiction, such authority was necessarily implied as part of its statutory powers.

In examining whether the Gujarat University Act, 1949, conferred on the University the power to make Gujarati, Hindi, or both the exclusive medium of instruction, the Court narrowed its analysis to clauses (1), (2), (7), (8), (10), (14), (27) and (28) of section 4. Clause (1) authorised 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.” The Court rejected the High Court’s view that this power was limited only to institutions established by the University and did not extend to affiliated colleges. The wording of the clause, the Court held, did not indicate such a restriction. Nevertheless, the Court agreed with the High Court that clause (1) primarily dealt with the content of the syllabus and the range of subjects, not with the language in which instruction must be delivered. The clause allowed the University to direct the subjects and courses of study it deemed appropriate, but it did not empower the University to prescribe an exclusive language of instruction.

Clause (2), which enables the University “to make such provision as would enable affiliated colleges and recognised institutions to undertake specialisation of studies,” was found to have no direct relevance to the issue of a mandatory medium of instruction. Likewise, clause (7), which permits the University “to lay down the courses of instruction for various examinations,” did not confer authority to determine an exclusive language for teaching. Clause (8), granting the University the power “to guide the teaching in colleges or recognised institutions,” was also deemed unrelated to prescribing a single medium of instruction.

The Court explained that while powers to designate branches of learning, to set courses of study, to facilitate specialised studies, or to guide teaching in affiliated or recognised institutions might implicitly include the ability to note the language ordinarily used at the time the Act was enacted, such powers did not, in the absence of an express provision or a clear implication, give the University the right to compel instruction through a single, exclusive medium. Finally, clause (10) was examined, which provides that the University shall have the power “to hold examinations and confer degrees, titles, diplomas and other academic distinctions on persons who … 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.” The Court concluded that this clause related only to the conduct of examinations and the conferral of academic honours for approved courses of study, and it did not by itself authorize the University to prescribe the use of any particular exclusive language of instruction or examination.

The Court examined clause ten, sub‑clause (a), which provides that the University may confer degrees, titles, diplomas and other academic distinctions on persons who have pursued approved courses of study in the University or an affiliated college, unless they are exempted in the manner prescribed by the Statutes, Ordinances and Regulations, and who have passed the examination prescribed by the University, or on persons who have carried on research under conditions prescribed by the Ordinances and Regulations. Counsel for the University argued that clause ten (a) gave the University authority to approve courses of study in the manner laid down by the Statutes, Ordinances and Regulations, and that section eighteen (XIV) empowered the Senate to frame Statutes specifying Gujarati or Hindi or both as the medium of instruction, thereby entrusting the University with the power to impose an exclusive medium of its choice. The Court held that this argument was based on a mis‑reading of the provision. The clause, by itself, did not empower the University to prescribe any exclusive medium of instruction or examination. The University was authorised merely to confer degrees or other academic distinctions on those who had pursued approved courses of study and had passed the prescribed examination. The provision also reserved to the University the power to confer such distinctions on persons who had not pursued the prescribed courses, provided that exemption in that regard was made by the Statutes, Ordinances or Regulations. The phrase “in the manner” prescribed by the Statutes, Ordinances or Regulations modified the expression “unless exempted therefrom” that preceded it; it did not refer to the class of persons who had pursued approved courses. Consequently, the University could confer degrees, diplomas or distinctions not only on persons who had completed the prescribed courses and passed the qualifying examination, but also on other persons who had passed the prescribed examination if the Statutes, Ordinances or Regulations granted an exemption. The Court further observed that sub‑clause (a) of clause ten did not carry with it the authority to impose an exclusive medium such as Gujarati or Hindi. While clause fourteen gave the University power, among other things, to take measures to ensure proper standards of instruction, teaching or training in affiliated colleges and recognised institutions, and clause fifteen invested the University with the power to control and co‑ordinate the activities of, and to provide financial aid to, those institutions, neither clause conferred the power to provide for an exclusive medium of instruction as claimed by the University. The Legislature had expressly dealt with the question of medium of instruction in clause twenty‑seven, and the other clauses relied upon by the University did not expressly address that topic. Therefore, it would be difficult to hold that the Legislature, while providing for the medium of instruction in clause twenty‑seven, had also intended, indirectly, to grant the University the power to prescribe an exclusive medium of instruction through the other provisions.

The provision under discussion also contemplated enabling those institutions to undertake specialised studies, to give guidance in teaching within colleges, to provide for degrees or academic distinctions, and to take measures that would ensure a proper standard of instruction, teaching or training and the proper conduct of activities. Clause 27, as it stood before being amended by Act IV of 1961, read in full: “to promote the development of the study of Gujarati and Hindi in Devanagari script and the use of Gujarati or Hindi in Devanagari 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 opening paragraph of clause 27, a power was conferred on the University to promote the development and use of Gujarati or Hindi, or both, as a medium of instruction. The language of the clause, however, is not grammatically precise. If it had been drafted strictly according to grammatical rules, it would have stated that the University was invested with the power to promote the use of Gujarati or Hindi, or both, as a medium or media of instruction and examination. The term “promote” indicates that the University was authorised merely to encourage the study of Gujarati and Hindi and to foster their use as media of instruction and examination; it does not convey an authority to mandate the exclusive use of Gujarati or Hindi as the sole medium of instruction and examination. This interpretation is reinforced by the presence of the indefinite article “a” before the phrase “medium of instruction,” which clearly suggests that Gujarati or Hindi was envisaged to be one among several possible media of instruction. Accordingly, the legislative intent was to take steps that would encourage the development of Gujarati and Hindi and their use alongside other media, rather than to impose them to the exclusion of all other languages. Moreover, if the expression “promote the use of Gujarati or Hindi as a medium of instruction and examination” were intended to mean “promote the exclusive use of Hindi or Gujarati,” a parallel reading would have to be applied to the phrase “to promote the development of Gujarati and Hindi,” thereby implying that the Legislature intended no other languages besides Gujarati and Hindi to be developed—a conclusion that is not supported by the statutory scheme. The proviso’s use of the definite article “the” in relation to English as the medium of instruction further corroborates this view. When the Legislature specified that English was to continue as the medium of instruction and examination in certain subjects, it was merely preserving the existing and accepted exclusive medium of instruction, not establishing English as the sole language in all contexts. Consequently, the statutory language indicates that the University’s power was limited to encouraging the use of Gujarati and Hindi as additional media of instruction, while English could continue as the prevailing medium for a defined period.

In this case the Court observed that the provision concerning the subjects merely continued an existing and accepted exclusive medium of instruction. It was accepted as common ground that English had been the exclusive medium of instruction at the University of Bombay and at the various affiliated colleges within the area over which Gujarat University acquired authority. By the proviso to clause twenty‑seven of section four, the subjects to be prescribed under that proviso were to retain English as the medium of instruction. Consequently, the operative part of clause twenty‑seven indicated that the Legislature intended to promote the use of Gujarati or Hindi, or both, as a medium or media of instruction, thereby showing that Gujarati or Hindi were not to become the exclusive medium but were to be adopted in addition to the already accepted medium of English for instruction and examination. At the same time, the proviso relating to the prescribed subjects specified that English alone would remain the medium for the periods specified. Clause twenty‑eight conferred on the University “the authority 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.” The Court held that this clause added powers which, although not necessarily incidental to the powers already granted by clauses one and twenty‑seven, were intended to be exercised in order to advance the object of the University. However, because clause twenty‑seven did not authorize the imposition of Gujarati or Hindi, or both, as an exclusive medium, the Court found it strained to read clause twenty‑eight – using the indefinite phrase “requisite in order to further the objects” – as conferring a power to establish such an exclusive medium.

The Court also considered the reliance placed by counsel for the University upon section eighteen paragraph one sub‑section fourteen, which was argued to bind the Senate to make provision for the use of Gujarati or Hindi in Devanagri script, or both, as a medium of instruction and examination. The Court noted that section eighteen paragraph one dealt with the powers and duties of the Senate. The Court observed that the language used in the various clauses was, on its face, not susceptible to an interpretation that each clause authorised the Senate to exercise the University’s powers and simultaneously imposed a corresponding duty. Assuming, for the sake of argument, that the power granted to the Senate also carried a duty to exercise that power, the Court concluded that such a duty did not require the exclusive use of Gujarati or Hindi, or both, for instruction and examination. The use of the indefinite article “a” in this provision clearly indicated that Gujarati or Hindi, or both, were to be selected from among several possible media of instruction and examination, not that they were to be the sole medium.

The Court observed that the language provision under discussion was intended only as one of several possible media of instruction and examination, and not as the exclusive medium. The Court further noted that no other clause within sections 18, 20 or 22, which deal with the powers and duties of the Senate, the Syndicate and the Academic Council, was cited, and that it could find no provision that granted the University or any of its bodies—such as the Senate, the Syndicate or the Academic Council—the authority to mandate Gujarati or Hindi as the sole medium of instruction.

In its reasoning, the Court explained that a corporate body like a university ordinarily possesses an implied power to pursue its objects. Accordingly, the power to designate a medium of instruction for affiliated or constituent colleges may be presumed to reside in the university. However, the Court stressed that such a power to indicate a medium does not, in the absence of an express statutory provision, include the authority to impose an exclusive medium of instruction upon the affiliated institutions.

The Court recorded that counsel for the University relied upon a letter dated 7 August 1949, reproduced in the University Commission’s report, which was addressed by the Government of India to various universities and provincial governments. The letter conveyed the Government’s view that, in the interest of national education, universities and provincial authorities should promptly act on certain recommendations. The letter listed, among other items, Item I, which requested that universities and provincial governments take steps to (a) replace English as the medium of instruction at the university level by a gradual process over the next five years, and (b) adopt the language of the state, province or region as the medium of instruction and examination. Item II requested that universities provide a compulsory test in the Federal language during the first degree course without prejudice to the degree examination results, and also provide facilities for teaching the Federal language to any student who wishes to take it as an optional subject. Items III through VII were noted but not reproduced in detail.

The Court observed that although the Government of India may have, in 1948, intended that English be gradually replaced by the language of the state, province or region as the medium of instruction, such intent could not be used to interpret the Act in a way that contradicted the clear intention of the legislature as expressed in the statutory language. The Court pointed out that the Government’s recommendation had been largely ignored by a great many universities. Finally, the Court referred to the Statement of Objects and Reasons of the Gujarat University Act, which indicated that, as recommended by the Committee, there was a proposal to empower the university to adopt Gujarati or the national language as the medium of instruction, subject to the conditions set out in the Act.

In this case the Court observed that the statute permitted English to be used as the medium of instruction for the first ten years only in subjects where such a medium was considered necessary, and that where the Legislature had made no provision to that effect a mere proposal contained in the Statement of Objects and Reasons could not be taken as evidence that the proposal had been carried out. The Court explained that while Statements of Objects and Reasons may provide valuable historical material for understanding the motives of the Legislature, they must be disregarded when interpreting the operative provisions of the statute. Accordingly the Court agreed with the High Court that clause 27 and no other clause of section 4 conferred on the University any power to make Gujarati or Hindi, either singly or jointly, the exclusive medium of instruction or examination.

The Court noted that the proviso to clause 27 had been amended by Act 4 of 1961 and that the new proviso read as follows: “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; (ii) of instruction and examination for such period as may from time to time be prescribed by the Statutes until the end of May 1968 in respect of post‑graduate 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 examinations held with English as the medium of examination in the same subjects: Provided further that nothing in this clause shall affect the use of English as the medium of instruction and examination in respect of English as a subject.”

The Court further observed that it was common ground that, because clause 27 did not confer a power to make Gujarati or Hindi the exclusive medium, the proviso did not independently create such a power for the University. The proviso merely extended the period during which English could continue to be used as the medium of instruction in certain branches beyond the original ten‑year limitation. However, the Court said, the proviso did have some relevance to the interpretation of clause 27, because the second part of the proviso used the definite article “the” before the phrase “medium of instruction and examination” when referring to English, thereby emphasizing that English was the specific medium intended. The Court concluded that, in the absence of any express legislative authority, the University and its Senate could not impose Gujarati or Hindi, either singly or jointly, as the exclusive medium of instruction or examination.

The Court explained that the use of the definite article “the” in the legislative language signified the intention that English should be the sole medium of instruction, whereas the use of the indefinite article “a” in other provisions indicated that the medium would be one among several options. Consequently, neither the original Act nor the amendment enacted by Act 4 of 1961 conferred any authority on the University to designate Gujarati, Hindi, or both as exclusive mediums of instruction and examination. Because the University did not possess such power, its governing body, the Senate, could not exercise that authority either. The Senate, acting on behalf of the University, may make statutes only within the limits of the powers granted to the University by the Act. The Court further observed that, although the question of whether the State Government could legislate to impose Gujarati or Hindi as exclusive mediums in universities might appear academic, it was necessary to address it because the High Court had declared certain provisions of Act 4 of 1961 regarding the medium of instruction to be beyond the State Legislature’s competence. Counsel for the appellants had invited the Court to express its view for the guidance of any future legislation that might be undertaken.

The Court noted that the power of the Bombay Provincial Legislature to enact the Gujarat University Act derived from Entry No 17 of the Government of India Act 1935, which placed education—including universities not listed in paragraph 13 of List I—within List II of the Seventh Schedule. List I, item 13 specifically included Banaras Hindu University and Aligarh Muslim University. Therefore, except where expressly limited by Item 17 of List II read with Item 13 of List I, a Provincial Legislature possessed full authority to legislate on all matters relating to education, including university‑level education. The term “education” was understood to have a broad meaning, encompassing all aspects of imparting and regulating education, so the Provincial Legislature could have enacted laws prescribing either a federal or a regional language as the exclusive medium for subjects chosen by the University. The Court observed that if Section 4(27) had vested in the University the power to select a federal or regional language as the exclusive medium of instruction, the validity of the challenged statutes numbered 207, 208, and 209 could not have been questioned. However, the Legislature did not confer such power on the University under Section 4(27). By virtue of the Constitution, a significant alteration had occurred in the distribution of legislative powers concerning education between the Union Parliament and the State Legislatures. Item No 11 of List II of the Seventh Schedule to the Constitution granted State Legislatures authority to legislate on education, including universities, subject to the provisions of Items 63, 64, 65, and 66 of List I and Item 25 of List III. Item 63 of List I, which modifies Item 13 of List I of the 1935 Act, reserves to Parliament exclusive power to legislate concerning institutions such as Banaras Hindu University, Aligarh Muslim University, Delhi University, and other institutions declared by Parliament to be of national importance. Item 64 vests Parliament with power over institutions for scientific or technical education financed wholly or partially by the Government of India and declared by Parliament to be of national importance, while Item 65 confers on Parliament legislative authority over Union agencies and institutions.

In this case, the Court observed that item No. 11 of List II of the Seventh Schedule grants the State Legislature authority to enact legislation concerning “education including Universities,” but only subject to the provisions of items 63, 64, 65 and 66 of List I and item 25 of List III. The Court explained that item 63 of List I, which modifies the earlier item 13 of List I of the Government of India Act, 1935, reserves for Parliament the exclusive power to legislate with respect to the institutions that existed at the commencement of the Constitution as Banaras Hindu University, Aligarh Muslim University and Delhi University, as well as any other institution that Parliament may declare by law to be of national importance. Item 64, according to the Court, confers upon Parliament the authority to legislate concerning “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.” Under item 65, Parliament alone may legislate for “Union agencies and institutions for (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime.” By means of item 66, Parliament is empowered to legislate on “co‑ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” The Court further noted that item 25 of the Concurrent List authorises both the Union Parliament and the State Legislatures to enact laws regarding “vocational and technical training of labour.” It was held that the broad power once vested in the Provincial Legislature to legislate on higher, scientific and technical education and vocational and technical training of labour, as provided under the Government of India Act, is now circumscribed by the Constitution to the five subjects enumerated in items 63 to 66 of List I and item 25 of List III, which are mentioned in item 11 of List II. Consequently, the Court affirmed that items 63 to 66 of List I are carved out of the general subject of education, and for those specific items the legislative competence rests exclusively with Parliament. The Court stressed that the phrase “subject to” in item 11 of List II unmistakably signals that the State Legislatures cannot legislate on matters excluded by the referenced items. Referring to the decision in Hingir‑Rampur Coal Company v. State of Orissa, the Court reiterated that the expression “subject to” operates to withdraw the legislative power from the State Legislature to the extent that the restriction applies. Accordingly, the Court concluded that the State’s authority to legislate on education, including Universities, must be deemed restricted to the degree that Parliament has been entrusted with the same power, irrespective of whether Parliament has actually exercised that authority. If a subject of legislation falls within the excluded categories, the power to legislate rests with the Union Parliament.

In this case, the Court explained that when a matter fell within items sixty‑three to sixty‑six of List I, even if it otherwise lay inside the broader category of “education including universities,” the power to make law on that matter belonged to Parliament. The Court rejected the argument advanced by counsel for the University and counsel for the State of Gujarat that any law prescribing the language or media in which instruction was delivered in higher‑education institutions and other institutions always fell within item eleven of List II. The Court held that this submission had no legal effect. The Court considered a hypothetical interpretation of item eleven of List II that would restrict the authority to legislate on the medium of instruction solely to State legislatures and would exclude it from the “excluded field,” even for institutions listed in items sixty‑three to sixty‑five. Under such a view, the power to determine the medium of instruction would rest with the State, while legislation on other aspects of the excluded subjects would lie with the Union Parliament. The Court found this result startling because it would mean that even national institutions or universities of national importance would be subject to State control over the medium of instruction, despite the State having no other legislative competence over those institutions. Consequently, the Court stressed that item eleven of List II and item sixty‑six of List I had to be read together in a harmonious manner. Although the two entries overlapped, the Court held that to the extent of the overlap, the authority conferred by item sixty‑six of List I prevailed over the State’s power under item eleven of List II. The Court observed that the excluded heads primarily concerned education in institutions of national or special importance, as well as higher‑education institutions that included research, science, technology and vocational training. The Court noted that primary and secondary education were exclusively within State competence under item eleven of List II, so the power to decide the medium of instruction for primary or secondary schools naturally rested with State legislatures. However, the Court clarified that “medium of instruction” was not a separate legislative head; it fell within the State’s education power unless a necessary intention removed it. Considering the breadth of items sixty‑three to sixty‑five, the Court concluded that the power to legislate on the medium of instruction for those categories must be deemed to rest with the Union. Likewise, where the medium of instruction directly affected the coordination and standard‑setting functions for higher‑education, research or scientific and technical institutions, item sixty‑six of List I also placed that power in the Union’s domain. Finally, the Court affirmed that the State retained the authority to prescribe syllabi and courses of study for institutions named in entry sixty‑six, provided those institutions did not fall within items sixty‑three to sixty‑five.

In this case, the Court observed that when a State Legislature prescribes the syllabus and the courses of study, it also possesses the authority to specify the language in which instruction is to be delivered. However, the Court noted that the Parliament of India retains a superior legislative power to ensure that the prescribed syllabus, the courses of study, and the chosen medium of instruction do not undermine the quality of education or make the coordination of educational standards across the country, whether on an All‑India basis or any other basis, impossible or unduly difficult. The Court therefore explained that, although the powers of the Union and the State are placed in the Exclusive Lists of the Constitution, some degree of overlap between the two is inevitable. The Court further stated that no single general test could be devised that would resolve every possible dispute arising under this head of power. On the one hand, it is clearly within the competence of a State Legislature to determine syllabi, courses of study, and the medium or media of instruction. On the other hand, the Union also has the authority to legislate concerning the medium of instruction in order to secure coordination and the determination of standards, which the Court described as the maintenance or improvement of those standards. The Court emphasized that the mere fact that Parliament has not exercised its full legislative competence, or has refrained from legislating, does not confer upon the State the power to legislate on a matter that the Constitution has assigned to the Union. Nevertheless, the Court warned that even within their respective permitted fields, the two levels of government might each enact statutes that conflict with one another. In such situations, the Court explained, questions of repugnancy and paramountcy could arise and would have to be resolved by applying the doctrine of pith and substance to the impugned enactment. The Court held that the validity of State legislation relating to university education, as well as to technical and scientific institutions that do not fall under Entry 64 of List I, must be assessed by examining whether the State law intrudes upon the field reserved for the Union under Entry 66. In other words, the Court said that the assessment of a State law’s validity depends on whether it adversely affects coordination and determination of standards, and not on whether there exists any specific Union legislation aimed at achieving that purpose. The Court further observed that, if Parliament has enacted legislation concerning coordination and determination of standards, that legislation would prevail over any inconsistent State law by virtue of the first part of Article 254(1). Even in the absence of such Union legislation, because the relevant entries are in the exclusive lists, any State law that encroaches upon the Union’s field would still be invalid. The Court also recorded the submission of counsel for the University, who argued that the power conferred by Item 66 of List I is limited to coordination and determination of standards—that is, merely to evaluate and fix educational standards—and that consequently Parliament may legislate only for the purpose of evaluating and fixing those standards in the institutions referred to in Item 66.

In this case the parties argued about the scope of item 66 of List I. During the hearing one side, though reluctantly, admitted that the Union Parliament could pass legislation to remove differences that had arisen because a regional language had been used as the medium of instruction and that such differences had caused a decline in standards. The admission further suggested that the Parliament might be able to enact a law for equalising standards in higher education. The Court, however, stated that it could not accept this position for several reasons. First, the Court observed that item 66 is a legislative head and that, unless the wording of the entry is expressly or necessarily qualified by additional words, the expression should not be given a narrow or restricted meaning. The Court explained that a power to legislate on a subject normally extends to all ancillary or subsidiary matters that can fairly be said to fall within that subject. Consequently, the Court warned against limiting the breadth of the provision without a clear textual basis.

The Court then turned to the meaning of the word “co‑ordination” as used in the Constitution. It held that nothing in item 66 or elsewhere establishes that “co‑ordination” should be read only as “evaluation”. Rather, the Court said that the ordinary sense of co‑ordination is to harmonise or bring various elements into a proper relationship so that they act in a common pattern. Accordingly, the power to co‑ordinate is not merely a power to evaluate standards; it is a power to harmonise and to secure a relationship that enables concerted action. The Court further observed that the power conferred by item 66 of List I is not conditioned on the existence of a state of emergency or on the presence of unequal standards. Paragraph 27 of the judgment noted that the entry contains no limitation excluding the power to legislate for the prevention or removal of disparities in standards. The Court emphasized that the power is not dependent on a pre‑existing condition of disparity and that it is not confined to evaluation alone. By the express intent of the Constitution, the power includes the necessary authority to prevent circumstances that would make co‑ordination impossible or difficult. The Court described this power as absolute and unconditional, requiring full effect according to its plain and expressed intention. The Court acknowledged that “medium of instruction” is not a separate entry in the legislative lists, but it falls within item 11 as a necessary incident of the power to legislate on education and also within items 63 to 66. Because it is a necessary incident of the powers under item 66 of List I, the Court held that it must be deemed included in that item and therefore excluded from item 11 of List II. Finally, the Court observed that the impact of state legislation on the medium of instruction on the co‑ordination of higher education cannot be answered categorically without a concrete challenge to a particular statute.

In the Court’s view, the significance of the medium of instruction differs from one subject to another; while in some areas it may be of secondary importance, in others it is essential. Particularly in scientific, technical, or professional courses such as law, engineering, and medicine, the presence of adequate textbooks, journals and other literature, the availability of competent teachers, and the ability of students to comprehend instruction in the language used all have a decisive impact on the effectiveness of teaching and on the standards ultimately achieved. When any of these elements are lacking—when suitable textbooks are not available, when teachers proficient in the chosen language are absent, or when students cannot grasp the material presented in that language—educational standards inevitably decline. Consequently, any legislation that seeks to coordinate educational standards must necessarily address the issue of the medium of instruction.

The Court observed that if a law were to impose an exclusive medium of instruction in a regional language or in Hindi, and if, because of the absence of appropriate textbooks, journals, qualified teachers, and the students’ incapacity to understand the subject matter in that language, the result would likely be a lowering of standards, then such legislation would fall within the ambit of item 66 of List I. To that extent, it would be excluded from the scope of the power granted under item 11 of List II.

The observations were made by the Court on abstract considerations presented before it; no specific statute, other than the one that will be mentioned subsequently, was the subject of a direct challenge. The State and the University invited the Court to express an opinion on whether legislation that the State might enact to rectify the deficiency identified in the interpretation of section 4(27) would be within the competence of the State Legislature. The precise form such legislation might take is left to the State’s discretion. The Court, however, addressed the broader issue of the true effect of item 66 in List I in relation to item 11 in List II, as both items concern the respective powers of Parliament and the State Legislature to enact laws concerning the medium of instruction.

The Court could not concur with the High Court’s conclusion that Act 4 of 1961, insofar as it amended the proviso to section 4(27), was invalid because it exceeded the State Legislature’s competence. By amending that proviso, the Legislature sought to continue the use of English as the medium of instruction for subjects selected by the Senate beyond the ten‑year period prescribed by the Gujarat University Act, 1949.

At the time the parent Act was originally enacted, English served as the traditional medium of instruction for every subject taught at the university level. The initial proviso authorized the university to continue using English as the exclusive medium of instruction for those subjects that the Senate might select. The later amendment to that proviso was unanimously accepted as not granting the university any authority to adopt a medium of instruction other than the pre‑existing one. It was evident that teaching through a single, common language— which, prior to the Act, was the sole language of instruction throughout the country— could not by itself diminish academic standards, nor could it affect the coordination and determination of those standards. By prolonging the period during which instruction could be delivered in English for more than ten years in the subjects chosen by the university, the amendment made no attempt to infringe upon the Union’s competence under entry 66 of List I. Consequently, even if the university possessed no power to prescribe an exclusive medium, the enactment of section 38A— which imposes penalties on persons who fail to comply with directions concerning the medium of instruction— would nevertheless remain valid and would not be struck down as unconstitutional.

The court therefore affirmed the High Court’s order that declared the statutes 207 and 209 of the university, to the extent that they sought to impose “Gujarati or Hindi or both as exclusive medium or media” of instruction, along with the circulars issued to enforce those statutes, as valid. The court expressly refrained from expressing any view on the alleged violation of the petitioner’s fundamental rights under Articles 29(1) and 30(1) of the Constitution. Accordingly, the court set aside the High Court’s declaration that the proviso to section 4 clause 27 and section 38A were invalid, while reserving the right to interpret those provisions and to determine the extent of the State Legislature’s authority to designate Gujarati, Hindi, or both as exclusive media of instruction in the university’s affiliated and constituent colleges. The appellants were ordered to bear the costs of the respondents in both appeals. The judgment further identified two principal questions for consideration: first, whether the State Legislature possessed constitutional competence to enact a law prescribing an exclusive medium of instruction in the affiliated colleges; and second, whether, under the Gujarat University Act as amended by Act IV of 1961, the university itself held the power to prescribe an exclusive medium of instruction. The initial question was elaborated to ask if the State Legislature could, under entry 11 of List II of the Seventh Schedule, validly enact a law that mandates an exclusive medium of instruction for the university’s affiliated colleges, essentially inquiring whether a State law may enable a university to prohibit any medium of instruction other than those it prescribes.

The question before the Court was whether a law made by the State could authorise a university to forbid, either expressly or by necessary implication, any language of instruction that was not among those that the university itself prescribed. Counsel appearing for the University of Gujarat and for the State of Gujarat argued that the State Legislature possessed such authority under entry eleven of List II of the Seventh Schedule to the Constitution. Counsel for the respondents, while admitting that the State could empower a university to determine a medium of instruction, contended more broadly that a State enactment which bars the use of a language such as English—traditionally the sole medium of instruction in the nation’s universities—and that mandates the use of a regional language either alone or together with other Indian languages, would directly infringe entry sixty‑six of List I of the Seventh Schedule. According to the respondents, such a restriction would make the fixation of standards and coordination on an all‑India basis extremely difficult, if not impossible. Before addressing how entry sixty‑six of List I might affect entry eleven of List II, the Court considered the relevant principles of statutory construction. The respondents’ counsel maintained that the doctrine of pith and substance was inapplicable where one constitutional entry is made subject to another, arguing that if a provision falls outside the scope of one entry and a field covered by another entry is carved out, there is no overlap and therefore no need to invoke the pith‑and‑substance test. To address this position, they further asserted that courts have developed a separate principle of “direct impact”, whereby a State law that has a direct impact on a Union List entry exceeds the jurisdiction of the State and must be excluded. The Court examined whether such an independent doctrine exists in decided cases or in principle. It noted that the Judicial Committee, in Prafulla Kumar v. Bank of Commerce, Khulna [A.I.R. 1947 P.C. 60, 65], had applied the pith‑and‑substance principle to determine whether the Bengal Money‑Lenders Act (1940) was beyond the power of the Provincial Legislature. The conflict in that case involved items twenty‑eight and thirty‑eight of List I of the Seventh Schedule to the Government of India Act, 1935—relating to promissory notes and banking—and item twenty‑seven of List II, concerning money‑lending. The Judicial Committee held that the true nature, or pith and substance, of the Act was money‑lending; consequently, it fell under item twenty‑seven of List II and was not invalidated simply because it incidentally touched matters reserved for the Federal Legislature, namely promissory notes and banking. The report at page 65 contains an instructive remark stating, “But the overlapping of subject‑matter is not avoided by substituting three lists for two,” highlighting the complexity of jurisdictional overlap and the necessity of examining the substantive character of legislation when resolving such conflicts.

In this passage the Court observed that even arranging a hierarchy of jurisdictions does not eliminate overlap of subjects. When subjects overlap, the proper inquiry is to determine what the pith and substance of the impugned enactment is, and in which constitutional list its true nature and character belong. The Court then recorded the words of the Lordships: “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 but promissory notes or banking?” The passage makes clear that the degree to which a law created under an entry in one List intrudes into the field of another List is not governed by a separate doctrine. Rather, such degree of intrusion is merely a factor to be considered when ascertaining the pith and substance of the challenged legislation. This principle was endorsed by this Court in The State of Bombay v. F. N. Balsara, where the constitutional validity of the Bombay Prohibition Act, 1949, was examined. The question before the Court was whether the Act fell under entry thirty‑one of List II of the Seventh Schedule to the Government of India Act, 1935, concerning intoxicating liquors, or under entry nineteen of List I, which deals with import and export across the customs frontier and is a Dominion subject. The Court held that the true pith and substance of the Act was the regulation of intoxicating liquors, thereby falling within the former entry, even though the Act incidentally encroached upon the Dominion field. Arguments were advanced that prohibiting purchase, use, transport and sale of liquor would affect import, but those arguments were rejected because the incidental encroachment did not alter the genuine nature of the legislation. The Court later addressed a similar issue in A. S. Krishna v. The State of Madras, concerning the Madras Prohibition Act. There the contention was that certain provisions of the Act conflicted with existing Indian statutes, namely the Indian Evidence Act of 1872 and the Criminal Procedure Code of 1898, and the argument was framed within the doctrine of pith and substance.

In the matter before the Court, an argument was put forward that the impact of the earlier legislation on the later statute rendered the latter invalid. The Court examined this contention and rejected it, stating that when a law, in its substance, addresses a matter that falls within the legislative competence of the maker, the law must be considered intra vires even if it incidentally touches upon subjects that lie outside that competence. The Court explained that the degree of encroachment on matters beyond the legislature’s authority may be relevant to determining whether the law is colourable—that is, whether the legislature, while ostensibly legislating on a permissible topic, is in reality attempting to legislate on a matter beyond its power. However, the Court emphasized that if the law is not colourable, the mere fact that it incidentally encroaches on a prohibited area does not affect the law’s validity with respect to that area.

The judgment went on to note that the separate doctrine of “direct impact” had been recognised in the authority of Union Colliery Company of British Columbia, Ltd. v. Bryden. In that case, the issue concerned section 4 of the British Columbia Coal Mines Regulation Act, 1890, which prohibited full‑age Chinese persons from working in underground coal mines. The question was whether this provincial provision was ultra vires because the subject of “naturalisation and aliens” fell within the exclusive authority of the Dominion Parliament under section 91, sub‑section 25 of the British North America Act, 1867. After examining the material factors and construing the relevant provisions, the Judicial Committee observed that the central feature of the enactment was that it applied solely to Chinese individuals who were aliens or naturalised subjects, establishing a rule that these persons could not be employed in underground coal mines within the province.

The Committee then affirmed that, by virtue of section 91, sub‑section 25, the Dominion legislature possessed exclusive authority over matters directly concerning the rights, privileges and disabilities of the class of Chinese residents in the Canadian provinces. Consequently, the Committee held that the pith and substance of section 4 of the Coal Mines Regulation Act was to create a statutory prohibition affecting aliens or naturalised subjects, thereby intruding upon the exclusive legislative domain of the Parliament of Canada.

This passage demonstrates that the Judicial Committee concluded, on a pith‑and‑substance basis, that the impugned legislation affected the rights and privileges of Chinese individuals—a subject reserved for the Parliament of Canada. The present judgment merely restates the established principle of pith and substance and does not introduce any new doctrine of “direct impact” beyond the existing framework.

In the case of Bank of Toronto v. Lambe [[1882] 12 A.C. 575, 587.] the Quebec Act was contested on two separate grounds. The first ground asserted that the tax imposed by the Act did not constitute “taxation within the Province,” while the second ground claimed that the tax was not a “direct tax.” The Judicial Committee examined these arguments and concluded that the Act fell within the legislative competence of the Province. While delivering its opinion, the Committee observed that “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 Committee rejected the notion of anticipatory encroachment, holding that the provincial legislation was valid despite any potential for future abuse.

The same principles were later considered and distinguished in Attorney‑General for Alberta v. Attorney‑General for Canada [[1939] A.C. 117, 130, 133.]. In that matter the Province of Alberta enacted legislation dealing with “the taxation of Banks.” The Act imposed an annual tax on every corporation or joint‑stock company, other than the Bank of Canada, that was incorporated for the purpose of conducting banking or savings business in the Province. The tax comprised (a) one‑half per cent on the paid‑up capital and (b) one per cent on the reserve fund and undivided profits, in addition to any other taxes payable under existing statutes. The Board of Appeal held that this taxation was not, in any true sense, “taxation in order to the raising of a revenue for Provincial purposes” within the exclusive competence of the Provincial Legislature under s. 92(2) of the British North America Act. Instead, the Board found that the tax was a colourable device intended to obstruct the operation within the Province of banking institutions that had been created and empowered by the sole authority of the Parliament of the Dominion under s. 91 of the British North America Act. Accordingly, the pith and substance of the statute was not direct taxation or taxation within the Province as contemplated by s. 92, but rather fell within the federal jurisdiction over “banking.” The Board’s reasoning, set out on page 133, quoted the judgment: “Their Lordships agree with the opinion expressed by Kerwin 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.’”

The Court explained that the constitutional validity of the Bill was upheld because the Bill was regarded as a colourable piece of legislation dealing with a subject that, in substance, fell within the Dominion field. In reaching this conclusion, the Judicial Committee set out a series of guidelines intended to help determine the true character of any legislation. Their Lordships began their discussion by stating that it is well established that when a particular subject‑matter falls within any of the classes of subjects enumerated in section 91, it cannot be treated as if it were covered by any of the subjects listed in section 92. To decide whether a given subject‑matter belongs to one class or the other, the Committee laid down three steps of guidance. First, it is necessary to compare the two complete lists of categories so as to ascertain, on a fair and prima facie basis, whether the legislation in question falls within section 91 rather than section 92. Second, if difficulty remains, the next step is to examine the effect of the legislation. Third, the Court must consider the object or purpose of the Act in question. The Committee made clear that it did not introduce any new principle of “direct impact” beyond the established doctrine of pith and substance. Rather, the substantial and crippling effect of an impugned law on a Dominion subject was taken as an important indication that the law was colourable. The discussion therefore rejects the suggestion that, apart from the doctrine of pith and substance, the courts have recognized an independent principle of “direct impact”. The Court also rejected the argument advanced by counsel that the doctrine of pith and substance does not apply when one entry in a constitutional list is expressly made subject to another entry in a different list. In such circumstances, the only consequence is that a field of legislation is carved out of the scope of the former entry and placed within the latter entry; this fact does not affect the applicability of the doctrine. The same principle of construction applies whether two entries are carved out of a single subject or concern two distinct subjects: the Court must determine under which entry the impugned law falls. The doctrine of pith and substance, as explained, means that if, upon examination, a statute is found to be, in substance, a law on a matter assigned to the legislature, it must be upheld in its entirety even if it incidentally touches matters beyond its competence. This principle is illustrated in cases such as The State of Bombay v. F. N. Balsara [1951] S.C.R. 682 and A. S. Krishna v. The State of Madras [1957] S.C.R. 399, 406. Ultimately, the true character of the legislation is the decisive criterion for determining its validity.

The incidental encroachment of the legislation upon other items is not considered material. Therefore, if it is established that the challenged legislation falls squarely within a particular entry, any incidental intrusion into another entry—whether that other entry was carved out of the first or exists independently—does not diminish the validity of the legislation within the scope of the first entry. To summarize, when a question arises concerning the entry under which a challenged legislation falls, the Court must examine the scope, effect, and substantive character—the pith and substance—of the legislation. Decided cases provide several criteria for determining this scope. These include comparing the conflicting entries, assessing the effect of the legislation, examining its object and purpose, looking at its legislative history, evaluating whether it is colourable, and other similar considerations. Any one or more of these factors may serve as a guide to reach the core of the legislation. However, no precedent holds that even when the pith and substance of a statute clearly lies within the ambit of a specific entry, the statute should be invalidated merely on speculative or anticipatory grounds because it might later conflict with a law enacted by a coordinate legislature under a different entry. If a State law substantially erodes or markedly diminishes the field assigned to the Central government, such a heavy and devastating impact may constitute a basis for finding that the State law is a colourable exercise of power, and that, in its pith and substance, it actually falls within a Union entry rather than a State entry. Consequently, the existing case law does not support the creation of any new doctrine beyond the established principle of pith and substance. In this context, it is helpful to recall several well‑settled rules of interpretation that were originally laid down by the Federal Court and later endorsed by this Court when construing the entries. In Calcutta Gas Company v. The State of West Bengal, 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

In examining the two relevant entries, the Court considered entry 11 of List II and entry 66 of List I. Entry 11 of List II states: “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 reads: “Co‑ordination and determination of standards in institutions for higher education or research and scientific and technological institutions.” The Court explained that it would not address the issue of medium of instruction as it relates to the portion that has been expressly set aside in entries 63, 64 and 65 of List I. The Court observed that the entire field of education, inclusive of universities and subject only to the exceptions listed in entry 11 of List II, is placed under the authority of the State Legislature. The Court emphasized that education cannot exist without a medium or media of instruction; instruction necessarily occurs through a language or method of teaching. To separate the concept of education from its medium would, in the Court’s view, destroy the very idea of education. The Court found it unimaginable that the framers of the Constitution would allocate the matter of medium of instruction to Parliament while leaving the rest of education to the States, likening such a separation to cutting away the hand that feeds the mouth. The Court noted that no similar division was made for elementary and secondary education, and that medium of instruction is also covered by entry 63 of List I, which deals with specified universities. Given these acknowledgments, the Court asked why entry 11 of List II would exclude medium of instruction from university education; it found no justification. Turning to entry 66 of List I, the Court observed that its wording does not, on its face, incorporate the subject of medium of instruction. Although the language is broad, it remains clear. The Court examined the two key terms “co‑ordination” and “determination of standards.” The Court noted that the argument presented by counsel for the appellant—that the composite phrase means fixing standards merely to correlate and equalise them when they differ—was plausible but overly narrow, and if accepted would render Parliament a passive observer. The Court held that the interpretation must be purposive and effective. The position advanced by counsel for the respondents, that Parliament, under certain circumstances, could pass a law that supplants a State‑prescribed medium of instruction with one of its own choosing, was deemed to cut too deeply into the State’s domain. Such an intrusion could be justified only if the entry in List I were clear and unambiguous. The Court defined “to determine” as to settle, decide or fix, and explained that “co‑ordination” means placing things in the same order, rank or division, positioning them properly relative to each other and to the system of which they are parts, and acting together to produce a particular result. The Court concluded that this understanding permits Parliament to enact legislation for the purpose of fixing standards in higher‑education institutions to achieve harmonious coordination and improvement of higher education, without necessarily involving the medium of instruction.

In this discussion, the Court explained that fixing standards in institutions of higher education is intended to achieve harmonious coordination among those institutions, with the ultimate purpose of improving higher education. The Court observed that the phrase “co‑ordination and determination of standards” is a composite expression, and that establishing standards for the sake of coordination does not automatically involve prescribing a particular medium of instruction. To illustrate this point, the Court noted that effective education requires a range of elements such as textbooks, teachers, students, equipment, buildings, financing and an appropriate medium of instruction, all of which are subsumed under the term “education.” The Court warned that it would be unreasonable to treat all of these elements as falling within the heading “co‑ordination and determination of standards,” because doing so would strip the entry “education” of its substantive content. Consequently, the Court said that the principle of harmonious construction must be applied to draw a clear demarcation, and that the key to drawing this line is found in the word “co‑ordination.” Accordingly, the Court concluded that the State may enact legislation to provide education and to maintain its standards, while Parliament may intervene only to improve those standards for the purpose of coordination.

The Court further observed that the standards of some universities may decline because of deficiencies in any of the aforementioned factors. In such circumstances, Parliament may legislate to provide facilities relating to any or all of those factors, thereby enabling lagging universities to catch up with more advanced institutions. Parliament may also enact laws aimed at raising the overall standards of all universities. Such legislation may set general standards concerning the relevant matters and may supply the necessary financial and other assistance to help universities attain the prescribed level. Additionally, Parliament may establish a mechanism to enrich the language chosen as the medium of instruction by a particular university, so that it becomes a suitable vehicle for higher education as well as for technological and scientific study. The Court held that if the pith and substance of a law is “co‑ordination and determination of standards,” an incidental impact on the medium of instruction for the purpose of enrichment may be permissible. However, the Court stressed that coordination cannot be used as a pretext to displace the medium of instruction, because such displacement would constitute a direct, rather than incidental, intrusion into the subject of education. The entry does not empower any law to permit direct interference by an external body in the educational process of a university, but merely allows the prescription of standards and the provision of ancillary support to achieve those standards. In summary, the Court described Parliament’s role as that of a guardian angel, empowered to create a framework that watches, advises, and supplies financial and other assistance so that universities can fulfil their designated functions. The University Commission Act was enacted to give effect to this role.

In this analysis, the Court observed that when the Constitution’s scheme is understood, there is no conceivable conflict between the two constitutional entries under consideration. The Constitution was designed to bar Parliament from legislating on the medium of instruction. At the time the Constitution was adopted, many well‑developed regional languages were already listed in the Eighth Schedule. English, however, served as the language of instruction at all levels of education and also functioned as the official language of the administration. It was widely accepted that English should eventually be replaced, but the replacement was intended to occur gradually. Article 343 declares that the official language of the Union shall be Hindi in Devanagari script, while permitting the continued use of English for official purposes for a limited period. The Constitution, however, does not prescribe a gradual timetable for the language of education, apparently leaving the matter to the wisdom of the State legislatures and education experts to devise a smooth transition programme. The drafters’ insistence on replacing English by Hindi for official purposes, the recognition of regional languages, the omission of English from the Eighth Schedule, and the directive in Article 351 that Hindi should be enriched by assimilating words from the languages listed in the Eighth Schedule and from Hindustani together indicate that the framers were confident that the regional languages were sufficiently rich, or at least resilient, to serve as vehicles of instruction at all levels of education. Consequently, the Constitution does not contain an explicit provision to replace English by regional languages in staged phases. It may therefore be concluded that the framers expected the specified regional languages to be appropriate media of instruction, although it can also be acknowledged that these languages might need to be further enriched to meet the requirements of higher education. In this context, Entry 66 of List I must be interpreted on the assumption that regional languages will be the media of instruction in all universities, and if that assumption is adopted, a law that prescribes standards for coordination cannot override the chosen medium of instruction.

The Court then examined the matter from another perspective. It noted that counsel for the respondents argued that English is the established medium of instruction throughout the country, and that if other universities were to follow the example set by Gujarat University in adopting a regional language, there would be a sharp decline in the standards of higher education. They further submitted that accepting the appellant’s argument would leave Parliament as a powerless observer to a looming educational disaster. In effect, under the appellant’s construction, the substantial portion of the field of coordination would be eliminated. This line of reasoning was presented by the learned counsel for the respondents, albeit in different wording. The Court characterised this assertion as an attempt to place the substance of a State law that prohibits the use of English within the constitutional entry on coordination rather than education. The Court found this argument attractive in appearance but lacking any legal or factual foundation.

The Court observed that the contention that the impugned legislation fell under the heading “education” but should be treated as falling under the heading “co‑ordination” was attractive in appearance yet lacked any legal or factual foundation. It noted that if the true substance of the law was indeed covered by the entry “education”, then there was no question of deleting the Union’s entry at all, and therefore the argument was essentially a matter of policy rather than a correct legal construction. The Court explained that the Constituent Assembly had deliberately chosen not to assign the matter of the medium of instruction to Parliament; instead it trusted the wisdom of the State legislatures to rise to the occasion and to enact appropriate statutes. Factually, the Court pointed out, Gujarat had introduced Gujarati as the exclusive medium of instruction through a rapid process, whereas every other State was proceeding at a considerably slower pace. In the Court’s view, this factual circumstance did not affect the constitutional construction of the relevant provisions, and there was no imminent danger that the remaining States would altogether abandon English as an additional medium of instruction. The Court expressed a preference for accepting the ordinary meaning of the word “education” rather than extending the expression “co‑ordination” to address a hypothetical emergency in which all States, following the example of one State, might collectively reject English. It further described the picture painted by the learned counsel as exaggerated. That picture presumed that without English as one of the media of instruction, the quality of education would inevitably decline and coordination among institutions would become impossible. The Court noted that the framers of the Constitution did not share this view; they did not incorporate a provision mandating the continued use of English in universities. Moreover, the Court held that standards could still be maintained, albeit with some difficulty and expense, by delivering education through other languages provided those languages were suitably enriched. The Court placed confidence in State legislatures and especially in universities to make every reasonable effort to preserve academic standards. It rejected the assumption that State legislatures would act against the best interests of university education while Parliament could always be trusted to act in its own interest. All legislative bodies, the Court observed, are elected on the basis of adult franchise, and the Court is justified in presuming that they act wisely and in the interests of the people they represent. The Court added that if a State legislature were to act precipitously by replacing English with a regional language, Parliament, exercising its own wisdom and, if empowered, could resolve the issue by replacing English with Hindi in all universities. The Court emphasized that the choice of language for instruction is a constitutional decision of institutions to achieve a particular purpose, and consequently the Court’s duty is to interpret constitutional provisions without being influenced by temporary local conditions or situations. Accordingly, the Court held that entry 11 of List II embraces the medium of instruction and that this subject is not captured by the wording of entry 66 of List I of the Seventh Schedule to the Constitution. Consequently, the State Legislature is competent to enact a law that empowers the university to

The Court considered whether the Gujarat University Act of 1949, referred to as the Act, bestowed upon the University the authority to designate a regional language as the sole medium of instruction, and, in other words, whether the University could, either expressly or by necessary implication, forbid the use of any language other than the one it prescribed for instruction. To answer this issue, the Court first set out a brief outline of the structure and purpose of the Act so that the relevant provisions could be interpreted in their proper context. Under the Act, the Chancellor, the Vice‑Chancellor, and the members of the Senate, the Syndicate and the Academic Council together constitute a corporate body named “The Gujarat University”. The University is characterised as a teaching and affiliating institution with a broad mandate to provide instruction, teaching and training across various branches of learning and courses of study; to conduct examinations and award degrees; to supervise and coordinate the activities of institutions affiliated with it; and to perform all acts and things incidental to these powers. These functions are carried out through three instrumentalities: the Senate, which acts as the legislative body; the Syndicate, which functions as the executive; and the Academic Council, which is responsible for maintaining standards in the University’s examinations. The Chancellor serves as the head of the University, while the Chancellor and the State Government retain the right to inspect the University’s affairs and issue necessary instructions. In essence, the University is a corporate entity endowed with a high degree of autonomy to promote higher education, confer degrees and other academic distinctions, and provide various privileges to its successful alumni. Having set this background, the Court examined the specific provisions of section 4 of the Act. Clause (1) of section 4 authorises the University to provide instruction, teaching and training in any branches of learning and courses of study that it deems appropriate and to make provisions for research and the dissemination of knowledge. Clause (7) enables the University to prescribe the courses of instruction for the various examinations it conducts. Clause (8) empowers the University to guide teaching in colleges or recognised institutions. Clause (10) permits the University to hold examinations and confer degrees, titles, diplomas and other academic distinctions. Clause (14) allows the University to inspect colleges and recognised institutions and to take measures that ensure proper standards of instruction, teaching or training are maintained. Clause (15) gives the University authority to control and coordinate the activities of, and to provide financial assistance to, affiliated colleges and recognised institutions. Finally, clause (28) provides that the University may do all such acts and things, whether incidental to the aforementioned powers or not, as may be necessary to fulfil its purposes. The Court therefore evaluated whether the power to prescribe an exclusive medium of instruction could be derived from any of these clauses, either expressly or by necessary implication.

The judgment explained that the university’s objects include furthering its goals and generally cultivating and promoting arts, science, other branches of learning and culture. In addition to the incidental powers expressly given by clause twenty‑eight, it is well settled that a corporation may also exercise powers that are incidental to or consequential upon those expressly conferred. The legal position was clearly articulated by Viscount Cave L.C. in Deuchar v. Gas Light and Coke Company [[1925] A.C. 691, 695.] where he placed two earlier passages side by side and observed: “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.” The judgment then added a further observation taken from Lord Selborne’s speech in Attorney‑General v. Great Eastern Ry. Co. [[1880] 5 A.C. 473, 478.], stating: “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 consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.”

Applying these principles, the Court examined whether, on a broad reading of the statutory provisions, the university possessed an implied power to prescribe an exclusive medium of instruction. The Court reasoned that once it is concluded that such a power is necessary for carrying out the purposes expressly authorized by the statute, that power cannot be said to be beyond the university’s competence. The university is required to provide instruction, teaching and training in various branches of learning and courses of study, to lay down the courses of instruction for examinations, and to guide teaching in colleges or recognized institutions. The power to prescribe a medium of instruction is therefore implicit in the power to provide instruction and to guide teaching, because instruction must be delivered through some medium. It is inconceivable to have instruction without a medium; the two are integral parts of the same process. Consequently, a university can make provisions for instruction or teaching only if it simultaneously prescribes a medium or media for that instruction. If it can allow two media, it can equally prescribe a single medium when it deems a particular language to be the most suitable for proper instruction.

In examining the historical statutes of Bombay and comparable statutes of other universities in the country, the Court observed that those universities had prescribed English as the sole medium of instruction when exercising powers similar to those at issue. The Court noted that if the fundamental authority to prescribe a medium of instruction were denied to a university, the very basis of its autonomy and usefulness under the governing Act would be severely compromised. To illustrate the potential consequences, the Court explained that a university could have as many as twenty affiliated colleges, and if the university were unable to prescribe a single medium of instruction for all of them, each college might adopt a different language as its medium. Such a situation, the Court warned, would create disorder throughout higher education. Moreover, the Court asked how a university could conduct examinations in a uniform medium without this power; it would be forced to administer examinations in every language selected by the individual colleges. Although the statute granted the university plenary authority to hold examinations and confer degrees, the Court held that, under the construction proposed by counsel for the respondents, the university would lack the power to conduct examinations in the language it chose. Counsel for the respondents also submitted that, even if the university possessed such a power, it must exercise it reasonably to accommodate the needs of the various affiliated colleges. The Court found no merit in the suggestion that the university’s exercise of the power to hold examinations in a single language could be unreasonable merely because some colleges chose to follow their own language preferences in disregard of the university’s opinion. Accordingly, the Court expressed no hesitation in concluding that the university possessed an implied authority to prescribe, for the purposes of higher education, either several media of instruction or a single exclusive medium, thereby excluding others. The Court then turned to clause (27) of the Act, which expressly provides that the university shall have the power to promote the study of Gujarati and Hindi in Devanagari script and to use Gujarati or Hindi in Devanagari script, or both, as a medium of instruction and examination, subject to the proviso that English may continue to be the medium of instruction and examination for a period that may be prescribed by the statutes, up to the end of May 1966 for the subjects and courses so prescribed. Counsel argued that because this clause expressly conferred the power to prescribe a medium of instruction, any implied power that might exist in its absence could no longer be exercised under the Act. The Court noted that the argument hinged on the interpretation of this clause and therefore required a careful reading of its language.

In the present dispute, it was contended that the authority granted to the University by clause (27) must be exercised strictly within the literal limits of that provision, and that, accordingly, the University may only introduce Gujarati or Hindi, or both, as additional languages alongside other existing media of instruction. The argument therefore asserted that the University lacks any power to designate an exclusive medium of instruction and may merely prescribe the mentioned languages as supplementary. The reasoning relied upon a grammatical distinction between the indefinite article “a” occurring in the substantive portion of the clause and the definite article “the” appearing in the proviso. The substantive part declares that the University has the power “to promote the development of the study of Gujarati and Hindi in Devanagari script and the use of Gujarati or Hindi in Devanagari script or both as a medium of instruction and examination,” whereas the proviso provides that “English may continue to be the medium of instruction and examination.” It was argued that the use of “a” in the former and “the” in the latter demonstrates that the University is not empowered to make Gujarati or Hindi the exclusive medium of instruction. The Court found no merit in this line of reasoning. Clause (27) does not exhaust the University's authority to determine the language of instruction; that broader authority is implied in clause (1) of Section 4 and in other related provisions previously identified. Clause (27) merely adds an extra power to promote the development of Gujarati or Hindi in Devanagari script and to use those languages as media of instruction and examination. This power is composite, allowing the University both to encourage the growth of the languages and to employ them as instructional media.

The distinction between “providing” a medium and “promoting” a medium is essential. To promote the development of Gujarati or Hindi means to advance their growth, which entails actions that precede the full establishment of those languages as instructional vehicles. The promotion power authorises the University to prescribe auxiliary measures that facilitate the languages’ development. For instance, Gujarati and Hindi presently lack sufficient technical vocabulary to convey scientific and technological concepts; there is a shortage of trained professors capable of teaching such subjects in these languages, and appropriate textbooks of a standard suitable for higher education are scarce. The University may therefore assist financially or otherwise to enrich the languages, making them adequate for conveying advanced ideas. It may sponsor intensive training programmes for professors and lecturers to equip them with the necessary expertise to teach in Gujarati or Hindi. It may also grant fee concessions to students who choose those languages as their medium of instruction, establish pilot colleges where the medium is exclusively Gujarati or Hindi, or, in extreme cases, restrict the use of any other medium. Thus, clause (27) does not limit the University's power to instruction alone but also extends to examinations, and the University's authority to determine the medium for instruction is not confined solely to the language‑prescribing power contained in clause (27).

The University may grant fee concessions or other financial benefits to students who choose Gujarati or Hindi as their medium of instruction rather than English or another language. It could also establish a pilot college where teaching is conducted exclusively in either of those two languages. In more extreme circumstances, the University might prohibit the use of any language other than Gujarati or Hindi as the medium of instruction. Numerous other methods of subsidising and encouraging the development of those languages are also available to the University. Beyond these measures, clause 27 addresses not only the medium of instruction but also the language used for examinations. If the power to prescribe a medium of instruction were deemed to arise solely from clause 27, then the authority to choose the examination language would also arise from the same provision. Such a view would create an absurd situation in which the University could not conduct examinations in any language other than Gujarati or Hindi. Simultaneously, affiliated colleges, as argued by the respondents’ counsel, could continue teaching in languages other than Gujarati or Hindi, leaving the University unable to examine students in the colleges’ chosen language. Therefore, it is clear that clause 27 does not replace or limit the University’s inherent power to select its own medium of instruction. Instead, clause 27 adds an extra authority together with a corresponding duty to promote Gujarati and Hindi as languages of instruction. When understood in this way, the accompanying proviso fits neatly within the overall scheme of the legislation. The proviso states that English may remain the medium of instruction and examination for the relevant subjects until the end of May 1966. The proviso was inserted to allow English to continue temporarily, but it also imposes a duty on the University to introduce either Gujarati or Hindi as a medium of instruction. Thus, the proviso permits the University to defer the introduction of the two languages for a specified period. In this context, the argument concerning the use of the indefinite article in the main clause and the definite article in the proviso becomes relevant. It is argued that the indefinite article indicates that the University’s power is limited to adding an additional medium, otherwise the Legislature would have used the term ‘the medium’ as it did in the proviso. Grammatically, the definite article ‘the’ cannot be employed in the substantive part because it is used only to refer to an object that is already known or previously mentioned. Consequently, the proviso uses the definite article when referring to English, which is already the established medium of instruction.

In the present case the Court noted that English was already being used as the exclusive medium of instruction. The substantive part of clause 27, however, was intended to give the University an additional power to promote either one of the two languages mentioned therein or both of them. Because the clause referred to different languages that could be prescribed alternatively, the appropriate grammatical article was the indefinite article. The Court observed that accepting the argument of learned counsel for the respondents would create a serious inconsistency: after the period specified in the proviso the University would be left without any power to introduce a language other than Gujarati or Hindi for instruction and examination. The respondents attempted to overcome this difficulty by contending that the power to continue using English after the prescribed period was necessarily implied in the proviso. The Court explained that the doctrine of necessary implication, as applied to statutory construction, requires an implication that is absolutely necessary and unavoidable; it is not a matter of conjecture. To hold that such an important power of prescribing a medium of instruction was left to implication would amount to attributing a lack of drafting skill to the Legislature. Moreover, such a construction would run counter to the natural meaning of the language used in the proviso.

The Court further reasoned that, when the Legislature enacted clause 27 of section 4, it must be presumed to have been aware that the University had already prescribed English as the medium of instruction in exercise of its existing powers. With that knowledge, the Legislature proceeded to provide in the proviso that the University could continue to use English as the sole medium for a prescribed period. Consequently, the proviso was based on the assumption of an existing power and did not create the power for the first time. If the proviso were held to confer the power to prescribe English for the first time, it would follow that the University could not prescribe any medium other than English, Hindi or Gujarati after the period mentioned in the proviso had expired. Conversely, if clause 27 were construed as the Court had done – that is, as an additional power conferred on the University alongside its existing authority to prescribe any medium or media of instruction – the relevant provisions would operate together. Under this interpretation, the University would possess the power 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 that period, to prescribe English or any other language as the medium of instruction in addition to Hindi or Gujarati. The Court warned that accepting the artificial construction suggested by the respondents would amount to holding that the Legislature had stripped the University not only of its power to discontinue English as the medium of instruction but also of its ability to introduce any language other than English, Hindi or Gujarati.

In this matter the Court held that clause (27) of section 4 of the Act confers only an additional power on the University and does not take away any implied power that is derived from the other provisions of the Act. The Court rejected the argument that clause (27) prevented the University from introducing any medium of instruction other than English, Hindi or Gujarati. The Court then turned to the submission based on section 18(1)(XIV) of the Act, which provides that “to make provision relating to the use of Gujarati or Hindi in Devanagari script or both as a medium of instruction and examination.” Counsel for the appellant argued that while clause (27) of section 4 gives the University a power, clause (XIV) of section 18(1) imposes both a power and a duty on the Senate to provide for the use of Gujarati or Hindi in Devanagari script as a medium of instruction and examination. Counsel for the respondents stressed the use of the indefinite article “a” in that clause. The Court could not accept either contention. It observed that when a power is granted to the University to promote the two languages as mediums of instruction, a corresponding duty to exercise that power necessarily follows, especially where the purpose is the public good. The presence of only powers in section 4 and both powers and duties in section 18 does not create a substantive distinction in a context where a power is intended for public benefit. The statute employs three different expressions – “provide”, “promote” and “make provision”. Under the Act the University may exercise its powers only through its own instruments in the manner prescribed. The words in section 18 are “to make provision”, not “provide” or “promote”, indicating that specific provisions must be enacted, presumably by statutes. Consequently, the University is empowered to provide for an exclusive medium of instruction and to promote the use of Gujarati or Hindi, while the Senate is authorized to enact statutes to effect the former under section 18(1)(i) and the latter under section 18(1)(XIV). Regarding the promotion of Gujarati and Hindi studies in Devanagari script, the Senate, the Syndicate and the Academic Council may frame the necessary statutes in exercise of the powers conferred on them. The Court found that the indefinite article “a” in clause (XIV) of section 18(1) was not material, as it is the appropriate article in that context. Finally, the Court dismissed the contention raised by counsel for the respondents and accepted by the High Court that section 4(1) and the other clauses of that section apply only to residential colleges, holding that the language of those clauses is broad and comprehensive and does not admit any such limitation.

In this case, the Court observed that the language used in the statutory clauses was broad and all‑encompassing, and therefore it did not contain any hidden restriction limiting the University's authority. The Court rejected the contention that interpreting the provisions in this manner would permit the University to eliminate English entirely as a medium of instruction, as alleged in the present matter. The Court explained that the Constitution placed the responsibility for university‑level education on the State Legislatures and on the universities themselves. Accordingly, the Legislature, in the Court’s view, correctly vested the necessary powers in the University to regulate higher education. The Court further noted that the members of the University’s governing bodies, who are drawn from the State’s intellectual community, are the most suitably qualified persons to determine which languages should be used as the medium of instruction in colleges affiliated to the University. The Court recognized that some universities may choose to accelerate the adoption of a regional language as the medium of instruction, while others may proceed more cautiously, and that each University is free to chart its own policy. Consequently, if a statute has granted the University the authority to prescribe an exclusive medium of instruction, the Court held that any ancillary considerations are irrelevant. The Court also affirmed that it is not contested that, when the University possesses statutory power to prescribe a sole medium of instruction, the provision of section 38A of the Act, which is a consequential clause, would be valid.

Based on the reasoning set out above, the Court concluded that the University had acted within the scope of the authority granted to it by statute when it, by means of its own legislation, identified the two named languages as the appropriate media of instruction and proceeded to replace English gradually, stage by stage. Accordingly, the Court overturned the decision rendered by the High Court and allowed the appeals that had been filed against that decision. In granting relief, the Court ordered that the costs of the proceedings be awarded to the appellants, both in the present appeal before this Court and in the earlier proceedings before the High Court. The Court further noted that, in accordance with the opinion expressed by the majority of the judges, the final disposition of the matter was that both appeals would be dismissed in the manner described in the majority judgment. The Court specified that the parties would each be responsible for their own costs, and that a single set of hearing fees would be payable for the entire case. The ultimate effect of the order was that the appeals were dismissed and no further relief was granted. Thus the litigation concluded without any further orders.