The Gujarat University, Ahmedabad vs Krishna Ranganath Mudholkar and Others

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

Court: supreme-court

Case Number: Civil Appeals Nos. 234 and 262 of 1962

Decision Date: 21 February 1962

Coram: J.C. Shah, Bhuvneshwar P. Sinha, Syed Jaffer Imam, K.N. Wanchoo, N. Rajagopala Ayyangar, Subba Rao

In this case, the Supreme Court of India delivered a judgment on 21 February 1962 in the matter titled The Gujarat University, Ahmedabad versus Krishna Ranganath Mudholkar and others. The judgment was authored by Justice J C Shah, and the bench comprised Justice J C Shah, Justice Bhuvneshwar P Sinha, Justice Syed Jaffer Imam, Justice K N Wanchoo and Justice N Rajagopala Ayyangar. The petitioner was The Gujarat University, Ahmedabad and the respondents were Krishna Ranganath Mudholkar and other individuals. The official citation of the decision is reported in 1963 AIR 703 and in the Supreme Court Reporter Supplement, 1963, volume 1, page 122. The decision is also listed in several citator references including R 1964 SC1823 (pages 6, 34, 35), R 1970 SC2079 (page 10), R 1971 SC1731 (page 12), RF 1979 SC 83 (page 2), RF 1987 SC2034 (pages 16, 17) and RF 1988 SC 305 (page 7). The substantive issues involved the fixation of an exclusive medium of instruction in a university setting, the legislative competence of the State Legislature to enact such provisions, and the relevant constitutional provisions, namely Article 254(1) of the Constitution of India, the Seventh Schedule entries List I Entry 66 and List II Entry 11. The statutory framework under consideration was the Gujarat University Act of 1949 (Bombay Gazette No. 56 of 1949) as amended by Act 4 of 1961, particularly sections 4, 18, 20, 22 and 38A, together with University Statutes numbered 207, 208 and 209.

The factual backdrop described in the headnote states that the second respondent had enrolled in the First Year Arts class of St Xavier’s College, an institution affiliated to Gujarat University, where instruction was delivered in English. After successfully completing that first‑year course, the second respondent applied for admission to the university’s Intermediate Arts Examination classes, also seeking instruction in English. The principal of the college, however, informed the applicant that, pursuant to the provisions of the Gujarat University Act, 1949 and the university statutes 207, 208 and 209 as amended in 1961, admission could not be granted without a specific sanction from the university. The first respondent, who was the father of the second respondent, approached the Vice‑Chancellor for such sanction, but the request was refused. Consequently, the respondents instituted writ proceedings before the High Court under Article 226 of the Constitution, seeking orders that the university and the principal of St Xavier’s College should not enforce sections 4(27), 18(1)(XIV) and 38A of the Gujarat University Act, nor the said university statutes. The High Court ruled in favour of the respondents and issued the writs that had been prayed for. Both the State and the University subsequently filed separate appeals before this Supreme Court.

Before the Court, the University contended that section 4 of the Act authorised it to prescribe Gujarati or Hindi as the exclusive medium of instruction and examination, and therefore the contested provisions were valid. The Court was asked to determine two principal questions: first, whether Gujarat University possessed the authority under the Act to prescribe Gujarati, Hindi, or both as the exclusive medium of instruction and examination; and second, whether any legislation granting the University such authority was constitutionally valid in light of Entry 66 of List I of the Seventh Schedule of the Constitution. The Court, speaking through Justices Sinha, C J, Imam, Wanchoo, Shah and Ayyangar, held that neither the original Gujarat University Act of 1949 nor its amendment by Act 4 of 1961 conferred any power on the University to impose Gujarati or Hindi, individually or jointly, as an exclusive medium of instruction or examination.

In this case the Court observed that the Gujarat University Act did not give the University any authority to require Gujarati, Hindi, or both as the sole language of instruction or examination, and consequently the Senate was unable to exercise such a power. The Court examined clause (27) of section 4, which alone addressed the question of medium of instruction, and held that a proper construction of the clause did not demonstrate that the Legislature was, even indirectly, directing the University to prescribe an exclusive medium of instruction. The Court noted that the word “Promote” followed by the indefinite article “a” indicated that the statute only encouraged the use of a language and did not empower the University to impose Gujarati or Hindi as the exclusive medium for teaching or assessment. The presence of the definite article “the” in the proviso relating to English as a medium of instruction further supported this interpretation. Because clause (27) was not intended to authorize the imposition of Gujarati or Hindi, the Court concluded that clause (28) of the same section could not be read to confer such authority, and that sections 18, 20, 22 and all other provisions of the Act likewise failed to provide any such power. While a corporation ordinarily enjoys an implied power to pursue its objects, the Court held that this implied authority could not, in the absence of explicit statutory language, permit the University to enforce an exclusive medium of instruction. The Court further rejected the argument that a letter dated 7 August 1949 from the Government of India to Universities and Provincial Governments, urging a gradual replacement of English with regional or State languages at the university level, could alter the plain meaning of the Act. Likewise, the Court dismissed reliance on the Statement of Objects and Reasons of the Act, which suggested that the University might adopt Gujarati or the national language as the medium of instruction, stating that such explanatory material must be disregarded when interpreting the statute. The Court also rejected the contention that legislation specifying the medium of instruction in higher education necessarily fell within Item 11 of List II of the Seventh Schedule. The use of the expression “subject to” in that Item, the Court said, indicates that matters excluded by the Item cannot be legislated by a State Legislature. Referring to Hingir‑Rampur Coal Co. v. State of Orissa, the Court explained that Items 11 of List II and 66 of List I must be read harmoniously, and wherever they overlap, the power conferred on Parliament by Item 66 prevails over the power of the State under Item 11. Accordingly, the test for the validity of a State law concerning university education or technical and scientific institutions, which are not covered by Entry 64 of List I, is whether such law intrudes upon the field reserved for the Union by Item 66 and adversely affects coordination and standards, irrespective of whether a specific Union law on the matter exists.

In this passage the Court explained that the power to coordinate and determine standards does not depend on the presence of a specific Union law dealing with that subject. If such a Union law existed, it would override any State legislation under Article 254(1) of the Constitution. Even where there is no such Union legislation, a State law that intrudes into a field reserved for the Union must be held invalid. The Court emphasized that Item 66 of List I cannot be interpreted narrowly; the authority it confers includes all ancillary or subsidiary matters that can be fairly and reasonably understood as part of it, for example the disparities that may arise when a regional medium of instruction is adopted and causes a decline in standards in higher education. The term “coordination” was interpreted to mean more than mere evaluation; it also embraces a harmonious relationship aimed at concerted action. The power under this entry is absolute and does not depend on the existence of a state of emergency or on the presence of unequal standards that might trigger its use. Because medium of instruction does not appear as a distinct entry in either legislative list, it necessarily falls within Item 11 of List II, and also within items 63 to 66 of List I; to the extent that it is a necessary incident of the power conferred by Item 66, it must be treated as excluded from Item 11 of List II. Consequently, if a law imposes a regional language or Hindi as the exclusive medium of instruction and that imposition is likely to lower educational standards, the law must be regarded as falling within Item 66 of List I and therefore excluded from the competence of the State under Item 11 of List II. According to Justice Subba Rao, the question of which entry a law falls under is determined by its scope, effect, and its pith and substance. While case law provides various tests to reach the core of a legislation, no decision has held that a law whose pith and substance lies within one entry can be struck down merely because it might conflict with another entry made by a co‑ordinate legislature. However, where the effect of a State law on a Union subject wipes out or substantially diminishes the Union field, the law may be characterised as a colourable exercise of power and, in substance, as falling under the Union entry rather than the State entry. The jurisprudence does not recognise a separate principle of direct impact apart from the doctrine of pith and substance. The Court referred to several authorities, including Prafulla Kumar v. Bank of Commerce, Khulna, State of Bombay v. F. N. Balsara, A. S. Krishna v. State of Madras, Union Colliery Co. of British Columbia Ltd. v. Bryden, Bank of Toronto v. Lambe, and Attorney General for Alberta v. Attorney General for Canada. It reiterated the well‑settled rule that the broadest possible meaning must be given to the language of the entries, and when entries overlap, the Court must reconcile and harmonise them.

The Court explained that, when the entries in the Constitution are read together, they must be reconciled and harmonised. In that light, the Court found that the medium of instruction falls within Entry 11 of List II, which deals with education, and not within Entry 66 of List I, which pertains only to “co‑ordination” and “determination of standards”. Because the subject of instruction is placed in the State List, the State legislature was therefore competent to enact a law that empowers a university to designate a regional language as the exclusive medium of instruction. Accordingly, the Gujarat University Act was held to be within the competence of the State under Entry II and did not encroach upon the Union’s entry, which does not prescribe any particular medium of instruction. The Court also referred to the authority of Calcutta Gas Co. v. State of West Bengal (1962 Supp. 3 S.C.R. 116) to support this view.

The Court further observed that when a statute confers a power on a corporate body such as a university, it necessarily includes the implied authority to perform all acts that are essential or ancillary to the exercise of that power. The provisions of the Gujarat University Act leave no doubt that the university possessed the implied authority to prescribe, for the purpose of higher education, any number of languages of instruction, including the option of a single exclusive language. This implicit authority is derived from clause (1) of section 4 and the remaining provisions of that section. Moreover, clause 27 of the Act did not limit this power; instead, it added a further power to promote the study of Gujarati or Hindi and to permit their use as mediums of instruction and examination, a purpose that is consistent with the overall scheme of the Act.

The judgment was delivered in the Civil Appellate Jurisdiction under Civil Appeals Nos. 234 and 262 of 1962, which arose from the Gujarat High Court’s order dated 24 January 1962 in Special Civil Application No. 624 of 1961. The parties were represented by counsel: for the appellants in Appeal 234/62 and for respondents 2 and 3 in Appeal 262/62, counsel appeared; for respondent 1 in both appeals, another set of counsel appeared; the Attorney‑General of India, the Advocate‑General of the State of Gujarat, and additional counsel represented respondent 3 in Appeal 234/62 and the appellant in Appeal 262/62; counsel for the intervener in Appeal 234/62 appeared; and counsel for Intervener 2 in both appeals also appeared. The judgment was pronounced on 21 September 1962. The bench comprised Chief Justice Sinha, and Justices Imam, Wanchoo, Shah and Ayyangar, with the judgment of the Court delivered by Justice Shah, while Justice Subba Rao delivered a separate judgment. In the factual backdrop, Shrikant, the son of Shri Krishna Madholkar, had successfully passed the Secondary School Certificate examination conducted by the State of Bombay in March 1960, having studied the prescribed subjects in Marathi, his mother‑tongue, and having answered the examination papers in Marathi as well. He subsequently enrolled in the First Year Arts class at St. Xavier’s College, which was affiliated to Gujarat University, and was admitted to the course.

In this case, the Court described that Shrikant, son of Shri Krishna Madholkar, had taken the Secondary School Certificate examination conducted by the State of Bombay in March 1960 and had passed it. He had studied the subjects for that examination in Marathi, which was his mother‑tongue, and he had also written the examination answers in Marathi. After completing his secondary education, Shrikant enrolled in the First Year Arts program of St. Xavier’s College, an institution affiliated with Gujarat University, where the instruction was delivered in English. He successfully finished the First Year Arts course in March 1961 and subsequently applied for admission to the Intermediate Arts classes that prepared students for the university examination, also seeking instruction in English.

The principal of St. Xavier’s College informed Shrikant that, under the Gujarat University Act of 1949 and the university statutes numbered 207, 208 and 209 as amended in 1961, the university could not allow him to attend classes taught in English without a specific sanction from the university. Shri Krishna Madholkar then approached the vice‑chancellor of the university requesting such a sanction so that his son could continue his studies in the “English medium classes.” The university registrar refused to grant the request. However, the registrar later issued a separate letter indicating that Shrikant could continue to sit for examinations in English, but that the university would not permit English as the language of instruction.

Consequently, Shri Krishna Madholkar filed a petition in the Gujarat High Court on behalf of himself and his minor son. The petition sought a writ of mandamus or any other appropriate writ, direction or order that would 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 asked the court to direct the vice‑chancellor to treat the letters and circulars he had issued concerning the medium of instruction as illegal, to refrain from enforcing those documents, and to prevent the university from objecting to or prohibiting Shrikant’s admission to the “English medium Arts class.” Additionally, the petition demanded that the principal of St. Xavier’s College admit Shrikant to the “English medium Intermediate Arts class” on the ground that the contested provisions of the Act, the statutes and the university’s letters and circulars were void.

The Gujarat High Court, by an order dated 24 January 1962, granted the writs that had been prayed for in the petition. Both the university and the State of Gujarat appealed the high court’s decision to the Supreme Court, each attaching a certificate of fitness issued by the high court. The High Court’s judgment was based on several grounds, which it summarized as follows: (1) statutes 207 and 209, insofar as they attempted to mandate Gujarati or Hindi in Devanagari script as the sole media of instruction and examination in institutions not maintained by the university, were unauthorized and therefore null and void, because neither section 4(27) nor any other provision of the Act empowered the university to prescribe such exclusive languages or to forbid the use of English in those institutions; (2) even if the university possessed any authority, it could only prescribe Gujarati or Hindi as one of the media of instruction and examination, not as the only medium to the exclusion of other languages; (3) the proviso to clause 27 of section 4 of the Gujarat University Act, as amended by Act 4 of 1961, encroached upon the field of Entry 66 of List I of the Seventh Schedule of the Constitution, rendering it beyond the legislative competence of the State and causing statutes 207 and 209 to be null and void; and (4) even assuming a proper construction of section 4(27) and related provisions authorized the university to prescribe a particular language or languages for instruction and examination in affiliated colleges and to prohibit English, the provisions that imposed exclusive media, together with the statutes and the circulars issued pursuant to them, violated Articles 29(1) and 30(1) of the Constitution and were therefore void.

The Court noted that the first ground asserted that the statutes could permit Gujarati or Hindi to be used as one among the languages of instruction and examination, but could not allow those languages to be the sole mediums to the exclusion of all other languages. The second ground, identified as point three, claimed that the proviso to clause 27 of section 4 of the Gujarat University Act, as amended by Act 4 of 1961, intruded upon the jurisdiction assigned to Entry 66 of List I of the Seventh Schedule of the Constitution; consequently, the Court considered the proviso to be beyond the legislative competence of the State, rendering statutes 207 and 209 made under it void. The third ground, labelled as point four, contended that even if a proper construction of section 4(27) and the other provisions of the Act were to establish that the University possessed authority 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 such institutions, the provisions that imposed an exclusive medium, together with the statutes and circulars issued pursuant to them, would be void for violating Articles 29(1) and 30(1) of the Constitution. The Court explained that it declined to hear arguments concerning the alleged infringement of the fundamental rights under Articles 29(1) and 30(1), because the petition suffered from a singular lack of pleading in support of that claim. Moreover, the authorities of St. Xavier’s College, who had initially adopted a non‑contentious stance but later supported the petitioner's case, did not place on the record any evidence that would justify the Court in undertaking an investigation of a plea of such far‑reaching importance. The Court observed that determining whether the legislation infringed Articles 29(1) and 30(1) required proof of several facts, including the existence of a distinct language, script or culture of a section of citizens served by St. Xavier’s College, or the existence of a religious or linguistic minority whose rights to establish and administer educational institutions of its choice were obstructed or likely to be obstructed by the impugned legislation. Accordingly, the Court expressed no opinion on whether the Act, the statutes and the circulars infringed any fundamental rights of any citizens or any religious or linguistic minority. The Court clarified that its refusal to decide the question was not based on a conclusion that the petitioner lacked the right to maintain the petition under Article 226 of the Constitution, as the University and the State of Gujarat had contended, but rather on the paucity of pleading and evidence before it. Finally, the Court identified two substantial questions that remained for determination: first, whether under the Gujarat University Act, 1949, the University was empowered to prescribe Gujarati or Hindi, or both, as an exclusive medium or media of instruction and examination in the affiliated colleges; and second, whether legislation authorising the University to impose such media would infringe Entry 66 of List I of the Seventh Schedule of the Constitution.

In this case the Court examined whether giving the University authority to determine the language of instruction would conflict with Entry 66 of List I of the Seventh Schedule to the Constitution. The background facts showed that St. Xavier’s College had been affiliated with the University of Bombay under Bombay Act 4 of 1928. Later the Legislature of the Province of Bombay passed the Gujarat University Act, 1949 in order to create a teaching and affiliating university as a step toward decentralising and reorganising university education in the province. Section 5(3) of that Act stipulated that, from a date to be prescribed, every educational institution that had been admitted to the privileges of the University of Bombay and that was situated within the Gujarat university area would automatically be deemed to enjoy the privileges of the newly formed University of Gujarat. Section 3 gave the University a perpetual succession and a common seal. Section 4 introduced a provision that was not commonly found in other university‑founding Acts; it listed a number of powers that were to belong to the University. Those powers were to be exercised by the various authorities named in section 15, namely the Senate, the Syndicate and the Academic Council, which were the authorities relevant to the present appeals.

The Act made some of the powers listed in section 4 exercisable by the Senate under section 18. The Senate was authorised, subject to any conditions that might be prescribed by or under the Act, to perform the duties set out in sub‑section (1). Section 20 conferred certain other powers on the Syndicate, while section 22 vested the Academic Council with the responsibility for controlling and generally regulating the standards of teaching and examinations of the University, and also authorised it to exercise specific university powers. The statutes required that the Senate exercise its powers by promulgating statutes, the Syndicate by issuing ordinances, and the Academic Council by making regulations.

In 1954 the University of Gujarat framed a set of regulations that dealt specifically with the language or media of instruction. These were recorded as Statutes 207, 208 and 209. Statute 207 contained four clauses. Clause (1) declared that Gujarati would be the medium of instruction and examination. Clause (2) stated that, notwithstanding clause (1), English would continue to be used as a medium of instruction and examination for a period not exceeding ten years from the date on which section 3 of the Gujarat University Act came into force, unless the statutes later prescribed a different arrangement. Clause (3) provided that, notwithstanding the earlier clauses, non‑Gujarati students and teachers would retain the option to use Hindi as the medium for examinations and teaching respectively, if they so desired; the Syndicate was directed to regulate this option by issuing suitable ordinances whenever necessary. Clause (4) further clarified that, notwithstanding the preceding clauses, the medium of examination and instruction for modern Indian languages and for English could be the respective languages themselves. Statute 208, which followed, began by stating “provided that the” and then continued the legislative scheme, although the remainder of that provision is not reproduced in the present excerpt.

The Court observed that, according to the university statutes, the medium of instruction and examination in every subject was to change from English to Gujarati beginning in June 1955 for First‑Year Arts, First‑Year Science and First‑Year Commerce, and again in June 1956 for Intermediate Arts, Intermediate Science, Intermediate Commerce and First‑Year Science (Agriculture). The statutes further allowed any student or teacher who could not use Gujarati or Hindi tolerably well to continue to use English for instruction or examination in one or more subjects until November 1960, which corresponded to the academic year ending in June 1961. Statute 209 contained a similar provision, enumerating the permitted use of English for Bachelor of Arts, Bachelor of Science and other examinations.

The Court noted that after the creation of the separate State of Gujarat, the Gujarat State Legislature enacted Act 4 of 1961. By that Act the proviso to section 4(27) was amended so that the use of English as the medium of instruction could be extended beyond the period originally contemplated. Section 38A was also introduced, imposing a duty on all affiliated colleges and recognized institutions to obey the provisions relating to the media of instruction. Sub‑section 2 of section 38A declared that, if an affiliated college or recognized institution violated any of the Act, Rules, Ordinances or Regulations concerning the medium of instruction, the rights granted to that institution would be withdrawn from the date of the breach and the college or institution would cease to be an affiliated college or recognized institution for the purposes of the Act.

The Court then recorded that the University Senate subsequently amended Statutes 207 and 209. The material portion of the amended Statute 207 reads as follows: (1) Gujarati shall be the medium of instruction and examination; notwithstanding this, Hindi may 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 may continue to be the medium of instruction and examination for such periods and for such subjects and courses of study as may from time to time be prescribed by the statutes under section 4(27) of the Gujarat University Act then in force. (3) Notwithstanding clause (1), students and teachers whose mother‑tongue is not Gujarati shall have the option, the former for examination and the latter for instruction, to use Hindi as the medium if they desire. (4) Notwithstanding clauses (1) and (3), affiliated colleges, recognized institutions and university departments shall have the option to use Hindi as a medium for one or more subjects for students whose mother‑tongue is not Gujarati.

In this case, the Court set out that the University statutes permitted the use of Hindi as a medium of instruction and examination for students whose mother‑tongue was not Gujarati, and that, notwithstanding the provisions allowing English or the modern Indian languages to be used, Statute 209, as amended, required the medium of instruction and examination in all subjects listed in the statute to cease to be English and to follow the language prescribed in Statute 207, as amended, from the years indicated for each examination. The Registrar of the University subsequently issued a circular on 22 June 1961 addressed to the principals of affiliated colleges, stating that the Vice‑Chancellor, exercising the powers conferred on him by section 11(4)(a) of the Gujarat University Act, directed three specific matters: first, that only those students who had completed their secondary education through the medium of English and who had continued their studies in the First Year (Pre‑University) Arts class during the academic year 1960‑61 through English would be allowed to continue using English as the medium of examination in the Intermediate Arts class for the one‑year period of 1961‑62; second, that the colleges were permitted to arrange instruction in English for those same students solely for the academic year 1961‑62; and third, that each principal must verify that only the students identified in the first point were permitted to enjoy the stated concession. The petitioner, Shrikant, had not taken the Secondary School Certificate examination in English, and consequently, under the first clause of the circular, the principal of St. Xavier’s College was not authorised to allow him to continue using English as the medium of instruction in the Intermediate Arts class, because granting such permission would have exposed the college to the penalties prescribed in section 38A. The petitioner therefore challenged the University’s authority to impose Gujarati or Hindi as the exclusive medium of instruction, arguing that such a power was not conferred by the Gujarat University Act, 1949, as amended by Act 4 of 1961. The University responded that the power to determine the medium of instruction was expressly granted by various clauses of section 4 and that, under section 18(XIV), it was the Senate’s duty to exercise that power, making Statutes 207 and 209 lawfully promulgated; the University further contended that, as a corporation controlling higher education within its jurisdiction, it necessarily possessed an implied power to prescribe the medium of instruction. In examining whether the Act conferred the power to impose Gujarati or Hindi—or both—as the exclusive medium of instruction, the Court considered only clauses (1), (2), (7), (8), (10), (14), (27) and (28) of section 4, noting that clause (1) authorises the University “to provide for instruction, teaching and training in such branches of learning and courses of study as it may think fit,” a provision that formed the basis of the University’s argument.

The Court observed that clause (1) of section 4 authorises 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 held that, based on the language employed by the Legislature, it could not accept the High Court’s view that this power is limited only to institutions that are established by the University and that it does not extend to colleges that are merely affiliated. The phrasing of the clause, the Court said, does not justify such a restriction. Nevertheless, the Court agreed with the High Court that the authority conferred by clause (1) is not principally concerned with the medium of instruction; rather, it relates to the syllabi applicable to the various branches of learning and the courses of study. Accordingly, the clause gives the University the power to direct that instruction, teaching and training be delivered in the different branches of learning and courses of study as it deems appropriate, but it does not empower the University to prescribe a single, exclusive medium in which that instruction must be delivered.

The Court then examined the remaining relevant clauses. Clause (2) allows the University “to make such provision as would enable affiliated colleges and recognised institutions to undertake specialisation of studies,” but the Court found that this provision has no direct relevance to the issue of imposing an exclusive medium of instruction. Similarly, clause (7), which enables the University “to lay down the courses of instruction for various examinations,” does not confer on the University the authority to prescribe an exclusive medium of instruction. Clause (8) gives the University the power “to guide the teaching in colleges or recognised institutions,” yet this power also does not extend to prescribing an exclusive medium. The Court noted that while the powers to designate branches of learning, to determine courses of study, to facilitate specialised studies, and to guide teaching in affiliated or recognised institutions undeniably include the ability to indicate the medium that was ordinarily used at the time the Act was enacted, such power alone does not, in the absence of an express provision or a clear implication, permit the University to compel instruction through a single exclusive medium.

Clause (10) was then considered. This clause provides that the University shall have the power “to hold examinations and confer degrees, titles, diplomas and other academic distinctions on persons who (a) have pursued approved courses of study in the University or in an affiliated college unless exempted therefrom in the manner prescribed by the Statutes, Ordinances and Regulations and have passed the examination prescribed by the University, or (b) have carried on research under conditions prescribed by the Ordinances and Regulations.” Counsel for the University argued that, under clause 10(a), the University possessed the authority to approve courses of study in the manner laid down by the Statutes, Ordinances and Regulations, and that, since section 18 (XIV) empowers the Senate to frame Statutes providing Gujarati, Hindi, or both as the medium or media of instruction, the University was expressly authorised to impose an exclusive medium of its own choosing. The Court rejected this contention, holding that the argument was premised on an incorrect interpretation of the statutory provision. The Court clarified that the provision, by itself, does not empower the University to prescribe the use of any exclusive medium of instruction or examination.

In its analysis the Court observed that clause 10 did not empower the University to prescribe any exclusive medium of instruction or examination. The Court noted that the clause authorised the University to confer degrees, diplomas or other academic distinctions on individuals who had pursued approved courses of study and who had passed the examinations prescribed by the University. The Court further explained that the University retained the power to confer such degrees or distinctions on persons who had not pursued the prescribed courses, provided that an exemption for those persons was made in the Statutes, Ordinances or Regulations. Regarding the phrase “in the manner” prescribed by a Statute, Ordinance or Regulation, the Court held that the expression did not refer to the class of persons who had completed approved courses of study in the University or an affiliated college; rather, it qualified the preceding phrase “unless exempted therefrom.” Consequently, the clause authorised the University to award degrees, diplomas or distinctions not only on the basis of completing the prescribed courses of instruction and passing the qualifying examination, but also to persons who had not pursued the prescribed courses of instruction yet had passed the prescribed examination, if an exemption was granted by the Statutes, Ordinances or Regulations. The Court clarified that the power conferred under sub‑clause (a) of clause 10 did not include the authority to impose an exclusive medium of instruction such as Gujarati or Hindi. By reference to clause 14, the Court pointed out that the University was empowered, among other matters, to take measures ensuring proper standards of instruction, teaching or training in affiliated colleges and recognised institutions. Clause 15, the Court added, invested the University with authority to control and coordinate the activities of, and to provide financial assistance to, affiliated colleges and recognised institutions, but it did not grant the University the power to prescribe an exclusive medium of instruction as the University had claimed. The Court observed that the Legislature, in clause 27, had specifically addressed the issue of the medium of instruction, and that the other clauses on which the University relied did not expressly deal with that subject. The Court found it difficult to hold that, while clause 27 dealt with the medium of instruction, the Legislature was also, by implication, dealing with the power to prescribe an exclusive medium of instruction when it made provisions concerning instruction, teaching and training in educational institutions, enabling those institutions to undertake specialised studies, providing guidance in teaching, or establishing standards for degrees, academic distinctions, or the conduct of activities. The Court reproduced the original wording of clause 27, before its amendment by Act IV of 1961, which read: “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 first paragraph of clause 27, the Court concluded that the legislative intent was to promote the development and use of Gujarati or Hindi, not to impose an exclusive medium of instruction.

The Court explained that the statute conferred on the University a power to promote the development and use of Gujarati or Hindi, or both, as a medium of instruction. It observed that the wording of the clause was not strictly grammatical; if it had been drafted in accordance with proper 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 Court noted that the verb “promote” indicated that the legislature intended to give the University authority to encourage the study of Gujarati and Hindi and to encourage their use as media of instruction and examination. This, the Court said, did not imply that the University was empowered to make Gujarati or Hindi the exclusive medium of instruction and examination. The Court further pointed out that the presence of the indefinite article “a” before the phrase “medium of instruction” made it clear that Gujarati or Hindi was to be one among several possible media of instruction, and that steps were to be taken to develop and encourage their use alongside other languages. From this use of “promote” together with the indefinite article, the Court concluded that the University was not given the power to impose Gujarati or Hindi as the sole medium of instruction and examination to the exclusion of all other media. The Court added that if the phrase “promote the use of Gujarati or Hindi as a medium of instruction and examination” had been intended to mean “promote the exclusive use of Hindi or Gujarati,” then the same interpretation would have to be applied to the earlier phrase “promote the development of Gujarati and Hindi,” thereby attributing to the legislature an intention that no languages other than Gujarati and Hindi were to be developed, which was not the case. The Court observed that the proviso used the definite article “the” in reference to English as a medium of instruction, which supported the view that English was to continue as the established exclusive medium of instruction. It was common ground that in the University of Bombay English had been the exclusive medium of instruction, and that the various colleges affiliated with Gujarat University had also used English as the exclusive medium. By the proviso to clause (27) of section 4, the subjects to be prescribed under the proviso were to retain English as the medium of instruction. Consequently, the operative part of clause (27) showed that the legislature intended to promote the use of Gujarati or Hindi, or both, as additional media of instruction and examination, not to replace English as the exclusive medium, while the proviso expressly maintained English as the sole medium for the subjects specified for the periods prescribed.

In this case, the Court examined the statutory provisions that governed the medium of instruction at the university. Clause (27) stipulated that, for the subjects prescribed, English was to remain the sole language of instruction for the periods expressly specified. Clause (28) granted the university authority to undertake any acts, whether incidental to the powers set out in clauses (1) and (27) or not, whenever such acts were deemed necessary to further the objects of the university and to generally cultivate and promote arts, science, other branches of learning, and culture. The Court noted that Clause (28) therefore conferred additional powers that were intended to be exercised in support of the university’s objectives, even though those powers were not necessarily incidental to those already conferred by clauses (1) and (27). However, the Court held that if the object of the university, as indicated by clause (27), was not to authorize the imposition of Gujarati or Hindi, or both, as an exclusive medium of instruction, it would be a misreading of the language of clause (28) to interpret the phrase “requisite in order to further the objects” as creating an intention to give the university the power to provide such an exclusive medium. Counsel for the university relied on section 18(1)(xiv) to argue that the Senate was bound to make provisions concerning the use of Gujarati or Hindi in Devanagari script as a medium of instruction and examination. While the Court acknowledged that section 18(1) dealt with the powers and duties of the Senate, it observed that the phrasing of the various clauses, on its face, did not suggest that each clause authorised the Senate to exercise the university’s powers and simultaneously imposed a corresponding duty. Assuming, for argument’s sake, that the power conferred upon the Senate also carried an attendant duty to exercise that power, the Court found that such an exercise concerning the use of Gujarati or Hindi as a medium of instruction and examination did not impose a duty to make those languages the exclusive medium. The use of the indefinite article “a” in the relevant provision indicated that Gujarati or Hindi, or both, were to be selected among several possible media of instruction and examination, not to be the sole medium. The Court further noted that no other provision in sections 18, 20, or 22, relating to the powers and duties of the Senate, the Syndicate, or the Academic Council, was relied upon, and that none of those provisions vested the university or its organs with the authority to impose Gujarati or Hindi as an exclusive medium of instruction. While a corporation ordinarily possesses an implied power to carry out its objects, and the power to indicate a medium of instruction in affiliated or constituent colleges could be deemed vested in a university, the Court held that such a power, absent an express provision, did not extend to imposing an exclusive medium of instruction. Counsel for the university also placed reliance on a letter dated August 7 1949, but the Court’s analysis did not find that the letter altered the statutory interpretation.

On July 7, 1949 the Government of India issued a letter, reproduced in the University Commission’s report, addressed to a number of universities and provincial governments. In that letter the Government expressed its view that, for the benefit of national education, it was desirable for universities and provincial authorities to commence early action on several recommendations. The first recommendation, labelled Item I, 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) substitute, in place of English, the language of the respective state, province, or region as the medium for both instruction and examination. The second recommendation, Item II, urged universities to (i) introduce a compulsory test in the Federal language during the first degree course, without affecting the results of the degree examination, and (ii) make facilities available for teaching the Federal language to any student who wishes to take it as an optional subject. The letter also listed Items III, IV, V, VI and VII, the contents of which are recorded only as placeholders in the report. The Government’s 1948 intention, as noted in the letter, was that English should be replaced in stages by the language of the state, province, or region, but the Court held that such an intention could not be used to interpret the statutory provisions in a way that contradicted the clear intent expressed by the legislature. The Court observed that this government recommendation had been largely ignored by a substantial majority of universities. It further noted that the Statement of Objects and Reasons of the Gujarat University Act contained a proposal, suggested by the Committee, to empower the university to adopt Gujarati or the national language as the medium of instruction, while permitting English for the first ten years in subjects where it was deemed necessary. However, because the legislature had made no specific provision to that effect, the Court held that a mere policy proposal set out in the Statement of Objects and Reasons could not be taken as evidence that the legislative power to impose such a medium had been exercised. While acknowledging that Statements of Objects and Reasons may provide useful historical context, the Court stressed that they must be disregarded when interpreting the statute. Accordingly, the Court concurred with the High Court that neither clause (27) nor any other clause of section 4 conferred on the university the authority to impose Gujarati, Hindi, or both as exclusive mediums of instruction. The Court also recorded that the proviso to clause (27) had been amended by Act 4 of 1961, replacing it with a new proviso stating, “Provided that English may continue to…”.

The provision stated that English could continue to be used as the medium of instruction and examination in three separate situations. First, English could remain the medium of instruction and examination for a period that the Statutes might prescribe, lasting until the end of May 1966 for those subjects and courses that were so specified. Second, English could serve as the medium of instruction and examination for a period that the Statutes might prescribe, extending until the end of May 1968 for postgraduate instruction, teaching and training in subjects that formed part of the Faculties of Agriculture and Technology, including Engineering, and further extending until the end of May 1969 for postgraduate instruction, teaching and training in subjects that formed part of the Faculty of Medicine. Third, English could be used as the medium of examination for two successive examinations in any subject held after the period prescribed under the first or second situation, but only for those candidates who, during that prescribed period, had failed to appear in or to pass the corresponding examination that was conducted with English as the medium of examination in the same subjects. In addition, the provision clarified that nothing in the clause would affect the use of English as the medium of instruction and examination for the subject English itself.

Both parties agreed before the Court that the operative part of clause twenty‑seven did not give the University any power to impose Gujarati or Hindi as an exclusive medium of instruction. Consequently, the Court observed that the proviso to clause twenty‑seven did not independently bestow such a power on 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 limit. Nonetheless, the proviso influenced the interpretation of clause twenty‑seven. In the second part of the proviso, the distinction between the definite article “the” preceding “medium of instruction and examination” when it related to English, and the indefinite article “a” used elsewhere, was highlighted. The Court explained that when the Legislature intended to make English the sole medium of instruction, it employed the definite article “the”; in other contexts, the use of “a” indicated that the medium could be one among several options. Therefore, under both the original Act and the amendment made by Act 4 of 1961, no power was conferred on the University to impose Gujarati or Hindi, or both, as exclusive media of instruction and examination.

Because the University lacked such authority, the Senate, which functions on behalf of the University, could not exercise a power it did not possess. The Court emphasized that the Senate’s authority to enact Statutes must remain within the limits of the powers granted to the University by the Act. On the basis of this reasoning, the Court indicated that it would now consider whether the State Government possessed the competence to enact laws that would impose Gujarati or Hindi, or both, as an exclusive medium or media of instruction, a question that arose from the High Court’s declaration that certain provisions of Act 4 of 1961 relating to the medium of instruction were ultra vires the State Legislature.

Although the question of whether a university may prescribe a particular language as the sole medium of instruction might appear to be merely academic, the Court considered it necessary to examine the issue because the High Court had held certain provisions of Act 4 of 1961 dealing with the medium of instruction to be ultra vires the State Legislature. The matter had been argued at length, and counsel for the appellants invited the Court to express its view so that any future legislation could be guided by that opinion. The Court explained that the authority 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 other than those specified in paragraph 13 of List I” in List 11 of the Seventh Schedule. Paragraph 13 of List I, at that time, specifically named the Benaras Hindu University and the Aligarh Muslim University. Consequently, except where expressly limited by Item 17 of List II read with Item 13 of List I, a Provincial Legislature possessed full power to legislate on any matter concerning education, including university‑level education. The Court noted that the term “education” has a broad meaning and embraces all aspects of imparting and regulating education; therefore, the Provincial Legislature could have been empowered to enact statutes prescribing either a federal or a regional language as the exclusive medium for the subjects chosen by a university. The Court further observed that if Section 4(27) of the Gujarat University Act had conferred upon the university the authority to select a federal or regional language as the exclusive medium of instruction, the validity of the challenged statutes numbered 207, 208 and 209 would not have been open to challenge. However, the Legislature did not grant the university any power under Section 4(27) to select Gujarati or Hindi as the sole medium of instruction. The Court then turned to the constitutional framework, pointing out that the Constitution brought about a significant alteration in the distribution of legislative powers over education between the Union Parliament and the State Legislatures. Under Item 11 of List II of the Seventh Schedule to the Constitution, a State Legislature may legislate on “education including Universities” subject to the restrictions contained in Items 63, 64, 65 and 66 of List I and Item 25 of List III. Item 63 of List I replaces, with modifications, the earlier Item 13 of List I from the Government of India Act, 1935, thereby vesting exclusive parliamentary power to legislate concerning institutions such as the Benaras Hindu University, the Aligarh Muslim University and the Delhi University, as well as any other institution that Parliament may declare to be of national importance. Item 64 gives Parliament the authority to legislate regarding institutions for scientific or technical education that are financed wholly or partially by the Government of India and that Parliament designates as institutions of national importance. Item 65 likewise vests

The Constitution empowers Parliament to enact legislation for “Union agencies and institutions for (a) professional, vocational or technical training, including the training of police officers; (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime.” By virtue of item 66, Parliament is also authorised to legislate on “co‑ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” Item 25 of the Concurrent List further confers a shared power on both the Union Parliament and the State Legislatures to make laws concerning “vocational and technical training of labour.” It is therefore evident that the extensive authority previously vested in the Provincial Legislature to legislate on higher, scientific and technical education, as well as on vocational and technical training of labour under the Government of India Act, is now governed by the Constitution and is limited to the five subjects enumerated in List I and List III that are referenced in item 11 of List II. Items 63, 64, 65 and 66 of List I are expressly carved out of the broader subject of education, and for each of these items the legislative competence is assigned exclusively to Parliament. The phrase “subject to” that appears in item 11 of List II of the Seventh Schedule unmistakably signals that the State Legislatures are precluded from legislating on matters that are excluded by that qualification. In the decision of Hingir‑Rampur Coal Company v. State of Orissa, the Court examined the effect of the expression “subject to” in a List II entry when read in relation to a List I entry and observed that the use of “subject to” withdraws the corresponding legislative power from the State Legislature. Consequently, the authority of a State to legislate on education, including universities, must be regarded as restricted to the extent that the same subject matter has been assigned to Parliament, irrespective of whether Parliament has actually exercised that power. Thus, if a legislative subject falls within items 63 to 66, even though it might otherwise be situated within the broader category of “education including universities,” the power to legislate on that subject lies solely with Parliament.

The argument advanced by counsel for the University and for the State of Gujarat—that any law prescribing the medium or media of instruction in institutions of higher education and other institutions inevitably falls within the ambit of item 11 of List II—was rejected. Even if one were to assume, based on the wording of item 11 of List II, that the power to determine the medium of instruction is confined exclusively to the State Legislature and never extends to the excluded fields, such an assumption would imply that for institutions enumerated in items 63 to 65 the State would retain authority over the medium of instruction, while Parliament would retain authority over all other matters relating to those same institutions. This dual allocation of legislative competence would produce an anomalous and untenable result, as it would allow State Legislatures to regulate a specific aspect of institutions that are otherwise outside their legislative reach. The Court therefore concluded that the interpretation leading to such a fragmented distribution of power could not be sustained.

In this case the Court observed that a surprising consequence would follow if the power to determine the language of instruction were placed with the State Legislatures even for institutions of national importance, because the State would then have authority over a matter for which it otherwise possessed no legislative competence with respect to those institutions. The Court emphasized that entry 11 of List II and entry 66 of List I must be read together in a harmonious manner. Although the two entries inevitably overlap, the Court held that to the extent of any overlap the authority granted by entry 66 of List I must take precedence over the authority of the State under entry 11 of List II. It was further noted that the subjects expressly excluded from State power mainly concern education in institutions of national or special importance, and also higher‑education institutions that include research, scientific, technological and vocational training functions. The Court then explained that the power to legislate on primary or secondary education resides exclusively with the States by virtue of entry 11 of List II; consequently, the power to decide the medium of instruction in primary or secondary schools must also rest with the State Legislatures.

The Court clarified that “medium of instruction” is not a separate head of legislation; rather, it forms part of the general power of the State to legislate on education, unless that power is expressly removed by a necessary intendment. Considering the breadth of entries 63, 64 and 65, the Court concluded that the power to legislate on the medium of instruction in those contexts must be regarded as belonging to the Union. Likewise, when the choice of language directly affects the coordination and determination of standards in higher‑education, research and technical institutions, entry 66 of List I likewise vests that legislative authority in the Union. The Court recognized that the State may prescribe syllabi and courses of study for institutions listed in entry 66 (provided they do not fall within entries 63 to 65) and, as a consequential incident, may indicate the language in which instruction should be delivered. However, the Union Parliament possesses an overriding power to ensure that the syllabi, courses and chosen language do not compromise educational standards or impede national or broader coordination of those standards. Thus, although the Union and the State each have exclusive entries, some degree of overlap is unavoidable, and no single general rule can resolve every question that may arise. On one hand, it is clearly within the State’s competence to determine syllabi, courses and, consequently, the medium of instruction; on the other hand, the Union also retains the authority to legislate on language of instruction where coordination and standard‑setting are at stake.

In this case, the Court explained that the power to legislate on instruction was intended to secure coordination and determination of educational standards, meaning that the legislation should maintain or improve those standards. The Court noted that the mere fact that the Union had not exercised its full legislative authority, or had chosen not to legislate, did not give the State a right to legislate on a subject that the Constitution assigned to the Union. Nevertheless, the Court observed that even within the respective exclusive fields, the two levels of government could each enact statutes that might conflict with one another. When such a conflict arose, the question of repugnancy and the principle of paramountcy would have to be settled by applying the doctrine of pith and substance to the impugned law. The Court further held that the validity of any State legislation concerning university education, or technical and scientific institutions that did not fall within Entry 64 of List I, must be examined to see whether it intruded upon the field reserved for the Union under Entry 66. Accordingly, the Court stated that a State law would be invalid only if it adversely affected coordination and determination of standards, and not merely because a specific Union law on that purpose existed. If a Union law on coordination and determination of standards did exist, it would prevail over the State law under the first part of Article 254(1). Even in the absence of an active Union law, the Court affirmed that because the relevant entries lie in the exclusive lists, any State law encroaching on the Union’s domain would still be void.

The Court then turned to the argument presented by counsel for the University, which contended that the power given by Item 66 of List I was limited to coordinating and determining standards—that is, merely evaluating and fixing educational standards. The counsel argued that the term “coordination” meant only evaluation, while “determination” meant only fixation, and therefore Parliament could legislate solely for the purpose of evaluation and fixation in the institutions named in Item 66. During the discussion, the counsel reluctantly conceded that the Union might also enact legislation to remove disparities that had arisen from the use of regional languages as the medium of instruction and to equalise standards in higher education. The Court rejected this narrow view for several reasons. It emphasized that Item 66 is a legislative head and, unless the language of the entry expressly or necessarily imposes a limitation, a narrow construction should not be imposed on its broad wording. The Court explained that legislative power over a subject normally extends to all ancillary or subordinate matters that can fairly be regarded as part of that subject. Moreover, the Court found no textual support in Item 66 or elsewhere in the Constitution for the submission that “coordination” should be interpreted merely as evaluation.

In this case the Court explained that the term “coordination” as used in the constitutional provision did not refer merely to evaluation; rather, in its ordinary sense it meant harmonising or bringing various elements into a proper relationship so that all participated in a common pattern of action. Accordingly, the power to coordinate was described as a power not only to assess standards but also to secure a relationship that would enable concerted action. The Court observed that the authority conferred by item 66 of List I was not conditioned by the existence of an emergency or by the presence of unequal standards that might trigger its use. Nothing in the entry suggested that the power to legislate on coordination of standards in institutions of higher education excluded the authority to prevent the emergence of disparities or to remove existing ones. The Court stressed that this power was not limited to situations of disparity, nor was it confined to mere evaluation without the ability to take remedial steps. By the explicit wording of the Constitution, the power to coordinate necessarily implied a power to prevent conditions that would render coordination impossible or difficult. The Court held that the power was absolute and unconditional, and in the absence of any limiting factor it must be given full effect according to its plain and expressed intention. Although “medium of instruction” did not appear as a separate item in the legislative list, the Court noted that it fell within item 11 as a necessary incident of the power to legislate on education, and also within items 63 to 66. Since it was a necessary incident of the powers under item 66 of List I, the Court regarded it as included in that item and therefore excluded from item 11 of List II. The Court further observed that the impact of State legislation on the medium of instruction on the coordination of higher education could not be answered categorically without a concrete challenge to a specific statute. It recognized that in some subjects the medium might have only a subsidiary effect on educational standards, while in subjects such as scientific, technical, law, engineering, or medicine the medium could be vital. The Court explained that effective instruction in these fields depended on the availability of adequate textbooks, journals, competent instructors, and the capacity of students to understand instruction delivered in the chosen medium. If any of these elements were lacking, the Court said standards would inevitably fall, and legislation aimed at coordinating standards would necessarily include provisions relating to the medium of instruction.

In this case the Court observed that legislation which imposes an exclusive medium of instruction in a regional language or in Hindi, when such imposition is made in the absence of adequate textbooks and journals, competent teachers and when students lack the capacity to understand the subjects, is likely to lower educational standards. The Court held that, in such circumstances, the legislation would necessarily fall within item 66 of List I and therefore would be excluded to that extent from the scope of the power conferred by item 11 of List II. The Court emphasized that these observations were based on abstract considerations presented before it and that no specific statute, other than the one to be mentioned subsequently, was directly challenged. Counsel for the State and the University invited the Court to express an opinion on whether legislation that the State might enact to remedy the deficiency identified in the interpretation of section 4(27) would be within the competence of the State Legislature. The Court noted that the shape such legislation might take was a matter for the State to decide.

The Court proceeded to examine broadly the true effect of item 66 in List I as it relates to item 11 in List II, insofar as both items concern the powers of Parliament and the State Legislature to enact laws concerning the medium of instruction. The Court declined to agree with the High Court’s view that Act 4 of 1961, insofar as it amended the proviso to section 4(27), was invalid because it purported to exceed the State Legislature’s competence. By amending the proviso to section 4(27), the Legislature sought to continue using English as the medium of instruction for subjects selected by the Senate beyond the ten‑year period prescribed by the Gujarat University Act, 1949. The Court noted that, prior to the enactment of the parent Act, English had been the traditional medium of instruction for all university‑level subjects across the country.

The Court explained that the original proviso authorised the University to continue using English as an exclusive medium of instruction for certain subjects chosen by the Senate, and that the amendment did not create any power to provide an exclusive medium other than the pre‑existing one. The Court observed that imparting instruction through a common medium—English, which had already been the sole medium of instruction nationwide—cannot by itself cause a decline in standards, nor can it affect the coordination and determination of standards. By extending the provision allowing instruction in English for a period longer than ten years for the subjects selected by the University, the amendment did not attempt to encroach upon the Union’s powers under item 66.

In this matter, the Court observed that if the University possessed no authority to prescribe an exclusive medium of instruction, then the enactment of section 38A, which provides penalties for failure to follow directions relating to the medium of instruction, would not be invalid. Consequently, the High Court’s order declaring statutes 207 and 209 of the University invalid to the extent that they attempted to impose Gujarati or Hindi, or both, as exclusive mediums of instruction, as well as the circulars issued to enforce those statutes, were to be confirmed. The Court expressly refrained from commenting on the alleged violation of the petitioner’s fundamental rights under Articles 29(1) and 30(1) of the Constitution. It set aside the High Court’s determination that the proviso to clause 27 of section 4 and section 38A were invalid, but noted that this reversal was subject to the Court’s own interpretation of the relevant provisions and to the power of the State Legislature to require Gujarati, Hindi, or both as exclusive mediums of instruction in the affiliated and constituent colleges. The appellants were ordered to pay the respondents’ costs in both appeals, together with one hearing fee. Justice Subba Rao, speaking with the greatest respect, stated that he could not agree with the contrary view and mentioned that the factual background had already been fully recorded by Justice Shah, thus requiring no repetition. He 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 University’s 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 first question was framed more specifically as: could the State Legislature, under entry 11 of List II of the Seventh Schedule, authorize a University to prohibit, either expressly or by necessary implication, any medium of instruction other than those it prescribed? Counsel for the University of Gujarat and the State argued that entry 11 of List II indeed granted such power to the State Legislature. Conversely, counsel for the respondents conceded that a State Legislature could empower a university to prescribe a medium of instruction, but contended that a State law which barred the use of English—traditionally the exclusive medium of instruction in Indian universities—and mandated the exclusive or additional use of a regional language, thereby interfering with the fixation of standards and all‑India coordination, would intrude upon entry 66 of List I of the Seventh Schedule, rendering such a State law beyond its legislative competence.

Before examining how entry 66 of List I might affect entry II of List II, the Court found it useful to outline the basic rules of statutory construction that are relevant to the dispute. The counsel representing the respondents argued that the doctrine of “pith and substance” is inapplicable where one constitutional entry is expressly made subject to another entry. According to that argument, if a provision falls outside the scope of a particular entry and a different entry is invoked to cover the same field, there is no overlap and consequently no need to apply the pith‑and‑substance analysis. The respondents further maintained that the courts have developed a separate principle called “direct impact”, which they described as a rule that any State law having a direct impact on a Union List entry lies beyond the competence of the State legislature. The Court therefore examined whether any independent doctrine of this sort exists in precedent or in principle.

In addressing this issue, the Court referred to the decision of the Judicial Committee in Prafulla Kumar v. Bank of Commerce, Khulna (1). In that case the Committee applied the pith‑and‑substance test to decide whether the Bengal Money‑lenders Act of 1940 was ultra‑vires the Provincial Legislature. The conflict involved items 28 and 38 of List I of the Government of India Act, 1935—respectively promissory notes and banking—and item 27 of List II, which concerned money‑lending. The Committee held that the true nature of the Act was money‑lending; therefore it fell within item 27 of List II and was not invalid simply because it incidentally touched matters reserved to the Federal Legislature, namely promissory notes and banking. The report at page 65 contained a notable passage stating: “But the overlapping of subject‑matter is not avoided by substituting three lists for two or even by arranging for a hierarchy of jurisdiction. Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found.” The judges further observed that the extent of provincial invasion into subjects enumerated in the Federal List must be considered, not to discriminate between degrees of invasion, but to determine the pith and substance of the impugned law. They emphasized that what matters is whether the trespass, however extensive, shows that the pith and substance of the law is outside provincial competence, rather than merely measuring how much invasion has occurred.

Thus, the Court concluded that there is no separate “direct impact” doctrine that automatically excludes a State law because it affects a Union List entry. Instead, the degree of overlap between the fields covered by different constitutional lists is a factor that must be examined when applying the pith‑and‑substance analysis to ascertain the true character of the legislation in question.

The Court observed that the passage in question made clear that the extent to which a law enacted under one constitutional entry intrudes into the field of another entry does not invoke a separate doctrinal rule; rather, such intrusion is merely a factor to be considered when determining the true nature, or pith and substance, of the impugned legislation. The Court referred to its earlier decision in The State of Bombay v. F. N. Balsara, where it had adopted this principle. In that case the constitutional validity of the Bombay Prohibition Act of 1949 was examined. The issue was whether the Act fell within entry thirty‑one of List II of the Seventh Schedule to the Government of India Act, 1935, which deals with intoxicating liquors – that is, the production, manufacture, possession, transport, purchase and sale of such liquors – or whether it fell under entry nineteen of List I, which pertains to import and export across the customs frontier and is a subject of exclusive Dominion jurisdiction. The Court held that the essential character of the Bombay Prohibition Act was covered by the former entry concerning intoxicating liquors, even though the Act incidentally touched upon matters of the Dominion field. Counsel for the respondents argued, among other points, that the prohibition on purchase, use, transport and sale of liquor would affect importation. That argument was presented as part of the doctrine of pith and substance, but the Court rejected it, stating that the incidental encroachment did not alter the true nature or character of the legislation. The Court later faced a similar question of validity in the case of A. S. Krishna v. The State of Madras, which concerned the Madras Prohibition Act. There, the petitioners contended that certain provisions of the Act were inconsistent with existing Indian statutes, namely the Indian Evidence Act of 1872 and the Criminal Procedure Code of 1898, and that the earlier statutes would be impacted by the new provisions. The Court dismissed that contention, observing that if, in substance, a statute relates to a matter within the competence of the legislature, it must be deemed intra vires even though it may incidentally intrude upon topics beyond its legislative competence. The Court further explained that the degree of such incidental encroachment could be relevant in assessing whether the law is colourable – that is, whether the legislature, under the pretense of acting within its jurisdiction, is in reality legislating on a matter beyond its authority. However, when the law is not colourable, the mere fact of incidental encroachment does not affect the validity of the statute, even with respect to the areas it incidentally touches. The Court also noted that the doctrine of “direct impact” was recognized in Union Colliery Company of British Columbia Ltd. v. Bryden, where the issue concerned the application of a provincial mining regulation to a specific class of alien workers.

The Judicial Committee examined the British Columbia Coal Mines Regulation Act of 1890, which prohibited adult Chinese individuals from being employed in underground coal mines. The Committee concluded that the provision was beyond the authority of the provincial legislature because it concerned the subject of “naturalisation and aliens.” This subject matter, the Committee noted, was within the exclusive jurisdiction of the Dominion Parliament under section 91, subsection 25 of the British North America Act, 1867. The relevant authorities were cited as (1) [1957] S. C. R. 399, 406 and (2) [1899] A. C. 580, 587.

In its reasoning, the Committee observed that the dominant feature of the enactments was that they applied solely to Chinese persons who were aliens or naturalised subjects, and that the sole rule they created was to forbid those aliens or naturalised subjects from working in underground coal mines within the province of British Columbia. After reaching this conclusion, the Lords further stated that, by virtue of section 91, subsection 25, the Dominion legislature possessed exclusive authority over all matters that directly affect the rights, privileges and disabilities of the class of Chinese residents in any Canadian province. They were of the opinion that the true pith and substance of section 4 of the Coal Mines Regulation Act, to the extent challenged by the appellant company, consisted in establishing a statutory prohibition that impacted aliens or naturalised subjects, and therefore encroached upon the exclusive authority of the Parliament of Canada.

This passage demonstrates that the Judicial Committee found, in pith and substance, that the impugned law affected the rights and privileges of Chinese persons, a subject matter that lay within the exclusive competence of the Parliament of Canada. The judgment reaffirmed the established doctrine of pith and substance and did not introduce any new principle of “direct impact” beyond the scope of that doctrine.

In the earlier case of Bank of Toronto v. Lambe (1), the Quebec Act was challenged on two grounds: first, that the tax did not constitute “taxation within the Province,” and second, that the tax was not a “direct tax.” The Judicial Committee held that the Act fell within the legislative competence of the province. It observed that if, upon proper construction, a legislative power falls within section 92, it would be erroneous for the judges to deny its existence merely because it might be abused or might limit the range that would otherwise be open to the Dominion Parliament. The argument of anticipatory encroachment was rejected. This case was later considered and distinguished in Attorney‑General for Alberta v. Attorney‑General for Canada (2). In that matter, the Province of Alberta enacted legislation concerning “the taxation of banks,” imposing a tax on every corporation or joint‑stock company, other than the Bank of Canada, incorporated for the purpose of conducting banking or savings‑bank business within the province.

In the legislation under review, the Province imposed an annual tax that was to be paid in addition to any tax that might be due under any other Act. The tax consisted of a rate of one‑half per cent on the paid‑up capital of a corporation and a rate of one per cent on the reserve fund and on undistributed profits. The Board examined the true character of this measure and concluded that it was not, in any genuine sense, a tax imposed for the purpose of raising revenue for provincial purposes, which would fall within the exclusive legislative competence of the Provincial Legislature under section 92(2) of the British North America Act. Instead, the Board held that the tax was merely a component of a broader legislative scheme designed to prevent the operation within the Province of banking institutions that had been created and authorized by the sole proper authority, namely the Parliament of the Dominion, under section 91 of the same Act.

Accordingly, the Board found that, although the Provincial Act was presented as a taxation measure, it was in reality a colourable attempt to hinder the functioning of banks, an area that is a Dominion subject. The pith and substance of the statute, therefore, was not direct taxation or taxation within the Province as contemplated by section 92, but rather a measure that fell within the Dominion’s exclusive power over banking. The reasoning for this conclusion is set out at page 133 of the report, where the Court quoted the opinion of Kerwin, J., with concurrence by Crocket, J., stating that there was no escape from the conclusion that the Bill, rather than being a genuine tax for provincial revenue, was “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.” Thus, the constitutional validity of the Bill was sustained on the basis that it was a colourable piece of legislation dealing with a subject that, in substance, belonged to the Dominion field.

The Judicial Committee, in reaching this finding, laid down a set of guiding rules for ascertaining the true nature of legislation. Their Lordships began by observing that it is well established that if a subject‑matter falls within any class of subjects enumerated in section 91, it cannot be treated as covered by any of those within section 92. To determine the correct classification, they first required a comparison of the two complete lists of categories with the aim of ascertaining whether, on a fair consideration, the legislation in question prima facie falls within section 91 rather than section 92. The next step, as indicated, is to examine the effect of the legislation, though the discussion stops at that point in the text.

The Committee explained that the first step in the analysis was to compare the two complete lists of subjects in order to determine whether the impugned legislation, when fairly considered, fell prima facie within the jurisdiction of one list rather than the other. The second step involved examining the effect of the legislation, and the third step required looking at the object or purpose of the Act. From this exposition it follows that the Committee did not create any new principle of “direct impact” apart from the established doctrine of pith and substance. Nevertheless, the Committee recognised that a heavy impact or a crippling effect of a challenged law on a subject that belongs to the Union could be a strong indication that the law was colourable in nature. The discussion, however, does not support the suggestion that, aside from the doctrine of pith and substance, the courts have endorsed an independent principle of direct impact. Accordingly, the argument that the doctrine of pith and substance does not apply when one entry in a list is expressly made subject to another entry in a different list cannot be accepted. In such a situation the latter entry merely carves out a field from the scope of the former entry and places it in the latter; this carving out does not alter the relevance or applicability of the doctrine.

The situation is analogous to the construction of two entries in different lists. Whether the entries are carved out of the same subject or deal with distinct subjects, the same principle of construction applies: the court must determine under which entry the impugned law falls. The doctrine of pith and substance means that if, upon examination, the substance of a statute is found to be on a matter assigned to the legislature, the law is deemed valid in its entirety, even though it may incidentally touch matters beyond its jurisdiction, as held in State of Bombay v. F. N. Balsara and A. S. Krishna v. State of Madras. The true character of the legislation is the decisive factor, and incidental encroachment on other items is not material. Consequently, once it is concluded that the challenged legislation squarely falls within one entry, its incidental intrusion into another entry, whether carved out of the former entry or existing independently, does not render it invalid. In summary, when a question arises about the appropriate entry for a law, the court must ascertain the scope, effect and pith and substance of the legislation. Decided cases provide various criteria for this inquiry, including comparison of conflicting entries, the legislation’s effect, its object and purpose, legislative history, colourable nature and other relevant considerations. No authority has held that a law, even if its pith and substance falls within a particular entry, should be struck down on speculative anticipatory grounds because it might later conflict with a law made by a co‑ordinate legislature.

The Court stated that a statute could not be struck down simply because of a speculative or anticipatory possibility that it might later clash with a law made by a co‑ordinate legislature under another constitutional entry. It explained that only when the effect of a State law upon a subject placed in the Union List is so severe and overwhelming that it effectively eliminates or substantially curtails the Union field may the State law be deemed a colourable exercise of power. In such a circumstance, the Court would examine the pith and substance of the law and could conclude that, in substance, the law falls within the Union entry rather than the State entry. The Court emphasized that the existing case law does not support the creation of any new doctrine outside the established principle of pith and substance.

In further analysis, the Court referred to well‑settled rules of interpretation that were laid down by the Federal Court and have been accepted by this Court in construing the legislative entries. The Court cited the decisions in Calcutta Gas Co. Ltd. v. The State of West Bengal, reporting that “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 that doctrinal background, the Court turned to examine two specific entries: entry 11 of List II and entry 66 of List I. Entry 11 of List II reads: “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: “Coordination and determination of Standards in institutions for higher education or research and scientific and technological institutions.” The Court clarified that it was not concerned with the question of the medium of instruction, which has been separately addressed in entries 63, 64 and 65 of List I. The Court observed that the entire field of education, including universities, subject to the exceptions mentioned in entry 11 of List II, is entrusted to the State Legislature. It further noted that education cannot exist without a medium or media of instruction, and to separate the concept of education from the medium of instruction would amount to destroying the very concept of education.

The Court observed that the idea of separating the matter of the medium of instruction from the broader field of education was untenable. It stated that a sensible body of constitutional framers would not assign the issue of the language or languages used for instruction to the Parliament while leaving the rest of education to the State, because such a division would be akin to removing the hand that feeds the mouth. The Court acknowledged that, with respect to elementary and secondary education, the Constitution does not create such a separation, and that this fact was admitted by the parties. It further noted that the medium of instruction is expressly mentioned in entry 63 of List I, which deals with specified universities. Having accepted that the medium of instruction is covered by entry 63, the Court asked why it should be omitted from university education in entry 11 of List II. It found no justification for such an exclusion.

Turning to entry 66 of List I, the Court held that, on its face, this entry does not expressly incorporate the question of the medium of instruction. Although the wording of the entry is broad, the Court found it sufficiently clear to warrant analysis. It examined the two key expressions contained in the entry – “coordination” and “determination of standards.” The Court considered the argument of counsel for the appellant that the combined phrase meant merely fixing standards so that they could be compared and equalised where they differed. While finding this interpretation plausible, the Court deemed it overly narrow because it would reduce Parliament’s role to that of a passive observer. The Court insisted that the purpose of Parliament’s power must be understood in a more purposive and effective manner.

The Court rejected the submission of counsel for the respondents that, under certain circumstances, Parliament could enact legislation that replaces a State‑prescribed medium of instruction with a different one of its own choosing. The Court said that such an interpretation would intrude so deeply into the State’s domain that it could not be allowed unless the language of List I was unmistakably clear and unequivocal. Explaining the meaning of “to determine,” the Court quoted that it signifies “to settle, decide or fix.” It then turned to the dictionary meaning of “coordination,” which includes “to place in the same order, rank or division; to place in proper position relative to each other and to the system of which they form parts; to act in combined order for the production of a particular result.”

According to the Court, these definitions allow Parliament to legislate for the fixing of standards in institutions of higher education so that such institutions can be harmoniously coordinated to achieve the intended result, namely the improvement of higher education. The Court emphasized that the composite phrase “coordination and determination of standards” does not necessarily entail prescribing a particular medium of instruction. To illustrate this point, the Court listed the various elements essential for effective education – textbooks, teachers, students, equipment, buildings, finances, and an appropriate medium of instruction – and noted that all these elements are encompassed within the broader concept of “education.” It warned that it would be unreasonable to hold that every one of these components falls under “coordination and determination of standards,” for doing so would strip the entry “education” of its substantive meaning. In such a circumstance, the Court said, the principle of harmonious construction must be applied to draw a clear demarcation, and the clue for drawing that line lies in the word “coordination.”

In this passage the Court explained that the term “co‑ordination” limits Parliament’s legislative competence to the improvement of educational standards, while the State retains the authority to enact laws for providing education and for maintaining its standards. The Court noted that certain universities may experience a decline in quality because of deficiencies in matters such as infrastructure, faculty, financial resources, or other essential components of higher education. To address such deficiencies, Parliament may legislate to furnish facilities covering any or all of those aspects so that lagging universities can rise to the level of more advanced institutions. Parliament may also enact legislation aimed at raising the overall standards of every university. Such legislation may set general benchmarks for the matters mentioned and may supply the necessary financial and other assistance to enable universities to achieve the prescribed level. The Court further observed that a law of this character might establish a mechanism to enrich the language chosen as the medium of instruction by a particular university, thereby making that language a more effective vehicle for higher education as well as for technological and scientific studies. However, the Court held that if the essential purpose of the law is “co‑ordination and determination of standards,” a incidental impact on the medium of instruction for the purpose of enrichment may be permissible, but Parliament cannot, under the guise of co‑ordination, replace the medium of instruction, because such a replacement would constitute a direct, not merely incidental, intrusion into the field of education. The relevant constitutional entry, the Court explained, does not authorize legislation that allows an external body to interfere directly with the curriculum or instructional methods of any university; it only empowers the making of general standards and the provision of ancillary assistance to achieve those standards. In short, Parliament’s role is likened to that of a guardian that may create a framework to monitor, advise, and provide financial and other support so that universities can fulfil their designated functions. The University Commission Act was enacted to effect such a role. Consequently, the Court concluded that no real conflict exists between the two constitutional entries. Moreover, the constitutional scheme itself rejects the notion that Parliament may legislate on the medium of instruction. At the time the Constitution was adopted, several well‑developed regional languages were listed in the Eighth Schedule, while English served as the medium of instruction at all levels and also functioned as the official language of administration. It was universally accepted that English should eventually be replaced, but the transition was intended to be gradual. Article 343 declares Hindi in Devanagari script as the official language of the Union and permits the continued use of English for official purposes for a specified period. In the field of education, however, no such phased timetable was prescribed, presumably because the Constitution left the timing and manner of any transition in the hands of the States’ legislatures and educational experts.

The Court observed that the Constitution’s framers placed great emphasis on substituting English with Hindi for all official purposes, formally recognized the regional languages, omitted English from the Eighth Schedule, and under Article 351 directed that Hindi should be enriched by assimilating material from the languages listed in the Eighth Schedule as well as from Hindustani. These provisions together indicate that the drafters were confident that the regional languages were either already sufficiently rich or at least capable of becoming convenient vehicles of instruction at every level of education. Because of that confidence, the Constitution did not contain any explicit provision requiring a staged replacement of English by the regional languages. Accordingly, it may be accepted that the framers believed the specified regional languages would serve as suitable media of instruction, although it can also be conceded that those languages would need to be enriched in order to meet the requirements of higher education. In this context, entry 66 of List I must be interpreted on the assumption that regional languages would be the media of instruction in all universities, and if that assumption is adopted, a law that sets standards for coordination cannot override the chosen medium of instruction. The Court then considered an alternative argument. It was asserted that English is the established medium of instruction throughout the country, that other universities might follow the example set by Gujarat University, that such a development would cause a sharp decline in the standards of higher education, and that, if the appellant’s view were accepted, Parliament would become a helpless spectator to the resulting disaster. In effect, under the appellant’s construction, the larger part of the field of coordination would be eliminated. This line of reasoning was advanced, albeit in different wording, by counsel for the respondents. The argument essentially claimed that the substance of a State law prohibiting the use of English falls not under the subject of “education” but under the entry “coordination”. The Court found this argument attractive in appearance but lacking any legal or factual foundation. If the substance of the impugned law were truly covered by the “education” entry, the question of encroaching upon the Union entry would not arise at all; thus the contention was a matter of policy rather than a correct legal construction. The simple answer, according to the Court, is that the Constituent Assembly did not deem it appropriate to assign the subject of medium of instruction to Parliament, instead relying on the wisdom of the State legislatures to rise to the occasion and enact suitable legislation. Factually, except for Gujarat, where the legislature introduced Gujarati as the exclusive medium of instruction through an accelerated process, all other States have adopted a gradual, go‑slow policy. Although that circumstance, in the Court’s view, has no bearing on the construction of the relevant constitutional provisions, there is no immediate danger that all other States will abolish English as an additional medium of instruction. The Court expressed a preference to...

In its reasoning, the Court preferred to give the word “education” its ordinary meaning rather than to expand the term “co‑ordination” in order to address a hypothetical emergency in which every state, following the example of a single state, might reject English as a medium of instruction. The Court observed that the picture presented by counsel was overly dramatic; it assumed that without English as one of the languages of instruction, educational standards would inevitably decline and coordination would become impossible. The Court noted that the framers of the Constitution did not share that view and did not provide for the continued use of English in universities. It further 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 expressed confidence that state legislatures and, especially, universities would make reasonable efforts to preserve standards. It rejected the notion that state legislatures would act against the best interests of university education while Parliament could always be trusted to act in the public interest. All legislative bodies under the Constitution are elected on adult franchise, and the Court properly presumed 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, if it possessed the requisite authority, could resolve the issue by adopting Hindi as the medium of instruction in all universities. It emphasized that the choice of institution for implementing a particular purpose is a constitutional matter, and therefore the Court’s duty was to interpret the constitutional provisions without being swayed by temporary local conditions. Consequently, the Court concluded that entry 11 of List I of the Seventh Schedule embraces the medium of instruction and that this subject is not covered by entry 66 of List I. Accordingly, the State Legislature was competent to enact a law empowering a university to designate a regional language as the exclusive medium of instruction. The Court then turned to the question of whether the Gujarat University Act, 1949, authorized the university to prescribe such an exclusive language, or, in other words, whether the university possessed the power, either expressly or by necessary implication, to forbid the use of any language other than that which it prescribed as the medium of instruction. At the outset, the Court found it useful to briefly outline the structure of the Act so that its 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 formed a corporate body named “The Gujarat University.” The university was established as a teaching and affiliating institution with, among other powers, the authority to provide instruction, teaching and training in various branches of learning and courses of study.

The University is authorised, under the statute, to provide instruction and teaching in the various branches of learning and to determine the courses of study that it offers. It may also conduct examinations and confer degrees, as well as to exercise control and coordination over the activities of all institutions that are connected with the University. In addition, the University may perform any acts or things that are incidental to the powers expressly mentioned. These purposes are achieved through three distinct instrumentality bodies. The first is the Senate, which functions as the legislative organ of the University; the second is the Syndicate, which performs the executive functions; and the third is the Academic Council, which is charged with maintaining the standards of the University’s examinations. The Chancellor occupies the position of head of the University. The Senate is responsible for passing statutes, the Syndicate for issuing ordinances, and the Academic Council for formulating regulations, each according to the domain that has been assigned to it. Both the Chancellor and the State Government possess the authority to inspect the affairs of the University and to issue any necessary instructions. In brief, the University is a corporate entity that enjoys a considerable degree of autonomy and is created to promote higher education. It holds the power to confer degrees and other privileges upon the successful alumni of the colleges and institutions that fall under its jurisdiction.

Having set out the general framework, the judgment proceeds to examine the specific provisions of the Act. Clause (1) of section 4 empowers the University to provide instruction, teaching and training in any branches of learning and courses of study that it deems appropriate, and also to make provisions for research and the dissemination of knowledge. Clause (7) authorises the University to “Jay down” the courses of instruction for the various examinations. Clause (8) directs the University to guide teaching in colleges or recognised institutions. Clause (10) gives the University the authority to hold examinations and to confer degrees, titles, diplomas and other academic distinctions. Clause (14) permits the University to inspect colleges and recognised institutions and to take measures to ensure that proper standards of instruction, teaching or training are maintained therein. Clause (15) enables the University to control and coordinate the activities of, and to provide financial assistance to, affiliated colleges and recognised institutions. Clause (28) declares that the University may do all such acts and things, whether incidental to the foregoing powers or not, that are necessary to further its objects and to cultivate and promote the arts, science, other branches of learning and culture. Apart from the incidental powers expressly conferred by clause (28), it is well settled that a corporation may also exercise powers that are incidental to or consequential upon those expressly granted. The legal principle is illustrated by the observation of Viscount Cave, L.C., in Deuchar v. Light and Coke Company, wherein he stated: “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 passage concludes with the remark, “I must stop there.”

The Court observed that it could supplement the earlier statement with a passage from Lord Selborne’s speech in Attorney‑General v. Great Eastern Railway Co. (2). In that speech Lord Selborne said, “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.” (1) [1925] A.C. 691, 695. (2) [1880] 5 A.C. 473, 478. The Court explained that when an Act confers a power on a corporation, it implicitly also confers the power to do all acts that are essentially necessary for exercising that power.

Keeping those principles in mind, the Court examined whether, on a fair reading of the relevant statutory provisions, the University possessed an implied power to prescribe an exclusive medium of instruction. The Court held that if it were to conclude that such a power is necessary for the performance of the purposes expressly authorized by the statute, then that power could not be said to lie beyond the University’s competence. The Court noted that the University is required to provide instruction, teaching and training in various branches of learning and courses of study, to lay down the curricula for examinations and to guide teaching in colleges or recognized institutions. Accordingly, the power to prescribe a medium of instruction is implicit in the power to provide instruction and to guide teaching.

The Court further observed that instruction can occur only through a medium and that it is impossible to conceive of instruction without a medium; the two are parts of the same process. Therefore, a university cannot make provisions for instruction or teaching without simultaneously prescribing the medium or media through which that teaching will be delivered. If the University may fix two media of instruction, it can equally prescribe a single medium if it deems a particular language to be the most suitable for proper instruction. A review of earlier statutes of Bombay and similar statutes of other universities in the country shows that those universities prescribed English as the medium of instruction while exercising similar powers conferred upon them.

The Court warned that denying universities this fundamental power to prescribe the medium would jeopardise the very basis of their autonomy and utility under the Act. To illustrate, the Court explained that where a university has twenty affiliated colleges, the inability of the university to prescribe a sole medium of instruction could allow each college to adopt a different language, resulting in chaos in higher education. Moreover, without such a power, the university could not hold examinations in a single medium; it would be forced to conduct examinations in all the different languages chosen by the affiliated colleges. Although the statute confers a plenary power on the university to hold examinations and confer degrees, the Court indicated that this plenary power includes the authority to prescribe the medium of instruction.

The Court explained that although the statute authorises the University to conduct examinations and award degrees, the University would not be able to hold examinations in a language it selects if the interpretation proposed by the respondents were adopted. The Court observed that, even if the University possesses such authority, it must exercise it reasonably so as to meet the requirements of the various colleges that are affiliated with it. The Court could not envision a situation in which the University’s power to conduct examinations in a single language would become unreasonable merely because the affiliated colleges chose to pursue their own programmes without regard to the University’s view. Accordingly, the Court expressed no doubt that the University enjoys an implied authority to prescribe, for the purpose of higher education, either several media of instruction or a single medium of instruction to the exclusion of all others. The Court then turned to the contention that clause (27) of the Act expressly confers a power on the University to prescribe a medium of instruction and that, therefore, any implied power that might exist in the absence of that clause could no longer be exercised. Because much of the dispute centred on the construction of this clause, the Court found it useful to read the wording of clause (27): “The University shall have 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, provided that English may continue to be the medium 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 ….” The argument presented by the respondents was that this clause, being an express grant of power concerning the prescription of a medium of instruction, limited the University’s authority to the four corners of the clause. Under that view, the University could only provide for Gujarati or Hindi, or both, as additional media of instruction alongside English, and could not adopt an exclusive medium of instruction. The respondents attempted to reinforce this position by pointing to the use of the indefinite article “a” in the substantive part of the clause, contrasted with the definite article “the” in the proviso. They argued that because the substantive portion states that the University has the power to promote the development of 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, while the proviso merely states that English may continue to be the medium of instruction and examination, the language of the clause indicates that the University may not designate Gujarati or Hindi as the exclusive medium of instruction. The Court found no merit in this line of reasoning.

The argument advanced by the petitioners relied upon the distinction between the indefinite article “all” used in the substantive part of the clause and the definite article “the” employed in the proviso, asserting that this linguistic difference demonstrated that the University possessed no authority to designate Gujarati or Hindi as the exclusive medium of instruction. The Court found no merit in this contention. It held that clause (27) did not exhaust the University’s power to determine a medium of instruction; such power was already implicit in clause (1) of section 4 and in other related provisions previously discussed. Clause (27) merely added a further power to promote the development of Gujarati or Hindi in Devanagari script and to employ those languages as media of instruction and examination. This composite power enabled the University not only to foster the study of the languages but also to use them as instructional media.

The Court explained that a clear distinction existed between the terms “providing” and “promoting.” To promote the development of the languages meant to advance their growth and entailed actions that preceded the actual existence or use of the languages as media of instruction. The power of promotion therefore granted the University authority to prescribe ancillary measures that would aid the promotion. For example, the Court noted that Gujarati or Hindi were not, at that time, suitable mediums of instruction because they lacked sufficient scientific and technological vocabulary, there were no adequately trained professors, and appropriate textbooks were unavailable. The University could, therefore, assist financially or otherwise to enrich the languages so that they could become suitable vehicles for conveying advanced concepts. Such assistance might include intensive training programs for professors and lecturers, concessions in fees for students who chose those languages as their medium of instruction instead of English, the establishment of a pilot college where the medium of instruction was solely one of the two languages, or, in extreme cases, the prohibition of any medium other than the two languages. The Court emphasized that many other forms of subsidy and support were also conceivable to promote the languages.

Beyond instruction, the Court observed that clause (27) also addressed examination. If the University’s authority to prescribe a medium of instruction were to be derived solely from clause (27), the same logic would imply that the authority to prescribe a medium for examinations was also confined to that clause. This interpretation would create an anomalous situation: the University would be unable to conduct examinations in any language other than Gujarati or Hindi, while affiliated colleges could instruct in other languages. Such a result was untenable. Consequently, the Court concluded that clause (27) did not replace or limit the University’s established power to prescribe the medium of instruction of its choosing; rather, it conferred an additional power and a corresponding duty to promote the use of the two languages. The proviso, which allowed English to continue as a medium of instruction and examination until the end of May 1966, fit naturally within this scheme, serving as a temporary measure pending the implementation of the University’s promotional duties.

In this case, counsel for the respondents argued that the university would lose the ability to hold examinations in any language other than Gujarati or Hindi once the period mentioned in the proviso expired. The Court observed that such a result would be impossible, because clause (27) already grants the university an undisputed authority to determine the medium of instruction, and the proviso merely adds a temporary permission to continue using English. Accordingly, the Court held that clause (27) does not replace or diminish the university’s inherent power to select a medium of instruction; instead, it confers an extra power together with a duty to promote the two languages named in the provision. The proviso, therefore, fits coherently within the overall scheme, allowing English to remain the medium of instruction and examination for subjects until the end of May 1966, while simultaneously obligating the university to introduce either Hindi or Gujarati as a medium of instruction during that interval.

The Court then examined the argument based on the use of the indefinite article in the main part of the clause and the definite article in the proviso. It noted that the indefinite article indicates that the legislature intended to give the university the authority to add an additional medium, rather than to prescribe a single, exclusive medium. Had the legislature wanted to limit the university to one specific medium, it would have employed the definite article “the” as it did in the proviso, where English is already established as the prevailing medium. Grammatically, the definite article is appropriate only when referring to a known or previously mentioned object; hence its use in the proviso correctly points to English, which at that time functioned as the exclusive medium of instruction. Conversely, the main clause mentions two alternative languages that may be prescribed, and the appropriate grammatical choice in that context is the indefinite article, signifying that either one or both of the languages may be introduced.

The Court warned that accepting the respondents’ argument would create a serious inconsistency. If the university were barred from introducing any language other than Gujarati or Hindi after the period specified in the proviso, it would effectively lose the ability to continue using English as a medium of instruction. To avoid this difficulty, the respondents contended that the power to keep English as a medium beyond the prescribed period is necessarily implied in the proviso. The Court explained that the doctrine of necessary implication in statutory construction requires an implication that is absolutely essential and unavoidable. However, the Court also emphasized that such an implication cannot be based on conjecture, and that the legislature cannot be assumed to have omitted a vital power by mistake. The Court therefore concluded that the power to continue using English after the provisional period must be read into the provision, not inferred from a drafting error, because the legislature clearly intended the proviso to operate on the basis of an existing authority to use English.

The Court observed that the power to prescribe a medium of instruction could not be treated as an implication based on conjecture. To suggest that the Legislature had been unable to draft a clear provision would be to attribute ineptitude to the legislature, an approach the Court found unacceptable. Moreover, interpreting the provision in that way would conflict with the ordinary meaning of the language employed in the proviso. The Court noted that when the Legislature enacted clause (27) of section 4, it must have been aware that the University was already using English as the medium of instruction under the powers previously vested in it. With that awareness, the Legislature chose to include in the proviso a provision allowing the University to continue using English as the sole medium for a specified period. Consequently, the proviso was based on the assumption that the power already existed; it was not intended to create the power for the first time. The Court explained that if the proviso were read as granting the University a new power to prescribe English as a medium, it would inevitably follow that, after the period mentioned in the proviso, the University would be barred from prescribing any language other than English, Hindi or Gujarati. Conversely, the Court held that clause (27) should be understood as conferring an additional power on the University, supplementing its pre‑existing authority to prescribe any medium or media of instruction. Under this construction, the relevant statutory provisions operate together. The University would retain the authority to prescribe any medium, to promote Hindi and Gujarati, to introduce the use of Hindi and Gujarati, to continue English as the sole medium for the period allowed, and, after that period expires, to prescribe English or any other language in addition to Hindi or Gujarati. The Court warned that accepting the artificial construction advocated by the respondents would effectively strip the University of its power to discontinue English as a medium of instruction and would also prevent it from introducing any language other than English, Hindi or Gujarati. For these reasons, the Court concluded that clause (27) of section 4 of the Act provides only an additional power and does not diminish the implied powers that arise from other provisions of the Act. The Court then turned to an argument based on section 18(1)(XIV) of the Act, which states: “(XIV) 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 confers a power on the University, clause (XIV) of section 18(1) imposes both a power and a duty on the Senate to make provision for the use of Gujarati or Hindi in Devanagari script.

In this case, the Court observed that the counsel representing the respondents again pressed upon the significance of the indefinite article that appears in the contested clause. The Court found that it could not agree with either of the two contentions that had been advanced. When a statute confers on a university the power to promote two specified languages as the medium of instruction, the purpose is presumed to be the promotion of the public good; consequently a correlative duty arises on the university to exercise that power in a manner consistent with that public purpose. The distinction that section 4 of the Act enumerates only powers, whereas section 18 refers to both powers and duties, does not alter the analysis, because the underlying objective of the power remains the advancement of public welfare. The Act employs three distinct expressions – the word ‘provide’, the word ‘promote’, and the phrase ‘make a provision’. According to the statutory scheme, the university may exercise its authority only through its own institutional mechanisms and only in the manner prescribed by the legislation. Section 18, however, uses the wording ‘to make provision’ rather than the terms ‘provide’ or ‘promote’, which indicates that the legislature intends specific provisions to be fashioned, presumably by the enactment of statutes. As the university possesses the authority both to provide an exclusive medium of instruction and to promote the use of the two languages, the Senate is thereby authorized to enact statutes that establish the exclusive medium under the power granted by section 18(1)(i) and to promote the languages under the power granted by section 18(1)(xiv).

The Court further explained that, for the purpose of encouraging and developing the study of Gujarati and Hindi in the Devanagari script, the Senate, the Syndicate and the Academic Council each have the capacity to make the requisite regulations, provided that they act within the limits of the powers that have been conferred upon them by the statute. The Court held that the presence of the indefinite article ‘a’ in clause (xiv) of section 18(1) does not bear material relevance, because the article is the appropriate one in the grammatical context of the provision. The respondents also advanced another contention, which had been accepted by the High Court, namely that section 4(1) together with the other clauses of that section were intended to apply only to residential colleges. The Court rejected this contention, observing that the language of those provisions is wide‑ranging and comprehensive, and it does not admit any such narrow limitation. In the same vein, the argument that this construction would permit the university to abolish English altogether as a medium of instruction was found to be irrelevant; the university may indeed remove English as a medium if it possesses the statutory power to do so. The Constitution contemplated that the responsibility for imparting higher education would lie with the state legislatures and with the universities, and the Court opined that the Legislature, rightly in its judgment, conferred the necessary powers on the university in the interest of higher education. It was further observed that no one is better qualified than the learned members of the state intelligentsia who sit on the various bodies of the university to decide which medium of instruction should be introduced in the colleges that are affiliated to the university. The Court recognized that a particular university might choose to accelerate the pace of introducing a regional language as the medium of instruction, while other universities might adopt a more cautious policy, and that such decisions lie within the university’s discretion.

The Court observed that while some universities have accelerated the introduction of a regional language at the university level, other universities have adopted a more cautious policy. It further stated that the decision as to which medium of instruction to use rests exclusively with each university. The Court noted that if the enabling statute has indeed conferred such power, the considerations raised by the parties become irrelevant. It was not contested that, under the statute, the University possesses authority to prescribe an exclusive medium of instruction, and that Section 38 A of the Act, being a consequential provision, would consequently be valid. For these reasons, the Court held that the University acted within its legal authority when it, by statutory amendment, designated the two specified languages as media of instruction to progressively replace English. Consequently, the order of the High Court was set aside and the appeals were allowed, with costs awarded to the appellants both in this Court and in the High Court. Accordingly, the Court affirmed the majority view that both appeals are dismissed as indicated in the majority judgment, and ordered a single set of hearing fees to be paid. In sum, the Court concluded that the appeals were dismissed, thereby affirming the High Court’s original decision to the extent it had been set aside.