Gujarat University v. Krishna Ranganath Mudholkar [AIR 1963 SC 703]

Introduction

Many luminaries, including Mahatma Gandhi, Sardar Patel, Anandshankar Dhruv, Ganesh Vasudev Mavalankar, and Kasturbhai Lalbhai, advocated for the establishment of the university in the 1920s, and it was founded shortly after India’s independence.Gujarat University arose from the Ahmedabad Education Society, which was a significant educational institution in Gujarat at the time. Gujarat Institution was established in 1949 as a teaching and affiliating university under the Gujarat University Act of the Gujarat Government. It was founded on the proposal of a commission led by Ganesh Vasudev Mavalankar to reorganize university education in the state of Bombay. Later, several institutions were founded, resulting in the Gujarat University’s authority being reduced. At the undergraduate level, it is an affiliating university, and at the postgraduate level, it is a teaching university. In the university’s courses, faculties, and linked institutions, about 300,000 students are enrolled. External as well as enrolled students are served by the institution. As of 2014, there were 285 colleges, 35 authorized institutions, and 20 recognized institutions among the affiliates. According to the renowned Outlook-ICare India University Ranking 2019, Gujarat University is ranked first in Gujarat and 26th in India in the category of “Public State Universities.”The Gujarat University Act of 1949 governs the university’s structure.

This Act, unless there is anything repugnant in the subject or context, will come into force at once. The State Government may, by notification in the Official Gazette, direct that all or any of the remaining provisions of this Act shall come into effect on other dates. “Degree College” means an affiliated college authorized to submit its students to an examination qualifying for any degree of the University. [1]

“University Area” means the areas specified in the 1[Schedule I]. “Teachers of University” means teachers appointed or recognized by the University for imparting instruction on its behalf. Every authority of the Gujarat University for whose constitution provisions have been made for the first time in the principal Act by this Act shall be constituted within not more than six months. The Chancellor may nominate in consultation with the State Government such person as he thinks fit to be the Vice-Chancellor of the University of Guernsey. The candidate so nominated shall hold office till his successor is appointed in conformity with the provisions of section 10 of the principal Act as amended by this Act. Section 10 of the principal Act as amended by this Act reads: For convening a meeting of the Court for recommending the names of persons to enable the Chancellor to nominate the Vice-Chancellor. A notice of such period not exceeding ten days as the Registrar thinks fit shall be given.

A Supreme Court Constitution Bench decided in Gujarat University & Anr. v. Shri Krishna Ranganath Mudholkar & Ors. that:

“Power to legislate in relation to primary or secondary education is entirely conferred in the States under item 2 of List II, and power to legislate on medium of instruction in primary or secondary education institutions must thus remain with the State Legislatures.”

As a result, the Constitution Bench concluded that, under the structure of legislative powers allocation between the States and the Union, the ability to legislate in the areas of elementary and secondary education is solely vested in the States. It went on to say that the state can use this power to dictate the medium of teaching.

The court in this instance construed the above-mentioned case as follows:

“However, the Constitution Bench has not ruled that the State’s ability to dictate the medium of instruction in primary and secondary schools can be utilized in violation of the rights protected by Articles 19(1)(a) and 19(1)(g) of the Constitution.” The Constitution Bench has only decided that the Union can utilize its legislative authority to prescribe a medium of instruction if the medium of instruction has a direct effect or impact on the determination of standards at institutions of higher education.In the primary school stage, requiring mother tongue as the medium of instruction in classes I to IV has no direct effect and impact on the setting of educational standards, and would affect basic rights under Articles 19(1)(a) and 19(1)(g) of the Constitution.”

In The above case : Shrikant, a student, registered in the First Year Arts class at St. Xavier’s College, which is affiliated with the University of Gujarat, and was accepted into the English-taught part. After successfully completing the First Year Arts course in March 1961, Shrikant applied for admission to the English-medium courses studying for the University’s Intermediate Arts test. Due to the provisions of the Gujarat University Act, 1949, and the Senate of the University’s Statutes 207, 208, and 209, as amended in 1961, the Principal of the College informed Shrikant that he could not allow him to attend classes in which instructions were given in English without the University’s permission. But English was allowed as a medium of examination but not as instruction or tutoring which made the process of learning difficult for shrikant and was the main cause of conflict between the two parties.

Brief Facts

Shrikant, a candidate, enrolled in the First Year Arts class at St. Xavier’s College, which is connected with the University of Gujarat, and was admitted to the section where instruction was given in English. Shrikant sought for admission to the courses preparing for the University’s Intermediate Arts test through the medium of English after successfully completing the First Year Arts course in March 1961. The Principal of the College informed Shrikant that, due to the provisions of the Gujarat University Act, 1949, and the Senate of the University’s Statutes 207, 208, and 209, as amended in 1961, he could not allow him to attend classes in which instructions were given in English without the University’s permission. Shri Krishna, Shrikant’s father, then petitioned the University’s Vice Chancellor for permission to enrol Shrikant in “English medium studies” at St. Xavier’s College.The Registrar of the University denied the proposal, although Shrikant was “permitted to maintain English as a medium of examination” but not for instruction, according to another letter.

Legal Issues

The Petitioners raised many grounds in their Writ Petition, and the Supreme Court’s Six Judge Bench resolved to determine the answers to the following two questions:

• Is it permissible for the University to mandate Gujarati or Hindi, or both, as the exclusive medium of teaching and examination in affiliated institutions under the Gujarat University Act, 1949?
• Whether legislation authorizing the University to impose such media would violate the Constitution’s Entry 66 of List I, Seventh Schedule.[2]

Arguments Advanced

Appellants

1. Civil Appeals Nos. 234 and 262 of 1962,Appeals from the judgment and order dated January 24, 1962, of the Gujarat High Court in, Special Civil Application No. 624 of 1961.
2. The High Court of Gujarat by request dated January 24, 1962, gave the writs appealed to God for. The University and the State of Gujarat have independently spoke to this Court with endorsements of wellness conceded by the High Court. The judgment of the High Court continued upon assorted grounds which are summed up in their judgment as follows (1) Statutes 207 and 209 to the extent that they try to set down and force Gujarati or potentially Hindi in Devanagri script as media of instruction and assessment in establishments other than those kept up with by the University are unapproved and in this way invalid and void, for neither s. 4(27) nor some other arrangement of the Act engages the University to set down Gujarati or Hindi as a vehicle of guidance and assessment in such foundations or to preclude the utilization of English as a mode of guidance and assessment for and in such establishments; (2) In any occasion, the University has the force just to set down Gujrati or Hindi as one of the vehicle of guidance and assessment and not as the main mode of guidance and assessment to the prohibition of different dialects; (3) The stipulation to cl. 27 of s. 4 of the Gujarat University Act as changed by Act 4 of 1961 comprises an infringement on the field of Entry 66 of List I of the Seventh Schedule to the Constitution and is in this way past the authoritative capability of the State and the Statutes 207 and 209 made thereunder are invalid and void ; and (4) Even if on a genuine development of s. 4(27) and different arrangements of the Act the University is approved to endorse a specific language or dialects as medium or media of guidance and assessment for associated schools and to forbid the utilization of English as a mode of guidance and assessment in partnered schools, the arrangements approving the burden of restrictive media and the Statutes and booklets gave in compatibility thereof are void and encroaching Articles 29 (1) and 30 (1) of the Constitution.
3. Under Bombay Act 4 of 1928, St. Xavier’s College was connected with the University of Bombay. The Gujarat University Act, 1949, was passed by the Legislature of the Province of Bombay to create and incorporate a teaching and affiliating university “as a means of decentralisation and reorganisation” of university education in the province. All educational institutions admitted to the privileges of the University of Bombay and located within the University region of Gujarat were regarded to be admitted to the privileges of the University of Gujarat as of the stipulated date under section 5(3) of the Act. The University incorporated Section 3 with everlasting succession and a common seal.
4. The Registrar of the University denied the proposal, although Shrikant was “permitted to maintain English as a medium of examination” but not for instruction, according to another letter. The Petitioners raised a number of grounds in their Writ Petition.
5. Statutes 207 and 209 were legitimately promulgated, according to the University, since authority in that regard was expressly granted by several provisions of s. 4, and it was the Senate’s responsibility to utilise that power under s. 18.
6. Before being modified by Act IV of 1961, Clause (27) read as follows:
   “to encourage the study of Gujarati and Hindi written in Devnagari script, as well as the use of Gujarati or Hindi written in Devnagari script, or both, as a medium of teaching and examination; Provided, however, that English may continue to be the medium of teaching and examination in such subjects and for such period not exceeding ten years from the date that section 3 takes effect as may be specified by the Statutes from time to time.”

Respondents

1. Under the powers given by the Gujarat University Act, 1949, as modified by Act 4 of 1961, the petitioner disputed the University’s ability to impose Gujarati or Hindi as the exclusive medium of teaching.
2. Only clauses (1), (2), (7), (8), (10), (14), (27), and (28) of Section 4 of the Gujarat University Act, 1949, must be examined in determining whether the University has the authority to impose Gujarati or Hindi, or both, as the exclusive medium or media of instruction. The University is given authority under cl. (1) to “provide for instruction, teaching, and training in such areas of learning and courses of study as it may consider suitable in order to provide for research and diffusion of knowledge.”
3. The Constitution’s plan also rejects the concept of Parliament legislating on the subject of medium of instruction. There were numerous pretty well established languages in different areas of our nation when the Constitution was created, and they were listed in the Constitution’s Eighth Schedule. English was the medium of teaching at all levels at the time, as well as the administration’s official language. On all hands, it was agreed that English should be substituted at all levels, but that the transition should be gradual.
4. The next question is whether, under the provisions of the Gujarat University Act, 1949, hereinafter referred to as the Act, the University has the power to prescribe a language as the exclusive medium of instruction; or, to put it another way, whether the University has the power to prohibit the use of any language other than that prescribed as the medium of instruction, either expressly or by necessary implication.
5. In response, the legislature, in the interest of higher education, granted the appropriate powers on the institution, which I believe was done correctly. No one is more equipped than the representatives of the State’s intelligentsia who run the University’s different instruments to decide on the medium of instruction to be implemented in the University’s associated institutions. It’s possible that certain institutions have hastened the adoption of a regional language as a medium of teaching at the university level, while others have taken a more cautious approach. It is up to the university to choose its own path. These arguments are irrelevant if the legislation has given the power, as I have said. It is undisputed that s. 38A of the Act, which is a consequential clause, would be legal if the University possesses the right to impose an exclusive medium of instruction under a legislation.

Interpretation of Laws

1. Article 29 (1) – Protection of minorities’ interests: Any group of people resident in India or any portion of it who speak a unique language, script, or culture has the right to preserve that language, script, or culture.
2. Article 30 (1) – Minorities have the right to create and manage educational institutions: All minorities, regardless of religion or language, have the right to establish and run educational institutions of their choosing.
3. The right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution includes the right of a child to be educated in a language of his or her choice in primary school, and the state cannot impose restrictions on this choice simply because it believes it will be more beneficial for the child to be taught in his or her mother tongue.
4. University Education: Fixation of exclusive medium of instruction-Legislative Competence of State Legislature-Constitution of India, Art. 254 (1), Seventh Schedule, List I, Entry 66, List II, Entry 11-Gujarat University Act, 1949 (Bom. 56 of 1949) as amended by Act 4 of 1961, ss. 4, 18, 20, 22, 38A-University Statutes, 207, 208 209.
5. Article. 226: Article 226, empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.
6. Article. 254(1): Article 254 (1) of the Constitution essentially states that if there is any inconsistency between laws passed by Parliament and those passed by a state legislature, the former should prevail.
7. Indian Evidence Act I of 1872: The Indian Evidence Act, originally passed in India by the Imperial Legislative Council in 1872, during the British Raj, contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.
8. Criminal Procedure Code Act No. V of 1898: Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.
9. Provincial Act: The provincial part of the Act, which went into effect automatically, basically followed the Simon Commission recommendations. Provincial dyarchy was abolished; that is, all provincial portfolios were to be placed in charge of ministers enjoying the support of the provincial legislatures.
10. Article 246: Article 246 of the Constitution demarcated the powers of the Union and the State by classifying their powers into 3 lists, namely Union List, State List and the Concurrent List. The constitution of India has provided for the division of powers between the central and the state governments.
11. Article 343: The official language of the Union shall be Hindi in Devanagari script. The form of numerals to be used for the official purposes of the Union shall be the international form of Indian numerals. (a) the English language, or (b) the Devanagari form of numerals, for such purposes as may be specified in the law.
12. Article 351: Article 350. Language to be used in representations for redress of grievances- Every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.
13. The Provincial Insolvency Act, 1920: PROVINCIAL INSOLVENCY [Act 5 of 1920. any interest in property and the creation of any charge upon property. defined in the Code of Civil Procedure, 1908, and not 5 of hereinbefore defined shall have the same meanings as 1908. those respectively attributed to them by the said Code.

Summary of Judgement

All with a majority of five judges to one, the Judgement was in favour of the Respondents. The majority concluded that Item 11 of List II vests only in the States the authority to legislate in matters of basic or secondary education, and that power to legislate on medium of instruction in institutions of primary or secondary education must thus lie with the State Legislatures. The authority to legislate on medium of instruction is not a separate legislative head; it is vested in the State Legislatures that have the ability to legislate on education, unless it is taken away by required intendment to the contrary. The authority to legislate in respect of medium of instruction shall be regarded to vest in the Union under Items 63 to 65, taking into account the breadth of those items. Item 66 List I declares that the Union has the power to legislate in regard to medium of instruction insofar as it has a direct bearing and impact on the legislative head of coordination and determination of standards in institutions of higher education, research, and scientific and technical institutions.

The State has the authority to establish curricula and courses of study at the institutions listed in Entry 66 (but not those listed in Entries 63 to 65), as well as to specify the medium in which instruction shall be delivered. However, the Union Parliament has overriding legislative authority to guarantee that the syllabi and courses of study mandated, as well as the medium chosen, do not degrade educational standards or make coordination of such standards impossible or difficult, whether on an all-India or other basis.Despite the fact that the Union’s and State’s powers are listed separately in the Exclusive Lists, some overlap is unavoidable. It is impossible to devise a universal test that would provide an answer to every issue that may arise on this subject. On the one hand, it is unquestionably within the State Legislature’s purview to establish syllabi and courses of study, as well as to specify the medium or media of teaching. On the other hand, the Union has the ability to legislate in regard to medium of instruction in order to guarantee coordination and determination of standards, i.e., to ensure that standards are maintained or improved. The fact that the Union has not legislated to the full extent of its powers, or has abstained from doing so, does not give the State the ability to legislate on a topic designated to the Union by the Constitution. It does not follow, however, that there will not be legislative provisions in enactments established each in furtherance of separate exclusive and different authorities that may clash even within the authorised relative domains. Then there’s the issue of repugnancy and paramountcy, which could have to be decided using the challenged enactment’s “doctrine of pith and substance.”

Order of The Court

1. For the aforementioned reasons, I believe the University was well within its rights in mandating the use of the two languages as mediums of teaching to gradually supplant English.
2. As a result, the High Court’s ruling is reversed, and the appeals are permitted, with the appellants’ costs both here and in the High Court.
3. By COURT: Both appeals are rejected in the manner specified in the majority judgement, with costs, in conformity with the majority’s opinion. A single set of hearing fees will be charged.
4. Appeals were denied.

Critique of Judgement

Experts in the field of education were also considered by the Court. These experts all agreed that students in elementary school classes I through IV learn better when they are taught in their native language. Despite the experts’ differing opinions, the court went on to hold that the State cannot require that the medium of instruction for children in classes I to IV in minority schools protected under Articles 29(1) and 30(1) of the Constitution and in private unaided schools enjoying the right to carry on any occupation under Article 19(1)(g) of the Constitution be the children’s mother tongue as a condition for recognition of a school.

As a result, the court erred in giving fundamental rights precedence over expert judgement in the realm of education.

Conclusion

1. Article 350A is the sole clause in the Constitution that uses the term “mother tongue.”
2. A simple reading of Article 350A[2] of the Constitution reveals that it imposes an obligation on every state and local government within it to provide appropriate facilities for teaching in the mother language to children from linguistic minority groups at the elementary level of education. As a result, the term “mother tongue” in Article 350A clearly refers to the mother tongue of a linguistic minority group in a certain State, as well as the language of that linguistic minority group.
3. “The’mother tongue’ in the meaning of the Constitution would, therefore, imply the language of the linguistic minority in a State, and it is the child’s parent or guardian who would decide what the child’s mother tongue is,” the Court stated.
4. The Constitution nowhere states that a child’s mother tongue is the language in which he or she is most at ease, and while this definition of “mother tongue” may be a possible meaning of “expression,” it is not the definition of “mother tongue” in Article 350A or any other provision of the Constitution, and thus we cannot either expand or restrict the State’s power. Is it true that a pupil, a parent, or a citizen has the right to pick a primary school medium of instruction?
5. According to the Court, “freedom” under article 19 means “the absence of state authority.”Thus, the citizen enjoys the freedom to choose in all things listed in sentence (1) of Article 19, subject only to the limitations set out in clauses (2) to (6) of Article 19.
6. Does the imposition of mother language have any impact on Articles 14, 19, 29, and 30 of the Constitution’s fundamental rights? “A reading of clause (1) of Article 29[1] of the Constitution provides that any section of citizens residing in the territory of India or any part thereof having a distinct language, script, or culture of its own shall have the right to conserve the same, and clause (1) of Article 30[2] provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their own,” the court stated.Following that, the court referenced a slew of instances to arrive at a conclusion.
7.  As a likely result, the court erred in giving fundamental rights preference over expert judgement in the realm of education.

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Refernces:

[1] 1. Clause (2A) was inserted by Bom. 30 of 1954, s. 9 (2).

 Clause (3AA) was inserted by Guj. 6 of 1973, s. 3 (2).

 Clause (3A) was inserted by Bom. 30 of 1954, s. 9 (3).

 Clause (3B) was inserted by Guj. 6 of 1973, s. 3 (3).

 These words were substituted for the words “Director of Public Instruction” by Bom. 18 of 1953, s. 3 and Second Schedule.

 These words were substituted for the words “Bombay State” by the Gujarat Adaptation of Laws (State and Concurrent Subjects)

Order, 1960.

 These words were substituted for the words “State of Bombay”, ibid.

Clause (11) was substituted by Guj. 6 of 1973, s. 3 (4).

 These words were substituted for the words “a recognized institution”, ibid., s. 3 (5).

[2] 1963 AIR 703 1963 SCR Supl. (1) 122

Other Sources:

CASES

1. Hingir-Rampur  Coal Co. v. State of Orissa, [1961] 1  S.C.R.537

2. Prafulla Kumar v. Bank of Commerce, Khulna, A.I.R. 1947 P.C. 60

3. State of Bombay v. F. N. Balsara, [1951] S.C.R.682

4. A. S. Krishna v. State of Madras, [1957]  S.C.-R. 399

5.Colliery Co. of British Columbia Ltd. v. Bryden [1899]A.C. 580

6. Bank  of Toronto v. Lambe, [1882]  12  A.C.  575

7.Attorney General for Alberta v. Attorney General for Canada, [1939] A.C. 117

8.Calcutta Gas Co. v. The State of West Bengal [1962] Supp.  3 S. C. R. I

 Websites

https://india.lawi.asia/the-gujarat-university-ahmedabad-v-krishna-ranganath-mudholkar-and-ors/