GUJARAT UNIVERSITY V.

SRI KRISHNA

Subject: Constitution Law

Submitted to: Prof. N. Vasanthi

Submitted by: Abhay Raj Varma
(2007-02)
B.A., LL.B (Hons.)
3rd year, 6th Semester

NALSAR UNIVERSITY OF LAW, JUSTICE CITY, HYDERABAD

 TABLE OF CONTENTS

CHAPTER I – INTRODUCTION: Doctrine Of Harmonious Construction________3

CHAPTER II – GUJARAT UNIVERSITY V. SRI KRISHNA___________________5

Brief Facts of the Case –__________________________________________________5

Order of the High Court –_________________________________________________5

Appeal to the Supreme Court –____________________________________________6

CHAPTER III – Analysis of the Supreme Court Judgment______________________7

Brief Background –______________________________________________________7

Minority Judgment –_____________________________________________________7

Majority Judgment –_____________________________________________________8

CONCLUSION__________________________________________________________9
 CHAPTER I – INTRODUCTION
Doctrine of Harmonious Construction

In order to correctly understand and analyze the judgment of Gujarat University v.

Sri Krishna it is important to understand the doctrine of harmonious construction.
It means to harmonize and find what is in conflict. In the present case there is no
conflict in the law but there is conflict in the import of the competing entries. To avoid
the conflict, both entries are read together in light of each other so that both can co-exist.
The rule of harmonious construction is the thumb rule to interpretation of any
statute. An interpretation which makes the enactment a consistent whole should be the
aim of the Courts and a construction which avoids inconsistency or repugnancy between
the various sections or parts of the statute should be adopted. The Courts should avoid “a
head on clash”, in the words of the Apex Court , between the different parts of an
enactment and conflict between the various provisions should be sought to be
harmonized. The normal presumption should be consistency and it should not be assumed
that what is given with one hand by the legislature is sought to be taken away by the
other. The rule of harmonious construction has been tersely explained by the Supreme
Court thus, “when there are, in an enactment two provisions which cannot be reconciled
with each other, they should be so interpreted, that if possible, effect should be given to
both”. A construction which makes one portion of the enactment a dead letter should be
avoided since harmonization is not equivalent to destruction.
The assumption is that the entries are not clear but the law is clear. The court will
restrict the meaning of one entry to make the entries co-exist.
In re C.P and Berar, Sales of Motor Spirit and Lubricants Taxation Act. State law
was impugned. There was a conflict in entry 45 List I and 48 list II. Excise tax and sales
tax respectively. The Supreme Court declared the law to be valid. In 17th century excise
tax in its primary meaning meant duty on goods manufactured and not on goods
imported. It could be charged at any stage from manufacturer to consumption. With this
interpretation it refers to any tax imposed and includes all taxes as excise tax. Argument
was to narrow the sales tax to only turnover tax. The court said that will amount to
perverting language of entry.
 Example - Excise duty is subject given to centre and sales tax is given to state.
State makes a law imposing sales tax on goods sold within the state. Questioned saying it
is a kind of excise duty. The tax imposed on incidence of sale is called sales tax. Excise
duty is a duty imposed on manufactured goods. A wide interpretation to excise tax will
include sales tax.
 CHAPTER II – GUJARAT UNIVERSITY V. SRI KRISHNA1

Brief Facts of the Case –

Shrikant, son of Shri Krishna Madholkar appeared for the Secondary School
Certificate Examination held by the State of Bombay in March, 1960, and cleared the
same successfully. His medium of instruction was Marathi in all the prescribed subjects.
Shrikant joined the St. Xavier's College which was affiliated to the University of Gujarat.
In the college instructions were given through the medium of english. After the First he
applied for admission to the classes preparing for the Intermediate Arts examination of
the University through the medium of English. The Principal of the College informed
Shrikant that in view of the provisions of the Gujarat University Act, 1949 he without the
universities permission could not allow him to attend classes in which instructions were
imparted through the medium of English. Shrikant’s father seeked permission from the
Vice Chancellor, his request was declined after which he filed a in the High Court of
Gujarat for a writ of mandamus with directions requiring the University to treat Sections
4(27), 18(i)(xiv) and 38A of the Act as void and inoperative and to abstain from acting
upon or enforcing those provisions and requiring the Vice-Chancellor to treat the letters
or circulars issued by him in connection with the medium of instruction as illegal and to
withhold him from acting upon or enforcing the same, and also requiring the University
to forbear from objecting to or from prohibiting the admission of Shrikant to the English
medium classes.

Order of the High Court –

The High Court of Gujarat issued the writs prayed for. The judgment proceeded upon
diverse grounds such as:

1
AIR 1963 SC 703 at 714.
 1. Statues 207 and 209 in so far as they seek to lay down and impose Gujarati as a
medium of instruction and examination in institutions are unauthorized and
therefore null and void, for neither s. 4(27) nor any other provisions of the Act
empowers the University to lay down Gujarati or Hindi as a medium of
instruction or to forbid the use of English as a medium of instruction.
2. The University has the power only to lay down Gujarati or Hindi as one of the
medium of instruction and examination and not as the only medium of instruction
and examination to the exclusion of other languages;

3. Even if on a true construction of s. 4(27) and other provisions of the Act, the
University is authorized to prescribed a particular language or languages as
medium or media of instruction and examination for affiliated colleges and to
prohibit the use of English as a medium of instruction and examination in
affiliated colleges.

Appeal to the Supreme Court –

The University and the State of Gujarat separately appealed to the Supreme Court with
certificates of fitness granted by the High Court.
Two issues were raised in the Supreme Court –
1. Whether the Gujarat University Act authorized a university to prescribe a regional
language as exclusive medium and
2. Whether the act had the power to authorize universities to prescribe it as one of
the mediums.
The Supreme Court concluded that the act did not authorize a university to prescribe
gujarati as an exclusive medium whereas it allowed the university to prescribe the
language as one of the mediums. Thus the statutes were declared ultra vires the law.
 CHAPTER III
ANALYSIS OF THE SUPREME COURT JUDGMENT

Brief Background –

Three Statutes were issued under the Gujarat University Act, 1949. One of the
Statutes sought to prescribe Gujarati as the exclusive medium for all levels of higher
education. A student in the first year (English medium) was shifted to regional medium in
the second year and he questioned the above statute on the lack of power of the
university.
The Court observed that Entry 17 in List II was subject to Entry 13 List I
according to the 1935 Act. Further Entry 2 List II was subject to Entry 63, 64, 65, 66 List
I and Entry 25 List III. (Entry 2 List II was omitted by the 42 nd amendment and shifted to
Entry 25 List III). Entry 66 List I talks about the standard of education in institutions of
higher education. Under this entry the parliament can set standards and also take
promotive/preventive/ remedial measures as a part of coorsination and determination of
the standard. So basically the parliament can exercise its power and displace state law
which prescribes a medium of instruction. Therefore the power lies with the state and
cannot be taken away by indictments.
Secton 4(21) uses the word ‘a’ medium and not ‘the’ medium. Therefore, whether
language as a medium affects the standard of education depends on the richness or the
development of the language. When the medium affects the standard of education it
becomes a party of Entry 66 and thereby gets excluded from Entry 25.

Minority Judgment –

The minority judgment by Subba Rao, J. in the case was that the makers of the
constitution were of the opinion that regional languages are fit to be a medium of
instruction when it comes to education. Therefore, Entry 66 must be interpreted on that
assumption. Thus, there is no adverse impact on the standard of education by the above.
Subba Rao, J. concluded that the power to prescribe a medium of instruction is implied
under Entry 2 and 25, automatically making it a part of education. Further the act also
authorizes universities to prescribe a regional language which is implied under Section 4
of the Act. Thus, the statutes are valid. Also, Entry 2 always takes in medium of
instruction whereas Entry 66 does not. Therefore if it is accepted that Entry 66 displaces
Entry 2, it will cut deeply into the power of the state. The role of the parliament is
therefore only that of a guardian angel where it can only come in and help the state in
enrichment of the languages but does not have the power to decide the medium of
instruction.

Majority Judgment –

According to the majority judgment of the court, the medium of instruction

becomes a part of Entry 66 onteh interpretation of the word “coordination”. The
petitioner in the case argued that the term does not include the taking over of the power to
set standards. The court rejected this argument and said that the term is a comprehensive
term for the purpose of harmonization and to maintain and improve the standards of
education. Thus it is not limited to mere evaluation, the power includes the coming in of
the parliament to provide remedies. The apex court interpreted the term as not only being
a remedial measure but also a protective and promotive measure. Therefore suggesting
that a person need not wait for the standards to drop to provide remedies. It was also
observed that when the medium in question adversely affects the standard of education
then the same is removed from Entry 25 and becomes a part of Entry 66.
The court here proceeded on the assumption that the use of regional languages affects the
standard of education as at that point in time the languages were not well developed.
 CONCLUSION

Education including universities lies exclusively within the legislative sphere of

the States under Entry 11 of List II of the Seventh Schedule to the Constitution, subject,
however, to the provisions of Entries 63 to 66 in List I and Entry 25 of List III. Under
Entry 66 of List I, Parliament is competent to legislate on the subject of coordination and
determination of standards in institutions for higher education or research and scientific
and technical institutions.
In the above case, the Supreme Court was invited to consider the scope and
content of Entry 11 of List II and Entries 63 to 66 of List I. One of the main questions for
determination before the Court was whether, the State Legislature was, under the
Constitution, competent to make laws imposing Gujarati or Hindi or both as the exclusive
media of instruction. Dealing with this question, the Supreme Court has by a majority of
4 : 1 laid down the following propositions :
(i) The extensive power vested in the Provincial legislature to legislate with
respect to higher scientific and technical education and vocational and technical training
of labor is under the Constitution controlled by the five items mentioned in Entry 11 of
List II Entries 63 to 66 of List I are carved out of the subject of education and in respect
of these items the power to legislate is vested exclusively in Parliament.
(ii) The use of the words "subject to" in Entry 11 of List II indicates that
legislation in respect of excluded matters cannot be undertaken by the State legislature. In
other words, when one entry in a legislative list is made subject to another entry in a
different list, the doctrine of pith and substance does not apply.
(iii) If a subject of legislation is covered by items 63 to 66 even if it otherwise
falls within the larger field of education including universities, power to legislate on that
subject must lie with Parliament.
(iv) Entry 11 of List II and entry 66 of List I overlap and must be harmoniously
construed. To the extent of the overlapping, the power conferred by Entry 66 of List I
must prevail over the power of the State under Entry 11 of List II
 The Right of a minority to establish educational institutions is provided for in the
following articles in the constitution – Article 30(1) gives the linguistic or religious
minorities the following two rights: (a) The right to establish, and (b) The right to
administer educational institutions of their choice. Article – 30(2) bars the state, while
granting aid to educational institutions, from discriminating against any educational
institution on the ground that it is under the management of a linguistic or a religious
minority. It mandates that in granting aid to educational institutions, the state shall not
discriminate against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.
The right of a minority to establish and administer educational institutions of its
choice also carries with it the right to impart instruction to its children in its own
language. The result of reading article 29(1) and 30(1) together is that the minority has
the choice of medium of instruction and the power of the state to determine the medium
of instruction has, therefore, to yield ground, to the extent it is necessary to give effect to
this minority right. The most significant case on this point is the D.A.V College,
Bhatinada v. State of Punjab.2 By a notification, the Punjab Government compulsorily
affiliated certain colleges to the Punjab University which prescribed Punjabi in the
Gurumukhi script as the sole and exclusive medium of instruction and examination for
certain courses. The Supreme Court following the decision of Gujarat University v. Sri
Krishna declared that it violated the right of the Arya Samajists to use their own script in
the colleges run by them and compulsorily affiliated to the University. Thus, implying
that a provision which is particular always prevails over the general provision of law.

2
AIR 1971 SC 1731.