GUJARAT UNIVERSITY STATE OF GUJARAT PRINCIPAL ST XAVIERS COLLEGE RANCHI COUNCIL FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATION Vs. KRISHNA RAUGANATH MUDNOLKAR:KRISHNA RAUGANATH MUDNOLKAR:KRISHNA RAUGANATH MUDNOLKAR:KRISHNA RAUGANATH MUDNOLKAR

JUDGEMENT

(1.) With the greatest respect I cannot agree. The facts have been fully stated in the judgment of my learned brother Shah J. And I need not restate them. Two questions arise for consideration namely (1) whether the State Legislature has the constitutional competence to make a law prescribing an exclusive medium of instruction in the affiliated colleges and (2) whether under the Gujarat University Act as amended by Act IV of 1961 the said University has the power to prescribe an exclusive medium of instruction.

(2.) The first question may be elaborated thus: Is the State Legislature competent to make a law under entry 11 of List II of the Seventh Schedule to the Constitution prescribing an exclusive medium of instruction in the affiliated colleges of the University To put it in other words can a State law enable a University to prohibit expressly or by necessary implication any media of instruction other than those prescribed by it Learned counsel appearing for the University of Gujarat and for the State of Gujarat contend that the State Legislature has such a power under entry 11 of List II of the Seventh Schedule to the Constitution whereas learned counsel for the respondents while conceding that a State Legislature has the power to empower a University to prescribe a medium of instruction broadly contend that a State law which prohibits the use of a medium of instruction such as English which is traditionally the exclusive current medium of instruction in the universities of this country and directs the use of a regional language as the sole medium or as an additional medium of instruction along with other Indian languages impinges directly on entry 66 of List I of the Seventh Schedule to the Constitution since it is said the fixation of standards and co-ordination on all India basis is rendered difficult if not made impossible by such a State law.

(3.) Before I consider the impact of entry 66 of List I on entry 11 of List II it would be convenient to notice briefly the relevant principles of construction. Learned counsel for the respondents contend that principle of pith and substance has no relevance to a case where one entry is made subject to another entry; if out of the scope of one entry the argument proceeds a field of legislation covered by another entry is carved out there is no scope for overlapping and therefore there is no occasion for invoking the principle of pith and substance in the matter of interpreting the said entries; to meet such a situation his further argument is the courts have evolved another principle of direct impact i.e. if a State law has a direct impact on an entry in the Union List the said law falls outside the scope of the State entry. Let us see whether there is any such independent doctrine of construction in decided cases or in principle. The Judicial Committee in Prafulla Kumar v. Bank of Commerce Khulna (A.I.R. 1947 P.C. 60) had invoked the principle of pith and subs- tance to ascertain whether the Bengal Money-lenders Act (X of 1940) was ultra vires the Provincial Legislature. There the conflict was between items 28 and 38 of List I of the Seventh Schedule to the Government of India Act 1935 namely promissory notes and banking and item 27 of List II thereof namely money-lending. The Judicial Committee held that the pith and substance of the Act being money-lending it came under item 27 of List II and was not rendered invalid because it incidentally trenched upon matters reserved to the Federal Legislature namely pro- missory notes and banking At p. 65 of the report the following instructive passage appears :