TaxTMI 
TaxTMI 
1962 (2) TMI 90
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly completing the First Year Arts course in March, 1961, Shrikant 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, and the Statues 207, 208 and 209 framed by the Senate of the University, as amended in 1961 he could not without the sanction of the University permit him to attend classes in which instructions were imparted through the medium of English. Shri Krishna, father of Shrikant then moved the Vice-Chancellor of the University for sanction to permit Shrikant to attend the "English medium classes" in the St. Xavier's College. The Registrar of the University declined to grant the request, but by another letter Shrikant was "allowed to keep English as a medium of examination" but not for instruction. A petition was then filed by Shri Krishna Madholkar on behalf of himself and his minor son Shrikant in the High Court of Gujarat for a writ or order in the nature of Mandamus or other writ, directions or order requiring the University of Gujarat to treat ss. 4(27), 18(i)(xiv) and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion and examination for affiliated colleges and to prohibit the use of English as a medium of instruction and examination in affiliated colleges, the provisions authorising the imposition of exclusive media and the Statutes and circulars issued in pursuance thereof are void and infringing Articles 29(1) and 30(1) of the Constitution. We have declined to hear arguments about the alleged infringement of fundamental rights under Articles 29(1) and 30(1) by the Act assuming as it authorises imposition of Gujarati or Hindi as an exclusive medium of instruction, for, in our view, the petition suffers from a singular lack of pleading in support of that case, and even the St. Xavier's College authorities who had at one stage adopted a non-contentious attitude but later supported the case of the petitioner, did not choose to place evidence on the record which would justify the Court in entering upon an investigation of this plea of far reaching importance. Manifestly, the decision of the question whether such legislation infringes Arts. 29(1) and 30(1) depends upon proof of several facts such as existence of a distinct language, script or culture of a section of citizens for whom th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubject to conditions as may be prescribed by or under the provisions of the Act, to exercise the powers and to perform the duties as set out in sub-s. (1). By s. 20 certain powers of the University were made exercisable by the Syndicate, and by s. 22, the Academic Council was invested with the control and general regulation of, and was made responsible for, the maintenance of standards of teaching and examinations of the University and was authorised to exercise certain powers of the University. The powers and the duties of the Senate are to be exercised and performed by the promulgation of Statues, of the Syndicate by Ordinances and of the Academic Council by Regulations. In 1954, the Gujarat University framed certain Regulations dealing with the media of instruction. They are Statues 207, 208 and 209. Statute 207 provided - (1) Gujarati shall be medium of Instruction and Examination. (2) Notwithstanding anything in clause (1) above, English shall continue to be the medium of instruction and examination for a period not exceeding ten years from the date on which section 3 of the Gujarat University Act comes into force, except as prescribed from time to time by St....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd examination : Notwithstanding anything contained in sub-item (1) above, Hindi will be permitted as an alternative medium of instruction and examination in the following faculties (i) Faculty of Medicine, (ii) Faculty of Technology including Engineering, and (iii) Faculty of Law; and (iv) in all faculties for post-graduate studies; (2) Notwithstanding anything contained in clause (1) above, English may continue to be the medium of instruction and examination for such period and in respect of such subjects and courses of studies as may, from time to time, be prescribed by the Statutes under sec. 4(27) of the Gujarat University Act for the time being in force. (3) Notwithstanding anything contained in clause (1) above, it is hereby provided that students and teachers, whose mother-tongue is not Gujarati will have the option, the former for their examination and the latter for their instruction to use Hindi as the medium, if they so desire. (4) Notwithstanding anything contained in clauses (1) & (3) above, it is hereby provided that the affiliated Colleges, recognised Institutions and University Departments, as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....auses of s. 4, and it being the duty of the Senate to exercise that power under s. 18(XIV), Statutes 207 and 209 were lawfully promulgated. In any event, it was submitted that the University being a Corporation invested with control over higher education for the area in which it functions such a power must be deemed to be necessarily implied. In considering whether power to impose Gujarati or Hindi or both as exclusive medium or media of instruction is conferred upon the University by the Gujarat University Act, 1949, clauses (1), (2), (7), (8), (10), (14), (27), and (28) of s. 4 only need be considered. By cl. (1) power is conferred upon 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". We do not, having regard to the phraseology used by the Legislature, agree with the High Court that this power is restricted in its exercise to institutions set up by the University and does not extend to affiliated colleges. The language used in the clause does not warrant this restriction. But we agree with the High Court that the power conferred....
X X X X Extracts X X X X
X X X X Extracts X X X X
....medium or media of instruction, the power of the University to impose and exclusive medium of its choice was expressly entrusted to the University. But the argument proceeded upon an incorrect reading of the section. The provision does not by itself empower the University to prescribe the use of any exclusive medium of instruction and examination. The University is thereby authorised to confer degrees or academic distinctions upon persons who have pursued approved courses of study and have passed the examination prescribed by the University. Power is also reserved to the University to confer degrees or academic distinctions upon persons who have not pursued the courses prescribed by the University if exemption in that behalf is prescribed by the Statutes, Ordinances or Regulations. The expression "in the manner" prescribed by the Statute, Ordinance or Regulation has no reference to the class of persons who have pursued approved courses of study in the University or in an affiliated college, but qualifies the expression "unless exempted therefrom" immediately preceding. By the clause the University is authorised to confer degrees, diplomas or distinctions not only upon persons who h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d been drafted in strict accordance with the rules of grammar, have stated that the University was invested with power to promote the use of Gujarati or Hindi or both as a medium or media of instruction and examination. The use of the expression "promote" suggests that power was conferred upon the University to encourage the study of Gujarati and Hindi and their use as media of instruction and examination it does not imply that power wass given to provide for exclusive use of Gujarati or Hindi or both as a medium or media of insrtuction and examination and that inference is strengthened by the indefinite article "a" before the expression "medium of instruction". The use of the expression "a medium of instruction" clearly suggests that Gujarati or Hindi was to be one of several media of instruction, and steps were to be taken to encourage the development of Gujarati and Hindi and their use as media of instruction and examination. From the use of the expression "promote" read in the context of the indefinite article "a" it is abundantly clear that power to impose Gujarati or Hindi as the medium of instruction and examination to the exclusion of other media was not entrusted to the Un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he University by using the somewhat indefinite expression "requisite in order to further the objects" power to provide for such an exclusive medium. Reliance was also placed upon s. 18(1)(xiv) by counsel for the University in support of the contention that the Senate was bound to make provision relating to the use of Gujarati or Hindi in Devanagri script or both as a medium of instruction and examination. It is true that s. 18(1) deals with powers and duties of the Senate. Phraseology used in the diverse clauses is prima facie not susceptible of the meaning that each clause authorises the Senate to exercise the powers of the University and imposes also a concomitant duty. Assuming, however, that the power conferred upon the Senate also carries with it a duty to exercise the power, we do not think that the exercise of power or performance of duty relating to the use of Gujarati or Hindi or both as a medium or media of instruction and examination postulates a duty to make exclusive use of Gujarati or Hindi or both for that purpose. The use of the indefinite article "a" even in this clause clearly indicates that Gujarati or Hindi or both were to be selected out of several media of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e a ground for interpreting the provisions of the Act in a manner contrary to the intention of the Legislature plainly expressed. This recommendation of the Government of India has been ignored if not by all, by a large majority of Universities. It is also true that in the Statement of Objects and Reasons of the Gujarat University Act, it was stated ".......... As recommended by the Committee, it is proposed to empower the University to adopt Gujarati or the national language as the medium of instruction except that for the first ten years English may be allowed as the medium of instruction in subjects in which this medium is considered necessary". But if the Legislature has made no provision in that behalf a mere proposal by the Government, which is incorporated in the Statement of Objects and Reasons will not justify the Court in assuming that the proposal was carried out. Statements of Objects and Reasons of a Statute may and do often furnish valuable historical material in ascertaining the reasons which induced the Legislature to enact a Statute, but in interpreting the Statute they must be ignored. We accordingly agree with the High Court that power to impose Gujarati or Hindi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ite article the was used while in other cases indefinite article a was used denoting thereby that the medium would be one out of several. Therefore, neither under the Act as originally framed nor under the Act as amended by Act 4 of 1961 was there any power conferred on the University to impose Gujarati or Hindi or both as exclusive medium or media of instruction and examination and if no such power was conferred upon the University, the Senate could not exercise such a power. The Senate is a body acting on behalf of the University and its powers to enact Statutes must lie within the contour of the powers of the University conferred by the Act. On the view we have expressed, consideration of the question whether the State Government is competent to enact laws imposing Gujarati or Hindi or both as an exclusive medium or media of instruction in the Universities, may appear academic. But we have thought it necessary to consider the question because the High Court has declared certain provisions of Act 4 of 1961 relating to medium of instruction as ultra vires the State Legislature and on the question which was argued at considerable length we were invited by counsel for the appella....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egislate in respect of "institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament, by law, to be institutions of national importance". Item 65 vest in the Parliament power to legislate for "Union agencies and institutions for (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime". By item 66 power is entrusted to Parliament 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 confers power upon the Union Parliament and the State Legislatures to enact legislation with respect to "vocational and technical training of labour". It is manifest that the extensive power vested in the Provincial Legislature to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five ite....
X X X X Extracts X X X X
X X X X Extracts X X X X
....two entries undoubtedly overlap but to the extent of overlapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour. The power to legislate in respect of primary or secondary education is exclusively vested in the States by item No. 11 of List II, and power to legislate on medium of instruction in institutions of primary or secondary education must therefore rest with the State Legislatures. Power to legislate in respect of medium of instruction is, however, not a distinct legislative head; it resides with the State Legislature in which the power to legislate on education is vested, unless it is taken away by necessary intendment to the contrary. Under items 63 to 65 the power to legislate in respect of medium of instruction having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion would depend upon whether it prejudicially affects co-ordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. It there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid. Counsel for the University submitted that the power conferred by item No. 66 of List I is merely a power to co-ordinate and to determine standards i.e. it is a power merely to evaluate and fix standards of education, because, the expression" co-ordination" merely means evaluation, and "determination" means fixation. Parliament has therefore power to legislate only for the purpose of evaluation and fixation of standards in institutions referred to in item 66. In the course of the argument, however, it was somewhat reluctantly admitted that steps to remove disparities which have actually resulted from the adoption of a regi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under item 66 List I it must be deemed to be included in that item and therefore excluded from item 11 List II. How far State legislation relating to medium of instruction in institutions has impact upon co-ordination of higher education is a matter which is not susceptible, in the absence of any concrete challenge to a specific statute, of a categorical answer. Manifestly, in imparting instructions in certain subjects, medium may have subordinate importance and little bearing on standards of education while in certain others its importance will be vital. Normally, in imparting scientific or technical instructions or in training students for professional courses like law, engineering, medicine and the like existence of adequate text books at a given time, the existence of journals and other literature, availability of competent instructors and the capacity of students to understand instructions imparted through the medium in which it is imparted are matters which have an important bearing on the effectiveness of instruction and resultant standards achieved thereby. If adequate text-books are not available or competent instructors in the medium, through which instruction is directe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nglish as an exclusive medium of instruction in respect of certain subjects to be selected by the Senate. By the amendment it is common ground that no power to provide an exclusive medium other than the pre-existing medium is granted. Manifestly, imparting instruction through a common medium, which was before the Act the only medium of instruction all over the country, cannot by itself result in lowering standards and co-ordination and determination of standards cannot be affected thereby. By extending the provisions relating to imparting of instruction for a period longer than ten years through the medium of English in the subjects selected by the University, no attempt was made to encroach upon the powers of the Union under item No. 66 List I. If the University have no power to prescribe an exclusive medium, the enactment of s. 38A which prescribes penalties for failing to carry out directions relating to the media of instruction will doubtless be not invalid. The order of the High Court relating to the invalidity of the Statutes 207 and 209 of the University in so far as they purport to impose "Gujarati or Hindi or both as exclusive medium or media" of instruction, and the ci....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 the 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 over-lapping 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 Kuma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. The question was whether that Act fell under entry 31 of List II of the Seventh Schedule to the Government of India Act, 1935, namely, "intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors", or under entry 19 of List I, namely, import and export across customs frontier, which is a dominion subject. This Court held that the pith and substance of the Act fell under the former entry and not under the latter, though the Act incidentally encroached upon the Dominion field of legislation. It was argued, inter alia, that the prohibition of purchase, use, transports and sale of liquor would affect the import. The argument was advanced as a part of the doctrine of pith and substance and was rejected on the ground that the said encroachment did not affect the true nature and character of the legislation. This Court again had to deal with the vires of the provisions of the Madras Prohibition Act in A. S. Krishna v. The State of Madras [[1957] S.C.R. 399, 406.]. There, the argument was that the said provisions were repugnant to the provisions of the existing Indian laws with respect to the same matter, to wit, In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ada. They are also of opinion that the whole pith and substance of the enactments of s. 4 of the Coal Mines Regulation Act, in so far as objected to by the appellant company, consists in establishing a statutory prohibition which affects aliens or naturalised subjects, and therefore trench upon the exclusive authority of the Parliament of Canada." This passage indicates that the Judicial Committee found that, in pith and substance, the impugned law affected the rights and privileges of Chinamen which subject was within the exclusive authority of the Parliament of Canada. This judgment only reiterates the principle of pith and substance; and it does not in any way countenance a new principle of "direct impact" outside the scope of the said doctrine. In Bank of Toronto v. Lambe [[1882] 12 A.C. 575, 587.] the Quebec Act was attacked on two grounds, first that the tax was not "taxation within the Province", and secondly, that the tax was not a "direct tax". The Judicial Committee held that the Act was within the legislative competence of the Province. It was observed therein : "If (the Judges) find that on the due construction of the Act a legislative power falls within s. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ir business by the only proper authority, the Parliament of Canada." That is to say, the constitutional validity of the Bill was sustained on the ground that it was a colourable piece of legislation in respect of a subject which in substance was within the Dominion field. The Judicial Committee in coming to the conclusion laid down the rules of guidance for ascertaining the true nature of a legislation. Their Lordships premised their discussion with the following statement : "........ it is well established that if a given subject-matter falls within any class of subjects enumerated in s. 91, it cannot be treated as covered by any of those within s. 92." And to ascertain whether a particular subject-matter falls in one class or other, their Lordships laid down the following rules of guidance : (1) "It is therefore necessary to compare the two complete lists of categories with a view to ascertaining whether the legislation in question, fairly considered, falls prima facie within s. 91 rather than within s. 92." (2) "The next step in a case of difficulty will be to examine the effect of the legislation." (3) "The object or purpose of the Act ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... comparison of conflicting entries, effect of the impugned legislation, its object and purpose, its legislative history, its colourable nature and similar others-all or some of them would be useful guides to get at the core of the legislation. But no authority has gone so far as to hold that even if the pith and substance of an Act falls squarely within the ambit of a particular entry, it should be struck down on the speculative and anticipatory ground that it may come into conflict with a law made by a co-ordinate Legislature by virtue of another entry. If the impact of a State law on a Central subject is so heavy and devastating as to wipe out or appreciably abridge the Central field, then it may be a ground for holding that the State law is a colourable exercise of power and that in pith and substance it falls not under the State entry but under the Union entry. The case-law, therefore, does not warrant the acceptance of a new doctrine dehors that of pith and substance. In this context it will be useful to notice some of the well settled rules of interpretation laid down by the Federal Court and accepted by this Court in the matter of construing the entries. In Calcutta Gas C....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... universities. If so much is conceded, what is the reason for excluding it from the university education in entry 11 of List II ? There is none. Conversely, the express terms of entry 66 of List I does not prima facie take in the subject of medium of instruction. The phraseology is rather wide, but none the less clear. Let me look at the two crucial expressions "co-ordination" and "determination of standards". The contention of learned counsel for the appellant that the composite term means fixing of standards for the purpose of correlation and equating them if they vary, appears to be plausible, but is rather too restrictive and, if accepted makes the role of Parliament that of a disinterested spectator. It must be more purposive and effective. The interpretation sought to be put upon it by learned counsel for the respondents, namely, that under certain circumstances the Parliament can make a law displacing the medium of instruction prescribed by the State law by another of its choice, cuts so deeply into the State entry that it cannot be countenanced unless the entry in List I is clear and unambiguous. "To determine" is "to settle, or decide or fix". The expression "co-ordination....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l vehicle for higher education and for technological and scientific studies. If the pith and substance of the law is "co-ordination and determination of standards" its incidental encroachment on the medium of instruction for the purpose of enriching it may probably be sustained. But in the name of co-ordination it cannot displace the medium of instruction, for, in that event, the encroachment on the subject of education is not incidental but direct. For the said entry does not permit the making of any law which allows direct interference by an outside body with the course of education in any university, but enables it generally to prescribe standards and give adventitious aids for reaching the said standards. In short, the role of a guardian angel is allotted to Parliament so that it can make a law providing a machinery to watch, advise, give financial and other help, so that the universities may perform their allotted role. The University Commission Act was passed in the implementation of such a role. So understood, there cannot be any possible dichotomy between the two entries. The scheme of the Constitution also negatives the idea of legislation by Parliament in respect of me....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... accepted, Parliament would be a helpless spectator witnessing the debacle. In effect, on the appellant's construction, the major part of the field of co-ordination would be wiped out. This is effect was the argument of learned counsel for the respondents though couched in different phraseology. This is another way of saying that the pith and substance of such legislation made by a State prohibiting the use of English falls not under the subject of "education" but under the entry "co-ordination". This argument though appears to be attractive, is without legal or factual basis. If the pith and substance of the impugned law is covered by the entry "education", the question of effacing the Union entry does not arise at all. It is an argument of policy rather than a legal construction. The simple answer is that the Constituent-Assembly did not think fit to entrust the subject of medium of instruction to Parliament, but relied upon the wisdom of the Legislatures to rise to the occasion, and enact suitable legislation. Factually, except in Gujarat, where the Legislature introduced Gujarati as the exclusive medium of instruction by an accelerated process, all other States are adopting....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f instruction. The next question is whether under the provisions of the Gujarat University Act, 1949, hereinafter called the Act, the University has the power to prescribe a language as the exclusive medium of instruction; or to state it differently, whether the University has power to prohibit, expressly or by necessary implication, the use of any language other than that prescribed as the medium of instruction. At the outset it would be convenient to notice briefly the scheme of the Act so that the relevant provisions may be construed in their proper setting. Under the Act, the Chancellor and the Vice-Chancellor of the University, and the members of the Senate, the Syndicate and the Academic Council of the University constitute a body corporate by the name of "The Gujarat University". It is a teaching and affiliating University. It has, inter alia, powers to provide for instruction, teaching and training in different branches of learning and courses of study; to hold examinations and confer degrees; to control and co-ordinate the activities of various institutions connected with the University; and to do all acts and things incidental to the said powers. The said purposes a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thus : "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." "I must stop there. To that statement I may add a sentence from the speech of Lord Selborne in the case of Attorney-General v. Great Eastern Ry. Co. [[1880] 5 A.C. 473, 478.] where he said this "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." When an Act confers a power on a corporation, it impliedly also grants the power of doing all acts which are essentially necessary for exercising ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the respondents be adopted, to hold examinations in the language chosen by it. But it is suggested that though it has such a power, it must exercise it reasonably so as to satisfy the needs of the different colleges affiliated to it. I do not see how, if the University has the power to hold examinations in one language, the exercise of that power could become unreasonable if affiliated colleges chose to ply their own course in utter disregard of the opinion of the University. Be that as it may, I have no hesitation in holding that the University has the implied power to prescribe for the purposes of higher education a number of media of instructions or even a sole medium of instruction to the exclusion of others. It is then said that cl. (27) confers an express power on the University to prescribe a medium of instruction and, therefore, whatever implied power it may have in its absence it can no longer be exercised under the Act. As much of the argument turned upon the construction of this clause, it would be convenient to read it : Clause (27) (The University shall have the power) to promote the development of the study of Gujarati and Hindi in Devnagari script and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is an essential distinction between the expression "providing" and "promoting". To promote the development of the said languages means to further their growth. It also implies some action anterior to the existence or occurrence of the thing promoted. The power of promotion confers upon the University the power to prescribe adventitious aids for the purpose of promotion. To illustrate, Gujarati or Hindi is not the medium of instruction in the University; the said languages have not got sufficient vocabulary to express scientific and technological concepts; there are no professors who are trained to teach the said subjects in those languages; there are no books in the said languages of a standard appropriate to the needs of higher education. The University can certainly help, financially or otherwise, to enrich the said languages so as to make them suitable vehicles for conveying scientific and technological ideas. It may provide for intensive training of the professors and lectures in those languages to enable them to have sufficient knowledge for communicating their ideas in those languages. It may give concessions in fees etc., for students who take those languages as their media ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he words "the medium" as it has done in the proviso. Grammatically the definite article "the" could not have been used in the substantive part the definite article is used only to mark the object as before mentioned or already known or contextually particularized. That is why in the proviso the definite article is used in the context of the English language which is already in the field as the exclusive medium of instruction. But in the substantive part of cl. (27) the Legislature was providing for an additional power to promote one or other of the two languages mentioned therein or both of them. In that context when different languages, which can alternatively be prescribed, are mentioned, the appropriate article can only be indefinite article. If the argument of learned counsel for the respondents be accepted, it may lead to a more serious anomaly, namely, that after the prescribed period in the proviso the University becomes powerless to introduce any language other than Gujarati or Hindi as medium of instruction and examination. This difficulty is sought to be met by the contention that the power to continue English as a medium of instruction after the period prescribed in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent is advanced on the basis of s. 18(1)(XIV) of the Act, which reads : 18. (1) Subject to such conditions as may be prescribed by or under the provisions of this Act, the Senate shall exercise the following powers and perform the following duties, namely - x x x x (XIV) to make provision relating to the use of Gujarati or Hindi in Devnagari script or both as a medium of instruction and examination. Learned counsel for the appellant contends that while cl. (27) of s. 4 confers a power on the University, cl. (XIV) of s. 18(1) confers both a power and a duty on the Senate to provide for the use of Gujarati or Hindi in Devnagari script as medium of instruction and examination. Learned counsel for the respondents again emphasize upon the use of the indefinite article in the said clause. I cannot agree with either of the two contentions. When a power is conferred on the University to promote the said two languages as medium of instruction, presumably for public good, there is a correlative duty on the University to exercise that power. The fact that under s. 4 only powers are conferred, whereas under s. 18 both powers and duties are mentioned, does not make....