 THE GUJARAT UNIVERSITY CASE AND
 ITS IMPLICATIONS

Our terms of reference require us to examine the provisions of the Constitution regarding the responsibility of the Central Govern- ment in the field of higher education with a view to finding out whether the Centre could assume greater responsibility in this field, and, secondly, to suggest appropriate steps to be taken for the purpose. The precise scope and extent of our inquiry has been a matter of deep concern to us. We have given anxious thought to all possible interpretations of the terms of reference. One view was that it did not lie within those terms for us to suggest any amendment to the Constitution as a step to enable the Centre to assume greater responsibility in the field of university or higher education than is enjoyed by it at present. Our task, according to this view was simply to determine the precise responsibility of the Centre in the matter of higher education, and to suggest measures within the existing constitutional framework as to how the Centre could assume greater responsibility in this field. The other view was that we were not debarred from suggesting amendments to the Constitution if the result of our inquiry showed that it was in the national interests that the Centre should be given larger powers and responsibilities in the field of higher education which it cannot have except by an amendment to the Constitution.

2. After careful deliberations, we have been compelled to reject the narrower interpretation of the terms of reference. It seems clear to us that our task is in the first place to examine the provisions of the Constitution to determine the exact responsibility of the Union Government in the field of university and higher education. We have next to consider, whether within the present constitutional framework the Centre can assume larger powers and responsibilities in this field. The words "to suggest appropriate steps to be taken for the purpose" are in our view wide enough to admit of recommendations for constitutional amendments if we reach the conclusion that the existing provisions of the Constitution do not give the Centre adequate powers of control, to coordinate and determine the standards of higher education in the country. This wide interpretation of the terms of reference runs as a constant under- current in our Questionnaire. It was on the basis of this interpretation that we sought to elicit informed opinion of educational authorities in the country on the questions whether any changes in the Constitution are necessary for a more effective control over university education by the Union Government, whether the powers at present exercised by the Union Government over university education can be increased by making it a concurrent subject or whether making education a Union subject by transposing the subject-matter of Entry No. 11 of the State List to the Union List will give greater authority to the

*Gujarat University vs Shrikrishna Mudholkar,AIR 1963 SC 703 at 714.

Union Government to discharge its responsibility for higher education. We therefore proceed on the basis that the terms of reference do not preclude us from recommending an amendment to the Constitution as one of the steps necessary to give larger powers and responsibility to the Centre in the field of university and higher education. On this pre- mise, we shall now proceed to examine the existing provisions of the Constitution in regard to education.

3. Under the Government of India Act, 1935, the Provincial Legislatures derived power to legislate on the subject of education under Entry 17 of List II of the Seventh Schedule to that Act- "Education, including universities other than those specified in paragraph 13 of List I". Entry 13 of List I included the Banaras Hindu University and the Aligarh Muslim University. With the exception of these two Central Universities, all residual power to legislate on the subject of education resided in the Provincial Legislature. The Constitution introduced a vital change in the pattern of distribution of legislative power on the subject of education between the Union and States. Under Entry 11 of List II of the Seventh Schedule to the Constitution, the State legislature has the power to legislate on the subject of education including universities subject to the provisions of items 63, 64, 65 and 66 of List I and item 25 of List III. Item 63 of List I replaces, with modification, item 13 of List I in the Seventh Schedule to the Government of India Act, 1935. Power to enact legislation with respect to institutions known at the commencement of the Constitution as the Banaras Hindu University, the Aligarh Muslim University and the Delhi University and other institutions declared by Parliament by law to be institutions of national importance is thereby granted exclusively to Parliament. Item 64 invests Parliament with power to legislate 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 vests in Parliament the 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 "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions". Item 25 of the Concurrent List confers power on the Union Parliament and the State Legislatures to enact legislation with respect to vocational and technical training of labour.

4. Thus, with the exception of the excluded items, the State legislature has, under the Constitution, plenary powers to make laws on all matters relating to education including universities. In the Gujarat University case,* the Supreme Court held by a majority that the extensive power of the State Legislature to legislate with respect to higher

*Gujarat University vs. Srikrsihna Mudholkar, AIR 1963 SC 703 714-15.

education including scientific and technical education is controlled by the five items which are carved out of the subject of education and in respect of which Parliament has exclusive power to legislate. The power of the State Legislature in respect of education including universities must, to the extent to which it is entrusted to the Union Parliament whether such power is exercised or not, be deemed to be restricted. If the 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 in Parliament.

5. There is no difficulty regarding the scope of Parliament's power to legislate in respect of the particular institutions mentioned in Entries 63, 64 and 65. It is only when we come to consider the impact of Entry 66 of List I upon Entry 11 of List II that we are faced with the real difficulty of drawing a precise dividing line between the power of the Union Parliament and that of the State Legislature in the matter of' legislation for institutions for higher education and research. The Supreme Court has held that item 11 of List II and item 66 of List I overlap and must therefore be harmoniously construed, and to the extent of such overlapping the power conferred by item 66 of List I must prevail over the power of the State under item 11 of List II. The Court has also held that the use of the words "subject to" in item 11 of List II takes out of its content the subject-matter of item 66 of List I, so that to the extent of coordination and determination of standards. in institutions of higher education or research and scientific and technical institutions the Union Parliament has the sole and exclusive power of legislation.

6. But this construction of the two Entries does not help to solve the problem of determining with precision the content of item 66 itself. In its broadest sense the concept of education covers a very wide field. Buildings, libraries, laboratory equipment, courses of study, standards of examinations, research, medium of instruction, qualifications of teachers and their conditions of service, all these and more are the matters which together constitute higher education. These are not distinct legislative heads and the power to legislate in respect of all or any of them resides in the State legislature in which the power to legislate on education is vested. But the Supreme Court says that the Union Parliament has also the power under item 66 to legislate on all the above aspects of education in so far as they have a direct bearing and impact on the powers of coordination and determination of standards in particular educational institutions. If the primary aim be to fix a standard which is to be attained by a student who passes out at the end of his training it can well be said that everything necessary for the attainment of that standard by him falls equally within determination of standards. In order to attain a particular standard at the end, each preliminary step will have to be of that standard. Thus the quality of the examination he has to pass at the end, next the quality of any intermediate examination, the textbooks for the purpose, the nature of the practical training, if any, the appliances which he must have to use, the qualifications of

the teachers who impart the education, may also require to be fixed according to certain standards in order that the ultimate standard may be attained. If coordination means the fixing of the same or similar standards within a university state-wise or country wise so as to have a more or less uniform level, all these items might equally be included as fit subjects for Central legislation. Almost every aspect of university life and activity may be controlled in the name of coordination and determination of standards. In short, all matters which are comprehended in the word "education" and are within the competence of State Legislature as failing within item 11 of the State List may equally have to be dealt with by Union legislation if it is necessary to do so for coordinating and determining standards. In this connection the following observations of the Supreme Court in the Gujarat University case are apposite.

"Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the State Legislature to prescribe syllabii and courses of study and, of course, to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure coordination and determination of standards, that is, to ensure maintenance or improvement of standards. The fact that the Union has not legislated or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the "doctrine of pith and substance" of the impugned enactment."

It follows that Parliament's power cannot go beyond what is strictly necessary under item 66 and its interference with education must be limited to the purposes mentioned in the said item. It cannot directly encroach upon the State field and deprive Entry 11 of all or substantially all its content under the cloak of coordination and determination of standards. It is therefore, a matter of extreme difficulty to draw a sharp dividing line between item 11 of List II and item 66 of List I and to ascertain where the State's power ends and the Union's power begins.

7. In this connection, we have had the advantage of the views of the learned Attorney-General whose advice was sought by us in the light of the Supreme Court's judgement on the question of the extent of the implied powers of Parliament to undertake legislation under

Entry 66 of List I, particularly the extent to which such implied powers would include the matters stated in paragraphs (a) to (f) of question 8 of the Questionnaire. The extreme difficulty in drawing a sharp dividing line between item 11 of List II and item 66 of List I is highlighted by the learned Attorney-General in the following words :-

"Education cannot be imparted effectively without building laboratory equipment, teaching staff, finances, etc. All these matters are comprehended in the word "education" and would be within the competence solely of the university as falling within Entry 11 of the State List but they each of them may equally have to be touched upon or dealt with by Union legislation If it is necessary to do so for determining standards and/or for coordination. Normally, it is for the State to regulate the imparting of education and maintaining of standards. Parliament's power in this matter is limited to coordination and the fixing of standards. As pointed out by the Supreme Court, when legislation is passed by Parliament and/or the State, it would be a question of ascertaining the pith and substance of each so as to determine whether it falls properly within Entry 66 or Entry 11. The Centre cannot be permitted in the name of coordination to legislate so as directly to interfere with education. It is obvious that it is a matter of the utmost difficulty to draw a clear line at a place where the State's function ends and the Centre's function begins. This much, however, can be said that the Centre's power cannot go beyond what is strictly necessary for legislating under Entry 66. The Interference with education must be limited to the purposes mentioned in that Entry and not step into the field covered by Entry 11 by direct interference."

And further,

"If it were that Entry 66 contemplated only remedial measures, that is to say, where there is no approach to coordination, or where standards are so diverse as to require fixation, the difficulty would not be so great, but the Supreme Court has said that the Centre has not to wait until there is a distinct want (if coordination or a lowering or variation of standards in order to act. The Centre can act also anticipatorily. In any such anticipatory legislation even more care would have to be taken to see that Central legislation is kept strictly within the bounds of Entry 66."

8. We have tried to ascertain through Question 8 of the Questionnaire whether the implied powers of Parliament under Entry 66 would include the powers to legislate on the ,specific matters mentioned therein. Question 8 is as follows :-

8. To what extent can the doctrine of implied powers as enunciated in the case of Gujarat University by the Supreme Court

be carried to include the right of the Parliament to legislate :-

(a) That Visitorial powers shall reside, in the interest of coordination and the maintenance of standards, in the President of the Union.

(b) That Chancellors shall be persons of eminence either in the educational world or in other spheres of public life of the country and shall have such powers as may be specifically delegated to them but that they shall not be vested with any Visitorial powers.

(c) Regarding minimum standards of fitness for admission to universities or to technical and professional institutions including medical, engineering and agricultural institutions.

(d) Prescribing the procedure for the appointment of Vice Chancellors.

(e) Regarding the right to direct inspection of colleges and other institutions in order to ensure that proper standards are maintained.

(f) Regarding the fixing of qualifications as also the method of selection of members of (1) the teaching staff and (2) other members of the community, to various governing bodies such as the Court or the Senate, the Executive Council or the Syndicate, the Academic Councils, Appointment or Selection Boards, Examination Committees for bringing out results and other similar university bodies."

The most important aspect of this question is regarding the power of Parliament to confer on the President the powers of the Visitor in respect of all universities in India. It may not be out of place to compare the powers of the Crown in England as a Visitor of the universities with like powers of the President of India in respect of the Central Universities.

In England, the Universities of Oxford and Cambridge being civil and lay corporations, have, it seems, no Visitor. The Colleges of Oxford and Cambridge unlike the Universities themselves are eleemosynari corporations and subject to visitation. Other universities are likewise visitable, the Crown usually being the Visitor in the case of those incorporated by modern Charter.* Holt, C. J. defines "Visitorial power" as "an authority to inspect the actions and regulate the behaviour of the members that partake of the charity", the object being " to prevent all perverting of charity or to compose differences that may happen among the members of the Corporations themselves." Where the King

*Halsbury : Laws of England III Ed. Vol. 13, p. 709

**Philips vs Bury (1788) 2 TR 1353; Tudor on Charities, 5th Ed. p. 199

is the founder he and his successors are Visitors.*** But if the founder is a subject and his heirs become extinct or could not be found or was a lunatic, the Visitorial powers devolve upon the Crown.**** The powers of the Visitor in England thus appear to be of supervisory nature aimed at maintaining the regular working of the institution according to the statute. The powers given to the President under the respective statutes of the Central Universities (Banaras, Aligarh, Delhi and Visva-Bharati) are broadly speaking of this type. The President in his capacity as Visitor of the Central Universities exercises the following powers :-

(a) "He has the right to cause an inspection to be made of the University, its buildings, laboratories and equipment and of any institution maintained by the University and also of the exami- nations, teaching and other work conducted or done by the University and to cause an inquiry to be made in like manner in respect of any matter connected with the University.

(b) He may address the Vice-Chancellor with reference to the result of such an enquiry and the Vice-Chancellor shall communicate to the Executive Council the views of the Visitor with such advice which the Visitor may offer of the action to be taken thereon.

(c) The Executive Council has to communicate through the Vice-Chancellor to the Visitor such action, if any, proposed to be taken or which has been taken upon the result of the inspection or enquiry.

(d) If the Executive Council does not within a reasonable time take action to the satisfaction of the Visitor the latter may after considering any explanation or representation of the Executive Council issue such directions as he may think fit and the Executive Council shall be bound to comply with such directions.

The Visitor has also the power by an order in writing to annul ,any proceeding of the University which is not in conformity with the Act, the Statutes or the Ordinances. In addition to these powers the ,respective Acts further provide that every new Statute or addition to the Statute or any amendment or repeal of the Statutes of the University require the previous approval of the Visitor who may sanction, disallow, or remit it for further consideration. He has also the power ,to disallow ordinances and suspend their operation.

10. Parliament can of course provide by law made under Entry 66 of List I that the President of India shall be the Visitor in respect of the other universities as well as the four Central universities in so far as it is necessary for the purpose of coordination and determination of standards. But to what extent the President can be invested

THE GUJARAT UNIVERSITY CASE AND ITS IMPLICATIONS