 STATEMENT OF THE CASE FOR THE
 OPINION OF THE ATTORNEY-GENERAL
 AND HIS OPINION

On the recommendation of-the Informal Consultative Committee of Members of Parliament on Education, the Ministry of Education has set up a Committee of certain Members of Parliament under the Chairmanship of Shri P. N. Sapru, for the purpose of examining the constitutional provisions on higher education. The terms of reference of the Committee are :-(1) To examine the provisions of the Constitution regarding the responsibility of the Central Government in the field of higher education with a view to finding out the extent to which the Centre could assume greater responsibility in this field, and (2) to suggest appropriate steps to be taken for the purpose.

2. The Committee has issued a Questionnaire to the State Governments, Universities, eminent educationists and legal experts to elicit their opinion and advice on the subject. A copy of the said Questionnaire is briefed herewith. Attention of the learned Counsel is particularly invited to Question 8(a) and Question 15 thereof. The Committee has desired that the advice of the Attorney-General should be obtained on the question of the extent of the implied powers of Parliament to undertake legislation under Entry 66 of List I of the Seventh Schedule to the Constitution, and in particular, the extent to which such implied powers include the power of Parliament to provide by legislation :

(a) that in the interests of coordination and maintenance of standards in universities the President of India shall have Visitorial powers.

(b) that Chancellors shall be persons of eminence either in 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.

3. 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. Counsel will recall that in the case of Gujarat University v. Shri Krishna Mudholkar, (A.I.R. 1963 S.C. 703), 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 labour 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

4. Against the background of this decision the Committee is considering how far under the existing constitutional provisions can the Central Government assume greater responsibility in the field of higher education. The first and the most important question on which the Committee desires to be advised is, whether Parliament is competent to undertake legislation conferring on the President of India "Visitorial" powers over all universities in the interests of coordination and maintenance of standards.

5. Under the Act relating to the Central universities (Banaras, Aligarh, Delhi and Visva-Bharati), the President in his capacity as the Visitor 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 examinations, 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 inquiry 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 inquiry.

(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 from the Executive Council issue such directions as he may think fit, and the Executive Council shall be bound to comply with such directions.

(e) The Visitor has also the powers by 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 Acts further provide that every new Statute or addition to a Statute or any amendment or repeal of the Statutes of the university requires the previous approval of the Visitor who may sanction, disallow, or remit suspend further consideration. He has also the power to disallow ordinances and it for their operation.

6. The powers conferred on the Visitor are thus very wide. They embrace almost every aspect of the university education and in effect entitle the Visitor to 'exercise virtually a veto on all important activities of the university bodies. The ,question naturally arises, whether such powers can be conferred upon the Visitor in respect of universities other than Central universities in the interests of "coordination and determination of standards". The phraseology of Entry 66 of List I is very wide and comprehensive. The Supreme Court held that in interpreting it, unless it is expressly or of necessity found conditioned by the words used therein, a narrow or restricted interpretation will not be put upon the generality of the words. Power to legislate on a subject should normally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in the subject. "'There is nothing either in item 66 or elsewhere in the Constitution to support the view that the expression 'coordination' must mean in the context in which it is used merely an evaluation; coordination in its normal connotation means 'harmonising or bringing into proper relationship, which all things coordinated participate in a common pattern of action.' The power to coordinate, therefore, is not merely a power to evaluate; it is a power to harmonise or secure relationship for concerted action."

7. At the same time, however, it must also be remembered that the entire field of education including universities, subject to the exceptions mentioned in Entry 11, has been entrusted to the State legislature. Education cannot be imparted effectively without buildings, laboratories, equipment, teaching staff, finances, etc., in respect of which the President has been given "Visitorial" powers over the Central universities. As observed by Suba Rao, J., in the minority judgment, all the said matters are admittedly comprehended by the word 'education', for they are the necessary concomitants of education and it would be unreasonable to hold that all the said matters fall under the heading "coordination and determination of standards". For, if it was so held, the entry education would be "robbed of its entire content". He agreed that in such a case, the principle of harmonious construction should be invoked and that a demarcating line should be drawn and the clue in drawing such a line is found in the word 'coordination'. So understood, the State can make a law for imparting education and for maintaining its standards whereas Parliament can step in only to improve the said standards for the purpose of coordination. But in the name of coordination, 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 a university; it only enables it generally to prescribe standards and give adventitious aids in reaching the said standards. In short, the role of a guardian angel is allotted to Parliament, so that it can make a law providing for machinery to watch, advise, give financial and other help, so that the universities may perform their allotted role.

8. In the light of these observations of the learned Judges, Counsel is requested to consider whether conferring upon the President powers of a Visitor as described above in respect of all universities would amount to a direct interference by an outside body in the course of education which, subject to certain exceptions, lies exclusively within the State field. The Committee also desires to be instructed on the extent to which Parliament can acting under Entry 66 of list I legislate on the matters specified in clauses (b) to (f) of paragraph 8 of the Committee's general Questionnaire. The appointment of authorities of the university, such as, the Chancellor, the Vice- Chancellor and also matters, such as, the qualifications and selection of the teaching staff and members of other authorities of the university all pertain to the autonomy of the university and it is a moot point whether Entry 66 of List I would enable Parliament to make legislation to any extent on such matters.

9. The learned Attorney-General is therefore requested to advise on the questions raised in paragraph 2 above.

NEW DELHI, Sd. R. M. MEHTA

27TH NOVEMBER, 1963. Joint Secretary

OPINION

"Education including Universities" is item 11 in the State List. It is subject to the provisions of Entries 63 64, 65 and 66 of the Union List. Of these only item 66 is material for the present purposes. The Supreme Court has held that by reason of the words "subject to" in item 11, the subject matter of item' 66 in List I is taken out of the content of Entry 11 completely, so that to the extent of co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions the Union has the sole and exclusive power. While ' all the aspects of education such as the framing of syllabi, courses of studies, pres- cription of textbooks, employment of teachers or professors and so on in institutions of higher education are concerned, they remain within the competence of the State Legislature.

2. I take the meaning of 'coordination' to be "bringing into line or arranging in order". As to the phrase 'determination of standards', it, just like co-ordination, has a very wide connotation. It primarily refers to standards of the ultimate degrees or qualifications to be attained, the standards of the examinations which are necessary and the standards of the courses of study to be gone through. Co-ordination may include within it any of the factors which, as taken together, constitute higher education or in research, scientific and technical institutions. Determination of standards and co-ordination may be required in respect of any of the various matters which are comprised in the activities of those educational institutions. It is difficult strictly to limit the application of either to a specific set of facts or to a specific stage or element in the process of education. Thus, if the primary aim be to fix a standard which has 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 brought to a 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 practical training, if any, the appliances which he may have to use, the qualifications of the teachers who impart the education, may all require to be fixed according to certain standards in order that the ultimate standard may be attained. If co-ordination be taken to mean the fixing of the same or similar standards within a university or State-wise or country-wise, so as to have a more or less uniform level all the above mentioned 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 co-ordination and determination of standards.

3. 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 co-ordination. 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 with 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 mater 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, or deprive Entry 11 of all its content.

4. if it were that Entry 66 contemplated only remedial measures, that is to say, where there is no approach to co-ordination 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 of co- ordination 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.

5. Universities are intended to be autonomous bodies and the management of their affairs is essentially their proper function. Education primarily is their affair. Obviously the Central legislation cannot, under the guise of co-ordination or fixing of standards, give power so as to deprive Entry 11 of all or substantially all its content.

6. The very regulation of a university by its own authorities entails, to some extent, a fixing of standards and co-ordination. While under Entry 66 it may be that intramural co-ordination or determining of standards may, by stretching the content, be included, it would appear that the Entry is principally concerned if not wholly with an equation and co-ordination between the standards of different universities State-wise or country-wise.

7. Coming to the items in question 8 of the Questionnaire issued by the Sapru Committee, it is not easy to determine in which side of the rather shadowy line each matter falls. Dealing first with visitorial powers the President is already the Visitor of the four Universities mentioned in List I. Chancellors of several universities (in most cases the Governors) are also invested under the respective Acts with visitatorial powers. In England all corporations are strictly speaking liable to visitation including ecclesiastical or lay. Lay Corporations are either civil or eleemosynary. Briefly speaking, the question there is one of the foundation of the institution. The founder himself is a visitor and in default of any, the Crown is the visitor. The power of the visitor has been described as "an authority to inspect the actions and regulate the behaviour out of the members that partake of the charity, to prevent all perverting of the charity or to compose the differences that may happen amongst the members". Where a statute governs a corporation, the visitor's power is to see that the statute is observed and to determine the disputes which will arise in the working of the statute. It will thus be seen that strictly speaking the powers are of a supervisory and appellate nature generally and aimed at maintaining a regular working of the institution according to the Statute. The powers given to the respective visitors in the existing statutes are broadly of this kind. It is open, however, by legislation to invest a visitor with wider powers, but if they are powers for the purpose of co-ordination or fixing of standards within the meaning of Entry 66, it must be done by Central legislation. If those powers are to be properly exercised that legislation will have to appoint the President generally as the visitor for all the universities. I think no question should arise as to such legislation being discriminatory as vesting unguided power since the powers would have to be exercised only for the purpose of co-ordination and fixing of standards which should be a sufficient all over guidance to validate the exercise of powers vested in, the visitor.

STATEMENT OF THE CASE FOR THE OPINION OF THE ATTORNEY-GENERAL AND HIS OPINION

OPINION