Constitutional Law - III

Prof. Yashpal & Anr. v. State of

Chhattisgarh & Ors.
Writ Petition (Civil) No. 19 of 2004
AIR 2005 SC 2026

Case Note by Shreesha K S 13B126

Submitted to
Prof. Girish R.
Assistant Professor of Law
GNLU

TABLEOFCONTENTS

SlNo.

Particulars

PageNo.

Acknowledgment

Case Particulars

Introduction

Facts

Contentions

A Few Obeservations

10

Judgement

11

The Authors Bit

12

Bibliography

17

ACKNOWLEDGEMENT
It is an honour to present a case note on the case of Prof. Yashpal & Anr. v. State of
Chhattisgarh. At the outset, I would like to express my heartfelt gratitude Respected Director
Prof (Dr.) Bimal N Patel, Gujarat National Law University, for granting an opportunity to
undertake this academic exercise.
I would also like to wholeheartedly thank Mr. Girish R, Assistant Professor of Law at
Gujarat National Law University for his immaculate resourcefulness and guidance.
Finally, I would like to convey my regards to one and all because of whom this work became
possible.

CASE PARTICULARS
Case no.: Writ Petition (Civil) 19 of 2004
Citation: AIR 2005 SC 2026, 2005 (5) SCC 420
Coram: C.J. G.P. Mathur, P.K. Balasubramanyam
Petitioners: 1. Prof. Yashpal
2. A resident of Chhattisgarh
Respondents: 1. State of Chhattisgarh
2. University Grants Commission
3. Private universities established by the State of Chhattisgarh

INTRODUCTION
Prof. Yashpal & Anr. v. State of Chhattisgarh 1is based on a matter related to the higher
education in India-the establishment of universities and their regulation. A PIL application
under Article 32 before the Honble Supreme Court was filed, challenging the Chhattisgarh
Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam which was brought into
force by the Chhattisgarh Legislature in 2002.
The Court had to tackle a lot of issues which came up issues regarding the universities
notified, bad infrastructure, sub-standard teaching staff among other reasons, degrees granted
for courses which were never even heard of, not registered under either the UGC or other
Councils; the extra-territorial operation of the impugned Act and the legislative competence
of the State legislature to pass the law.
At this juncture, it needs to be said that it is not always necessary that a rigid interpretation of
the Constitution will be employed. The Supreme Court needs to look into the matter by
looking into the intent of the legislature and other tools of interpretation like the doctrine of
harmonious construction and the doctrine of colourable legislation. The intent of the
Constituent Assembly members is of paramount importance here. Harmonious construction
principle looks into the purpose of the provisions of the Constitution. The provisions should
not be construed in isolation, but should be considered in harmony with other parts so as to
do justice to both.
There are times when the legislature tries to do something which is not within the reach of its
power, but outside it. Legislature tries to go around firewalls of the Constitution. It colours
the law with a substitute purpose, but looking seemingly different from the main purpose.
The original goal is achieved through deviant means. The doctrine of colourability looks into
this aspect.

1AIR (2005) SC 2026

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FACTS OF THE CASE

1. Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam,
2002 (the Act) was enacted by the Chhattisgarh Legislature. Publication in the
Gazette was made on 4.2.2002 to help the establishment of self- financed private
universities for higher education.
2. Section 5 of the Act empowered the State to incorporate and establish a university by
issuing a notification in the Gazette.
3. Section gave the powers to the University to affiliate any college or other institution
or to set up more than one campus with the intimation to and permission of the State
Government. In one year, around 112 universities came into existence.
4. It turned out that most of these campuses had no buildings and were bogus
universities with no proper supervision and guidance. The so called universities
were functioning in makeshift small campuses- a single small room in a commercial
complex or a small tenement on the first or second floor of a building or an ordinary
flat. Their addresses made this fact obvious.
5. A lot of such Universities were also functioning outside of Chhattisgarh. Their
address seemed to indicate this.
6. On top of all of this, the private universities were offering courses which were never
heard of, giving out degrees unrecognised by the UGC or any other Council/Agency.
7. Appalled and pained by such abysmal standards of education, Professor Yashpal, a
former Chairman of University Grants Commission, filed a writ under Article 32 of
the Constitution, a PIL for declaring S.5 and S.6 of the Act as ultra vires and for
quashing of the notifications issued by State of Chhattisgarh.

CONTENTIONS BY THE PARTIES

Petitioners
1. Ultra vires the Constitution
The Petitioners contended that it was indiscriminate and mechanical on the part of the State
Government to simply issue notifications without looking into the nuances of the matter.
Infrastructure was totally disregarded. Teaching facility and other financial resources were
also not taken care of. The State Legislature did not have the power under A. 246 to set up the
institutions in the manner in which they were set up.
2. Does not conform with the UGC Act and other Acts
It was contended that the legislation had been enacted in a manner so as to take away all
control that UGC had over these Universities. Courses being offered at the private
universities were never even heard of. Moreover, these fake degrees are not a part of the
schedule of the UGC Act which recognises the courses which can be provided in a university.
This would be a gross violation of S. 22 of the said Act. Guidelines of UGC were also not
followed. The impugned Act was said to be violative of many central Acts like Indian
Medical Council Act, 1956, All India Council for Technical Education Act, 1987 and Bar
Council of India Act, 1956. Prior permission from regulatory bodies such as Medical Council
of India (MCI), All India Council of Technical Education (AICTE), Dental Council of India
(DCI) were not taken at all.

3. Problems to students
Without proper permission from regulatory authorities, the degrees and certificates awarded
would be a waste. This would lead to wastage of students time, money and talent. This poses
the most serious and immediate threat the future of the students involved.

4. Extra-territorial operation of the impugned Act

A few provisions of the impugned Act had effect outside the State of Chhattisgarh, thereby
giving the State enactment an extra territorial operation. Article 245 (1) bars the legislative
competence of the State in such matters. These provisions enabling a University to have an
off-campus centre outside the State is not in conformity with the legislative competence of
Chhattisgarh State.
5. Colourable Legislation
The Act was alleged to be a colourable one. List II and List III of VII Schedule of the
Constitution do say anything about creation or establishment of these Universities which do
not perform the necessary functions of a University, but gives Consultancy Services to
Industries and Public Organisations. This is clearly colourable.

Respondents
1.

The State has legislative competence, in lieu of Entry 32, List 2 of VII Schedule, to
look into, and make a legislation on the incorporation of a University.

2.

State Government defended itself saying that it believed that it was the duty of the
Universities to take care of the infrastructure and appoint qualified staff members so
that the objective for which these Universities were established would be fulfilled.
But the functioning of the Universities post notification was clearly not up to the mark
and this destroyed the expectation the State Government had in them. This also put
the future of the students who took admission in these universities in the dark.

3. After expiry of the time limit given in the abovementioned amending Act, 59
Universities were de- notified because of their failure to comply with the amended
provisions. It is further submitted that the Act had been amended in the year 2004.
4. The aforesaid impugned Act was brought into force in order to bring in private capital
as the State lacked enough funds to establish educational institutions and Universities.
It was enacted with a bonafide intention that the Higher Education in Chhattisgarh
may improve and a would open a door of opportunities for Higher Studies to students.
5. Regulation 3.3.1 of the UGC Regulations is ultra vires, which requires that offcampus centres shall be set up with the prior permission of UGC and that of the State
Government where the centre is proposed to be opened.

A FEW OBSERVATIONS
1. Though incorporation of a University is a State subject (Entry 32 List II) what needs
to be seen here is that a University is an institute of Higher Education and research.
Entry 66 of List I, which is the Central List, is coordination and determination of
standards in institutions for higher education or research and scientific and technical
institutions.
2. A conferment of a useless unrecognised degree is nothing but time waste. It is
imperative that the degree being conferred is recognised. Hence, the right to confer a
degree is being provided u/Section 22 of the UGC Act.
3. The impugned Act made it very easy to create any number of sponsoring bodies
thereby affording an easy advantage to people who wanted to exploit it.
4. A person with absolutely no knowledge on anything could come in and get a degree,
or even a Ph.D or an M.Phil of sorts. This would question the very existence of a
regulatory authority like UGC and would make the whole process of granting degrees
a hogwash.
5. It is important to note that the impugned amendment did nothing much to change the
scenario regarding issuing a notification to establish a university.
6. The fact that many of the private Universities have challenged the provisions of the
amending Act itself shows their intention and purpose that they do not want to create
any infrastructure but want to have the right of conferring degrees and earn money
thereby.

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JUDGEMENT
Sections 5 and 6 of the impugned enactment are wholly ultra vires being a fraud on the
Constitution.2Any State legislation which stultifies or sets at naught an enactment validly
made by Parliament would be wholly ultra vires.3 This is clearly a colourable piece of
legislation being beyond the legislative competence of the State legislature as the relevant
entries in List II and List III of Seventh Schedule of the Constitution do not contemplate
creation or establishment of such kind of a University.4 The impugned Act which
specifically makes a provision enabling a University to have an off-campus centre outside
the State is clearly beyond the legislative competence of the Chhattisgarh legislature. 5 All
notifications issued thereunder notifying the Universities being invalid are liable to be
struck down.6In order to protect the interests of the students who may be actually studying
in the institutions established by such private Universities, the State Government may
take appropriate measures to have such institutions affiliated to the already existing State
Universities in Chhattisgarh.7

2 Paragraph 29, Prof. Yashpal and anr. v. State of Chhattisgarh, AIR 2005 SC 2026.
3 Paragraph 32, Prof. Yashpal and anr. v. State of Chhattisgarh, AIR 2005 SC 2026.
4 Paragraph 33, Prof. Yashpal and anr. v. State of Chhattisgarh, AIR 2005 SC 2026.
5 Paragraph 41, Prof. Yashpal and anr. v. State of Chhattisgarh, AIR 2005 SC 2026.
6 Paragraph 42, Prof. Yashpal and anr. v. State of Chhattisgarh, AIR 2005 SC 2026.
7 Paragraph 45, Prof. Yashpal and anr. v. State of Chhattisgarh, AIR 2005 SC 2026.
11

THE AUTHORS BIT

The impugned Act had extra-territorial operation
The Supreme Court had no qualms in announcing that The impugned Act which specifically
makes a provision enabling a University to have an off-campus centre outside the State is
clearly beyond the legislative competence of the Chhattisgarh legislature.
It is apposite that we look into the different sections of the impugned Act.

Section 3(7) of the Act says that the object of the University shall be to establish main
campus in Chhattisgarh and to have the study centres at different places in India and

other countries.
Section 2(f) of the Act defines 'off-campus centre' as a centre of the University
established by it outside the main campus (within or outside the State) operated and
maintained as its constituent unit having the university's complement of facilities,

faculty and staff.

Section 2(g) of the Act defines "off-shore campus" as a campus of the university
established by it outside the country, operated and maintained as its constituent unit,
having the university's complement of facilities, faculty and staff.

Article 245(1) of the Constitution of India is as follows Parliament alone is competent to make laws for the whole or any part of the territory
of India and the legislature of a State may make laws for the whole or any part of the
State.
It is the interpretation of the Court, on bare reading of the Constitution that the Chhattisgarh
legislature was clearly wrong in setting up off-campus centres based on Article 245(1) of the
Constitution. This is, clearly, a strict interpretation of the Constitution. Article 245(2), which
mentions extra-territorial operation of the laws made by the Parliament, has not been
considered, in the humble opinion of the author. Even though 245(2) does not mention States
having the power of extra-territorial operation, it has been established by the Supreme Court
in various special cases where a State law can have extra-territorial operation.

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The litmus test for extraterritorial operation of a state law is the presence of sufficient nexus
between the object of the legislation which is sought to be achieved and the state. This was
first explained in the case of State of Bombay v. RMDC8 which went on to show that even
though the object to which the law applies is not technically within the territory of that state,
it will be valid if there exists a sufficient territorial connection. This sufficiency can be
established on the basis of two grounds: (i) the connection must be real, not illusory, and (ii)
the liability sought to be imposed must be pertinent to that connection. 9 Another case which
referred to this was the case of Tata Iron and Steel Co. Ltd. v. State of Bihar.10
The reason why the Supreme Court might not have looked into this aspect is because of the
fact that the Respondents did not try to prove their case by trying to establish a territorial
nexus.
Chhattisgarh Legislature had no legislative competence to enact the impugned
Act
Regarding the issue of Legislative Competence, the Supreme Court ruled that Any State
legislation which stultifies or sets at naught an enactment validly made by Parliament would
be wholly ultra vires.
The use of the expression "subject to" in item 11 of List II of the Seventh Schedule clearly
indicates that the legislation in respect of excluded matters cannot be undertaken by the State
Legislatures.11 Therefore, even though the incorporation of Universities is a State Subject, the
entire responsibility of maintaining a standard of teaching, infrastructure all fall under the
specific entry of co- ordination and determination of standards in institutions for higher
education or research and scientific and technical education that entry being in the Union
List.

8 State of Bombay v. RMDC, AIR 1957 SC 699

9 Ibid
10 Tata Iron and Steel Co. Ltd. v. State of Bihar, AIR 1958 SC 462
11 Gujarat University v. Shri Krishna AIR 1963 SC 703
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Therefor the only competent authority to make laws regulating standards in education in
universities is the Parliament, which gets its powers from List 1. This power of the
Parliament was totally ignored by the impugned Act. The laws which were also already laid
down in Central statutes like Indian Medical Council Act, 1956, All India Council for
Technical Education Act, 1987 and Bar Council of India Act, 1956, UGC Act, 1956 were not
adhered with, too. The UGC Act has been made keeping Entry 66 of List I in mind. 12 This
goes on to prove that the present Act is ultra vires.
Doctrine of harmonious construction
It was held that When an entry is in general terms in List II and part of that entry is in
specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II.
It is the duty of the court to read the Entries in the Lists together, to arrive at a reasonable and
practical construction of the language, and bring harmony. Therefore, it is a sound canon of
interpretation that courts must try to avoid a conflict between provisions13.14 To ensure a
smooth working of the constitution, absurdity or practical inconvenience, or make well
existing provisions of existing law nugatory, harmonious construction should be adopted,
while interpreting the constitution.15
Entry 25 List III are about education including technical education, medical education and
universities. These come under the Central List, under Entries 63 to 66 of List I. A reading of
Entry 66 List I and Entry 25 List III can be appreciated if done together. Entry 66 talks about
the power of Union to see that a required standard of higher education in the country is
maintained. This standard includes Scientific and Technical education, and this cannot be
compromised with, in any of the states. Therefore, the whole scheme of the impugned Act of
notifying universities only based on proposals made with many or most of them having

12 Osmania University Teachers Association v. State of Andhra Pradesh 1987 (4) SCC 671
13 In re Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, AIR 1939 FC1
14 Calcutta Gas Company Ltd v. State of West Bengal & Ors. AIR 1962 SC 1044
15 State of Bihar v. Kameshwar Singh, [1952] S.C.R. 889
14

almost zero infrastructural facilities clearly shows that the relevant provisions of the Act have
completely by-passed the power of Parliament under Entry 66 to maintain standards.
Central Government has the power to coordinate and determine the standards for higher
education. That power includes the power to evaluate, harmonise and secure proper
relationship to any project of national importance. 16 The court referred to the case of
Chitralekha v. State of Mysore17 wherein it was observed that the Union Parliament has an
overriding legislative power to ensure that the syllabi and courses of study prescribed and the
medium selected do not tamper with the standards of education or render the coordination of
such standards either on an All India or other basis impossible or even difficult.
Therefore, by application of the doctrine of harmonious construction, when entries in separate
lists leads to confusion in the matter of legislative competence, the specific entry would
prevail over the general entry without invalidating the latter.
Doctrine of colourable legislation
The Supreme Court gave its verdict that It is obvious that a University can be established
only for any one of the aforesaid objectives. This is clearly a colourable piece of legislation
being beyond the legislative competence of the State legislature.
The maxim what cannot be done directly, cannot be done directly 18deals with the doctrine of
colourable legislation. The whole doctrine resolves itself into the question of competency of a
legislature to enact a particular law.19 Sometimes, a legislation pretends to be within its area
but in reality it trespasses into another field by passing an Act in a field in which it does not
have the powers in substance and in reality. This doctrine does not involve any question of
bone fides or mala fides on the part of the legislature.20

16 Kerala State Electricity Board v. Indian Aluminium Co. 1976 (1) SCC 466
17 Chitralekha v. State of Mysore AIR 1964 SC 1823
18 K.C.Gajapati Narayan Deo & Ors v. The State of Orissa, AIR 1953SC 375
19 MP JAIN, INDIAN CONSTITUTIONAL LAW, 594 (Wadhwa Nagpur, 6th ed. reprint, 2011).

15

Tests
The case which laid down the tests for adjudging whether a certain Act constitutes a
colourable legislation was State of Bihar v. Kameshwar Singh21before the Supreme Court.
The tests are as follows:
a) The court must look to the substance of law and not to its form or label that the
legislature gives it.
b) The court must look at the object as well as the effect of the law.
c) If the legislature proceeds under a legislative plan the court must read the statutes
constituting that plan and determine the combined effect.
On applying the test given by the Supreme Court, it becomes quite evident that the impugned
act was, in fact, carrying out a totally different function of providing consultancy to the
industry and public organizations in the guise of welfare of Universities. Section 4 of the
impugned Act, which used the phrase for carrying out any or all of the objects of the
University was not met with, therefore rendering the legislation colourable because, the
Legislature went beyond its legislative competency.

20 R. S. Joshi v. Ajit Mills, Ahmedabad, AIR 1977 SC 2279.

21 State of Bihar v. Kameshwar Singh, [1952] S.C.R. 889
16

BIBLIOGRAPHY
Constitution

THE CONSTITUTION OF INDIA, 1950

Statutes

CHHATTISGARH NIJI KSHETRA VISHWAVIDYALAYA (STHAPANA AUR VINIYAMAN)

ADHINIYAM, 2002

UNIVERSITY GRANTS COMMISSION ACT, 1956

Books

M P JAIN, INDIAN CONSTITUTIONAL LAW (LexisNexis Butterworths Wadhwa Nagpur,

6thth ed. reprint, 2011).

Cases

17

Calcutta Gas Company Ltd v. State of West Bengal & Ors. AIR 1962 SC 1044
Chitralekha v. State of Mysore AIR 1964 SC 1823
Gujarat University v. Shri Krishna AIR 1963 SC 703

In re Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,
1938, AIR 1939 FC1

K.C.Gajapati Narayan Deo & Ors v. The State of Orissa, AIR 1953SC 375
Kerala State Electricity Board v. Indian Aluminium Co. 1976 (1) SCC 466
Osmania University Teachers Association v. State of Andhra Pradesh 1987 (4) SCC
671
Prof. Yashpal & Anr. v. State of Chhattisgarh, AIR (2005) SC 2026
R. S. Joshi v. Ajit Mills, Ahmedabad, AIR 1977 SC 2279
State of Bihar v. Kameshwar Singh, [1952] S.C.R. 889
State of Bihar v. Sm. Charusila Dasi, AIR 1959 SC 1002
State of Bombay v. RMDC, AIR 1957 SC 699
Tata Iron and Steel Co. Ltd. v. State of Bihar, AIR 1958 SC 462

18