The 42nd Amendment to the Constitution through which education was moved from the State list to the Concurrent list during the 1976 Emergency is a “poisonous tree” that has borne many harmful fruits, such as the National Education Policy (NEP) 2020 introduced by the Centre, the Madras High Court was told on Monday during the arguments on a case challenging the validity of the amendment.
Appearing before a Full Bench of Justices R. Mahadevan, M. Sundar and Senthilkumar Ramamoorthy, senior counsel N.R. Elango, representing Aram Seyya Virumbu Trust, said it was during the second Emergency period (1975) that the Parliament passed the House of the People (Extension of Duration) Act on February 16, 1976, extending the duration of the fifth Lok Sabha by one year.
During such an extended tenure and under the rigours of the Emergency, the Constitution (44th Amendment) Bill, 1976 was introduced, and it eventually got passed as the Constitution (42nd Amendment) Act in September 1976. Through this Act, various amendments were made to the Constitution but the statement of objects and reasons did not disclose why ‘Education’ was being moved from the State to the Concurrent list, he pointed out.
Arguing that a mention about the intention behind a law in the statement of objects and reasons was not a mere formality, Mr. Ilango said even the courts often relied upon such statements to ascertain the objective behind enactment of laws. Though as many 20 State legislatures, excluding Tamil Nadu and Meghalaya, which were then under Governor’s rule, too had ratified the amendment, those legislatures were also unaware of the object.
“If without any reason an amendment had been made, that kind of amendment is to be tested as to whether it has been correctly presented before the members of the House for their consideration. Even the States were not informed why this amendment had been proposed. If you give no reasons at all, that legislative process is to be faulted,” the senior counsel said and recalled that in 1978, the Lok Sabha agreed to shift ‘Education’ back to State list but the Rajya Sabha did not.
Even in 1978, there was irregularity of procedure, he said and claimed that even as on date, it was the State governments that were spending more on education than the Centre. He said, in 2005-06, the financial contribution of State governments towards education was 83% and only 17% was contributed by the Centre. In 2018-19, the State governments increased their contribution to 92% and only 8% was from the central government.
Further, expressing surprise over the incumbent Bharatiya Janata Party (BJP) government supporting the Constitutional amendment brought in during the Emergency, Mr. Ilango said this should be the only issue on which the Centre had agreed with what was done during the Congress rule. He also said the present case filed by the petitioner trust was completely apolitical, and it was a body administered by jurists, journalists and medical professionals.
Since he could not complete his arguments, the judges adjourned the hearing to Tuesday for him to continue and be followed by senior counsel Kapil Sibal and Advocate General R. Shunmugasundaram for the State government. In the meantime, senior counsel N.L. Rajah and advocates Suhrith Parthasarathy as well as Mutharasu urged the court to permit three of their clients to implead themselves as parties to the case and assist the Bench in taking a decision in the matter.
Mr. Rajah, representing former Anna University vice-chancellor E. Balagurusamy, contended that all the State governments which had ratified the 42nd Constitutional Amendment must also be made respondents to the present case. However, Mr. Elango argued that the Madras High Court could not exercise jurisdiction over other States. He also said that it was the court and not the petitioner who had made the Government of Tamil Nadu a party to the present case.
Mr. Parthasarathy, representing K.P. Subramanian, a 78-year-old retired professor of Anna University, supported the petitioner’s case and contended that the State governments alone would be best placed to determine how best to frame an education policy for the regions within their jurisdiction, and it was the State governments which could truly bear in mind the cultural and linguistic requirements of their respective domains.
After hearing them, the judges decided to take a call on the impleading petitions during the further proceedings of the case. “We shall see the trajectory that the case takes and then take a call on the impleading petitions,” Justice Sundar told the counsel.
