Transfer of ‘education’ to concurrent list during the Emergency has upset India’s federal structure, T.N. govt tells HC

Centre refutes the charge and says, the RTE Act of 2009 is one of the finest examples of its contribution towards education

A Constitutional amendment transferring the subject of ‘education’ from the State list to the concurrent list in the Seventh Schedule to the Constitution was carried out during the 21-month Emergency period without any proper debate in Parliament and such a transfer has resulted in upsetting the federal structure envisaged by the framers of the Constitution, the State government has told the Madras High Court.

In a counter affidavit filed before a Full Bench of Justices R. Mahadevan, M. Sundar and Senthilkumar Ramamoorthy, the State government supported the Chennai-based Aram Seyya Virumbu (ASV) Trust that had challenged Section 57 of the Constitution (Forty Second Amendment) Act of 1976 through which the transfer took place, enabling both the Centre as well as the States to enact laws on the subject.

The counter, filed through Advocate General (A-G) R. Shunmugasundaram, stated that the Constitution originally empowered only the States to deal with education (including issues such as framing of curriculum, medium of instruction and procedure for admissions). Only the subject of coordination and maintenance of standards in higher education was conferred on the Centre or Parliament to enact laws.

However during the Emergency between 1975 and 1977, the Constitution was amended on the basis of Sardar Swaran Singh’s Committee’s report and such an amendment was carried out without a proper debate on the issue in both Houses of Parliament. The result of such an amendment was that Parliament would have supremacy over State Assemblies when it came to enacting laws related to education.

Citing examples of such supremacy exercised by the Centre over the States, the government said the National Educational Policy (NEP) 2020 was one such policy “through which the Union government clearly infringes upon the autonomy of the State government in the field of education by intending to change the entire scheme of a prevailing successful education system in the State of Tamil Nadu.”

“It is also submitted that by the introduction of the National Eligibility-cum-Entrance Test (NEET) without the concurrence of the States, the States’ powers to regulate admission to medical educational institutions, established by the State governments, are taken away totally,” the counter affidavit filed on behalf of the Higher Education Department read.

The State government also stated that the philosophy of one education policy for the entire country was inappropriate. “India is a Union of States. In other words, the States have come together to form the Union. The philosophy of one nation, one language, religion etc., cannot be extended to the Constitution set up by placing the States on a lower pedestal and dominantly asserting the power of the Union,” it added.

“In education, the outlook should be inclusive and broad, not exclusive and narrow. Only the States can ensure that education reaches the grassroot level. Welfare schemes for a State specific community/caste can be brought and implemented only by the State. Therefore, allowing the aforesaid subject to continue in the concurrent list causes grave threat to the federal structure,” the government told the court.

Centre’s counter affidavit

On the other hand, the Centre, in a counter affidavit filed through Additional Solicitor General (ASG) R. Sankaranarayanan, said India was a vast country comprising 28 States and eight Union Territories with diverse socio-cultural contexts. Under a federal structure, the Centre and States share the resources and responsibilities for the planning and implementation of national development programmes.

Since education was the primary source of human development, “it is imperative that the State and Central governments jointly prioritise it in budgetary allocations and funding plans.”

The Centre denied that the 42^nd Constitutional Amendment carried out in 1976 had infringed on the powers of the States and said, “rather, it has helped to meet the various demands of different States who are at differing levels of educational development.”

“The 42^nd Amendment Act has enabled the central government to take measures for the development, promotion and growth of education in the country. One significant example is the enactment of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 and also several interventions through schemes in schools and higher education,” the Centre said and denied the charge that NEP 2020 challenges the autonomy of States.

Hearing on November 7

When the case was listed for hearing before the Full Bench on Monday, it was represented that senior counsel Kapil Sibal and the A-G would be representing the State government, the ASG would make his submissions on behalf of the Centre and that senior counsel N.R. Elango would argue for the ASV Trust. Though the judges insisted on commencing the arguments, the counsel expressed certain reservations.

Therefore, the Registry was directed to list the case on November 7, with a clear instruction to the counsel on record to complete their pleadings much before the assigned date.