The Madras High Court has issued notices to the Union government as well as the Tamil Nadu government seeking their response on a public interest litigation filed by DMK MLA Ezhilan Naganathan challenging Section 57 of the 42nd Amendment Act 1976, under which Education was moved from the State List (List II of the Constitution) to Concurrent List (List III). Hearing the petition, the Madras High Court added the state government as an impleader and asked the Union government to respond whether this amendment violated the basic structure of the Constitution.
In his petition, DMK MLA Ezhilan had asked the High Court to declare Section 57 of this Constitutional Amendment as “ultra vires” (beyond the legal authority of) the basic structure of the Constitution of India. He added that by transferring the subject of ‘Education’ from List II to List III, through the 42nd Amendment, the executive and legislative autonomy of the state governments in the matters of education policies has become subservient to that of the Union government.
According to Bar and Bench, the MLA’s counsel contended that amendments of a law cannot run contrary to the basic structure and that federalism is the basic structure of the Constitution. He cited the SR Bommai case, in which the Supreme Court had said federalism is a basic structure of the Constitution. Chief Justice Sanjib Banerjee observed that the question is whether moving a subject like Education from one list to another amounts to tinkering with the basic structure of federalism.
“Because there is diversity, there is federalism. But would tinkering — taking from one to another — would it amount to tinkering with Basic Structure? That may not be so... Anyway we will ask the Centre to respond,” the Chief Justice said.
CJ: Because there is diversity, there is federalism. But would tinkering, taking from one to another, would it amount to tinkering with Basic Structure? That may not be so... Anyway we will ask the Centre to respond#MadrasHighCourt #Constitution #Federalism
— Bar & Bench - Live Threads (@lawbarandbench) September 14, 2021
Additional Solicitor General R Sankaranarayanan argued that this amendment was passed only after states ratified it, and asked for six weeks’ time to respond to the DMK MLA’s petition.
ORDER: State should also be heard ... Tamil Nadu through Secretary in Education department is impleaded as respondent... Necessary amendment should be carried .. ASG takes notice on behalf of the Union, Mr Muthukumar, GP takes notice on behalf of State#MadrasHighCourt
— Bar & Bench - Live Threads (@lawbarandbench) September 14, 2021
The Madras HC said the matter assumes importance, and asked the Union government and the state to respond in eight weeks. The HC will hear the case further after ten weeks.