Ezhilan Naganathan, a DMK MLA from Thousand Lights constituency in Tamil Nadu, has moved the Madras High Court, 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). Stating that this amendment is violative of the federal structure as envisaged by the Constitution makers, the DMK MLA in his public interest litigation asks 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. In his petition, MLA Ezhilan says 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.
Before 1976, education was under the state list, under Entry 11 under List II of the Constitution (“Education, including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III). This meant that states could take a call on all aspects of education, like the curriculum, content, medium of instruction and the procedure of admission. Only the subject of the coordination, and the maintenance of standards in higher education lay with the Union government.
However, during the Emergency, through the 42nd Amendment, this item was moved to Entry 25 of List III. Earlier, Entry 25, List III had “vocational and technical training of labour.” It was amended to read: “Education, including technical education, medical education and universities subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.” This means the Parliament now had the authority to legislate not only on national universities, setting up of institutions, and coordination of higher education in institutions, but also subject matter and policies of education.
“The original Constitution conferred exclusive domain to the States in respect of all aspects of education, including the curriculum, content, medium of instruction and procedure of admission. Only the subject of the coordination and maintenance of standards in higher education was conferred on the Union government/Parliament,” the MLA says.
The MLA adds that the 42nd Amendment, which made Education a Concurrent List subject, violates the basic structure of the Constitution and upsets the “federal structure as originally envisaged by the Constitution framers.”
“Federalism is a basic structure of the Constitution and it was not the intention of the Constitution-makers to grant untrammelled power to the Union government with regard to the very basic subjects such as primary education,” the MLA says in his PIL. “Federalism is an intrinsic part of the Indian Constitutional set up because it is best-suited to serve the core idea of ‘unity in diversity’. An action by which the diversity is wiped out to standardise and make a uniform set-up would therefore be violative of the basic concept of federalism under the Indian polity,” the DMK MLA’s plea states.
The DMK has contended that the implementation of policies like the National Education Policy, 2020 “will lead to a situation where the autonomy of the states in the field of education will be completely taken away, thereby striking at the very root of the federal structure.”
He argues that states are best suited to determine the needs of the people, and that a “one size fits all” approach and allowing the Union government to determine policies and laws for education is “not in the best interest of the public as the needs of various sections of the society are ignored.”
States are in a better position to determine the individual needs of communities from different areas, better localities, regions, castes, tribes etc, points out the MLA. “The reason behind giving exclusive authority to the States on the subject of “Education” was driven by the fact that it is the State which knows the individual needs and aspirations of the peoples in different areas/localities and is better placed to address the gaps in the system and formulate policies that are tailor-made to suit their needs.”