Will shifting "Education" to Concurrent List amount to tinkering with Federalism? Madras High Court

The Madras High Court on Tuesday issued notice to the Central government on a petition challenging the 42nd Constitutional amendment in so far as it transferred the subject of "Education" from the State list of the Constitution to the Concurrent list. (Aram Seyya Virumbu Trust v. Union of India).Senior Advocate NR Elango, appearing for the petitioner, contended that the deletion of "Education" from the State List (List II) and the transfer of this subject to the Concurrent List (List III) goes against federalism, which is part of the Basic Structure of the Constitution of India.."It is well settled that the amendments cannot run contrary to the basic structure and federalism is the basic structure of the Constitution," he argued. .Chief Justice Sanjib Banerjee, in turn, also sought to distinguish between federalism and quasi-federalism stating that India is more quasi-federal in nature."We do not know whether federalism is (part of) basic structure.. we are not completely federal. Complete federalism also means the States have a right to secede," he observed..Elango responded by pointing out that the Supreme Court has ruled that federalism is part of the Basic Structure in the SR Bommai case. ."Yes, Bommai says that," the Chief Justice agreed. .He went on to opine that since the Constituent Assembly has also given amending powers to the Parliament, the issue to be considered is whether an amendment transferring "Education" to the Concurrent List would violate the Basic Structure. ."The issue is this. Whether tinkering with an entry like Education and taking it from one list to another would amount to tinkering with 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", he said. .In an implied reference to the Bill recently introduced by the State government to exempt Tamil Nadu from NEET, the Chief Justice also orally observed that the challenge assumes some relevance given that similar issues have been raised in the Legislative Assembly..The Court further raised concern over the need to consider that educational resources have to be equitably distributed throughout the country, when debating whether Education ought to be on the State or the Concurrent List. .Addressing the petitioner, the Chief Justice said:."One can respect your sentiments, but please remember, we have vast parts of this country .. (that) continue to be underdeveloped.. so a vast number of places do not have educational institutions. If you go back to judgment on All India Quota .. the aspirations of students in certain places where there are no medical colleges, why should they remain unfulfilled? There has to be equitable distribution of educational resources ... Even now, unfortunately, we do not consider citizens from the northeast as Indians, which is a tragedy. They are called "Nepali" because of their looks. They are as much Indian as you and I. Much of the northeastern areas do not have educational facilities. So we will have to consider all of that.".The Bench which also comprised Justice PD Audikesavalu listed the matter for further hearing in ten weeks' after also impleading the State as a party..Notice was accepted for the Central government by Additional Solicitor General R Sankaranarayanan and for the State government by Government Pleader P Muthukumar..In brief submissions made today, ASG Sankaranarayanan argued that there is a special procedure for amendment when it comes to transferring a subject from the State List. More than half of the States have to ratify before such a change is made, he submitted. Given that he needed to read up on the developments that took place aroung 1975-76 when the amendment was introduced, the ASG also sought six weeks' time to file the Centre's counter. .The Court has given all respondents eight weeks to respond. .The petition was moved by the Aram Seyya Virumbu Trust through its representative, Dr Ezhilan Naganathan, who is also presently serving as an MLA from the Dravida Munnetra Kazhagam (DMK) party.The petitioner challenged the validity of Section 57 of the Constitution (Forty-Second Amendment) Act, 1976 which deleted Entry 11 of List II (State List) of the seventh schedule to the Constitution and effectively transferred the subject of education to List III (Concurrent List).The petitioner asserted that this is violative of the federal structure and is thus unconstitutional..[Read Order]