Plea in Madras High Court challenges transfer of 'Education' from State to Concurrent list of Constitution

A public interest litigation (PIL) petition has been filed before the Madras High Court challenging the 42nd Constitutional amendment in so far as it transferred the subject of "Education" from the State list to the Concurrent list. .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. ."The 42nd amendment, to the extent it took away the exclusive executive/legislative right of the States and made their status subordinate to the Union government’s executive/legislative powers, is ... violative of the basic structure of federalism and is liable to be struck down," said the petition..The petitioner called for the re-transfer of the subject "Education" from the Concurrent to the State List..Changes brought by the amendment under challenge.As recounted in the petition, before the 42nd Constitutional amendment, Entry 11 of List II contained the subject of “Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III." .Further, Entry 25, List III contained the subject of “vocational and technical training of labour." . "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 plea said..After the amendment, Entry 25 of List III now deals with “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.”.The petitioner contended that this change has "resulted in violation of the basic structure of the Constitution by upsetting the federal structure as originally envisaged by the Constitution framers.".Highlights of the petitioner's contentions include.Education has been treated as a provincial (as opposed to a Central) subject in other Constitutions as well as in the the original Indian Constitution; The autonomy of the States in matters of education has become subordinate to Parliament/ Union Government. The federal balance is disturbed. The federal structure envisaged by the Constitution's framers has been upset. The federal autonomy of the States has been compromised completely; After debating the issue, the Constituent Assembly had favoured the argument that ‘Education’ is primarily a Provincial/ State subject and that the Union should not interfere in this domain. Accordingly, ‘Education’ was included as Entry 11 in List II and was primarily treated as a subject within the sole domain of the States; The very purpose of the concurrent list is defeated due to the recent policies framed by the Union regarding education, given that even a secondary legislation by the Union will overturn a primary law made by a State on a List III subject (where education lies now). This in effect takes away the powers of the State to legislate on education; The Union Government and the Parliament has been legislating in a manner that has made the federal imbalance more apparent and pronounced. In this regard, the petitioner cited the National Council for Teacher Education (NCTE) Act, 1993 and regulations framed thereunder, the National Education Policy, 2020 etc; Referring to 2014 regulations framed under the NCTE Act which prescribed the minimum qualifications for teachers of basic education, the petitioner says that such prescription by the Union government "disturbs the State autonomy and fails to recognise that State is a legitimate stakeholder in assessing the needs and requirements of the teaching." The National Education Policy (NEP) envisages many centralized agencies which will effectively control all aspects of education in the country. In this regard, reference is made to the National Assessment Centre, (called PARAKH), which is as a national body intended to set standards for examinations and for “monitoring achievement of learning outcomes in the country”. It is also noted that the NEP proposes to create a ‘National Curricular and Pedagogical Framework for Early Childhood Care and Education’ for children up to the age of 8 by NCERT. Further, the NEP also envisages a Higher Education Commission of India (HECI) to regulate higher education, the petitioner notes. The petitioner goes on to argue that the implementation of NEP "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"; Section 57 of the 42nd Constitutional amendment, in so far as it relates to the issue of transfer of ‘Education’ as a subject from List II to List III has never been challenged before. The said amendment violates the basic structure doctrine since it upsets the federal structure as originally envisaged by the Constitution framers; States are better equipped to know the educational needs of the different communities, the requirement for specific types of education, the socio-economic status of different communities and formulate policies and laws that address the prevailing problems; The ‘one size fits all’ approach in letting the Union 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. An over-centralized federal system is incapable of dealing effectively with socio-economic challenges and strengthening national unity; Reliance is also placed on the ruling in SR Bommai v. Union of India to reiterate that "just because our Constitution confers greater power upon the Union vis-a-vis the States, (it) does not mean that States are mere appendages of the Union;".In view of these contentions, the petitioner prayed for the Court to declare that Section 57 of the Constitution (Forty-Second Amendment) Act, 1976 , in so far as it relates to Entry 11 of List II and Entry 25 of List III, is ultra vires the basic structure of the Constitution of India.