Education features as the joint responsibility of the Union and the States in the Indian Constitution. This joint responsibility is complex, to say the least, and has been the subject of debate spanning several decades now. What lies at the root of this complexity is the tussle between States exercising their individual autonomy in making law and policy decisions, and the Union assuming a dominant role with respect to certain subjects which are of national interest. Education, especially in the Post-Independence context, assumed such importance. In recent years, certain States have challenged the supremacy that the Union seems to exercise under the Constitution. In this backdrop, this article seeks to look at the distribution of powers between the Union and the State with respect to education, both, as it currently stands as well as the potential implications of States assuming exclusive legislative jurisdiction over the subject.
To begin this discussion, it is imperative to understand the constitutional provisions on the matter. Article 246 of the Constitution refers to three lists found in the Seventh Schedule wherein List I (Union List), List II (State List) and List III (Concurrent List) demarcate whether the Union Parliament or State Legislature has power to legislate on the subjects enumerated within these Lists. While all matters within List I and List II fall under the exclusive jurisdiction of the Union and the States respectively, matters within List III fall within the jurisdiction of both, the Union, and the States. This implies that both the Union and States can make parallel legislation on the same subject. The obvious question that arises is what happens when there is an inevitable conflict between the provisions of these two laws. This has been answered in Article 254. In such a situation of repugnancy, the law of the State legislature is void to the extent that it is repugnant to the law of the Union, or an existing law on a matter within List III. However, in case such law of the State Legislature has received presidential assent, it shall prevail in the concerned State. Interestingly enough, a proviso to the above provision empowers the Union to enact a law that modifies, amends, or repeals such State law so assented.
Education features as a part of List III in the words ‘Education, including technical education, and medical education, and universities, subject to Entries 63-66 of List I, and vocational and technical training of labour.’ The scope of the word ‘education’ in this entry has been interpreted by the Supreme Court to be of wide import. It includes the taught, the teacher, the textbook, the training, and the curricula. Entries 63 to 65 of List I broadly refer to universities and institutions declared by the Parliament to be of ‘national importance.’ Entry 66, specifically, empowers the Union Parliament to exclusively legislate on the ‘co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.’ It would be prudent to also note that Entry 32 of List II reads ‘incorporation, regulation and winding up of universities.’
What is interesting to note is that education was not always on the Concurrent List. Prior to the 42nd Amendment to the Constitution in 1976, education was a part of the State List, still subject to Entries 63-66 of List I. With the amendment, the transferring of power gave the Union legitimacy to assume a central role in creating nation-wide applicable policies on education. In the aftermath of the National Education Policy of 1986, the Union also began giving statutory status to regulatory bodies such as the National Council for Teacher Education (NCTE) and All India Council for Technical Education (AICTE). With the Right to Education Act, 2009, the Parliament laid down a central legislation to operationalise the Right to Education under Article 21-A.
The Union’s Hold
Owing to the 42nd amendment, the Center is empowered to implement a national education policy in States since its law would supersede the State determined law if there were inconsistencies. This power of the Centre has been critiqued by regional political parties in States such as Tamil Nadu and Karnataka, arguing that such centralized power takes away from States’ autonomy to assess the regional, cultural, and socio-economic contexts before making laws and regulations in education. It has been suggested that all States should lay down their own education policy.
Furthermore, if education were to be a subject on the State List, the Union would, in the normal course of things, cease to have the power to override State made laws and rules with respect to education, barring Entries 63-66. If one were to look at judicial interpretations of Entry 66, it would be interesting to note how the Union’s power to set standards for higher education could potentially conflict with the State’s power to legislate laws regulating education. For example, assuming a situation where the State enacts a legislation making a language the exclusive medium of instruction (something that would fall under the scope of education under the Concurrent list), then Entry 66 could still take precedence if such legislation was likely to result in lowering of standards. This was observed by a Constitutional bench where it found the medium of instruction to have a key bearing on the effectiveness of instruction and the resultant standards thereby. The recent controversy where the Tamil Nadu government sought to invalidate the applicability of the National Eligibility cum Entrance Test (NEET) in the State, did not pick up pace owing to the fact that the National Medical Commission Act was legislated under Entry 66 and the question of the applicability of Article 254 did not arise. If States were to undertake exclusive jurisdiction over education, such a transfer would challenge the binding authority of not just national education policies but also the central statutory bodies mentioned previously.
The Madras High Court recently sent notices to the Union as well as the State Government as part of hearing a writ petition filed before a division bench of the Court, challenging the constitutional validity of the 42nd Amendment in transferring education to the Concurrent List. Going forward, what may be important to perhaps remember is that the Constitution seems to be designed to include inherent contradictions in distribution of power. This contradiction has been noted even prior to the 42nd Amendment, wherein it was felt that several provisions of the Constitution (for instance, the original draft of Article 45, which placed, and continues to place the Union under a constitutional obligation to provide free and compulsory education for children under 14 years of age) have always hinted at a stronger Central hold.
By Shruti Mittal, Research Associate, Law, LQF
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