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Madras High Court Issues Notice On Plea Challenging Constitutional Amendment Transferring 'Education' From State List To Concurrent List

Aaratrika Bhaumik
14 Sep 2021 12:58 PM GMT
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The Madras High Court on Tuesday issued notice to the Central government on a petition that challenged Section 57 of the Constitution (42nd Constitutional amendment) vide which the subject 'Education' was transferred from the State list to the Concurrent list.

The constitutional amendment has been challenged on the ground that deletion of 'Education' from the State List and its subsequent transfer to the Concurrent List violates the principle of 'federalism' which is a part of the Basic Structure of the Constitution.

Notably, the petition comes close on the heels with the bill passed by the Tamil Nadu assembly to exempt the medical admissions in the state from NEET.

Senior advocate NR Elango appearing for the petitioner contended that the constitutional amendment is unconstitutional so far as it violates the concept of federalism which is protected by the Basic Structure doctrine.

A Bench comprising Chief Justice Sanjib Banerjee and Justice P.D Audikesavalu suo moto impleaded the State government too as one of the respondents in the case. The Centre and State governments were directed to file their counter affidavits within 8 weeks. The matter has been listed for further hearing after 10 weeks.

The petition has been moved by the Chennai-based Aram Seyya Virumbu Trust through its representative, Dr Ezhilan Naganathan, who is also an MLA from the Dravida Munnetra Kazhagam (DMK) party.

The petitioner had challenged the constitutional validity of Section 57 of the Constitution (Forty-Second Amendment) Act, 1976 vide which Entry 11 of the State List (List II) of the Seventh Schedule had been deleted and accordingly the subject of 'Education' had been transferred to the Concurrent List (List III).

"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," the petition stated.

The petitioner further pointed out to the Court that before the 42nd Constitutional amendment, Entry 11 of List II had 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." Furthermore, Entry 25 of List III had envisaged 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 further stated.

However, after the amendment, Entry 25 of List III now envisages,

"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 change resulted in the violation of the basic structure of the Constitution, the petitioner further reiterated.

Additional Solicitor General R. Sankaranarayanan contended before the Court that moving a subject from one list to another in the seventh schedule of the Constitution could not be done unilaterally and that a special procedure of obtaining ratification by the States was required. He also dismissed the contention that there was any threat to the federal structure as education had been moved only from the State list to the Concurrent list and not to the Union list.

In the petition, the petitioner cited Constituent Assembly debates to highlight how its members had intended to keep education under the control of the State governments.

"The Constituent Assembly rejected all these amendments and found favour with the argument that 'Education' is primarily a Provincial/State subject and 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 plea stated.

The petitioner further argued that the very purpose of the concurrent list is defeated due to the recent policies framed by the Union regarding education as even a secondary legislation by the Union will overturn a primary law made by a State on a List III subject. This in effect takes away the powers of the State to legislate on education, the petitioner added further.

The plea also averred that such a disturbance in the federal balance was evident from the recent legislations such as - National Council of Teacher Education (NCTE) Act, 1993, the NCTE (Determination of Minimum Qualifications for Persons to be recruited as Teachers and Physical Education Teacher in pre-primary, upper primary, secondary, senior secondary or intermediate schools or colleges) Regulations of 2014 and the National Education Policy (NEP) of 2020.

"Prescribing minimum qualifications for the teachers of basic education disturbs the State autonomy and fails to recognise that State is a legitimate stakeholder in assessing the needs and requirements of the teaching profession. As education has been placed as Entry 25, List III of 7th Schedule, the Constitution still recognises that States have a necessary and legitimate stake in the educational infrastructure of the country.", the plea stated.

The petitioner also argued that the implementation of NEP would 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. On the contrary, Education is treated as a Provincial or State subject in the contemporary large democracies such as Canada, Australia and USA subject, it was added further.

Case Title: Aram Seyya Virumbu v. Union of India

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