Anushka MehtaCo-Founder, Rightantra Disclaimer: The subject matter of this article is sub-judice as on date of publication, and this article serves solely as an expression of opinion. In the field of education, the purpose of the 42nd Amendment to the Indian Constitution appeared to be the embodiment of the wise words of Helen Keller, “Alone we can do so little, together we can do so much”. To contextualise, prior to 1976, the power to legislate on education was solely within the ambit of the states. However, based on the recommendations of the Swaran Singh Committee, the need to evolve all-India policies was realised and the subject was shifted to the concurrent list, i.e., education was brought under the ambit of both Centre and states. This has been widely debated with a resolution for reversal of this change being moved in the Rajya Sabha by Mr. Vaiko in 2019 as well as similar demands by committees in West Bengal and Tamil Nadu, formed prior to implementation of the National Education Policy, 2020 (“NEP 2020”). The issue has once again come to light in a Public Interest Litigation petition (“PIL”) filed by the Aram Seyya Virumbu Trust, before the Madras High Court which is presently pending adjudication. Concerns brought forward in the PIL The PIL draws on the history of education as a subject, which was placed within the purview of the provinces even during the British era, under the Government of India Act, 1935. Pursuant to independence, education formed a part of the State List under Schedule VII of the Indian Constitution and only the power to maintain standards in higher education was conferred on the Centre. Further, the petition also makes reference to Constitutional Assembly debates which decided that education should be a state subject. However, such averments fail to take into account the opinion of the expert group under the leadership of Justice Sarkaria which submitted its report in 1983, which failed to find support for the suggestion that education be brought back to the State list. Another concern put forward by way of the petition is change in the federal structure of the Constitution, which is a basic feature, brought about during the emergency by passage of the 42nd Amendment. This does not appear to be tenable in light of the explanation of the basic structure doctrine in Minerva Mills v. Union of India as well as Kesavananda Bharati v. State of Kerala. These two landmark judgements lay down that since the Preamble assures to the people of India a polity whose basic structure is described therein as a Sovereign Democratic Republic; Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India’s sovereignty and its democratic, republican character. Further, as explained below, the Centre has made attempts to decentralise and inculcate increased participation of states in the matter of education. Ramifications of 42nd Amendment vis-a-vis NEP 2020 One of the most major issues mentioned in the petition is the centralisation of education, with averments against the lack of autonomy of the states in this matter, especially in light of the passage of NEP 2020. This is primarily because the NEP 2020 provides for the creation of a Higher Education Commission of India (“HECI”), as a central authority to regulate the academic standards for all higher educational institutions, which would subsume the authority of states over educational institutions under their jurisdiction. In the opinion of this author, the above averments appear to be unjustified on account of the duties imposed on the Centre by virtue of the Directive Principles of State Policy under the Indian Constitution. Articles 39(f) and 45 of the Indian Constitution provide that the State should provide free and accessible education to children until the age of 14 years. Further, Article 56 makes it the responsibility of the Centre to protect the educational interests of the weaker sections of society. Thus, the onus for ensuring accessibility of education falls squarely upon the Centre, towards the fulfilment of which the NEP 2020 is a step forward. Nonetheless, without prejudice to this, education is a subject matter of the Concurrent list and not the Union list, which allows for a partnership between the Centre and states to the benefit of children and students alike. Thus, while the HECI will be an overarching federal body, it will have to mediate and coordinate with various state level institutions to generate desirable outcomes and make the vision of NEP 2020 a success. Another consideration to be taken into account is the attitude of states to stand back without taking proactive measures. An example is the suggestion to set up State Councils of Higher Education in every state, under the erstwhile NEP 1986. Only the states of Tamil Nadu, Andhra Pradesh, West Bengal, Kerala and Uttar Pradesh undertook this measure. It was only after the Centre made it mandatory under the Rashtriya Ucchatar Shiksha Abhiyan that states began to set up said councils. Lastly, the Centre has been allowing states discretion on spending in the education sector by steadily reducing the allocation towards education through centrally sponsored schemes, i.e., Budget 2021 contained a 6% decrease in funds compared to the previous budget. Whereas on the other hand, simultaneously increasing or maintaining the fiscal devolution of resources to states through the Finance Commission, which was maintained at 41% for the period of Financial Year 2021-22 to 2025-26. This is intended to allow states to have larger control over their desired fiscal direction, priorities and areas of improvement, ensuring protection of their autonomy (reference made to page 50 of the NUEPA Occasional Paper 50 on Union State Relations in India’s Higher Education provided in the References link below). Collaboration is key Prima facie, it appears that the PIL which rekindled the age-long debate on the subject of education under the Seventh Schedule of the Constitution, shall not be successful in its plea to move back education as a state subject. At present, the PIL has been admitted before the learned bench comprising Hon'ble Justices Sanjib Banerjee and P D Audikesavalu, who commented on alleged centralisation of education by emphasing that the subject continued to remain on the concurrent list over which both states as well as the Centre have the power to legislate. Further, support was given to an equitable distribution of educational resources. However, as above mentioned the matter is pending adjudication as on date of publication of this article and the final verdict of the Hon’ble Madras High Court remains to be seen. In the meantime one can only hope that states and the Centre continue to work in harmony towards progress in the field of education, for the benefit of students in our country. References: https://www.orfonline.org/expert-speak/the-national-education-policy-2020-and-the-future-of-cooperative-federalism-in-india/ https://www.newindianexpress.com/cities/chennai/2020/sep/10/bring-education-back-under-state-list-experts-2194791.html Tilak Jandhyala, NUEPA Occasional Paper 50, Union State Relations in India’s Higher Education (2017) - http://www.niepa.ac.in/download/Publications/Occasional_Paper-50_Prof.JBGTilak.pdf
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