In NEET row, TN harks back to an old debate: should education be in Concurrent List?

Education was in the state list until 1976, when it was moved to the Concurrent list through the 42nd amendment brought in at the time of the Emergency (June 25, 1975 to March 23, 1977) imposed by then Prime Minister Indira Gandhi.

The Tamil Nadu government has argued similarly in the past. In November 2022, responding to a writ petition in the Madras High Court challenging the shifting of education to the concurrent list, senior lawyer Kapil Sibal, who was representing the Tamil Nadu government, said the placing of the subject in the Concurrent List violated federalism.

“What if Parliament tomorrow said that all children will only be taught in Hindi? It would be an invasion of fundamental rights and the basic structure of the Constitution,” he argued.

‘General pattern’ of education versus ‘all powerful’ Centre

Whether or not education should be a state or central subject and the extent to which the Centre should control education was discussed during the Constituent Assembly debates.

On November 5, 1948, member and well-known educationist Frank Anthony argued: “Equally, divergent, fissiparous, opposing educational policies will be the greatest force for disintegration and the disruption of this country.”

On September 2, 1949, as amendments to the lists were being discussed, Maulana Hasrat Mohani, a Constituent Assembly member from the United Provinces, argued for the subject to be part of the Concurrent list. “Education should be included in the Concurrent List and not be made a provincial subject. Even then, I do not say that it be included in the First List (the Union List). As I do not want to make the Centre all-powerful, I am trying to get this included in the Concurrent List.

Others differed.

Shibban Lal Saxena thought the Centre’s control was key for what he called a “general pattern” of education across the country. “… In the present state of development of Education in India, it is imperative that there should be Central guidance if not Central control, on Provincial progress. You have yourself seen the dangerous symptoms of fissiparous tendencies in the recent months. If it can be secured that Education throughout India follows the same general pattern, we can be sure that the intelligentsia of the country will be thinking on similar lines. This would be a better check against the dangers of fragmentation than any centralisation of Government or concentration of power in the hands of the Central Authority.”

In the same debate, T T Krishnamachari, who was a member of the Drafting Committee of the Constitution, said that a balance was struck between the Centre and the state as far as the division of the subjects was concerned.

“I would like to repudiate at once so far as the Drafting Committee is concerned, that there is any idea of either overloading the Centre or erring on the side of the provinces…We have provided, and the House has accepted those provisions, which confer enough power on the Centre to coordinate the educational activities of the states in the field of higher education, in the field of technical education, in the field of vocational education and also in the field of scientific research. That is about as far as it is safe for the Central Government to go; it would not be wise for any central Government to go beyond that limit.”

The 42nd amendment

The amendment is now remembered and invoked for its insertion of the world “secular” in the Preamble, but it brought in some major changes ( a total of 57 insertions/amendments) including to the Seventh Schedule of the Constitution, which contains the Union, State and Concurrent Lists that determine the division of subjects.

A year into the proclamation of the Emergency, on February 26 1976, a committee was appointed “to study the question of amendment of the Constitution in the light of … experience” under then Union minister Sardar Swaran Singh.

Building on the recommendations, the 42nd amendment Bill was introduced in the Lok Sabha by the then Minister of Law, Justice and Company Affairs, H R Gokhale, on September 1, 1976.

To List III, which is the Concurrent List, the following subjects were inserted:

“Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts; Forests, Protection of wild animals and birds; Population control and family planning; and 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.”

Criticism

Granvil Austin, the American historian of the Indian Constitution, quotes Indira Gandhi in his book Working a Democratic Constitution: A History of the Indian Experience. Gandhi reasoned that the Act’s purpose was “to remedy the anomalies that have been long noticed and to overcome obstacles put up by economic and political vested interests”. The Constitution must provide “order and stability … and law”, she had said.

Austin argues that the Bill had four main purposes – “To further protect from legal challenges Mrs Gandhi’s 1971 election to Parliament and future elections of her and her followers; to strengthen the central government vis-a-vis the state governments and its capability to rule the country as a unitary, not a federal, system; to give maximum protection from judicial challenge to social revolutionary legislation — whether intended sincerely or to cloak authoritarian purpose; ‘to trim’ the judiciary, as one Congressman put it, so as to ‘make it difficult for the Court to upset her policy in regard to many matter.”

Among the most sweeping changes the amendment brought in was the exclusion of courts from election disputes. It also said that amendments could not be questioned “in any court on any ground”; that amendments to the Fundamental Rights were beyond review; and that there shall be no limitation on Parliament’s power to amend the Constitution ‘by way of addition, variation or repeal’,” Austin writes.

In an editorial in The Indian Express on the amendment, senior BJP leader L K Advani wrote: “(1) It authorised the President to amend the Constitution through an executive order for two years! (2) It abolished the need for quorum in Parliament”.

Owing to the majority of the Congress then, the Bill was passed with 366 votes in the Lok Sabha, with four negative votes. It was passed by 190 votes in the Rajya Sabha, with no negative votes.

The Act’s motive reads: “A Constitution to be living must be growing. If the impediments to the growth of the Constitution are not removed, the Constitution will suffer a virtual atrophy. The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now.”

However, some leaders did register their protest.

Lok Sabha MP P G Mavalankar called the amendment a “Constitution alteration exercise … a dishonest move on the part of the government”.

Congress (O) leader and then Rajya Sabha MP Krishan Kant said: “They are declaring that they have no basic framework of values and objectives… All principles, values and institutions can be moulded or subverted to suit their interests… Those who ridicule the concepts of checks and balances are speaking the language of authoritarianism.”

The Janata coalition went on to win the elections called by Gandhi in March 1977, and Morarji Desai became the Prime Minister.

In December 1977, then Law Minister Shanti Bhushan introduced the 44th Amendment Bill, which sought to amend the 42nd Amendment Act.

Its statement of objects and reasons read: “Recents experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live.”