In the crucial debate around federalism and states’ rights, one of the biggest issues is education. The subject was moved from the State List of the Seventh Schedule of the Constitution to the Concurrent List during the Emergency — meaning, the powers to legislate on subjects related to education, which were exclusively with state legislatures, were changed in such a way that both state Assemblies and the Parliament will have the power, with Parliament having supremacy over state Assemblies. This is why the National Education Policy (NEP), or the National Eligibility cum Entrance Test (NEET), which are brought in by the Union government, take precedence over state governments’ own policies.
Now, DMK MP in the Rajya Sabha, P Wilson, has moved a Private Member’s Bill in the House to remove education from the Concurrent List. However, he doesn’t want the subject moved back only to the State List — he wants the Union and states to have parallel powers, without the Union holding any supremacy over states. What does this mean, and why does he believe these parallel powers are necessary?
P Wilson is the lawyer who won the case for 27% reservation for OBCs in All India Quota for medical admissions in the Madras High Court, which was recently upheld by the Supreme Court. He was the Additional Solicitor General for India for the High Courts Madras, Kerala, Karnataka and Andhra Pradesh and their benches between 2012 and 2014, when he resigned as the BJP-led NDA government came into power at the central government. In a detailed interview with TNM, Wilson talks about his Parliamentary interventions on education, why he wants education on State List and Union List, and why competitive exams do not determine ‘merit’. Excerpts from the interview below:
Both the Private Member’s Bills operate in different spheres and for different purposes. The first Bill was introduced by me on 3.12.2021, which is titled as “The Medical Education Laws Amendment Bill 2021.” The Amendment Bill is seeking to dispense with the National Eligibility cum Entrance Test (NEET) in Medical and Dental courses in states which don't want to have NEET.
Education is a matter placed in Entry 25 of List III of Schedule 7 of the Constitution, meaning thereby the state legislature also has legislative competence over the field, and by extension, the executive of that state. By unilaterally assimilating to the central government the power to conduct entrance examinations like NEET, the basic feature of the Constitution, particularly the federal structure is violated.
The second Bill introduced by me on 4.2.2022 is one seeking an amendment to the Seventh Schedule of the Constitution, by deleting entry 25 in the Concurrent List, and creating parallel powers by adding Education, including technical education, medical education and universities etc, to both the Union List and the State List.
Education was a field which the framers of our Constitution felt should be in the sole domain of state legislatures. Therefore, when the Constitution was drafted and adopted, education was placed as Entry 11 of the State List. However, the Constitutional (Forty-second) Amendment Act, 1976 passed during the Emergency, removed Education from the State List and placed it as Entry 25 in the Concurrent List. This was on the basis of the report by the Sardar Swaran Singh Committee which recommended various amendments and distribution of powers from the State List to the Concurrent List.
But the need for the Union to be able to regulate admissions to institutions and universities established by it and funded by it cannot be denied. In fact, the Union has established several reputed medical institutions like All India Institute of Medical Sciences and other such institutions. Similarly, the Union must also be able to establish and run schools like Kendriya Vidyalaya.
However, placing education in the Concurrent List, which cedes primacy in the sphere to Parliament, has gravely circumscribed the ability of states to regulate admissions to institutions and universities established by the state, at its own cost. The example of the National Eligibility cum Entrance Test applying to all states, removing their autonomy to regulate medical education, is a glaring example of this. Many states have been heavily investing in medical and technical education since independence. The results are there for all to see. Several states have achieved high rates of literacy through dedicated investment in education infrastructure. However, suddenly, through the introduction of NEET, without the concurrence of states, the states’ powers to regulate admission to institutions established by them are taken away totally.
The policies of the Union and states on education often differ, and lead to a direct conflict with state laws. The state’s Policy on reservation also has a direct conflict with Union’s reservation in seats in institutes and universities under the state, which ultimately have an impact on literacy rate.
The Union can also be allowed to establish and administer and fund Education. However, unless the states have absolute autonomy to have their policy on Education, the object of growth and strengthening of language which is the identity of the state would only be a myth and mirage.
School education lays the foundations of a person’s life. That is why the education policies of each state differ and the state would want to impart education in line with the state’s unique culture, identity, language and history. However, since education as a whole has been placed in the Concurrent List, any policy of the Union like the ‘National Educational Policy’ will decimate the diversity in education across India.
The philosophy of “one education policy” is inappropriate in the field of education. In education, the outlook should be inclusive and broad, not exclusive and narrow. Even if laws are now enacted by the state legislature pertaining to school education, they can be modified by Union laws if the Parliament wishes to legislate laws on the subject. Assent of the President can be withheld on the advice of the Union government to state legislation which contradict Union legislation. Thus, effectively, the Union government can take control over schools established, funded and run by states. This would spell disaster for diversity. Only the states can ensure that education reaches the grass root level. Welfare schemes for a state specific community/caste can be brought and implemented only by the state. Therefore, allowing the aforesaid subjects to continue in the Concurrent List causes grave threat to the federal structure and that is the reason I have introduced the above Bill.
The suggestion to have a uniform syllabus across the country and a single board is the brainchild of the right wing, including the RSS and BJP, who want to create a homogenous nation, in place of the wonderfully diverse and multicultural society we have now. The CBSE, which was established with that idea, is not found in remote villages, and the Union government has miserably failed to have more number of affiliated schools. The KV Schools established by the Union government are located only in cities and not in remote villages. If the Union government is more eager, it has to establish more schools at their own cost, and not centralise and nationalise school education, indirectly controlling the schools established at the cost of the state exchequer. That will amount to encroaching into states’ domain and rights to educate their own people.
In my opinion, common entrance exams do not assess or determine the Merit. In fact, when Tamil Nadu wanted to dispense with Common Entrance Exams in the year 2006, the then Chief Minister Dr Kalaignar Karunanidhi brought in an Act called “The Tamil Nadu Admission in Professional Educational Institutions Act 2006”, which received the Presidential Assent on 3.3.2007. The Act envisages admission to professional courses from 2007-2008 on the basis of marks obtained in the higher secondary examination. This Act was challenged before the Madras High Court. The Division Bench of the High Court, while upholding the Act, held that common entrance exams do not determine merit. The appeal to the Supreme Court was dismissed and thus the Act was upheld by the Supreme Court. The Act was in force from 2007 to 2017, till Section 10D of the Indian Medical Council Act and Dentist Act came into effect, viz from 2017 onwards.
Even in the recent judgment of Supreme Court in the case of “Neil Aurelio Nunes and others Vs Union of India and others”, where I fought for 27% OBC reservations in All India Quota in the state contributed seats, the Supreme Court in very many words has observed that marks are not the determining factor of merit. Therefore, the common entrance test which is styled as NEET does not serve any purpose; rather it has been a source of minting money for coaching classes.
NEET has instigated students to indulge in criminal acts of impersonation, copying, malpractices etc besides it has put the families into a lot of financial difficulties when they bear the coaching class fees.
Certain Legislative powers are kept in the Concurrent list for both States and Union to legislate on, and of course primacy is given to Parliament over these subjects under Art 246. The makers of the Constitution wanted mutual cooperation between Union and States on these subjects and therefore used the word “Concurrent” which is derived from “concur”. In the Judges Appointment case, the Supreme Court interpreted the word “concur” to mean consent of the Judiciary. Therefore, even though Parliament has primacy over the Concurrent List, it must respect states’ rights over concurrent subjects and not treat it like List I (Union List). In other words, unless absolutely necessary in national interest, state legislations over concurrent subjects must be accepted by the Union.
The idea is to have subjects in the Concurrent List which both Union and states are involved in. Subjects like Education including technical education, medical education and universities, population control and family planning, criminal law, prevention of cruelty to animals, protection of wildlife and animals, forests etc are in the Concurrent List. However, given that there can be conflict when it comes to laws passed by Parliament and state legislatures on the same subject, the Constitution provides that a Central Law will override a State Law on a subject in the concurrent list. That is the reason the Constitution has a Council of States (Rajya Sabha) and also provides for an interstate council under Art 263 to sort out the differences between the Centre and the States and between the States. However, recently, the Union Government has not been hearing the voice of the States, and has been adopting a ‘big brother’ attitude to the concerns of the State and simply brushing them aside.
Since 1950, the Seventh Schedule of the Constitution has seen a number of amendments. The Union List and Concurrent List have grown while subjects under the State List have gradually reduced. Thus, the basic feature of cooperative federalism over a period of years has sought to be diluted.
But after the BJP came to power at the central government, steps have been taken to legislate laws on all the concurrent subjects and park all the powers with the Union government. The Union has gone on a rampage, assimilating to itself all legislations on the Concurrent List, thereby completely excluding state legislations. Virtually, the Concurrent List is being turned into the Union List. The BJP government has also, under the garb of legislating on Concurrent List subjects, legislated on List II subjects like agriculture, dams etc., thereby encroaching into states’ exclusive domain. Apart from this, the Union has started sabotaging state laws on Concurrent subjects by using Governors of states to withhold assent or return Bills, and by causing delays in forwarding Bills for Presidential Assent. In some cases, the presidential assent is also withheld without any reason, thereby literally the state’s power to legislate over the concurrent subject is prevented by the Union. One such example is the NEET exemption bill passed by the Tamil Nadu Legislative Assembly.
Former Tamil Nadu Chief Minister CN Annadurai was one of the first to advocate for state autonomy and federalism at the central government. “It will be sufficient if the Centre retains only such powers as are necessary for preserving the unity and integrity of the country, leaving adequate powers to the states,” he said in 1967. Taking his idea forward, the then Chief Minister M Karunanidhi in September 1969 constituted the PV Rajamannar Committee to look into Centre-State relations. While the committee submitted its reports in 1971 suggesting that entries 5,8,17,19, 22, 23, 24, 25, 28, 30 to 40 and 42 of List III have to be transferred to the State list. The committee suggested that every Bill of national importance or which is likely to affect one or more states before its introduction into Parliament should be referred to an interstate council, and its views thereon should be submitted to the Parliament at the time of introduction of the aforementioned Bill. The committee suggested that the recommendation of the interstate council should ordinarily be binding on the central government and states, and if the central government rejects the recommendations of the interstate council, then such reasons of rejection should be laid in the Parliament and state legislature. The PV Rajamannar Committee also suggested that the Concurrent List should be confined to entries which are of interest to the country as a whole, or of an all India base, and the other entries should be transferred to the State List. The report referred to the objections made by Thiru K Santhanam’s protest during the Constituent Assembly debates, who stood against the expansion of the Concurrent List.
The Tamil Nadu Legislative Assembly adopted a resolution three years later after the report of PV Rajamannar Committee demanding that the central government accept the state’s views on state autonomy and the recommendations of the Rajamannar Committee. The Rajamannar Committee spurred other states to voice their opposition to the central government’s encroachment on subjects that were historically under the state’s purview. However, the Union government ignored the report.
In this scenario after declaration of emergency, Sardar Swaran Singh committee was appointed by the central government and a report was filed in 1976 which was the basis of the 42nd Constitutional amendment.
The 42nd Constitutional Amendment Act brought a lot of changes in the Seventh Schedule, which took away some important entries in the State List. The fields of legislation under Entry 11 (Education), 19 (Forest), 20 (Wild animals and birds) and 29 (Weights and measures) of List II were shifted to List III. This was obviously done to circumscribe the power of the States and make India more unitary, with power centralised at Delhi.
The then Prime Minister Indira Gandhi constituted Sarkaria Commission in the year 1983 to look into Centre-State relations. One of the recommendations of Sarkaria Commission is to fix 30 days time for a Governor to decide on the Bill after the State Legislature forwards the Bill under Art 200. However, the recommendations of the Sarkaria Commission were also not implemented by successive Union governments and were completely ignored.
Tamil Nadu Chief Minister MK Stalin in his speech in the Special Session of the Assembly to consider the NEET exemption Bill returned by the Governor, while asserting the States’ autonomy, principles of cooperative and collaborative federalism, firmly declared: “We have assembled here to preserve democracy’s dignity, to uphold the principle of federalism and to secure the right to education.”
As stated above, education is one subject where state autonomy has to be preserved over the schools, universities established by and affiliated to it. The Union can have the same autonomy over the institutions established and administered by it. Such a mature compartmentalisation is what the framers of the Constitution would have wanted, but instead, the Union is attempting to exert its dominance on institutions established by the state as well. That is why in my Private Member’s Bill, I have suggested a partitioning of powers between the state and Union in the field of education.
Therefore, while a Concurrent List is necessary to preserve the Union’s control over some subjects that have national ramifications, or affect two or more states, the other subjects must be entirely transferred back to the State List, and the autonomy of states must be preserved. It must be remembered that India is a Union of States. In other words, the states have come together to form the Union. The philosophy of one nation, one language, religion, etc. cannot be extended to the constitutional set-up by placing the states on a lower pedestal, and dominantly asserting the power of the Union. That would spell the death knell for federalism in India and destroy our diversity.