42nd Constitutional Amendment Poisonous, State Better Equipped To Deal With Matters Of Education: Argument In Madras HC To Move Edu To State List

Education should essentially be a State subject as State is better equipped than Centre to determine the needs of the people, Senior Advocate NR Elango argued before the Madras High Court on Monday in favour of a petition challenging Section 57 of the 42nd Constitutional Amendment.

The provision transferred the subject of 'Education' from Entry 11 of List II (State List) to Entry 25 of List III (Concurrent List) in 1976. The petition challenging this is filed by Aram Seyya Virumbu Trust.

Appearing for the petitioner trust, Elango submitted before a full bench of Justice R Mahadevan, Justice M Sunder, and Justice Senthilkumar Ramamoorthy that Education should essentially be a State subject as the state is best suited to determine the needs of the people. While discussing on the expenses made towards education by the Centre and the State, he submitted that in the year 2018, the expenditure towards education by the State was 92% while that of the Centre was only 8%.

The amount spent by the Union is always less whether education is in the Concurrent list or not. So the one who can better take care of the matter is the State, he submitted.

He argued that Central legislations on Education are fruits of the poisonous tree of 42nd Constitutional Amendment, which they intended to uproot. 42nd amendment is a poisonous tree. We want to uproot the poisonous tree not the mere fruits of it. We don't want to treat the mere symptoms but the disease itself.

When a challenge was raised that the matter affected all the States and thus all the States should have been made party to the proceedings, Elango said that there was no legal position which states that when a constitutional provision is challenged, every state had to be made a party. Further, he submitted that the court did not have jurisdiction to make all the states as parties.

Elango also relied on decisions of the Supreme Court in Keshavananda Bharathi and SR Bommai's case to underline that India is a Federal country. He also contended that no one could call India a Quasi Federal Country and that it was Federal in nature. He also relied on the Constituent Assembly debates highlighting that the Constitution itself guaranteed separation of powers. The chief mark of federalism lied in the mark of separation of legislative and administrative powers between the Centre and the State.

Lastly, he also drew the attention of the court to the Statement and Objects of the 42nd Amendment Act and emphasised that the Statement and Objects does not state why education was moved from State list to Concurrent list. He also submitted that though Statement and Objects of the Act was not a full guide, it could be used at times to understand the and interpret the legislature. 

The Full Bench was set up on instructions of then Acting Chief Justice M Duraiswamy to decide the following issues:

1. Whether Section 57 of the Constitution (Forty- second Amendment) Act, 1976 so far as it relates to Entry 11 of List II and Entry 25 of List III is ultra vires being violative of the basic structure of the Constitution?

2. Whether the section violates the Federal Structure inasmuch as it subjugates the States' executive and legislative power to deal with the subject "Education" at non-graduate level to Union's executive and legislative power?

3. Whether "Education" is essentially a State subject and can Union usurp power to regulate the State's autonomy in matters of education in areas other than those covered by Entries enumerated in List 1 of Seventh Schedule?

4. In the absence of a specific denial by the first respondent (Union of India) of the averments made in the affidavit, whether it can be taken that the Union Government has admitted the averments in the affidavit?"

The arguments will continue today. After Elango's submissions, Senior Advocate Kapil Sibal will be making submissions for the State of Tamil Nadu (second respondent).

Case Title: Aram Seyya Virumbu Trust v Union Of India 

Case No: WP No. 19490 of 2021