Dmk case regrding education state list case affidavit copy IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.P.No. of 2021 ARAM SEYYA VIRUMBU TRUST, Rep by Dr.Ezhilan Naganathan, (M/41 years),

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

W.P.No. of 2021

ARAM SEYYA VIRUMBU TRUST,
Rep by Dr.Ezhilan Naganathan, (M/41 years),
S/o Naganathan
having its registered office at
No.37, M.K.Amman Koil Street,
Mylapore, Chennai – 600 004.
…Petitioner
-Vs-
Union of India,
Represented by its Secretary
Ministry of Law and Justice,
4th floor, A- wing Shastri Bhavan
New Delhi – 110 001.
…Respondent
AFFIDAVIT OF DR. EZHILAN NAGANATHAN
I, Dr. Ezhilan Naganathan S/o Naganathan Indian aged 41 years, representing ARAM SEYYA VIRUMBU TRUST (ASV), having its registered office at No.37, M.K. Amman Koil Street, Mylapore, Chennai– 600 004 do hereby solemnly affirm and sincerely state as follows:

1. I submit that I am well acquainted with the facts and circumstances of this case.

2. I submit that I am a medical practitioner and social activist and currently a member of Tamil Nadu Legislative Assembly from Thousand Lights constituency representing Dravida Munnetra Kazhagam (DMK) and I have been involved in public service for about the past 20 years. I am one of the trustees of the Petitioner Trust. I have been authorised to depose to this affidavit and file this Writ Petition on behalf of the Trust.

3. I submit that the Petitioner Trust, ARAM SEYYA VIRUMBU TRUST herein after referred as ASV TRUST serves the people and society by imparting legal awareness to Society and providing legal assistance for the benefit of the poor and needy as and when they require in the matters of education, healthcare, clean environment, livelihood and human dignity and protecting the people who are facing any injustice or discrimination in any manner and to create awareness in all matters concerned in the field of law, social, cultural and eco cultural and to provide legal assistance. There are Six other trustees of the Petitioner Trust apart from myself as on the date of filing viz (i) Justice Mr. G.M Akbar Ali (Retd), (ii) Justice Mr. C.T. Selvam (Retd), (iii) Mr A.S. Panneerselvan, (iv) Dr. Nappinai Cheran and (v) Dr. A. Thayappan and (vi) Dr. J. Jeyaranjan. The brief profile of each Trustee is annexed to the typedset .I submit that the Petitioner does not have any vested interest and is filing this Writ petition only in public interest. I further submit that the Petitioner is willing to pay the cost imposed by this Hon’ble Court, if any via Pan Number ARAM SEYYA VIRUMBU TRUST (ASV) – AAITA6794M

4. I submit that a meeting of the trust was held on 25.07.2021 where all members were participated and unanimously decided to file this writ petition and also passed a resolution authorising me to depose to this affidavit on behalf of the Trust.

5. I submit that this writ seeks to challenge Section 57 of the Constitution (Forty-Second Amendment) Act, 1976 to the extent it deleted Entry 11 from List II and transferred the subject contained in said Entry 11 from the State list to the Concurrent list as part of Entry 25 as the same being violative of the federal structure.

6. I submit that Education has been treated as a provincial subject across various other Constitutions, including the original Indian Constitution.

7. I submit that under the Government of India Act, 1935, education was a provincial subject (Entry 17, List II) which read as “Education” and Entry 13, List I (Federal List) empowered the Federal Government to make laws on “The Benares Hindu University and the Aligarh Muslim University”. This goes to show that under the 1935 Act, the entire gamut of education was reserved for the Provincial governments.

8. I submit that on 24.01.1940, Entry 17, List II (Provincial Legislative List) was amended by Section 7 of the The India and Burma (Miscellaneous Amendments) Act, 1940 to read “education including Universities other than specified in paragraph 13 of List I”.

9. I submit that in a subsequent debate in the British Parliament on 15.02.1940, with respect to the Government of India Act, 1935 and Government of Burma Act, 1935, Sir H. O’Neill stated as follows: “The object of the Amendments to the original Adaptation of Laws Order which are proposed to be made by this Order, is to make the necessary adaptations required in accordance with the provisions of Section 7 of the India and Burma (Miscellaneous Amendments) Act passed a few weeks ago, the object of which was to make it clear that jurisdiction over certain Indian universities is within the power of the Provinces and not of the Centre.”

10. I submit that the original Entries 11 and 25 of List II and List III respectively, prior to the impugned amendment read as:
a. Entry 11, List II: “Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III.”
b. Entry 25, List III: “vocational and technical training of labour”.

11. I submit that a reading of this entry 11 List II would reveal that 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.

12. I submit that after the impugned amendment, the new Entry 25, List III reads as:
a. Entry 25, List III: “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.”

13. I submit that the said amendment has resulted in violation of the basic structure of the Constitution by upsetting the federal structure as originally envisaged by the Constitution framers.
14. I submit that by virtue of introduction of ‘Education’ in List III, the autonomy of the states in matters of Education has become subordinate to Parliament/Union Government.

15. I submit that the Constitution framers, in the Constituent Assembly, debated whether the subject of ‘Education’ should be included in the Union List or the State List.

16. I submit that during the Constituent Assembly debates (Volume 9, Tuesday 30th August 1949), in the process of discussion on Entry 40, List I of the Seventh Schedule (Entry 63, List I in the final draft), Shri H.V. Kamath, stated that

a. “In list II of the Schedule, there is an item ‘Education including Universities other than those specified in entry 40 of List I’. This, of course, is to be modified in the new draft which will be brought before the House shortly. But I do feel that the Union has taken more power than is necessary, more power than is desirable with regard to these matters. Personally I hold that that university is the best which is the least contaminated by governmental interference.”

17. I submit that during the Constituent Assembly debates, (Volume 9 on 31st August, 1949) in the process of discussion on New Entry 57(A), List I under the Seventh Schedule (Entry 66, List I in the final draft), Shri V.S. Sarwate argued :
a. “There were two propositions made casually or otherwise in the course of speeches. One was that education should be a Central subject. The reason given was that it was of national importance. Another was a remark casually made by an eminent educational scholar that education in universities should be entrusted to the Centre. The reason he assigned was that the provinces had not sufficient resources. To me both these reasons are neither proper nor sufficient. If the provinces have not got sufficient resources for advancing education, then the alternative should be not to transfer education to the Centre, but to make the provinces have sufficient resources available to them to carry on their function of imparting education.
…….

b. As far as higher education is concerned, the policy, which has been adopted in all federal countries, is that the Centre does not take power to lay down standards. They give the fullest freedom to the provinces in this sphere. But what they do is that the Centre declares that if such an experiment is carried out, such and such grants would be made. The same thing was done by President Roosevelt and the other Presidents of the United States and is being done in Australia and Canada. The same method should be followed by the Centre here. If the Centre wants that any particular standard should be maintained, it should do it in the universities which they control or in their Union agencies for research, or they can provide for making grants to such universities as maintain the standard it wants. There is also another way of controlling this. The university graduates, as circumstances stand today, go mostly to the services, and the Government can lay down rules so that only those who satisfy certain standards would be eligible to enter the services. In this indirect way they can make the universities adopt the standards which the Centre desires.

18. I submit that during the Constituent Assembly debates (Volume 9, 2nd September, 1949), detailed discussions on Entry 18, List II in the draft Constitution (Entry 11, List II in final draft) took place. The members debated various amendments including making the power of the States subject to supervision, direction and control of the Union Government as well as the amendment seeking transfer of this entry to List III.

19. I submit that during the debates (Volume 9, 2nd September, 1949), Shri T.T. Krishnamachari stated:

a. Mr. President, Sir, there seems to be a general tendency on the part of a number of Members of this House to transfer a number of items in List II to List III. May I say at once that we, members of the Drafting Committee, are faced with two opposing problems. Certain Members of the House want that a great responsibility should be shouldered by the Centre. On the other hand, there are a number of Members in this House who feel that the Centre is taking on to itself far more than it ought to, thereby rendering provincial autonomy a mere farce. Actually, such complaints also appear in the papers and I found recently a lecture by Mr. C.R. Reddy, Vice-Chancellor of the Andhra University who has heavily underlined this tendency of power gravitating to the Centre. I would like to repudiate at once so far as the Drafting Committee is concerned, that there is any idea of either over-loading the Centre or erring on the side of the provinces. All that we have done, to the extent that we are able to do, is only to see that the Centre takes only such powers as are needed for the purpose of co-ordinating the activities of the provinces. My honourable Friends who have moved these amendments either to take over the entry “education” to the Concurrent List or to limit the scope of entry 18 to Education upto the Secondary standard, if they would please pursue the items relating to Education in List I, they will see that 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.

20. I submit that ultimately, 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.

21. I submit that when a subject is taken out of the exclusive legislative/executive control of the State and exercise of such legislative/executive authority of the State is made subordinate to the legislative/executive authority of the Union Government, the federal balance is disturbed.

22. I submit that the transfer subject ‘Education’ from List II to List III has resulted in upsetting the federal structure that was envisaged by the makers of the Constitution.
23. I submit that the “Federal principles and arrangements have become so widespread because they suit the modern temper, and federalism is designed to achieve some degree of political integration based on a combination of self-rule and shared-rule.” – Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987 at pp 83-84). Federalism is an intrinsic part of the Indian Constitutional set up because it is best-suited to serve the core idea of ‘unity in diversity’. An action by which the diversity is wiped out to standardise and make a uniform set-up would therefore be violative of the basic concept of federalism under the Indian polity.

24. I submit that though in the initial stages, post 42nd Amendment (impugned Amendment), the power of the Union was not exercised to the extent of destroying the autonomy of the States in matters relating to education (other than higher education), gradually the Union Government and Parliament is legislating in a manner that has made the federal imbalance more apparent and pronounced, as evident from the legislative/executive acts of the Union Government, such as National Council for Teacher Education Act, 1993, the National Education Policy, 2020 etc., as elaborated in the subsequent paragraphs.

25. I submit that the NCTE (Determination of Minimum qualifications for persons to be recruited as Education Teacher and Physical Education Teacher in Pre-primary, Upper primary, Secondary, Sr. Secondary or Intermediate Schools or colleges) Regulations 2014, framed under NCTE Act 1993, introduced regulations pertaining to the norms, standards and application processes for new and existing teacher educational institutions. Regulation 9 stipulates the norms and standards to be met by institutions for existing and newly introduced courses. Thus, 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.

26. I submit that the latest example is the National Education Policy (NEP). The new NEP envisages many centralized agencies which will effectively control all aspects of education in the country. One of these is the National Assessment Centre, called PARAKH (Performance Assessment, Review, and Analysis of Knowledge for Holistic Development), as a national body to set standards for examinations and for “monitoring achievement of learning outcomes in the country”.

27. The NEP proposes to create a ‘National Curricular and Pedagogical Framework for Early Childhood Care and Education’ (NCPFECCE) for children up to the age of 8 by NCERT.

28. The NEP also proposes to set up the Higher Education Commission of India (HECI) to regulate higher education. The HECI is proposed to have four verticals:

a. National Higher Education Regulatory Council (NHERC),

b. National Accreditation Council (NAC),
c. Higher Education Grants Council (HEGC)

d. General Education Council (GEC),

e. The above said four verticals will control and regulate all higher education in the country, including crucial aspects such as funding, regulation and accreditation of institutions.

29. I submit that the implementation of NEP will 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, whereas it is treated as a Provincial or State subject in the contemporary large democracies such as Canada, Australia and USA subject.

30. I submit that the grounds for challenge have been elaborated subsequently in the petition itself. However on face of it, 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 therefore violative of the basic structure of federalism and is liable to be struck down.

31. I submit that the importance of education is well-established and the States are best suited to determine the needs of the people.

32. I submit that to the best of my knowledge, while some parts of the 42nd Amendment were challenged before and were struck down as being unconstitutional by Hon’ble Courts including in the case of Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625], Section 57 so far, relating to the issue of transfer of ‘Education’ as a subject from List II to List III has never been challenged before.

33. I submit that with no other alternate or efficacious remedy left I am approaching this Hon’ble court through this Public Interest Litigation to exercise its powers under Article 226.
GROUNDS

A. It is submitted that Section 57 of the Constitution (Forty-Second Amendment) Act, 1976 whereby it deleted Entry 11 from List II and transferred the subject contained in said Entry 11 from the State list to the Concurrent list, making it a part of Entry 25, List III, violates the basic structure doctrine for the reason that the said amendment has resulted in upsetting the federal structure as originally envisaged by the Constitution framers.

B. It is submitted that by virtue of transferring the subject of ‘Education’ from List II to List III, the States’ executive/legislative autonomy in the matters of ‘Education’ has become subservient to Union’s executive/legislative powers.

C. It is submitted when a subject is taken out of the exclusive legislative/executive control of the State and exercise of such authority of the State is made subordinate to the legislative/executive authority of the Union Government, the federal balance is disturbed. Hence the subject Education is to be retransferred from List III to List II.
D. It is submitted that due to the transfer of subject ‘Education’, which was a State subject in List II, to List III, the federal autonomy of the States has been compromised completely. This is for the reason that by virtue of ‘Education’ being in List III, the legislative/executive authority of the State on this subject is subordinate to the legislative/executive authority of the Union Government. The Hon’ble Supreme Court has held that even a primary legislation of a State on a subject enumerated in Concurrent list has to yield to legislative/executive authority of the Union. {Ref: T.N. v. Adhiyaman Educational & Research Institute [(1995) 4 SCC 104], Yashpal & Ors. v. State of Chhattisgarh [(2005) 5 SCC 420] etc.}.

E. It is submitted that the transfer subject ‘Education’ from List II to List III has clearly resulted in upsetting the federal structure that was envisaged by the makers of the Constitution, as noted below.
F. It is submitted that education has been treated as a provincial subject across various Constitutions e.g. Canada, Australia, United States of America etc., including the Indian Constitution, prior to impugned amendment.

G. It is submitted that even under the Government of India Act, 1935, education was a provincial subject (Entry 17, List II, “Education”) and Entry 13, List I (Federal List) empowered the Federal Government to make laws only on “The Benares Hindu University and the Aligarh Muslim University”. This goes to show that under the 1935 Act, the entire gamut of education was reserved for the Provincial Governments.

H. It is submitted that the Constitution framers, in the Constituent Assembly, debated whether the subject should be included in the Union List, Concurrent List or the State List and after thorough discussions, the Constituent Assembly rejected all the proposed amendments and found favour in the argument that ‘Education’ is primarily a Provincial/State subject and Union should not interfere in this domain. The Constituent Assembly opined that the Union should not interfere in this domain. Accordingly, the Constituent Assembly included “Education” as Entry 11 in List II, making it primarily within the sole domain of the States. The transfer of the subject ‘Education’ from List II to List III had resulted in violating this intention of the makers of the Constitution and has undermined the federal structure.

I. It is submitted that during the Constituent Assembly Debates, Shri H.V. Kamath, stated that
“In list II of the Schedule, there is an item ‘Education including Universities other than those specified in entry 40 of List I’. This, of course, is to be modified in the new draft which will be brought before the House shortly. But I do feel that the Union has taken more power than is necessary, more power than is desirable with regard to these matters. Personally I hold that that university is the best which is the least contaminated by governmental interference.”

J. It is submitted that federalism is a basic structure of the constitution and it was not the intention of the constitution makers to grant untrammelled power to the Union Government with regard to the very basic subjects such as primary education. In the Constituent Assembly debates, Dr. B.R. Ambedkar (Volume 11, 25th November, 1949) stated that:

“The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large field for the operation of its legislative and executive authority than is to be found in any other federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our constitution. There can be no mistake about it.”

K. It is submitted that during the debates (Volume 9, 2nd September, 1949), Shri T.T. Krishnamachari stated:

Mr. President, Sir, there seems to be a general tendency on the part of a number of Members of this House to transfer a number of items in List II to List III. May I say at once that we, members of the Drafting Committee, are faced with two opposing problems. Certain Members of the House want that a great responsibility should be shouldered by the Centre. On the other hand, there are a number of Members in this House who feel that the Centre is taking on to itself far more than it ought to, thereby rendering provincial autonomy a mere farce. Actually, such complaints also appear in the papers and I found recently a lecture by Mr. C.R. Reddy, Vice-Chancellor of the Andhra University who has heavily underlined this tendency of power gravitating to the Centre. I would like to repudiate at once so far as the Drafting Committee is concerned, that there is any idea of either over-loading the Centre or erring on the side of the provinces. All that we have done, to the extent that we are able to do, is only to see that the Centre takes only such powers as are needed for the purpose of co-ordinating the activities of the provinces. My honourable Friends who have moved these amendments either to take over the entry “education” to the Concurrent List or to limit the scope of entry 18 to Education upto the Secondary standard, if they would please pursue the items relating to Education in List I, they will see that 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.

L. It is submitted that the reason behind giving exclusive authority to the States on the subject of “Education” was driven by the fact that it is the State which knows the individual needs and aspirations of the peoples in different areas/localities and is better placed to address the gaps in the system and formulate policies that are tailor-made to suit their needs. Recently a Constitution Bench of the Hon’ble Supreme Court in the case of Modern Dental College and Research v. State of Madhya Pradesh And Others (2016) 7 SCC 353 at para.149 echoed the same in following words:

“149. I have no hesitation in upholding the vires of the impugned legislation which empowers the State Government to regulate admission process in institutions imparting higher education within the State. In fact, the State being responsible for welfare and development of the people of the State, ought to take necessary steps for welfare of its student community. The field of “higher education” being one such field which directly affects the growth and development of the State, it becomes prerogative of the State to take such steps which further the welfare of the people and in particular pursuing higher education. In fact, the State Government should be the sole entity to lay down the procedure for admission and fee, etc. governing the institutions running in that particular State except the Centrally funded institutions like IIT, NIT, etc. because no one can be a better judge of the requirements and inequalities-in-opportunity of the people of a particular State than that State itself. Only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams.[Emphasis Supplied]”

M. It is submitted that it is trite law that a Constitutional Amendment can be challenged if the amendment violates the basic structure of the Constitution.

N. It is submitted that in the landmark judgment of the Hon’ble Supreme Court in Kesavananda Bharati v. State of Kerala, [(1973) 4 SCC 225], the Apex court held that:

“The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act, 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces. All the legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it. [ Per Gajendragadkar, CJ, in Special Reference No 1 of 1964 : (1965) 1 SCR 413 at p 445] All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. [(1965) 1 SCR 413 at 446] It is a written and controlled Constitution.”

O. It is submitted that in the case of S.R. Bommai v. Union of India (1994) 3 SCC 1, the Apex Court noted that just because our Constitution confers greater power upon the Union vis-a-vis the States does not mean that States are mere appendages of the Union and held that the courts should not adopt an approach or an interpretation that would have the effect of whittling down the powers reserved to the States. The Hon’ble Court further held in paragraph 276 that:

“Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle — the outcome of our own historical process and a recognition of the ground realities.”

P. It is submitted that in S.R. Bommai v. Union of India [(1994) 3 SCC 1], the Hon’ble Court further stated in para 106 that the federal principle, social pluralism and pluralist democracy form the basic structure of our Constitution.

Q. It is submitted that in the case of Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625, para 17], the Hon’ble Supreme Court has held that,
“…Parliament cannot, Under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.”

R. It is submitted that it is trite law that the Parliaments power of Amendment is limited and it was not competent to Parliament to alter the basic structure of the Constitution.
S. It is submitted that in the case of State of Rajasthan & Ors. v. Union of India & Ors. [(1977) 3 SCC 592], the Hon’ble Supreme Court recorded that: “Answering another question, Mr. Shanti Bhushan did not agree that the whole of the Constitution 42nd Amendment Act was immoral. But there were, serious objections to that Act on the ground of ethics. When this amendment was rushed through Parliament, the five years term of the members was over. Their term had really expired and they did not have the continued mandate to enact such an important Act as the 42nd Amendment. The results of the Lok Sabha elections had also shown that the people had not really given them the mandate to enact the amendment.”

T. I submit that in the case of Unni Krishnan, J.P. v. State of A.P., [(1993) 1 SCC 645] the Hon’ble Supreme Court, while quoting poet Valluvar’s lines –

“Learning is excellence of wealth that none destroy; To man nought else affords reality of joy”, further stated that :

“13. Victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.

14. The importance of education has come to be recognised in various judicial decisions.

15. In Brown v. Board of Education [98 L Ed 873, 880 : 347 US 483 (1954)] it was observed:

“Today, education is perhaps the most important function of State and Local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

U. It is submitted that an over-centralized federal system is incapable of dealing effectively with socio-economic challenges and strengthening national unity.

V. It is submitted 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.

W. It is submitted that the States are better equipped to know the educational needs of the different communities, the requirement for specific types of education, the socio-economic status of different communities and formulate policies and laws that address the prevailing problems.

X. It is submitted that the ‘one size fits all’ approach in letting the Union determine policies and laws for education is not in the best interest of the public as the needs of various sections of the society are ignored.

Y. It is submitted that the States are in a better position to determine the individual needs of communities from different areas, better localities, regions, castes, tribes etc. and can therefore, better address the gaps in the system and formulate policies that are tailor-made to suit their needs.
Z. It is submitted that this upsetting of the federal balance is more pronounced now in light of the recent policies promulgated by the Union Government, such as the National Education Policy, 2020, National Council for Teacher Education Act, 1993 etc., have taken away the States autonomy causing damage to the Federal structure.

AA. It is submitted that the various inputs are required in framing such a policy. It is also important to note that the Union government may be ill-equipped to deal with competing claims, conflicting interests and effective resource allocation being far removed from the ground reality and often may not have the satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances. It is well settled that the State Governments must have liberty and freedom in framing this policy.

BB. It is submitted that the new NEP 2020 completely takes away the autonomy of the States in the subject of education. It envisages many centralized agencies which will effectively control all aspects of education in the country, such as the National Assessment Centre, called PARAKH (Performance Assessment, Review, and Analysis of Knowledge for Holistic Development), ‘National Curricular and Pedagogical Framework for Early Childhood Care and Education’ (NCPFECCE) for children up to the age of 8 by NCERT, Higher Education Commission of India (HECI) to regulate higher education. The HECI is proposed to have four verticals: National Higher Education Regulatory Council (NHERC), National Accreditation Council (NAC), Higher Education Grants Council (HEGC) and the General Education Council (GEC), which will control and regulate the entire higher education in the country, including crucial aspects such as funding, regulation and accreditation of institutions.

CC. It is submitted that the length of time for which a provision has been in operation will not bar a challenge to the same. Therefore the 42nd Amendment Act, 1976 is amenable to challenge now.

DD. It is submitted that there are several instances when the Hon’ble Courts have struck down long-standing statutory provisions on finding that they are violative of the Constitution. For example, recently in the case of Navtej Singh Johar v. Union of India (2018) 10 SCC 1, the Hon’ble Supreme Court declared ultra vires Section 377 of IPC that was introduced in the year 1861. Similarly, in the case of Mithu v. State of Punjab, Section 303 of the IPC was declared unconstitutional, which was operational since 1860.

EE. It is submitted that in the case of I.R. Coehlo (dead) by LRs v. State of Tamil Nadu [(2007) 2 SCC 1], the Hon’ble Supreme Court, while examining the amendments to the IX Schedule on the touchstone of the basic structure doctrine, held that all amendments to the Constitution amending the IX Schedule, made on or after 24.04.1973, can be challenged if they are violative of the basic or essential features of the Constitution. Therefore, the length of time for which a provision has been in force will not bar a challenge to the same.

FF. It is submitted that as recently as in 2014 [Madras Bar Association vs. Union of India (UOI) (2014) 10 SCC 1, before the Hon’ble Supreme Court] and 2016 [Hindu Front for Justice and Ors. vs. Union of India and Ors. MANU/UP/0073/2016 before the Hon’ble High Court of Judicature at Allahabad], the Hon’ble Courts have entertained challenges to a different part of 42nd Amendment and decided the same on merits.

PRAYER
For the reasons stated above, it is humbly prayed that this Hon’ble Court may be pleased to issue a writ of declaration or any other appropriate writ, order, direction holding and declaring 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, ultra vires the basic structure of the Constitution of India; and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.

Solemnly affirmed at Chennai } BEFORE ME
On this the day of September, 2021 }
And signed in my presence. } ADVOCATE::CHENNAI

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