Dr. Justice A. K. Rajan, L. L D.
Former Judge of Madras High Court, Chennai
India is a Federal Country. Indian Constitution is federal in nature, not Unitary. Law making powers are distributed between the Union and the States by Articles 246. The VII Schedule contains the legislative entries of union and the states. Article 246 Clause (1) specifies the Subject matters over which laws can be made only by Parliament [List-I: Union List]. Clause (2) specifies the subject mattes over which both Parliament and the Legislatures of States can make laws List –III [Concurrent List]. Clause (3) specifies the subject matters over which only the States can make laws. [List-II State List].
That is, the exclusive legislative field of Parliament and State Legislatures are clearly demarcated, respectively, in Union List and State List. Neither the Parliament nor State legislatures can make law on the subject matter covered under the exclusive field of the other. Though both Parliament and State legislatures can make law on a subject under the Concurrent List, if the State law is or becomes repugnant to a Parliamentary law, then to the extent of repugnancy, the State law would be void and unenforceable. That is so provided in Article 254.
Therefore, if any State Legislature makes a law on any subject matter in the Concurrent List, when there is also a law on the same subject made by Parliament, only the parliamentary law will prevail over State law, whether or not the State law was earlier in point of time.
States are Supreme in its field:
At the same time, the State is the supreme law making authority over the subject matter enumerated in the State List. That is Parliament cannot make any law over States’ subject, the matters exclusively allotted under List -II to the States. That is the federal structure established by the Constitution of India. Both Parliament and the State Legislatures are supreme over the legislative field exclusively allotted to them by the Constitution.
‘Education’ was in the State List:
While framing the Constitution elaborate discussions took place in the Constituent Assembly. Finally the subject ‘education’, as in all federal countries in the world, was included as a State subject, in Entry 11. There are also some other entries relating to education. Entries 32 in List-II (State List) as well as Entries 44 in List-I (Union List) and Entries 63,64,65 and 66 in the Union List are relatable to education.
State List Entry 11 was “Education including universities”,…………. “subject to entries 63,64,65 and 66 List I”.
State List Entry 32 is “Incorporation, regulation and winding up of corporation, other than those specified in List- I and universities;……….”
Union List entry 44 is “Incorporation, regulation and winding up of corporations, whether trading or not, and objects not confined to one state but not including universities.”
Entries 32 (State List) and 44(Union List) forms a single code:
Both the Entries 32 List II and 44 List-I should be read together, to ascertain the powers relating to establishing and regulating a university. A combined reading of these two entries makes it clear that only the States have the power to incorporate, (to establish) and to regulate, (to control) the Universities. By Entry 44 List I (Union list) the power to establish university has been specifically denied to the Union Government. That power is specifically and exclusively conferred on the States. Therefore Central Government can neither establish (incorporate) a university nor regulate nor govern nor control any University.
Even after the 42nd Amendment by which Entry 11 was shifted to List III as Entry 25, Entries 32 List II and Entry 44 List-I continue to remain the same. Therefore even after the 42nd Amendment, the Union Government cannot establish or control a university.
Admission of students, conduct of examinations etc. University Acts Regulate:
The State legislatures establish Universities and make them autonomous bodies with power to make ‘statutes’ for its internal governance. Prescribing method for admission of Students into university colleges, affiliated colleges and other institutions fall within the sphere of regulations by that university. Every University Act contains provisions relating to the requirements (qualification) for admission to any degree or course, method of examination, conferment of degrees and all other matters necessary for its self governance.
Tamil Nadu Dr. M.G.R. Medical University Act:
The Tamil Nadu Dr. M.G.R. Medical University [the first Medical university of India] was established in 1987, exclusively to regulate Medical education in Tamil Nadu. Section 35and 36 of the Act relate, respectively, to ‘Admissions to University courses’, and conduct of examinations. They, respectively, read as follows:-
“Admission to University Courses.-
(1) No person shall be admitted to a course of study or training in a College or University laboratory or an approved institution to appear for any examination held by the University for conferring any degree, diploma or other academic distinction unless he,-
(a) has passed the qualifying examination prescribed therefore by the university; and
(b) fulfils such other conditions as may be prescribed by the regulations,
“36. Admission to University examinations:
(1) No candidate shall be admitted to any University examination unless,–
(a) he is enrolled as a member of a University college, university laboratory, affiliated college or approved institution; and…..”
Thus, the Tamil Nadu Dr. M.G.R. Medical University Act regulates and prescribes the method of admission to medical colleges and institutions within the State of Tamil Nadu.
the State is the supreme law making authority over the subject matter enumerated in the State List. That is Parliament cannot make any law over States’ subject, the matters exclusively allotted under List -II to the States. That is the federal structure established by the Constitution of India.
Madras University Act and every other university act similarly fixes the qualification for admission of students, conduct of examinations etc. to under graduate and post graduate studies. Thus, admission to a university and conduct of examinations are matters regulated or controlled by the respective University Acts. The power to regulate such matters are vested in the States by the Constitution. Central Government does not have those powers.
Scope of Entry 25 List III :-
A misleading argument is being advanced, that after the 42nd Amendment, since the entry “Education” is not in the State List, the Central Government has all the powers on education. Such arguments ignores the existence of Entry 44 List I and Entry 32 List- II. Transfer of “Education” to concurrent List did not affect the above entries.
Entry 25 List- III reads as follows:-
“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.”
Entry 63 relates to Banaras Hindu University, Aligarh Muslim University, [Delhi University, the university established under Article 371E]; and any other institution declared as institution of National Importance. Entry 64 relates to institutions of scientific or technical education financed by the central government and dedicated by law by Parliament to be institutions of national importance. Entry 65 relates to union agencies and institutions for professional, vocational or technical training and other related things.Entry 66 reads “Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”
The Hon’ble Supreme Court in Modern Dental College case has held that the power under entry 66 List I is limited to determination of standards in institutions for higher education or research and scientific and technical institutions and coordination by the Central Government under entry 66 List I. Admission of students is not included in this entry.
The words “education” and “universities”, found in Entry 25 List III when read together, would mean only ‘university education’. But this is deliberately misinterpreted, to deprive the States of their powers. Only the uncovered aspects by Entry 44 List I and Entry 32 List II are covered under Entry 25 List III. That is, power to regulate or control Universities is outside the scope of Entry 25 list III.
to be continued in the next issue…