Dr. Justice A. K. Rajan, L LD
Former Judge of Madras High Court
Indian Constitution is federal in nature. India is not a ‘Unitary -State’. Law making powers are distributed between the Union and the States by Article 246. The VII Schedule contains the legislative entries, in three lists. List-I: (Union List) specifies the subject matters over which laws can be made only by Parliament. List-II (State List) specifies the subject matters over which only the States can make laws. List –III (Concurrent List) specifies the subject mattes over which both Parliament and the Legislatures of States can make laws. 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. Both Parliament and the State Legislatures are supreme over their exclusive legislature field. This is the principle adopted and followed in all the modern federal constitutions.
On the subject matters under the Concurrent List, both Parliament and State Legislatures have power to make law. In case any of the State law, is or becomes, repugnant to a Parliamentary law, on the same subject matter, then to the extent of repugnancy, the State law would be void and unenforceable and Central law would prevail. Because it is so provided in Article 254(2), Parliament cannot make laws on any or all the subject matters found in List III and make the State laws on the subject unenforceable, and make the scheme of the Constitution redundant. Only in extraordinary circumstances, Article 254 can be resorted to. If every State law is so made unenforceable, that amounts to fraud on the Constitution. The de-jure List III cannot be converted as de-facto List I. Such misuses must be avoided in any Federal Constitution. On the touch stone of this axiomatic legal principle, the National Education Policy 2020 is analysed in this article.
Meaning of Education
The word ‘education’ denotes only the ‘general education’. That was held in Re. Institution of Civil Engineering “Education in general means training up the young in general-education and does not extend to teaching for a business or profession”, in 1931, by English Courts [19 QBD 610]. It is defined as “ ….. a process of acquiring general knowledge; developing process of reasoning and judgment; to prepare intellectually for matured life.” That is, giving vocational training is not giving education.
Relevant constitutional provision Article 21A of the Constitution, a fundamental right, mandates the State to “provide free and compulsory education to all children of the age of six to fourteen years”. The nature of education here means only the ‘general- education’. The Directive Principles of State Policy, Article 38(2), directs the State to ‘eliminate the inequalities in status, facilities and opportunities’. Article 39(f) directs that “the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”.
A ‘cloistered virtue’
Centuries together, before the arrival of Europeans, in India, all were not entitled to get education; cannot be given education. It was only a few classes of persons who could be given education. Others were to do all kinds of manual labour, at times even without any remuneration. Situation was that it was difficult even to eke their livelihood. Thus, education was kept as a ‘cloistered virtue’ by the powers that were.
After the arrival of Europeans
In 1715, Portuguese introduced the modern educational system in India. Saint Paul’s School in Madras was started in 1717.The East India Company did not take any interest in educating Indians before the Charter of 1813. When the East India Company was directed to educate the native Indians, only Sanskrit and Arabic were taught in the schools catered by them. It was Macaulay who took steps to improve the educational standards in India. After studying the then prevailing system, Macaulay in his Report (in 1835) records as follows: “It is said that the Sanskrit and the Arabic are the languages in which the sacred books of the hundred millions of people are written, ……….to encourage the study of a literature, admitted to be of small intrinsic value , only because that literature inculcated the most serious errors on the most important subjects, is a course hardly reconcilable with reason, morality, …………….. We are to teach false history, false astronomy, false medicine, ………… we abstain, …………to waste their youth in learning how they are to purify themselves after touching an ass or what text of the Vedas they are to repeat to expiate the crime of killing a goat”. (para31)
“We must at present do our best to form …………………………………. a class of persons Indian in blood and colour, but English in tastes, in opinion, in morals, and intellect”. [para34]
According to Macaulay, False ideas were delivered by Indians and they were taught in the ‘gurkulam’, which Macaulay wanted to end. He wished Indians to think scientifically like Europeans. Hence introduced English as medium of study in schools, as only in English all the books were available.
Only based on his report, Indian Education Act 1835, was passed incorporating recommendations of Macaulay. Many English – medium schools were started. Thus, the formal education was made available to all sections of the people in British India. Only afterwards, the monopoly enjoyed by a section of people, by a few castes, were put an end.
Rule of Justice Party in Madras Province
Pursuant to the Government of India Act 1919, elections were introduced in India. The Justice Party was in power between 1920 and 1928, in the Madras Province and the 1928 Communal G.O. was passed making ‘reservations’ to all groups of people, in the educational institutions and in the government employment. Only after that all sections of the people, of the then Madras Province, got the opportunity to get educated. That was not the situation in other parts of British India. Hence, they continued to remain uneducated till India became independent.
When the Constitution of India was framed, ‘Education’, as in all federal countries, was allotted to the States exclusively and was found in the State List. But, in 1976, during the emergency, that was transported to Concurrent List, where both Union and the State Legislatures get power to make law.
Attempt to convert Education as
a Union subject
Now, by misconstruing constitutional provisions, the Union government wants to make Entry 25 List III, as a Union subject. This desire was there with all the previous governments also. That was why some Educational policies were announced earlier and U.G.C. and other such enactments were made. At least when earlier Educational policies were announced, those policies were prepared by educationists. But the present policy was not prepared by educationists; but by experts in other fields like atomic energy. That is the major defect in this policy. An iron – smith cannot give advice on agriculture.
The next defect is that this committee was constituted as if the subject is an exclusive Union subject. Being a Concurrent subject the other group of stake holders, the States were not represented. The proper method is to make all the States as members of the committee. Probably due to misunderstanding of the contents of Article 254 (2) this could have happened. Article 254 does not extend to executive acts. An executive order of Union cannot override an executive order of a State, unless there is a law made by Parliament overriding the State Act. For these reasons alone the NEP cannot be acted upon, since the very formation of the committee is unconstitutional
Pattern of School-education in
pre independence days
During the pre – independence period, the medium of instructions was English in most parts of India. After independence that was changed to the mother tongue / regional language. There was a pattern E.S.L.C. [Elementary School Leaving Certificate]. It was Classes 1 to 8 and at the end of 8th year there was a public examination; a pass in that would enable the student to pursue further studies in the High Schools. Another system was 11 years pattern classes 1 to 11; at the end of 11th year there was a public S.S.L.C. [Secondary School Leaving Certificate] examination conducted by the State. Passing all subjects in one examination would enable the student to continue further studies in the Universities. If a student passed all the subjects ‘in parts’, (in more than one examination) he would be considered as a student who have ‘completed’ the S.S.L.C. course; but he cannot pursue the university education.
Another system of Matriculation course of study was 10 years course (classes 1 to 10). The medium of instructions was English. They can pursue university education. There was also Anglo-Indian school system similar to Matriculation but with lesser burden. There was yet another system called Vocational course. They studied some trades. They were not eligible for university studies. May be there were some more systems.
After constituting experts in the field of education, over a period of a few decades, the entire system of education was revamped. The system of 10+2 was introduced. There was a public examination at the end of 10th year and at the end of 12th year. The S.S.L.C was replaced by H.S.C. [Higher Secondary School Certificate].
After passing S.S.L.C. the student pursued University studies in colleges. Till 1956 they joined 2 year ‘Intermediate course’; this is continued in some States even to-day. After that they joined 2 year degree course. There was also an option for joining Honours Course of 3 years. From 1957 one-year course of Pre-University was introduced. Honours courses were discontinued. The degree course was made as 3-year course. Thus 11 +2+2 became 10+2+3 system to complete the degree course.
English was introduced only at 6th class
Till sometime around 1970, students were admitted to 1st standard in schools only after completion of 5 years of age. English was introduced only in the 6th standard. Till then students studied only in their mother tongue. Later, after recognition of Kindergarten method of education, on completion of 4 years, children were admitted to K.G. Class; in due course it became 2 year K.G. course. Now there is also Pre-KG classes. English, as a subject, was introduced from 3rd standard. On the advice of the numerous expert committees and after understanding the method of evaluation in the examinations, Tamil Nadu took a policy decision not to fail any student till the 8th standard. Thus, the policy of not to fail any student till 8th standard was the culmination of well-considered expertise opinion of eminent educationists and the Human right activists, child rights activists and may other experts. Such a decision was not taken just across the table; not on a single day’s deliberations. That was taken after field studies by people of eminence. The output of such a system is proved to be beneficial to the community as a whole. The idea of four-year degree courses were discussed in depth but ultimately dropped.
Nature of Universities
When India became independent, there were very few universities. In the entire State of Madras there were only Madras University and Annamalai University. Only Madras University had colleges affiliated to it. Annamalai University had no affiliated colleges. Out of experience the university areas were re-defined and many new universities emerged. The necessity to have specialised universities was realised that resulted in creation of separate Medical, Agriculture, Engineering, Veterinary, Law, Fisheries etc. universities. The first Medical university, first Veterinary university, first Law university were established in Tamil Nadu. Thus, Tamil Nadu has the experience of establishing and running all kinds of universities, including multi faculty as well as single faculty universities. In fact, all single faculty universities proved better to reach greater heights of achievements in their field, which would not have happened in a multi faculty university.
NEP 2020 wants to change everything
Only experts in the field of education can give opinion over the intended actual and factual changes. This article refers only to some of the aims of the policy changes in NEP. They are: 1.Education must build character and to prepare for gainful ‘employment’. 2. The aim of education in ancient India was not only preparation for life but also for ‘realisation and liberation of the self’. 3. To build upon India’s ‘tradition’ and value system. 4. To ‘recruit the very best and brightest to enter the teaching profession at all levels’. 5. ‘World-class institutions of ancient India such as Takshashila, Nalanda,….’set the highest standards and multidisciplinary teachings and research ‘… Those rich heritages must be preserved, researched and ‘put to new use through our education system’. That is, the aim of NEP is to create universities like Takshashila and Nalanda.
No one can ignore that men are born equal. But each one’s capability, intelligence, capacity to understand etc. is different. India has 120 crore population and every one must be given education. Taksahashila and Nalanda could have catered for a few hundred students. The concept of realisation of ‘self’ would be explained not by logical propositions, but by illogical hypothesis. Further why should one realise his ‘self’? What is the necessity to know from where he came and where he would go after death etc. That relates to religious philosophy; that is not part of general education. This report also records that previous policies focussed on ‘access and equity’. The present object is to finish the ‘unfinished agenda’.
Vision of this policy
The earlier system covered the age in between 6-18; the age group of 3-6 were not covered. Under this policy age group of 3-18 is covered. Formal education is to be started from age 3. In the most advance countries, a child cannot be sent school till it completes the age of 5 or in some countries it is 6 year of age. In the modern days where both the parents go to work the child is sent to play school at the age of 3. There the child only plays with others. No alphabet will be taught. But under this system it is not to be so. By and large this almost a replica of educational system of USA. Even there, no examination or detention till the elementary level; that is 8th standard.
Curtailing drop outs
One of the primary goals, it is stated, is to curtail drop outs and to ensure 100 per cent enrolment. That is to be achieved by affording “opportunity to all children of the country to obtain quality holistic education-including vocational education- from pre-school to Grade12”.
This report contains many sophisticated, high flown vocabulary which do not have a definite meaning. The word ‘holistic’ is repeatedly used. But that word has no definite meaning it is a relative term; and hence meaning will be different according to the context and circumstances. As stated above ‘education’ denotes only ‘general education’. It is also not mentioned as vocational education but ‘vocational training’. What vocational training could be given to a pre-school child? This is a direct affront to Article 21A of the Constitution.
Imposing 3 languages from the age of 3
Exploiting the skill of a child to pick up languages in early ages, all children are forced to learn 3 languages from the age of 3 (foundation course). It is expected from them that when they come to 3rd grade/standard/class they should be able read and write in all the three languages. The committee members also know pretty well, that it would be an impossible task for most children. That creates a doubt if the intention is something else, to see most children exit at that stage itself. There is an option to change one of the languages at the stage of grade 6 or 7. The members of the committee, it appears, live in a world, like Siddhartha, who did not come out of his palace till he was married and begot a child. They seem to be in oblivion to the difficulties faced by most children, even in metropolitan cities. This is most impracticable. This will help only to make more than 50 per cent of that age group to exit at the stage of grade 3. If that is the object of the policy makers then it would fulfil their object.
Achievement by States
Most of the States, especially the southern States, have made improvements in educational standards, by making periodical changes in the system of education. They have perfected the system keeping in view of the needs and problems, faced by the children of all parts of the States. The NEP 2020, attempts unsettle all the advancements made by those States. The Administrative committee appointed by the Tamil Nadu Government in its final Report, in 2008, records as follows:
“Among the educationists, there is a view that students need not pass in all subjects. Even if he gets lesser marks in one or two subjects, he should not be declared ‘Failed’. On the other hand, he must be encouraged in the subjects where he gets good marks and he can be allowed to go further up in the field.”
The above advice tends to keep the child in the main stream of learning for the future. But the primary object of the NEP seems to be to ‘exit’ as many students as possible, from the main stream of learning / education at all possible stages. First exit at the grade 3 level; second exit at grade 5 level; 3rd exit at grade 8 level; 4th exit at grade 12th level. Even thereafter, to pursue university education the youth must pass the entrance test conducted by National Testing Agency (NTA). Thus getting educated is made more and more difficult at every stage.
Universities cannot be regulated by the Central Government
As per the Constitution of India, universities can be established and administered only by the States. Central government has no such powers. Most of the universities have colleges affiliated to it. The system advocated by the NEP is to discontinue that affiliating college system itself. It wants every university to be a multi-faculty unit. The wisdom of the States, in creating single- faculty universities is negated. NEP failed to take note of the fact that States know better about the aspirations and needs of its people.
The committee has not used the terms found used in the Constitution. Instead of the terms ‘socially and educationally backward classes of citizens’, ‘Scheduled Castes and Scheduled Tribes’, and ‘minorities’, it deliberately uses the term ‘socio- economically disadvantaged groups’. It is not known if the committee was vested with such powers to ignore the terms used in the Constitution.
Implementation of NEP 2020 would definitely result in perpetuating the injustice and inequalities meted out to the children of the oppressed and marginalised communities for centuries to come. The society will go back to ‘pre- Macaulay period’ of dark ages.
What are the draw backs in the existing system?
The report does not say what defect is in the system followed by States today. Therefore, the necessity for the change of policy itself is not known. Education, now being a Concurrent subject, any such changes can be made only in consultations with all the States. The Central government cannot appoint such a committee.
The above narration would make the readers understand the danger in case the NEP-2020 gets implemented. The very constitution of the committee is unconstitutional, as there are no representatives from any State. The attempt to convert the subject of ‘education’ as unitary subject is also unconstitutional. The recommendation to exit the students at every stage is a retrograde step. To exit a child-student at the age of 8,11 and 14 is directly opposed to Article 21A. The compulsory education mentioned in the Constitution does not include giving vocational training. Vocational training is not education. Desire to regulate Universities is per-se unconstitutional. It also aims at alteration one of the basic structures of the constitution, the federal nature of the Constitution. The principle of universal education can never be achieved by this process. That will result in perpetuation of inequalities in the Indian society.