 CONSTITUTIONAL AND LEGAL POSITION

We have indicated in the preceding Chapter some of the consi- derations which have to be borne in mind in making recommendations regarding the future. We shall now come directly to the question whether higher education, including universities, should be (a) a Union subject, (b) a Concurrent subject or (c) a State subject with the safeguards laid down in Entry 66 of List I of the Seventh Schedule. We shall first consider the question whether it should be a Union subject. In doing so, we have to remember that ours is federal or to be more accurate a quasi-federal Constitution. Education is a subject that concerns the common man. No central agency can be effective in exercising administrative authority or supervision over the vast field covered by education in a large country like India. In any case, we cannot forget that on the 26th January, 1950 when the Constitution came into existence, education including university education was allotted to the States with the exception of the Central Universities of Banaras, Delhi and Aligarh, which were to continue their relationship with the Central Government and be subject further to Entry 66 of List I which gives to the Central Government exclusive power to coordinate and maintain standards.

2. It was urged before us that for the purposes of national integration it was essential to have a unified control over all aspects of education. We are not convinced that the proposition is sound. Any attempt to centralize education may lead to serious complications between the Union and the States and it will be unfortunate if education is dragged into the arena of regional controversies. The administration of universities will not improve necessarily by any provisions which would substitute for direct relationship of the States with that of the Centre. As we see it, the University Grants Commission exercises vast influence over university education. It has helped to improve university standards. The power of giving financial aid to universities and colleges in a country where the springs of private charity are drying up gives to the Commission an authority which, if properly utilized, can help it to maintain and improve standards and coordinate educational activities. We are, therefore, clearly of the opinion that the Constitutional position in regard to education should not be so radically disturbed as to make it a Union subject.

3. The second alternative is to convert education particularly university education into a Concurrent subject. We may at once say that we see some advantages in this course. Our Constitution en- visages three Lists. So far as the subjects enumerated in List I of the Seventh Schedule are concerned, Parliament has, in respect of them, exclusive power of legislation. State Legislatures have also power to make laws enumerated in List III in the Seventh Schedule and this

is known as the Concurrent List. Subject to clauses (1) and (2) of Article 246 of the Constitution a legislature of any State has exclusive power to make laws enumerated in List II of the Seventh Schedule for the territories comprising the States. The Constitution further lays down that in the case of a conflict between a law made by Parliament and a law made by a State Legislature, the former shall prevail whether the law made by Parliament is prior or later being immaterial. The administration of the law will, however, remain vested in the State Government. It was suggested to us by some of the eminent men whom we interviewed that this power of concurrent legislation is likely to lead to a dualism in administration which will not make for the smooth functioning of the Constitution.

4. But while recommending that university education may be made a Concurrent subject, we are bound, however, to take note of the opinion against that step strongly expressed by such eminent educationists as Dr. C. P. Ramaswami Aiyar, Dr. H. N. Kunzru and Dr. Tara Chand. In the words of Dr. Aiyar, Central legislation in regard to universities may take a "number of political shapes or forms". States' interest in university education may decline and Centre's financial burden may increase. We see the force of their objections. It was pointed out to us that the Parliament possesses exclusive powers of legislation regarding the coordination and determination of standards under Entry 66 of List I. We have examined in Chapter IX, the extent and implications of the Supreme Court Judgment in the Gujarat University case in regard to this Entry. If Entry 66 of List I is deleted or if the States are given equal authority in determining and coordinating standards, the authority which the Central Government exercises at the moment under the existing constitutional provisions will be weakened. Most of the eminent men who appeared before us were not in favour of conceding to the State Governments a share in deciding questions of coordination and determination of standards. We agree with them and with this reservation, we can see little harm but much good in making education a Concurrent subject. Making it a Concurrent subject, and retaining, at the same time, Entry 66 of List I as it is, will involve no revolutionary change in the Constitution. On the other hand it will help the State Governments and the Union Government to legislate on matters on which it is desirable in the national interests to have uniformity and a common policy. We are also bound to point out that from the replies received from the State Governments it would appear that they are not prepared for a change in the present position. Another view was also strongly pressed before us by Shri Mehr Chand Mahajan, Ex-Chief Justice of India that by making education a Concurrent subject we shall be introducing a complication which shall make the working of the educational machinery in this country a complicated affair. He was, of course, for making it a Union subject in the interest of the unity of the country. We do not agree with this view for the reasons already stated. We may point out that other eminent educationists as Dr. P. V. Kane, Dr. S. Bhagwantam, Dr. V. K. R. V. Rao and Prof. G. C. Chatterji strongly favour the view that university

education should be made a Concurrent subject. Prof. A. R. Wadia's view was that the States will never agree to change the Constitution.

5. Dr. D. S. Kothari's, (Chairman, University Grants Commission) view was that it is a good thing to make education a Concurrent subject but even in the present framework a lot could be done. According to him, "University education is connected with secondary education and that to primary education. Primary education is certainly a local matter and the States would not agree to making school education a Central subject. What we need is not so much constitutional change. The real problem is to provide adequate resources."

6. We shall point out in the chapter on the University Grants Commission that the Central Government is already exercising an appreciable degree of influence over higher education by the system of financial grants which are given to universities and higher institutions by it. This system has the merit of respecting the autonomy of the universities. The University Grants Commission is a body of eminent educationists and in making grants no considerations other than those of an academic or educational character are ever entertained. We have come to the conclusion that if from a legal point of view university education is made a Concurrent subject with Entry 66 remaining as it is, then there will be no cause of complaint so far as State Governments are concerned of any real infringement of their powers but the Union Government will acquire some additional powers of enacting legislation likely to help the univerisities and our higher institutions in coordinating and maintaining standards.

7. An apprehension expressed by some witnesses is that by making university education Concurrent, new areas of conflict between the Union Government and the States will be created. They are clear in their mind that the existing situation has the merit of creating no constitutional or legal difficulties. The handicaps in moving fast towards an expansion of higher education and improvement of its quality are really of a financial character. They cannot be overcome by making higher education a Concurrent subject; rather they will be increased by it as State Governments who are already somewhat grudging in their support of higher education will tend to reduce their expenditure on higher education and leave it to be financed more or less wholly by the Centre. It was pointed out by some of the witnesses who were opposed to its being made a Concurrent subject that there are 55 universities in the country and that the interest of the States in university education will decline if the subject is made concurrent. No doubt, the Radhakrishnan Commission* had suggested that higher education should be made a Concurrent subject but at the time that the Commission reported there were only eleven universities and it was not so difficult as it is now to maintain an effective contact with them by the Centre. We would like to emphasize that even while we see advantages in making higher

*Page 404-405, Report of the University Education Commission

education a Concurrent subject, the real solution of the problem of improving the quality of higher education and promotion of research- both fundamental and applied-lies in greater financial grants by the University Grants Commission.

8. Uniformity in the sense of sameness is not necessarily desirable but what should be aimed at is a minimum equivalence of standards. That, indeed, is how we would interpret the idea conveyed by the word 'uniformity' in Entry 66 of the Constitution. The power of financing universities which the University Grants Commission possesses, should ensure that minimum standards are observed and in that way help to achieve that equivalence of standards which the word 'uniformity' indicates. Here we would like to point out that the Sampurnanand Committee* on Emotional Integration was of the view that "it is necessary to evolve an effective national policy in education, the implementation of which will bring the States and the Union territories closer together". With this end in view they recommended that "all necessary constitutional changes should be made in order to implement the recommendations of an all-India character, which all States shall necessarily follow".

9. We feel that from a broad academic point of veiw there are distinct advantages in making university education a Concurrent subject but it will be deplorable if any such change leads to a weakening of the interest that State Governments should take in matters affecting higher education. We find that there is some apprehension in some States over the matter. But any such fear and apprehension of State Governments regarding the effect of concurrency on the autonomy possessed by the States should be overcome by evolving conventions for frequent consultation on important policy issues.

10. One of the members of the Committee, Shri P. K. Vasudevan Nair has stated that in spite of his agreement with the general approach adopted by the Committee, he could not agree to the positive recommendations that higher education should be an item in the Concurrent List. He is against reducing the powers of the State Governments. He feels that the equilibrium between the Union and the States should not in any way be disturbed. As the State Governments are expressing their opposition to any change in the existing Constitutional set-up it is wiser for the Central Government to try to assert itself more effectively in the field of higher education by the method of discussion and persuasion. Besides, Shri Nair is of the opinion that all the powers that accrue to the Central Government under Entry 66 have not been exhausted yet. He believes that the scope of University Grants Commission's activities can be usefully expanded still further, so that the requirements of the situation can be met to a considerable extent.

*Page 140 of the report of the Committee appointed by the Government of India to study the role of education in promoting emotional integration.