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Education : Constitutional Allocation of Power

The constitution has distributed various matters into three lists - the Union List, the State List, and the Concurrent List. Art 246 has given powers to the Union government to enact any legislation regarding the matters in the Union list. The states have been given power to legislate on matters in State List. For the matters in Concurrent List, both the Center and the State are empowered to make laws but the laws made by the center will prevail in case of a conflict.

In the above context, the constitution, after the 42nd amendment in 1976, gives the following powers to the center and the states with respect to education -

1. Power to Center -
Entries 63, 64, 65 of the Union list in schedule VII allow the Center to handle the affairs of -
Entry 63 - Benaras Hindu University, Aligarh Muslim University, Delhi University, and the University established in persuance or Art 371E in A. P., or any other institution declared by parliament by law to be of national importance.
Entry 64 - Institutions of scientific and technical education funded wholly or in part by the Govt. of India, which are declared by the partiament by law to be of national importance.
Entry 65 - Union agencies and institution for vocational and technical training, or promotion of special education.

Besides the above, the center has been given a wide power in Entry 66 to coordinate and determine the standards of the institutes for higher education or research, and of scientific and technical institutions.

2. Power to States -
Entry 32 of the State List allows the states to establish universities and entry 25 of concurrent list gives the states the power to make laws regarding technical and medical education but it is subject to the provisions of Entry 63, 64, 65, and 66 of Union list.

Gujarat University vs SriKrishna AIR 1963 SC 703

Before looking into this case, it must be noted that under the Constitution, as originally enacted, i.e. before 42nd amendment in 1976, education was primarily a State subject. The relevant entry (Entry 11) in the State List read "Education including universities subject to the provisions of entire 63,64,65 and 66 of List I and 25 of List III" Thus education was exclusively a responsibility of the States, the Central Government being concerned directly with certain areas like coordination,determination of standards in technical and higher education etc.

In this case, the SC evaluated the scope of the power given to the state by entry 11 and the effect of the power of the center given in entry 66.

Details of the case -

The second respondent joined the First Year Arts Class of the St. Xavier's College, affiliated to the Gujarat University, where instruction was imparted through the medium of English and after successfully completing that
course sought admission to the classes preparing for the Intermediate Arts Examination of the University through the medium of English.
However, he was denied admission because his medium of instruction was Marathi in SSC level and the University rules allowed only those candidates to have the medium of instruction as English whose medium of instruction was English in SSC.

The first respondent (father of the second respondent) moved the Vice-Chancellor but sanction was refused.The respondents then moved the High Court under Art. 226 of the Constitution for writs requiring the university and the Principal of the College to allow the candidate. HC issued the writs in their favor.

The State and the University then filed separate appeals to the Supreme Court. It was argued that the states had wide powers in respect of education and handling of its universities given by entry 11 and the University was well within its rights to enforce the medium of instruction.

However, it was held by majority judgement that neither under the Gujarat University Act, 1949, as originally enacted nor as amended by Act 4 of 1961, was power conferred onthe University to impose Gujarati or Hindi or both as exclusive medium or media of instruction or examination and since no power was conferred on the University the Senate could exercise no such power.

It further held that it was not correct to say that legislation prescribing the medium or media of instruction in higher education and other instructions must fall within Item 11 of List 11 of the Seventh Schedule to the Constitution. The use of the expression "subject to" in that Item clearly indicates that legislation in respect of matters excluded by that Item cannot be undertaken by the State Legislature. Item 11 of List II and Item 66 of List I must be harmoniously construed and where they overlap the power conferred by Item 66 on the Parliament must prevail over the power conferred on the State Legislatures by Item 11.

The test of the validity of a State Legislation on University education or education in Technical and Scientific Institutions not covered by Entry 64 of List I, would be whether such legislation impinges on the field reserved for the Union by Item 66 of List I and prejudicially affects coordination and determination of standards, and not the existence of some definite Union Legislation to that end. If there be one, that would prevail over the State legislation under Art. 254(1) of the Constitution.

Item 66 of List I cannot be narrowly construed and the power it confers extends to all ancillary or subsidiary matters which can be fairly and reasonably comprehended by it, such as disparities resulting from the adoption of a regional medium of instruction resulting in a falling of standards in higher education. The word 'co-ordination' does not merely mean evaluation but also harmonising relationship for concerted action. The power under this Item is absolute and not conditioned by the existence of a state of emergency or unequal standards calling for its exercise. Since medium of instruction is not an item in the legislative Lists, it necessarily falls within Item II of List II, as also within items 63 to 66 of List I and in so far as it is a necessary incident of the power under Item 66 it must be deemed to be excluded from Item11 of List II.

If a legislation imposing a regional language or Hindi as the exclusive medium of instruction is likely to result in lowering of standards, it must necessarily fall within Item 66 of List I and be excluded to that extent from Item II of List II. Thus, the appeals of Gujaraj University as well as the State of Gujarat were dismissed.

Why was education transferred from the State List to the Concurrent List?
As observed in the case of Gujarat University vs Srikrishna, there was confusion between the distribution of power between the Center and the States. Due the nature of the subject of Education, there was a lot of overlapping between the scope of Entry 11 of the State List and the scope of Entry 66 of the Union List.

In its broadest sense the concept of education covers a very wide field. Buildings, libraries, laboratory equipment, courses of study, standards of examinations, research, medium of instruction, qualifications of teachers and their conditions of service, all these and more are the matters which together constitute higher education. These are not distinct legislative heads and the power to legislate in respect of all or any of them resides in the State legislature in which the power to legislate on education is vested. But the Supreme Court says that the Union Parliament has also the power under item 66 to legislate on all the above aspects of education in so far as they have a direct bearing and impact on the powers of coordination and determination of standards in particular educational institutions. If the primary aim be to fix a standard which is to be attained by a student who passes out at the end of his training it can well be said that everything necessary for the attainment of that standard by him falls equally within determination of standards. In order to attain a particular standard at the end, each preliminary step will have to be of that standard. Thus, the quality of the examination he has to pass at the end, next the quality of any intermediate examination, the textbooks for the purpose, the nature of the practical training, if any, the appliances which he must have to use, the qualifications of the teachers who impart the education, may also require to be fixed according to certain standards in order that the ultimate standard may be attained. If coordination means the fixing of the same or similar standards within a university state-wise or country wise so as to have a more or less uniform level, all these items might equally be included as fit subjects for Central legislation.

Further, India was suffering a lot due to lack of good quality higher education. The lack of any standard among the universities was detrimental to the development of science and technology of the country. Thus, it was felt that the Center should standardize and overlook the functioning of higher education with out interference from the States.
Because of these reasons, the entry 11 was removed from the State list and put as entry 25 in the concurrent list. This ensured that the center is able to maintain the standard of higher education accross the states.

Areas of Central Legislation over Education

To ensure that the standard of education is maintained through out the country the Center has enacted the University Grants Commision Act, 1956.

Notes on UGC Act 1956

Definitions
Section 2 (f) - “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recoginsed by the Commission in accordance with the regulations made in this behalf under this Act.

Deemed University
Section 3 - The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2.

Establishment of the commission
Section 4.
(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Commission by the name of the University Grants Commission.
(2) The said Commission shall be a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued.

Composition of the commission
Section 5.
(1) The Commission shall consist of –
        (i) a Chairman,
        (ii) a Vice-Chairman, and
        (iii) ten other members,
    to be appointed by the Central Government.
(2) The Chairman shall be chosen from among persons who are not officers of the Central Government or of any State Government.
(3) Of the other members referred to in clause (iii) of sub-section (1) –
        (a) two shall be chosen from among the officers of the Central Government, to represent that government.
        (b) not less than four shall be chosen from among persons who are, at the time when they are so chosen, teachers of Universities;
        and
        (c) the remainder shall be chosen from among persons-
            (i) Who have knowledge of, or experience in, agriculture, commerce, forestry or industry;
            (ii) who are members of the engineering, legal, medical or any other learned profession; or
          (iii) who are Vice-Chancellors of Universities or who, not being teachers of Universities, are in the opinion of the Central Government, educationists of repute or have obtained high academic distinctions:

Provided that not less than one-half of the number chosen under this clause shall be from among persons who are not officers of the Central Government or of any State Government.

(4) The Vice-Chairman shall exercise such of the powers, and discharge such of the duties, of the Chairman as may be prescribed.
(5) Every appointment under this section shall take effect from the date on which it is notified by the Central Government in the Official Gazette.

Functions of the commission
The powers and the functions are inseparable because powers arise from the functions that have been assigned to the commission. It has been given powers to carry out its functions.
HBRA
12171819
Section 12 - Standard of Higher Education
The most important function of the commission is to take all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. To do this function efficiently, it can and has the power to -
FGIRAECRP
    (a) inquire into the financial needs of Universities.
    (b) allocate and disburse grants to Central, State, as well as Deemed Universities for the development of such Universities or for the maintenance, or for any other general or specified purpose.
    (ccc) establish institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and, disbursing grants.
    (d) recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation;
    (e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be;
    (f) advise any authority on the establishment of a new University or on proposals connected with the expansion of the activities of any University;
    (h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;
    (i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;
    (j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.

Section 17 Budget
The Commission shall prepare, in such form and at such time each year as may be prescribed, a budget in respect of the financial year next ensuing showing the estimated receipts and expenditure, and copies
thereof shall be forwarded to the Central Government.

Section 18 Annual report
The Commission shall prepare once every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year, and copies thereof
shall be forwarded to the Central Government and the Government shall cause the same to be laid before both Houses of Parliament.

Section 19 Account and audit
    (1) The Commission shall cause to be maintained such books of account and other books in relation to its account in such form and in such manner as may, in consultation with the Comptroller and Auditor-General of India, be prescribed.
    (2) The Commission shall, as soon as may be after closing its annual accounts, prepare a statement of accounts in such form, and forward the same to the Comptroller and Auditor-General by such date, as the Central Governments may, in consultation with the Comptroller and Auditor- General, determine.
    (3) The accounts of the Commission shall be audited by the Comptroller and Auditor-General at such times and in such manner as he thinks fit.
    (4) The annual accounts of the Commission together with the audit report thereon shall be forwarded to the Central Government and the Government shall cause the same to be laid before both Houses of Parliament and shall also forward a copy of the audit report to the Commission for taking suitable action on the matters arising out of the audit report.

Powers of the commission

Besides the powers mentioned above, it also has the following powers -
FGIC
12A, 12B, 13, 14
Section 12 A - Regulation of fees and prohibition of donations in certain cases
It has the power to regulate the fee structure and to ensure that that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study;

On the termination of the affiliation of any college under sub-section (5), the Commission shall take all such steps as it may consider appropriate for safe-guarding the interests of the students concerned.

Section 12 B - Prohibition regarding giving of any grant to a University not declared by the Commission fit to receive such grant

It has the power to refuse grant to a University which is established after the commencement of the University Grants Commission (Amendment) Act, 1972, unless the Commission has, until the commission is satisfied that such University is fit for receiving such grant.

Section 13 Inspection
The commission has the power to inspect any department or facility of any university to determine the financial needs of a University or its standards of teaching, examination and research,.

Section 14 Consequences of failure of Universities to comply with recommendations of the Commission Payment to the Commission
If any University grants affiliation in respect of any course of study to any college in contravention of the provisions of this act or fails within a reasonable time to comply with any recommendation made by the Commission, or contravenes the provision of any rule, the Commission may withhold from the University the grants proposed to be made out of the Fund of the Commission.