Entry 17 A, List III—“Forests”

Entry 17B, List III—“Protection of wild animals and birds”.

In 1952, the Union Government formulated the National Forest Policy. The Policy set a target of bringing 1/3rd (i.e. about 100 million hectares) of the total area of India under forest cover. About 75 million hectares were found recorded as under forest cover. The States, however, did not seriously implement this Policy. The depletion of forests continued. Apart from the pressures of human and cattle population and the increasing demand for fire-wood, timber and fodder, one of the main causes which led to deforestation was the diversion of forest land to non-forestry purposes. We are informed by the Government of India that contrary to the National Forest Policy, during the period of 30 years between

1951—1980, i.e., before the Forest (Conservation) Act, 1980 came into force, approximately 4.5 million Hectares of the forest land were officially diverted for non-forest purposes. The average annual rate of such diversion works out to 1.5 lakh hectares. Extensive deforestation and degradation of vegetation caused an

alarming destablisation of the hydrological cycle resulting in rapid run-offs in the form of flood waters. It also led to progressive shrinkage of the habitat of wild animals and birds and erosion of genetic diversity in the recognised ecological sub-divisions of the country. Eighty-one species of mammalian fauna and some species of birds were on the verge of extinction. The welfare of tribals, who are ecologically and economically in-separable from the forest was also put in jeopardy. The adverse effects and implications of deforestation, extended far beyond the territorial boundaries of the States. The problems and mischief resulting from deforestation had assumed national dimension. There was thus ample justification for transferring “Forests” to the Concurrent List to enable Parliament to pass the Forest (Conservation) Act, 1980. The primary object of this Act is to check indiscriminate diversion of forest land for non-forestry purposes. The Union-State problems or difficulties in the administration of this Act, have been dealt with in the Chapter on “Forests”.

2.17.08 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”.

'Education' is an important legislative head. To appreciate its allocation in the scheme of distribution of powers between the Union and the States, it will be useful to have a glimpse of the history of Government policy on education over a period of 130 years preceding the Constitution. This history is interspersed by periods of extreme decentralisation and extreme centralisation. Prior to the Charter Act of 1833, each of the three Presidencies of British India formulated its own education policy. From 1833 to 1870 was a period of extreme centralisation. Thereafter, gradual decentralisation continued up to 1918. In 1897, the Indian Education Service was established. Members of this service manned all crucial posts in Provincial Education Departments. Through this service, the Centre exercised limited control over the Provincial education policy. With the introduction of dyarchy by the Government of India Act, 1919, 'education' was made a 'transferred' subject and Central control over education became minimal. This position continued till the adoption of the Constitution in 1950.

2.17.09 The Constitution, as originally adopted, tried to strike a balance between these two extremes. It allocated “Education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and entry 25 of List III” to the States as item 11 of List II. “Vocational and technical training of labour” and “Legal, medical and other professions” were included as items 25 and 26, respectively, in the Concurrent List. The authority for coordination and determination of standards in institutions for higher education or research and scientific and technical institutions was assigned exclusively to the Union (Entry 66 of List I). The Union was also enabled to assume exclusive power with respect to “institutions for scientific or technical education financed by the Government of India wholly or in part, and declared by Parliament by law to be institutions of national importance” (Entry 64 of List I). The Union is competent to set up and run its own agencies and institutions, inter alia, for professional, vocational or technical training or promotion of special studies of research (Entry 65, List I).

2.17.10 It is noteworthy that the subject 'education' though originally allotted by the Constitution to the exclusive State field, was subject to Entry 25 of List III and Entries 63 to 66 of List I. The distribution of power with respect to 'education', between the Union and the States in this interlinked manner was prone to conflicts and difficulties. So long as the same political party was in power at the Union and in the States, these difficulties did not come to the fore, and education, for all practical purposes, was being administered as a subject of “de facto concurrency”. The Union and the States were co-operating and collaborating in most educational programmes and were benefitting from the large Union grants made for educational development. However, after 1967, conflicts and controversies started manifesting themselves. For example, the Government of India advised that in the interest of national integration, no State should put restrictions on admission to medical and engineering colleges on the ground of domicile. Despite persistent persuasion by the Union, the States did not agree to the suggestion. It was felt that the powers conferred on the Union in the matter of education were not adequate enough to resolve such difficulties effectively. A debate was going on in educational and political circles for more than a decade preceding the Forty-Second Amendment as to whether the subject of education should not be transferred from the State List to the

Union List or the Concurrent List. The Sapru Committee40 suggested in its report (1964) that ‘education’ be

transferred from the State List to the Concurrent List, while retaining Entry 66 in the Union List as it was. It was only the Forty-Second Amendment (1976) that could give concrete shape to this recommendation.

2.17.11 It was against this background that the Forty-Second Amendment transferred and combined item 11 of List II with item 25 of List III. The suggestion of the State Governments is that “education” should be transferred back to the State List.

2.17.12 Though the Statement of Objects and Reasons appended to the Constitution (Forty-Second Amendment) Bill is silent on the point, it is not difficult to discern the reasons and objects for the transposition of Entry 25 effected by this Amendment. Education is a subject of prime importance to the country's rapid progress towards achieving desired socio-economic goals. This apart, there were other objectives to be achieved. One was to enable Parliament to secure a measure of uniformity in standards and syllabi of education which is essential inter alia, for promotion of national integration. An incidental purpose to be served by this Amendment, was to obviate problems arising out of Union legislation encroaching obviate problems arising out of Union legislation encroaching upon the States' sphere. The chances of such conflict have been rendered remote, as a result of this Amendment. No part of the subject of 'education' now belongs to the exclusive sphere of State legislative power. The Amendment was designed to give the Union adequate power to enable it to minimise the great disparities in the levels of educational development and standards of education as between States. It was also intended to reinforce the capacity of the Union to play its role more effectively, to stimulate and assist the States in their efforts for achieving the goal of universal primary education fixed by the Constitutional Directive.

2.17.13 In our view, it will not be advisable to revert to the pre-Amendment position by transferring this subject back to the State List. However, education continues to be a very sensitive issue. In formulating a national education policy, or in its review the Union should not take a rigid stand on its paramount authority, but ensure that such a policy is framed through a process of dialogue, discussion and persuasion on the basis of consensus between the Union and the States.

2.17.14 For effective and smooth working of Union-State Relations in matters relating to higher education, close consultation and co-operation between Governments at both the levels is a must. This is so because 'co-ordination' in its intrinsic sense necessarily implies “harmonising or bringing into proper relation in which all the things co-ordinated participate in a common pattern of action”. (Gujarat University

case, AIR 1963 S.C. 703, para 25). Further, though the powers of the Union and the State Legislatures with

respect to universities and institutions for higher education and research are referable to separate Lists of the Seventh Schedule, yet there is a degree of inevitable overlap between Entry 66 of List I and Entry 25, List III, The existence of such overlap was noticed in Gujarat University case, though the general head of education was then in the State List.

2.17.15 Even though ‘education’ was transposed to and included in Entry 25 of the Concurrent List by the Forty-second Amendment with effect from 3-1-1977, there has been no follow-up legislation by the Union under this head. For all practical purposes, therefore, the situation continues to be what it was before the Forty-Second Amendment. The Regulation of (University) Standards Bill, 1951 contained two provisions: One relating to the establishment of universities and the other conferring power on the Union to derecognise any degree granted by a university. These provisions were subsequently deleted possibly because, at that time, general head of 'education' was in the exclusive State List. The deletion of these provisions, in consequence, debilitated the capacity of the Union and the U.G.C. for co-ordination and determination of standards in institutions for higher education.

2.17.16 Recently, in Osmania University Teachers Association Vs. State of Andhra Pradesh (Civil Appeal 1205-06 of 1987 decided on 13-8-1987), the Supreme Court has struck down the Andhra Pradesh Commissionerate of Higher Education Act, 1986, as ultra vires the State Legislature, on the ground that this Act, in substance, attempted to co-ordinate and determine standards of higher education in the universities located in that State, which subject is by virtue of Entry 66, List I and the University Grants Commission Act, 1956 within the exclusive competence of the Union and its agency (U.G.C.). This Judgement of the Supreme Court has brought about a situation of stalemate or vacuum in matters relating to higher education in the universities. The Court itself pertinently observed that while the impugned Andhra Pradesh Act had disappeared as a result of its judgement, the need for such a legislation for co-ordinating

and streamlining the standards of higher education in the national interest has not “vanished into the thin air”. It drew attention to the disparities, defects and deficiencies in the standards of higher education

obtaining in the universities

situated in Andhra Pradesh and also in the other States. It underscored the imperative need for the U.G.C. to play a greater and more effective role in ensuring high standards of academic excellence in the various universities in India. These observations of the high authority have incidentally highlighted that the U.G.C. has been unable to carry out effectively the duty of co-ordinating and determining standards in the universities and other institutions for higher education. Without an exhaustive survey of the working of the U.G.C. and the performance of the various universities in maintaining standards of academic excellence, it is not possible for us to pin-point precisely, whether the failure of the U.G.C. to discharge its duties effectively, is due to any deficiency in its statutory powers, composition or/and modus operandi. Nevertheless, it is necessary to emphasise that, among others, there are two basic pre-requisites of smooth and successful working of the U.G.C. and other like professional bodies (such as I.C.A.R.), charged with the duty of co-ordinating and determining standards in institutions for higher education or research. Firstly, their composition, functioning and mode of operation should be so professional and objective that their opinion, advice or directive commands implicit confidence of the States and the universities/institutions concerned. Secondly, this objective cannot be achieved without close concert, collaboration and co- operation between the Union and the States.

2.17.17 Some such relationship is envisaged in a presenta-tion of National Policy on Education, 1986 formulated by the Government of India. Its para 2.19 declares: “The amendment of the Constitution to include Education in the Concurrent List was a far-reaching step whose implications... sub-stantive, financial and administrative... require a new sharing of responsibility between the Union Government and the States in respect of this vital areas of national life. While the States would administer the subject in the normal course, the Union Government would accept responsibility to ensure the national and integrative character of education, to maintain comparable quality and standards, including those of the teaching profession at all levels... and in general to promote excellence at all levels of the educational pyramid throughout the country. The concept of concurrency signifies a partnership...”. This is as it ought to be. Education is so close to the needs and concerns of the people that active involvement of the States is vital, indeed indispensable. That being so, the best and the most feasible way of working the Union-States relations in the sphere of education, would be that norms and standards of performance are determined by the Union and its agencies like the U.G.C. set up for this purpose under Central statutes, but the actual implementation is left to the States. By the same token, a system of monitoring would have to be established by the Union.