Parallel Jurisdictions: A Constitutional Innovation to Break the State vs Centre Logjam

The constitutional location of “education” has been a barometer of centre-state relations in India. Few subjects reveal more about the tension between uniform national policy and regional autonomy. 

In its original 1950 text, the Constitution located education in the State List, leaving it to state legislatures to regulate schools, universities, admissions, curricula and examinations. In 1976, it was shoehorned into the Concurrent List, as part of the omnibus 42nd Amendment, and has stayed there since, despite significant pressure from within parliament and from state governments, particularly the southern states. 

The test

The first attempt to return to the status quo on education — deletion of Section 25 (education) from the Concurrent List and resurrection of section 11 of the State List – was as part of the draft amendments in 1978 to correct the excesses of the Emergency years. 

Despite strong support within both houses of parliament – in the Lok Sabha, the vote was 299 for return to the State List and 97 for retention – education remained in the Concurrent List.

There were many reasons for the Janata government’s inability to follow through on their election manifesto commitment to return education to the State List. The most important among them was the lack of unanimity on where education should be located.

Even during the Emergency, in that climate of fear, there were voices which spoke against the 42nd amendment and yet supported the move to shift education to the Concurrent List. Prominent among them was S. L. Saxena, a Gandhian, who had, as a member of the Constituent Assembly, advocated for education’s inclusion in the Concurrent List. 

On November 2, 1976, now a member of the Lok Sabha, Saxena voiced his opposition to the 42nd Amendment, its intent and purpose, only nuancing that opposition to support the issue of shifting education to the Concurrent List. “I oppose every one of them (clauses) except the clause about amendment to VII Schedule which brings education in the Concurrent List which I had demanded in the Constituent Assembly as well. Sir, I oppose the bill tooth and nail and  I am happy that I have done my duty fearlessly as taught by Gandhiji.” 

In the Rajya Sabha, the debate was on similar lines, with members agreeing with the pragmatism of the subject’s inclusion in the Concurrent List, and yet, voicing some unease at the implications for the wider understanding of India as a union of states.

V.B. Singh, a single-term Rajya Sabha MP from the Congress, was a key supporter of the Emergency and advocated for the government to extradite those who were speaking against it overseas. 

Singh not only supported the move to include education in the Concurrent List, but did so quoting M.C. Chagla, former education and foreign minister in Nehru’s cabinet, and since June 1975, a key voice speaking against the Emergency.   “Sir, I had … last Friday demanded the extradition of certain persons who were carrying on anti-India propaganda from American soil. I did not identify those persons. Here are two letters in my hand. One is by Ram Jethmalani and the other two names are illegible. But I am passing on these letters to Shri Om Mehta. The second is the domestic source. It is an appeal by the Citizens for Democracy. I would not have taken any notice of this appeal since it is an 'appeal on behalf of a Committee which does not have any address. But since the signatories are headed by Shri M. C. Chagla, one of our former Education and External Affairs Ministers, I have to make only one submission that when Shri Chagla was Education Minister, he was campaigning throughout the country. He met us in Lucknow and appealed to us to campaign that education be made a Concurrent Subject. At that time this campaign failed. Now, he should see the success of his old campaign materialising in the amending Bill”.

On December 2, 1977, about 80,000 teachers belonging to the Aided Higher Secondary Teachers Association of Uttar Pradesh went on strike. Among their 21 demands, one would become the focus of debate within parliament — the retention of education in the Concurrent List. 

In December 1978, the Rajya Sabha, debated the ongoing strike by a majority of teachers in UP and education minister Pratap Chandra Chunder was directly challenged by Kalpanath Rai to clarify his stand on where education should be located. “Does the Education Minister want education to be in the Concurrent List or not?” Rai asked. Chunder’s reply left no one in any doubt on where he stood. “The party’s view will be my view. While I am education minister, I have no view. But I will say this, the principle of equal wages for equal work is correct,” the minister said.  

The Gordian knot

For eight decades now, India’s education policy-making and delivery have been caught in a Gordian knot. In the period since Independence, the Union government had found pragmatic educational solutions to real world problems. It established the IITs, one in each of the four regions of the country beginning with Kharagpur in 1951; AIIMS, a national centre of medical education and clinical excellence in 1956, and the Kendriya Vidyalayas in 1962, to cater to the children of central government employees, with transferable jobs  – all of which became benchmarks for quality education and were accepted by the people. These efforts showed that national coordination worked and provided legitimacy for the Union government  to seek an expanded role in education delivery.

But the never-ending and increasingly disturbing battles over clumsy and insensitive handling of issues by the centre, on issues such as the unimplementable three-language formula and NEET, persisted. These have threatened the success stories of state-led socio-economic development. 

India appears to be facing an impossible choice: state control risks fragmentation and centralisation leads to over-reach. Education has remained in the Concurrent List largely because there appeared to be no way to undo the Gordian Knot.

In 2022, P.W. Wilson, then a first-term Rajya Sabha MP, introduced a private member’s bill, which sought to undo this knot. His philosophical premise is simple, ‘One Nation, One Policy’ is untenable in the field of education. The statement of objects is blunt: “Placing education in the Concurrent List has gravely circumscribed the ability of states to regulate admissions to institutions and universities established by the state. … In education, the outlook should be inclusive and broad, not exclusive and narrow."

Wilson's solution is simple and radical at once. Delete Section 25 (education) from the Concurrent List entirely, then insert mirror entries in both Union and State Lists. Through the Union list, the centre will have exclusive jurisdiction with regard to "admissions to technical, medical, dental, vocational and legal educational institutions and universities that are established, funded or administered or affiliated by the Union Government." And through the State List, states would have identical authority over their own institutions "in such a manner that one cannot interfere with the other." These last 11 words are the most important as they create parallel jurisdictions

This is a constitutional innovation and its elegance comes from its realism. Concurrent jurisdiction has not helped balance competing interests. Parliament being supreme means that the Union government always wins. Removing the hierarchy of jurisdictions and making them parallel levels the playing field by creating a third way. 

Shifting the Overton Window

Wilson’s Bill, tabled three years ago, has not been discussed in Parliament till date. Given the competing interests of ruling parties at centre and in his parent state, Tamil Nadu, the Bill may never become law. Yet, the Bill in itself is an achievement. For it expands the Overton Window of what’s constitutionally feasible and politically possible. 

For decades, the education debate has been trapped in a binary – state control or concurrent jurisdiction. The idea of parallel jurisdictions makes it possible to discuss state autonomy without accusations of wanting to "balkanize" education. His Bill demonstrates that you can have both central institutions with uniform standards along with state institutions with regional autonomy.  Now the "extreme" position isn't returning education to states; it's continuing a system where parliament can override state laws on institutions states built and have funded. The consequences reach far beyond state bhavans and classrooms.

This approach has the potential to shift the entire conversation around federalism. Delimitation, issues of uneven distribution of power and resources and the wider issue of reform – often dismissed as impossible or dangerous – could become constitutional engineering problems with workable solutions with parallel jurisdiction.

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