Report No. 160
3.5. Relevant constitutional provisions and their effect.-
In this connection, it may be recalled that 'Education' was previously in the State List and it is only by virtue of the 42nd Amendment that the subject of Education was brought into the Concurrent List. Prior to the said Amendment Act the power of Parliament, in the matter of education, was confined to Entries 63 to 66 in List I. Entry 63 deals with certain specified Universities like Banaras Hindu University, Aligarh Muslim University and Delhi University while Entry 64 deals with 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 65 deals with Union agencies and institutions for professional, vocational and scientific or technical training, promotion of special studies or research and scientific or technical assistance in the investigation or detection of crime. Entry 66 which is the only relevant entry in this behalf reads: "Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions". In other words, prior to the 42nd Amendment Act, the power of the Parliament was confined only to coordination and determination of standards in the institutions mentioned in Entry 66 while the 'Education', as a subject, was solely within the sphere of the States.
By virtue of the said Amendment Act, the Parliament has been empowered to make a law on the subject of education as well which necessarily means that any law made by a State Legislature, whether prior to or after the Parliamentary enactment, inconsistent with the Parliamentary enactment, is void to the extent of inconsistency. It is this principle which has been relied upon by the Supreme Court in Adhiyaman case and in yet another later decision in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational Charitable Trust v. State of Tamil Nadu, 1996 (2) SCALE 103 to hold that the provisions of the State enactments including University enactments, in so far as they are inconsistent with 1987 Act are void by virtue of Article 254 of the Constitution.
It appears that the State enactments including those pertaining to the Universities have not obtained the assent of the President within the meaning of clause (2) of Article 254. As a matter of- fact, however, several enactments made by State Legislatures require the permission of the State Government for establishing an educational institution which may include a technical institution as well. Similarly, State enactments pertaining to Universities (i.e., State enactments establishing Universities within their respective territories) empower the Universities to stipulate such conditions for grant of affiliation by the University as they think appropriate consistent with the enactment.