NEET Verdict: A Body Blow

The Supreme Court’s split verdict quashing the newly-introduced single entrance test for medical courses across the country, viz., the National Eligibility-cum-Entrance Test (NEET), is a blow to thousands of meritorious but poor students who will be unable to seek admission in private colleges owing to the unaffordable fee structure. The ruling, on the very last day in office of the Chief Justice Altamas Kabir, continues the disturbing trend of the Apex Court turning business-friendly under the reign of some recent Chief Justices of India.

It is appreciable that the Union Health Ministry plans to file a review petition against the verdict, partly because it is a split verdict and partly because it was improper that a crucial decision allowing private medical colleges to mint money through ‘donations’ or capitation fees was announced without consultations amongst bench members, allegedly on grounds of “paucity of time”. This is an invalid pretext to rush a decision through; future judicial reforms must discourage retiring judges from delivering landmark judgements on their last day in office.

More disturbing are reports that the majority judgement was leaked days in advance of its announcement in Open Court, including the fact that Justice Dave would be the dissenting judge. So persistent were the rumours that, two hours before the verdict, advocate Gopal Sankarnarayanan felt constrained to write, “For the better part of the last week, senior counsel and junior advocates alike have without compunction shared a story that the appeals by the private colleges will be allowed with a declaration that the MCI has no jurisdiction, and that Justice Dave will dissent from this view,” (Bar and Bench).

Hours later, the judgement proved the accuracy of the rumours and tainted the tenure of Altamas Kabir, which has witnessed many unseemly controversies, including elevation of his sister to the Kolkata High Court bench, and denial of a place in the Supreme Court to the judge who opposed this nepotism.

In deference to public unhappiness over the verdict, the new Chief Justice of India P Sathasivam should take suo moto cognizance of the leak and initiate corrective action regarding the judgement. Such a people-friendly move would go a long way to restore public confidence in judiciary.  In the Christian Medical College Vellore & ors vs. Union of India & ors, the Supreme Court clubbed together four notifications (of December 21, 2010 and May 31, 2012) issued by the Medical Council of India and Dental Council of India to regulate admissions at MBBS and PG level.

The notifications were challenged mainly on the grounds that the Medical Council of India and Dental Council of India have no power to regulate admissions into medical colleges and institutions run by the State Governments, private individuals (aided and unaided), educational institutions run by religious and linguistic minorities, in the guise of laying down minimum standards of medical education under Section 19A of the Indian Medical Council Act, 1956, and under Entry 66 of List I of the Seventh Schedule to the Constitution.

The crux of the matter boils down to Entry 25 of List III (Concurrent) which was introduced via the Constitution (Forty-second Amendment) Act, 1976, which did away with education as a State subject by omitting Entry 11 from the State List. This gave the Union Government the power to legislate on education, which it previously lacked.

Briefly, Chief Justice Altamas Kabir and Justice Vikramjit Sen ruled that the right to administer an educational institution includes the right to admit students, and this right cannot be taken away by Notifications issued by the MCI and DCI which had no authority, either under the 1956 Act or the 1948 Act, to do so. The majority verdict also struck down the right of the Medical Council of India to hold the entrance examination (NEET).

Dissenting judge, Justice Anil R Dave, noted that as the Chief Justice was soon to retire, he was forced to ‘be quick’ (brief) with his judgement, and that the bench had not been able to discuss the case owing to “paucity of time”. The crux of the issue was whether the conduct of NEET by the MCI violated the Fundamental Rights of Minority Institutions under Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution, and whether they should have unfettered right to select their students. Above all, is it in the interest of society and the students to have a common examination, such as the NEET?

Justice Dave ruled that the Indian Medical Council Act permits the MCI to prescribe minimum standards of medical education and regulate medical education in the country. Justice Dave said, “It is a matter of sound common sense that to have doctors well versed in the subject of medicine and having proficiency in their field, we should have suitable and deserving students who should be imparted good medical education and there should be strict supervision over the education system, so, as to see that the students who are not up to the mark or are not having the highest standards of education are not declared successful at the examinations”.

This applies equally to the field of dentistry.

Upholding merit, the judge said NEET would ensure that no irrelevant factors like caste and creed, community, race, lineage, gender, social or economic standing, place of residence – whether rural or urban, influence of wealth or power; would influence the selection process. Justice Dave held that the reservation policy of States and selection of students by religious or linguistic institutions must conform to the NEET qualifying marks. This would fulfill the purpose with which Articles 25, 26, 29, and 30 were incorporated in the Constitution.

Moreover, centralization of the selection process under NEET helped students to appear for the examination from any corner of the country; the result are known at the same time and the problem of equalising marks and merits of different students passing different examinations from different regions or States or universities or colleges would end. Such a process is equal, fair, just and transparent, and reduces the financial burden of appearing for different examinations in different places.

Justice Dave insisted that it was the job of the MCI and DCI to curb the entry of undeserving or weak students “who cannot be groomed in normal circumstances as good physicians or doctors or dentists”. He pointed out that in the matter of a common test for students aspiring to become veterinary surgeons (Veterinary Council of India vs. Indian Council of Agricultural Research, 2000, 1 SCC 750), the Apex Court had held that it was open to the concerned regulatory Council to conduct a common entrance test.

Justice Dave further ruled that the Constitutional guarantees under Article 19(1)(g) regarding the right to practice any profession or carry on any occupation, trade or business, are not unfettered. Article 19(6) permits the State to enact any law imposing reasonable restrictions in terms of professional or technical qualifications necessary to practice any profession. In this light, the petitioner institutions have no unfettered right to admit undeserving students and make substandard physicians and dentists. In fact, NEET would restrain “unscrupulous and money minded businessmen operating in the field of education” from corrupt practices.

It is obvious which judgement has merit in the eyes of students and families. The Centre and the new Chief Justice must work in concert to uphold a version of justice that is perceived as just by the country at large.