NEET: An assault on JK autonomy – I

The Ordinance does not address the fundamental issues raised by more than 15 states, private professional colleges and universities, to voice their opposition to NEET.
NEET: An assault on JK autonomy – I
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Government of India's decision to conduct National Eligibility cum Entrance Test (NEET) for admission to MBBS and BDS Courses throughout the country, has evoked sharp criticism from aspirants for the courses, professional colleges, universities, and even some State Governments. The controversy is unlikely to die down even though the Union Cabinet on May 20, 2016 cleared Ordinance proposed to be promulgated postponing NEET to next academic session. The Ordinance does not address the fundamental issues raised by more than 15 states, private professional colleges and universities, to voice their opposition to NEET. 

Tamilnadu Chief Minister Jayalalita in her three page letter to Prime Minister reminded him that NEET "would adversely affect the interests of students in the State, in particular those from weaker sections and from rural areas as it infringes upon the State's right to determine the admission policies to medical educational institutions" in the State. Raj Thackary of Maharashtra Navnirman Sena (MNS) has gone a step further and warned that the test would force thousands of students to end their lives "just like the farmers", if PM does not intervene. In contrast, response of the Jammu and Kashmir state has been lifeless, lukewarm, and lackadaisical, though the State, as would be seen a little later, has strong and compelling reason to fiercely and forcefully oppose application of NEET to Jammu and Kashmir.

Before we dilate on the reasons that should prompt and persuade the State Government and all concerned, to offer stiff resistance to application of NEET to the State, let us briefly survey the background in which decision to conduct NEET has been taken.

Historical Background

The idea to have an All India Entrance Examination for admission to MBBS and BDS courses has its roots in the judgement of Supreme Court delivered on 22 June 1984, in Dr. Pradeep Jain and others Vs. Union of India (1984) 3 SCR 942. The Court directed that at least 30 percent of the open seats of MBBS and BDS Courses be made available for admission of students on All India basis irrespective of the state or university from which they come and that such admission shall be granted purely on merit on the basis of either All India Entrance Examination or an entrance examination to be held by the State. The matter again surfaced before the Supreme Court in Dr. Dinesh Kumar and others Vs. Motilal Nehru Medical College, 1985 AIR 1059. The Court directed the Indian Medical Council to come forward with the positive scheme for holding an all-India-entrance examination for regulating admissions to the minimum 30 percent non reserved seats for the MBBS course. The Court on 01 May 1985 directed: 

"We must, therefore, make it clear that no State Government or University or Medical College shall grant admission to students to fill the minimum 30 percent non reserved seats for the MBBS course, on the basis of comparison of the marks obtained by them at different qualifying examinations. The admissions must be based on valuation of relative merits through an entrance examination which would be open to all qualified candidates throughout the country. Such entrance examination should in our opinion be held by the Government of India or the Indian Medical Council on an all India basis and admissions should be granted to the various medical colleges in the country on the basis of marks obtained at such entrance examination". 

In its order dated May 1, 1985, the Court further observed:

"There can be no constitutional impediment in the way of the Government of India or the Indian Medical Council for holding such entrance examination, because the topic of education is in the Concurrent List. We are of the view that such entrance examination must be held by the Government of India or the Indian Medical Council because then there will be only one examination in which the students seeking admission to the MBBS course will have to appear, irrespective of the place where or the University or Medical College in which, they are seeking admission is located…….We hope and trust that at the next hearing of this writ petition, the Indian Medical 

Council will produce a well thought out scheme for holding an all India entrance examination so that the necessary directions can be given by the Court in regard to the holding of such entrance examination well in time". 

The scheme was revised, resubmitted and approved by order dated July 21, 1986. While approving the Scheme Supreme Court reduced the number of seats for MBBS course proposed to be filled up through All India Entrance Test from 30 percent to 15 percent of open seats. The Court by the same order held that the CBSE would be the agency to conduct the All India Entrance Examination for admission to MBBS course. The idea underlying the scheme was stated to bring about a national cohesion and understanding.

J&K exempted from All India Entrance Test

The scheme approved on 21 July, 1986 exempted Jammu and Kashmir from operation of main judgement dated June 22, 1984. The State therefore was not made liable to set apart 15 percent open seats of MBBS and BDS Courses for admission on the basis of All India Entrance Examination. However, students from Jammu and Kashmir due to lack of reciprocity, were held not entitled to appear in All India Entrance Examination, to seek admission in medical colleges and institutions of other States. 

Union of India in 2009 filed an application before the Supreme Court praying that the order dated 21 July, 1986 in Dr. Dinesh Kumar and others, be modified and State of Jammu and Kashmir directed to contribute the Postgraduate and Undergraduate seats to All India quota. The application was strongly contested by the State Government. The main plank of its case before the Supreme Court, in opposition to the application filed by the Union of India, was that State of Jammu and Kashmir enjoyed special status under Article 370 Constitution of India, only permanent residents of State were eligible for admission to the professional colleges in the State and that the State cannot be called upon to contribute medical seats to All India quota in the manner other States were so asked. The matter came up before the Supreme Court on November 8, 2011. The stand taken by the State Government was accepted. However, the Supreme Court reiterated that students of State of Jammu and Kashmir, "are not entitled to participate in the process of admission earmarked for All India quota".

NEET Regulations 2010, 2012

Medical Council of India against above backdrop issued Notification No.MCI-31(1)/ 2010-Med./49068 dated 21 December 2010, amending the "Regulations on Graduate Medical Education, 1997". The sub-clause 5, clause 5 Chapter II under heading "Procedure for selection to MBBS Course" was substituted by sub clause providing for a single eligibility cum entrance examination, namely, NEET, for admission to MBBS course in each academic year. The overall superintendence, direction and control of NEET in terms of substituted clause, is to vest with MCI. In order to be eligible for admission to MBBS course for a particular academic year, it is made necessary for a candidate to obtain minimum of 50 percent marks in each paper of NEET held for the said academic year. In case of reserved category candidates, the minimum percentage is prescribed as 40 percent in each paper and in case of differently abled (locomotory disability of lower limbs) candidates 45 percent in each paper.

The sub clause was again substituted vide MCI Notification dated 15.02.2012, enabling the Central Government to lower down the minimum marks required for admission to MBBS course for candidates belonging to respective categories, in case sufficient number of candidates fail to secure minimum marks as prescribed in NEET held for any academic year. In terms of substituted sub clause the percentile is to be determined on the basis of highest marks secured in the All India Common Merit List – in NEET for admission to MBBS course. The Dental Council of India also issued a Notification on same lines providing for NEET with the features as detailed in MCI notifications.

The Government of India, therefore, by its nod to the MCI regulations of 2010 and 2012, widened scope for All India Entrance Examination, as initially contemplated in Supreme Court judgement of 26 June 1984. The examination, it may be recalled was intended to make admission against All-India quota comprising of 15 percent open MBBS and BDS seats contributed by the states. The states were allowed to make admission against 85 percent seats as per their own rules and regulations. The MCI regulations however brought within their sweep all the admissions to MBBS, BDS Courses throughout country and MCI took upon itself regulation of all such admission. 

NEET was initially proposed to be held from 2012 onwards. However, for one or other reason it was not held in 2012. Supreme Court in Christian Medical College Vellore and others Vs. Union of India and others on December 13, 2012 allowed MCI, DCI as well as the states, universities and other institutes to conduct their respect examination for MBBS, BDS and Postgraduate courses. However, they were directed not to declare the results of the same, until further orders of the Court. Government of India accordingly announced and held NEET on May 5, 2013 across India for students seeking admission to both Undergraduate and Postgraduate Courses. As States were held entitled to conduct their respective examinations, Jammu and Kashmir Board of Professional Entrance Examination held CET as per its own regulations. The order dated December 13, 2012 was modified by the Supreme Court and MCI, States, private universities, allowed to declare the result of 2013 entrance examinations, to enable the students to take advantage of the same for the year 2013. 

Grievance against NEET

The opposition to NEET from the student community, educational institutions, social activists and State Governments, is based on its adverse impact on the federal structure, the academic prospects of non-CBSE students, students from rural background and marginalized sections of urban population and fundamental rights of individuals and minority educational institutions. 

 NEET, being conducted by Central Board of School Education (CBSE) and as stated by Additional Solicitor General (ASG) before the Apex Court, to be based on the CBSE syllabus; the social activists apprehend that NEET will push medical education out of reach of non-CBSE students. It is stated that as only a fraction of students, that too with middle class and upper middle class urban background, pass eligibility examination through CBSE, with NEET implemented, the representation in medical education would be restricted to said class. Resultantly, it is argued, aspirants for medical education from disempowered and unattended sections of society are to have negligible representation in such courses __ a phenomenon bound to create in sense of deprivation and social disharmony.

The other ground pleaded in opposition to NEET, is its negative fallout on distribution of powers amongst States and the Union, and on the federal structure envisioned by the Constitution. The political activists insist that education falls within legislative and executive power of the States and the Union Government by regulating admission to MBBS and BDS courses in professional colleges and universities run by the State Governments, encroaches upon their jurisdiction – a course not permissible under the Constitution. Union Government, it is pointed out, under the Constitutional scheme may lay down standards for admission to medical colleges but cannot take upon itself duty to actually make admission to such courses. 

Lastly, it is contended that NEET is likely to affect fundamental rights of professional colleges run by religious, linguistic and other minorities, as also the right of individuals to practise any profession or to carry on any occupation, trade or business, guaranteed under Chapter III of the Constitution.

 

NEET Regulations quashed

The Notifications dated December 21, 2010 and May 31, 2012 were challenged by some private unaided professional colleges as also some States before the Apex Court in Christian Medical College Vellore and others Vs. Union of India and various High Courts. As the issues raised in the petitions were identical, all the petitions were transferred to the Hon'ble Supreme Court, heard together. In all 115 petitions were filed to question the notifications. 

The grounds urged to seek quashment of impugned notifications were that the executive power of the State, which is coextensive with the Legislative power, with regard to matters in the Concurrent List – Entry 25 in the present case, cannot be taken away except by plenary Legislation made under Entry 66 of List I read with Article 246 of the Constitution and not through subordinate legislation i.e. Regulation issued by a Statutory body (MCI); that the impugned regulations were therefore ultra vires the Constitution. The impugned regulations, it was contended, denuded the States of their legislative power to legislate on the matters covered under Entry 25 of Concurrent List and that NEET was contrary to the law laid down by Constituted bench in TMA Pai Foundation case. The regulation making powers contemplated under Section 33 of the Indian Medical Council Act, 1956, it was insisted, was referable to substantive functions to be discharged by MCI spelt out under Ss 16 to 18 of the Act and that such functions did not contemplate that MCI may actually conduct the examinations. 

The petitions were opposed by the Government of India and MCI on the ground that Entry 66 of Union (List I), empowers the Central Government to enact laws for "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions", and accordingly, MCI vide Section 19-A (1) of the Act is empowered to prescribe the minimum standards of medical education required for granting recognised medical qualifications by universities and medical institutions in India; that MCI under Section 33 of the Act, is empowered to make regulations generally to carry out the purpose of the Act; and that impugned notifications fell well within jurisdiction of Central Government and MCI. It was pleaded that as 1997 Regulations were accepted by petitioners and other Medical Colleges, the power to regulate admission process, determine the admission criteria and conduct the examinations could not be questioned by such colleges and institutions and were therefore beyond challenge. The Government of India and MCI maintained that coordination and determination of prescribing standards would include the process of admission and that such power available under Entry 66 of List (I) would be deemed to be excluded from other Lists. Relying on law laid down in Dr. Preeti Srivastava and another Vs State of M.P. and others (1999) 7 SCC 120, the respondents contended that the "power to determine process of selection" is implicit in the power to prescribe standard of education. Refuting that NEET offended federalism and powers of the State under Article 254 of the Constitution, it was contended that MCI derived its authority from Entry 66 of List (I) – a subject exclusively within the domain of the Union, and therefore, NEET did not violate the principle of federalism. The impugned regulations, according to the respondents, were binding on the States. Failure on the part of MCI to consult the States while issuing the impugned notifications, was said to be not fatal and therefore not to make the regulations unconstitutional. It was maintained that there was a definite rationale behind holding a single examination and the regulations were intended to achieve uniformity of standards, merit and transparency and lessen the hardship of aspiring students. The Act, it was contended, is relatable to Entry 66 of List (I) and therefore, prevails over any State enactment even if relatable to Entry 25 or 26 of Concurrent List (List-III). 

The Apex Court was not impressed by the case set up by Government of India and MCI in opposition to the challenge to impugned notifications. The Supreme Court by its judgement dated 18 July 2013 held that neither the Act nor MCI Regulations confer any power or authority on MCI to conduct examination or direct that all admissions into different medical colleges and institutions in the India would have to be on the basis of one common test (NEET), thereby effectively taking away the right of different medical colleges and institutions to make admission on the basis of their own rules and procedures. The Court held impugned notifications to be ultra vires the Constitution and to have effect of denuding the States, State run universities and all colleges and institutions of their right to admit students to MBBS, BDS and PG courses, according to their own procedures, beliefs and dispensations – an integral facet of right to administer contemplated under Constitution. The Court held that the powers conferred on MCI and DCI under Indian Medical Council Act, 1956 and Dentists Act, 1948, are restricted to laying down standards which are uniformly applicable to all medical colleges and institutions in India, to ensure the excellence of medical education in India. The Court observed:

"we also have no hesitation in holding that the Medical Council of India is not empowered under the 1956 Act to actually conduct the NEET". 

The impugned notifications were accordingly quashed. The proposed test (NEET) therefore was not conducted for next two years. 

Recall of July 18, 2013 judgement

Two petitions were filed by MCI and Government of India, to seek review of the judgment dated 18 July, 2013. The petitions were on January 21, 2016 were referred to 05 Judge Bench, the review petitions were allowed on April 11, 2016, the judgement dated July 18, 2013 recalled and the matters directed to be heard afresh.

The writ petitions and transfer cases with lead case C.M.C.Vallore and others Vs. Union of India and others, wherein MCI and DCI notifications providing for NEET, were challenged, were, therefore, to come up for fresh hearing and it is only after such hearing that the petitions were to be allowed or dismissed. The Court therefore while recalling judgement of July 18, 2013 did not pass any direction regarding NEET.

NGO steps in

Sankalp Charitable Trust, a Non-Government Organisation few days after order dated April 11, 2016, filed a petition before the Supreme Court, praying Court to "a) Issue a writ of Mandamus or any other writ, order or direction in the name of Mandamus directing the respondents to conduct the National Eligibility cum Entrance Test (NEET) for admission to MBBS Course throughout the country for academic session 2016-17". The matter came up before the Court on 27 April 2016. It was taken on board and posted next day i.e. April 28, 2016. The Counsel representing Union of India, MCI and CBSE, on the adjourned date, informed the Court that respondents proposed to hold NEET in pursuance of MCI and DCI Notifications dated December 21, 2010, (impugned in C.M.C. Vellore case) on May 1, 2016 and July 24, 2016 and to declare combined results of both the tests on 17 August 2016. Though it was brought to the notice of Supreme Court that in view of judgement dated 18 July 2013 in Christian Medical College, Vellore & ors vs. Union of India & Ors (2014) 2 SCC 305, it may not be proper to hold NEET, the Court did not agree, observing that the judgement was recalled on April 11, 2016 and the notifications dated December 21, 2010, therefore, were in operation as on date.

To be continued …

Justice Hasnain Masoodi is former Judge of Jammu and Kashmir High Court

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