It is important to note that the Five Judge Bench while recalling the judgement dated July 18, 2013 did not dismiss writ petitions. The Court observing that the "majority view has not taken into consideration some binding precedents and more particularly, we find that there was no discussion among the members of the Bench before pronouncement of the judgement", directed the matters to be heard afresh. The question whether MCI & DCI notifications of 21 December 2010, were violative of the Constitution and therefore, the Council not competent to conduct NEET was kept open. It is, therefore, debatable whether during pendency of C.M.C. Vellore and other cases, NEET was to await fresh hearing and final adjudication of C.M.C. Vellore and connected matters.
Some States and private medical colleges filed applications before the Supreme Court for modification of order dated April 28, 2016 in Sankalp Charitable Trust case. The applications did not find favour with the Court and were disposed of, observing that prima facie there was no infirmity in the NEET Regulation on the ground that it affects the rights of the States or the private institutions. However, taking note of the perceived hardship to the students who had appeared in NEET-I, they were permitted to appear in NEET-II, after exercising an option in this regard. The Court, however, clarified "that only NEET would enable students to get admission to MBBS or BDS studies".
Let us now direct our attention to the reasons that must make us oppose NEET. The grounds available to the Jammu and Kashmir Government and other stakeholders to resist extension of NEET to the State, as already pointed out, are more serious and its impact more grave as compared to its consequences for other States.
The aspirants from Jammu and Kashmir State for MBBS and BDS courses are to be exposed to a greater disadvantage as compared to their counterparts from other States. The State is socially and educationally backward. A large number of students do not have access to schools equipped with modern tools of education. This apart, more than 90 percent of the students pass Higher Secondary Examinations through State Board of School Education. It is only a few thousand students who pass eligibility examination through CBSE. NEET, as stated, is CBSE syllabus based and the bulk of aspirants from the State therefore do not stand a chance to get selected for MBBS and BDS courses.
However, the more serious reason to oppose NEET is that it adversely affects autonomy or special status of the Jammu and Kashmir State. The duty to oppose NEET, therefore, is not to be restricted only to the medical aspirants but all the stakeholders in protection and preservation of special status of the State. Against said backdrop, the Ordinance proposed to be issued to postpone NEET to next academic session or any changes to redress the grievance as regards syllabus and language must not make stakeholders in special status of the State, complacent or dampen the resolve to fight it tooth and nail. The challenge to Autonomy, the State confronts in NEET is more serious and different from, the problems NEET is to create for students, private professional institutions or other States.
The State of Jammu and Kashmir, we are aware, enjoys special status guaranteed under the Constitutional Scheme. Article 370, Constitution of India, is the only provision of the Constitution that applies to Jammu and Kashmir State on its own force. Article 1, of the Constitution, is made applicable to the State under Article 370. The other provisions of the Constitution do not apply to the State unless in terms of Article 370 (1)(d) these are applied to the State by a Presidential Order in consultation with or concurrence of the State Government as the case may be. The President is required to compulsorily consult the State Government in the event the Presidential order relates to the matters specified in Instrument of Accession. In all other matters, the Presidential order applying a Constitutional provision cannot be issued except with the concurrence of the State Government. Furthermore, the President while making a Constitutional provision applicable to the State may make such exceptions and modifications in the provision so applied, as may be specified in the Presidential order. The net result is that a provision of the Constitution applicable to the rest of the country may not be at all applicable to the State of Jammu and Kashmir or may not apply to the State in the same form, with the same contents or consequences as it applies to other States.
The President of India with the concurrence of the Government of the State of Jammu and Kashmir issued the Constitution (Application to Jammu and Kashmir) Order, 1954. The Order came into force with effect from May 14, 1954 and superseded the Constitution (Application to Jammu and Kashmir) Order, 1950. The Order made applicable various provisions of the Constitution of India to the State with the exceptions and modifications spelt out in the Order. We need to notice only such of the Constitutional provisions as have a bearing on the present controversy.
Article 248 of the Constitution, dealing with "Residuary Power of Legislation" gives Parliament exclusive power to make any law with respect to any matter not enumerated in Concurrent List or State List. However, Article 248 in its application to the State, restricts this power to: (a) prevention of activities involving terrorist acts, directed towards overawing the Government as by law established; (b) prevention of other activities directed towards disclaiming, questioning or disrupting the sovereignty and territory of Union of India; (c) taxes on foreign travel by sea or air. Article 249 confers power on the Parliament to legislate with respect to a matter in the State List in the national interest. In its application to the State, Article 249 does not refer to "any matter enumerated in the State List" and instead refers to a matter not enumerated in the Union List or Concurrent List. Same is true about Article 250 of the Constitution. Similarly, Seventh Schedule of the Constitution, that has reference to Article 246 of the Constitution and comprises of three Lists – Union List, Concurrent List and State List, is applied to the State with exceptions and modifications. In the first place State List is omitted, while applying the Seventh Schedule to the State. Secondly, Entry 97 of the Union List conferring exclusive power on the Parliament to make laws with respect to "any other matter not enumerated in List II or List III", in its application to the State, restricts such power to terrorist acts and acts disclaiming, questioning or disrupting the sovereignty and territory of Union of India.
The State Legislature, therefore, unlike other States, has power to legislate on all matters not enumerated in the Union List as applied to the State and shares power with the Parliament to legislate on the matters in the Concurrent List as applicable to the State. In other words, the residuary power to legislate lies with the State Legislature, and not the Parliament. The State Legislature has exclusive power to legislate even on entries appearing in Union and Concurrent Lists, not made applicable to the State.
The subject "education, including technical education, medical education and universities" against the above backdrop is within residuary powers of the State, as it is included in neither of the Lists – Union and Concurrent Lists, in their application to the State.
One more aspect of the application of Constitutional provisions to the State, deserves special attention. The Constitution (Application to Jammu and Kashmir) Order, 1954 and the Presidential Orders issued thereafter, amending the 1954 Order, have made applicable various provisions of Constitution of India to the State with exceptions and modifications stated therein. The question arises as to whether amendment made in a Constitutional provision, extended to the State, automatically applies to the State. Article 368 of the Constitution deals with such an eventuality. It provides that in the event a Constitutional provision earlier made applicable to the State, is amended by the Parliament, the procedure laid down in Article 370(1) is to be followed to make the amended provision applicable to the State. In other words, the amended provision cannot be made applicable to the State except with the consent or concurrence of the State Government, depending upon the matter covered by such provision.
The Parliament by the Constitution (42nd Amendment) Act, 1976 – an omnibus amendment to the Constitution, inter alia, amended State and Concurrent Lists (List II & III) of Seventh Schedule. Entry 11 of the State List was omitted with effect from 03.01.1977. Entry 11 dealt with education including Universities. The subject enumerated in Entry 11, i.e. education, and universities, was in wake of amendment, taken away from the domain of State Legislature. The Entry 25 of the Concurrent List (List 3) was also amended to the following effect:
"25. 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."
By 42nd Amendment, the subjects "Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I" were removed from competence of the State Legislature and brought within the competence of Parliament and State Legislature, enabling Parliament as well as State Legislature to make laws on the subject.
42nd Amendment has not been made applicable to the State. Resultantly, the Constitutional provisions, including Entry 25, Concurrent List (List III), earlier made applicable to the State by the Constitution (Application to Jammu and Kashmir) Order, 1954 and the Orders passed thereafter, and amended by 42nd Amendment, continue to apply in un-amended form to the State. Entry 25, Concurrent List, in its application to the State, therefore continues to read as:
"25. Vocational and technical training of labour."
The Executive and Legislative powers of the State in terms of Section 5 of the Constitution of Jammu and Kashmir, extend to all matters except those in respect of which Parliament has power to make laws for the State under the provisions of the Constitution of India. The subjects "education, including technical education, medical education and universities," do not figure in Union and Concurrent Lists (List I & List III) as they apply to the State. A conjoint reading of Articles 246, 248, 370(1)(b)(i), 370(1)(b)(ii) and Section 5, Constitution of Jammu and Kashmir, leads to irresistible conclusion that power of the Parliament to make laws in respect of the State of Jammu and Kashmir, is limited to matters set forth in List I and List III, subject to the limitations laid down in Article 370(1)(b). The subjects "education, including technical education, medical education and universities," therefore, fall within exclusive domain of the State Government.
An overview of judgements rendered by Supreme Court on NEET, would reveal that what has weighed with the Court, is inclusion of "education, including technical education, medical education and universities," in Entry 25, Concurrent List (List III). The view taken is that as the subject "education, including technical education, medical education and universities," after its inclusion in Entry 25 Concurrent List falls within competence of the Parliament and the two Entries i.e. Entry 25 Concurrent List and Entry 66 of Union List (List I) dealing with "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" overlap, the MCI acted within its powers while providing for NEET. Supreme Court in its order dated May 9, 2016, while disposing of the applications filed by some States and private institutions for modification of order dated April 28, 2016 in Sankalp Charitable Trust case observed;
"…..[The] admission involved two aspects. First, the adoption of setting up of minimum standards of education and coordination of such standards, which aspect was covered exclusively by Entry 66 of List I. the second aspect is with regard to implementation of the said standards which was covered by Entry 25 of List III. On the said aspect, the State could also legislate. The two entries overlap to some extent and to that extent Entry 66 of List I prevailed over the subject covered by Entry 25. Prima facie, we do not find any infirmity in the NEET regulation on the ground that it affects the rights of the States or the private institutions."
There is no disagreement that Entry 66 Union List by itself does not empower the Government of India or MCI to provide for and conduct NEET for admission to professional colleges. It is only when Entry 66 Union List (List I) is read with Entry 25 Concurrent List (List III) that MCI's competence to issue Notification dated 21.12.2010 and provide for NEET for admission to all the medical colleges throughout the country is sought to be located. The Constitution Bench of the Supreme Court on May 2, 2016, in Modern Dental College and Research Centre Vs. State of Madhya Pradesh and others, to which reference is also made in the order dated 09 May 2016 has held;
"To our mind, Entry 66 in List I is a specific Entry having a very specific and limited scope. It deals with co-ordination and determination of standards in institution of higher education or research as well as scientific and technical institutions. The words co-ordination and determination of standards' would mean laying down the said standards. Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions……….. When it comes to regulating 'education' as such, which includes even medical education as well as universities (which are imparting higher education), that is prescribed in Entry 25 of List III, thereby giving concurrent powers to both Union as well as the States".
"It is significant to note that earlier education, including universities, was the subject matter of Entry 11 in List II Thus power to this extent was given to the State Legislatures. However, this Entry was omitted by the Constitution (Forty-Second Amendment) Act, 1976 with effect from July 3, 1977 and at the same time Entry 25 in List II was amended. Education, including university education, was thus transferred to Concurrent List and in the process technical and Medical education was also added. Thus, if the argument of the appellants is accepted, it may render Entry 25 completely otiose. When two Entries relating to education, one in the Union List and the other in the Concurrent List, co-exist, they have to be read harmoniously. Reading in this manner, it would become manifest that when it comes to co-ordination and laying down of standards in the higher education or research and scientific and technical institutions, power rests with the Union/ Parliament to the exclusion of the State Legislatures. However, other facets of education, including technical and medical education, as well as governance of universities is concerned, even State Legislatures are given powers by virtue of Entry 25. The field covered by Entry 25 of List III is wide enough and as circumscribed to the limited extent of it being subject to Entries 63, 64, 65 and 66 of the List I".
"We do not find any ground for holding that Dr. Preeti Srivastava excludes the role of states altogether from admissions. Thus, observations in Bharti Vidyapeeth that entire gamut of admissions was covered by Entry 66 of List I cannot be upheld and is overruled to the extent. No doubt, Entry 25 of List III is subject to Entry 66 List I, it is not possible to exclude the entire gamut of admissions from Entry 25 of List III. However, exercise of any power under Entry 25 of List III has to be subject to a central law referable to Entry 25".
The NEET Regulation in above background have their edifice on Entry 25 Concurrent List (List III) as amended by Constitution (42nd amendment) Act, 1976. The amended Entry 25 Concurrent List (List III) is not applicable to the State, and therefore NEET even if held not to offend federal structure or trample upon the powers of States, would nonetheless offend special status enjoyed by the State and guaranteed under Article 370 Constitution of India for the simple reason that the very basis of NEET is missing in case of Jammu and Kashmir State.
The State legislature in exercise of its exclusive and absolute power to legislate on the subject of "education, including technical education, medical education and universities," has enacted Jammu and Kashmir Board of Professional Entrance Examination Act, 2002. The Act regulates admission to courses in the professional colleges in the State. In terms of Section 6 of the Act, an aspirant for admission to a professional course has to be a permanent resident of the State and is to satisfy the eligibility criteria as prescribed by the Government of Jammu and Kashmir.
MCI or DCI in the circumstances cannot make the aspirants from the State for MBBS and BDS courses to appear in NEET or ask the State Government to make admission to the professional colleges in the State on the basis of their performance in NEET. Such a course would be violative of the autonomy guaranteed to the State under the Constitutional scheme and in particular Article 370, Constitution of India and therefore not permissible under law. The role of MCI as regards State of Jammu and Kashmir is restricted to laying down standards for medical education in professional colleges of the State as provided in Indian Medical Council Act, 1956 and power to make regulations under Section 33 of the Act is accordingly confined to aforesaid substantive function of the Council. The MCI cannot claim any role or exercise any power beyond laying down minimum standards of education, let alone one regulating admission to MBBS and BDS Courses in professional institutions of the State.
The above discussion is bound to make us realise the importance of State Government as a stakeholder in protection and preservation of internal autonomy, or residual sovereignty – known in common parlance as special status, enjoyed by the State of Jammu and Kashmir. Our case against application of NEET to the State of Jammu and Kashmir is entirely based on non extension of Constitution (42nd Amendment) Act 1976 to the State of Jammu and Kashmir and therefore non application of amended Entry 25 Concurrent List to the State. Had the State Government in 1976 given concurrence to the application of amended Entry 25 Concurrent List and other Constitutional provisions amended by the 42nd amendment, applied to the State, as was the routine with previous Governments, the State would have been robbed of the argument that it may now forcefully advance in opposition to NEET.
Justice Hasnain Masoodi is former Judge of Jammu and Kashmir High Court