A case for reviving NEET

Guest article by S Vaidhyasubramaniam

In the judicial Waterloo at the Supreme Court (SC), the Medical Council of India’s one-stop solution National Eligibility cum Entrance Test (NEET) was neatly laid to rest. Some mourn. Some celebrate. I mournfully celebrate; celebrate the reinforcement of private institutions’ right but mourn for the opportunity lost. The ageless rhetoric of rural-urban divide and the legal weaponry that drilled the constitutional armoury ensured the SC missed the opportunity to streamline the admission chaos. SC’s puritan legal discipline failed to check the medical college admission indiscipline.
Justice V R Krishna Iyer in State of Kerala vs T P Roshana (1979 AIR 765) defined the karuna of the law. He wrote, “The rule of law should not petrify life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality. That is the karuna of the law. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college. The need for controlling its repercussions calls for judicial response. After all, law is not a brooding omnipresence in the sky but an operational art in society.”
The SC’s order that NEET is ultra vires the provisions of Articles 19(1)(g), 25, 26(a), 29(1) and 30(1) of the Constitution also reinforces the SC’s 11-judge constitution bench assertion in the T M A Pai Foundation vs State of Karnataka (2002) that right to admit students is an integral facet of right to administer. However, the SC failed to administer the triple test it had laid down in the P A Inamdar vs State of Maharashtra (2005) to check whether the present system of admission by private institutions is fair, transparent and non-exploitative. The SC could and should have laid down a broad scheme for administering the triple test and render, in Justice Krishna Iyer’s words, responsible justice.
In this SC order, Justice Anil R Dave, though in minority, points out, “I fail to understand as to how autonomy of the said institutions would be adversely affected because of the NEET. The Government authorities or the professional bodies named hereinabove would not be creating any hindrance in the administrative affairs of the institutions. Implementation of the NEET would only give better students to such institutions and from and among such highly qualified and suitable students, the minority institutions will have a right to select the students of their choice.” He adds, “It would be open to them to give weightage to the religion, caste, etc. of the student. The institutions would get rid of the work of conducting their separate examinations and that would be a great relief to them.” If the majority judges felt that NEET interferes with right of linguistic and religious minority institutions, then by the same yardstick, the qualifying +2 examination conducted by various boards is interference!
The crux of the SC order is the constitutional validity of the MCI and DCI regulations. The present government’s unparalleled skill to bring new legislations and regulations contrary to law makes one think that the government is doing its best and the SC is playing spoilsport. But that is not the case. During 1986, in Dr Dinesh Kumar vs Motilal Nehru Medical College, the Government of India conceded before the SC that MCI is not competent to conduct the All India entrance exam (AIR 1986, page 1884). When MCI was put in a ventilator in 1986, why did the government put it on an escalator in 2012?
Justice Dave’s minority judgment provides a key takeaway. Private educational institutions have been vested with the right to administer (admit) by the SC in the T M A Pai Foundation case. With the advent of technology and socio-economic progress across the country, this right can be positively channelised to fix the existing loopholes and ensure that the benefits reach all the students. A larger bench of the SC appears to be the only alternative to set things right as it now involves issues of fundamental rights.
Picking from Justice Dave’s observation, a Centralised Testing Agency (CTA) can be one form of responsible justice. CTA shall conduct centralised exams like NEET, JEE, CAT and CLAT two to four times a year. This shall provide enough opportunities to rural students as lack of opportunities for them has often been cited as the main reason to thwart attempts to create a national testing facility.
The CTA shall maintain a foolproof online portal by which every student submits basic information and secures a unique ID. With the ID, a student can appear for a centralised test and apply to any institution in the country for admission to the programme concerned. All private institutions shall admit students based on the ranks secured in NEET/JEE/CLAT, etc. conducted by CTA and +2 marks. This way, their right to admit is not compromised. Post-admission data submission by individual institutions and strict compliance of norms shall ensure no deserving student is denied admission. This transparent admission system will pass the triple test prescribed by the SC in the Inamdar case and ensure that meritorious students’ aspirations are not doomed.
I recollect one of my students during a debate — In India, religion has been politicised, politics criminalised and crime nationalised. Likewise, education has been rightly privatised, some privates wrongly commercialised it and commerce almost legalised. However, private education is still providing public good. The need of the hour is a CTA akin to Election Commission. This solution will not only pass the triple test but also the constitutional validity without affecting the rights of minority/non-minority, aided or unaided institutions. The loss of NEET in the judicial Waterloo can be resurrected in the next. Let the resurrection begin. Is anybody listening?
The writer is Dean, Planning & Development, SASTRA University.

E-mail: vaidhya@sastra.edu

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