SC’s NEET logic contrary to constitution bench rulings
The majority judgment, authored by former CJI Altamas Kabir and agreed to by Justice Vikramjit Sen, held that NEET violated Articles 19(1)(g), 25, 26 and 30 of the Constitution, which guarantees a citizen freedom to practice any profession and gives freedom to religious and linguistic minority groups to manage their religious affairs as well as educational institutions.
The bench said neither the Medical Council Act, 1956 nor the regulations framed thereunder empowered the MCI to formulate and enforce a single-window admission process for medical colleges. The court also said NEET could not ensure a level playing field given the disparity in educational standards in different parts of the country.
Since the Unnikrishnan judgment [1993 (1) SCC 645], the Supreme Court has been peppered with petitions by private medical colleges whose counsel look for interim orders just before admission time every year either for grant of permission from MCI to admit students or to step around the rules.
The issues dealt by Justices Kabir and Sen were touched upon by larger benches which decided important questions of law.
In the Unnikrishnan case, a constitution bench had said education could never be considered trade or commerce under Article 19(1)(g). "We are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country," it had said.
A decade later, a 11-judge bench in T M A Pai [2002 (8) SCC 481] dealt with the subject of 'capitation fee' and whether imparting education could be a trade or business.
It had said, "We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition 'charitable', it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object."
It also had hinted about regulating admissions to private colleges. "Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions," it said.
In the Inamdar case [2005 (6) SCC 637], a seven-judge bench had said a common entrance test (CET) for admissions to medical colleges, including minority institutions, would be ideal and should be conducted by a credible agency, preferably the state machinery. It had also said that a test of this nature, akin to the quashed NEET, would not violate Article 19(1)(g) or the religious rights conferred in the fundamental rights chapter of the Constitution.
"CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen," it had said, articulating a vision for transparency sans profiteering in medical education.
It had said that despite repeated rulings of the apex court against capitation fee, private colleges were indulging in it with impunity and felt that CET could curb this evil.
"If capitation fee and profiteering is to be checked, the method of admission has to be regulated so that the admissions are based on merit and transparency and the students are not exploited. It is permissible to regulate admission and fee structure for achieving the purpose just stated," it had said.
If that is the position of law crystallized by the seven-judge bench, then how could Justices Kabir and Sen ask, "But where does it take us as far as those cases concerned which derive their right and status under Articles 19(1)(g), 25, 26, 29(1) and 30 of Constitution? Can rights guaranteed to individuals and also religious and linguistic minorities under the said provisions of the Constitution be interfered with by legislation and that too by way of delegated legislation?"
The majority judgment's view that MCI had no jurisdiction to devise and enforce NEET also stands on doubtful legal grounds as a five-judge constitution bench in Dr Preeti Srivastava case [1999 (7) SCC 120] had clearly held that regulations framed by the council were binding on states.
Can it be said that MCI, set up to ensure excellence in medical education, is barred from infusing transparency and merit into the process for intake of students?
Lastly, the majority judgment in the NEET case said, "In a single-window competition, the disparity in educational standards in different parts of the country cannot ensure a level playing field."
Well, if that is the logic, then the court must consider scrapping the Civil Services Examination which through a single-window test chooses officers for IAS, IPS, IFS and other central services.