Central govt's ordinance pushes NEET into legal-constitutional tangle

Representational image. AFP
On Monday, JP Nadda, Union Minister of Health and Family Welfare, will be meeting President Pranab Mukherjee to brief him about the Centre’s ordinance that seeks to defer the National Eligibility-cum-Entrance Test (NEET) for admission to medical and dental colleges in the country. Delhi Chief Minister Arvind Kejriwal has already given a go ahead to NEET and requested President Mukherjee not to sign the ordinance.
The ordinance to defer the implementation of the test was cleared on 20 May. It followed the order of Supreme Court on 9 May directing the Centre to implement NEET and strong objection from some states.
In December 2010, Medical Council of India (MCI) amended its ‘Graduate Medical Education Regulation’ which provides for the procedure and qualification for the admission to medical colleges. As per the amendment, those seeking admission in MBBS and other courses will have to secure minimum eligibility marks in a common entrance test, to be called NEET. It was challenged by various private medical colleges and other organizations and was struck down in 2013 by Supreme Court. A review petition was filed by Union of India and MCI. In April 2016, the earlier judgement was set aside by a larger bench, and NEET was revived. The court held: “We further clarify that notwithstanding any order passed by any court earlier with regard to not holding NEET, this order shall operate. Therefore, no further order is required to be passed at this stage.”
NGO Sankalp, which filed the PIL seeking an order on conducting NEET, in a press release said, “This is a severe jolt to reforming medical education. Government rather than taking any positive and proactive steps is doing things to stall reforms.”
It added, “The move is anti-student, anti-reforms in the medical field and it will bring down the standard of medical education in India. The move will help those with vested interests and only promote corruption and black money in medical education in the form of capitation fees.”
Questioning the ordinance issued by the government, advocate Amit Kumar who appeared for Sankalp said, “The doctrine of separation of powers applies to the final judgment of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. The above lines are from judgement of constitution bench of Supreme Court. A bare reading makes it clear that the law can't be passed to overrule the judgment of Supreme Court.”
Citing another judgment, Kumar said the law enacted by the legislature may apparently be within its competence but yet in substance, if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such a situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction.
Kumar added, “The questions to be asked are:
(i) Does the legislative prescription or legislative direction interfere with the judicial functions?
(ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided?
(iii) What are the terms of law, the issues with which it deals and the nature of the judgment that has attained finality?”

While posing serious questions over the ordinance, he said “If the answer to questions (i) and (ii) is in the affirmative and the consideration of aspects noted in question (iii) sufficiently establishes that the impugned law interferes with judicial functions, the court may declare the law unconstitutional. Ordinance in this case would be targeting the judgment of Supreme court and hence bad in law.”
On April 28, JP Nadda had “welcomed” the order of Supreme Court on NEET and had affirmed “that the aim of the Health Ministry is to facilitate and enable MCI and CBSE to conduct the entrance exams in a manner and time that would not cause distress to lakhs of students appearing for the NEET.”
On 16 May, Nadda met state health ministers and in a press note issued by his ministry it was stated: “Most states are in favour of NEET in principle. However, some states have expressed that there are some logistic issues that are impeding its implementation, and therefore they have desired for some more time”.
In the same press note, Nadda stated that during his interaction with health ministers from many states where they shared their state-specific issues in the context of holding NEET this year, they also agreed that “NEET was a welcome move to bring in transparency and remove several observed malpractices from the field of medical education”. Three days after the meeting the ordinance deferring it was passed.
During the state health ministers’ meet with Nadda certain ‘problems’ were highlighted as reason for postponing the exam. In some states the examination process was either underway or was soon to commence. Also, there were issues of the syllabus of the CBSE being different from what the state boards followed. Moreover, the states also pointed out that NEET should be allowed in regional languages in addition to Hindi and English in order to have parity for the students who have taken the state board exams. While some of it is genuine concern, it is something which is seen by most students as something which comes with any transition or change.
President Mukherjee has already sought legal advice on the ordinance to keep state boards out of the ambit of NEET this year. If the ordinance is approved by him, then a transparent system of entrance for training professionals for one of the most responsible jobs, will have to wait for some more time.

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