Everything you need to know about SC recalling NEET order

On April 11, a Constitution bench of the Supreme Court recalled a controversial 2013 judgment passed by it striking down a common entrance examination for all medical colleges in India. The case, Medical Council of India vs Christian Medical College, will now be heard afresh in the Supreme Court. This case had sparked off controversy after reports emerged that the judgment had been leaked before it was pronounced. Furthermore, Justice Anil R Dave, who also authored the recall order, had in his dissenting opinion in the 2013 judgment pointed out that there was no deliberation among judges on the bench before the ruling. Advocate Karan Seth, appearing on behalf of Union of India, explains the legalities and sheds light on irregularities and questionable practices followed by Indian medical colleges.

1. What is NEET?

The National Eligibility-cum-Entrance Test (NEET) was notified by the Medical Council of India (MCI) for admission to MBBS and postgraduate medical courses. Aspirants can, through NEET, appear for a single examination, and apply for admission to any college of their choosing across the country except in the states of Andhra Pradesh and Jammu and Kashmir. NEET also specified that admission is to be conducted on basis of the examination scores alone and no extraneous factors would come into play.

The NEET has been held only once in 2013, pursuant to which it was struck down by the Supreme Court.

The purpose/merits of NEET are as follows:

a) To reduce the mental and financial burden on medical aspirants who have to appear in a number of entrance examinations across the country.

b) To prevent any form of malpractice such as donations, profiteering and capitation fees.

c) To place the emphasis on merit as the only criteria for admission.

2. On what grounds was NEET struck down in 2013?

Close to 178 petitions challenged NEET on the following grounds:

a) The triple test laid down in the PA Inamdar case that the admission procedure must be fair, transparent and non exploitative was being followed by institutions and there was no violation.

b) MCI has no power to conduct examinations.

c) NEET is violative of the rights of private medical colleges under Article 19(1)(g), that is, freedom to practise any profession, or to carry on any occupation, trade or business

d) NEET violates the rights of religious and linguistic minorities to establish and administer educational institutions as guaranteed under Article 30 of the Constitution.

e) Regulations, flowing from a power given under a statute, cannot have an overriding effect over the fundamental right guaranteed under Articles 25, 26, 29(1) and 30 which protect religious practises and the rights of minorities to establish and administer educational institutions.

f) Furnishing of regulations to the state government for consideration under Section 19A(2) of the Indian Medical Council Act (IMC ACT) was mandatory and had not been done. Section 19A(2) essentially states that all regulations that the MCI wants to notify must be first sent to the State Government to provide their opinion.

3. Can you give us a brief timeline of the case?

Before the NEET regulations came about, the necessity of a common entrance test was considered and approved by the Supreme Court in a catena of judgments.

Partly on the basis of these judgments, the MCI introduced NEET regulations in 2010.

Further, the MCI was ordered by the Supreme Court to take such steps as are necessary to implement NEET in another case, known popularly as the Simran Jain case.

These regulations were challenged by several organisations, institutions and the state governments of Tamil Nadu and Andhra Pradesh in various courts across the country. The cases were eventually transferred to the Supreme Court. Close to 178 writ petitions were filed and heard in the matter.

On July 18, 2013, the Supreme Court, in a majority judgment, set aside NEET and upheld the above mentioned grounds.

On October 23, 2013, a review petition challenging the judgment was filed by the MCI and the Supreme Court issued notice.

A belated objection was raised by the respondents on the maintainability of the review petition.

On April 7, 2016, the Supreme Court carefully considered submissions made by the advocates of the parties and reserved the judgment.

On April 11, 2016, Justice Anil Dave pronounced the judgment in open court holding that prima facie there were enough grounds to recall the judgment and hear the case afresh.

As on date, the NEET regulations stand restored and MCI can hold the NEET examination pending the judgment in the review.

4. There was a debate on how the test would affect minority rights. Can you explain why/why not?

Minority institutions (such as Christian Medical College, Vellore) are contending that NEET is interfering with the autonomy granted to them by the TMA Pai judgment. The judgment essentially states that minorities should be allowed autonomy to establish and administer their educational institutions and the government should not interfere and can only impose minimal regulations.

I do not think that the position taken is correct. The TMA Pai judgment gave minorities the ability to establish and administer educational institutions, but it does not bestow them with an absolute right to conduct their own entrance examinations.

However, the Centre does have an absolute right to prescribe minimum standards of education under the Constitution. NEET is an eligibility test setting minimum standards for admission. The right of minority institutions to admit students was not being denied. The institutes can admit students from their own community, but from the list of successful candidates who appear for the NEET.

Article 19(6) of the Indian Constitution provides for exceptions to Article 19(1)(g) and one of the exceptions is that the State can make any laws imposing reasonable restrictions on the right available under 19(1)(g) as long as the law relates to the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. In my opinion, NEET is squarely covered by this exception.

This stand has also been taken by Justice Anil Dave in his dissenting opinion in 2013.

5. The order states that the 2013 judgment did not consider certain binding precedents. Can you elaborate on what these precedents were? A few of them are:

Veterinary Council of India vs Indian Council of Agricultural Research which held that prescribing standards of education includes the power to conduct Common Entrance test.

Dr Preeti Srivastava vs State of MP which stated that merit should be the only criterion for admission in medical colleges and that there is a requirement of excellence in medical education.

The judgment in review goes against this by holding: While the country certainly needs world class doctors, surgeons, specialists and others connected with health care, the country also needs committed “barefoot doctors”, who are committed and are available to provide medical services and health care facilities in different areas as part of their mission in becoming doctors.

That the judgment has considered ground realities in this aspect but has forgotten the ground realities of the economically backward students who have to travel from state to state on short notice to take entrance examinations for different colleges causing their families huge financial burden, is incongruous.

It has also not considered the fact that a patient who is receiving medical care from the doctor has a right to life and health under Article 21 and this would entail receiving care from  highly competent and qualified doctors.

It is not enough that the doctors have a desire to provide medical services, they must also be competent enough to provide them. In the Atlas Cycle Industries case it was held that if there is no penalty imposed for not complying with the section then it would be directory/optional.

In the present case, neither Section 19A (2) nor the IMC Act provides as to what shall happen in the event of non-compliance with Section 19A (2).

6. What now and what's next?

Although the judgment holding NEET unconstitutional has been recalled and the examination is (for the time being) valid, it is unlikely that it will be conducted this year as deadlines are looming.

Currently, MCI is facing flak for being inefficient and corrupt and the bloated judgments of the Supreme Court, which can be (and were) interpreted in many conflicting ways do not help the matter.

There is a need for an overhaul of the entire system. This can be initiated by introducing a clear cut legislation that lays down procedural guidelines and the Supreme Court can further aid the process through decisions that do not leave room for ambiguity.

During one of the hearings, senior advocate Vikas Singh, appearing for MCI, made the submission that it was high time colleges were allowed to become businesses and make profit from education. This would create natural competition in the market and drive away people who misused subsidies the government had provided to them. I agree with these submissions.

There is no reason that charitable educational institutions and educational institutions which run as businesses for profit cannot function in harmony with each other. This is a concept that is followed globally.

7. Any other comments?

The lives of lakhs of students and patients are at stake as the Supreme Court debates constitutional provisions. There is an image of the Supreme Court in the common man’s mind as dispensing justice from ivory towers with no basis or connection to reality. Admittedly, the Supreme Court is an esteemed institution which protects our liberties, but it is time this image is dispensed with. Ground realities must be considered alongside lofty academic discussions.

Justice Altamas Kabir in his judgment stated that the MCI had not been able to show a single instance of corruption or malpractice in the process of admission in medical colleges. In the meanwhile, numerous investigations have shown that rampant corruption and profiteering do in fact take place in these institutions. Medical colleges have transformed into big businesses, sheltered behind the facade of being considered charitable institutions in line with various decisions of the Supreme Court.

Students are allowed, by way of interim orders, to study in these colleges, whereas halfway through the academic session, colleges are derecognised leaving the students with nowhere to go. The colleges themselves deliberately play on the sympathies of the judges for these students to eke out another year.

NEET, while it may not be perfect as it stands, will go a long way in helping reduce gross malpractice and corruption. By way of this recall, the Supreme Court has taken a step in restoring the faith the common man has in the judiciary.

(Edited by Asmita Bakshi.)