(Excerpts
from Dhananjay Mahapatra, TNN)
Points
The
Supreme Court quashed the single-window admission system for all medical
colleges by faulting the Medical Council of India-prescribed National
Eligibility-cum-Entrance Examination (NEET) on three grounds.
1. 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.
2. 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.
3. 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.
Counter Points
The issues
dealt by Justices Kabir and Sen were touched upon by larger benches which
decided important questions of law.
1.
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.
2. A
decade later, an 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.
3. 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.
4. 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.
Comments
1. Can it
be said that the MCI, set up to ensure excellence in medical education, is
barred from infusing transparency and merit into the process of intake of
students?
2. 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.
