A retrogade verdict on NEET

By Prabhakar Timble
30 July 2013 06:00 IST

The bunch of recent decisions by the Supreme Court giving directions on election manifestos of political parties, barring jailed persons from contesting elections and holding that an elected person loses the membership immediately on conviction could be considered as insecticides to fight the rodents which have infected our legislative farms at the Centre and in the States. As a law student, I would consider them to be instances of judicial outreach which may not stand the test of a review. However, these are hailed as reforms and there should be no doubt that they are well-intentioned. As a sharp contrast to this, the judgement delivered by Chief Justice Altamas Kabir almost coinciding with his date of retirement, (Justice Anil R. Dave dissenting) quashing the National Eligibility cum Entrance Test to medical colleges (NEET) as unconstitutional, violating minority rights and beyond the competence of the Medical Council of India (MCI) is nothing but a judicial stampede turning the clock of all prior judicial decisions backwards.  In short, the decision is retrograde, traditional and rolls back the progressive transformation brought about by the higher judiciary in dealing with the rights and privileges of private unaided educational institutions and those established and administered by minorities.

Backward-looking

The MCI has been working on a common national eligibility entrance test to avoid the stress for students of multiple tests of numerous medical institutions as well as to plug the mischief in terms of unregulated fees and donations collected as per the whims and fancies. The objective also is to ensure merit-based admissions so as to make the medical education accessible to the less wealthy aspirants. Holding that the MCI is only a regulatory body for laying down standards of medical education, the Supreme Court has erred stating that its mandate does not extend to evolve standards and procedures for regulating admissions and conducting common entry test. NEET was only an instrument laying minimum norms of admissions and in no way comes in the path of the State Governments to impose restrictions on grounds of residence, domicile and other rational criteria to protect the local interests. The minority institutions are also at liberty to give weightage to religion and language in their admission procedures.  NEET was to widen opportunities for students and was only striking at separate entrance examinations as they open up motives other than preserving language, religion, identity and culture. What MCI envisaged was to ensure merit based selection even within the minority institutions and provide for a fair, just and affordable process to the students including those belonging to minority communities. What NEET attempts to curb is not the privilege or right of minority institutions but the questionable business opportunity of supernormal gains by hitting at the possible abuse of admission process due to the acute shortage of medical seats in the country. The progressive precedents established by the Supreme Court have upheld the freedom and autonomy of minority institutions and through a harmonious interpretation evolved that this right is not “full and unfettered”. Restrictions imposed by the government and statutory bodies for restoring balance between the right to manage and the right of students not to be exploited due to sluggish supply conditions in the market of medical education has not been appreciated by the order quashing NEET. Prescribing a common admission test does not mean interfering with the right of private unaided medical institutions including those run by minorities. The right to admit students vests with the management in the sense that the management can continue with its reservation policy from the NEET cleared list. There is no usurpation of this power but only a fair minimum expectation in the exercise of the same. NEET would have only sucked the “selling power” of the management whilst retaining the autonomy to admit students of their choice.

Dissent

The dissenting note of Justice Anil Dave is suggestive enough that the judgement is also delivered in hurry and haste. To quote from the note of dissent—“As the learned Chief Justice is to retire, I have to be quick and short. Prior to preparation of the draft judgement, we had no discussion on the subject”.

Though the NEET judgement will not invalidate actions so far taken under the amended regulations of the MCI including the admissions already given on the basis of the NEET conducted by the Medical Council of India, the Dental Council of India and other private medical institutions, it is back to the old square for the subsequent years. Multiple opportunities for coaching classes in view of multiple tests would continue.  The mischief of “buying power” calling the shots in admissions in private medical and dental institutions including the minority ones also gains stability.

The real issue is of shortages of opportunities. Most of the medical colleges in the country were established prior to independence. Capacity creation in medicine is abysmally low considering that after sixty-five years of independence, the total medical educational institutions are 381 with 205 of these in private unaided sector. There is a need to double the number of medical colleges to tap the qualified and merited aspirant. The unimaginative approach in fixation of fee structure for unaided institutions is the major stumbling block for genuine and law-abiding private players to enter this field of education.  Those who have entered have mastered the art of putting the medical admissions on sale. A market friendly fee structure with some incentives for infrastructure could spur corporate to invest in this sector. Public sector investment is equally needed in medical education considering the yawning gap in demand and supply.

The Supreme Court should also have a relook at the need for a common admission test respecting the minority rights and those of private institutions. Multiple tests by different institutions cannot be left unguided as they exist today Precedents on these issues have taken us much forward, NEET order disregards most of them.                                                                                                                   

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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