By Mohan V Katarki
Indian federalism has faced many difficult challenges in balancing with the conflicting interests of the centre and states. The promotion of Hindi as the official language, distribution of financial resources and myriad other issues have often rattled the federal spirit of the Constitution. The recent rebellion by Tamil Nadu in proposing to opt out of the National Eligibility cum Entrance Test (NEET), administered by the National Testing Agency, for undergraduate medical courses, has posed a fresh challenge in the fluid centre-state relationships.
The report of the Justice AK Rajan Committee statistically exposes NEET’s prejudicial and injurious impact on a section of underprivileged students, particularly those in rural areas and studying in schools affiliated to state boards.
The mainspring of the ongoing constitutional crisis lies in the importance of health sector and the shortage of seats in the medical course. Needles to say, for every seat, there are hundreds of aspirants. The scheme of assessment under the NEET format for undergraduate medical courses may seem like any other examination, but in reality, it is a tough task for students from the underpriviledged class.
Students taking NEET are not tested on their aptitude for the medical profession, commitment to the health services or knowledge of anatomy. Instead, NEET is a test to determine the ability of a student in physics, chemistry, botany and zoology, which they would have already studied in the school curriculum. It is more on the lines of subject tests in Scholastic Aptitude Test in the US. Students in NEET are tested on 180 questions, with a negative marking provision, which is nerve-wracking for students.
Coming to the specifics, there are broadly three challenges to NEET, all inter-linked. The managements of unaided and minority schools complain of loss of autonomy and freedom to select students; rural students complain of unsuitability since the NEET syllabus is patterned more on the CBSE, ICSE, IB or IGSE syllabus and the questions are tricky. This is compounded by the penalty of negative marking.
NEET was initially framed in 2010 by the Medical Council of India under the Indian Medical Council Act of 1956 to prevent multiple tests by the government and private medical colleges. There was the TMA Pai case and the Islamic Academy case which overruled the single window scheme framed in the Unnikrishnan case for admissions in both private and government professional colleges.
NEET was struck down by the Supreme Court in the Christian Medical College case in 2014. However, the judgment was subsequently recalled in MCI vs Christian MC case and referred to a constitution bench. Meanwhile, in Modern Dental College case, the challenge to Madhya Pradesh’s Common Entrance Test on the grounds of the right of autonomy of managements to select students by their own test or method, was rejected.
The constitution bench of the Supreme Court also demarcated the role of the centre by reference to Entry 66 of List I and the role of the centre and states under Entry 25 of List III. However, it left open the question of repugnancy under Article 254 (2). This delineation of the roles in the Modern Dental case is explained by the division bench subsequently in Sankalp Charitable Trust case.
Federal relations between states and the centre have been rebalanced after the 42nd Constitution Amendment Act of 1976 during Emergency. Education, which was a state subject as Entry 11 of List II, was deleted and added to the Concurrent List or List III as Entry 25. Whether such a constitutional amendment has destroyed the basic structure is a matter of argument. It’s necessary to recall that education was the part of the Provincial List as Entry 18 under the Seventh Schedule of the GOI Act of 1935.
Buoyed by the decision of the constitution bench in the Modern Dental case holding that the government’s mechanism to conduct the common entrance test for government and private colleges does not suffer from constitutional infirmities either under Part III of the Constitution or on the ground of legislative competence, a separate set of proceedings started in the Supreme Court. In a writ petition seeking mandamus to hold NEET for “admission to MBBS course throughout the country”, the division bench, in supersession of all previous orders, directed the holding of NEET.
It seems the petitioner proposed that the Medical Council of India agreed and the Supreme Court disposed it. Subsequently, in 2020, the constitution bench in the Christian Medical College case, 2020, upheld the constitutional validity of NEET, repelling the challenge on the grounds of fundamental rights claimed under Part III of the Constitution. The constitutional adjudication on the touchstone of legality is formally concluded for the present.
NEET was revived in 2017 and sourced its legitimacy from the provisions of the Act of 1956. However, when Parliament repealed the Act of 1956 and in its place enacted the National Medical Commission Act of 2019, NEET found a specific provision in Section 14 (1): “There shall be a uniform National Eligibility-cum-Entrance Test for admission to the undergraduate and postgraduate super-speciality medical education in all medical institutions which are governed by the provisions of this Act.
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“Provided that the uniform National Eligibility-cum-Entrance Test for admission to the undergraduate medical education shall also be applicable to all medical institutions governed under any other law for the time being in force.”
The constitutional competence of Parliament as a federal legislature to legislate for the nation or part of the nation mandating NEET falls under Entry 25 of List III of the Seventh Schedule. Entry 25 reads: “Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List 1; vocational and technical training of labour.”
The subject of NEET doesn’t relate to Entry 66 of List I of the Seventh Schedule. Entry 66 talks of: “Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” While dealing with Madhya Pradesh’s Common Entrance Test, the constitution bench in Modern Dental case specifically pointed out: “However, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc.”
On account of the above constitutional position with regard to the distribution of legislative powers post the 42nd Amendment in 1976, both Parliament and central and state legislatures have equal powers to conduct the eligibility test. However, NEET under Section 14 of the Act of 2019 made by Parliament prevails unless the president grants assent to the state’s legislation to opt out of NEET under Article 254 (2).
A single window examination at the national level has merit as it eliminates multiple exams which students were forced to take as expressed in Christian Medical College case 2020. However, a strong case of inequity in NEET has been made out in the report of the Justice Rajan Committee. If the Supreme Court had the benefit of the material in the Report, it probably would have interwoven equity in NEET.
Some of the pointers on inequity in the report were quoted by The Times of India as:“…the report said the percentage of rural students came down from 65.17% in 2016-17 in the pre-NEET year, to 49.91% in 2020-21. The number of Tamil medium students allotted the MBBS seats also came down from 14.88% in 2016-17 to a mere 1.99% in 2020-21.
“Likewise, the percentage of state board students getting MBBS seats also plummeted from 65.66% in 2016-17 to 48.22% in 2017-18 while the percentage of CBSE students has increased from 0.39% to 24.91% in just one year after the introduction of NEET. The number of government school students getting MBBS admissions also decreased from 34 students to just three students after NEET and no student from government schools got admitted to government medical colleges in 2017-18.
“The number of first-generation graduates getting the seats also came down from 24.9% to 13.6% after the introduction of NEET in Tamil Nadu. Students whose parent’s annual income is less than Rs 2.5 lakh per annum also come down from 47.42% before NEET to 30.6% after NEET.
“Before NEET, 87.5% current-year students entered medical colleges, but it got reduced to 28.5% in 2020-21 as 71.4% repeaters grabbed the medical seats. The report also said the students were shelling out Rs 1 lakh to Rs 4.5 lakh per annum for coaching classes.”
If Tamil Nadu legislature’s mandate to opt out of NEET is reserved for the assent of the president under Article 254(2), it will become a sensitive political question. The centre will have to decide either by assenting to the opt-out proposal or modifying NEET.
Similar proposals from other states to opt out may also reach the president soon. However, there are no guidelines on the exercise of high executive power under Article 254(2). The president, advised by the council of ministers, cannot be oblivious to the inequity pointed out in the Justice Rajan committee report. If “federalism as a form of decentralisation serves as the framework of democratic decision-making”, then priority to the state legislation is essential.
In matters of common interest in concurrent matters in List III, the experiences in the state are expected to be considered as experiment in the laboratory, as Justice Louis Brandeis of the US Supreme Court reminded in his dissent. The president should also regard the fact that the subject of medical education in Entry 25 in List III is seized from the states since it was part of Entry 11 of List I during the Emergency in 1976 by the 42nd constitutional amendment. The centre is expected to invoke the spirit of co-operation than paramountcy exercised by the imperial power in pre-Independence days.
This being the case, the president in his discretion, may either grant assent to Tamil Nadu legislation or reject the assent. We can’t really predicate what he may do. If he rejects, in that case, the centre may consider amending the NEET format and simplify or grant weightage marks of about 10% to those who have studied under state boards. This is a known instrument of equaliser between the forwards and backwards, between the rural and urbanised or between the haves and have nots. The one size fits all formula is no solution for a pluralistic society with diversity.
—The writer is a Senior Advocate, Supreme Court of India