Hyper Constitutionalism- The Journey from TMA Pai to NEET case

Hyper Constitutionalism- The Journey from TMA Pai to NEET case

Judicial dissent is rare in these collegium days. The master of the roster, the Chief Justice, enjoys the privilege to constitute the Bench and majority and minority views, are often decided at the time of  selection of judges for the bench constitution. After all it is a number game world over, and not free from its vices.

Judicial discipline commands obedience to the majority view Stricto Sensu. Inside the court, minority judgment is often assigned literary value, contrary to perception I would see sometime in the future, the minority view of Justice Dave in NEET case transforming into a majority. We learn from history, Justice Khanna who was reduced to minority in
ADM Jabalpur
case (Habeas Corpus Case) later emerged  as the only jurist with a backbone. Justice Khanna could have interpreted the Constitution for the establishment, like other judges did,  he chose to read it for the democrats, even at the cost of the chair of Chief Justice of India. I never bothered to check who superseded him, for law students are not required to  remember the names of all and sundry.

Interpretation of Constitution is always a political process. The great judge Justice Krishna Iyer said ‘The constitution of India is a manifesto for the country.’ Yes indeed. It is your social philosophy being reflected though the process of interpretation. Since the basic document is organic in nature, the Articles in the Constitution are susceptible to jugglery in the hands of a judge. Many a times we have seen, the judges who are called upon to decide questions having political overtones, tread a safe path to please the constituency which they only know. It could be anything but dangerous to predict and I just leave it at that.

You may notice illegalities and irregularities and can still ignore those by taking shelter under various ‘constitutional rights’. Some rights have almost become a taboo. The rights, which were guaranteed during a period when there was no ‘reverse discrimination’ or enterprises in education have become untouchable now. You reaffirm it, no matter what the consequences are, it may be at the cost of merit, social justice or public health!

TMA Pai case (T.M.A Pai Foundation Vs. State of Karnataka (2003)6 SCC 697) is one such serious case of hyper constitutionalism. It sustains still in law reports not for its ethos, values or constitutionalism, but because of its unbreakable numbers on the bench. I was informed that Justice Balakrishnan wanted to reconsider
TMA Pai
, but a larger bench of 13 judges would have caused closing down of half of Supreme Court for months and he restrained from doing so.

TMI Pai judgment later reinforced by ‘Inamdar’ is virtually a magna carta for entrepreneurs in the field of education. It is more of a ‘policy framework’ meant for those wish to set up private professional colleges. The policy is so wide open, which an ultra rightist government would be afraid to bring in. Although it appeared that eleven judges agreed on rights of majority and minority to ‘establish and administer’ educational institutions on their free will and choice, fortunately some paragraphs of
TMA Pai
also give an impression that the education sector was not totally decontrolled from states. While rest of the body of the judgment liberalized the education sector, para No -68 of the judgment was a cap against it. Contrary to the general philosophy of deregulation contained in the judgment, para No-68 talked about the State and its powers to regulate. Novices who read the judgment became confused and so did the judges. The judgment equally strengthened both the school of thoughts so to say, pro liberalization and pro regulation. To address this confusion, Chief Justice Khare and four judges sat in Constitution Bench, and attempted to explain the ratio of
TMA Pai
, and that is how we got the Constitution Bench decision in Islamic Academy case (Islamic Academy of Education Vs. State of Karnataka (2003(6)SCC697). Five Judges, found something more sensible in para 68 of
TMA Pai
and brought in regulations for conducting examinations and collection of fee. Proponents of TMA Pai  interpreted  Islamic Case as if an attempt by Five Judges to overrule Eleven Judges of TMA Pai. The confusion continued and finally Chief Justice R.C. Lahoti constituted a Seven Judge Bench, popularly known as Inamdar case (P.A. Inamdar Vs. State of Maharashtra (2005) 6 SCC 537), to explain
TMA Pai
once more. Interestingly, Chief Justice Lahoti thought it fit to exclude all those judges who were party to TMA Pai, while constituting the Inamdar Bench. When Inamdar Bench was constituted, six judges of TMA Pai, viz., Justice Ruma Pal, Justice SN Variava, Justice K.G. Balakrishnan, Justice P.V. Reddy, Justice Ashok Bhan and Justice Arjit Pasayat were still available in the Court. Remember, when
Islamic Academy
bench was constituted, Chief Justice Khare invited four judges of  TMA Pai to sit along with him.  Ordinarily one would have thought that those who had penned down TMA Pai were the right judges to explain their own judgments as they did in Islamic, but Chief Justice thought otherwise and thus TMA Pai was explained the way it is. Inamdar just emboldened TMA Pai
philosophy, removing ‘impure paragraphs’ which talked about state control!

Post -TMA Pai, India witnessed a spurt in investments in education with an assured break even in 3 to 4 years. TMA Pai removed the restriction for an individual to start an educational Institution.  You are no longer dependent on creating a Charitable Institution to start a Professional College; your rights flow directly from Article 19(1)g, said
TMA Pai
.

The business in education is very lucrative. The first batch of MBBS  100 students with 25 lakh per capita, will make you richer by 25 crores in the first year itself. All in the name of guaranteed fundamental rights of minority and majority. The ‘Selection’ of students for admission is also made easy, few colleges can gang up and conduct their own examinations and select students of their choice. In constitutional terms, it can be interpreted as ‘right to admission is also a facet of right to establish and administer’ educational institutions.

The National Eligibility –cum –Entrance Test was a simple answer to this gross abuse. The majority judgment in NEET case has a complex colour of constitutionalism. The issue before the Court was simple and short, ie, “
whether we should have a National Eligibility –cum –Entrance Test for MBBS and BDS courses and the respective post graduate courses?’


The majority peeled the Constitution layer by layer with the aid of TMA Pai and finally held that admission of students to MBBS BDS and Post Graduate Courses according to their own procedure, beliefs and dispensation, is an integral facet of right to administer, and quashed the National Eligibility –cum –Entrance Test.

But justice Dave, who rightly dissented  ‘has failed to understand’ (as he states) few simple aspects of the issue, his concern and anguish for the cause are reflected in the judgment, the relevant extracts are reproduced verbatim:

“ 21 . So  far  as  the  rights  guaranteed  to  the  petitioners  under  the  provisions of Articles 25, 26, 29 and 30 are concerned, in my opinion,  none of the rights guaranteed under the aforestated Articles would  be  violated by permitting the NEET.  It is always open to the petitioners to select a student subject to his  being  qualified  by  passing  the  examination conducted by the highest professional body.   This is to  assure that the students who are to undergo the professional  training  are suitable for the same.  Regulations relating to admission  of  the  students i.e. admitting eligible, deserving and bright students  would  ultimately bring reputation to the educational institutes.  I fail  to  understand as to why the petitioners are keen to admit undeserving  or   ineligible students when eligible and suitable students are available. I am sure that even a scrupulous religious person or  an  educational  institution would not like to  have  physicians  or  dentists  passing through its  institution  to  be  substandard  so  as  to  bring  down  reputation  of  the  profession  or  the  college  in  which  such   a  substandard professional was educated.  Minorities - be  it  religious  or linguistic, can impart training to a student who is found worthy to  be given education in the  field  of  medicine  or  dentistry  by  the professional apex body. In my opinion, the Regulations and the  NEET would not curtail or adversely  affect  any  of  the  rights  of  such  minorities as  apprehended  by  the  petitioners. On  the  contrary, standard quality of input would reasonably  assure  them  of  sterling quality of the final output of the physicians or  dentists,  who  pass  out through their educational institutions.


 22. An apprehension was voiced by some of the counsel appearing for the petitioners that autonomy of the petitioner institutions would be lost if the NEET is permitted. I fail to understand as to how autonomy  of  the said institutions would be adversely affected because of the NEET. The Government authorities or  the  professional   bodies   named  hereinabove would not be creating any hindrance in the  administrative  affairs of the institutions.  Implementation of the NEET would only give better students to such institutions  and  from  and  among  such highly qualified and suitable students, the minority institutions will have a right to select the students of their choice.  At this stage, the institutions would be in a position to use their discretion in the matter of selection of students.  It would be open  to  them  to  give weightage  to  the  religion,  caste,  etc  of   the   student. The institutions would get rid of the work of  conducting  their  separate examinations and that would be a great relief to  them.   Except  some  institutions having some oblique motive behind selecting students  who could  not  prove  their  mettle  at  the  common   examination,   all educational institutes  should  feel  happy  to  get  a  suitable  and  eligible lot of students, without  making  any  effort  for  selecting  them.


  23. For the reasons recorded hereinabove, in my opinion, it cannot be said that introduction  of  the  NEET  would  either  violate  any  of  the fundamental or legal rights  of  the  petitioners  or  even adversely   affect the medical profession.  In my opinion, introduction of the NEET would ensure more transparency and less hardship to the students eager to join the medical profession.  Let us see the consequence, if the apex bodies of medical profession are not permitted to conduct the  NEET.  A student, who is good at studies  and  is  keen  to  join  the  medical profession, will have to visit  several  different  States  to  appear at different examinations held by different medical colleges or  institutes so as to ensure that he gets admission  somewhere.   If  he appears only in one examination conducted by a  particular  University  in a particular State and if he fails there,  he  would  not  stand  a  chance to get medical education at any other  place.   The  NEET  will facilitate all students desirous of  joining  the  medical  profession because the students will have to appear only at one  examination  and on the basis of the result of the NEET, if he is  found  suitable,  he would be in a position to get admission somewhere in the  country  and he can have the medical education  if  he  is  inclined  to  go  to  a different place.  Incidentally, I may state here that  learned  senior counsel Mr. Gupta had informed the Court that some  medical  colleges,  who are more in a profiteering business rather than in the noble  work of imparting medical education, take huge amount by way of donation or capitation fees and give admission to  undeserving  or  weak  students  under one pretext or the other.   He had also  given  an  instance  to      support the serious allegation made by him on the  subject.   If  only  one examination in the country is conducted and admissions  are  given on the basis of the result of the said  examination,  in  my  opinion,      unscrupulous and money minded businessmen operating in  the  field  of education would be constrained to stop their corrupt practices and  it would help a lot, not only to the deserving students but also  to  the  nation in bringing down the level of corruption “

As I mentioned in the forgoing paragraph, NEET judgment would remain and be followed by the courts in the country for its numbers on the bench, and not for its ethos, values or constitutionalism.

P V Dinesh is an Advocate practising in the Supreme Court of India. The author can be reached at pvdinesh@gmail.com.