Hyper Constitutionalism- The Journey from TMA Pai to NEET case
P V Dinesh
21 July 2013 7:06 PM GMT
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...
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 I never bothered to check who superseded him, for law students are not required to  remember the names of all and sundry.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. Â 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.
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. Â 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.
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