Karnataka High Court Upholds NEET For Undergraduate Homeopathy Courses

A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil disposed of the petition filed by Karnataka State Private Homoeopathic Medical College Managements Association which had sought to strike down certain provisions of the Act and Regulations framed thereunder, claiming them to be unconstitutional.

The bench said Section 14 of the 2020 Act expressly prescribes NEET for admission to undergraduate in Homeopathy in all Medical Institutions. "Thus, the legislature in its wisdom, has taken a view that merit based admission can be ensured to a common entrance test namely NEET,” said the court.  

Case Background

The Homeopathy Central Council Act, 1973 was repealed by a new enactment viz., the National Commission for Homeopathy Act, 2020 which received the assent of the President on 20.09.2020. The Central Government by an order dated 05.07.2021 constituted the National Commission for Homeopathy. The National Testing Agency issued a public notice dated 13.07.2021 inviting online applications for National Eligibility cum Entrance Test as per Section 14 of the Act.

The National Testing Agency notified the conduct of NEET examination for academic year 2022-23 on 17.07.2022. The State Government by a communication dated 13.10.2022 convened a meeting to arrive at a consensual arrangement for providing appropriate fee structure and seat sharing. The Association thereupon submitted representations on 09.11.2022 and 05.12.2022 to reconsider the fee structure.

Following which the government held meeting with members of Association and other stakeholders and passed an order on 13.10.2022 providing for annual fee structure and seat matrix in respect of admissions to graduate and post graduate courses in Homeopathic colleges for academic year 2022-23.

On 06.12.2022, the calendar was notified regulating imparting courses of study. It was directed that courses shall commence from 1st October of the year. An addendum was issued vide government order dated 13.12.2022 by which it was provided that seats for Homoeopathy courses shall be filled as per the Regulations of 2022 notified on 06.12.2022 through Karnataka Examination Authority.

For the academic session 2022-23 also, a large number of seats were vacant. Thereupon the petitioners once again filed an interlocutory application in an earlier petition. Thereafter, a division bench on 22.11.2022 passed an interim order, permitting admissions to students academically qualified but without NEET ranking. The said order was challenged by the National Commission for Homeopathy before the Supreme Court.

The Civil Appeal was decided by an order dated 13.02.2023 by which order passed by the high court was set aside and the matter was remitted to the High court to decide the same on merits finally before last date proposed for admission, which was to be extended by National Medical Council.

Petitioners Arguments

It was submitted that the fundamental rights acknowledged and recognized which are available to private educational institutions on account of decision of Supreme Court viz., Right to admit and to impart secular education is subject to reasonable restrictions and is not permissible to impose any restriction by subordinate or delegated legislation, as is sought to be done by the guidelines issued by Ayush Department of Central Government.

Section 14 of 2020 Act is wholly disproportionate to the object sought to be achieved and suffers from manifest arbitrariness, it was argued. The provisions of the Act suffer from doctrine of non retrogression and hit by principles of proportionality, the petitioners told the court

“The institutions imparting education in homoeopathy courses are not of All India character and there is no excess demand over availability, giving scope for malpractices and therefore, requiring assessment of inter se merit for grant of admission to competing aspirants for admission does not arise,” it was argued.

Moreover, equating and comparing the study of homoeopathy with allopathic medicine and dentistry and applying rigors of provision for grant of admission and standards of education provided for such courses is manifestly arbitrary and suffers from the vice of non application of mind, the court was told.

“Neither the Regulations nor the guidelines apply for the academic session 2022-23, therefore, the petitioners be permitted to admit the students on the basis of their academic eligibility” it was argued.

Respondents Stand

Senior counsel Arun Shyam M, for National Homeopathy Commission submitted that the Act and the Regulations framed therein have been enacted with an object to provide medical education system, which includes access to quality and affordable medical education and there is no violation of either any fundamental rights of the petitioners or any other constitutional provision.

The Central Government under Sections 43 and 44 of the Act is to issue the guidelines and directions to National Council for Homeopathy for effective implementation of the Act and the guidelines dated 18.10.2022 shall govern the process of admission for academic session 2022-23.

Findings

Referring to Supreme Court judgment in the case of VETERNARY COUNCIL OF INDIA Vs. INDIAN COUNCIL FOR AGRICULTURAL RESEARCH, the bench said: “Even in the absence of a specific provision, it has been held that power to regulate standard of education casts a corresponding duty to conduct an All India Examination.”

Noting that right to administer an educational institution which includes a right to admit students, is not an absolute right and can be regulated, the bench said: “The prescription of NEET fulfils the twin tests of proportionality and reasonableness.”

It added: “The object of prescription of test is to ensure that qualified students take admission in B.H.M.S Course, which is in the interest of the patients whom they treat. Merely because the number of seats are more and the candidates are less, the requirement of merit based admission cannot be dispensed with and the private educational institution cannot have an unfettered right to admit the students regardless of their merit.”

It held that the doctrine of non retrogression provides that State should not take any measures or steps that deliberately lead to retrogression on the enjoinment of rights either under the Constitution or otherwise.

“In the instant case, by enacting Section 14, the right of the petitioners to admit students in educational institutions has merely been regulated and the same does not amount to violation of the rights of the petitioners under the constitution or any other enactment. Therefore, the principle of doctrine of non retrogression is not applicable to the facts of the case,” it said.

The court said Section 14 of the Act neither suffers from manifest arbitrariness nor the test of proportionality or is violation of the doctrine of non retrogression.

The court also rejected the challenge to Sections 3, 4 and 10 of the Act on the ground that Central Homeopathy Council comprises of officers of the Government and the aforesaid provisions are in violation of doctrine of non retrogression.

“The contention that Commission comprises only of officers of the Central Government is incorrect, as the Commission comprises part time members also. The Commission has been constituted under the 2020 Act to perform its functions under the Act,” the bench said.

The court said provisions by no stretch of imagination suffer from the doctrine of non retrogression. "The aforesaid provisions have also not been shown to be per se arbitrary. Therefore, the contention that the aforesaid provisions are manifestly arbitrary or are unworkable cannot be accepted,” it added.

Turning down the challenge to sections 43 and 44 of the Act the bench held: “The Act itself requires holding of NEET for admission to the course. Therefore, in any case, the aforesaid contention made on behalf of the petitioners does not render the provision Sections 43 and 44 of the 2020 Act bad in law.”

Considering the challenge to the Regulations made on the ground of principles of proportionality, the bench said it is trite law that there is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is on the person who challenges the same.

Noting the six grounds on which the challenge can be raised the bench said: “The 2022 Regulations have been framed in exercise of powers under Section 55(2) of the 2020 Act. The challenge to the Regulation made on behalf of the petitioners does not fall in any of the aforementioned grounds.”

However, the court allowed the petitions in part and said the guidelines framed by Ministry of Ayush dated 18.10.2022 and the Regulations framed by National Commission for Homeopathy dated 06.12.2022 do not apply to the process of admission to B.H.M.S under graduate course which have already commenced on 19.07.2022.

“The Government Order dated 13.12.2022 making the 2022 Regulations applicable in respect of admission to B.H.M.S. undergraduate course for academic session 2022-23 is quashed,” it said further.

The petitioners were permitted to admit students on remaining vacant seats on the basis of academic eligibility for the academic session 2022-23 only.

Case Title: Karnataka State Private Homoeopathic Medical College Managements Association And Union of India & oThers

Case NO: W.P. No.25723 OF 2022

Citation: 2023 LiveLaw (Kar) 92

Date of Order: 03-03-2023

Appearance: Senior Advocate M R Naik for Advocate Suraj Naik for petitioner

DSGI Shanthi Bhushan H FOR R1.

Senior Counsel Arun Shyam M for R2.

AGA Lakshminarayan for R3 R4.

Advocate K.M. Prakash FOR R5