President of India promulgated two Ordinances on 24th May, 16 amending Indian Medical Council Act, 1956 and Dentist Act, 1946 and inserted Section 10D in both the Acts.
Ordinances as claimed by the Government have been promulgated to give relief to the States from the judgment and Order of Supreme Court which directed implementation of NEET forthwith. In other words, the Govt. has used the route of Ordinance to stay the order of the Supreme Court.
Interestingly, while promulgating, the Govt. has not removed the foundation of the judgment in Sankalp Charitable Trust Vs. Union of India, i.e the NEET Regulation. The NEET Regulation was framed by Medical Council of India with prior concurrence of Central Govt. in exercise of its power under Section 33 of Indian Medical Council of India and it came to be notified in Gazette of India on 21st December, 2010. The Regulations are still alive and is in full force and they have not been repealed so far. Therefore, the ordinances are nothing but an abuse of extraordinary Judicial power of the Executive. In effect, the Government has acted as an Appellate authority over the final Judgment of the Supreme Court. If it is allowed to remain, almost all judgments of the court would become subordinate to Ordinance making power of Executive.
It is a Judgment after hearing all necessary parties by the Supreme Court, effectively, the Government has stayed the order of the Supreme Court for a period of one year through the Ordinance. Therefore, this is pure and brazen attempt to overcome final and binding judgment of the Supreme Court, this kind of Ordinance are unheard of.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, has affirmed the theory of separation of powers between the legislature, the executive and the judiciary as the basic structure of the Constitution. I view the ordinances by the Govt. a brazen attack on the basic structure and worthy enough to stand for a single day.
Devil is in details. A minute examination of the new section 10D of both Acts would show that the provision has been made for holding a Uniform Entrance Examination by designated authority for undergraduate and postgraduate level of medical and dental education. The Ordinance provides that Section 10D comes into force with immediate effect. But the proviso to Section 10D carves out an exception for State Govt. Seats only in respect of those States which opt out of Section 10D in respect of Govt. seats which includes seats in private colleges. It has further been provided that Section 10D shall not apply to such Govt. Seats notwithstanding Regulation or any judgment and order of any court.
It is relevant to note that NEET Regulation has not been repealed by Section 10D. Section 10D provides for Uniform Entrance Examination. Section 10D neither provides for Common Entrance Examination nor for Single Entrance Examination. Uniform is not common.One can have uniformity by providing same syllabus, question pattern etc. but you are not required to hold one single examination. The Section leaves the scope for holding more than one examination. It defeats the idea of Single or Common Entrance Examination as provided by NEET Regulation and as observed by11 Judges bench of the Hon’ble Court Supreme Court in T.M.A.Pai Vs. State of Karnataka (2002) 8 SCC 481.
Secondly, Section 10D does not lay down qualifying marks i.e. minimum marks which will make a candidate eligible for admission to medical/dental courses whereas NEET Regulation provides for qualifying marks in common entrance examination for each category of students namely General, OBC, SC, ST and Physically Challenged. The result would be that a person who has secured even 30 per cent marks shall also be eligible for admission to medical colleges. The Constitution Bench of Supreme Court in the case of Dr. Preeti Shrivastava vs. State of Madhya Pradesh (1999) 7 SCC 120 has held in no uncertain terms that laying down qualifying marks in common entrance examination is must for maintaining the standards of medical education.
Thirdly, the Ordinance does not provide for admission on the basis of merit whereas NEET Regulation provides for admission strictly on the basis of merit. The effect would be colleges would be free to admit the students as per the whims and fancies (capitation fee) as there is no law requiring them to admit the students strictly on the basis of merit. MCI and DCT will be without any authority in law to take action against them in case they violate the merit in admission. MCI in past has issued discharge letters to so many colleges which violated the merit in admission to the medical college and there are number of judgments of the Supreme Court penalizing colleges for violating the Regulations of Medical Council of India in admitting the student in violation of merit. Therefore, the unscrupulous colleges which have lost their case in Supreme Court have now become successful by the route of ordinance.
Fourthly, exemption for Govt. seats for this year in M.B.B.S. case has again given window of opportunity to the private medical colleges to get out of the NEET. Private Medical/Dental College in several states including Karnataka, Andhra, Telangana etc. have given 50 per cent of their seats to the Government and admissions in respect of 50 per cent are based on State CET. This arrangement is based on consensual agreement i.e. agreement with the consent of both the parties i.e. State Govt. and Private management of colleges. Nothing prevents them now to enter into fresh consensual agreement for remaining seats and surrendering their 100 per cent seats to the State Govt. and all such seats would become Govt. Seats in terms of proviso to Section 10D of the Ordinance as it would be easier to manage examination at State CET levels and get the students admitted not on the basis of merit but on capitation fee. We should not forget Vyapam and other similar scams involving CET. No prize for guessing as to the whether Ordinances have been promulgated for addressing the issues of Students or vested interest.
Fifthly, whether NEET phase-II is based on uniform entrance examination or national eligibility cum entrance test, there is no clarity and as per Section 10D, there is no eligibility requirement.
Sankalp Charitable Trust has raised all such issues in its public interest litigation filed today i.e. 27.5.2016 in Supreme Court sought for quashing of the Ordinances and has also sought additional direction of holding Centralized Counseling at both Central level and State level for admission to the medical and dental college as common entrance examination is not enough to curb the menace of capitation fee and promote meritocracy in medical field. Inescapable conclusion is that vicious cycle of capitation fee for admission to medical college and recover from poor patients has been strengthened by Ordinance.
NEET phase- I examination has already taken place on 1st May, 2016 under NEET Regulation. If there is no NEET Regulation and only Ordinances remain, NEET -phase-II which is going to take place on 24th July, 2016 shall be Uniform Entrance Examination (UEE) or NEET examination? The Million Dollar question would be how results are going to be declared. The Govt. has created more confusion by bringing Ordinance rather than helping the students by appealing to them to concentrate on the preparation of phase 2 examination of NEET or UEE.
The Author is a Lawyer practising in the Supreme Court of India.