‘Supreme Court was misled on NEET’

BEGINNING his career in the trial courts of Bengaluru, Balaji Srinivasan went on to become an Advocate on Record of the Supreme Court. He likes to call himself a fierce defender of the Constitution. Having appeared on behalf of the main petitioner, Shayara Bano, in the landmark triple talaq case and having succeeded in getting the misogynist practice set aside by the Supreme Court, he looks forward to fighting similar legal battles. He also appears on behalf of Ram Jethmalani in the public interest litigation petition seeking effective steps to bring back black money stashed abroad and for the petitioners in the “One Rank One Pension” case, which, when concluded, he hopes, will leave an indelible mark on India’s social fabric.

Balaji Srinivasan, who has been following NEET-related cases in the Supreme Court, is not surprised about the social unrest in Tamil Nadu and elsewhere as a consequence of the Supreme Court’s decision to introduce NEET. Excerpts from the interview he gave Frontline on the NEET controversy:

Is the unrest spreading in the aftermath of Anitha’s suicide a symptom of the crisis we are likely to see in the coming days because of the Supreme Court decision making NEET merit list mandatory for medical admissions?

Anitha’s death is a tragedy. The sense of injustice she felt makes me want to hang my head in shame. If we allow NEET in its present avatar to continue, this untimely death is merely the beginning of what will prove to be a long, dark road. The authorities have made us all, including the Supreme Court, believe that NEET is a magic wand, the waving of which will make aspiring students telescope a millennium of inequality plus an institutionalised caste system and achieve their dream of becoming a doctor.

NEET is meant to be given in either English or Hindi. Ergo, the translation of the question paper into other regional languages is riddled with errors. It was discovered this year that the Tamil NEET question paper differed wildly from the actual NEET question paper. This places the southern, eastern and western States at a disadvantage. Additionally, the bias created by NEET in favour of fluency in English and Hindi marginalises students from these States and engenders an atmosphere where these children feel unimportant and slighted.

Students like Anitha cannot afford to attend English-medium schools. To expect a well-deserving student to give an examination based on a question paper that is improperly translated is to doom their chances. However, if NEET is given only in English and Hindi, it will be unconstitutional as our country has no national language and in its stead has 22 official languages!

NEET foists a belief that the syllabus of the CBSE [Central Board of Secondary Education] is better than that of other States. This is wrong. If this were true, it would behove our administrators to solve this before moving on to a unified entrance examination.

The Supreme Court’s order in 2016 in “Sankalp Charitable Trust vs Union of India”, which resulted in the revival/implementation of NEET, is controversial because it did not overrule the 2014 judgment in “Christian Medical College Vellore vs Union of India” which held NEET as unconstitutional. Could you explain this controversy?

The Supreme Court in T.M.A. PaiFoundation vs State of Karnataka(2012) has stridently stated that the “right to admit students” forms an integral part of the right of self-financing medical educational institutions to establish and administer the same. In P.A. Inamdar vs State of Maharashtra (2005), the courtclarified and settled the questions surrounding private education and the rights of institutions.

The right available to non-state medical colleges is to devise their own admission procedure, subject to the limitation and condition that the procedure so devised is “fair”, “transparent” and “non-exploitative”. Under Article 19(1)(g), the right to admit students on a fair basis is covered. Further, the apex court held that the state machinery may intervene if, and only if, it could be conclusively proven that the medical colleges were not admitting students through a fair, non-exploitative and transparent process.

Meanwhile, the Medical Council of India [MCI] issued a notification making NEET mandatory. This justifiably caused an uproar, and the notification was challenged by many parties through numerous writ petitions filed before the Supreme Court praying for the quashing of the NEET notification as it offended the fundamental right guaranteed to any citizen under Article 19(1)( g ) of the Constitution to practise any profession or to carry on any occupation, trade or business; one of this was the CMC Vellore case.

In 2014, in the CMC Vellore case, the Supreme Court applied the law declared in the T.M.A. Pai and Inamdar judgments and held that NEET was unconstitutional. The court recognised the fundamental rights of the institutions and protected the same. The court correctly upheld the law as elucidated by it in T.M.A. Pai and Inamdar and stated that as no proof had been produced to show that the medical colleges had conducted unfair, opaque and exploitative admissions, it could not violate the rights guaranteed to these institutions. The judgment in CMC Vellore was passed by a three-judge bench in a 2:1 ratio, with Justice Anil Dave dissenting.

Then, the MCI filed a review petition against the judgment passed in the CMC Vellore case. The review petitions were listed before a bench headed by Justice Dave, and on April 11, 2016, a five-judge bench led by him passed an order admitting the review petitions and stated that the question of whether NEET was constitutional or not needed to be considered afresh. No reasons were given for this conclusion; it was merely stated that to give reasons would prejudice the rights of the petitioners. Within a fortnight of the above-mentioned order, the Sankalp writ petition was listed before a three-judge bench of the apex court, presided over by Justice Dave. This case did not differ significantly from the CMC Vellore case and no material whatsoever was submitted of private and unaided and minority institutions violating the principles laid down in Inamdar .

Tellingly, the only parties impleaded in the Sankalp writ petition were the Union of India, the MCI, the CBSE and the National Board of Education. None of the truly affected parties were impleaded in the writ and thus were denied a chance of being heard. Therefore, Sankalp, in effect, sought relief against parties who had challenged the NEET notification without making them parties. No new grounds were put forth to prove that NEET was constitutional and the authorities misled the apex court.

On April 28, 2016, the Supreme Court passed the order whereby NEET was deemed valid and this started the chain of events which culminated in the sad death of Anitha.

In essence, a three-judge bench of the apex court overlooked the law as laid down by an 11-judge bench ( T.M.A. Pai ) and a seven-judge bench ( Inamdar ), thus striking a death blow to the common law tradition of precedent which is the backbone of the legal system of this country. The order passed in Sankalp is bad in law.

In an article in 2016, you observed that the butterfly effect of the Supreme Court’s order in “Sankalp Charitable Trust” is terrifying in its enormity and may well be a sign of a different morrow. Looking at the current situation, your views seem to be prescient.

In my article on NEET [“Far from being remedy to medical malady”, co-authored with Vaishnavi Subrahmanyam, Deccan Herald , May 29, 2016], I had merely glanced upon the possible repercussions of the mandatory imposition of NEET. I believe that the NEET machinery should have been perfected before it was turned loose on the nation. Now it is clear that the Supreme Court was misled by the authorities who confidently assured it that NEET was a flawless system and also that the infrastructure required to implement the same on a national scale existed. The wilful misrepresentation by the authorities, which vastly overstated their capabilities, led to the judgment passed in the Sankalp case.

It is important to point out that the CBSE is not a popular board in the southern, eastern or western States which have a greater number of schools affiliated either to the ICSE [Indian Certificate of Secondary Education] board or to State boards. Further, it is a sad fact that all national-level examinations conducted in this country are fraught with corrupt practices. The apex court didn’t take stock of whether the mechanism or the body which would implement NEET was in a position to do so. It believed the representations made by the authorities, and as none of the affected parties were impleaded, the correct facts couldn’t be put forth.

Ergo, after the order in Sankalp , the authorities administering NEET have been scrambling to conduct the examinations and often delay the same, erratically change the examination dates, check students in a demeaning manner and suffer from public embarrassments like leaked question papers. Sadly, they draw their power to perpetrate these atrocities from an order that has been obtained by misrepresentation.

Justice Dave, the sole dissenting judge in the CMC Vellore case in 2014, considered the restriction imposed by NEET as necessary in order to put an end to the evil of private institutions taking capitation fees, and undeserving students becoming doctors and dentists. Is this not a laudable view?

Justice Dave’s goal is a laudable one—to give all aspiring students an equal chance at becoming doctors. However, the Sankalp order has not helped students or removed the inequalities in the system. Instead, the judgment has placed another hurdle before the students—a hurdle which is insurmountable to the majority of them, such as Anitha, who are from non-urban southern, eastern or western States.

The apex court did something similar when it created CLAT [Common Law Admission Test]. However, the required persons were brought on board to ensure its success before it was rolled out. Students had a few years to acclimatise themselves to the idea and syllabus of a common entrance examination. This is an examination which eased the students’ lives and made the process fairer, but it took a lot of work and, more importantly, a lot of time to create and perfect. On reflection, I can say that the court wouldn’t have passed the Sankalp order if the true facts of the matter had been placed before it.

What, according to you, are the aberrations in “Sankalp”, which conflict with the principles of jurisprudence followed by the Supreme Court over the years?

It’s important to note that these landmark judgments ( Pai and Inamdar ) are the final product of a labour of love—love for the Constitution of this country. The run-up to these judgments involved endless hours of meticulous preparation, marathon hearings and long deliberations.

The Sankalp order was done subversively—technically, the case was a writ filed under Article 32 of the Constitution. At this point of time, challenge to NEET was also pending before the Supreme Court in the form of a writ petition filed by all aggrieved parties, that is, educational institutions. However, the uncomfortable truth is that using this technicality, Sankalp filed a writ effectively seeking the implementation of NEET.

Further, the persons who would be the most affected were not made parties and consequently not heard. Thus, no effective arguments defending the fundamental rights of educational institutions were heard. The principle of audialterampartem, which states that the other side must be heard, has been given a complete go-by. The largest republic in the world was shortchanged and this act was not illegal because of a technicality. This is the galling truth.

Did the Supreme Court offer any reasoning in “Sankalp” for reviving NEET?

NEET is already following the same route as other nationwide entrance examinations such as AIMPT [All India Pre-Medical Test]. The apex court, while passing the order in Sankalp, sidestepped how it was bound by the law laid down by a larger bench in Pai and Inamdar and instead concerned itself solely with the facts before it. The bench, while passing the order in Sankalp , reasoned that as the CMC judgment had been recalled, the reinstatement of NEET was the next logical step. None of the issues which were present were dealt with, and it was unfortunately assumed that the kinks in the system would work themselves out. Such faith, while laudable, is not realistic.

The main challenge to NEET is still pending before the Supreme Court. Who filed these petitions? Is the court likely to hear them early in view of Anitha’s suicide? What are the prayers in these petitions? Is there light at the end of the tunnel for these petitioners?

The main challenge to NEET is pending before the Supreme Court in the form of the main CMC Vellore writ petition. The case will not be heard out of turn unless an application is filed praying for the same. I feel that it behoves the State of Tamil Nadu to intervene in the writ petitions pending before the Supreme Court and press for an early hearing in light of the unfortunate events. Such an application is the need of the hour.

I am confident if such a case is made out, the Supreme Court will consider the request and take steps to dispose of the main case at its earliest convenience.

What is the role of the state and civil society in preventing similar suicides from happening, given that NEET is here to stay?

NEET is a reality, but I am enough of an optimist to believe that given the recent events, the authorities will take steps to correct the system and improve it. NEET conceptually is not a bad idea, but [it is] a flawed one. I believe that it is not irredeemable and might, with proper intervention, become the panacea it is envisioned as. The state should consult all relevant and affected persons and make an attempt to rectify the syllabus so that it does not so blatantly and detrimentally harm the majority of the students. Once a more equitable syllabus is created, the States must make the requisite changes in their high school syllabi so as to help students who cannot afford CBSE-affiliated schools. Further, students must be allowed to give NEET in the language of their choice.

Reports suggest that CMC Vellore has decided to leave 99 of its 100 MBBS seats vacant this year because it does not have the right to select NEET-qualified students through its own counselling. Is the CMC justified in insisting on this?

CMC Vellore is an old and revered medical college which is charitable in nature. Its students—who are charged reasonable fees—are required to volunteer in rural areas and help bring medical aid to the needy and the poor who have no access to it otherwise.

To deny such an institution the right to admit students is unfair and unwarranted.

Further, the data for this academic year show that NEET has clearly favoured those from urban areas as the majority of seats have gone to students from major cities such as Chennai, where 471 students have secured seats as opposed to 113 students who were successful last year. The solution is not to strip medical colleges of their independence. CMC is justified in insisting on its right to select students, because merit in NEET alone cannot ensure their willingness to serve in rural areas for a relatively low incentive.