Dr. Justice A. K. Rajan, L. L D.
Former Judge of Madras High Court Chennai
….Continuation from the previous issue
Related articles
In Tamil Nadu students were admitted to professional courses only on the basis of the marks obtained in the qualifying examinations. The rationale behind that is when a student passes the qualifying examination conducted by the competent authorities, that student becomes qualified and is eligible to pursue any further course of higher studies. There is absolutely no need for passing any another examination, including any ‘common entrance examination’. It was a policy decision taken by the government. Tamil Nadu Legislative Assembly passed an Act in 2007, abolishing Common Entrance Test for admitting students to the professional courses. Tamil Nadu Dr. M.G.R. Medical University contains the rules for admitting students for the medical and Dental courses. No organ created by law by the Union Government can override or regulate those aspects.
Medical Council of India [M.C.I.]:
During the pre independence period, by an Act of 1933, Medical Council of India was created to regulate the conduct of the medical practitioners. That Act was replaced in 1956. The object was to maintain consolidated registers of medical practitioners in every State and also at all India level; secondly to take disciplinary action in case of any violation of the medical ethics. By the 1993 Amendment Act, Sections 10A, 10B, and 10C were added, whereby MCI was conferred with the power to sanction new medical colleges and new medical courses all over India.
That was usurpation of the State’s powers. No State was aware that they were robbed of their rights. The powers of the States, without their consent, were usurped by the Central government. Again in 2016 Section 10D (by which NEET was made mandatory) was inserted in the MCI Act. But strangely the MCI started issuing notifications, for conduct of common entrance examination and regulating admissions to medical colleges, from 1997 itself.
Most of the states remained mute, oblivious of their rights and did not oppose that usurpation of their powers. Only Tamil Nadu opposed it (both A.D.M.K and D.M.K. governments). Finally by 2007 Act Tamil Nadu abolished all entrance examinations within the state. That law is valid even today.
National Medical Commission Bill 2017:
Now, the Union Government wants, by Law, to create “National Medical Commission” abolishing the existing Medical Council of India by repealing the Indian Medical council Act. A Bill for that purpose has been tabled in Parliament. The most controversial aspects are found in Clauses 10, 14 and 15 of the Bill. Clause 10 prescribes the powers and functions of the commission. Clause 10 Sub clause (b) empowers the Commission to “lay down policies for regulating medical institutions, medical researches, and medical professions and make necessary regulations in this behalf”.
This may at the most be valid and permissible only in so far as the ‘Institutions to be deemed as universities’ declared under Section 3(1) of the U.G.C. Act. To the affiliated colleges of any University established by any State that Law will not apply.
NEET and NEXT Examinations (Clauses 14 and15) are Unconstitutional:
Admissions to medical education, at under- graduate level and post-graduate level, are to be regulated by conduct of NEET [National Eligibility cum Entrance Test] under Clause 14. Passing out and awarding university degrees are to be governed by conduct of National Licentiate Examination,[NEXT] as per Clause 15.
The combined effect would be, that a student cannot be admitted without passing NEET and even after such admission and even after completing the course and even after passing the examinations conducted by the respective universities, a student cannot be conferred with the degree by the universities, unless the student also passes an exit examination, named National Licentiate Examination. The Central government agreeing with the recommendations of Departmental Select Committee have decided to conduct a common final year examination at National level NEXT, instead of separate examinations by each university for the final year students.
Both are undoubtedly unconstitutional since the power to regulate universities is within the exclusive domain of the State Legislatures; by that power States have established universities and conferred all necessary power on it by law. Central Government is prohibited to establish or regulate a university. Therefore the Central Government cannot make a law regulating or controlling the matters relating to admission of students into any university, or conduct of examinations by the university.
Opposed to Federal Structure:
The conduct of NEET and NEXT would be tantamount to Union Government taking complete control of all the universities established by State Legislatures by law and subjugating the State government to the Central Government in all matters on education. That amounts to alteration of one of the “BASIC STRUCTURES” of the Constitution. Such alterations cannot be done even by a constitutional amendment. When that is so, it is unimaginable, that it can be done by a mere Act of Parliament. Therefore, for these reasons, the above provisions in Clauses 10 (b), 14 and 15 are likely to be struck down, inter alia as violative of the Basic Structure of the Constitution, by the Hon’ble Supreme Court, as and when it is properly presented before the Supreme Court.
Ranjith Roy Choudary Committee Report:
The Statement of Objects and Reasons appended to the Bill reads that this Bill is introduced in view of the fact that the Supreme Court in Modern Dental College case had “directed the Central Government to consider and take appropriate action on the recommendation of the Roy Choudary Committee”. Direction to consider does not mean a direction to implement the recommendations. The Central Government cannot take shelter or shirk its responsibilities and shift the blame on the Hon’ble Supreme Court for tabling such a Bill in the Parliament.
Public health and Hospitals State Subject:
There is yet another aspect to be considered. List–II, Entry-6, is “Public health and sanitation, hospitals and dispensaries”. That is, the power and the constitutional duty to maintain hospitals, public health and sanitation are imposed only on the States. For manning hospitals in rural areas students from rural areas must be admitted into medical colleges and courses.
The NEET and the NEXT will be a stumbling block for the students from rural areas. Unless States have the right and power to admit students from the rural areas in the medical colleges, the States cannot discharge their Constitutional obligation imposed on the States by Entry- 6, State List.
Rural Hospitals cannot get qualified medical practitioners:
The Central Cabinet has approved certain official amendments on the original Bill. One of them is to remove the provision relating the ‘BRIDGE COURSE’. and to leave “to State Governments to take necessary measures for addressing and promoting primary health care in rural areas”. That means the Central Government wants courses similar to the ‘Bridge Courses’ to be introduced to cater to the rural areas. That is if the Bill is introduced in Parliament, in future, none of all the Primary Health Centres in rural areas will be manned by qualified medical practitioners.
Only the State government would be able to ascertain the problems and solutions therefor. Tamil Nadu in its wisdom have developed a system by granting incentives to such medical practitioners who opt to serve in the rural areas by giving preference in admission to higher studies. But the Bill will be a retrograde step in providing quality medical care to the rural areas.
Each and every provision of the Constitution, including the entries in the VII Schedule, must be interpreted widely. Wherever they overlap, principle of harmonious construction should be resorted so as to give effect to all the provisions. Therefore, in the present issue harmonious interpretation must be made giving space for operation of each and every entry.
Entry 44 Union List –ignored:
The present situation has arisen because Entry- 44 Union List was ignored by all concerned and not properly placed before authorities and before the Hon’ble Supreme Court. The Hon’ble Supreme Court, on 2nd May 2016, in the Modern Dental College Case upheld the power of the State to conduct common entrance examination. It has upheld the law made by State of Madhya Pradesh under Entry 25 List III; not under Entry 32 List -II. That decision was prior to MCI Amendment Ordinance dated 24th May 2016. It appears that the counsels on either side had not drawn the attention of the Supreme Court to Entry 44 List –I. The present Bill also has not taken note of Entry – 44 Union List in the Constitution.
That apart the drafting of the Bill leaves much to be desired. It contains words that are not used in statutes; many words are ambiguous with indefinite meanings. Some such words used are ‘bench mark’, ‘competency based dynamic curriculum’, ‘community medicine’, ‘family medicine’ etc. The Bill does not contain definition for those words; it creates a doubt whether the Bill was drafted by the persons with little experience in drafting. The Bill if passed will create more confusion and would result in more litigation.
“The conduct of NEET and NEXT would be tantamount to Union Government taking complete control of all the universities established by State Legislatures by law and subjugating the State Government to the Central Government in all matters on education. That amounts to alteration of one of the “BASIC STRUCTURES” of the Constitution. Such alterations cannot be done even by a constitutional amendment.”
Conclusion:
The Bill that has been tabled in the Parliament, under Article 117, as a Finance Bill, if passed by the Parliament, will have the effect of altering the Federal System a Basic Structure of Indian Union. It will be another step to take India backwards, to pre 1935 Unitary India. This Bill interferes with the powers of the States and also the powers of the Universities relating to admission of students and conduct of examination in its affiliated medical colleges. The Central Government’s power does not extend to make regulations for the admission of students to any affiliated colleges including medical colleges and conduct of examinations by the universities. No State or University has realised that their rights are denied or curtailed. If all these facts are properly brought to the notice of the Courts, the Courts would pass appropriate orders. Courts are the saviours of rule of law, Constitution and democracy.
