Exclusive Interview with
Justice D. Hariparanthaman (Retd.)
Madras High Court, Chennai
This exclusive interview with Justice
D. Hariparanthaman (Retd.), Madras High Court, is on the Governor’s return of the Tamil Nadu Legislative Assembly Bill, seeking exemption from NEET, that was meant for the assent of the President of India.
Q: How do you view the return of the Bill passed by the Tamil Nadu Legislative Assembly on NEET, by the Governor for reconsideration?
Let me first deal with the sharing of power between the Union Government and the State Governments as provided in the Constitution of India. Seventh Schedule of the Constitution contains ‘Three Lists’, namely Union List, State List and Concurrent List. The Union Government shall alone exercise the Legislative Power relating to the subjects mentioned in the Union List. The Bill relating to any entry in the Union List, has to be passed by both the Houses of Parliament (Rajya Sabha and Lok Sabha). The Bill becomes an Act with the assent of the President.
For any entry in the State List, the Bill has to be passed by both the Legislative Council and Legislative Assembly of State or by the Legislative Assembly, if there is no Legislative Council. The Union Government cannot legislate on the subjects mentioned in the State List. The Bill, that was passed by the State Legislature, becomes an Act with the assent of the Governor of the State.
In respect of the subjects covered under the Concurrent List, both the Union Government and State Governments have power to legislate. However, when a State Government has passed a Bill in the State Legislature on a subject covered by the Concurrent List, the same will become an Act only after receiving the assent of President. Since the Governor has no power to give assent to the Legislation relating to the subject covered by the Concurrent List, the Governor has to simply forward the Bill passed by the State Legislature to the President of India for assent.
Hence, the Governor has no authority to return any Bill passed by the State Legislature on the subject covered by the Concurrent List.
As per the scheme of the Constitution, the assent by the President is based on the aid and advice of the Union Cabinet.
After assent by the President, the State Legislation on the subject in the Concurrent List will occupy the field in the State over the Central Legislation, if any, that occupies the field.
Coming to the Bill that was passed by the Tamil Nadu State Legislature Assembly on 13th September 2021 seeking exemption to NEET for admission in the MBBS Course in Tamil Nadu, the Tamil Nadu Legislature has power to pass the Bill, since the subject ‘Education’ comes under Concurrent List. Hence both the Union Government and State Governments have powers to legislate on the subject ‘Education’. NEET was brought in by Central Legislation traceable to Entry 25 by the Parliamentary Legislation as explained here under and the Tamil Nadu Legislative Assembly has also got power to legislate seeking exemption to NEET as ‘Education’ is in Concurrent List and the legislation will come into effect after the assent of the President.
Q: Could you please explain briefly the history of NEET?
National Eligibility cum Entrance Test, shortly NEET, for Medical and Dental Courses, was introduced by the then UPA Government during 2010 and 2012 respectively. It is the first time that All India Examination for admission to Medical and Dental Courses, namely NEET was introduced at all India level by Regulations framed by the Medical Council of India/Dental Council of India by virtue of powers conferred on them by the Indian Medical Council Act, 1956 and the Dentists Act, 1948.
I like to point out specifically that UPA Government did not introduce NEET by way of amending the Indian Medical Council Act, 1956 and the Dentists Act, 1948 in the Parliament. On the other hand, NEET was introduced by Subordinate Legislation, namely by the Regulations of the Medical Council of India / Dental Council of India.
These Regulations were quashed by the Supreme Court in the Judgement dated 18th July 2013 in CMC Case rendered by a three Judge Bench, while one of the Judges gave dissent Judgement. These Regulations were not implemented and no NEET examinations were held during the UPA regime and these Regulations were stayed by the Supreme Court during pendency of the case referred to above.
Furthermore, since NEET was introduced by way of Regulations only and not by way of amending the Act by the Parliament, The Tamil Nadu Admission in Professional Educational Institutions Act 2006, which received Presidential assent on March 3, 2007 would cover the field relating to the admission of students to Medical and Dental Courses and not the NEET.
But, the Union Government led by Mr. Narendra Modi amended the Indian Medical Council Act, 1956 and the Dentists Act, 1948 in Parliament in 2016 making NEET for admission to Medical and Dental Courses, and the said Acts on receipt of assent by the President, will override The Tamil Nadu Admission in Professional Educational Institutions Act 2006.
Hence, the Tamil Nadu State Legislature passed a Bill on 1st February, 2017, when Mr. O. Pannerselvam was the Chief Minister after the demise of Ms. Jayalalitha, seeking to exempt NEET for admission to Medical Courses in Tamil Nadu.
The same was sent for assent to the President by the then Governor of the State. However, no one knows about the same thereafter and the people of Tamil Nadu were kept in dark on the issue.
In 2019, the Indian Medical Council Act, 1956 was repealed and the National Medical Commission Act, 2019, shortly the NMC Act, 2019, was passed by the Parliament and the same became Act on the receipt of the Presidential assent. The NMC Act, 2019 again made NEET for admission to Medical Courses, while the Dentists Act, 1948 that was amended in 2016 introduced NEET for Dental Admission, as stated already.
Hence, the Tamil Nadu Legislative Assembly passed the Bill on 13th September 2021, when Mr. M.K. Stalin is the Chief Minister, seeking exemption to NEET for Tamil Nadu. The Governor of Tamil Nadu slept over the matter for more than 4 months, without sending the Bill to the President for assent. Though the Chief Minister met the Governor and sought him to send the Bill to the President for assent, the Governor simply ignored. Mr. Amit Shah, Union Home Minister, refused to give appointment for meeting the MPs belonging to all parties in Tamil Nadu. The Chief Minister spoke about all the above facts in the Legislative Assembly. Then only, the Union Home Minister met the MPs in the 3rd week of January, 2022. Even thereafter, the Governor did not choose to send the Bill to the President for assent. There was an agitation on 30th January, 2022 wherein all political parties participated seeking the Governor to forward the Bill to the President for assent. Only after all these events, the Governor returned the Bill to the Legislative Assembly of Tamil Nadu to reconsider the Bill.
In fact, it is relevant to mention that the Parliamentary Standing Committee appointed during the present regime of BJP gave its report known as 92nd Report which makes it clear that States which seek exemption for NEET shall be granted. This is based on the principle of federalism and also that the subject ’Education’ is in Concurrent List. But the Report submitted by Parliamentary Standing Committee was given a go-bye by the BJP led Parliament.
Q: The Governor of Tamil Nadu retuned the Bill citing the Judgement of the Supreme Court in Christian Medical College case, shortly CMC case, in 2020, and also stating that NEET is beneficial to rural and poor students. Your views on the same please?
Let me first deal with rural and poor students. According to the Governor, the rural and poor students are benefited by NEET. Hence, he wanted the State Legislature to reconsider the Bill seeking exemption to NEET for Tamil Nadu.
Everyone knows that in order to get higher score in NEET to get admission in Government Medical Colleges / Dental Colleges, the students have to get admitted in Coaching Centers by spending lakhs of rupees. Rural and poor students cannot afford to join the Coaching Centers. Further, the A.K. Rajan Committee, appointed by the Tamil Nadu Government to give a report on the effects of NEET in Tamil Nadu, gave a report based on the details collected from the people and after deliberations that rural and poor students are the worst affected by the NEET since they could not join Coaching Centers by spending huge money. Hence, the people of Tamil Nadu will certainly reject the reasons given by the Governor for returning the Bill that NEET benefits rural and poor students.Further, rural and poor students normally study only in the Schools under the State Board and not in CBSE Schools, while NEET is based on CBSE Syllabus.
The other reason is purely a legal one. The Governor relies on the judgement of Supreme Court in Christian Medical College case in 2020, shortly CMC case. It requires me to trace the history of the CMC case.
CMC is a minority private medical college in Tamil Nadu. CMC and other minority private medical colleges as well as non-minority private medical colleges spread over in India filed cases challenging the Regulations referred to above in 2010 and 2012 that brought NEET for admission to Medical Courses and Dental Courses by UPA Government.
In 2013, a Three – Judge Bench led by the then Chief Justice Altamas Kabir quashed the Regulations, by a majority of Two Judges and one Judge gave his dissent verdict. The said judgement dated 13th July 2013 accepted the arguments of the minority / non-minority private medical colleges that NEET encroached on the rights of the minorities guaranteed in the Constitution and also infringes the Fundamental Rights guaranteed under Article 19 (1) (g) of the Constitution to establish Higher Educational Institutions as recognised by 11Judges Bench of the Supreme Court in TMA Pai case.
The UPA Government filed a review petition. Before the review petition was decided, the UPA Government lost in the 2014 Parliamentary Elections. The BJP came to power.
While so, notable development took place.
In 2007, Madhya Pradesh State enacted a Law relating to admission to Medical Courses. The said Law provided for Entrance Examination being conducted by the State Government for admission to Medical Courses. The Law received the assent of the President. The Law was challenged by the Private Medical Colleges before the Madhya Pradesh High Court. These Medical Colleges contended that the Law infringes the Fundamental Rights guaranteed under Article 19(1)(g) of the Constitution and that the State Government cannot legislate providing for Entrance Examination. Both the contentions were rejected and the Law was upheld by the Madhya Pradesh High Court. The Private Medical Colleges approached the Supreme Court and challenged the said judgement of the Madhya Pradesh High Court.
The appeals filed by the Private Medical Colleges against the judgement of the Madhya Pradesh High Court was heard by a Constitution Bench of 5 Judges of the Supreme Court. The review petition filed by the UPA Government seeking to review the judgement dated 13th July 2013 was also listed before the same Bench. The said Constitution Bench, on hearing the arguments in the appeals referred to above, recalled the judgement dated 13th July 2013 in 2016 and sent back the CMC case for fresh consideration by a 3 Judges Bench. The Constitution Bench delivered a unanimous judgement on 02.05.2016 upholding the judgement of the Madhya Pradesh High Court. The said judgement is known as the judgement in ‘Modern Dental College’ case.
The judgement of the Constitution Bench in Modern Dental College Case categorically held that Education being in Concurrent List, the States have legislative power to make legislations for admission of students to Medical Courses and such legislations will come into effect on getting assent of President as provided under Article 254 of the Constitution. A separate but concurring judgement was delivered by Justice R. Banumathi. In the said Judgement, it is held that since the States are administering / supervising the Medical Colleges including Private Medical Colleges in the State, the States are more appropriate to legislate on the admission to Medical Courses, though ‘Education’ is in Concurrent List.
The CMC case was heard by a 3 Judges Bench after the same was sent back for fresh hearing as stated above and the 3 Judges Bench rendered its Judgement in 2020 rejecting the contentions of the Private Medical Colleges. The said Judgement does not deal with the rights of the State Governments to legislate on Medical Admission based on Entry 25 (Education) in Concurrent List. Hence, the Governor is erroneous in citing the CMC case while returning the Bill.
Q: Please explain the scope of the Bill passed by the Tamil Nadu Legislative Assembly on 13th September, 2021.
The Bill seeks exemption from NEET only to Government Medical Colleges and Government seats in Private Medical Colleges, for MBBS Course. That too, for only 85% of seats in Government Medical Colleges, since 15% of the seats are surrendered to All India Quota. It is pertinent to point out that Tamil Nadu alone has 37 Government Medical Colleges and the policy of the Tamil Nadu Government is atleast to have one Government Medical College for a District. No other State in India has this credit. Neither Gujarat Government that was once led by Mr. Narendra Modi nor the Uttar Pradesh Government led by Mr. Yogi Adiyanath has Government Medical Colleges as in Tamil Nadu. These States have a few Government Medical Colleges in contrast to Tamil Nadu. Further, in Tamil Nadu alone, Private Medical Colleges have to surrender 50% of seats to Government. In the rest of the Management seats of the Private Colleges and for the seats in Deemed Medical Universities, those seats are filled based on NEET. That is, the Bill confines to the seats in Government Medical Colleges and the Government seats in Private Medical Colleges. It is a known fact that the fees for Medical Courses in Government Medical Colleges in Tamil Nadu is less than the fees for LKG.
The Bill that was passed on getting assent of the President will become law and NEET will be exempted for admission to Medical Courses in Tamil Nadu and admission will be based on +2 marks, that was in vogue from 2007 based on the aforesaid 2006 Act.
Q: Please explain the legislations passed by the Tamil Nadu Legislative Assembly on the subjects in Concurrent List, while there are Central Acts passed by the Parliament on those subjects in occupation of the fields.
The subject “Marriage” is Entry 5 in Concurrent List. The Parliament passed the Hindu Marriages Act, 1956 that applies to all over India. In fact, while the Constituent Assembly functioned also as the Parliament, Dr. B.R. Ambedkar introduced the Hindu Code Bill, but the same was not even taken up for discussion for four years that led to his resignation in protest on 27.09.1951. As per the Hindu Marriages Act, 1956, the marriages performed between a Male Hindu and Female Hindu is a valid marriage only if the customs, rites and rituals are followed.
Arignar Anna became the Chief Minister of Tamil Nadu in 1967 and in 1968, the Tamil Nadu Legislative Assembly passed a Bill validating “Suyamariyathai” (self-respect) marriages among two Hindus by inserting Section 7-A to the Hindu Marriages Act. The Bill received assent of the President and Section 7—A of the Hindu Marriages Act came into force in Tamil Nadu and the same is applicable and confined to Tamil Nadu. That is, two Hindus in other States cannot marry validly without performing customs, rites and rituals as provided in the Hindu Marriages Act, 1956.
The subject “Industrial and Labour Disputes” is Entry 22 in Concurrent List. Industrial Disputes Act, 1947 is the legislation enacted by the Parliament and the same is applicable to all the States. Section 2 A of the Industrial Disputes Act, 1947 makes it mandatory that individual workman, who is terminated from service, can approach the Labour Court only after the State Government makes reference of the industrial disputes relating to non-employment of workman to Labour Court for adjudication. But, there was an amendment in Tamil Nadu during 1987, introducing Sub Section 2 to Section 2A of the Industrial Disputes Act, 1947 that provides for the workman to approach the Labour Court directly filing a case before the Labour Court on his non-employment. That is, in other States, only if the Government refers the dispute, the workman could file a case before the Labour Court. If the Government refuses to refer the dispute for adjudication, then the workman has to challenge the order of the Government refusing to refer the dispute before the High Court and then a Division Bench of High Court and thereafter before the Supreme Court, as the employer will not leave the matter without taking the issue upto the Supreme Court. Hence, the issue of non-employment is given a go-bye and instead the issue would be as to whether the Government is justified in declining to refer the industrial dispute for adjudication by Labour Court. The same is the case with regard to workman employed in the establishments that are under the control and jurisdiction of the Labour Department of the Central Government. That is, workmen in Banks, LIC etc., shall have to look for a reference by the Central Government to the Central Government Labour Court for adjudication.
Likewise, the subject “Prevention of Cruelty to Animals” is Entry 17 in Concurrent List. The Prevention of Cruelty to Animals Act, 1960 was passed by the Parliament. The Act enumerates various actions in Section 11 (1) of the said Act, 1960 as causing cruelty to animals, while the same Act in Section 11 (3) states that certain actions such as killing animals for food, sacrificing animals in the temples, dehorning of cattle, castration or branding or nose-roping of any animal, destruction of stray dogs in lethal chambers etc., are not causing cruelty to animals.
The Supreme Court, while interpreting Section 11 (1) of the Act, 1960, held that the Jallikattu played in Tamil Nadu causes cruelty to the animals involved in the play and banned the same in 2014. There were agitations every year during the Pongal festival and in 2017 there were unprecedented agitations all over the Tamil Nadu, leading to passing of a Bill in Tamil Nadu Assembly declaring that Jallikattu is not causing cruelty to animals by adding Jallikattu as Sub-Section (e) of Section 11 (3) of the Act, 1960. That received assent of the President immediately in no time and the same became Act. Thus, Jallikattu becomes legal in Tamil Nadu alone and Section 11 (3) (e) in the Tamil Nadu Legislation confined to Tamil Nadu.
The very purpose of Concurrent List is for legislation by the Union Government as well as the State Governments. The Union Government shall not interfere in the legislative actions of the State Governments on the subjects covered under Concurrent List by various means that are not constitutional. Federalism is the basic structure of the Constitution and if the States are not permitted to legislate on the subjects in Concurrent List by the Union Government by adopting various ways, the same will weaken the federalism.
Interviewed by: V. Kumaresan