Reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40580
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
T.C.(C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS ...Petitioners
VERSUS
UNION OF INDIA AND ORS. ...Respondents
WITH T.C.(C) NO.99/2012
T.C.(C) NO.101/2012
T.C.(C) NO.100/2012
T.C.(C) NO.102/2012
T.C.(C) NO.103/2012
W.P.(C) NO.480/2012
T.C.(C) NO.104/2012
T.C.(C) NO.105/2012
W.P.(C) NO.468/2012
W.P.(C) NO.467/2012
W.P.(C) NO.478/2012
T.C.(C) NO.107/2012
T.C.(C) NO.108/2012
W.P.(C) NO.481/2012
W.P.(C) NO.464/2012
T.C.(C) NO.110/2012
T.C.(C) NOS.132-134/2012
T.C.(C) NOS.117-118/2012
T.C.(C) NOS.115-116/2012
T.C.(C) NOS.125-127/2012
T.C.(C) NOS.113-114/2012
T.C.(C) NOS.128-130/2012
T.C.(C) NOS.121-122/2012
T.C.(C) NO.112/2012
T.C.(C) NO.131/2012
T.C.(C) NOS.123-124/2012
T.C.(C) NO.111/2012
T.C.(C) NO.120/2012
T.C.(C) NO.119/2012
T.C.(C) NOS.135-137/2012
T.C.(C) NOS.138-139/2012
W.P.(C) NO.495/2012
W.P.(C) NO.511/2012
W.P.(C) NO.512/2012
W.P.(C) NO.514/2012
W.P.(C) NO.516/2012
W.P.(C) NO.519/2012
W.P.(C) NO.535/2012
T.C.(C) NO.142/2012 @ T.P.(C) NO.364/2012
W.P.(C) NO.544/2012
W.P.(C) NO.546/2012
W.P.(C) NO.547/2012
T.C.(C) NO.144/2012 @ T.P.(C) NO.1524/2012 & 1447/2012
T.C.(C) NO.145/2012
T.C.(C) NO.1/2013 @ T.P.(C) NO.1527/2012
T.C.(C) NOS.14-15/2013 @ T.P.(C) NOS.1672-1673/2012
T.C.(C) NO.76/2013 @ T.P.(C) NO.1702/2012
T.C.(C) NO.12-13/2013
T.C.(C) NO.4/2013
T.C.(C) NO.11/2013
T.C.(C) NOS.21-22/2013 @ T.P.(C) NO.1714-1715/2012
T.C.(C) NO.5/2013 @ T.P.(C) NO.1718/2012
W.P.(C) NO.2/2013
W.P.(C) NO.1/2013
T.C.(C) NO.60/2013 @ T.P.(C) NO.12/2013
W.P.(C) NO.13/2013
W.P.(C) NO.15/2013
W.P.(C) NO.16/2013
W.P.(C) NO.20/2013
T.C.(C) NO....../2013 @ T.P.(C) NO.31/2013
T.C.(C) NO.2/2013 @ T.P.(C) NO.1532/2012
T.C.(C) NO.8/2013
T.C.(C) NO.3/2013 @ T.P.(C) NO.1533/2012
W.P.(C) NO.24/2013
T.C.(C) NO.9/2013
T.C.(C) NO.17/2013 @ T.P.(C) NO.1588/2012
W.P.(C) NO.483/2012
W.P.(C) NO.501/2012
W.P.(C) NO.502/2012
W.P.(C) NO.504/2012
W.P.(C) NO.507/2012
T.C.(C) NO.10/2013
T.C.(C) NO.7/2013 @ T.P.(C) NO.1644/2012
T.C.(C) NO.18/2013 @ T.P.(C) NO.1645/2012
T.C.(C) NO.75/2013 @ T.P.(C) NO.1647/2012
T.C.(C) NO.19/2013 @ T.P.(C) NO.1653/2012
T.C.(C) NO.20/2013 @ T.P.(C) NO.1654/2012
T.C.(C) NO.59/2013 @ T.P.(C) NO.1656/2012
T.C.(C) NO.53/2013 @ T.P.(C) NO.1658/2012
T.C.(C) NO.25/2013 @ T.P.(C) NO.1671/2012
T.C.(C) NO.23-24/2013 @ T.P.(C) NO.1697-1698/2012
T.C.(C) NO.58/2013 @ T.P.(C) NO.1/2013
W.P.(C) NO.27/2013
T.C.(C) NO.72/2013 @ T.P.(C) NO.58/2013
T.C.(C) NO.16/2013
T.C.(C) NO.61/2013
T.C.(C) NO.73/2013 @ T.P.(C) NO.75/2013
T.C.(C) NO....../2013 @ T.P.(C) NO.79/2013
T.C.(C) NO.62/2013
W.P.(C) NO.47/2013
T.C.(C) NO.28-29/2013
T.C.(C) NO.30/2013
T.C.(C) NO.31-32/2013
T.C.(C) NO.33-36/2013
T.C.(C) NO.37-38/2013
T.C.(C) NO.39/2013
T.C.(C) NO.40/2013
T.C.(C) NO.41/2013
T.C.(C) NO.42/2013
T.C.(C) NO.43/2013
T.C.(C) NO.44/2013
T.C.(C) NO.45/2013
T.C.(C) NO.46/2013
T.C.(C) NO.47/2013
T.C.(C) NO.48/2013
T.C.(C) NO.49/2013
W.P.(C) NO.66/2013
W.P.(C) NO.76/2013
W.P.(C) NO.74/2013
T.C.(C) NOS.63-65/2013
T.C.(C) NOS.66-69/2013
T.C.(C) NOS.70-71/2013
W.P.(C) NO.41/2013
W.P.(C) NO.228/2013
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Four notifications, two dated 21.12.2010 and the other two dated
31.5.2012, issued by the Medical Council of India and the Dental Council of
India, are the subject matter of challenge in all these matters which have
been heard together by us. Notification No. MCI-31(1)/2010-MED/49068
described as "Regulations on Graduate Medical Education (Amendment) 2010,
(Part II)" has been published by the Medical Council of India to amend the
"Regulations on Graduate Medical Education, 1997". Notification
No.MCI.18(1)/2010-MED/49070 described as "Post-graduate Medical Education
(Amendment) Regulation, 2010 (Part II)" has been issued by the said Council
to amend the "Post Graduate Medical Education Regulations, 2000". Both the
Regulations came into force simultaneously on their publication in the
Official Gazette. The third and fourth Notifications both bearing No. DE-
22-2012 dated 31.5.2012, relating to admission in the BDS and MDS courses
published by the Dental Council of India, are similar to the notifications
published by the MCI.
2. The four aforesaid Notifications have been challenged on several
grounds. The major areas of challenge to the aforesaid Notifications are:
(i) The powers of the Medical Council of India and the Dental Council
of India to regulate the process of admissions into medical colleges
and institutions run by the State Governments, private individuals
(aided and unaided), educational institutions run by religious and
linguistic minorities, in the guise of laying down minimum standards
of medical education, as provided for in Section 19A of the Indian
Medical Council Act, 1956, and under Entry 66 of List I of the
Seventh Schedule to the Constitution.
(ii) Whether the introduction of one National Eligibility-cum-Entrance
Test (NEET) offends 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?
(iii) Whether NEET violates the rights of religious and linguistic
minorities to establish and administer educational institutions of
their choice, as guaranteed under Article 30 of the Constitution?
(iv) Whether subordinate legislation, such as the right to frame
Regulations, flowing from a power given under a statute, can have an
overriding effect over the fundamental rights guaranteed under
Articles 25, 26, 29(1) and 30 of the Constitution?
(v) Whether the exclusion of Entry 11 from the State List and the
introduction of Entry 25 in the Concurrent List by the Constitution
Forty Second (Amendment) Act, 1976, makes any difference as far as
the Regulations framed by the Medical Council of India under Section
33 of the 1956 Act and those framed by the Dental Council of India
under Section 20 of the Dentists Act, 1948, are concerned, and
whether such Regulations would have primacy over State legislation on
the same subject?
(vi) Whether the aforesaid questions have been adequately answered in
T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], and
in the subsequent decisions in Islamic Academy of Education Vs. State
of Karnataka [(2003) 6 SCC 697], P.A. Inamdar Vs. State of
Maharashtra [(2005) 6 SCC 537] and Indian Medical Association Vs.
Union of India [(2011) 7 SCC 179]? and
(vii) Whether the views expressed by the Constitution Bench comprised of
Five Judges in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC
120] have any impact on the issues raised in this batch of matters?
3. In order to appreciate the challenge thrown to the four
notifications, it is necessary to understand the functions and duties of
the Medical Council of India under the Indian Medical Council Act, 1956,
and the Dental Council of India constituted under the Dentists Act, 1948.
The submissions advanced in regard to the MBBS and Post-graduate courses
will apply to the BDS and MDS courses also.
4. The Indian Medical Council Act, 1933, was replaced by the Indian
Medical Council Act, 1956, hereinafter referred to as "the 1956 Act", inter
alia, with the following objects in mind :-
"(a) to give representation to licentiate members of the medical
profession, a large number of whom are still practicing in the
country;
(b) to provide for the registration of the names of citizens of
India who have obtained foreign medical qualifications which
are not at present recognized under the existing Act;
(c) to provide for the temporary recognition of medical
qualifi-cations granted by medical institutions in countries
outside India with which no scheme of reciprocity exists in
cases where the medical practitioners concerned are
attached for the time being to any medical institution in India
for the purpose of teaching or research or for any charitable
objects;
(d) to provide for the formation of a Committee of Post-
graduate Medical Education for the purpose of assisting the
Medical Council of India to prescribe standards of post-graduate
medical education for the guidance of universities and to
advise universities in the matter of securing uniform standards
for post-graduate medical education throughout India;
(e) To provide for the maintenance of an all-India
register by the Medical Council of India, which will contain the
names of all the medical practitioners possessing recognized
medical qualifications."
5. The Medical Council of India, hereinafter referred to as "MCI", has
been defined in Section 2(b) of the 1956 Act to mean the Medical Council of
India constituted under the said Act. The Council was constituted under
Section 3 of the Indian Medical Council Act, 1956. Section 6 of the
aforesaid Act provides for the incorporation of the Council as a body
corporate by the name of Medical Council of India, having perpetual
succession and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and to sue and be sued by the said
name.
6. The powers vested in the MCI are essentially recommendatory in
nature. Section 10A, which was introduced in the 1956 Act by Amending Act
31 of 1993, with effect from 27th August, 1992, inter alia, provides that
notwithstanding anything contained in the Act or any other law for the time
being in force:-
(a) no person shall establish a medical college; or
(b) no medical college shall :-
(i) open a new or higher course of study or training
(including a postgraduate course of study or training) which would
enable a student of such course or training to qualify himself for
the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of
study or training (including a postgraduate course of study or training),
except with the previous permission of the Central Government obtained in
accordance with the provisions of this section.
Under Section 10A the function of the MCI is purely recommendatory
for the purpose of grant of permission by the Central Government to
establish a new medical college or to introduce a new course of study.
7. Section 19A which was introduced into the 1956 Act by Act 24 of
1964 with effect from 16th June, 1964, provides for the Council to
prescribe "minimum standards of medical education". Since Section 19A will
have some bearing on the judgment itself, the same is extracted hereinbelow
in full :-
"19A. Minimum standards of medical education - (1) The Council
may prescribe the minimum standards of medical education
required for granting recognised medical qualifications (other
than postgraduate medical qualifications) by universities or
medical institutions in India.
(ii) Copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Council to all
State Governments and the Council shall before submitting the
regulations or any amendment thereof, as the case may be, to the
Central Government for sanction, take into consideration the
comments of any State Government received within three months
from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council
on the efficacy of the regulations and may recommend to the
Council such amendments thereof as it may think fit."
8. Section 20 of the 1956 Act, provides for a Post-graduate Medical
Education Committee to assist the Medical Council of India to prescribe
standards of post-graduate medical education for the guidance of the
Universities. For the sake of reference, the relevant portions of Section
20 of the 1956 Act with which we are concerned, are also extracted
hereinbelow :-
"20. Post-graduate Medical Education Committee for assisting
Council in matters relating to post-graduate medical education -
(1) The Council may prescribe standards of Postgraduate Medical
Education for the guidance of Universities, and may advise
Universities in the matter of securing uniform standards for
Postgraduate Medical Education through out India, and for this
purpose the Central Govt. may constitute from among the members
of the Council a Postgraduate Medical Education Committee
(hereinafter referred to as the Post-graduate Committee).
9. By the first of the two Notifications dated 21st December, 2010,
being MCI-31(1)/2010-Med./49068, the Medical Council of India, in purported
exercise of the powers conferred by Section 33 of the 1956 Act, made
various amendments to the 1997 Regulations on Graduate Medical Education.
The most significant amendment, which is also the subject matter of
challenge in some of these writ petitions and transferred cases, is clause
5 in Chapter II of the Regulations. The relevant paragraph in the
Amendment Notification reads as follows:
"6. In Chapter II, Clause 5 under the heading "Procedure for
selection to MBBS Course shall be as follows" shall be
substituted as under:-
I. There shall be a single eligibility cum entrance
examination namely 'National Eligibility-cum-Entrance Test for
admission to MBBS course' in each academic year. The overall
superintendence, direction and control of National Eligibility-
cum-Entrance Test shall vest with Medical Council of India.
However, Medical Council of India with the previous approval of
the Central Government shall select organization/s to conduct
'National Eligibility-cum-Entrance Test for admission to MBBS
course.
II. In order to be eligible for admission to MBBS course for a
particular academic year, it shall be necessary for a candidate
to obtain minimum of 50% (Fifty Percent) marks in each paper of
National Eligibility-cum-Entrance Test held for the said
academic year. However, in respect of candidates belonging to
Scheduled Casts, Scheduled Tribes and Other Backward Classes,
the minimum percentage shall be 40% (Forty Percent) in each
paper and in respect of candidates with locomotory disability of
lower limbs, the minimum percentage marks shall be 45% (Forty
Five Percent) in each paper of National Eligibility-cum-Entrance
Test:
Provided when sufficient number of candidates belonging to
respective categories fail to secure minimum marks as prescribed
in National Eligibility-cum-Entrance Test in any academic year
for admission to MBBS Course, the Central Government in
consultation with Medical Council of India may at its discretion
lower the minimum marks required for admission to MBBS Course
for candidates belonging to respective categories and marks so
lowered by the Central Government shall be applicable for the
said year only.
III. The reservation of seats in medical colleges for respective
categories shall be as per applicable laws prevailing in States/
Union Territories. An all India merit list as well as State-
wise merit list of the eligible candidates shall be prepared on
the basis of the marks obtained in National Eligibility-cum-
Entrance Test and candidates shall be admitted to MBBS course
from the said lists only.
IV. No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Sub Clause(ii) above shall be
admitted to MBBS Course in the said academic year.
V. All admissions to MBBS course within the respective
categories shall be based solely on marks obtained in the
National Eligibility-cum-Entrance Test.
(Dr. P. Prasannaraj)
Additional Secretary
Medical Council of India"
10. Similarly, by virtue of Notification No. MCI.18(1)/2010-Med./49070,
in purported exercise of the powers conferred by Section 33 of the 1956
Act, the Medical Council of India, with the previous approval of the
Central Government, made similar amendments to the Postgraduate Medical
Education Regulations, 2000, providing for a single eligibility cum
entrance examination. For the sake of reference, the portion of the
notification which is relevant for our purpose is extracted hereinbelow:
"No. MCI.18(1)/2010-Med./49070. – In exercise of the powers
conferred by Section 33 of the Indian Medical Council Act,
1956(102 of 1956), the Medical Council of India with the
previous approval of the Central Government hereby makes the
following regulations to further amend the “Postgraduate Medical
Education Regulations, 2000”, namely:-
1. (i) These Regulations may be called the Postgraduate Medical
Education (Amendment) Regulations, 2010 (Part-II)”.
(ii) They shall come into force from the date of their
publication in the Official Gazette.
2. In the “Postgraduate Medical Education Regulations, 2000”,
the following additions /modifications / deletions /
substitutions, shall be as indicated therein:-
3. Clause 9 under the heading ‘SELECTION OF POSTGRADUATE
STUDENTS’ shall be substituted as under:-
“9. Procedure for selection of candidate for Postgraduate
courses shall be as follows:
I. There shall be a single eligibility cum entrance
examination namely ‘National Eligibility-cum-Entrance Test for
admission to Postgraduate Medical Courses’ in each academic
year. The overall superintendence, direction and control of
National Eligibility-cum-Entrance Test shall vest with Medical
Council of India. However, Medical Council of India with the
previous approval of the Central Government shall select
organization/s to conduct ‘National Eligibility-cum-Entrance
Test for admission to Postgraduate courses’."
Two similar Notifications both bearing No.DE-22-2012 dated
31.5.2012, were published by the Dental Council of India for the same
purpose.
11. The challenge to these Notifications has thrown up various issues,
which include the powers of the Central and the State Governments to
legislate on matters relating to education under Entry 66 of List I of the
Seventh Schedule to the Constitution and Entry 25 of List III which was
introduced by way of the Constitution (Forty-second Amendment) Act, 1976,
having particular regard to the fact that the previous Entry No. 11 in the
State List, was omitted by the said amendment, doing away with education as
a State subject and denuding the State of its powers to legislate on
matters relating to education except in accordance with Entry 25 of the
Concurrent List. In fact, what has been pointed out on behalf of some of
the parties is that by omitting Entry 11 from the State List and including
Entry 25 in the Concurrent List of the Seventh Schedule, the Union
Government acquired the authority to also legislate on matters relating to
education, which it did not have previously.
12. Another common submission, which is of great significance as far as
these matters are concerned, was with regard to the adverse impact of the
single entrance examination on the fundamental right guaranteed to all
citizens under Article 19(1)(g) of the Constitution to practise any
profession, or to carry on any occupation, trade or business. The
provisions of Article 30, preserving the right of both religious and
linguistic minorities, to establish and administer educational institutions
of their choice, were also highlighted by learned counsel for some of the
Petitioners.
13. The major challenge, however, was with regard to the MCI's attempt
to regulate admissions to the M.B.B.S. and Post-graduate Courses in all
medical colleges and medical institutions in the country run by the
different State Governments and by private agencies falling within the
ambit of Article 19(1)(g) and in some cases Article 30 of the Constitution
as well by introducing NEET. One of the facets of such challenge was the
inter-play of Article 29(2) and Article 30(1), as also Article 30(2) of the
Constitution. Various authorities have been cited on behalf of the
different parties, harking back to the Presidential Reference in the Kerala
Education Bill case [(1959] S.C.R. 995], and the subsequent views, which
have been expressed on most of the aforesaid issues by various combinations
of Judges, which include combinations of Eleven-Judges, Nine-Judges, Seven-
Judges, Five-Judges and Three-Judges, of this Court. While most of the
decisions touch upon the main theme in these matters regarding the right of
either the Central Government or the State Government or the MCI to
regulate admissions into medical colleges, the issue raised before us
concerning the authority of the MCI and the DCI to conduct an All India
Entrance Examination, which will form the basis of admissions into the
M.B.B.S. as well as Post-graduate Courses in all medical colleges and
institutions all over the country, could not be considered in the earlier
judgments. As a result, after the introduction of NEET, admissions to the
M.B.B.S. and Post-graduate courses and the BDS and MDS courses can be made
only on the basis of the Select List prepared in accordance with the
results of the All India Entrance Test, which would not only eliminate a
large number of applicants from admission to the medical colleges, but
would also destroy the very essence of Articles 25, 26, 29(1) and 30 of the
Constitution, since admission is one of the more important functions of an
institution.
14. The submissions in these cases were commenced by Mr. Harish Salve,
learned senior counsel appearing for the Christian Medical College,
Vellore, and the Christian Medical College, Ludhiana, the Petitioners in
Transferred Cases (C) Nos. 98-99 of 2012. Mr. Salve's submissions were
supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan, Mr. K.K. Venugopal and
Mr. R. Venkataramani, learned senior counsel, and several others appearing
for some of the religious and linguistic minorities referred to in Article
30 of the Constitution.
15. Mr. Salve submitted that the two Notifications both dated 21st
December, 2010, incorporating amendments in the Regulations on Graduate
Medical Education, 1997 and the Post-Graduate Medical Education
Regulations, 2000, and introducing a single National Eligibility-cum-
Entrance Test (NEET) for admission to the MBBS course and the Post-graduate
course in each academic year throughout the country, had been challenged by
the Petitioners before the Madras High Court, in Writ Petition Nos.24109 of
2011 and 24110 of 2011. Mr. Salve urged that the said amendments stifled
and stultified the fundamental rights guaranteed to religious minorities
under Articles 25, 26, 29(1) and 30 of the Constitution of India. Mr.
Salve submitted that Article 25 secures to every person, subject to public
order, health and morality and to the other provisions of Part-III of the
Constitution, freedom of conscience and the right freely to profess,
practise and propagate religion. The said right guarantees to every person
freedom not only to entertain such religious belief, but also to exhibit
his belief in such outward acts as he thought proper and to propagate or
disseminate his ideas for the edification of others. Mr. Salve urged that
this proposition was settled by this Court as far back as in 1954 by a
Bench of Seven-Judges in Commr., H.R.E. Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [1954 SCR 1005].
16. Mr. Salve submitted that subject to public order, morality and
health, Article 26 of the Constitution guarantees to every religious
denomination or a section thereof, the right to establish and maintain
institutions for religious and charitable purposes and to manage its own
affairs in matters of religion. Mr. Salve urged that in regard to affairs
in matters of religion, the right of management given to a religious body
is a guaranteed fundamental right which no legislation can take away. Mr.
Salve submitted that Article 30(1) of the Constitution gives religious and
linguistic minorities the right to establish and to administer educational
institutions of their choice, which was reiterated and emphasised in T.M.A.
Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], decided by a
Bench of Eleven Judges.
17. Mr. Salve submitted that the Christian Medical College, Vellore,
hereinafter referred to as "CMC Vellore", was established 113 years ago as
a one-bed clinic by one Dr. Ida Sophia Scudder, the daughter of an American
Medical Missionary. She started training Compounders (Health Assistants) in
1903 and Nurses in 1909, and was able to establish a Missionary Medical
School for women leading to the Licentiate in Medical Practice in 1918
which was upgraded to the MBBS course affiliated to the Madras University.
Admission was thrown open to men for the MBBS course in 1947. As the
college grew, from 1948 it started admitting students by an All-India
Entrance Examination, followed by an in-depth interview. By 1950, the
affiliation to the University was confirmed and the intake was increased to
60 under-graduate MBBS students in 1964, which has now increased to 100
MBBS students. To meet the needs of the local population, a large number
of Higher Speciality Courses, Post-graduate Medical Courses, Allied Health
Sciences Courses and Courses in Nursing, have also been developed over the
years.
18. Currently, there are 11 Post-graduate Medical Diploma Courses, 23
Post-graduate Medical Degree Courses and 17 Higher Specialty Courses
approved by the Medical Council of India and affiliated to the Tamil Nadu
Dr. MGR Medical University. Today, the CMC Vellore, a minority, unaided,
non-capitation fee educational institution, is run by the Petitioner
Association comprised of 53 Christian Churches and Christian Organizations
belonging to the Protestant and Orthodox traditions. The stated object of
the Petitioner Association, as mentioned in its Memorandum of Association,
Constitution and the Bye-laws is "the establishment, maintenance and
development of a Christian Medical College and Hospitals, in India, where
women and men shall receive education of the highest grade in the art and
science of medicine and of nursing, or in one or other of the related
professions, to equip them in the spirit of Christ for service in the
relief of suffering and the promotion of health".
19. Out of 100 seats available for the under-graduate MBBS Course, 84
are reserved for candidates from the Christian community and the remaining
are available for selection in the open category with reservation for
candidates belonging to the Scheduled Castes and Scheduled Tribes.
Similarly, 50% of the Post-graduate seats are reserved for Christian
candidates and the remaining 50% are available for open selection on an All-
India basis. Mr. Salve submitted that all students selected for the MBBS
course are required to sign a bond agreeing to serve for a period of two
years in areas of need, upon completion of their courses. Similarly, Post-
graduate students selected in the Christian minority category have also to
give a similar undertaking.
20. Mr. Salve submitted that the Medical Colleges and institutions run
by the Writ Petitioners charge fees which are subsidised and are even
lower than the fees charged by Government Medical Colleges. Liberal
scholarships are given by the College to those who have difficulty in
making the payments, which include boarding, lodging and University charges
(which are considerably higher). Learned counsel submitted that the
institution was established by a Christian minority doctor in response to
her religious beliefs and the command of Jesus Christ exhorting His
disciples and followers to heal the sick and has evolved an admission
process for both its undergraduate and post graduate courses in order to
ensure that the selected candidates are suitable for being trained
according to the ideology professed at Vellore. Mr. Salve urged that the
selection process is comprised of an All India Entrance Test followed by a
searching interview and special test devised in 1948. Such process has
been improved and fine-tuned over the years so that the candidates are not
only trained as health professionals, but to also serve in areas of need in
difficult circumstances.
21. It was pointed out that this system of admission resorted to by the
Petitioner has successfully reflected the ideals with which the medical
college was founded and a survey conducted in 1992 established the fact
that the majority of graduates and post-graduates, who have passed out from
the college, have been working in India for more than 10 years after their
graduation and the majority among them were working in non-metropolitan
areas of the country. This evaluation remained the same, even during
surveys conducted in 2002 and 2010, and is in striking contrast to similar
surveys carried out by other medical institutions of equal standard, where
only a small number of graduates have been working in non-metropolitan
areas.
22. Mr. Salve submitted that in 1993, an attempt was made by the
Government of Tamil Nadu to interfere with the admission process in the
institution by a letter dated 7th May, 1993, directing the Petitioner to
implement the scheme framed by this Court in the case of Unni Krishnan Vs.
State of U.P. [(1993) 1 SCC 645], insofar as the undergraduate course in
Nursing was concerned. The Petitioner-institution filed Writ Petition
No.482 of 1993 before this Court challenging the State Government's
attempts to interfere with the admission process of the institution as
being contrary to and in violation of the rights guaranteed to it under
Article 30 of the Constitution. In the pending Writ Petition, various
interim orders were passed by the Constitution Bench of this Court
permitting the institution to take resort to its own admission procedure
for the undergraduate course in the same manner in which it had been doing
in the past. The said Writ Petition was heard in 2002, along with the
T.M.A. Pai Foundation case (supra), wherein eleven questions had been
framed.
While hearing the matters, the Chief Justice formulated five issues
to encompass all the eleven questions, on the basis of which the hearing
was conducted, and the same are extracted below:
"1. Is there a fundamental right to set up educational
institutions and, if so, under which provision?
2. Does Unni Krishnan case [(1993) 4 SCC 111] require
reconsideration?
3. In case of private institutions (unaided and aided), can
there be government regulations and, if so, to what extent?
4. In order to determine the existence of a religious or
linguistic minority in relation to Article 30, what is to be the
unit - the State or the country as a whole?
5. To what extent can the rights of aided private minority
institutions to administer be regulated?"
Out of the eleven questions framed by the Bench, Questions 3(b), 4
and 5(a) are extremely relevant for deciding the questions raised in the
Writ Petition filed by the Petitioner-institution. For the sake of
reference, the said three Questions are extracted hereinbelow:
"Q3(b). To what extent can professional education be
treated as a matter coming under minorities rights under Article
30?
Q4. Whether the admission of students to minority educational
institutions, whether aided or unaided, can be regulated by the
State Government or by the University to which the institution
is affiliated?
Q5(a). Whether the minority's rights to establish and
administer educational institutions of their choice will include
the procedure and method of admission and selection of
students?"
23. Mr. Salve submitted that the answer given by the Eleven-Judge Bench
to the first Question is that Article 30(1) re-emphasises the right of
religious and linguistic minorities to establish and administer educational
institutions of their choice. The use of the words "of their choice"
indicates that even professional educational institutions would be covered
by Article 30.
24. The answer to the second Question is that, except for providing the
qualifications and minimum conditions of eligibility in the interest of
academic standards, admission of students to unaided minority educational
institutions cannot be regulated by the State or University concerned. Mr.
Salve pointed out that a note of caution was, however, introduced and it
was observed that the right to administer, not being an absolute right,
there could be regulatory measures for ensuring proper educational
standards and maintaining the excellence thereof, particularly in regard to
admissions to professional institutions. It was further held that a
minority institution does not cease to be so, when it receives grant-in-aid
and it would, therefore, be entitled to have a right to admit students
belonging to the minority group, but at the same time it would be required
to admit a reasonable number of non-minority students so that rights under
Article 30(1) were not substantially impaired and the rights of a citizen
under Article 29(2) of the Constitution were not infringed. However, the
concerned State Governments would have to notify the percentage of non-
minority students to be admitted in the institution. Amongst students to
be admitted from the minority group, inter se merit would have to be
ensured and, in the case of aided professional institutions, it could also
be submitted that in regard to the seats relating to non-minority students,
admission should normally be on the basis of the common entrance test held
by the State agency, followed by counselling wherever it exists.
25. In reply to the third Question, it was held that a minority
institution may have its own procedure and method of admission as well as
selection of students, but such a procedure would have to be fair and
transparent and the selection of students in professional and higher
educational colleges should be on the basis of merit. The procedure
selected for admission by the minority institution ought not to ignore the
merit of students for admission while exercising the right to admit
students by the colleges aforesaid, as in that event, the institution will
fail to achieve excellence. The said procedure should not amount to
maladministration.
26. Some of the issues decided in the T.M.A. Pai Foundation case came
up for clarification in the Islamic Academy of Education case (supra) and
for further interpretation in P.A. Inamdar's case (supra), before a Bench
of Seven-Judges, wherein the Petitioner-Association was duly represented.
The Hon'ble Judges reiterated the views expressed in the T.M.A. Pai
Foundation case that there cannot be any reservation in private unaided
institutions, which had the right to have their own admission process, if
the same was fair, transparent, non-exploitative and based on merit. Mr.
Salve referred to paragraph 125 of the judgment in P.A. Inamdar's case
(supra), which is relevant for our purpose, and reads as follows:
"125. As per our understanding, neither in the judgment of Pai
Foundation [(2002) 8 SCC 481] nor in the Constitution Bench
decision in Kerala Education Bill [1959 SCR 995] which was
approved by Pai Foundation, is there anything which would allow
the State to regulate or control admissions in the unaided
professional educational institutions so as to compel them to
give up a share of the available seats to the candidates chosen
by the State, as if it was filling the seats available to be
filled up at its discretion in such private institutions. This
would amount to nationalisation of seats which has been
specifically disapproved in Pai Foundation [(2002) 8 SCC 481].
Such imposition of quota of State seats or enforcing reservation
policy of the State on available seats in unaided professional
institutions are acts constituting serious encroachment on the
right and autonomy of private professional educational
institutions. Such appropriation of seats can also not be held
to be a regulatory measure in the interest of the minority
within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution of
India. Merely because the resources of the State in providing
professional education are limited, private educational
institutions, which intend to provide better professional
education, cannot be forced by the State to make admissions
available on the basis of reservation policy to less meritorious
candidates. Unaided institutions, as they are not deriving any
aid from State funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit."
27. Mr. Salve submitted that after this decision, the Petitioner
Institution continued to admit students to its various graduate and post-
graduate courses by following its own admission procedure, as it had been
doing for the last several decades. Mr. Salve submitted that the Committee
set up by the Government of Tamil Nadu has permitted the Institution to
follow its own admission procedure for undergraduate M.B.B.S. course for
the academic year 2012-2013.
28. While matters were thus poised, the Medical Council of India framed
the impugned amended Regulations, which, according to Mr. Salve, not only
violated the fundamental rights guaranteed under Articles 25, 26 and 30 of
the Constitution to minority run institutions, but if implemented, would
destroy the very objective with which the hospital had been set up in
response to Christ's mission of healing the sick. Mr. Salve submitted that
the impugned Notifications were inconsistent with the law laid down by the
Supreme Court in its various decisions dealing with the rights of unaided,
non-capitation fee minority institutions to admit students of their choice.
29. Mr. Salve submitted that right from the decision in Unni
Krishnan's case (supra), when the State Government first sought to
interfere with the admission process adopted by the Petitioner Institution,
this Court has, by virtue of different interim and final orders, held that
there could be no reservation of seats in institutions like the ones run by
the Petitioner, which are wholly unaided and have always been permitted to
admit students of their choice, in keeping with their status as minority
unaided professional institutions. It was urged that Clause 9(vi) of the
Post-Graduate Notification, which provides for reservation, is ultra vires
the provisions of Article 30(1) of the Constitution. Furthermore, when the
State Government tried to reserve 50% of the seats in the Under-graduate
courses, this Court granted a stay which continues to be operative.
30. Mr. Salve submitted that the question of reservation of seats in
minority institutions, which has been introduced by the impugned
amendments, both in respect of the Under-graduate and the Post-Graduate
courses, does violence to the rights conferred on minorities under Article
30(1) of the Constitution of India, as interpreted by this Court in various
judgments starting from 1957 till 2002, when the question was finally
decided by an Eleven-Judge Bench in the T.M.A. Pai Foundation case (supra).
Even the reservation created for NRIs in Unni Krishnan's case (supra) case
was declared to be ultra vires the Constitution of India.
31. It was urged that in a recent decision of this Court in the Indian
Medical Association case (supra), it has, inter alia, been held that the
level of regulation that the State could impose under Article 19(6) on the
freedoms enjoyed pursuant to Sub-Clause (g) of Clause (1) of Article 19 by
non-minority educational institutions, would be greater than what could be
imposed on minority institutions under Article 30(1) thereof, which
continued to maintain their minority status by admitting students mostly
belonging to the minority community to which the minority institutions
claim to belong, except for a sprinkling of non-minority students, an
expression which has been used in P.A. Inamdar's case and earlier cases as
well. Mr. Salve contended that the Petitioner Institution, from its very
inception reserved up to 85% of its seats in the Under-graduate courses and
50% of the Post-Graduate seats for Christian students exclusively. In the
remaining 15% of the seats in the Under-graduate courses, reservations have
been made for Scheduled Castes and Scheduled Tribes candidates.
32. Mr. Salve contended that the impugned Notifications and the
amendments to the MCI Regulations sought to be introduced thereby are
contrary to the judgments delivered by the Constitution Bench. Learned
counsel submitted that till the amendments were introduced, the concerned
institutions had been conducting their own All India Entrance Tests for
admission to the MBBS and Post-Graduate medical courses. Mr. Salve urged
that there has been no complaint of maladministration as far as the
institutions run by the Petitioner Association are concerned.
33. It was further submitted that all the Petitioners in this batch of
cases are either religious minority educational institutions or linguistic
minority institutions; non-minority self-financing colleges, self-financing
"Deemed to be Universities" under Section 3 of the University Grants
Commission Act and the State Governments which run State medical colleges.
However, it is the Christian Medical College, Vellore, which is among the
very few institutions that fall in the first category. The learned counsel
urged that without demur, the Christian Medical College, Vellore, has been
consistently rated among the top ten medical colleges in the country and
usually ranked first or second. The excellence of patient care and academic
training has been recognised, both at the national and international
levels, and its contribution to health research has also been recognised as
pioneering work by both national and international research funding
agencies. Mr. Salve submitted that a part of the teachings of Jesus
Christ, as documented in the Gospels, which form part of the New Testament,
was to reach out to and to heal the sick, which command has been
institutionalised by the Petitioner ever since it was established as a one-
bed mission clinic-cum-hospital in 1900. Mr. Salve submitted that the
activities of the Petitioner Institution clearly attract the provisions of
Article 25 of the Constitution and through the Christian Medical College,
Vellore, its activities are designed to achieve the avowed objective of
providing human resources for the healing ministry of the Church. The
activity of running medical courses and allied health sciences and nursing
courses, in order to ensure constant supply of doctors and other para-
medical staff to those hospitals, engaged in the healing of the sick, are
acts performed by the Petitioner in furtherance of its religious faith and
beliefs. It was submitted that in the decision of the Constitution Bench of
Seven Hon'ble Judges in the case of Commissioner, Hindu Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
(1954 SCR 1005), this Court held that Article 25 of the Constitution,
protects not only the freedom of religious opinion, but also acts done in
pursuance of religious beliefs, as is clear from the expression "practice
of religion".
34. Mr. Salve also referred to the decision in the case of Ratilal
Panachand Gandhi Vs. The State of Bombay & others, reported in 1954 SCR
1055, which was also a decision rendered by a Constitution Bench of this
Court relying upon the decision in the Shirur Mutt case (supra), wherein
similar sentiments were expressed. Various other decisions on the same
issue were also referred to, which, however, need not detain us.
35. Mr. Salve further urged that the Petitioner Institution is still
one of the largest tertiary care hospitals in the country, where patients
come from all over India for expert treatment. The medical college combines
both medical treatment and education which, besides being a religious
activity, is also a charitable activity, thereby bringing it within the
ambit of Article 26(a) and (b) of the Constitution. Mr. Salve submitted
that, in fact, the said activities had been recognised by this Court in the
T.M.A. Pai Foundation case (supra), wherein in paragraph 26, it was held
as follows :-
"26. The right to establish and maintain educational
institutions may also be sourced to Article 26(a), which grants,
in positive terms, the right to every religious denomination or
any section thereof to establish and maintain institutions for
religious and charitable purposes, subject to public order,
morality and health. Education is a recognised head of charity.
Therefore, religious denominations or sections thereof, which
do not fall within the special categories carved out in Article
29(1) and 30(1), have the right to establish and maintain
religious and educational institutions."
36. Today the Petitioner has in place a selection process for
admission to its Under-graduate and Post-graduate courses, by which it
seeks to select candidates imbibed in the spirit of Christ for the purpose
of healing the sick and to dedicate their lives to serve the needy, both in
the Petitioner Institution and also in far flung areas, where people have
no ready access to medical care, through the Christian Mission Hospitals
run by the members of the Petitioner Association. Mr. Salve submitted that
the doctors, who are the product of the Petitioner Institution, are not
only well-trained in medicine, but have also been imparted with values in
the treatment of the sick and the needy in keeping with the teachings of
Christ, who looked on everybody with compassion. Mr. Salve urged that the
admission process has proved to be highly successful and effective, and in
the case of St. Stephen's College Vs. University of Delhi [(1992) 1 SCC
558], this Court upheld the same as it was found to meet the objectives for
which the Institution itself had been established, despite the fact that it
was an aided minority institution. Mr. Salve pointed out that in paragraph
54 of the judgment, this Court had occasion to deal with the expression
"management of the affairs of the institution” and it was held that this
management must be free from control so that the founder or their nominees
could mould the Institution as they thought fit and in accordance with the
ideas of how the interests of the community in general and the institution
in particular could be served.
37. As far as unaided, non-capitation fee, religious minority
institutions are concerned, Mr. Salve submitted that so long as the
admission procedure adopted is fair, transparent and non-exploitative and
there is no complaint of maladministration, it would be grossly unjust and
unconstitutional to interfere with the administration of such an
institution, in complete violence of the freedoms guaranteed under Articles
25, 26 and 30 of the Constitution. Mr. Salve submitted that if the
National Eligibility-cum-Entrance Test was to be applied and followed in
the case of minority institutions protected under Article 30 of the
Constitution, it would result in complete denudation of the freedoms and
rights guaranteed to such institutions under the Constitution, as it would
run counter to the very principles on which admissions in such institutions
are undertaken.
38. Mr. Salve submitted that neither Section 10A nor Section 19A of the
1956 Act, which were inserted in the principal Statute by amendment,
contemplate that the MCI would itself be entitled to conduct entrance tests
for admission into different medical colleges and hospitals in India.
Learned counsel submitted that the main purpose of constituting the MCI
was to ensure excellence in the field of medical education and for the said
purpose, to regulate the standards of teaching and the infrastructure
available for establishment of a new medical college or to introduce a new
course of study in an existing college. What is made clear from Section
10A is that no new medical college could be established and recognised by
the Central Government without the recommendation of the Medical Council of
India. Such recognition would be dependent upon inspection and
satisfaction that the proposed new medical college satisfied all the
conditions stipulated by the Medical Council of India for starting a new
medical college. Section 19A, which was inserted into the principal Act
much before Section 10A, speaks of the minimum standards of medical
education, other than post-graduate medical qualification, which the
Medical Council of India may prescribe as being required for grant of
recognition to medical institutions in India.
39. Mr. Salve urged that while Section 33 of the 1956 Act empowered the
Council, with the previous sanction of the Central Government, to make
Regulations to carry out the purposes of the Act and clause (l) empowered
the Council to make Regulations with regard to the conduct of professional
examinations, qualifications of examiners and the conditions of admission
to such examinations, the same did not empower the Council to actually
conduct the examinations, which continues to be the prerogative of the
institution concerned.
40. Mr. Salve submitted that in State of A.P. Vs. Lavu
Narendranath[(1971) 1 SCC 607], this Court had considered the validity of a
test held by the State Government for admission to medical colleges in the
State of Andhra Pradesh and had held that although the Andhra University
Act, 1926, prescribed the minimum qualification of passing HSC, PUC, ISC
examinations for entry into a higher course of study, owing to the limited
number of seats, the Government, which ran the medical colleges, had a
right to select students out of the large number of candidates who had
passed the entrance examination prescribed by it. It was also held that
merely because the Government had supplemented the eligibility rules by a
written test in the subjects with which the candidates were already
familiar, there was nothing unfair in the test prescribed nor did it
militate against the powers of the Parliament under Entry 66 of List I,
which is not relatable to a screening test prescribed by the Government or
by a University for selection of students out of a large number of students
applying for admission to a particular course of study. This Court held
that such a test necessarily partakes of the character of an eligibility
test as also a screening test. Mr. Salve urged that in such a situation,
minimum qualifying marks were necessary, but the said question has not been
addressed at all in Lavu Narendranath's case (supra), since it did not
arise in that case.
41. Mr. Salve submitted that the Petitioner Institution has been
supplementing the primary duty enjoined on the State under Articles 21 and
47 of the Constitution in providing health care to the people in different
parts of the country, including the rural and remote areas, through the
several hospitals run by Christian Churches and organizations. Any
interference with the manner in which these minority institutions are being
administered, except where the standards of excellence are compromised,
would not only strike at the very reason for their existence, but would
disturb the health care services being provided by them. Mr. Salve
submitted that the MCI, which is a creature of Statute, cannot travel
beyond the powers vested in it by the Statute and its attempt to regulate
and control the manner in which admissions are to be undertaken in these
institutions, by introducing a single entrance examination, goes against
the very grain of the fundamental rights vested in the religious and
linguistic minorities to establish and administer educational institutions
of their choice and to impart their religious values therein, so long as
the same was not against the peace and security of the State.
42. Mr. Salve urged that the amended provisions of the MCI Regulations
as impugned, were liable to be struck down as being contrary to the
provisions of Articles 25, 26 and 30 of the Constitution, read with
Sections 10A and 19A of the Indian Medical Council Act, 1956.
43. Having heard Mr. Harish Salve on the rights claimed by religious
minority medical institution enjoying the protection of Articles 25, 26,
29(1) and 30 of the Constitution, we may now turn to the submissions made
by Mr. K. Parasaran, learned Senior Advocate, appearing on behalf of the
Vinayaka Missions University, run by a linguistic minority, also enjoying
the rights guaranteed under Article 19(1)(g) and the protection of Article
30 of the Constitution.
44. Mr. Parasaran began by reiterating Mr. Salve's submission that while
minority institutions enjoyed the fundamental rights guaranteed to any
other individual or institution under Article 19(1)(g) of the Constitution,
in addition, linguistic minorities, like religious minorities, enjoy the
special protection afforded under Article 30 of the Constitution. Mr.
Parasaran submitted that just as in the case of religious minorities,
linguistic minorities also have the right to establish and administer
educational institutions of their choice, which included the right to admit
students therein.
45. Mr. Parasaran submitted that the impugned Regulations are ultra
vires, unconstitutional and violative of Article 19(1)(g) of the
Constitution, not only in respect of institutions run by minorities, but
also to all institutions covered by NEET. Mr. Parasaran submitted that if
the Indian Medical Council Act, 1956, is to be understood to empower the
MCI to nominate the students for admission, it would be invalid, since the
said Act and the amendments to the Act, which are relevant for the present
cases, were enacted before the 42nd Constitution Amendment, whereby Entry
11 was removed from List II of the Seventh Schedule and was relocated as
Entry 25 in List III of the said Schedule, came into force on 3rd January,
1977.
46. Mr. Parasaran also urged that as was held by this Court in Indian
Express Newspapers Vs. Union of India [(1985) 1 SCC 641], even if the
Regulations are accepted to be subordinate legislation, the same were also
open to challenge:
(a) on the ground on which plenary legislation is questioned.
(b) on the ground that it does not conform to the statute under which
it is made.
(c) on the ground that it is contrary to some other statute as it
should yield to plenary legislation, and/or
(d) that it is manifestly unreasonable.
47. Mr. Parasaran submitted that in Deep Chand Vs. State of Uttar
Pradesh and Others [(1959) Suppl. 2 SCR 8] wherein the validity of certain
provisions of the Uttar Pradesh Transport Service (Development) Act, 1955,
came to be considered on the passing of the Motor Vehicles (Amendment) Act,
1956, the majority view was that the entire Act did not become wholly void
under Article 254(1) of the Constitution, but continued to be valid in so
far as it supported the Scheme already framed under the U.P. Act.
48. Mr. Parasaran contended that a standard must have general
application and inter se merit does not relate to standards, but is a
comparison of an assessment of merit among the eligible candidates.
49. Mr. Parasaran submitted that the legislative power under Entry 11
of List II stood transferred to List III only by virtue of the Forty-second
Amendment with effect from 3rd January, 1977 and the power so acquired by
virtue of the amendment, could not validate an Act enacted before the
acquisition of such power. Mr. Parasaran urged that while the Indian
Medical Council Act was enacted in 1956, Section 19A on which great
reliance was placed by Mr. Nidhesh Gupta, learned Advocate appearing for
the MCI, was brought into the Statute Book on 16th June, 1964.
Consequently the 1956 Act, as also the Regulations, are ultra vires, except
to the extent covered by Entry 66 of List I, which is confined to "co-
ordination and determination of standards".
50. Referring to the decision of this Court in State of Orissa Vs. M.A.
Tulloch & Co. [(1964) 4 SCR 461], Mr. Parasaran contended that as the
State's powers of legislation are subject to Parliamentary legislation
under Entry 66 of List I, when Parliament legislates, to that extent alone
the State is denuded of its legislative power. A denudation of the power
of the State legislature can be effected only by a plenary legislation and
not by subordinate legislation. The Regulations, which are not plenary in
character, but have the effect of denuding the power of the State
legislature, are, therefore, ultra vires.
51. Another interesting submission urged by Mr. Parasaran was that the
principle of "Rag Bag” legislation, as was explained by this Court in
Ujagar Prints etc. Vs. Union of India [(1989) 3 SCC 488], cannot be invoked
by combining the Entries in List I and List III in cases where the field of
legislation in List III is expressly made subject to an Entry in List I.
In such cases, while enacting a legislation on a subject in List III,
Parliament is also subject to the Entry in List I in the same way as the
State legislature, as the field of legislation in the Concurrent List is
the same as far as the Parliament and the State legislatures for admission
of students to professional courses, are concerned. Mr. Parasaran urged
that the decision in Preeti Srivastava's case (supra) has to be interpreted
harmoniously with the decision in M.A. Tulloch's case (supra), Ishwari
Khetan Vs. State of U.P. [(1980) 4 SCC 136] and Deep Chand's case (supra),
as otherwise the findings in Preeti Srivastava's case (supra) would be
rendered per incuriam for not taking note of the fact that the power of
Parliament under Entry 25 of List III was an after acquired power. Mr.
Parasaran emphasised the fact that the reasoning in Preeti Srivastava's
case (supra) related only to the question of the State's power to prescribe
different admission criteria to the Post-graduate courses in Engineering
and medicine and cannot be held to govern the admission of students to the
said courses. Learned counsel submitted that the decision in Preeti
Srivastava's case (supra) has to be confined only to eligibility standards
for admission and not to issues relating to admission itself. Mr.
Parasaran also pointed out that in Preeti Srivastava's case (supra), the
decision in Deep Chand's case (supra) had not been considered and the fact
that Parliament had no power to legislate with regard to matters which were
then in Entry 11 of List II had been overlooked. The Court, therefore,
erroneously proceeded on the basis of the powers given to Parliament by
virtue of Entry 25 of List III by the Forty-second Amendment. Mr.
Parasaran urged that to the extent it is inconsistent with the decision in
the T.M.A. Pai Foundation case (supra), as to the right of admission by
private institutions, the decision in Preeti Srivastava's case (supra) will
have to yield to the principles laid down by the larger Bench in the T.M.A.
Pai Foundation case (supra). Mr. Parasaran submitted that the effect of
the impugned Regulations in the context of the prevailing law is that
private institutions may establish educational institutions at huge costs
and provide for teaching and lectures, but without any right, power or
discretion to run the college, even to the extent of admitting students
therein. Mr. Parasaran contended that by the introduction of NEET the
States and Universities in States stand completely deprived of the right
to deal with admissions, which has the effect of destroying the federal
structure of the Constitution.
52. Mr. Parasaran urged that the executive power of the State, which is
co-extensive with the legislative power with regard to matters in the
Concurrent List, cannot be taken away except as expressly provided by the
Constitution or by any law made by Parliament. It was urged that the power
of subordinate legislation or statutory power conferred by a Parliamentary
legislation cannot be exercised to take away the legislative power of the
State legislature, which could only be done by plenary legislation under
Article 73 of the Constitution. Mr. Parasaran submitted that the impugned
Regulations, not being plenary legislation, are unconstitutional and ultra
vires the Constitution.
53. Mr. Parasaran submitted that the impugned Regulations provide that
if sufficient number of candidates in the respective categories fail to
secure minimum marks as prescribed in NEET, held both for Post-graduate and
graduate courses, the Central Government, in consultation with the Medical
Council of India, may at its discretion lower the minimum marks for
admission, which itself indicates that the Regulations are concerned not
with determination of standards, but with admissions.
54. Mr. Parasaran further submitted that the Scheme framed in Unni
Krishnan's case (supra) completely excluded the discretion of the
institution to admit students and the same was, therefore, overruled in the
T.M.A. Pai Foundation case as having the effect of nationalising education
in respect of important features viz. right of a private unaided
institution to give admission and to fix the fees. Mr. Parasaran submitted
that the impugned Regulations suffer from the same vice of a complete take-
over of the process of admission, which rendered the impugned Regulations
unconstitutional.
55. Mr. Parasaran further urged that minorities, whether based on
religion or language, also have a fundamental right under Article 19(1)(g),
like any other citizen, to practise any profession, or to carry on any
occupation, trade or business in the interest of the general public, but
subject to reasonable restrictions that may be imposed by the State on the
exercise of such rights. In addition, minorities have the right guaranteed
under Article 30 to establish and administer educational institutions of
their choice. Considering the right of both minority and non-minority
citizens to establish and administer educational institutions, this Court
had in the T.M.A. Pai Foundation case (supra) held that the said right
includes the right to admit students and to nominate students for admission
and even when students are required to be selected on the basis of merit,
the ultimate decision to grant admission to the students who have otherwise
qualified for the said purpose, must be left with the educational
institutions concerned. Mr. Parasaran submitted that in the T.M.A. Pai
Foundation case (supra), this Court, inter alia, observed that the fixing
of a rigid fee structure, compulsory nomination of teachers and staff for
appointment or nominating students for admission would be unreasonable
restrictions.
56. Mr. Parasaran also urged that the right of minority institutions under
Article 30 is in the national interest and as indicated in the decision in
Unni Krishnan's case (supra), the hard reality that emerges is that private
educational institutions are a necessity in the present-day circumstances.
It is not possible today without them because the Governments are in no
position to meet the demand, particularly in the sectors of medical and
technical education, which call for substantial investments and expenses.
Mr. Parasaran submitted that the impugned Regulations were not in the
national interest and would only discourage good private institutions being
established by people dedicated to the cause of providing health care to
all sections of the citizens of this country and, in particular, the
marginalized sections in the metropolitan and rural areas.
57. Mr. Parasaran then urged that 50% of the total seats available, as
per Clause VI of the Post-Graduate Medical Education Regulations, were to
be filled up by the State Governments or the Authorities appointed by them.
The remaining 50% seats are to be filled up by the concerned medical
colleges and institutions on the basis of the merit list prepared according
to the marks obtained in NEET. Mr. Parasaran submitted that there is a
similar provision in the 1997 Regulations applicable to the Graduate
M.B.B.S. course. Noticing the same, this Court in P.A. Inamdar's case
(supra) categorically indicated that nowhere in the T.M.A. Pai Foundation
case (supra), either in the majority or in the minority views, could any
justification be found for imposing seat sharing quota by the State on
unaided private professional educational institutions. Clarifying the
position this Court observed that fixation of percentage of quota are to be
read and understood as consensual arrangements which may be reached between
unaided private professional institutions and the State. Mr. Parasaran
urged that the Regulations providing for a quota of 50% are, therefore,
invalid.
58. Mr. Parasaran urged that in P.A. Inamdar's case (supra), this
Court had held that private institutions could follow an admission
procedure if the same satisfied the triple test of being fair, transparent
and non-exploitative. It is only when an institution failed the triple
test, could the State interfere and substitute its own fair and transparent
procedure, but the same cannot become a procedure by destroying the very
right of the private institutions to hold their own test in the first
instance. Mr. Parasaran urged that the purpose of a common entrance test
is to compute the equivalence between different kinds of qualifications and
to ensure that those seeking entry into a medical institute did not have to
appear for multiple tests, but it could not justify the extinguishing of
the right to admit and to reject candidates on a fair, transparent and non-
exploitative basis from out of the eligible candidates under NEET. Mr.
Parasaran reiterated that ultimately it is the institutions which must have
the right to decide the admission of candidates.
59. Mr. Parasaran submitted that in Pradeep Jain Vs. Union of India
[(1984) 3 SCC 654], this Court has held that university-wise distribution
of seats is valid. The learned Judges fully considered the mandate of
equality and pointed out the need to take into account different
considerations relating to differing levels of social, economic and
educational development of different regions, disparity in the number of
seats available in different States and the difficulties that may be faced
by students from one region, if they get a seat in another region. This
Court held that an All India Entrance Examination would only create a
mirage of equality of opportunity and would, in reality, deprive large
sections of underprivileged students from pursuing higher education. Though
attractive at first blush, an All India Entrance Examination would actually
be detrimental to the interests of the students hoping for admission to the
M.B.B.S. and Post-graduate courses.
60. Mr. Parasaran submitted that since all judgments on the subject
were by Benches which were of lesser strength as compared to the T.M.A. Pai
Foundation case (supra), all other decisions of this Court, both before and
after the decision in the T.M.A. Pai Foundation case (supra), would,
therefore, have to be read harmoniously with the principles enunciated in
the T.M.A. Pai Foundation case (supra). In case some of the cases cannot
be harmoniously read, then the principles laid down in the T.M.A. Pai
Foundation case (supra) will have primacy and will have to be followed.
Mr. Parasaran submitted that the observations as to standard and merit in
Preeti Srivsatava's case (supra) and in P.A. Inamdar's case (supra), have
to be understood as conforming to the decision in the T.M.A. Pai
Foundation case (supra). Mr. Parasaran submitted that the flourish of
language in the judgments of Benches of lesser strength cannot be read so
as to dilute the ratio of the decision of Benches of larger strength. Mr.
Parasaran urged that consequently the right to admit students by unaided
private institutions, both aided and unaided minority institutions, as part
of their right to administer the institution, as guaranteed under Articles
19(1)(g), 25, 26, 29(1) and 30 of the Constitution, cannot be taken away
even by way of plenary jurisdiction, which the impugned Regulations are
not.
61. Mr. Parasaran submitted that in the case of aided non-minority
institutions, the State may by Regulation provide for a larger role for the
State in relation to matters of admission. Mr. Parasaran urged that the
impugned Regulations being only regulatory in character, they cannot
destroy the right itself.
62. Dr. Rajiv Dhawan, learned senior counsel, who appeared on behalf of
Yenepoya University in Transferred Case Nos. 135-137 of 2012 and also for
the Karnataka Religious and Linguistic Minority Professional Colleges
Association in Transferred Case Nos. 121-122 of 2012, submitted that
although the issues involved in the said cases have already been argued in
extenso by Mr. Salve and Mr. Parasaran, as part of the main issue, it has
to be decided whether NEET violates the fundamental right guaranteed to
minorities, both religious and linguistic, to impart medical education, as
explained in the T.M.A. Pai Foundation case (supra) and other subsequent
decisions and even if found to be intra vires, is it manifestly unjust and
arbitrary? It was further urged that it would also have to be decided
whether the doctrine of severability, reading down and proportionality,
could be effected to the impugned Regulations.
63. Dr. Dhawan urged that the T.M.A. Pai Foundation case (supra)
resolved several issues where there was still some doubt on account of
decisions rendered in different cases. Dr. Dhawan urged that it was held
that the decision in the Unni Krishnan's case (supra) was wrong to the
extent that "free seats" were to go to the privileged and that education
was being nationalised which took over the autonomy of institutions. It was
also observed that the expanding needs of education entailed a combined use
of resources both of the Government and the private sector, since the
imparting of education was too large a portfolio for the Government alone
to manage.
64. Dr. Dhawan urged that the other issue of importance, which was also
decided, was the right of autonomy of institutions which were protected
under Article 30 of the Constitution, which, inter alia, included the right
to admit students.
It was also settled that unaided institutions were to have maximum
autonomy while aided institutions were to have a lesser autonomy, but not
to be treated as "departmentally run by government".
65. Dr. Dhawan submitted that the decision in the T.M.A. Pai
Foundation case (supra) also settled the issue that affiliation and
recognition has to be available to every institution that fulfills the
conditions for grant of such affiliation and recognition. Learned Senior
Counsel submitted that surrendering the total process of selection to the
State was unreasonable, as was sought to be done in the Scheme formulated
in Unni Krishnan's case (supra). The said trend of the decisions was sought
to be corrected in the T.M.A. Pai Foundation case (supra) where it was
categorically held that minority institutions had the right to "mould the
institution as they think fit", bearing in mind that "minority
institutions have a personality of their own, and in order to maintain
their atmosphere and traditions, it is but necessary that they must have a
right to choose and select the students who can be admitted in their course
of study." It is for this reason that in the St. Stephen's College case
(supra), this Court upheld the Scheme whereby a cut-off percentage was
fixed for admission after which the students were interviewed and,
thereafter, selected. It was also laid down that while the educational
institutions cannot grant admission on its whims and fancies and must
follow some identifiable or reasonable methodology of admitting students,
any scheme, rule or regulation that does not give the institution the right
to reject candidates who might otherwise be qualified according to, say
their performance in an entrance test, would be an unreasonable restriction
under Article 19(6), though appropriate guidelines/ modalities can always
be prescribed for holding the entrance test in a fair and transparent
manner.
66. Again in paragraphs 158 and 159 of the judgment in the T.M.A. Pai
Foundation case (supra), it has been very picturesquely expressed that
India is a kaleidoscope of different peoples of different cultures and that
all pieces of mosaic had to be in harmony in order to give a whole picture
of India which would otherwise be scarred. Their Lordships very poetically
indicated that each piece, like a citizen of India, plays an important part
in the making of the whole. The variations of the colours as well as
different shades of the same colour in a map are the result of these small
pieces of different shades and colours or marble, but even when one small
piece of marble is removed, the whole map would be disfigured, and the
beauty of the mosaic would be lost.
67. Referring to the separate decision rendered by Ruma Pal, J., in the
T.M.A. Pai Foundation case (supra), Dr. Dhawan submitted that the learned
Judge had also artistically distinguished Indian secularism from American
secularism by calling Indian secularism "a salad bowl" and not a "melting
pot".
68. Dr. Dhawan urged that a combined reading of the decision in Islamic
Academy's case (supra) and P.A. Inamdar's case (supra) suggests that (i) no
unaided institutions can be compelled to accept reservations made by the
State, except by voluntary agreement; and (ii) the right to (a) admit and
select students of their choice by pursuing individual or associational
tests and (b) fix fees on a non-profit basis is a right available to all
educational institutions, but the admissions were to be made on a fair,
transparent and non exploitative method, based on merit.
69. On Article 15(5) of the Constitution, Dr. Dhawan contended that
the same was included in the Constitution by the Constitution (93rd
Amendment) Act, with the object of over turning the decision in P.A.
Inamdar's case (supra) on voluntary reservations. Dr. Dhawan submitted
that the said provision would make it clear that the State reservations do
not apply to "minority institutions" enjoying the protection of Article 30
and it is on such basis that in the Society for Unaided Private Schools of
Rajasthan Vs. Union of India [(2012) 6 SCC 1], this Court held that a
minority institution could not be forced to accept the statutory
reservation also. Dr. Dhawan urged that the impact of the T.M.A. Pai
Foundation case (supra) and subsequent decisions is that all institutions,
and especially minority institutions, have the constitutional right to
select and admit students of their choice and conduct their own tests,
subject to minimum standards which could be enhanced but not lowered by the
States.
70. Dr. Dhawan also referred to the issue of equivalence between
various Boards and uniformity and convenience. Learned counsel submitted
that the distinction was recognized in the case of Rajan Purohit Vs.
Rajasthan University of Health Sciences [(2012) 10 SCC 770], wherein it was
observed that the problem of equivalence could be resolved by the college
or group of colleges, either by finding a method of equivalence to
reconcile difference of standards between various Boards, or by the college
or group of colleges evolving a Common Entrance Test to overcome the
problem of equivalence. Dr. Dhawan submitted that the said issue had been
addressed in the T.M.A. Pai Foundation (supra), which continues to hold the
field in respect of common issues. Dr. Dhawan urged that consistent with
the views expressed in the T.M.A. Pai Foundation case (supra) and the
importance of autonomy and voluntarism, the same could not be impinged upon
by nationalizing the process of admission itself for both the purposes of
eligibility and selection, unless a college failed to abide by the triple
requirements laid down in P.A. Inamdar's case (supra).
71. In regard to the decision in Lavu Narendranath's case (supra),
which had been relied upon by Mr. K. Parasaran, Dr. Dhawan contended that
the same was based upon the understanding that Entry 66 of List I had no
relation with tests for screening and selecting students prescribed by the
States or Universities for admission, but only to coordinate standards.
The scope of the said Entry did not deal with the method of admission,
which was within the constitutional powers of the State and the
Universities. Dr. Dhawan submitted that the decision rendered in Preeti
Srivastava's case (supra) also expressed similar views regarding laying
down of standards for admission into the Post-graduate medical courses,
which meant that government and universities had exclusive control over
admission tests and the criteria of selection in higher education, subject
to minimum standards laid down by the Union, unless Union legislation,
relatable to Entry 25 of List III, was passed to override the States'
endeavours in this regard.
72. Dr. Dhawan contended that the demarcation sought to be made in Lavu
Narendranath's case (supra) found favour in subsequent cases, such as in
the case of State of M.P. Vs. Nivedita Jain [(1981) 4 SCC 296], wherein a
Bench of Three Judges took the view that Entry 66 of List I of the Seventh
Schedule to the Constitution relates to "coordination and determination of
standards in institutions for higher education or research and scientific
and technical institutions". The said sentiments were reiterated by this
Court in Ajay Kumar Singh Vs. State of Bihar [(1994) 4 SCC 401]. However,
in Preeti Srivastava's case (supra), the Constitution Bench overruled the
decision in the said two cases. But, as urged by Dr. Dhawan, by holding
that Entry 66 of List I was not relatable to a screening test prescribed by
the Government or by a University for selection of students from out of a
large number for admission to any particular course of study, the
Constitution Bench also accepted that the powers of the MCI under List I,
Entry 66, did not extend to selection of students. Dr. Dhawan urged that
although Preeti Srivastava's case (supra) had been confined to its facts,
it went beyond the same on account of interpretation of the scope of List
I, Entry 66 and extending the same to the admission process, simply because
admission also related to standards and upon holding that the Union
Parliament also had the power to legislate for the MCI in the matter of
admission criteria under Entry 25, List III.
Dr. Dhawan submitted that the two aforesaid issues had the potentiality
of denuding the States and the private institutions, including minority
institutions enjoying the protection of Article 30, of their powers over
the admission process and in the bargain upset the Federal balance.
73. The validity of the impugned Regulations was also questioned by Dr.
Dhawan on the ground that Sections 19A and 20 of the 1956 Act authorises
the MCI to prescribe the minimum standards of medical education required
for granting recognised medical qualifications in India, but copies of the
draft regulations and of all subsequent amendments thereof are required to
be furnished by the Council to all State Governments and the Council,
before submitting the Regulations or any amendment thereto to the Central
Government for sanction, is required to take into consideration the
comments of any State Government received within three months from the
furnishing of copies of the said Regulations. Dr. Dhawan submitted that
such consultation was never undertaken by the MCI before the Regulations
were amended, which has rendered the said Regulations invalid and by virtue
of the decisions rendered in Lavu Narendranath's case (supra) and Preeti
Srivastava's case (supra), they cannot be reinstated by virtue of Entry 25
List III.
74. Dr. Dhawan urged that while the power of the MCI to frame
Regulations is under Section 33 of the 1956 Act, the role of the MCI is
limited to that of a recommending or a consulting body to provide standards
which are required to be maintained for the purpose of running the medical
institution, and would not include admission of students to the Under-
graduate and the Post-graduate courses. Dr. Dhawan urged that the said
powers could not have been extended to controlling admissions in the
medical colleges and medical institutions run by the State and private
authorities. Dr. Dhawan submitted that as was held by this Court in State
of Karnataka Vs. H. Ganesh Kamath [(1983) 2 SCC 402], "It is a well-settled
principle of interpretation of statutes that the conferment of rule-making
power by an Act does not enable the rule-making authority to make a rule
which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto." While accepting that delegated
legislation is necessary, Dr. Dhawan urged that it must remain within the
contours of the rule or regulation-making power and the purpose for which
it is given, as was held by this Court in St. John's Teachers Training
Institute Vs. Regional Director, National Council for Teacher Education
[(2003) 3 SCC 321].
75. Dr. Dhawan also questioned the vires of the amended provisions of
the MCI Rules on the ground of unreasonableness and arbitrariness and urged
that in both cases the Court would be justified in invoking the doctrine of
proportionality, as was observed by this Court in Om Prakash Vs. State of
U.P. [(2004) 3 SCC 402]. Dr. Dhawan submitted that the only way in which
the impugned Regulations could possibly be saved is by reading them down to
bring them in conformity with the constitutional legislation and the law
laid down by the Supreme Court.
76. Dr. Dhawan urged that admission of students in all the medical
institutions in India on the basis of a single eligibility-cum-entrance
examination, was not only beyond the scope of the powers vested in the
Medical Council of India to make Regulations under Section 33 of the 1956
Act, but the same were also arbitrary and unreasonable, not having been
framed in consultation with the States and without obtaining their response
in respect thereof. More over, the same runs counter to the decision of
this Court in the T.M.A. Pai Foundation case (supra) making it clear that
the MCI was only a regulatory and/or advisory body having the power to lay
down the standards in the curricula, but not to interfere with the process
of admission, which would be the obvious fall-out of a single NEET
conducted by the MCI. Dr. Dhawan concluded on the note that uniformity for
its own sake is of little use when the end result does not achieve the
objects for which the Regulations have been introduced.
77. Appearing for Sri Ramachandra University in Transferred Case Nos.1
& 3 of 2013, Mr. Ajit Kumar Sinha, learned Senior Advocate, questioned the
vires of the impugned regulations more or less on the same grounds as
canvassed by Mr. Salve, Mr. K. Parasaran and Dr. Dhawan. Mr. Sinha also
reiterated the fact that in Preeti Srivastava's case (supra), this Court
did not notice the decision in Deep Chand's case (supra) and overlooked the
fact that Parliament had no power to legislate with regard to matters which
were then in Entry 11 of List II of the Seventh Schedule. Mr. Sinha
submitted that the decision in Preeti Srivastava's case (supra) must,
therefore, be held to be per incuriam.
78. Mr. Sinha urged that neither Section 19A nor Section 2(h)
contemplates the holding of a pre-medical entrance test for admission into
all medical institutions in the country, irrespective of who had
established such institutions and were administering the same. Mr. Sinha
urged that the impugned Regulations were liable to be struck down on such
ground as well, as it sought to unlawfully curtail the powers of the
persons running such medical institutions in the country.
79. Mr. P.P. Rao, learned Senior Advocate, who initially appeared for
the State of Andhra Pradesh in Transferred Case No.102 of 2012, submitted
that as far as the State of Andhra Pradesh is concerned, admission into
educational institutions was governed by a Presidential Order dated 10th
May, 1979, issued under Article 371D of the Constitution, inter alia,
providing for minimum educational qualifications and conditions of
eligibility for admission to the MBBS, B.Sc. Course, etc. Mr. Rao
submitted that being a special provision it prevails in the State of Andhra
Pradesh over other similar legislations.
80. Subsequently, Mr. L. Nageshwara Rao, learned Senior Advocate,
appeared for the State of Andhra Pradesh in the said Transferred Case and
also in Transferred Cases Nos.100 and 101 of 2012, 103 of 2012, Transfer
Petition (C) Nos.1671 and 1645 of 2012 and Writ Petition (C) No.464 of
2012. In addition, Mr. Nageswara Rao also appeared for the State of Tamil
Nadu in Transferred Case Nos.110 and 111 of 2012 and for the Tamil Nadu
Deemed University Association in Transferred Cases Nos. 356 and 357 of 2012
and Writ Petition (C) No.27 of 2013.
81. Continuing from where Mr. P.P. Rao left off, Mr. Nageswara Rao
submitted that in conformity with the aforesaid Presidential Order, the
State of Andhra Pradesh enacted the A.P. Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983,
defining, inter alia, "local area", "local candidate", "educational
institutions" and "relevant qualifying examinations". Mr. Rao pointed out
that Section 5 of the Act provides for reservation in non-State- Wide
Universities and Education Institutions in favour of local candidates while
Section 6 provides for reservation in State-wide Universities and State-
wide Educational Institutions for local candidates. Mr. Rao submitted that
the impugned Notification of the Medical Council of India cannot be given
effect to in view of the Presidential Order made under Article 371D of the
Constitution and the 1983 Act enacted in pursuance of the said Order.
82. Mr. Rao submitted that if the Medical Council of India could or
should hold a National Eligibility-cum-Entrance Test, it would have the
effect of denuding the State and the educational institutions of their
right to establish and administer educational institutions which enjoy the
protection of Articles 19(1)(g), 25, 26 and 30 of the Constitution.
83. With regard to the State of Tamil Nadu and the Deemed University
Association, Mr. Rao confined his submissions to Entry 25 of List III, in
relation to Entry 66 of List I. Mr. Rao reiterated the submissions made
earlier that the subject matter of Entry 66 of List I is for "coordination
and determination of standards" in institutions for higher education and
that the determination of standards also falls within Entry 25 of List III
only when coordination and determination of standards are dealt together
with the State enactment made subject to legislation under Entry 66 of List
I. Mr. Rao submitted that the denudation of the legislative power of the
State Legislature could only be by plenary legislation made under Entry 66
of List I read with Article 246 of the Constitution and not by subordinate
legislation which renders the impugned regulations ultra vires the
aforesaid provisions of the Constitution.
84. While dealing with the aforesaid questions, Mr. Rao also submitted
that the Notification contemplates the conducting of a common entrance test
for all the dental colleges throughout India, without considering the
different streams of education prevalent in India such as CBSE, ICSE, State
Boards, etc., prevailing in different States. The different standards of
education prevalent in different States had not been taken into
consideration and in such factual background, the holding of a Single
Common Entrance Test for admission to the B.D.S. and the M.D.S. courses in
all the dental colleges throughout India, would lead to violation of
Article 14 of the Constitution, since there is no intelligible object
sought to be achieved by such amended regulations.
85. Mr. Rao also questioned the provision made by the amendment dated
15th February, 2012, to the Notification dated 21st December, 2010,
reserving admission to Post-graduate Diploma Courses for Medical Officers
in the Government Service, who acquired 30% marks, as being wholly
unrelated to merit in the entrance examination and, therefore, making such
reservation arbitrary and irrational. Mr. Rao submitted that there is no
rationale in giving this benefit only to whose who are serving in
Government/public authorities with regard to service in remote/difficult
areas. Mr. Rao urged that the Government of Tamil Nadu has consistently
opposed the proposal to apply the National Eligibility-cum-Entrance Test to
determine admission to different medical colleges and institutions. Mr.
Rao submitted that when the Notification was first issued on 27th December,
2010, the Government of Tamil Nadu challenged the same by way of Writ
Petition No. 342 of 2011 and in the said Writ Petition, the High Court
stayed the operation of the Notification for UG NEET Entrance Examination
in so far as it related to the State of Tamil Nadu, and the stay continues
to be in force. Mr. Rao urged that in respect of Tamil Nadu there are many
constitutional issues, as Tamil Nadu had abolished the Common Entrance Test
based on the Tamil Nadu Admission in Professional Educational Institutions
Act, 2006, which was given effect to after receiving the President's assent
under Article 254(2) of the Constitution.
86. Mr. Rao submitted that the introduction of NEET by virtue of the
amended Regulations would run counter to the policy of the State Government
which has enacted the aforesaid Act by abolishing the practice of holding
an All India Entrance Test for admission to the professional courses in the
State. Mr. Rao submitted that the decision regarding admission to the Post-
graduate Medical and Dental Examinations would be the same as that for
admission in Under-graduate courses.
87. Mr. Rao contended that the MCI had no jurisdiction to issue the
impugned Notifications as the Council lacks the competence to amend the
State Act which had been enacted in 2006 and the validity whereof has been
upheld by the High Court. Mr. Rao repeated and reiterated the submissions
earlier made with regard to the vires of the impugned Regulations and
prayed for proper directions to be issued to allow the State of Tamil Nadu
to continue its existing system of admission to both Under-graduate and
Post-graduate courses.
88. Learned senior counsel, Mr. R. Venkataramani, appearing for the
Government of Puducherry, in T.C. No. 17 of 2013, adopted the submissions
made by Mr. Salve, Mr. Parasaran and Dr. Dhawan. Mr. Venkataramani
submitted that the Notifications, whereby the impugned Regulations were
sought to be introduced by the Medical Council of India, were beyond the
scope of the powers conferred under Section 33 of the 1956 Act, rendering
them ultra vires and invalid. Mr. Venkataramani submitted that the failure
of the MCI to consult the Government of Puducherry, as was required under
Sections 19A and 20 of the 1956 Act, before amending the Regulations and
notifying the same, rendered the same invalid. Mr. Venkataramani also
reiterated the submission made earlier that there are different streams of
education prevailing in different States, having different syllabi,
curriculum, Board of Examinations and awarding of marks and it would be
unreasonable to conduct a single examination by taking recourse to a
particular stream of education which would have the effect of depriving
effective participation of other students educated in different streams.
89. Mr. Venkataramani submitted that this Court had consistently held
that unaided educational institutions are free to devise their own
admission procedures and that the impugned Regulations were against social
justice and would impinge on the rights of unaided educational institutions
as well as the institutions enjoying the protection of Article 30 of the
Constitution in the Union Territory of Puducherry.
90. Appearing for the Karnataka Private Medical and Dental Colleges'
Association consisting of Minority and Non-Minority private unaided Medical
Colleges and educational institutions in the State of Karnataka, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that the Association had
filed several Writ Petitions before the Karnataka High Court challenging
the validity of the Notifications dated 21.12.2010 and 5.2.2012, by which
the Medical Council of India has attempted to foist a Common Entrance Test
(NEET) on all medical institutions in the country, which have been
transferred to this Court for consideration along with other similar
matters where the issues were common.
91. Mr. Venugopal reiterated that the imposition of NEET was contrary
to the decisions of this Court in the T.M.A. Pai Foundation case (supra)
and in P.A. Inamdar's case (supra). Mr. Venugopal contended that the right
of the Members of the Association to carry on the business and vocation of
imparting medical education had been upheld not only in the two aforesaid
cases, but also in the Islamic Academy of Education case (supra) and in T.
Varghese George Vs. Kora K. George [(2012) 1 SCC 369], Society for Unaided
Private Schools of Rajasthan case (supra) and Rajan Purohit's case
(supra).
Mr. Venugopal urged that the aforesaid right has been based on the
fact that a non-minority professional college has the same fundamental
right which is also possessed by a minority institution under Article
19(1)(g) of the Constitution, but is subject to reasonable restrictions
under Article 19(6) of the Constitution.
92. Mr. Venugopal also voiced the issues common to all these cases as
to whether it would be open to the Government or the MCI, a creature of the
Indian Medical Council Act, 1956, to regulate the admission of students to
all medical colleges and institutions. Mr. Venugopal urged that since the
question had been troubling the Courts in the country for a considerable
period of time, a Bench of Eleven (11) Judges was constituted to settle the
above issues and other connected issues and to put a quietus to the same.
The said Bench heard a number of matters in which the issue had been raised
and it delivered its verdict in what is referred to as the T.M.A. Pai
Foundation case (supra), answering all the questions raised. Certain
common issues contained in the judgment came up for consideration later and
were subsequently referred to a Bench of Seven Judges in P.A. Inamdar's
case (supra) where the issue was finally put to rest.
93. Mr. Venugopal firmly urged that in dealing with the issues raised
in these matters, none of the decisions rendered by this Court in the past
were required to be re-opened and the said issues will have to be
considered and decided by this Court by merely testing their validity
against the ratio of the earlier judgments, and, in particular, the
decision in the T.M.A. Pai Foundation case (supra).
94. Mr. Venugopal's next submission was with regard to the provisions
of the Karnataka Professional Educational Institutions (Regulation of
Admission and Fixation of Fee) (Special Provisions) Act, 2011, hereinafter
referred to as the "Karnataka Act of 2011", which provides for a
consensual arrangement between the State Government and the Petitioner
Association for filling up the seats in the unaided medical colleges being
taken over by the State Government to the extent agreed upon between the
parties. The said Act also regulates the fees to be charged in these
private institutions. Mr. Venugopal urged that the said Act still holds the
field, since its validity has not been challenged. As a result, the
impugned Regulation, now made by the Medical Council of India, purportedly
under Section 33 of the 1956 Act, cannot prevail over the State law. Mr.
Venugopal submitted that the impugned Regulations are, therefore, of no
effect in the State of Karnataka.
95. Mr. Venugopal also urged that having regard to the decision of this
Court in the T.M.A. Pai Foundation case (supra) and the other decisions
referred to hereinabove, the impugned Notifications imposing NEET as a
special vehicle for admission into medical colleges denuding the State and
the private medical institutions from regulating their own procedure, must
be held to be ultra vires Section 33 of the 1956 Act.
96. Mr. Venugopal reiterated the submissions made on behalf of the other
Petitioners and concluded on the observations made in paragraph 3 of the
decision of this Court in State of Karnataka Vs. Dr. T.M.A. Pai Foundation
& Ors. [(2003) 6 SCC 790], which made it clear that all statutory
enactments, orders, schemes, regulations would have to be brought in
conformity with the decision of the Constitution Bench in the T.M.A. Pai
Foundation case (supra), decided on 31.10.2002. Mr. Venugopal submitted
that it, therefore, follows that the Regulations of 2000, 2010 and 2012, to
the extent that they are inconsistent with the decision in the T.M.A. Pai
Foundation case (supra), would be void and would have to be struck down.
97. Mr. G.S. Kannur, learned Advocate, who appeared in support of the
application for intervention, being I.A. No.3, in Transferred Case No.3 of
2013, repeated the submissions made by Mr. K. Parasaran, Dr. Dhawan and Mr.
L. Nageshwar Rao, that the existence of various Boards in a particular
State is bound to cause inequality and discrimination if the Common
Entrance Test was introduced as the only criteria for admission into any
medical college or institution in the country.
98. Appearing for the Christian Medical College Ludhiana Society and the
medical institutions being run by it, Mr. V. Giri, learned Senior Advocate,
reiterated the submissions made by Mr. Harish Salve, on behalf of the
Christian Medical College Vellore Association, but added a new dimension to
the submissions made by submitting that the impugned Regulations had been
issued by the Board of Governors, which had been in office pursuant to the
supersession of the Medical Council, under Section 3A of the 1956 Act. Mr.
Giri submitted that the Board of Governors, which was only an ad hoc body
brought into existence to exercise the powers and perform the functions of
the Council under the Act pending its reconstitution, was not competent as
an Ad hoc body to exercise the delegated legislative power under Section 33
of the said Act and to discharge the functions of the Medical Council, as
contemplated under Section 3 of the 1956 Act.
99. Mr. Giri urged that though Section 33 of the 1956 Act confers power on
the Medical Council of India to make Regulations generally for carrying out
the purposes of the Act, it also enumerates the different functions of the
Council and its powers and duties which are referable to the substantial
provisions of the Act itself. Learned counsel pointed out that clause (l)
deals with the conduct of professional examinations, qualification of
examiners and conditions of admission to such examinations. Mr. Giri urged
that Sections 16 to 18 of the above Act deals with the substantive power
available to the Medical Council of India to require of every University or
Medical Institution information as to the courses of study and examinations
and if necessary, to take steps for inspecting the same. Accordingly, the
Regulation-making power contemplated under Section 33 of the 1956 Act is
referable to the substantive functions to be discharged by the Council
under Sections 16 to 18 of the Act. Mr. Giri contended that no provision
in the Act contemplates that the Council may actually conduct the
examinations. Relying on the views expressed in the T.M.A. Pai Foundation
case (supra), Mr. Giri urged that the impugned Regulations were in direct
violation of the rights guaranteed to a minority educational institutions
under Article 19(1)(g) read with Articles 25, 26, 29(1) and 30 of the
Constitution.
100. Mr. Giri submitted that the Petitioner is a minority educational
institution admitting students from the minority community in a fair,
transparent and non-exploitative manner, based on inter se merit, and
cannot be subjected to the NEET for the purposes of admission to the Under-
graduate MBBS and Post-graduate degrees in medicine. Reemphasising Mr.
Salve's submissions, Mr. Giri submitted that the activity of running
medical, allied health sciences and nursing courses, in order to ensure
constant supply of doctors and other para-medical staff to the hospitals
and other facilities engaged in the healing of the sick, are acts done in
furtherance of the Petitioner's religious faith, which stand protected
under Articles 25, 26 and 30 of the Constitution.
101. Mr. Giri submitted that the Government of Punjab, in its Department
of Medical Education and Research, vide its Notification No.
5/7/07.3HBITI/2457 dated 21.05.2007, for admission to MBBS, BDS, BAMS and
BHMS courses and vide Notification No. 5/8/2007-3HB3/1334 dated 21.03.2007,
for admission in Post-graduate Degree/ Diploma courses in the State of
Punjab, excluded the Christian Medical College and Christian Dental
College, Ludhiana, from the admission process conducted by Baba Farid
University of Health Sciences, Faridkot, on behalf of the State Government
for various Under-graduate and Post-graduate Medical Degree courses. Mr.
Giri submitted that the impugned Regulations, being ultra vires the
provisions of Articles 19(1)(g) and Articles 25, 26, 29(1) and 30 of the
Constitution, having been promulgated by an ad hoc body, were liable to be
struck down.
102. Mr. K. Radhakrishnan, learned Senior Advocate, appeared for the Annoor
Dental College and Hospital, situated in the State of Kerala, adopted the
submissions made by the other counsel and urged that the submissions
advanced, as far as medical colleges and institutions are concerned, apply
equally to dental colleges, which are under the authority of the Dental
Council of India and is governed by the Dentists Act, 1948. Mr.
Radhakrishnan submitted that the impugned Regulations were also ultra vires
the Dentists Act, 1948, Section 20 whereof empowers the Dental Council of
India to prescribe conditions for admission to the courses for training of
dentists and dental hygienists, but does not authorize the Dental Council
of India or any agency appointed by it to conduct admission tests for
selection of students for the BDS and MDS courses. Mr. Radhakrishnan also
urged that the impugned Regulations which attempted to enforce NEET, were
ultra vires the provisions of the Dentists Act, 1948, as also the relevant
provisions of the Constitution and are, therefore, liable to be struck
down.
103. Transferred Case No.8 of 2013 which arises out of Writ Petition
No.5939 (M/S) of 2012, was filed by the U.P. Unaided Medical Colleges
Welfare Association and Others. Appearing for the said Association, Mr.
Guru Krishnakumar, learned Senior Advocate, while adopting the submissions
already made, reiterated that the functional autonomy of institutes is an
integral right under Article 19(1)(g) of the Constitution, as clearly set
out in the decision rendered in the T.M.A. Pai Foundation case (supra).
Learned Senior counsel submitted that the fundamental right guaranteed
under Article 19(1)(g) includes the right to admit students in the
privately run professional colleges, including medical, dental and
engineering colleges, and viewed from any angle, the impugned Regulations
were impracticable, besides causing violence to Article 19(1)(g) of the
Constitution. Mr. Guru Krishnakumar submitted that the impugned Regulations
and the Notifications promulgating the same, were liable to be struck down.
104. Mr. C.S.N. Mohan Rao, learned Advocate, who appeared for the Writ
Petitioner, Vigyan Bharti Charitable Trust in Writ Petition (C) No.15 of
2013, submitted that the Petitioner was a registered charitable trust
running two medical colleges and a dental college in the State of Odisha.
The various submissions made by Mr. Rao were a repetition of the
submissions already made by Mr. Harish Salve and others. Mr. Rao, however,
referred to a Two-Judge Bench decision of this Court in Dr. Dinesh Kumar
Vs. Motilal Nehru Medical Colleges, Allahabad & Ors. [(1985) 3 SCC 727],
wherein, while considering the question of admission to medical colleges
and the All India Entrance Examination, it was, inter alia, held that it
should be left to the different States to either adopt or reject the
National Eligibility Entrance Test proposed to be conducted by the Medical
Council of India. Mr. Rao submitted that as stated by Justice V. Krishna
Iyer in the case of Jagdish Sharan & Ors. Vs. Union of India & Ors. [(1980)
2 SCC 768], merit cannot be measured in terms of marks alone, but human
sympathies are equally important. The heart is as much a factor as the
head in assessing the social value of a member of the medical profession.
105. In Writ Petition (Civil) No.535 of 2012, Saveetha Institute of
Medical and Technical Sciences, a Deemed University, declared as such under
Section 3 of the University Grants Commission Act, 1956, has questioned the
impugned Notifications and the amended Clauses of the MCI Regulations on
the same grounds as in the earlier cases. Mr. Jayanth Muth Raj, learned
Advocate appearing for the Petitioner, repeated and reiterated the
submissions made earlier in regard to the law as laid down in the T.M.A.
Pai Foundation case (supra) and in P.A. Inamdar's case (supra) and urged
that the impugned Notifications had been issued in violation of the
decisions rendered in the said two cases and in other subsequent cases
indicating that private institutions had the right to evaluate their
admission procedure based on principles of fairness, transparency and non-
exploitation. Mr. Muth Raj submitted that in the absence of any
consensual arrangement in the case of the Petitioner, the MCI or the Dental
Council of India could not compel the Petitioner to accept the National
Eligibility-cum-Entrance Test on the basis of the impugned Regulations.
Learned counsel submitted that to that extent, the impugned amended
Regulations and the Notifications issued to enforce the same were ultra
vires Articles 14, 19(1)(g) and 26 of the Constitution and were liable to
be struck down.
106. Writ Petition (Civil) No.495 of 2012 and Transfered Case No.108 of
2012 involve common questions regarding the conducting of NEET in English
and Hindi in the State of Gujarat, where the medium of instructions under
the Gujarat Board of Secondary Education is Gujarati. The submissions made
both on the behalf of the Petitioners and the State of Gujarat were ad idem
to the extent that Entry 66 of List I restricts the legislative powers of
the Central Government to "co-ordination and determination of standards of
education". Thus, as long as the Common Entrance Examination held by the
State or the other private institutions did not impinge upon the standards
laid down by Parliament, it is the State which can, in terms of Entry 25 of
List III, prescribe such a Common Entrance Test in the absence of any
Central Legislation relatable to Entry 25 of List III. Mr. K.K. Trivedi,
learned Advocate, appearing for the Petitioners submitted that the impugned
Regulations and Notifications were, ultra vires Section 33 of the 1956 Act,
since prescribing a Common Entrance Test is not one of the stated purposes
of the Act and were, therefore, liable to be struck down.
107. Appearing for the Medical Council of India, Mr. Nidhesh Gupta,
learned Senior Advocate, submitted that the Medical Council of India Act,
1956, is traceable to Entry 66 of List I, as was held in MCI Vs. State of
Karnataka [(1998) 6 SCC 131]. In paragraph 24 of the said decision it was
categorically indicated that the Indian Medical Council Act being relatable
to Entry 66 of List I, prevails over any State enactment to the extent the
State enactment is repugnant to the provisions of the Act, even though the
State Acts may be relatable to Entry 25 or 26 of the Concurrent List.
108. Mr. Gupta submitted that Entry 66 in List I empowers the Central
Government to enact laws for coordination and determination of standards in
institutions for higher education or research and scientific and technical
institutions. Learned counsel also urged that Section 19-A (1) of the
Indian Medical Council Act, 1956, provides that the Council may prescribe
the minimum standards of medical education required for granting recognised
medical qualifications (other than postgraduate medical qualifications) by
universities or medical institutions in India. Mr. Gupta submitted that
Section 20 relating to post-graduate medical education could also prescribe
similar standards of Postgraduate Medical Education for the guidance of
Universities. Mr. Gupta submitted that Section 33 of the 1956 Act,
empowers the Medical Council of India, with the previous approval of the
Central Government to make Regulations, and provides that the Council may
make Regulations generally to carry out the purposes of the Act, and,
without prejudice to the generality of this power, such Regulations may
provide for "any other matter for which under the Act provision may be made
by Regulations”. Mr. Gupta urged that it is the accepted position that
standards of education are to be determined by the MCI. The questions
which have been posed on behalf of the Petitioners in these various
matters, challenging the vires of the Regulations, are whether the power of
determination of standards of education includes the power to regulate the
admission process and determine the admission criteria, and whether the
determination of standards of education also include the power to conduct
the examinations.
109. Responding to the two questions, Mr. Gupta submitted that once
the 1997 Regulations were accepted by the various Medical Colleges and
Institutions as being in accordance with law and the powers vested under
Entry 66 of List I, the first issue stands conceded, since the 1997
Regulations prescribing the eligibility criteria for admission in medical
courses had been accepted and acted upon by the medical institutions. In
addition to the above, Mr. Gupta contended that Section 33(l) of the 1956
Act vested the MCI with powers to frame regulations to provide for the
conduct of professional examinations, qualifications of examiners and the
conditions of admission to such examinations. Mr. Gupta submitted that,
under the said provision, it can be said that the MCI was within its rights
to conduct the NEET and stipulate the qualifications of examiners and the
conditions of admission to such examinations.
110. Mr. Gupta submitted that it would be incorrect to say that standards
of education can have no direct impact on norms of admission. Learned
senior counsel pointed out that in paragraph 36 of the judgment in Preeti
Srivastava's case (supra), it had been indicated that the standards of
education are impacted by the caliber of students admitted to the
institution and that the process of selection and the criteria for
selection of candidates has an impact on the standards of medical
education. Mr. Gupta submitted that the views expressed by this Court in
the decisions rendered in Nivedita Jain's case (supra) and that of Ajay
Kumar Singh's case (supra), which had taken a contrary view, were overruled
in Preeti Srivastava's case (supra). Mr. Gupta also relied on the
decision of this Court in Bharati Vidyapeeth (Deemed University) and Ors.
Vs. State of Maharashtra & Anr. [(2004) 11 SCC 755], wherein while
following the decision in Preeti Srivastava's case (supra), it was
reiterated that prescribing standards would include the process of
admission. Mr. Gupta submitted that the said decision had, thereafter,
been followed in Prof. Yashpal Vs. State of Chhattisgarh [(2005) 5 SCC
420]; State of M.P. Vs. Gopal D. Teerthani [(2003) 7 SCC 83], Harish Verma
Vs. Rajesh Srivastava [(2003) 8 SCC 69] and in Medical Council of India Vs.
Rama Medical College Hospital & Research Centre [(2012) 8 SCC 80]. Learned
senior counsel urged that the expression “standard” used in Entry 66 of
List I has been given a very wide meaning by this Court in Gujarat
University, Ahemadabad Vs. Krishna Ranganath Mudholkar [(1963) Supp. 1 SCR
112] and accordingly anything concerned with standards of education would
be included within Entry 66 of List I and would be deemed to be excluded
from other Lists. Mr. Gupta also placed reliance on MCI Vs. State of
Karnataka [1998 (6) SCC 131], wherein it was held that it was settled law
that while considering the amplitude of the entries in Schedule VII of the
Constitution, the widest amplitude is to be given to the language of such
Entries. Mr. Gupta urged that without prejudice to the contention that
Entry 66 of List I directly permits the admission process and the
examination itself being regulated and/or conducted by the MCI, even if the
Entries did not directly so permit, the MCI was entitled to regulate the
said functions since even matters which are not directly covered by the
Entries, but are ancillary thereto, can be regulated. Mr. Gupta submitted
that in Krishna Ranganath Mudholkar's case (supra), it was held that power
to legislate on a subject should normally be held to extend to all
ancillary or subsidiary matters, which can fairly and reasonably be said to
be comprehended in that subject. Reference was also made to the decisions
of this Court in Harakchand Ratanchand Banthia Vs. Union of India [(1969) 2
SCC 166]; ITC Vs. Agricultural Produce Market Committee [(2002) 9 SCC 232];
and Banarasi Dass Vs. WTO [1965 (2) SCR 355], wherein the same principle
has been reiterated. Mr. Gupta submitted that Regulations validly made
become a part of the Statute itself, as was indicated in State of Punjab
Vs. Devans Modern Breweries Ltd. [(2004) 11 SCC 26]; Annamalai University
Vs. Information & Tourism Department [(2009) 4 SCC 590] U.P. Power
Corporation Vs. NTPC Ltd. [(2009) 6 SCC 235] and the St. Johns Teachers
Training Institute case (supra). According to Mr. Gupta, the NEET
Regulations having been validly made and the requisite legislation being
available in Sections 19A, 20 and 23 of the Indian Medical Council Act,
1956, the NEET Regulations must be deemed to be part of the Act itself.
111. Regarding the MCI's power to conduct the NEET, Mr. Gupta urged
that once it had been held in Preeti Srivastava's case (supra) that the
standard of education is impacted by the process of selection, the power to
determine the said process of selection is implicit. In fact, Mr. Gupta
submitted that the aforesaid question stands concluded by the judgment of
this Court in Veterinary Council of India Vs. Indian Council of
Agricultural Research [(2000) 1 SCC 750], wherein, while considering the
provisions of the Veterinary Council of India Act which were materially the
same as those of the Indian Medical Council Act, it was held relying on the
judgment in Preeti Srivastava's case (supra) that the Veterinary Council of
India was competent to and had the requisite powers to hold the All India
Entrance Examination.
112. Mr. Gupta urged that this Court had repeatedly emphasised how
profiteering and capitation fee and other malpractices have entered the
field of medical admissions, which adversely affect the standards of
education in the country. Such malpractices strike at the core of the
admission process and if allowed to continue, the admission process will be
reduced to a farce. It was to put an end to such malpractices that the MCI
introduced NEET and was within its powers to do so.
113. On the necessity of furnishing draft Regulations to the State
Governments, as stipulated under Section 19A(2) and for Committees under
Section 20, Mr. Gupta urged that the same was merely directory and not
mandatory. Referring to the decision of this Court in State of U.P. Vs.
Manbodhan Lal Srivastava [1958 SCR 533], learned counsel submitted that
this Court while considering the provisions of Article 320(3) of the
Constitution, which provides for consultation with the Union Public Service
Commission or the State Public Service Commission, held that the said
requirement in the Constitution was merely directory and not mandatory.
Drawing a parallel to the facts of the said case with the facts of the
present set of cases, Mr. Gupta urged that the provisions of Section 19A(2)
must be held to be directory and not mandatory and its non-compliance could
not adversely affect the amended Regulations and the Notifications issued
in pursuance thereof.
Mr. Gupta submitted that before amending the Regulations, detailed
interaction had been undertaken with the State Governments at various
stages. Learned counsel submitted that as far back as on 14.9.2009,
5.2.2010 and 4.8.2010, letters had been written to various State
Governments and the responses received were considered. There were joint
meetings between the various State representatives and the other concerned
parties and the concerns of most of the State Governments were fully
addressed.
114. On the question of federalism and the powers of the State under
Article 254 of the Constitution, Mr. Gupta contended that since the MCI
derived its authority from Entry 66 of List I, it is a subject which is
exclusively within the domain of the Union. Mr. Gupta submitted that all
the arguments advanced on behalf of the Petitioners were on the erroneous
assumption that the Regulations had been made under Entry 25 of List III.
Mr. Gupta pointed out that in paragraph 52 of the judgment in Preeti
Srivastava's case (supra), this Court had held that the impugned
Regulations had been framed under Entry 66, List I and that the Regulations
framed by the MCI are binding and the States cannot in exercise of powers
under Entry 25 of List III make Rules and Regulations which are in conflict
with or adversely impinge upon the Regulations framed by the MCI for Post-
graduate medical education. Mr. Gupta urged that since the standards laid
down by the MCI are in exercise of powers conferred by Entry 66 of List I,
the same would prevail over all State laws on the same subject.
115. Mr. Gupta also urged that the ratio of Lavu Narendranath's case
(supra) had been misunderstood on behalf of the Petitioners and the
arguments raised on behalf of Yenepoya University was based on the ratio
that Entry 66 of List I is not relatable to a screening test prescribed by
the Government or by a University for selection of students from out of a
large number applying for admission to a particular course of study. Mr.
Gupta pointed out that the ratio of the decision in Preeti Srivastava's
case (supra) and in Lavu Narendranath's case (supra) show that the
Government which ran the colleges had the right to make a selection out of
a large number of candidates and for this purpose they could prescribe a
test of their own which was not contrary to any law. It was urged that in
the said case, there was no Central legislation occupying the field. Mr.
Gupta urged that NEET is not a mere screening test, but an eligibility test
which forms the basis of selection. Mr. Gupta submitted that any test
which might be prescribed by a State Government would be against the law in
the present case, being in the teeth of the NEET Regulations.
116. With regard to the submissions made on behalf of the minority
institutions enjoying the protection of Article 30, Mr. Gupta contended
that reliance placed on behalf of CMC, Vellore, on the judgment in the
Ahmedabad St. Xavier's College Society Vs. State of Gujarat [(1974) 1 SCC
717], was entirely misplaced, and, in fact, the said judgment supports a
test such as NEET. Mr. Gupta submitted that on a proper analysis of the
said judgment and in particular the judgment delivered by Chief Justice
Ray, (as His Lordship then was), it would be evident that even in the said
judgment the right of religious and linguistic minorities to establish and
administer educational institutions of the choice of the minorities had
been duly recognised. Chief Justice Ray also observed that if the scope of
Article 30(1) is made an extension of the right under Article 29(1) as a
right to establish and administer educational institutions for giving
religious instruction or for imparting education in their religious
teachings or tenets, the fundamental right of minorities to establish and
administer educational institutions of their choice would be taken away.
It was also observed in the judgment that every section of the public, the
majority as well as minority, has rights in respect of religion as
contemplated in Articles 25 and 26 of the Constitution. Mr. Gupta urged
that the whole object of conferring the right on minorities under Article
30 is to ensure that there would be equality between the majority and the
minority. It was urged that it is for the aforesaid reason that whenever
the majority community conferred upon itself a special power to overrule or
interfere with the administration and management of the minority
institutions, the Supreme Court struck down the said power. Mr. Gupta
submitted that whenever an attempt was made to interfere with the rights
guaranteed to religious and linguistic minorities, as in the St. Xavier's
case (supra), the same being arbitrary and unreasonable, was struck down.
Reliance was also placed on the decision in the case of Rev. Father W.
Proost, and in the case of Rt. Rev. Bishop S.K. Patro, where the impugned
order of the Secretary to the Government dated 22nd May, 1967, set aside
the order passed by the President of the Board of Secondary Education. Mr.
Gupta urged that in the very initial stage of judicial consideration in
these matters, in State of Kerala Vs. Very Rev. Mother Provincial [(1970)
2 SCC 417], the impugned provisions required nominees of the University and
the Government to be included in the Governing Body. The same being a
direct infringement on the rights of the minorities to establish and
administer institutions of their choice, the impugned provision was struck
down.
117. Mr. Gupta submitted that in each of the aforesaid cases, an
attempt was made by the majority to take over the management and to impose
its substantive views. Learned counsel submitted that NEET does nothing of
the sort, since it did not infringe any of the rights guaranteed either
under Article 19(1)(g) or Articles 25, 26, 29 and 30 of the Constitution.
Mr. Gupta urged that the various questions raised on behalf of the
Petitioners herein have been fully answered in P.A. Inamdar's case (supra).
They also meet the tests prescribed in the St. Xavier's case (supra) as
well. Mr. Gupta urged that Justice Khanna in paragraph 105 of the judgment
observed that Regulations which are calculated to safeguard the interests
of teachers would result in security of tenure and would attract competent
persons for the posts of teachers and are, therefore, in the interest of
minority educational institutions, and would not violate Article 30(1) of
the Constitution. Mr. Gupta urged that by the same reasoning, Regulations
which are in the interest of the students and will attract the most
meritorious students, are necessarily in the interest of the minority
institutions and do not, therefore, violate their rights under Article
30(1) of the Constitution.
118. Mr. Gupta submitted that in the St. Xavier's case (supra), Justice
Khanna had indicated in his separate judgment the dual tests of
reasonableness and of making the institution an effective vehicle of
education for the minority community and others who resort to it. Mr.
Gupta submitted that NEET meets the test of reasonableness and fully
assists in making the institution an effective vehicle of education, since
it ensures admission for the most meritorious students and also negates any
possibility of admissions being made for reasons other than merit within
each category. Mr. Gupta submitted that, in fact, in paragraph 92 of the
judgment, Justice Khanna had observed that "a regulation which is designed
to prevent maladministration of an educational institution cannot be said
to offend Clause (1) of Article 30". Mr. Gupta re-emphasized that NEET
was not in any way against the rights vested in educational institutions,
being run by the minorities, but it was in the interest of such minorities
to have their most meritorious students in the best institutes.
119. Dealing with the various tests referred to on behalf of the
Petitioners in the different cases, Mr. Gupta submitted that the ratio in
the T.M.A. Pai Foundation case (supra) also supports the NEET Regulations.
Mr. Gupta contended that the right of minority institutions to admit
students was not being denied, inasmuch as, the concerned institutes could
admit students of their own community, but from the list of successful
candidates who appear for the NEET. Mr. Gupta submitted that in the
aforesaid judgment it was also observed that merit is usually determined by
a common entrance test conducted by the institution or in case of
professional colleges, by government agencies. Mr. Gupta submitted that it
had also been emphasized that Regulations in national interest are to apply
to all educational institutions, whether run by a minority or non-
minorities and that an exception to the right under Article 30 is the power
of the State to regulate education, educational standards and allied
matters. Mr. Gupta submitted that in the T.M.A. Pai Foundation case
(supra), it had been indicated that regulatory measures for ensuring
educational standards and maintaining excellence thereof are no anathema to
the protection conferred by Article 30(1).
120. Mr. Gupta submitted that the admission process followed by CMC,
Vellore, failed to meet any of the tests relating to transparency and
fairness and lack of arbitrariness. Mr. Gupta pointed out that, in the
case of a candidate for admission in the Under-graduate or Post-graduate
courses in the said institution, a candidate cannot be selected unless he
is sponsored by the Diocese and the competition is limited to the
particular candidates, who had been sponsored by a particular Diocese,
which Mr. Gupta submitted is violative of Article 14 of the Constitution
and also the principles of merit.
Mr. Gupta urged that as far as the application of Articles 25 and
26 of the Constitution in matters relating to establishment and
administration of educational institutions is concerned, the same has to be
read in relation to matters of religion and with respect to religious
practices which form an essential and integral part of religion. Learned
counsel submitted that the rights protected under Articles 25 and 26 are
available to individuals and not to organized bodies, such as CMC, Vellore,
or other minority run institutions, as had been held by this Court in
Sardar Vs. State of Bombay [1962 Supp. (2) SCR 496], wherein it was
observed that the right guaranteed by Article 25 is an individual right.
The said view was subsequently endorsed in Sri Sri Sri Lakshmana Yatendrulu
Vs. State of A.P. [(196) 8 SCC 705]. Mr. Gupta submitted that, having
regard to the above, the various associations and minorities, which had
challenged the impugned Regulations, were not entitled to do so and their
applications were liable to be dismissed.
121. Mr. Gupta submitted that the impugned Regulations would apply
equally to "Deemed Universities", declared to be so under Section 3 of the
University Grants Commission Act, 1956, hereinafter referred to as the "UGC
Act", since it cannot be argued that the Deemed University will not follow
any rules at all. Mr. Gupta pointed out that in the Bharati Vidyapeeth's
case (supra), this Court had held that the standards prescribed by
statutory authorities, such as the Medical Council of India, governed by
Entry 66 of List I of the Seventh Schedule to the Constitution, must be
applied, particularly when the Deemed Universities seek recognition of the
medical courses taught by them, under the provisions of the 1956 Act. Mr.
Gupta submitted that the Deemed Universities cannot take the benefit of
recognition under the 1956 Act, but refuse to follow the norms prescribed
therein.
Mr. Gupta pointed out that it had inter alia been indicated in
paragraph 24 of the affidavit filed on behalf of the Commission that the
Commission was also of the view that all the constituent medical colleges
of "Deemed Universities" may be asked to comply with the Notification dated
21.12.2010, issued by the Medical Council of India, in view of Article 6.1
in the UGC (Institutions Deemed to be Universities) Regulations, 2010,
which states that:
"Admission of students to all deemed to be universities, public
or private, shall be made strictly on merit based on an All
India examination as prescribed by the Regulations and in
consistence with the national policy in this behalf, from time
to time."
122. On the percentile system of grading, which had been touched upon
by Dr. Dhawan, it was submitted that the said system of ranking/ grading
was being followed internationally in many of the premier institutions
around the globe.
123. Adverting to the submissions made by Mr. L. Nageshwara Rao, on
behalf of the States of Andhra Pradesh and Tamil Nadu, regarding the
enactment of the A.P. Educational Institutions (Regulation of Admissions
and Prohibition of Capitation Fee) Act, 1983, on the basis of the
Presidential Order dated 10th May, 1979, made under Article 371-D of the
Constitution, Mr. Gupta submitted that neither the said Article nor the
Presidential Order was concerned with standards of education. Mr. Gupta
urged that a reading of Sub-clause (1) of Article 371-D of the Constitution
makes it clear that it confers powers on the President to make an Order
with regard to the State of Andhra Pradesh "for equitable opportunities and
facilities for the people belonging to different parts of the State".
Mr. Gupta urged that the State legislation providing for State level
entrance examination is not relatable to Article 371-D and, as such, the
State legislation had to yield to the Union legislation, which Mr. Gupta
urged had been the consistent view taken in Govt. of A.P. Vs. Mohd. Ghouse
Mohinuddin [(2001) 8 SCC 416]; V. Jaganadha Rao Vs. State of A.P. [(2001)
10 SCC 401]; and NTR University of Health Sciences Vs. G. Babu Rajendra
Prasad [(2003) 5 SCC 350].
124. As to the weightage of marks being given up to a maximum of 30%,
to government servants serving in remote areas, Mr. Gupta said that the
same had been upheld by this Court in State of M.P. Vs. Gopal D. Tirthani
[(2003) 7 SCC 83].
125. Replying to the submissions made on behalf of some of the
other Petitioners and, in particular, on behalf of the Christian Medical
College, Ludhiana, in Writ Petition No. 20 of 2012, Mr. Gupta urged that
Section 3B of the 1956 Act empowers the Board of Governors to exercise the
powers and discharge the functions of the Council and, accordingly, even if
the appointment of the members of the Board of Governors was ad hoc in
nature, it made no difference to their working and discharging the
functions of the Council.
126. Mr. Gupta urged that private bodies and religious and
linguistic minorities have a fundamental right to establish and administer
medical institutions or other institutions of their choice under Articles
19(1)(g) and 30 of the Constitution, but such right was not unfettered and
did not include the right to maladminister the respective institutions.
Learned counsel urged that in the name of protection under Articles 25, 26
and 30 of the Constitution, an institution run by a religious or linguistic
minority did not have the right to lower the standards of education set by
the Medical Council of India or to recruit staff, who were not properly
qualified, or to deprive the students of the necessary infrastructure to
run such courses. Accordingly, the MCI was within its jurisdiction to lay
down proper standards and to also conduct an All-India Entrance Examination
to eliminate any possibility of malpractice. Mr. Gupta urged that the
several Writ Petitions filed on behalf of both States and private
individuals and religious and linguistic minorities are, therefore, liable
to be dismissed with appropriate costs.
127. Mr. Sidharth Luthra, learned Additional Solicitor General,
appearing for the Union of India, in the Ministry of Health and Family
Welfare, at the very outset, submitted that the Union of India fully
supported the stand of the MCI. Mr. Luthra urged that the impugned
Notifications amending the Regulations in regard to the introduction of
NEET for both graduate medical education and post-graduate medical
education had been validly made under powers conferred upon the MCI under
Section 33 of the 1956 Act, upon obtaining the previous sanction of the
Central Government, as required under the said Section. Mr. Luthra
submitted that there was a definite rationale behind holding a single
examination. The learned ASG urged that the NEET Regulations had been
framed by the MCI, after due deliberations with the Central Government and,
broadly speaking, the logic behind enacting the said Regulations were to
introduce uniformity of standards, merit and transparency and to lessen the
hardship of aspiring students. Mr. Luthra urged that the NEET and the
amending Regulations, which had been impugned, were not ultra vires since
the 1956 Act is relatable to Entry 66 of the Union List and prevails over
any State enactment, even though the State Acts may be relatable to Entry
25 or 26 of the Concurrent List, to the extent the provisions of the State
Acts were repugnant to the Central legislation. Mr. Luthra urged that
Regulations framed under Section 33 of the 1956 Act, with the previous
sanction of the Central Government, have statutory status and the said
Regulations were framed to carry out the purposes of the said Act.
128. Mr. Luthra repeated Mr. Gupta's submission that the rights of the
minorities preserved under Article 30 were not adversely affected or
prejudiced in any way, as had been explained in P.A. Inamdar's case
(supra). The learned ASG submitted that NEET had been introduced in the
national interest to ensure that meritorious students did not suffer the
problem of appearing in multiple examinations conducted by various agencies
which also resulted in different standards for admission, which had the
effect of compromising merit. Mr. Luthra urged that the earlier system of
multiple examinations was neither in the national interest nor in the
interest of maintaining the standards of medical education, nor did it
serve the interest of poor/middle class students who had to buy forms of
several examinations and travel across the country to appear in multiple
examinations. It was urged that any Regulation framed in the national
interest must necessarily apply to all educational institutions, whether
run by the majority or the minority groups. It was also urged that such a
Regulation must necessarily be read into Article 30 of the Constitution.
Mr. Luthra referred to the views expressed in that behalf in Paragraph 107
of the judgment in the T.M.A. Pai Foundation case (supra). The learned ASG
submitted that the amended Regulations do not restrict or in any manner
take away the rights of the minority institutions under Articles 19(1)(g)
and 30 of the Constitution to admit students from their community.
129. Mr. Luthra reiterated the submissions made by Mr. Gupta that the
right conferred on the religious and linguistic minorities to administer
educational institutions of their choice, is not an absolute right and may
be regulated in certain special circumstances.
130. The learned ASG also urged that the merit list to be
published on the results of the NEET, will contain all the details of each
candidate, including the State, category, minority status, caste and tribal
status in front of his/her name and rank so that there would be no
hindrance whatsoever in implementing the constitutional principles of
reservation and minority rights and merit. Furthermore, the transparency in
the process of admission would also be fully achieved.
131. On the question of different mediums of instruction in
schools throughout the country, Mr. Luthra submitted that the NEET - UG
would be conducted in multiple languages, such as English, Hindi, Telegu,
Assamese, Gujarati, Marathi, Tamil and Bengali, and hence, the submissions
made that NEET was not being conducted in the regional languages, is
misleading.
132. One other important aspect touched upon by Mr. Luthra is
with regard to the syllabus for NEET, which would be based on the CBSE
syllabus. The learned ASG submitted that the syllabus for NEET had been
prepared by the MCI, after obtaining feedback from different stake-holders,
including the National Board and State Boards, across the country. Mr.
Luthra submitted that the Regulations have been amended to implement the
provisions of the Act so as to meet the difficulties, which had been raised
by some of the States. The learned ASG submitted that the NEET Regulations
were clearly within the competence and jurisdiction of the Medical Council
in the discharge of its obligations to carry out the purposes of the Act,
as had been enjoined in the different decisions of this Court and, in
particular, in Preeti Srivastava's case (supra). The learned ASG urged that
the objections which had been sought to be taken on behalf of the various
Petitioners, including the State Governments, with regard to the holding of
the NEET examination, were wholly misconceived and were liable to be
rejected.
133. Various issues of singular importance, some of which have been
considered earlier, arise out of the submissions made on behalf of the
respective parties questioning the vires of the amended regulations
relating to Under-graduate and Post-graduate medical education, namely,
(i) The validity of the MCI Regulations and the DCI Regulations
and the amendments effected therein with regard to Under-graduate
and Post-graduate courses of medicine in medical and dental colleges
and institutions in the light of Section 19A(2) of the Indian
Medical Council Act, 1956, and the corresponding provisions in the
Dentists Act, 1948.
(ii) The jurisdiction and authority of the MCI and the DCI to
conduct a single National Eligibility-cum-Entrance Test for
admission to the M.B.B.S., B.D.S. and Post-graduate courses in both
the disciplines.
(iii) The rights of the States and private institutions to
establish and administer educational institutions and to admit
students to their M.B.B.S., B.D.S. and Post-graduate courses;
(iv) The impact of NEET on the rights guaranteed to religious
and linguistic minorities under Article 30 of the Constitution.
(v) Do the impugned Regulations come within the ambit
of Entry 66, List I, of the Seventh Schedule to the Constitution?;
(vi) The effect of Presidential orders made under Article 371D
of the Constitution of India.
134. Despite the various issues raised in this batch of cases, the
central issue relates to the validity of the amended Regulations and the
right of the MCI and the DCI thereunder to introduce and enforce a common
entrance test, which has the effect of denuding the State and private
institutions, both aided and unaided, some enjoying the protection of
Article 30, of their powers to admit students in the M.B.B.S., B.D.S. and
the Post-graduate Courses conducted by them. There is little doubt that
the impugned Notifications dated 21.12.2010 and 31.5.2012, respectively,
and the amended Regulations directly affect the right of private
institutions to admit students of their choice by conducting their own
entrance examinations, as they have been doing all along. Attractive
though it seems, the decision taken by the MCI and the DCI to hold a single
National Eligibility-cum-Entrance Test to the M.B.B.S., B.D.S. and the Post-
graduate courses in medicine and dentistry, purportedly with the intention
of maintaining high standards in medical education, is fraught with
difficulties, not the least of which is the competence of the MCI and the
DCI to frame and notify such Regulations. The ancillary issues which arise
in regard to the main issue, relate to the rights guaranteed to citizens
under Article 19(1)(g) and to religious and linguistic minorities under
Article 30 of the Constitution, to establish and administer educational
institutions of their choice.
135. Doubts have been raised regarding the competence of the MCI and
the DCI to amend the 1997 and 2000 Regulations, or the 2007 Regulation and
to issue the impugned Notifications to cover all the medical institutions
in the country, which have their own procedures relating to admissions to
the M.B.B.S., B.D.S. and Post-graduate Courses which passed the triple test
indicated in P.A. Inamdar's case (supra). The validity of the MCI
Regulations of 1997 and 2000 and the DCI Regulations of 2007 and the
amendments effected therein has been questioned with reference to Sections
19A(2) and 20 of the 1956 Act and Section 20 of the 1948 Act. While
empowering the MCI and the DCI to prescribe minimum standards of medical
education required for granting recognised medical qualifications, it has
also been stipulated that the copies of the draft Regulations and all
subsequent amendments thereof are to be furnished by the Council to all the
State Governments and the Council shall, before submitting the Regulations
or any amendment thereof, as the case may be, to the Central Government for
sanction, take into consideration the comments of any State Government
received within three months from the furnishing of such copies. The said
provisions do not appear to have been complied with by the MCI or the DCI,
which rendered the Regulations and the amendments thereto invalid. On
behalf of the MCI an attempt was made to justify the omission by urging
that the directions were only directory and not mandatory. In support of
such a contention reliance was placed on Manbodhan Lal Srivastava's case
(supra), wherein the provisions of Article 320(3) of the Constitution
providing for consultation with the Union Public Service Commission or the
State Public Service Commission, were held to be directory and not
mandatory. A submission was also made that before the Regulations were
amended, MCI had interacted with the State Governments and letters had also
been exchanged in this regard and the responses were taken into account by
the Council while amending the Regulations.
136. We are afraid that the said analogy would not be applicable to the
facts of these cases. The direction contained in Sub-section (2) of
Section 19A of the 1956 Act makes it a pre-condition for the Regulations
and all subsequent amendments to be submitted to the Central Government for
sanction. The Council is required to take into consideration the comments
of any State Government within three months from the furnishing of copies
of the draft Regulations and/or subsequent amendments thereto. There is
nothing to show that the MCI ever sent the draft amended Regulations to the
different State Governments for their views. The submission of the draft
Regulations and all subsequent amendments thereto cannot be said to be
directory, since upon furnishing of the draft Regulations and all
subsequent amendments thereto by the Council to all the State Governments,
the Council has to take into consideration the comments, if any, received
from any State Government in respect thereof, before submitting the same to
the Central Government for sanction.
137. The fact situation in Manbodhan Lal Srivastava's case (supra) was
different from the fact situation in this batch of cases. Article 320(3) of
the Constitution provides for consultation by the Central or State
Government with regard to the matters enumerated therein. In the instant
case, it is not a case of consultation, but a case of inputs being provided
by the State Governments in regard to the Regulations to be framed by the
MCI or the DCI. Realising the difficulty, Mr. Gupta had argued that since
the 1997 and 2000 Regulations had been acted upon by the concerned parties,
the same must be held to have been accepted and the validity thereof was no
longer open to challenge.
138. Mr. Gupta's aforesaid submissions cannot be accepted, inasmuch as, an
invalid provision cannot be validated simply by acting on the basis
thereof.
139. Mr. Gupta has also urged that the MCI derived its authority for
framing the Regulations and/or effecting amendments thereto from Entry 66,
List I, which is within the domain of the Central Government. Accordingly,
the same would have primacy over all State laws on the subject.
140. Mr. Gupta's said submission finds support in Preeti Srivastava's case
(supra), wherein it has been held that the Regulations framed by the MCI is
binding upon the States having been framed under Entry 66, List I of the
Seventh Schedule to the Constitution. But, where does it take us as far as
these cases are concerned which derive their rights and status under
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution? Can the rights
guaranteed to individuals and also religious and linguistic minorities
under the said provisions of the Constitution, be interfered with by
legislation and that too by way of delegated legislation?
141. The four impugned Notifications dated 21.12.2010 and 31.5.2012 make it
clear, in no uncertain terms, that all admissions to the M.B.B.S. and the
B.D.S. courses and their respective Post-graduate courses, shall have to be
made solely on the basis of the results of the respective NEET, thereby
preventing the States and their authorities and privately-run institutions
from conducting any separate examination for admitting students to the
courses run by them. Although, Article 19(6) of the Constitution recognizes
and permits reasonable restrictions on the right guaranteed under Article
19(1)(g), the course of action adopted by the MCI and the DCI would not, in
our view, qualify as a reasonable restriction, but would amount to
interference with the rights guaranteed under Article 19(1)(g) and, more
particularly, Article 30, which is not subject to any restriction similar
to Article 19(6) of the Constitution. Of course, over the years this Court
has repeatedly observed that the right guaranteed under Article 30, gives
religious and linguistic minorities the right to establish and administer
educational institutions of their choice, but not to maladminister them and
that the concerned authorities could impose conditions for maintaining high
standards of education, such as laying down the qualification of teachers
to be appointed in such institutions and also the curriculum to be followed
therein. The question, however, is whether such measures would also
include the right to regulate the admissions of students in the said
institutions.
142. The first, second, third and fourth issues referred to hereinabove in
paragraph 133, are intermingled and are taken up together for the sake of
convenience. The aforesaid issues have been considered and answered by
this Court in the Ahmedabad St. Xavier's College Society case (supra), St.
Stephen's College case (supra), Islamic Academy case (supra), P.A.
Inamdar's case (supra) and exhaustively in the T.M.A. Pai Foundation case
(supra). Can, therefore, by purporting to take measures to maintain high
educational standards to prevent maladministration, the MCI and the DCI
resort to the amended MCI and DCI Regulations to circumvent the judicial
pronouncements in this regard? The answer to such question would obviously
have to be in the negative.
143. The Supreme Court has consistently held that the right to
administer an educational institution would also include the right to admit
students, which right, in our view, could not be taken away on the basis of
Notifications issued by the MCI and the DCI which had no authority, either
under the 1956 Act or the 1948 Act, to do so. The MCI and the DCI are
creatures of Statute, having been constituted under the Indian Medical
Council Act, 1956, and the Dentists Act, 1948, and have, therefore, to
exercise the jurisdiction vested in them by the Statutes and they cannot
wander beyond the same. Of course, under Section 33 of the 1956 Act and
Section 20 of the 1948 Act, power has been reserved to the two Councils to
frame Regulations to carry out the purposes of their respective Acts. It
is pursuant to such power that the MCI and the DCI has framed the
Regulations of 1997, 2000 and 2007, which set the standards for maintaining
excellence of medical education in India. The right of the MCI and the DCI
to prescribe such standards has been duly recognised by the Courts.
However, such right cannot be extended to controlling all admissions to the
M.B.B.S., the B.D.S. and the Post-graduate Courses being run by different
medical institutions in the country. At best, a certain degree of control
may be exercised in regard to aided institutions, where on account of the
funds being provided by the Government, it may have a say in the affairs of
such institutions.
144. These questions have already been considered and decided in the
T.M.A. Pai Foundation case (supra), wherein, it was categorically held that
the right to admit students being an essential facet of the right of a
private medical institution, and, in particular, minority institutions
which were unaided, non-capitation fee educational institutions, so long as
the process of admission to such institutions was transparent and merit was
adequately taken care of, such right could not be interfered with. Even
with regard to aided minority educational institutions it was indicated
that such institutions would also have the same right to admit students
belonging to their community, but, at the same time, it should also admit a
reasonable number of non-minority students which has been referred to as
the "sprinkling effect" in the Kerala Education Bill case (supra).
145. The rights of private individuals to establish and administer
educational institutions under Article 19(1)(g) of the Constitution are now
well-established and do not require further elucidation. The rights of
unaided and aided religious and linguistic minorities to establish and
administer educational institutions of their choice under Article 19(1)(g),
read with Article 30 of the Constitution, have come to be crystalised in
the various decisions of this Court referred to hereinabove, which have
settled the law that the right to admit students in the different
educational and medical institutions is an integral part of the right to
administer and cannot be interfered with except in cases of
maladministration or lack of transparency. The impugned Regulations, which
are in the nature of delegated legislation, will have to make way for the
Constitutional provisions. The freedom and rights guaranteed under
Articles 19(1)(g), 25, 26 and 30 of the Constitution to all citizens to
practise any trade or profession and to religious minorities to freedom of
conscience and the right freely to profess, practise and propagate
religion, subject to public order, morality and health and to the other
provisions of Part III of the Constitution, and further to maintain
institutions for religious and charitable purposes as guaranteed under
Articles 25 and 26 of the Constitution, read with the rights guaranteed
under Article 30 of the Constitution, are also well-established by various
pronouncements of this Court. Over and above the aforesaid freedoms and
rights is the right of citizens having a distinct language, script or
culture of their own, to conserve the same under Article 29(1) of the
Constitution.
146. Nowhere in the 1956 Act nor in the MCI Regulations, has the
Council been vested with any authority to either conduct examinations or to
direct that all admissions into different medical colleges and institutions
in India would have to be on the basis of one common National Eligibility-
cum-Entrance Test, thereby effectively taking away the right of the
different medical colleges and institutions, including those run by
religious and linguistic minorities, to make admissions on the basis of
their own rules and procedures. Although, Mr. Gupta has contended that
Section 33(l) of the 1956 Act entitles the MCI to make regulations
regarding the conduct of professional examinations, the same, in our view,
does not empower the MCI to actually hold the entrance examination, as has
been purported to be done by the holding of the NEET. The power to frame
regulations for the conduct of professional examinations is a far cry from
actually holding the examinations and the two cannot be equated, as
suggested by Mr. Gupta.
147. Although, the controversy has been extended to include the
amendments made to the Entries in the Second and Third Lists of the Seventh
Schedule to the Constitution and the deletion of Entry 11 from the State
List and the introduction of Entry 25 in the Concurrent List, on behalf of
the MCI it has been reiterated that the impugned Notifications and amended
Regulations had been made under Entry 66 of List I by the MCI acting on its
delegated authority and would, therefore, have an overriding effect over
any State law on the subject.
As already indicated hereinbefore, the right of the MCI to frame
Regulations under Entry 66, List I, does not take us anywhere, since the
freedoms and rights sought to be enforced by the Petitioners flow from
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution which cannot be
superseded by Regulations framed by a Statutory authority by way of
delegated legislation. The fact that such power was exercised by the MCI
and the DCI with the previous approval of the Central Government, as
contemplated under Section 33 of the 1956 Act and under Section 20 of the
1948 Act, would not bestow upon the Regulations framed by the MCI and DCI,
which are in the nature of subordinate legislation, primacy over the
Constitutional provisions indicated above. A feeble attempt has been made
by Mr. Gupta to suggest that admission into institutions run by the
Christian Church depended on selection of students by the Diocese. This
procedure, according to Mr. Gupta, was against the concept of recognition
of merit.
148. In our judgment, such a stand is contrary to the very essence of
Articles 25, 26, 29(1) and 30 of the Constitution. In view of the rights
guaranteed under Article 19(1)(g) of the Constitution, the provisions of
Article 30 should have been redundant, but for the definite object that the
framers of the Constitution had in mind that religious and linguistic
minorities should have the fundamental right to preserve their traditions
and religious beliefs by establishing and administering educational
institutions of their choice. There is no material on record to even
suggest that the Christian Medical College, Vellore, or its counter-part in
Ludhiana, St. John's College, Bangalore, or the linguistic minority
institutions and other privately-run institutions, aided and unaided, have
indulged in any malpractice in matters of admission of students or that
they had failed the triple test referred to in P.A. Inamdar's case
(supra). On the other hand, according to surveys held by independent
entities, CMC, Vellore and St. John's Medical College, Bangalore, have been
placed among the top Medical Colleges in the country and have produced some
of the most brilliant and dedicated doctors in the country believing in the
philosophy of the institutions based on Christ's ministry of healing and
caring for the sick and maimed.
149. Although, there is some difference of opinion as to the right to
freedom of religion as guaranteed under Article 25 of the Constitution
being confined only to individuals and not organizations in regard to
religious activities, Article 26(a) very clearly indicates that subject to
public order, morality and health, every religious denomination or any
section thereof shall have the right to establish and maintain institutions
for religious and charitable purposes. The emphasis is not on religious
purposes alone, but extends to charitable purposes also, which would
include the running of a hospital to provide low-cost, but efficient
medical care to all, which the CMC, Vellore, and other private missionary
hospitals of different denominations are doing. So long as a private
institution satisfies the triple test indicated in P.A. Inamdar’s case
(supra), no objection can be taken to the procedure followed by it over the
years in the matter of admission of students into its M.B.B.S. and Post-
graduate courses in medicine and other disciplines. Except for alleging
that the admission procedure was controlled by the Church, there is nothing
even remotely suggestive of any form of maladministration on the part of
the medical institutions being run by the Petitioner Association.
150. This brings us to the issue regarding the impact of the NEET on
the right of the religious and linguistic minorities in view of the
provisions of Article 30(1) of the Constitution. Although, the said
question has been dealt with to some extent while dealing with the other
issues, certain aspects thereof still need to be touched upon. As has been
mentioned hereinbefore, having regard to the provisions of Article 19(1)(g)
of the Constitution, the provisions of Article 30 would have been redundant
had not the framers of the Constitution had some definite object in mind in
including Article 30 in the Constitution. This Court has had occasion in
several matters to consider and even deal with the question. In the
Ahmedabad St. Xavier's College Society case (supra), it was held that the
right under Article 30(1) is more in the nature of protection and was
intended to instill confidence in minorities against any executive or
legislative encroachment on their right to establish and administer
educational institutions of their choice. While the aforesaid observations
help in understanding the intention of the Constituent Assembly in
including Article 30 in the Constitution as a fundamental right untrammeled
by any restrictions, as in the case of other fundamental rights, the real
spirit of the said Article has been captured by Justice V. Krishna Iyer in
Jagdish Sharan's case (supra), wherein His Lordship observed that merit
cannot be measured in terms of marks alone, but human sympathies are
equally important. His Lordship's further observations that the heart is
as much a factor as the head in assessing the social value of a member of
the medical profession, completes the picture. This, in fact, is what has
been attempted to be conveyed by Mr. Harish Salve, appearing for the CMC
Vellore, while submitting that under Article 30 of the Constitution an
educational institution must be deemed to have the right to reject a
candidate having superior marks as against a candidate who having lesser
marks conformed to the beliefs, aspirations and needs of the institution
for which it was established.
151. One of the eleven questions which came to be considered by the
Eleven Judge Bench in the T.M.A. Pai Foundation case, namely, Question
5(a), was whether the minority's rights to establish and administer
educational institutions of their choice would include the procedure and
method of admission and selection of students. While dealing with one of
the five issues reformulated by the Chief Justice as to whether there can
be Government regulations in case of private institutions and, if so, to
what extent, it was indicated in the majority judgment that the right to
establish and administer broadly comprises various rights, including the
right to admit students in regard to private unaided non-minority
educational institutions. It was further observed that, although, the
right to establish an educational institution can be regulated, such
regulatory measures must, in general, be to ensure the maintenance of
proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of maladministration by those in-charge
of management, and that the fixing of a rigid fee structure, dictating the
formation and composition of the Governing Body, compulsory nomination of
teachers and staff for appointment or nominating students for admissions,
would be unacceptable restrictions.
152. As far as private unaided professional colleges are concerned, the
majority view was that it would be unfair to apply the same rules and
regulations regulating admission to both aided and unaided professional
institutions. In that context, it was suggested that it would be
permissible for the University or the Government at the time of granting
recognition, to require a private unaided institution to provide for merit-
based selection, while, at the same time, giving the management sufficient
discretion in admitting students, which could be done by reserving a
certain percentage of seats for admission by the management out of those
students who had passed a common entrance test held by itself, while the
rest of the seats could be filled up on the basis of counselling by the
State agency, which would take care of the poorer and backward sections of
society.
153. However, as far as the aided private minority institutions
are concerned, the inter-play between Article 30 and Article 29(2) of the
Constitution was taken note of in the majority decision and after
considering the various decisions on the said issue, including the decision
in D.A.V. College Vs. State of Punjab [(1971) 2 SCC 269] and the Ahmedabad
St. Xavier's College Society case (supra), reference was made to the
observations made by Chief Justice Ray, as His Lordship then was, that, in
the field of administration, it was not reasonable to claim that minority
institutions would have complete autonomy. Checks on the administration
would be necessary in order to ensure that the administration was efficient
and sound and would serve the academic needs of the institution. Reference
was also made to the concurring judgment of Khanna, J., wherein the learned
Judge, inter alia, observed that the right conferred upon religious and
linguistic minorities under Article 30 is to establish and administer
educational institutions of their choice. Administration connotes
management of the affairs of the institution and such management must be
free of control so that the founders or their nominees could mould the
institution as they thought fit and in accordance with the ideas of how the
interest of the community in general and the institution in particular
would be best served. The learned Judge was of the view that the right of
the minorities to administer educational institutions did not prevent the
making of reasonable regulations in respect of such institutions, but such
regulations could not impinge upon the minority character of the
institution and a balance had to be maintained between the two objectives
- that of ensuring the standard of excellence of the institution and that
of preserving the right of minorities to establish and administer their
educational institutions.
154. The learned Judges also approved the view taken in the St.
Stephen's College case (supra) regarding the right of aided minority
institutions to give preference to students of its own community for
admission. Their Lordships, however, had reservations regarding the
rigidity of percentage of students belonging to the minority community to
be admitted.
155. While answering Question 4 as to whether the admission of students to
minority educational institutions, whether aided or unaided, can be
regulated by the State Government or by the University to which the
institution is affiliated, the learned Judges held that admission of
students to unaided minority educational institutions, namely, schools and
under-graduate colleges, cannot be regulated by the State or the University
concerned, except for providing the qualifications and minimum conditions
of eligibility in the interest of academic standards. The learned Judges
further held that the right to admit students, being an essential facet of
the right to administer educational institutions of their choice, as
contemplated under Article 30 of the Constitution, the State Government or
the University may not be entitled to interfere with that right, so long as
the admission to the unaided educational institutions was on a transparent
basis and merit was adequately taken care of. The learned Judges went on
to indicate that the right to administer, not being absolute, there could
be regulatory measures for ensuring educational standards and maintaining
excellence thereof, and it was more so in the matter of admissions to
professional institutions.
156. In answering Question 5(a), as to whether the rights of minorities to
establish and administer educational institutions of their choice would
include the procedure and method of admission and selection of students,
the learned Judges held that a minority institution may have its own
procedure and method of admission as well as selection of students, but
such a procedure must be fair and transparent and the selection of students
in professional and higher educational colleges should be on the basis of
merit and even an unaided minority institution should not ignore the merit
of the students for admission while exercising its right to admit students
to professional institutions. On the question whether the rights of
minority institutions regarding admission of students and to lay down the
procedure and method of admission would be affected, in any way, by receipt
of State aid, the learned Judges were of the view that while giving aid to
professional institutions, it would be permissible for the authority giving
aid to prescribe conditions in that regard, without, however, affecting the
right of such institutions to actually admit students in the different
courses run by them.
157. What can ultimately be culled out from the various observations made
in the decisions on this issue, commencing from the Kerala Education Bill
case (supra) to recent times, is that admissions to educational
institutions have been held to be part and parcel of the right of an
educational institution to administer and the same cannot be regulated,
except for the purpose of laying down standards for maintaining the
excellence of education being provided in such institutions. In the case
of aided institutions, it has been held that the State and other
authorities may direct a certain percentage of students to be admitted
other than by the method adopted by the institution. However, in cases of
unaided institutions, the position is that except for laying down standards
for maintaining the excellence of education, the right to admit students
into the different courses could not be interfered with. In the case of
aided minority institutions, it has been held that the authority giving aid
has the right to insist upon the admission of a certain percentage of
students not belonging to the minority community, so as to maintain the
balance of Article 19(2) and Article 30(1) of the Constitution. Even with
regard to unaided minority institutions, the view is that while the
majority of students to be admitted should be from the minority community
concerned, a certain percentage of students from other communities should
also be admitted to maintain the secular character of education in the
country in what has been described as a "sprinkling effect".
158. Mr. Parasaran's submissions with regard to the concept of
"Rag Bag" legislation would not apply to the facts of these cases since the
amendments to the Regulations of 1997, 2000 and 2007 were effected under
Entry 66, List I of the Seventh Schedule and no recourse was taken to Entry
25 of the Concurrent List by the MCI and DCI while amending the said
Regulations.
159. This brings us to the last issue, which has been raised before us
regarding the impact of the Presidential Orders made under Article 371D of
the Constitution of India. As pointed out by Mr. L. Nageshwar Rao, learned
Senior Advocate, special enactments have been made in the States of Andhra
Pradesh and Tamil Nadu regarding admission of students in the different
medical colleges and institutions being run in the said States. The said
legislation being under Entry 25 of List III of the Seventh Schedule to the
Constitution, the question which arises is whether the amended MCI
Regulations would have primacy over the said State enactments. The
question is answered by Article 371-D of the Constitution which empowers
the President to make special provisions with respect to the State of
Andhra Pradesh, including making orders with regard to admission in
educational institutions. Clause 10 of Article 371-D provides as follows:
"The provisions of this article and of any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of this Constitution or in any other law
for the time being in force."
Accordingly, the enactments made in the States of Andhra Pradesh
and Tamil Nadu will remain unaffected by the impugned Regulations. We have
already held that the Regulations and the amendments thereto have been
framed by the MCI and the DCI with the previous permission of the Central
Government under Entry 66, List I, but that the Regulations cannot prevail
over the constitutional guarantees under Articles 19(1)(g), 25, 26, 29(1)
and 30 of the Constitution.
160. Apart from the legal aspects, which have been considered at length,
the practical aspect of holding a single National Eligibility-cum-Entrance
Test needs to be considered. Although, it has been submitted by the
learned Additional Solicitor General that a single test would help poor
students to avoid sitting for multiple tests, entailing payment of fees for
each separate examination, it has to be considered as to who such poor
students could be. There can be no controversy that the standard of
education all over the country is not the same. Each State has its own
system and pattern of education, including the medium of instruction. It
cannot also be disputed that children in the metropolitan areas enjoy
greater privileges than their counter-parts in most of the rural areas as
far as education is concerned, and the decision of the Central Government
to support a single entrance examination would perpetuate such divide in
the name of giving credit to merit. In a single window competition, the
disparity in educational standards in different parts of the country cannot
ensure a level playing field. The practice of medicine entails something
more than brilliance in academics, it requires a certain commitment to
serve humanity. India has brilliant doctors of great merit, who are
located mostly in urban areas and whose availability in a crisis is quite
uncertain. What is required to provide health care to the general masses
and particularly those in the rural areas, are committed physicians who are
on hand to respond to a crisis situation. Given the large number of people
who live in the villages in difficult conditions, the country today has
more need of such doctors who may not be specialists, but are available as
general physicians to treat those in need of medical care and treatment in
the far flung areas of the country, which is the essence of what was
possibly envisaged by the framers of the Constitution in including Article
30 in Part III of the Constitution. The desire to give due recognition to
merit is laudable, but the pragmatic realities on the ground relating to
health care, especially in the rural and tribal areas where a large section
of the Indian population resides, have also to be kept in mind when policy
decisions are taken in matters such as this. While the country certainly
needs brilliant doctors and surgeons and specialists and other connected
with health care, who are equal to any in other parts of the world,
considering ground realities, the country also has need for "barefoot
doctors", who are committed and are available to provide medical services
and health care facilities in different areas as part of their mission in
becoming doctors.
161. In the light of our aforesaid discussions and the views expressed in
the various decisions cited, we have no hesitation in holding that the
"Regulations on Graduate Medical Education (Amendment) 2010 (Part II)" and
the "Post Graduate Medical Education (Amendment) Regulation, 2010 (Part
II)", whereby the Medical Council of India introduced the single National
Eligibility-cum-Entrance Test and the corresponding amendments in the
Dentists Act, 1948, are ultra vires the provisions of Articles 19(1)(g),
25, 26(a), 29(1) and 30(1) of the Constitution, since they have the effect
of denuding the States, State-run Universities and all medical colleges and
institutions, including those enjoying the protection of the above
provisions, from admitting students to their M.B.B.S., B.D.S. and Post-
graduate courses, according to their own procedures, beliefs and
dispensations, which has been found by this Court in the T.M.A. Pai
Foundation case (supra), to be an integral facet of the right to
administer. In our view, the role attributed to and the powers conferred
on the MCI and the DCI under the provisions of the Indian Medical Council
Act, 1956, and the Dentists Act, 1948, do not contemplate anything
different and are restricted to laying down standards which are uniformly
applicable to all medical colleges and institutions in India to ensure the
excellence of medical education in India. The role assigned to the MCI
under Sections 10A and 19A(1) of the 1956 Act vindicates such a conclusion.
162. As an off-shoot of the above, we also have no hesitation in holding
that the Medical Council of India is not empowered under the 1956 Act to
actually conduct the NEET.
163. The Transferred Cases and the Writ Petitions are, therefore, allowed
and the impugned Notifications Nos. MCI-31(1)/2010-MED/49068, and
MCI.18(1)/2010-MED/49070, both dated 21st December, 2010, published by the
Medical Council of India along with Notification Nos. DE-22-2012 dated 31st
May, 2012, published by the Dental Council of India and the amended
Regulations sought to be implemented thereunder along with Notification
Nos. DE-22-2012 dated 31st May, 2012, published by the Dental Council of
India, are hereby quashed. This will not, however, invalidate actions so
far taken under the amended Regulations, including the admissions already
given on the basis of the NEET conducted by the Medical Council of India,
the Dental Council of India and other private medical institutions, and the
same shall be valid for all purposes.
164. Having regard to the nature of the cases decided by this judgment,
the parties thereto will bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(VIKRAMAJIT SEN)
New Delhi
Dated: July 18, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
T.C. (C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS
WITH
T.C. (C) NO.99/2012 and batch
ANIL R. DAVE, J.
1. I have carefully gone through the elaborate judgment delivered by the
learned Chief Justice. After going through the judgment, I could not
persuade myself to share the same view.
2. As the learned Chief Justice is to retire within a few days, I have to
be quick and therefore, also short. Prior to preparation of our draft
judgments we had no discussion on the subject due to paucity of time
and therefore, I have to express my different views but fortunately
the learned Chief Justice has discussed the facts, submissions of the
concerned counsel and the legal position in such a detail that I need
not discuss the same again so as to make the judgment lengthy by
repeating the submissions and the legal provisions, especially when I
am running against time.
3. Sum and substance of all these petitions is that the Medical Council
of India (hereinafter referred to as ‘the MCI’) should not be
entrusted with a right to conduct National Eligibility-cum- Entrance
Test (hereinafter referred to as ‘the NEET’) and whether introduction
of the NEET would violate fundamental rights of the petitioners
guaranteed under the provisions of Articles 19(1)(g), 25, 26, 29(1)
and 30 of the Constitution of India.
4. The submissions are to the effect that if the MCI or any other body
conducts examination in the nature of the NEET, the petitioners, who
are managing medical colleges, would not be in a position to exercise
their discretion in relation to giving admission to the students in
their colleges and therefore, their fundamental right guaranteed under
Article 19(1)(g) and the rights of the minority institutions under
Articles 29 and 30 would be violated. The submission is to the effect
that the minority institutions should have full and unfettered right
to select the students who are to be imparted education in their
colleges. Any restriction or regulation of whatsoever type, would
violate their fundamental rights. Thus, what is to be seen by this
Court is whether the system sought to be introduced by the MCI under
the provisions of the Indian Medical Council Act, 1956 (hereinafter
referred to as ‘the Act’) is violative of any of the legal or
constitutional provisions. In the process of deciding so, in my
opinion, this Court also has to examine whether it would be in the
interest of the society and the students aspiring to study medicine to
have a common examination in the nature of the NEET.
5. Sections 19A and 20 of the Act, which have been reproduced in the
judgment delivered by the learned Chief Justice, permit the MCI to
prescribe the minimum standards of medical education. Section 33 of
the Act also empowers the MCI to make regulations to carry out the
purposes of the Act. Thus, the said provisions enable the MCI to
regulate the system of medical education throughout the country.
6. Let me first of all consider the scope of the aforestated sections and
the provisions of the Act in relation to the regulation of the
standards of education to be imparted in medical colleges. It is a
matter of sound common sense that to have doctors well versed in the
subject of medicine and having proficiency in their field, we should
have suitable and deserving students who should be imparted good
medical education and there should be strict supervision over the
education system so as to see that the students who are not up to the
mark or are not having the highest standards of education are not
declared successful at the examinations.
7. To achieve the aforestated ideal, the system should be such that it
should have effective regulations at three different stages – The
first stage is the admission of the students to medical colleges. The
students who are admitted to the medical course should be suitable and
should have the right aptitude so that they can be shaped well into
the medical profession after being imparted proper education. The
second stage is with regard to determination of syllabus and the
manner of imparting education and for the said purpose, the regulating
authorities should see that proper medical training is given to the
students and for the said purpose sufficiently equipped hospitals
should be there as teaching institutes. It should also be seen that
sufficient number of patients are treated at the hospitals so that the
students can get adequate practical training where the patients are
being treated. Finally, the examinations, which the students have to
pass to prove their worth as successful students should also be
strictly regulated. If there is any lacuna or short-coming at any of
the above three stages, it would adversely affect the professional
standards of the students passing out from the educational
institutions as physicians, who are trusted by the citizens of India
at critical moments, when someone’s life is at stake. I need not
state anything more with regard to the importance of the medical field
or the physicians as it is a matter of common knowledge that to
maintain good health and to cure the diseases and to avoid or reduce
trauma of a patient, existence of a trained and well groomed doctor is
a sine qua non. All these facts equally apply to dentists and
therefore, I am not specially referring to them every time.
8. By virtue of introduction of the NEET to be conducted under the
supervision of the MCI, standards of the students at the stage of
their admission to the medical colleges, be it for admission to the
M.B.B.S. course or the post graduation studies in medical faculties,
would be regulated. Similarly, for imparting education to the
students studying in the field of Dentistry, Dental Council of India
(For short ‘the DCI’) has to regulate admissions so as to see that
eligible and suitable students are admitted to the different courses
in the field of dentistry.
9. There is no need to discuss the importance of quality of input, when
something is to be produced, manufactured or developed. Even when one
thinks of manufacturing an article, the manufacturer is conscious
about the quality of the input and he would invariably select the best
input i.e. such raw material so as to make his final product
excellent. Principle is not different in the field of education. If
an educational institution wants an excellent output in the nature of
a well trained, well educated, well groomed professional, the
institution must see that suitable and deserving students having an
aptitude for becoming good doctors are admitted to the medical
college. If among all good students, there are students who are not
up to the mark, who are lagging behind in their studies, who are weak
in studies, it would not be possible to educate or groom such students
effectively and efficiently. A weak student may lag behind due to his
lower level of grasping or education or training. In the
circumstances, it becomes the duty of the regulating authority to see
that quality of the students at the stage of admission is thoroughly
examined and only deserving and suitable students are given admission
to the medical colleges so as to make them suitable members of a noble
profession upon completion of their studies. So as to see that only
deserving and suitable students are admitted to the medical colleges,
the MCI has introduced the NEET. By virtue of introduction of the
NEET, the students aspiring to become physicians or pursue further
medical studies will have to pass the NEET. The NEET would be a
nationwide common examination to be held at different places in the
country so that all students aspiring to have medical education, can
appear in the examination and ultimately, on the basis of the result
of the examination, suitability and eligibility of the students for
admission to the medical profession can be determined. This system is
a part of regulation whereby entry to the field of medical education
is regulated in such a way that only eligible and suitable students
are given admission to medical colleges.
10. If the NEET is conducted under the supervision of the apex
professional body, it would inspire confidence in the system and in
that event, the selection of the students for admission to the medical
profession would be on merit based selection. No extraneous
consideration would come into play in the process of selection. The
process of selection would not be influenced by irrelevant factors
like caste and creed, community, race, lineage, gender, social or
economic standing, place of residence – whether rural or urban,
influence of wealth or power; and admission would be given only to the
students who really deserve to be well qualified physicians or
dentists. Thus, there would not be any discrimination or influence
in the process of selection. I may add here that though the students
can be selected only on the basis of their merit, it would be open to
the States to follow their reservation policy and it would also be
open to the institutions based on religious or linguistic minority to
select students of their choice, provided the students so selected
have secured minimum marks prescribed at the NEET. From and among
those students, who have secured prescribed qualifying marks, the
concerned institutions, who want to give priority to the students
belonging to a particular class or caste or creed or religion or
region, etc. would be in a position to give preference to such
students in the matter of their admission to the concerned medical
college. Thus, the purpose with which the Articles 25, 26, 29, and 30
are incorporated in our Constitution would be fully respected and
implemented.
11. Furthermore, centralization of the selection process under holding the
NEET would help the students to appear at the examination from any
corner of our nation. The result of the examination would be
published at the same time on one particular day and with the same
standard. There would not be any problem with regard to equalizing
marks and merits of different students passing different examinations
from different regions or states or universities or colleges. The
process of selection would be equal, fair, just and transparent. All
the students would be in a position to compete from a common platform
and the test will have credibility in the eyes of the students and the
society. There are number of professional institutions which are
having only one professional examination and there are some
institutions which also have one common entrance test which would
decide competence and capability of a student for being admitted to
the professional course and the system which is followed by them for
years is quite satisfactory and successful. The students would be
benefited because they will not have to appear at different places on
different days at different examinations for the same purpose. In my
opinion, the aforestated factors, in practical life, would surely help
the students, the profession and the institutions which are not money
minded and are sincere in their object of imparting medical education
to the aspiring students. The cost of appearing at the NEET would be
much less as the aspiring students will not have to purchase several
expensive admission forms and will not have to travel to different
places.
12. An apprehension has been voiced by the counsel for the petitioners
that the minority institutions or the educational institutions
belonging to special classes would be adversely affected because of
the introduction of the NEET. In fact, the said apprehension is not
well founded. The policy with regard to the reservation can be very
well implemented if the NEET is introduced because the NEET would
determine standard or eligibility of a student who is to be imparted
education in the field of medicine. The institution imparting medical
education will have to see that the student to be admitted is having
minimum standard of suitability and the institution will be at a
liberty to select a student of its choice if it wants to promote a
particular class of persons. By admitting suitable and deserving
students having an aptitude for becoming doctors, the religious
institutions would be in a position to have better doctors for
fulfilling their objective.
13. Moreover, the policy with regard to reservation for certain classes,
followed by the States would also not be adversely affected. From the
deserving eligible students, who have procured qualifying marks at the
NEET and who belong to the reserved classes would be given preference
so as to fulfill the policy with regard to reservation. Thus, the
students belonging to the reserved classes would also not suffer on
account of holding the NEET.
14. In the circumstances, it cannot be said that introduction of the NEET
would adversely affect the policy with regard to the reservation or
the policy of the States pertaining to upliftment of downtrodden
persons belonging to certain classes.
15. The MCI has power to regulate medical education and similarly the DCI
has also the power to regulate the education in the field of
Dentistry. Meaning of the word ‘to regulate’ would also include
controlling entry of undeserving or weak students into the profession,
who cannot be groomed in normal circumstances as good physicians or
doctors or dentists. The term ‘regulate’ would normally mean to
control something by means of rules or by exercise of control over a
system. It is an admitted fact that one of the functions of these
apex bodies of the professionals is to regulate the system of
education. In my opinion, we cannot put any fetter on the system
introduced by these bodies, whereby they try to control entry of weak
or undeserving or less competent students to the institutes where
medical education is imparted. Thus, in my opinion, the MCI and the
DCI are competent to exercise their right to regulate the education
system under the provisions of the Act and under the provisions of the
Dentists Act, 1948, which permit them to determine the standard of
students who are to be admitted to these professional courses.
16. Hence, I am of the view that the MCI and the DCI are entitled to
regulate the admission procedure by virtue of the provisions of their
respective Acts, which enable them to regulate and supervise the
overall professional standards.
17. I have now to see whether the legal provisions which permit the
aforestated apex bodies to conduct the NEET, so as to regulate
admission of the students to medical institutes, are in accordance
with legal and Constitutional provisions. The aforestated question
has been rightly answered by this court in the case of Dr. Preeti
Srivastava and Another vs. State of M.P. and Others (1999) 7 SCC 120
to the effect that norms of admission will have a direct impact on the
standards of education. This court has observed that the standards of
education in any institution or college would depend upon several
factors and the caliber of the students to be admitted to the
institutions would also be one of the relevant factors. Moreover, in
view of entry 25 of List III of the Seventh Schedule to the
Constitution, Union as well as the States have power to legislate on
the subject of medical education, subject to the provisions of entry
66 of List I of the Seventh Schedule, which deals with determination
of standards in institutions for higher education. In the
circumstances, a State has the right to control education, including
medical education, so long as the field is unoccupied by any Union
legislation. By virtue of entry 66 in List I to the Seventh Schedule,
the Union can make laws with respect to determination of standards in
institutions for higher education. Similarly, subject to enactments,
laws made with respect to the determination of standards in
institutions for higher education under power given to the Union in
entry 66 of List I of the Seventh Schedule, the State can also make
laws relating to education, including technical education and medical
education. In view of the above position clarified in the case of Dr.
Preeti Srivastava (supra), the NEET can be conducted under the
supervision of the MCI as per the regulations framed under the Act.
As stated hereinabove, Section 33 of the Act enables the MCI to make
regulations to carry out the purposes of the Act and therefore,
conducting the NEET is perfectly legal.
18. In para 36 of the judgment delivered in the case of Dr. Preeti
Srivastava (supra), this Court has held that for the purpose of
maintaining standards of education, it is very much necessary to see
that the students to be admitted to the higher educational
institutions are having high caliber and therefore, in the process of
regulating educational standards in the fields of medicine and
dentistry also the above principle should be followed and the apex
professional bodies should be permitted to conduct examinations in the
nature of the NEET. Regulations made under the Act and the Dentists
Act, 1948 must be treated as part of the Act and therefore, conducting
the NEET cannot be said to be illegal. Submissions were made by the
learned counsel for the petitioners that as copies of the draft
Regulations, as required under Section 19A of the Act, were not
forwarded to the State Governments, the said Regulations cannot be
acted upon. The said submission is of no importance for the reason
that I am in agreement with the submission of the learned counsel
appearing for the MCI that the said provision is not mandatory and
therefore, non-supply of the draft regulations would not adversely
affect the validity of the Regulations and the NEET. It also appears
from the language used in Section 19A of the Act that the said
provision with regard to furnishing copies of the draft regulations to
all the State Governments is not mandatory and any defect in the said
procedure would not vitiate validity of the Regulations or action
taken in pursuance of the Regulations.
19. Similar question with regard to having a common test had arisen for
admitting students aspiring to become veterinary surgeons. The
question was whether it was open to the apex body of the said
profession to conduct a common entrance test. Ultimately, the issue
had been resolved by this court in the matter of Veterinary Council of
India vs. Indian Council of Agricultural Research, (2000) 1 SCC 750.
This court, after considering several issues similar to those which
have been raised in these petitions, held that it was open to the
concerned regulatory Council to conduct a common entrance test.
20. So far as the rights guaranteed under Article 19(1)(g) of the
Constitution with regard to practising any profession or carrying on
any occupation, a trade or business, are concerned, it is needless to
say that the aforestated rights are not unfettered. Article 19(6) of
the Constitution permits the State to enact any law imposing
reasonable restrictions on the rights conferred by Article 19(1)(g) in
relation to the professional or technical qualifications necessary for
practising any profession. Enactments of the Act and the Dentists
Act, 1948, including Regulations made thereunder, which regulate the
professional studies cannot be said to be violative of the
Constitutional rights guaranteed to the petitioners under Article
19(1)(g) of the Constitution. The framers of the Constitution were
conscious of the fact that anybody cannot be given a right to practise
any profession without having regard to his capacity, capability or
competence. To be permitted to practise a particular profession,
especially when the profession is such which would require highly
skilled person to perform the professional duties, the State can
definitely regulate the profession. Even if we assume that all the
petitioner institutions are in business of imparting education, they
cannot also have unfettered right of admitting undeserving students so
as to make substandard physicians and dentists. One may argue here
that ultimately, after passing the final examination, all students who
had joined the studies would be at par and therefore, even if a very
weak or substandard student is given admission, after passing the
final examination, which is supervised by one of the apex bodies
referred to hereinabove, he would be at par with other students who
were eligible and suitable at the time when they were given admission.
In practical life, we do find a difference between a professional who
has passed his professional examination at the first or second trial
and the one who has passed examination after several trials. Be that
as it may, it is for the apex body of the professionals to decide as
to what type of students should undergo the professional training.
The function with regard to regulating educational activity would be
within the domain of the professional bodies and their decision must
be respected so as to see that the society gets well groomed bright
physicians and dentists. Thus, in my opinion, the introduction of the
NEET would not violate the right guaranteed to the petitioners under
the provisions of Article 19(1)(g) of the Constitution of India.
21. So far as the rights guaranteed to the petitioners under the
provisions of Articles 25, 26, 29 and 30 are concerned, in my opinion,
none of the rights guaranteed under the aforestated Articles would be
violated by permitting the NEET. It is always open to the petitioners
to select a student subject to his being qualified by passing the
examination conducted by the highest professional body. This is to
assure that the students who are to undergo the professional training
are suitable for the same. Regulations relating to admission of the
students i.e. admitting eligible, deserving and bright students would
ultimately bring reputation to the educational institutes. I fail to
understand as to why the petitioners are keen to admit undeserving or
ineligible students when eligible and suitable students are available.
I am sure that even a scrupulous religious person or an educational
institution would not like to have physicians or dentists passing
through its institution to be substandard so as to bring down
reputation of the profession or the college in which such a
substandard professional was educated. Minorities - be it religious
or linguistic, can impart training to a student who is found worthy to
be given education in the field of medicine or dentistry by the
professional apex body. In my opinion, the Regulations and the NEET
would not curtail or adversely affect any of the rights of such
minorities as apprehended by the petitioners. On the contrary,
standard quality of input would reasonably assure them of sterling
quality of the final output of the physicians or dentists, who pass
out through their educational institutions.
22. An apprehension was voiced by some of the counsel appearing for the
petitioners that autonomy of the petitioner institutions would be lost
if the NEET is permitted. I fail to understand as to how autonomy of
the said institutions would be adversely affected because of the NEET.
The Government authorities or the professional bodies named
hereinabove would not be creating any hindrance in the administrative
affairs of the institutions. Implementation of the NEET would only
give better students to such institutions and from and among such
highly qualified and suitable students, the minority institutions will
have a right to select the students of their choice. At this stage,
the institutions would be in a position to use their discretion in the
matter of selection of students. It would be open to them to give
weightage to the religion, caste, etc of the student. The
institutions would get rid of the work of conducting their separate
examinations and that would be a great relief to them. Except some
institutions having some oblique motive behind selecting students who
could not prove their mettle at the common examination, all
educational institutes should feel happy to get a suitable and
eligible lot of students, without making any effort for selecting
them.
23. For the reasons recorded hereinabove, in my opinion, it cannot be said
that introduction of the NEET would either violate any of the
fundamental or legal rights of the petitioners or even adversely
affect the medical profession. In my opinion, introduction of the
NEET would ensure more transparency and less hardship to the students
eager to join the medical profession. Let us see the consequence, if
the apex bodies of medical profession are not permitted to conduct the
NEET. A student, who is good at studies and is keen to join the
medical profession, will have to visit several different States to
appear at different examinations held by different medical colleges or
institutes so as to ensure that he gets admission somewhere. If he
appears only in one examination conducted by a particular University
in a particular State and if he fails there, he would not stand a
chance to get medical education at any other place. The NEET will
facilitate all students desirous of joining the medical profession
because the students will have to appear only at one examination and
on the basis of the result of the NEET, if he is found suitable, he
would be in a position to get admission somewhere in the country and
he can have the medical education if he is inclined to go to a
different place. Incidentally, I may state here that learned senior
counsel Mr. Gupta had informed the Court that some medical colleges,
who are more in a profiteering business rather than in the noble work
of imparting medical education, take huge amount by way of donation or
capitation fees and give admission to undeserving or weak students
under one pretext or the other. He had also given an instance to
support the serious allegation made by him on the subject. If only
one examination in the country is conducted and admissions are given
on the basis of the result of the said examination, in my opinion,
unscrupulous and money minded businessmen operating in the field of
education would be constrained to stop their corrupt practices and it
would help a lot, not only to the deserving students but also to the
nation in bringing down the level of corruption.
24. For the aforestated reasons, I am of the view that the petitioners are
not entitled to any of the reliefs prayed for in the petitions. The
impugned notifications are not only legal in the eyes of law but are
also a boon to the students aspiring to join medical profession. All
the petitions are, therefore, dismissed with no order as to costs.
........................................J.
(ANIL R. DAVE)
New Delhi
July 18, 2013
-----------------------
203
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
T.C.(C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS ...Petitioners
VERSUS
UNION OF INDIA AND ORS. ...Respondents
WITH T.C.(C) NO.99/2012
T.C.(C) NO.101/2012
T.C.(C) NO.100/2012
T.C.(C) NO.102/2012
T.C.(C) NO.103/2012
W.P.(C) NO.480/2012
T.C.(C) NO.104/2012
T.C.(C) NO.105/2012
W.P.(C) NO.468/2012
W.P.(C) NO.467/2012
W.P.(C) NO.478/2012
T.C.(C) NO.107/2012
T.C.(C) NO.108/2012
W.P.(C) NO.481/2012
W.P.(C) NO.464/2012
T.C.(C) NO.110/2012
T.C.(C) NOS.132-134/2012
T.C.(C) NOS.117-118/2012
T.C.(C) NOS.115-116/2012
T.C.(C) NOS.125-127/2012
T.C.(C) NOS.113-114/2012
T.C.(C) NOS.128-130/2012
T.C.(C) NOS.121-122/2012
T.C.(C) NO.112/2012
T.C.(C) NO.131/2012
T.C.(C) NOS.123-124/2012
T.C.(C) NO.111/2012
T.C.(C) NO.120/2012
T.C.(C) NO.119/2012
T.C.(C) NOS.135-137/2012
T.C.(C) NOS.138-139/2012
W.P.(C) NO.495/2012
W.P.(C) NO.511/2012
W.P.(C) NO.512/2012
W.P.(C) NO.514/2012
W.P.(C) NO.516/2012
W.P.(C) NO.519/2012
W.P.(C) NO.535/2012
T.C.(C) NO.142/2012 @ T.P.(C) NO.364/2012
W.P.(C) NO.544/2012
W.P.(C) NO.546/2012
W.P.(C) NO.547/2012
T.C.(C) NO.144/2012 @ T.P.(C) NO.1524/2012 & 1447/2012
T.C.(C) NO.145/2012
T.C.(C) NO.1/2013 @ T.P.(C) NO.1527/2012
T.C.(C) NOS.14-15/2013 @ T.P.(C) NOS.1672-1673/2012
T.C.(C) NO.76/2013 @ T.P.(C) NO.1702/2012
T.C.(C) NO.12-13/2013
T.C.(C) NO.4/2013
T.C.(C) NO.11/2013
T.C.(C) NOS.21-22/2013 @ T.P.(C) NO.1714-1715/2012
T.C.(C) NO.5/2013 @ T.P.(C) NO.1718/2012
W.P.(C) NO.2/2013
W.P.(C) NO.1/2013
T.C.(C) NO.60/2013 @ T.P.(C) NO.12/2013
W.P.(C) NO.13/2013
W.P.(C) NO.15/2013
W.P.(C) NO.16/2013
W.P.(C) NO.20/2013
T.C.(C) NO....../2013 @ T.P.(C) NO.31/2013
T.C.(C) NO.2/2013 @ T.P.(C) NO.1532/2012
T.C.(C) NO.8/2013
T.C.(C) NO.3/2013 @ T.P.(C) NO.1533/2012
W.P.(C) NO.24/2013
T.C.(C) NO.9/2013
T.C.(C) NO.17/2013 @ T.P.(C) NO.1588/2012
W.P.(C) NO.483/2012
W.P.(C) NO.501/2012
W.P.(C) NO.502/2012
W.P.(C) NO.504/2012
W.P.(C) NO.507/2012
T.C.(C) NO.10/2013
T.C.(C) NO.7/2013 @ T.P.(C) NO.1644/2012
T.C.(C) NO.18/2013 @ T.P.(C) NO.1645/2012
T.C.(C) NO.75/2013 @ T.P.(C) NO.1647/2012
T.C.(C) NO.19/2013 @ T.P.(C) NO.1653/2012
T.C.(C) NO.20/2013 @ T.P.(C) NO.1654/2012
T.C.(C) NO.59/2013 @ T.P.(C) NO.1656/2012
T.C.(C) NO.53/2013 @ T.P.(C) NO.1658/2012
T.C.(C) NO.25/2013 @ T.P.(C) NO.1671/2012
T.C.(C) NO.23-24/2013 @ T.P.(C) NO.1697-1698/2012
T.C.(C) NO.58/2013 @ T.P.(C) NO.1/2013
W.P.(C) NO.27/2013
T.C.(C) NO.72/2013 @ T.P.(C) NO.58/2013
T.C.(C) NO.16/2013
T.C.(C) NO.61/2013
T.C.(C) NO.73/2013 @ T.P.(C) NO.75/2013
T.C.(C) NO....../2013 @ T.P.(C) NO.79/2013
T.C.(C) NO.62/2013
W.P.(C) NO.47/2013
T.C.(C) NO.28-29/2013
T.C.(C) NO.30/2013
T.C.(C) NO.31-32/2013
T.C.(C) NO.33-36/2013
T.C.(C) NO.37-38/2013
T.C.(C) NO.39/2013
T.C.(C) NO.40/2013
T.C.(C) NO.41/2013
T.C.(C) NO.42/2013
T.C.(C) NO.43/2013
T.C.(C) NO.44/2013
T.C.(C) NO.45/2013
T.C.(C) NO.46/2013
T.C.(C) NO.47/2013
T.C.(C) NO.48/2013
T.C.(C) NO.49/2013
W.P.(C) NO.66/2013
W.P.(C) NO.76/2013
W.P.(C) NO.74/2013
T.C.(C) NOS.63-65/2013
T.C.(C) NOS.66-69/2013
T.C.(C) NOS.70-71/2013
W.P.(C) NO.41/2013
W.P.(C) NO.228/2013
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Four notifications, two dated 21.12.2010 and the other two dated
31.5.2012, issued by the Medical Council of India and the Dental Council of
India, are the subject matter of challenge in all these matters which have
been heard together by us. Notification No. MCI-31(1)/2010-MED/49068
described as "Regulations on Graduate Medical Education (Amendment) 2010,
(Part II)" has been published by the Medical Council of India to amend the
"Regulations on Graduate Medical Education, 1997". Notification
No.MCI.18(1)/2010-MED/49070 described as "Post-graduate Medical Education
(Amendment) Regulation, 2010 (Part II)" has been issued by the said Council
to amend the "Post Graduate Medical Education Regulations, 2000". Both the
Regulations came into force simultaneously on their publication in the
Official Gazette. The third and fourth Notifications both bearing No. DE-
22-2012 dated 31.5.2012, relating to admission in the BDS and MDS courses
published by the Dental Council of India, are similar to the notifications
published by the MCI.
2. The four aforesaid Notifications have been challenged on several
grounds. The major areas of challenge to the aforesaid Notifications are:
(i) The powers of the Medical Council of India and the Dental Council
of India to regulate the process of admissions into medical colleges
and institutions run by the State Governments, private individuals
(aided and unaided), educational institutions run by religious and
linguistic minorities, in the guise of laying down minimum standards
of medical education, as provided for in Section 19A of the Indian
Medical Council Act, 1956, and under Entry 66 of List I of the
Seventh Schedule to the Constitution.
(ii) Whether the introduction of one National Eligibility-cum-Entrance
Test (NEET) offends 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?
(iii) Whether NEET violates the rights of religious and linguistic
minorities to establish and administer educational institutions of
their choice, as guaranteed under Article 30 of the Constitution?
(iv) Whether subordinate legislation, such as the right to frame
Regulations, flowing from a power given under a statute, can have an
overriding effect over the fundamental rights guaranteed under
Articles 25, 26, 29(1) and 30 of the Constitution?
(v) Whether the exclusion of Entry 11 from the State List and the
introduction of Entry 25 in the Concurrent List by the Constitution
Forty Second (Amendment) Act, 1976, makes any difference as far as
the Regulations framed by the Medical Council of India under Section
33 of the 1956 Act and those framed by the Dental Council of India
under Section 20 of the Dentists Act, 1948, are concerned, and
whether such Regulations would have primacy over State legislation on
the same subject?
(vi) Whether the aforesaid questions have been adequately answered in
T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], and
in the subsequent decisions in Islamic Academy of Education Vs. State
of Karnataka [(2003) 6 SCC 697], P.A. Inamdar Vs. State of
Maharashtra [(2005) 6 SCC 537] and Indian Medical Association Vs.
Union of India [(2011) 7 SCC 179]? and
(vii) Whether the views expressed by the Constitution Bench comprised of
Five Judges in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7 SCC
120] have any impact on the issues raised in this batch of matters?
3. In order to appreciate the challenge thrown to the four
notifications, it is necessary to understand the functions and duties of
the Medical Council of India under the Indian Medical Council Act, 1956,
and the Dental Council of India constituted under the Dentists Act, 1948.
The submissions advanced in regard to the MBBS and Post-graduate courses
will apply to the BDS and MDS courses also.
4. The Indian Medical Council Act, 1933, was replaced by the Indian
Medical Council Act, 1956, hereinafter referred to as "the 1956 Act", inter
alia, with the following objects in mind :-
"(a) to give representation to licentiate members of the medical
profession, a large number of whom are still practicing in the
country;
(b) to provide for the registration of the names of citizens of
India who have obtained foreign medical qualifications which
are not at present recognized under the existing Act;
(c) to provide for the temporary recognition of medical
qualifi-cations granted by medical institutions in countries
outside India with which no scheme of reciprocity exists in
cases where the medical practitioners concerned are
attached for the time being to any medical institution in India
for the purpose of teaching or research or for any charitable
objects;
(d) to provide for the formation of a Committee of Post-
graduate Medical Education for the purpose of assisting the
Medical Council of India to prescribe standards of post-graduate
medical education for the guidance of universities and to
advise universities in the matter of securing uniform standards
for post-graduate medical education throughout India;
(e) To provide for the maintenance of an all-India
register by the Medical Council of India, which will contain the
names of all the medical practitioners possessing recognized
medical qualifications."
5. The Medical Council of India, hereinafter referred to as "MCI", has
been defined in Section 2(b) of the 1956 Act to mean the Medical Council of
India constituted under the said Act. The Council was constituted under
Section 3 of the Indian Medical Council Act, 1956. Section 6 of the
aforesaid Act provides for the incorporation of the Council as a body
corporate by the name of Medical Council of India, having perpetual
succession and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and to sue and be sued by the said
name.
6. The powers vested in the MCI are essentially recommendatory in
nature. Section 10A, which was introduced in the 1956 Act by Amending Act
31 of 1993, with effect from 27th August, 1992, inter alia, provides that
notwithstanding anything contained in the Act or any other law for the time
being in force:-
(a) no person shall establish a medical college; or
(b) no medical college shall :-
(i) open a new or higher course of study or training
(including a postgraduate course of study or training) which would
enable a student of such course or training to qualify himself for
the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of
study or training (including a postgraduate course of study or training),
except with the previous permission of the Central Government obtained in
accordance with the provisions of this section.
Under Section 10A the function of the MCI is purely recommendatory
for the purpose of grant of permission by the Central Government to
establish a new medical college or to introduce a new course of study.
7. Section 19A which was introduced into the 1956 Act by Act 24 of
1964 with effect from 16th June, 1964, provides for the Council to
prescribe "minimum standards of medical education". Since Section 19A will
have some bearing on the judgment itself, the same is extracted hereinbelow
in full :-
"19A. Minimum standards of medical education - (1) The Council
may prescribe the minimum standards of medical education
required for granting recognised medical qualifications (other
than postgraduate medical qualifications) by universities or
medical institutions in India.
(ii) Copies of the draft regulations and of all subsequent
amendments thereof shall be furnished by the Council to all
State Governments and the Council shall before submitting the
regulations or any amendment thereof, as the case may be, to the
Central Government for sanction, take into consideration the
comments of any State Government received within three months
from the furnishing of the copies as aforesaid.
(3) The Committee shall from time to time report to the Council
on the efficacy of the regulations and may recommend to the
Council such amendments thereof as it may think fit."
8. Section 20 of the 1956 Act, provides for a Post-graduate Medical
Education Committee to assist the Medical Council of India to prescribe
standards of post-graduate medical education for the guidance of the
Universities. For the sake of reference, the relevant portions of Section
20 of the 1956 Act with which we are concerned, are also extracted
hereinbelow :-
"20. Post-graduate Medical Education Committee for assisting
Council in matters relating to post-graduate medical education -
(1) The Council may prescribe standards of Postgraduate Medical
Education for the guidance of Universities, and may advise
Universities in the matter of securing uniform standards for
Postgraduate Medical Education through out India, and for this
purpose the Central Govt. may constitute from among the members
of the Council a Postgraduate Medical Education Committee
(hereinafter referred to as the Post-graduate Committee).
9. By the first of the two Notifications dated 21st December, 2010,
being MCI-31(1)/2010-Med./49068, the Medical Council of India, in purported
exercise of the powers conferred by Section 33 of the 1956 Act, made
various amendments to the 1997 Regulations on Graduate Medical Education.
The most significant amendment, which is also the subject matter of
challenge in some of these writ petitions and transferred cases, is clause
5 in Chapter II of the Regulations. The relevant paragraph in the
Amendment Notification reads as follows:
"6. In Chapter II, Clause 5 under the heading "Procedure for
selection to MBBS Course shall be as follows" shall be
substituted as under:-
I. There shall be a single eligibility cum entrance
examination namely 'National Eligibility-cum-Entrance Test for
admission to MBBS course' in each academic year. The overall
superintendence, direction and control of National Eligibility-
cum-Entrance Test shall vest with Medical Council of India.
However, Medical Council of India with the previous approval of
the Central Government shall select organization/s to conduct
'National Eligibility-cum-Entrance Test for admission to MBBS
course.
II. In order to be eligible for admission to MBBS course for a
particular academic year, it shall be necessary for a candidate
to obtain minimum of 50% (Fifty Percent) marks in each paper of
National Eligibility-cum-Entrance Test held for the said
academic year. However, in respect of candidates belonging to
Scheduled Casts, Scheduled Tribes and Other Backward Classes,
the minimum percentage shall be 40% (Forty Percent) in each
paper and in respect of candidates with locomotory disability of
lower limbs, the minimum percentage marks shall be 45% (Forty
Five Percent) in each paper of National Eligibility-cum-Entrance
Test:
Provided when sufficient number of candidates belonging to
respective categories fail to secure minimum marks as prescribed
in National Eligibility-cum-Entrance Test in any academic year
for admission to MBBS Course, the Central Government in
consultation with Medical Council of India may at its discretion
lower the minimum marks required for admission to MBBS Course
for candidates belonging to respective categories and marks so
lowered by the Central Government shall be applicable for the
said year only.
III. The reservation of seats in medical colleges for respective
categories shall be as per applicable laws prevailing in States/
Union Territories. An all India merit list as well as State-
wise merit list of the eligible candidates shall be prepared on
the basis of the marks obtained in National Eligibility-cum-
Entrance Test and candidates shall be admitted to MBBS course
from the said lists only.
IV. No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Sub Clause(ii) above shall be
admitted to MBBS Course in the said academic year.
V. All admissions to MBBS course within the respective
categories shall be based solely on marks obtained in the
National Eligibility-cum-Entrance Test.
(Dr. P. Prasannaraj)
Additional Secretary
Medical Council of India"
10. Similarly, by virtue of Notification No. MCI.18(1)/2010-Med./49070,
in purported exercise of the powers conferred by Section 33 of the 1956
Act, the Medical Council of India, with the previous approval of the
Central Government, made similar amendments to the Postgraduate Medical
Education Regulations, 2000, providing for a single eligibility cum
entrance examination. For the sake of reference, the portion of the
notification which is relevant for our purpose is extracted hereinbelow:
"No. MCI.18(1)/2010-Med./49070. – In exercise of the powers
conferred by Section 33 of the Indian Medical Council Act,
1956(102 of 1956), the Medical Council of India with the
previous approval of the Central Government hereby makes the
following regulations to further amend the “Postgraduate Medical
Education Regulations, 2000”, namely:-
1. (i) These Regulations may be called the Postgraduate Medical
Education (Amendment) Regulations, 2010 (Part-II)”.
(ii) They shall come into force from the date of their
publication in the Official Gazette.
2. In the “Postgraduate Medical Education Regulations, 2000”,
the following additions /modifications / deletions /
substitutions, shall be as indicated therein:-
3. Clause 9 under the heading ‘SELECTION OF POSTGRADUATE
STUDENTS’ shall be substituted as under:-
“9. Procedure for selection of candidate for Postgraduate
courses shall be as follows:
I. There shall be a single eligibility cum entrance
examination namely ‘National Eligibility-cum-Entrance Test for
admission to Postgraduate Medical Courses’ in each academic
year. The overall superintendence, direction and control of
National Eligibility-cum-Entrance Test shall vest with Medical
Council of India. However, Medical Council of India with the
previous approval of the Central Government shall select
organization/s to conduct ‘National Eligibility-cum-Entrance
Test for admission to Postgraduate courses’."
Two similar Notifications both bearing No.DE-22-2012 dated
31.5.2012, were published by the Dental Council of India for the same
purpose.
11. The challenge to these Notifications has thrown up various issues,
which include the powers of the Central and the State Governments to
legislate on matters relating to education under Entry 66 of List I of the
Seventh Schedule to the Constitution and Entry 25 of List III which was
introduced by way of the Constitution (Forty-second Amendment) Act, 1976,
having particular regard to the fact that the previous Entry No. 11 in the
State List, was omitted by the said amendment, doing away with education as
a State subject and denuding the State of its powers to legislate on
matters relating to education except in accordance with Entry 25 of the
Concurrent List. In fact, what has been pointed out on behalf of some of
the parties is that by omitting Entry 11 from the State List and including
Entry 25 in the Concurrent List of the Seventh Schedule, the Union
Government acquired the authority to also legislate on matters relating to
education, which it did not have previously.
12. Another common submission, which is of great significance as far as
these matters are concerned, was with regard to the adverse impact of the
single entrance examination on the fundamental right guaranteed to all
citizens under Article 19(1)(g) of the Constitution to practise any
profession, or to carry on any occupation, trade or business. The
provisions of Article 30, preserving the right of both religious and
linguistic minorities, to establish and administer educational institutions
of their choice, were also highlighted by learned counsel for some of the
Petitioners.
13. The major challenge, however, was with regard to the MCI's attempt
to regulate admissions to the M.B.B.S. and Post-graduate Courses in all
medical colleges and medical institutions in the country run by the
different State Governments and by private agencies falling within the
ambit of Article 19(1)(g) and in some cases Article 30 of the Constitution
as well by introducing NEET. One of the facets of such challenge was the
inter-play of Article 29(2) and Article 30(1), as also Article 30(2) of the
Constitution. Various authorities have been cited on behalf of the
different parties, harking back to the Presidential Reference in the Kerala
Education Bill case [(1959] S.C.R. 995], and the subsequent views, which
have been expressed on most of the aforesaid issues by various combinations
of Judges, which include combinations of Eleven-Judges, Nine-Judges, Seven-
Judges, Five-Judges and Three-Judges, of this Court. While most of the
decisions touch upon the main theme in these matters regarding the right of
either the Central Government or the State Government or the MCI to
regulate admissions into medical colleges, the issue raised before us
concerning the authority of the MCI and the DCI to conduct an All India
Entrance Examination, which will form the basis of admissions into the
M.B.B.S. as well as Post-graduate Courses in all medical colleges and
institutions all over the country, could not be considered in the earlier
judgments. As a result, after the introduction of NEET, admissions to the
M.B.B.S. and Post-graduate courses and the BDS and MDS courses can be made
only on the basis of the Select List prepared in accordance with the
results of the All India Entrance Test, which would not only eliminate a
large number of applicants from admission to the medical colleges, but
would also destroy the very essence of Articles 25, 26, 29(1) and 30 of the
Constitution, since admission is one of the more important functions of an
institution.
14. The submissions in these cases were commenced by Mr. Harish Salve,
learned senior counsel appearing for the Christian Medical College,
Vellore, and the Christian Medical College, Ludhiana, the Petitioners in
Transferred Cases (C) Nos. 98-99 of 2012. Mr. Salve's submissions were
supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan, Mr. K.K. Venugopal and
Mr. R. Venkataramani, learned senior counsel, and several others appearing
for some of the religious and linguistic minorities referred to in Article
30 of the Constitution.
15. Mr. Salve submitted that the two Notifications both dated 21st
December, 2010, incorporating amendments in the Regulations on Graduate
Medical Education, 1997 and the Post-Graduate Medical Education
Regulations, 2000, and introducing a single National Eligibility-cum-
Entrance Test (NEET) for admission to the MBBS course and the Post-graduate
course in each academic year throughout the country, had been challenged by
the Petitioners before the Madras High Court, in Writ Petition Nos.24109 of
2011 and 24110 of 2011. Mr. Salve urged that the said amendments stifled
and stultified the fundamental rights guaranteed to religious minorities
under Articles 25, 26, 29(1) and 30 of the Constitution of India. Mr.
Salve submitted that Article 25 secures to every person, subject to public
order, health and morality and to the other provisions of Part-III of the
Constitution, freedom of conscience and the right freely to profess,
practise and propagate religion. The said right guarantees to every person
freedom not only to entertain such religious belief, but also to exhibit
his belief in such outward acts as he thought proper and to propagate or
disseminate his ideas for the edification of others. Mr. Salve urged that
this proposition was settled by this Court as far back as in 1954 by a
Bench of Seven-Judges in Commr., H.R.E. Vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [1954 SCR 1005].
16. Mr. Salve submitted that subject to public order, morality and
health, Article 26 of the Constitution guarantees to every religious
denomination or a section thereof, the right to establish and maintain
institutions for religious and charitable purposes and to manage its own
affairs in matters of religion. Mr. Salve urged that in regard to affairs
in matters of religion, the right of management given to a religious body
is a guaranteed fundamental right which no legislation can take away. Mr.
Salve submitted that Article 30(1) of the Constitution gives religious and
linguistic minorities the right to establish and to administer educational
institutions of their choice, which was reiterated and emphasised in T.M.A.
Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481], decided by a
Bench of Eleven Judges.
17. Mr. Salve submitted that the Christian Medical College, Vellore,
hereinafter referred to as "CMC Vellore", was established 113 years ago as
a one-bed clinic by one Dr. Ida Sophia Scudder, the daughter of an American
Medical Missionary. She started training Compounders (Health Assistants) in
1903 and Nurses in 1909, and was able to establish a Missionary Medical
School for women leading to the Licentiate in Medical Practice in 1918
which was upgraded to the MBBS course affiliated to the Madras University.
Admission was thrown open to men for the MBBS course in 1947. As the
college grew, from 1948 it started admitting students by an All-India
Entrance Examination, followed by an in-depth interview. By 1950, the
affiliation to the University was confirmed and the intake was increased to
60 under-graduate MBBS students in 1964, which has now increased to 100
MBBS students. To meet the needs of the local population, a large number
of Higher Speciality Courses, Post-graduate Medical Courses, Allied Health
Sciences Courses and Courses in Nursing, have also been developed over the
years.
18. Currently, there are 11 Post-graduate Medical Diploma Courses, 23
Post-graduate Medical Degree Courses and 17 Higher Specialty Courses
approved by the Medical Council of India and affiliated to the Tamil Nadu
Dr. MGR Medical University. Today, the CMC Vellore, a minority, unaided,
non-capitation fee educational institution, is run by the Petitioner
Association comprised of 53 Christian Churches and Christian Organizations
belonging to the Protestant and Orthodox traditions. The stated object of
the Petitioner Association, as mentioned in its Memorandum of Association,
Constitution and the Bye-laws is "the establishment, maintenance and
development of a Christian Medical College and Hospitals, in India, where
women and men shall receive education of the highest grade in the art and
science of medicine and of nursing, or in one or other of the related
professions, to equip them in the spirit of Christ for service in the
relief of suffering and the promotion of health".
19. Out of 100 seats available for the under-graduate MBBS Course, 84
are reserved for candidates from the Christian community and the remaining
are available for selection in the open category with reservation for
candidates belonging to the Scheduled Castes and Scheduled Tribes.
Similarly, 50% of the Post-graduate seats are reserved for Christian
candidates and the remaining 50% are available for open selection on an All-
India basis. Mr. Salve submitted that all students selected for the MBBS
course are required to sign a bond agreeing to serve for a period of two
years in areas of need, upon completion of their courses. Similarly, Post-
graduate students selected in the Christian minority category have also to
give a similar undertaking.
20. Mr. Salve submitted that the Medical Colleges and institutions run
by the Writ Petitioners charge fees which are subsidised and are even
lower than the fees charged by Government Medical Colleges. Liberal
scholarships are given by the College to those who have difficulty in
making the payments, which include boarding, lodging and University charges
(which are considerably higher). Learned counsel submitted that the
institution was established by a Christian minority doctor in response to
her religious beliefs and the command of Jesus Christ exhorting His
disciples and followers to heal the sick and has evolved an admission
process for both its undergraduate and post graduate courses in order to
ensure that the selected candidates are suitable for being trained
according to the ideology professed at Vellore. Mr. Salve urged that the
selection process is comprised of an All India Entrance Test followed by a
searching interview and special test devised in 1948. Such process has
been improved and fine-tuned over the years so that the candidates are not
only trained as health professionals, but to also serve in areas of need in
difficult circumstances.
21. It was pointed out that this system of admission resorted to by the
Petitioner has successfully reflected the ideals with which the medical
college was founded and a survey conducted in 1992 established the fact
that the majority of graduates and post-graduates, who have passed out from
the college, have been working in India for more than 10 years after their
graduation and the majority among them were working in non-metropolitan
areas of the country. This evaluation remained the same, even during
surveys conducted in 2002 and 2010, and is in striking contrast to similar
surveys carried out by other medical institutions of equal standard, where
only a small number of graduates have been working in non-metropolitan
areas.
22. Mr. Salve submitted that in 1993, an attempt was made by the
Government of Tamil Nadu to interfere with the admission process in the
institution by a letter dated 7th May, 1993, directing the Petitioner to
implement the scheme framed by this Court in the case of Unni Krishnan Vs.
State of U.P. [(1993) 1 SCC 645], insofar as the undergraduate course in
Nursing was concerned. The Petitioner-institution filed Writ Petition
No.482 of 1993 before this Court challenging the State Government's
attempts to interfere with the admission process of the institution as
being contrary to and in violation of the rights guaranteed to it under
Article 30 of the Constitution. In the pending Writ Petition, various
interim orders were passed by the Constitution Bench of this Court
permitting the institution to take resort to its own admission procedure
for the undergraduate course in the same manner in which it had been doing
in the past. The said Writ Petition was heard in 2002, along with the
T.M.A. Pai Foundation case (supra), wherein eleven questions had been
framed.
While hearing the matters, the Chief Justice formulated five issues
to encompass all the eleven questions, on the basis of which the hearing
was conducted, and the same are extracted below:
"1. Is there a fundamental right to set up educational
institutions and, if so, under which provision?
2. Does Unni Krishnan case [(1993) 4 SCC 111] require
reconsideration?
3. In case of private institutions (unaided and aided), can
there be government regulations and, if so, to what extent?
4. In order to determine the existence of a religious or
linguistic minority in relation to Article 30, what is to be the
unit - the State or the country as a whole?
5. To what extent can the rights of aided private minority
institutions to administer be regulated?"
Out of the eleven questions framed by the Bench, Questions 3(b), 4
and 5(a) are extremely relevant for deciding the questions raised in the
Writ Petition filed by the Petitioner-institution. For the sake of
reference, the said three Questions are extracted hereinbelow:
"Q3(b). To what extent can professional education be
treated as a matter coming under minorities rights under Article
30?
Q4. Whether the admission of students to minority educational
institutions, whether aided or unaided, can be regulated by the
State Government or by the University to which the institution
is affiliated?
Q5(a). Whether the minority's rights to establish and
administer educational institutions of their choice will include
the procedure and method of admission and selection of
students?"
23. Mr. Salve submitted that the answer given by the Eleven-Judge Bench
to the first Question is that Article 30(1) re-emphasises the right of
religious and linguistic minorities to establish and administer educational
institutions of their choice. The use of the words "of their choice"
indicates that even professional educational institutions would be covered
by Article 30.
24. The answer to the second Question is that, except for providing the
qualifications and minimum conditions of eligibility in the interest of
academic standards, admission of students to unaided minority educational
institutions cannot be regulated by the State or University concerned. Mr.
Salve pointed out that a note of caution was, however, introduced and it
was observed that the right to administer, not being an absolute right,
there could be regulatory measures for ensuring proper educational
standards and maintaining the excellence thereof, particularly in regard to
admissions to professional institutions. It was further held that a
minority institution does not cease to be so, when it receives grant-in-aid
and it would, therefore, be entitled to have a right to admit students
belonging to the minority group, but at the same time it would be required
to admit a reasonable number of non-minority students so that rights under
Article 30(1) were not substantially impaired and the rights of a citizen
under Article 29(2) of the Constitution were not infringed. However, the
concerned State Governments would have to notify the percentage of non-
minority students to be admitted in the institution. Amongst students to
be admitted from the minority group, inter se merit would have to be
ensured and, in the case of aided professional institutions, it could also
be submitted that in regard to the seats relating to non-minority students,
admission should normally be on the basis of the common entrance test held
by the State agency, followed by counselling wherever it exists.
25. In reply to the third Question, it was held that a minority
institution may have its own procedure and method of admission as well as
selection of students, but such a procedure would have to be fair and
transparent and the selection of students in professional and higher
educational colleges should be on the basis of merit. The procedure
selected for admission by the minority institution ought not to ignore the
merit of students for admission while exercising the right to admit
students by the colleges aforesaid, as in that event, the institution will
fail to achieve excellence. The said procedure should not amount to
maladministration.
26. Some of the issues decided in the T.M.A. Pai Foundation case came
up for clarification in the Islamic Academy of Education case (supra) and
for further interpretation in P.A. Inamdar's case (supra), before a Bench
of Seven-Judges, wherein the Petitioner-Association was duly represented.
The Hon'ble Judges reiterated the views expressed in the T.M.A. Pai
Foundation case that there cannot be any reservation in private unaided
institutions, which had the right to have their own admission process, if
the same was fair, transparent, non-exploitative and based on merit. Mr.
Salve referred to paragraph 125 of the judgment in P.A. Inamdar's case
(supra), which is relevant for our purpose, and reads as follows:
"125. As per our understanding, neither in the judgment of Pai
Foundation [(2002) 8 SCC 481] nor in the Constitution Bench
decision in Kerala Education Bill [1959 SCR 995] which was
approved by Pai Foundation, is there anything which would allow
the State to regulate or control admissions in the unaided
professional educational institutions so as to compel them to
give up a share of the available seats to the candidates chosen
by the State, as if it was filling the seats available to be
filled up at its discretion in such private institutions. This
would amount to nationalisation of seats which has been
specifically disapproved in Pai Foundation [(2002) 8 SCC 481].
Such imposition of quota of State seats or enforcing reservation
policy of the State on available seats in unaided professional
institutions are acts constituting serious encroachment on the
right and autonomy of private professional educational
institutions. Such appropriation of seats can also not be held
to be a regulatory measure in the interest of the minority
within the meaning of Article 30(1) or a reasonable restriction
within the meaning of Article 19(6) of the Constitution of
India. Merely because the resources of the State in providing
professional education are limited, private educational
institutions, which intend to provide better professional
education, cannot be forced by the State to make admissions
available on the basis of reservation policy to less meritorious
candidates. Unaided institutions, as they are not deriving any
aid from State funds, can have their own admissions if fair,
transparent, non-exploitative and based on merit."
27. Mr. Salve submitted that after this decision, the Petitioner
Institution continued to admit students to its various graduate and post-
graduate courses by following its own admission procedure, as it had been
doing for the last several decades. Mr. Salve submitted that the Committee
set up by the Government of Tamil Nadu has permitted the Institution to
follow its own admission procedure for undergraduate M.B.B.S. course for
the academic year 2012-2013.
28. While matters were thus poised, the Medical Council of India framed
the impugned amended Regulations, which, according to Mr. Salve, not only
violated the fundamental rights guaranteed under Articles 25, 26 and 30 of
the Constitution to minority run institutions, but if implemented, would
destroy the very objective with which the hospital had been set up in
response to Christ's mission of healing the sick. Mr. Salve submitted that
the impugned Notifications were inconsistent with the law laid down by the
Supreme Court in its various decisions dealing with the rights of unaided,
non-capitation fee minority institutions to admit students of their choice.
29. Mr. Salve submitted that right from the decision in Unni
Krishnan's case (supra), when the State Government first sought to
interfere with the admission process adopted by the Petitioner Institution,
this Court has, by virtue of different interim and final orders, held that
there could be no reservation of seats in institutions like the ones run by
the Petitioner, which are wholly unaided and have always been permitted to
admit students of their choice, in keeping with their status as minority
unaided professional institutions. It was urged that Clause 9(vi) of the
Post-Graduate Notification, which provides for reservation, is ultra vires
the provisions of Article 30(1) of the Constitution. Furthermore, when the
State Government tried to reserve 50% of the seats in the Under-graduate
courses, this Court granted a stay which continues to be operative.
30. Mr. Salve submitted that the question of reservation of seats in
minority institutions, which has been introduced by the impugned
amendments, both in respect of the Under-graduate and the Post-Graduate
courses, does violence to the rights conferred on minorities under Article
30(1) of the Constitution of India, as interpreted by this Court in various
judgments starting from 1957 till 2002, when the question was finally
decided by an Eleven-Judge Bench in the T.M.A. Pai Foundation case (supra).
Even the reservation created for NRIs in Unni Krishnan's case (supra) case
was declared to be ultra vires the Constitution of India.
31. It was urged that in a recent decision of this Court in the Indian
Medical Association case (supra), it has, inter alia, been held that the
level of regulation that the State could impose under Article 19(6) on the
freedoms enjoyed pursuant to Sub-Clause (g) of Clause (1) of Article 19 by
non-minority educational institutions, would be greater than what could be
imposed on minority institutions under Article 30(1) thereof, which
continued to maintain their minority status by admitting students mostly
belonging to the minority community to which the minority institutions
claim to belong, except for a sprinkling of non-minority students, an
expression which has been used in P.A. Inamdar's case and earlier cases as
well. Mr. Salve contended that the Petitioner Institution, from its very
inception reserved up to 85% of its seats in the Under-graduate courses and
50% of the Post-Graduate seats for Christian students exclusively. In the
remaining 15% of the seats in the Under-graduate courses, reservations have
been made for Scheduled Castes and Scheduled Tribes candidates.
32. Mr. Salve contended that the impugned Notifications and the
amendments to the MCI Regulations sought to be introduced thereby are
contrary to the judgments delivered by the Constitution Bench. Learned
counsel submitted that till the amendments were introduced, the concerned
institutions had been conducting their own All India Entrance Tests for
admission to the MBBS and Post-Graduate medical courses. Mr. Salve urged
that there has been no complaint of maladministration as far as the
institutions run by the Petitioner Association are concerned.
33. It was further submitted that all the Petitioners in this batch of
cases are either religious minority educational institutions or linguistic
minority institutions; non-minority self-financing colleges, self-financing
"Deemed to be Universities" under Section 3 of the University Grants
Commission Act and the State Governments which run State medical colleges.
However, it is the Christian Medical College, Vellore, which is among the
very few institutions that fall in the first category. The learned counsel
urged that without demur, the Christian Medical College, Vellore, has been
consistently rated among the top ten medical colleges in the country and
usually ranked first or second. The excellence of patient care and academic
training has been recognised, both at the national and international
levels, and its contribution to health research has also been recognised as
pioneering work by both national and international research funding
agencies. Mr. Salve submitted that a part of the teachings of Jesus
Christ, as documented in the Gospels, which form part of the New Testament,
was to reach out to and to heal the sick, which command has been
institutionalised by the Petitioner ever since it was established as a one-
bed mission clinic-cum-hospital in 1900. Mr. Salve submitted that the
activities of the Petitioner Institution clearly attract the provisions of
Article 25 of the Constitution and through the Christian Medical College,
Vellore, its activities are designed to achieve the avowed objective of
providing human resources for the healing ministry of the Church. The
activity of running medical courses and allied health sciences and nursing
courses, in order to ensure constant supply of doctors and other para-
medical staff to those hospitals, engaged in the healing of the sick, are
acts performed by the Petitioner in furtherance of its religious faith and
beliefs. It was submitted that in the decision of the Constitution Bench of
Seven Hon'ble Judges in the case of Commissioner, Hindu Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
(1954 SCR 1005), this Court held that Article 25 of the Constitution,
protects not only the freedom of religious opinion, but also acts done in
pursuance of religious beliefs, as is clear from the expression "practice
of religion".
34. Mr. Salve also referred to the decision in the case of Ratilal
Panachand Gandhi Vs. The State of Bombay & others, reported in 1954 SCR
1055, which was also a decision rendered by a Constitution Bench of this
Court relying upon the decision in the Shirur Mutt case (supra), wherein
similar sentiments were expressed. Various other decisions on the same
issue were also referred to, which, however, need not detain us.
35. Mr. Salve further urged that the Petitioner Institution is still
one of the largest tertiary care hospitals in the country, where patients
come from all over India for expert treatment. The medical college combines
both medical treatment and education which, besides being a religious
activity, is also a charitable activity, thereby bringing it within the
ambit of Article 26(a) and (b) of the Constitution. Mr. Salve submitted
that, in fact, the said activities had been recognised by this Court in the
T.M.A. Pai Foundation case (supra), wherein in paragraph 26, it was held
as follows :-
"26. The right to establish and maintain educational
institutions may also be sourced to Article 26(a), which grants,
in positive terms, the right to every religious denomination or
any section thereof to establish and maintain institutions for
religious and charitable purposes, subject to public order,
morality and health. Education is a recognised head of charity.
Therefore, religious denominations or sections thereof, which
do not fall within the special categories carved out in Article
29(1) and 30(1), have the right to establish and maintain
religious and educational institutions."
36. Today the Petitioner has in place a selection process for
admission to its Under-graduate and Post-graduate courses, by which it
seeks to select candidates imbibed in the spirit of Christ for the purpose
of healing the sick and to dedicate their lives to serve the needy, both in
the Petitioner Institution and also in far flung areas, where people have
no ready access to medical care, through the Christian Mission Hospitals
run by the members of the Petitioner Association. Mr. Salve submitted that
the doctors, who are the product of the Petitioner Institution, are not
only well-trained in medicine, but have also been imparted with values in
the treatment of the sick and the needy in keeping with the teachings of
Christ, who looked on everybody with compassion. Mr. Salve urged that the
admission process has proved to be highly successful and effective, and in
the case of St. Stephen's College Vs. University of Delhi [(1992) 1 SCC
558], this Court upheld the same as it was found to meet the objectives for
which the Institution itself had been established, despite the fact that it
was an aided minority institution. Mr. Salve pointed out that in paragraph
54 of the judgment, this Court had occasion to deal with the expression
"management of the affairs of the institution” and it was held that this
management must be free from control so that the founder or their nominees
could mould the Institution as they thought fit and in accordance with the
ideas of how the interests of the community in general and the institution
in particular could be served.
37. As far as unaided, non-capitation fee, religious minority
institutions are concerned, Mr. Salve submitted that so long as the
admission procedure adopted is fair, transparent and non-exploitative and
there is no complaint of maladministration, it would be grossly unjust and
unconstitutional to interfere with the administration of such an
institution, in complete violence of the freedoms guaranteed under Articles
25, 26 and 30 of the Constitution. Mr. Salve submitted that if the
National Eligibility-cum-Entrance Test was to be applied and followed in
the case of minority institutions protected under Article 30 of the
Constitution, it would result in complete denudation of the freedoms and
rights guaranteed to such institutions under the Constitution, as it would
run counter to the very principles on which admissions in such institutions
are undertaken.
38. Mr. Salve submitted that neither Section 10A nor Section 19A of the
1956 Act, which were inserted in the principal Statute by amendment,
contemplate that the MCI would itself be entitled to conduct entrance tests
for admission into different medical colleges and hospitals in India.
Learned counsel submitted that the main purpose of constituting the MCI
was to ensure excellence in the field of medical education and for the said
purpose, to regulate the standards of teaching and the infrastructure
available for establishment of a new medical college or to introduce a new
course of study in an existing college. What is made clear from Section
10A is that no new medical college could be established and recognised by
the Central Government without the recommendation of the Medical Council of
India. Such recognition would be dependent upon inspection and
satisfaction that the proposed new medical college satisfied all the
conditions stipulated by the Medical Council of India for starting a new
medical college. Section 19A, which was inserted into the principal Act
much before Section 10A, speaks of the minimum standards of medical
education, other than post-graduate medical qualification, which the
Medical Council of India may prescribe as being required for grant of
recognition to medical institutions in India.
39. Mr. Salve urged that while Section 33 of the 1956 Act empowered the
Council, with the previous sanction of the Central Government, to make
Regulations to carry out the purposes of the Act and clause (l) empowered
the Council to make Regulations with regard to the conduct of professional
examinations, qualifications of examiners and the conditions of admission
to such examinations, the same did not empower the Council to actually
conduct the examinations, which continues to be the prerogative of the
institution concerned.
40. Mr. Salve submitted that in State of A.P. Vs. Lavu
Narendranath[(1971) 1 SCC 607], this Court had considered the validity of a
test held by the State Government for admission to medical colleges in the
State of Andhra Pradesh and had held that although the Andhra University
Act, 1926, prescribed the minimum qualification of passing HSC, PUC, ISC
examinations for entry into a higher course of study, owing to the limited
number of seats, the Government, which ran the medical colleges, had a
right to select students out of the large number of candidates who had
passed the entrance examination prescribed by it. It was also held that
merely because the Government had supplemented the eligibility rules by a
written test in the subjects with which the candidates were already
familiar, there was nothing unfair in the test prescribed nor did it
militate against the powers of the Parliament under Entry 66 of List I,
which is not relatable to a screening test prescribed by the Government or
by a University for selection of students out of a large number of students
applying for admission to a particular course of study. This Court held
that such a test necessarily partakes of the character of an eligibility
test as also a screening test. Mr. Salve urged that in such a situation,
minimum qualifying marks were necessary, but the said question has not been
addressed at all in Lavu Narendranath's case (supra), since it did not
arise in that case.
41. Mr. Salve submitted that the Petitioner Institution has been
supplementing the primary duty enjoined on the State under Articles 21 and
47 of the Constitution in providing health care to the people in different
parts of the country, including the rural and remote areas, through the
several hospitals run by Christian Churches and organizations. Any
interference with the manner in which these minority institutions are being
administered, except where the standards of excellence are compromised,
would not only strike at the very reason for their existence, but would
disturb the health care services being provided by them. Mr. Salve
submitted that the MCI, which is a creature of Statute, cannot travel
beyond the powers vested in it by the Statute and its attempt to regulate
and control the manner in which admissions are to be undertaken in these
institutions, by introducing a single entrance examination, goes against
the very grain of the fundamental rights vested in the religious and
linguistic minorities to establish and administer educational institutions
of their choice and to impart their religious values therein, so long as
the same was not against the peace and security of the State.
42. Mr. Salve urged that the amended provisions of the MCI Regulations
as impugned, were liable to be struck down as being contrary to the
provisions of Articles 25, 26 and 30 of the Constitution, read with
Sections 10A and 19A of the Indian Medical Council Act, 1956.
43. Having heard Mr. Harish Salve on the rights claimed by religious
minority medical institution enjoying the protection of Articles 25, 26,
29(1) and 30 of the Constitution, we may now turn to the submissions made
by Mr. K. Parasaran, learned Senior Advocate, appearing on behalf of the
Vinayaka Missions University, run by a linguistic minority, also enjoying
the rights guaranteed under Article 19(1)(g) and the protection of Article
30 of the Constitution.
44. Mr. Parasaran began by reiterating Mr. Salve's submission that while
minority institutions enjoyed the fundamental rights guaranteed to any
other individual or institution under Article 19(1)(g) of the Constitution,
in addition, linguistic minorities, like religious minorities, enjoy the
special protection afforded under Article 30 of the Constitution. Mr.
Parasaran submitted that just as in the case of religious minorities,
linguistic minorities also have the right to establish and administer
educational institutions of their choice, which included the right to admit
students therein.
45. Mr. Parasaran submitted that the impugned Regulations are ultra
vires, unconstitutional and violative of Article 19(1)(g) of the
Constitution, not only in respect of institutions run by minorities, but
also to all institutions covered by NEET. Mr. Parasaran submitted that if
the Indian Medical Council Act, 1956, is to be understood to empower the
MCI to nominate the students for admission, it would be invalid, since the
said Act and the amendments to the Act, which are relevant for the present
cases, were enacted before the 42nd Constitution Amendment, whereby Entry
11 was removed from List II of the Seventh Schedule and was relocated as
Entry 25 in List III of the said Schedule, came into force on 3rd January,
1977.
46. Mr. Parasaran also urged that as was held by this Court in Indian
Express Newspapers Vs. Union of India [(1985) 1 SCC 641], even if the
Regulations are accepted to be subordinate legislation, the same were also
open to challenge:
(a) on the ground on which plenary legislation is questioned.
(b) on the ground that it does not conform to the statute under which
it is made.
(c) on the ground that it is contrary to some other statute as it
should yield to plenary legislation, and/or
(d) that it is manifestly unreasonable.
47. Mr. Parasaran submitted that in Deep Chand Vs. State of Uttar
Pradesh and Others [(1959) Suppl. 2 SCR 8] wherein the validity of certain
provisions of the Uttar Pradesh Transport Service (Development) Act, 1955,
came to be considered on the passing of the Motor Vehicles (Amendment) Act,
1956, the majority view was that the entire Act did not become wholly void
under Article 254(1) of the Constitution, but continued to be valid in so
far as it supported the Scheme already framed under the U.P. Act.
48. Mr. Parasaran contended that a standard must have general
application and inter se merit does not relate to standards, but is a
comparison of an assessment of merit among the eligible candidates.
49. Mr. Parasaran submitted that the legislative power under Entry 11
of List II stood transferred to List III only by virtue of the Forty-second
Amendment with effect from 3rd January, 1977 and the power so acquired by
virtue of the amendment, could not validate an Act enacted before the
acquisition of such power. Mr. Parasaran urged that while the Indian
Medical Council Act was enacted in 1956, Section 19A on which great
reliance was placed by Mr. Nidhesh Gupta, learned Advocate appearing for
the MCI, was brought into the Statute Book on 16th June, 1964.
Consequently the 1956 Act, as also the Regulations, are ultra vires, except
to the extent covered by Entry 66 of List I, which is confined to "co-
ordination and determination of standards".
50. Referring to the decision of this Court in State of Orissa Vs. M.A.
Tulloch & Co. [(1964) 4 SCR 461], Mr. Parasaran contended that as the
State's powers of legislation are subject to Parliamentary legislation
under Entry 66 of List I, when Parliament legislates, to that extent alone
the State is denuded of its legislative power. A denudation of the power
of the State legislature can be effected only by a plenary legislation and
not by subordinate legislation. The Regulations, which are not plenary in
character, but have the effect of denuding the power of the State
legislature, are, therefore, ultra vires.
51. Another interesting submission urged by Mr. Parasaran was that the
principle of "Rag Bag” legislation, as was explained by this Court in
Ujagar Prints etc. Vs. Union of India [(1989) 3 SCC 488], cannot be invoked
by combining the Entries in List I and List III in cases where the field of
legislation in List III is expressly made subject to an Entry in List I.
In such cases, while enacting a legislation on a subject in List III,
Parliament is also subject to the Entry in List I in the same way as the
State legislature, as the field of legislation in the Concurrent List is
the same as far as the Parliament and the State legislatures for admission
of students to professional courses, are concerned. Mr. Parasaran urged
that the decision in Preeti Srivastava's case (supra) has to be interpreted
harmoniously with the decision in M.A. Tulloch's case (supra), Ishwari
Khetan Vs. State of U.P. [(1980) 4 SCC 136] and Deep Chand's case (supra),
as otherwise the findings in Preeti Srivastava's case (supra) would be
rendered per incuriam for not taking note of the fact that the power of
Parliament under Entry 25 of List III was an after acquired power. Mr.
Parasaran emphasised the fact that the reasoning in Preeti Srivastava's
case (supra) related only to the question of the State's power to prescribe
different admission criteria to the Post-graduate courses in Engineering
and medicine and cannot be held to govern the admission of students to the
said courses. Learned counsel submitted that the decision in Preeti
Srivastava's case (supra) has to be confined only to eligibility standards
for admission and not to issues relating to admission itself. Mr.
Parasaran also pointed out that in Preeti Srivastava's case (supra), the
decision in Deep Chand's case (supra) had not been considered and the fact
that Parliament had no power to legislate with regard to matters which were
then in Entry 11 of List II had been overlooked. The Court, therefore,
erroneously proceeded on the basis of the powers given to Parliament by
virtue of Entry 25 of List III by the Forty-second Amendment. Mr.
Parasaran urged that to the extent it is inconsistent with the decision in
the T.M.A. Pai Foundation case (supra), as to the right of admission by
private institutions, the decision in Preeti Srivastava's case (supra) will
have to yield to the principles laid down by the larger Bench in the T.M.A.
Pai Foundation case (supra). Mr. Parasaran submitted that the effect of
the impugned Regulations in the context of the prevailing law is that
private institutions may establish educational institutions at huge costs
and provide for teaching and lectures, but without any right, power or
discretion to run the college, even to the extent of admitting students
therein. Mr. Parasaran contended that by the introduction of NEET the
States and Universities in States stand completely deprived of the right
to deal with admissions, which has the effect of destroying the federal
structure of the Constitution.
52. Mr. Parasaran urged that the executive power of the State, which is
co-extensive with the legislative power with regard to matters in the
Concurrent List, cannot be taken away except as expressly provided by the
Constitution or by any law made by Parliament. It was urged that the power
of subordinate legislation or statutory power conferred by a Parliamentary
legislation cannot be exercised to take away the legislative power of the
State legislature, which could only be done by plenary legislation under
Article 73 of the Constitution. Mr. Parasaran submitted that the impugned
Regulations, not being plenary legislation, are unconstitutional and ultra
vires the Constitution.
53. Mr. Parasaran submitted that the impugned Regulations provide that
if sufficient number of candidates in the respective categories fail to
secure minimum marks as prescribed in NEET, held both for Post-graduate and
graduate courses, the Central Government, in consultation with the Medical
Council of India, may at its discretion lower the minimum marks for
admission, which itself indicates that the Regulations are concerned not
with determination of standards, but with admissions.
54. Mr. Parasaran further submitted that the Scheme framed in Unni
Krishnan's case (supra) completely excluded the discretion of the
institution to admit students and the same was, therefore, overruled in the
T.M.A. Pai Foundation case as having the effect of nationalising education
in respect of important features viz. right of a private unaided
institution to give admission and to fix the fees. Mr. Parasaran submitted
that the impugned Regulations suffer from the same vice of a complete take-
over of the process of admission, which rendered the impugned Regulations
unconstitutional.
55. Mr. Parasaran further urged that minorities, whether based on
religion or language, also have a fundamental right under Article 19(1)(g),
like any other citizen, to practise any profession, or to carry on any
occupation, trade or business in the interest of the general public, but
subject to reasonable restrictions that may be imposed by the State on the
exercise of such rights. In addition, minorities have the right guaranteed
under Article 30 to establish and administer educational institutions of
their choice. Considering the right of both minority and non-minority
citizens to establish and administer educational institutions, this Court
had in the T.M.A. Pai Foundation case (supra) held that the said right
includes the right to admit students and to nominate students for admission
and even when students are required to be selected on the basis of merit,
the ultimate decision to grant admission to the students who have otherwise
qualified for the said purpose, must be left with the educational
institutions concerned. Mr. Parasaran submitted that in the T.M.A. Pai
Foundation case (supra), this Court, inter alia, observed that the fixing
of a rigid fee structure, compulsory nomination of teachers and staff for
appointment or nominating students for admission would be unreasonable
restrictions.
56. Mr. Parasaran also urged that the right of minority institutions under
Article 30 is in the national interest and as indicated in the decision in
Unni Krishnan's case (supra), the hard reality that emerges is that private
educational institutions are a necessity in the present-day circumstances.
It is not possible today without them because the Governments are in no
position to meet the demand, particularly in the sectors of medical and
technical education, which call for substantial investments and expenses.
Mr. Parasaran submitted that the impugned Regulations were not in the
national interest and would only discourage good private institutions being
established by people dedicated to the cause of providing health care to
all sections of the citizens of this country and, in particular, the
marginalized sections in the metropolitan and rural areas.
57. Mr. Parasaran then urged that 50% of the total seats available, as
per Clause VI of the Post-Graduate Medical Education Regulations, were to
be filled up by the State Governments or the Authorities appointed by them.
The remaining 50% seats are to be filled up by the concerned medical
colleges and institutions on the basis of the merit list prepared according
to the marks obtained in NEET. Mr. Parasaran submitted that there is a
similar provision in the 1997 Regulations applicable to the Graduate
M.B.B.S. course. Noticing the same, this Court in P.A. Inamdar's case
(supra) categorically indicated that nowhere in the T.M.A. Pai Foundation
case (supra), either in the majority or in the minority views, could any
justification be found for imposing seat sharing quota by the State on
unaided private professional educational institutions. Clarifying the
position this Court observed that fixation of percentage of quota are to be
read and understood as consensual arrangements which may be reached between
unaided private professional institutions and the State. Mr. Parasaran
urged that the Regulations providing for a quota of 50% are, therefore,
invalid.
58. Mr. Parasaran urged that in P.A. Inamdar's case (supra), this
Court had held that private institutions could follow an admission
procedure if the same satisfied the triple test of being fair, transparent
and non-exploitative. It is only when an institution failed the triple
test, could the State interfere and substitute its own fair and transparent
procedure, but the same cannot become a procedure by destroying the very
right of the private institutions to hold their own test in the first
instance. Mr. Parasaran urged that the purpose of a common entrance test
is to compute the equivalence between different kinds of qualifications and
to ensure that those seeking entry into a medical institute did not have to
appear for multiple tests, but it could not justify the extinguishing of
the right to admit and to reject candidates on a fair, transparent and non-
exploitative basis from out of the eligible candidates under NEET. Mr.
Parasaran reiterated that ultimately it is the institutions which must have
the right to decide the admission of candidates.
59. Mr. Parasaran submitted that in Pradeep Jain Vs. Union of India
[(1984) 3 SCC 654], this Court has held that university-wise distribution
of seats is valid. The learned Judges fully considered the mandate of
equality and pointed out the need to take into account different
considerations relating to differing levels of social, economic and
educational development of different regions, disparity in the number of
seats available in different States and the difficulties that may be faced
by students from one region, if they get a seat in another region. This
Court held that an All India Entrance Examination would only create a
mirage of equality of opportunity and would, in reality, deprive large
sections of underprivileged students from pursuing higher education. Though
attractive at first blush, an All India Entrance Examination would actually
be detrimental to the interests of the students hoping for admission to the
M.B.B.S. and Post-graduate courses.
60. Mr. Parasaran submitted that since all judgments on the subject
were by Benches which were of lesser strength as compared to the T.M.A. Pai
Foundation case (supra), all other decisions of this Court, both before and
after the decision in the T.M.A. Pai Foundation case (supra), would,
therefore, have to be read harmoniously with the principles enunciated in
the T.M.A. Pai Foundation case (supra). In case some of the cases cannot
be harmoniously read, then the principles laid down in the T.M.A. Pai
Foundation case (supra) will have primacy and will have to be followed.
Mr. Parasaran submitted that the observations as to standard and merit in
Preeti Srivsatava's case (supra) and in P.A. Inamdar's case (supra), have
to be understood as conforming to the decision in the T.M.A. Pai
Foundation case (supra). Mr. Parasaran submitted that the flourish of
language in the judgments of Benches of lesser strength cannot be read so
as to dilute the ratio of the decision of Benches of larger strength. Mr.
Parasaran urged that consequently the right to admit students by unaided
private institutions, both aided and unaided minority institutions, as part
of their right to administer the institution, as guaranteed under Articles
19(1)(g), 25, 26, 29(1) and 30 of the Constitution, cannot be taken away
even by way of plenary jurisdiction, which the impugned Regulations are
not.
61. Mr. Parasaran submitted that in the case of aided non-minority
institutions, the State may by Regulation provide for a larger role for the
State in relation to matters of admission. Mr. Parasaran urged that the
impugned Regulations being only regulatory in character, they cannot
destroy the right itself.
62. Dr. Rajiv Dhawan, learned senior counsel, who appeared on behalf of
Yenepoya University in Transferred Case Nos. 135-137 of 2012 and also for
the Karnataka Religious and Linguistic Minority Professional Colleges
Association in Transferred Case Nos. 121-122 of 2012, submitted that
although the issues involved in the said cases have already been argued in
extenso by Mr. Salve and Mr. Parasaran, as part of the main issue, it has
to be decided whether NEET violates the fundamental right guaranteed to
minorities, both religious and linguistic, to impart medical education, as
explained in the T.M.A. Pai Foundation case (supra) and other subsequent
decisions and even if found to be intra vires, is it manifestly unjust and
arbitrary? It was further urged that it would also have to be decided
whether the doctrine of severability, reading down and proportionality,
could be effected to the impugned Regulations.
63. Dr. Dhawan urged that the T.M.A. Pai Foundation case (supra)
resolved several issues where there was still some doubt on account of
decisions rendered in different cases. Dr. Dhawan urged that it was held
that the decision in the Unni Krishnan's case (supra) was wrong to the
extent that "free seats" were to go to the privileged and that education
was being nationalised which took over the autonomy of institutions. It was
also observed that the expanding needs of education entailed a combined use
of resources both of the Government and the private sector, since the
imparting of education was too large a portfolio for the Government alone
to manage.
64. Dr. Dhawan urged that the other issue of importance, which was also
decided, was the right of autonomy of institutions which were protected
under Article 30 of the Constitution, which, inter alia, included the right
to admit students.
It was also settled that unaided institutions were to have maximum
autonomy while aided institutions were to have a lesser autonomy, but not
to be treated as "departmentally run by government".
65. Dr. Dhawan submitted that the decision in the T.M.A. Pai
Foundation case (supra) also settled the issue that affiliation and
recognition has to be available to every institution that fulfills the
conditions for grant of such affiliation and recognition. Learned Senior
Counsel submitted that surrendering the total process of selection to the
State was unreasonable, as was sought to be done in the Scheme formulated
in Unni Krishnan's case (supra). The said trend of the decisions was sought
to be corrected in the T.M.A. Pai Foundation case (supra) where it was
categorically held that minority institutions had the right to "mould the
institution as they think fit", bearing in mind that "minority
institutions have a personality of their own, and in order to maintain
their atmosphere and traditions, it is but necessary that they must have a
right to choose and select the students who can be admitted in their course
of study." It is for this reason that in the St. Stephen's College case
(supra), this Court upheld the Scheme whereby a cut-off percentage was
fixed for admission after which the students were interviewed and,
thereafter, selected. It was also laid down that while the educational
institutions cannot grant admission on its whims and fancies and must
follow some identifiable or reasonable methodology of admitting students,
any scheme, rule or regulation that does not give the institution the right
to reject candidates who might otherwise be qualified according to, say
their performance in an entrance test, would be an unreasonable restriction
under Article 19(6), though appropriate guidelines/ modalities can always
be prescribed for holding the entrance test in a fair and transparent
manner.
66. Again in paragraphs 158 and 159 of the judgment in the T.M.A. Pai
Foundation case (supra), it has been very picturesquely expressed that
India is a kaleidoscope of different peoples of different cultures and that
all pieces of mosaic had to be in harmony in order to give a whole picture
of India which would otherwise be scarred. Their Lordships very poetically
indicated that each piece, like a citizen of India, plays an important part
in the making of the whole. The variations of the colours as well as
different shades of the same colour in a map are the result of these small
pieces of different shades and colours or marble, but even when one small
piece of marble is removed, the whole map would be disfigured, and the
beauty of the mosaic would be lost.
67. Referring to the separate decision rendered by Ruma Pal, J., in the
T.M.A. Pai Foundation case (supra), Dr. Dhawan submitted that the learned
Judge had also artistically distinguished Indian secularism from American
secularism by calling Indian secularism "a salad bowl" and not a "melting
pot".
68. Dr. Dhawan urged that a combined reading of the decision in Islamic
Academy's case (supra) and P.A. Inamdar's case (supra) suggests that (i) no
unaided institutions can be compelled to accept reservations made by the
State, except by voluntary agreement; and (ii) the right to (a) admit and
select students of their choice by pursuing individual or associational
tests and (b) fix fees on a non-profit basis is a right available to all
educational institutions, but the admissions were to be made on a fair,
transparent and non exploitative method, based on merit.
69. On Article 15(5) of the Constitution, Dr. Dhawan contended that
the same was included in the Constitution by the Constitution (93rd
Amendment) Act, with the object of over turning the decision in P.A.
Inamdar's case (supra) on voluntary reservations. Dr. Dhawan submitted
that the said provision would make it clear that the State reservations do
not apply to "minority institutions" enjoying the protection of Article 30
and it is on such basis that in the Society for Unaided Private Schools of
Rajasthan Vs. Union of India [(2012) 6 SCC 1], this Court held that a
minority institution could not be forced to accept the statutory
reservation also. Dr. Dhawan urged that the impact of the T.M.A. Pai
Foundation case (supra) and subsequent decisions is that all institutions,
and especially minority institutions, have the constitutional right to
select and admit students of their choice and conduct their own tests,
subject to minimum standards which could be enhanced but not lowered by the
States.
70. Dr. Dhawan also referred to the issue of equivalence between
various Boards and uniformity and convenience. Learned counsel submitted
that the distinction was recognized in the case of Rajan Purohit Vs.
Rajasthan University of Health Sciences [(2012) 10 SCC 770], wherein it was
observed that the problem of equivalence could be resolved by the college
or group of colleges, either by finding a method of equivalence to
reconcile difference of standards between various Boards, or by the college
or group of colleges evolving a Common Entrance Test to overcome the
problem of equivalence. Dr. Dhawan submitted that the said issue had been
addressed in the T.M.A. Pai Foundation (supra), which continues to hold the
field in respect of common issues. Dr. Dhawan urged that consistent with
the views expressed in the T.M.A. Pai Foundation case (supra) and the
importance of autonomy and voluntarism, the same could not be impinged upon
by nationalizing the process of admission itself for both the purposes of
eligibility and selection, unless a college failed to abide by the triple
requirements laid down in P.A. Inamdar's case (supra).
71. In regard to the decision in Lavu Narendranath's case (supra),
which had been relied upon by Mr. K. Parasaran, Dr. Dhawan contended that
the same was based upon the understanding that Entry 66 of List I had no
relation with tests for screening and selecting students prescribed by the
States or Universities for admission, but only to coordinate standards.
The scope of the said Entry did not deal with the method of admission,
which was within the constitutional powers of the State and the
Universities. Dr. Dhawan submitted that the decision rendered in Preeti
Srivastava's case (supra) also expressed similar views regarding laying
down of standards for admission into the Post-graduate medical courses,
which meant that government and universities had exclusive control over
admission tests and the criteria of selection in higher education, subject
to minimum standards laid down by the Union, unless Union legislation,
relatable to Entry 25 of List III, was passed to override the States'
endeavours in this regard.
72. Dr. Dhawan contended that the demarcation sought to be made in Lavu
Narendranath's case (supra) found favour in subsequent cases, such as in
the case of State of M.P. Vs. Nivedita Jain [(1981) 4 SCC 296], wherein a
Bench of Three Judges took the view that Entry 66 of List I of the Seventh
Schedule to the Constitution relates to "coordination and determination of
standards in institutions for higher education or research and scientific
and technical institutions". The said sentiments were reiterated by this
Court in Ajay Kumar Singh Vs. State of Bihar [(1994) 4 SCC 401]. However,
in Preeti Srivastava's case (supra), the Constitution Bench overruled the
decision in the said two cases. But, as urged by Dr. Dhawan, by holding
that Entry 66 of List I was not relatable to a screening test prescribed by
the Government or by a University for selection of students from out of a
large number for admission to any particular course of study, the
Constitution Bench also accepted that the powers of the MCI under List I,
Entry 66, did not extend to selection of students. Dr. Dhawan urged that
although Preeti Srivastava's case (supra) had been confined to its facts,
it went beyond the same on account of interpretation of the scope of List
I, Entry 66 and extending the same to the admission process, simply because
admission also related to standards and upon holding that the Union
Parliament also had the power to legislate for the MCI in the matter of
admission criteria under Entry 25, List III.
Dr. Dhawan submitted that the two aforesaid issues had the potentiality
of denuding the States and the private institutions, including minority
institutions enjoying the protection of Article 30, of their powers over
the admission process and in the bargain upset the Federal balance.
73. The validity of the impugned Regulations was also questioned by Dr.
Dhawan on the ground that Sections 19A and 20 of the 1956 Act authorises
the MCI to prescribe the minimum standards of medical education required
for granting recognised medical qualifications in India, but copies of the
draft regulations and of all subsequent amendments thereof are required to
be furnished by the Council to all State Governments and the Council,
before submitting the Regulations or any amendment thereto to the Central
Government for sanction, is required to take into consideration the
comments of any State Government received within three months from the
furnishing of copies of the said Regulations. Dr. Dhawan submitted that
such consultation was never undertaken by the MCI before the Regulations
were amended, which has rendered the said Regulations invalid and by virtue
of the decisions rendered in Lavu Narendranath's case (supra) and Preeti
Srivastava's case (supra), they cannot be reinstated by virtue of Entry 25
List III.
74. Dr. Dhawan urged that while the power of the MCI to frame
Regulations is under Section 33 of the 1956 Act, the role of the MCI is
limited to that of a recommending or a consulting body to provide standards
which are required to be maintained for the purpose of running the medical
institution, and would not include admission of students to the Under-
graduate and the Post-graduate courses. Dr. Dhawan urged that the said
powers could not have been extended to controlling admissions in the
medical colleges and medical institutions run by the State and private
authorities. Dr. Dhawan submitted that as was held by this Court in State
of Karnataka Vs. H. Ganesh Kamath [(1983) 2 SCC 402], "It is a well-settled
principle of interpretation of statutes that the conferment of rule-making
power by an Act does not enable the rule-making authority to make a rule
which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto." While accepting that delegated
legislation is necessary, Dr. Dhawan urged that it must remain within the
contours of the rule or regulation-making power and the purpose for which
it is given, as was held by this Court in St. John's Teachers Training
Institute Vs. Regional Director, National Council for Teacher Education
[(2003) 3 SCC 321].
75. Dr. Dhawan also questioned the vires of the amended provisions of
the MCI Rules on the ground of unreasonableness and arbitrariness and urged
that in both cases the Court would be justified in invoking the doctrine of
proportionality, as was observed by this Court in Om Prakash Vs. State of
U.P. [(2004) 3 SCC 402]. Dr. Dhawan submitted that the only way in which
the impugned Regulations could possibly be saved is by reading them down to
bring them in conformity with the constitutional legislation and the law
laid down by the Supreme Court.
76. Dr. Dhawan urged that admission of students in all the medical
institutions in India on the basis of a single eligibility-cum-entrance
examination, was not only beyond the scope of the powers vested in the
Medical Council of India to make Regulations under Section 33 of the 1956
Act, but the same were also arbitrary and unreasonable, not having been
framed in consultation with the States and without obtaining their response
in respect thereof. More over, the same runs counter to the decision of
this Court in the T.M.A. Pai Foundation case (supra) making it clear that
the MCI was only a regulatory and/or advisory body having the power to lay
down the standards in the curricula, but not to interfere with the process
of admission, which would be the obvious fall-out of a single NEET
conducted by the MCI. Dr. Dhawan concluded on the note that uniformity for
its own sake is of little use when the end result does not achieve the
objects for which the Regulations have been introduced.
77. Appearing for Sri Ramachandra University in Transferred Case Nos.1
& 3 of 2013, Mr. Ajit Kumar Sinha, learned Senior Advocate, questioned the
vires of the impugned regulations more or less on the same grounds as
canvassed by Mr. Salve, Mr. K. Parasaran and Dr. Dhawan. Mr. Sinha also
reiterated the fact that in Preeti Srivastava's case (supra), this Court
did not notice the decision in Deep Chand's case (supra) and overlooked the
fact that Parliament had no power to legislate with regard to matters which
were then in Entry 11 of List II of the Seventh Schedule. Mr. Sinha
submitted that the decision in Preeti Srivastava's case (supra) must,
therefore, be held to be per incuriam.
78. Mr. Sinha urged that neither Section 19A nor Section 2(h)
contemplates the holding of a pre-medical entrance test for admission into
all medical institutions in the country, irrespective of who had
established such institutions and were administering the same. Mr. Sinha
urged that the impugned Regulations were liable to be struck down on such
ground as well, as it sought to unlawfully curtail the powers of the
persons running such medical institutions in the country.
79. Mr. P.P. Rao, learned Senior Advocate, who initially appeared for
the State of Andhra Pradesh in Transferred Case No.102 of 2012, submitted
that as far as the State of Andhra Pradesh is concerned, admission into
educational institutions was governed by a Presidential Order dated 10th
May, 1979, issued under Article 371D of the Constitution, inter alia,
providing for minimum educational qualifications and conditions of
eligibility for admission to the MBBS, B.Sc. Course, etc. Mr. Rao
submitted that being a special provision it prevails in the State of Andhra
Pradesh over other similar legislations.
80. Subsequently, Mr. L. Nageshwara Rao, learned Senior Advocate,
appeared for the State of Andhra Pradesh in the said Transferred Case and
also in Transferred Cases Nos.100 and 101 of 2012, 103 of 2012, Transfer
Petition (C) Nos.1671 and 1645 of 2012 and Writ Petition (C) No.464 of
2012. In addition, Mr. Nageswara Rao also appeared for the State of Tamil
Nadu in Transferred Case Nos.110 and 111 of 2012 and for the Tamil Nadu
Deemed University Association in Transferred Cases Nos. 356 and 357 of 2012
and Writ Petition (C) No.27 of 2013.
81. Continuing from where Mr. P.P. Rao left off, Mr. Nageswara Rao
submitted that in conformity with the aforesaid Presidential Order, the
State of Andhra Pradesh enacted the A.P. Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983,
defining, inter alia, "local area", "local candidate", "educational
institutions" and "relevant qualifying examinations". Mr. Rao pointed out
that Section 5 of the Act provides for reservation in non-State- Wide
Universities and Education Institutions in favour of local candidates while
Section 6 provides for reservation in State-wide Universities and State-
wide Educational Institutions for local candidates. Mr. Rao submitted that
the impugned Notification of the Medical Council of India cannot be given
effect to in view of the Presidential Order made under Article 371D of the
Constitution and the 1983 Act enacted in pursuance of the said Order.
82. Mr. Rao submitted that if the Medical Council of India could or
should hold a National Eligibility-cum-Entrance Test, it would have the
effect of denuding the State and the educational institutions of their
right to establish and administer educational institutions which enjoy the
protection of Articles 19(1)(g), 25, 26 and 30 of the Constitution.
83. With regard to the State of Tamil Nadu and the Deemed University
Association, Mr. Rao confined his submissions to Entry 25 of List III, in
relation to Entry 66 of List I. Mr. Rao reiterated the submissions made
earlier that the subject matter of Entry 66 of List I is for "coordination
and determination of standards" in institutions for higher education and
that the determination of standards also falls within Entry 25 of List III
only when coordination and determination of standards are dealt together
with the State enactment made subject to legislation under Entry 66 of List
I. Mr. Rao submitted that the denudation of the legislative power of the
State Legislature could only be by plenary legislation made under Entry 66
of List I read with Article 246 of the Constitution and not by subordinate
legislation which renders the impugned regulations ultra vires the
aforesaid provisions of the Constitution.
84. While dealing with the aforesaid questions, Mr. Rao also submitted
that the Notification contemplates the conducting of a common entrance test
for all the dental colleges throughout India, without considering the
different streams of education prevalent in India such as CBSE, ICSE, State
Boards, etc., prevailing in different States. The different standards of
education prevalent in different States had not been taken into
consideration and in such factual background, the holding of a Single
Common Entrance Test for admission to the B.D.S. and the M.D.S. courses in
all the dental colleges throughout India, would lead to violation of
Article 14 of the Constitution, since there is no intelligible object
sought to be achieved by such amended regulations.
85. Mr. Rao also questioned the provision made by the amendment dated
15th February, 2012, to the Notification dated 21st December, 2010,
reserving admission to Post-graduate Diploma Courses for Medical Officers
in the Government Service, who acquired 30% marks, as being wholly
unrelated to merit in the entrance examination and, therefore, making such
reservation arbitrary and irrational. Mr. Rao submitted that there is no
rationale in giving this benefit only to whose who are serving in
Government/public authorities with regard to service in remote/difficult
areas. Mr. Rao urged that the Government of Tamil Nadu has consistently
opposed the proposal to apply the National Eligibility-cum-Entrance Test to
determine admission to different medical colleges and institutions. Mr.
Rao submitted that when the Notification was first issued on 27th December,
2010, the Government of Tamil Nadu challenged the same by way of Writ
Petition No. 342 of 2011 and in the said Writ Petition, the High Court
stayed the operation of the Notification for UG NEET Entrance Examination
in so far as it related to the State of Tamil Nadu, and the stay continues
to be in force. Mr. Rao urged that in respect of Tamil Nadu there are many
constitutional issues, as Tamil Nadu had abolished the Common Entrance Test
based on the Tamil Nadu Admission in Professional Educational Institutions
Act, 2006, which was given effect to after receiving the President's assent
under Article 254(2) of the Constitution.
86. Mr. Rao submitted that the introduction of NEET by virtue of the
amended Regulations would run counter to the policy of the State Government
which has enacted the aforesaid Act by abolishing the practice of holding
an All India Entrance Test for admission to the professional courses in the
State. Mr. Rao submitted that the decision regarding admission to the Post-
graduate Medical and Dental Examinations would be the same as that for
admission in Under-graduate courses.
87. Mr. Rao contended that the MCI had no jurisdiction to issue the
impugned Notifications as the Council lacks the competence to amend the
State Act which had been enacted in 2006 and the validity whereof has been
upheld by the High Court. Mr. Rao repeated and reiterated the submissions
earlier made with regard to the vires of the impugned Regulations and
prayed for proper directions to be issued to allow the State of Tamil Nadu
to continue its existing system of admission to both Under-graduate and
Post-graduate courses.
88. Learned senior counsel, Mr. R. Venkataramani, appearing for the
Government of Puducherry, in T.C. No. 17 of 2013, adopted the submissions
made by Mr. Salve, Mr. Parasaran and Dr. Dhawan. Mr. Venkataramani
submitted that the Notifications, whereby the impugned Regulations were
sought to be introduced by the Medical Council of India, were beyond the
scope of the powers conferred under Section 33 of the 1956 Act, rendering
them ultra vires and invalid. Mr. Venkataramani submitted that the failure
of the MCI to consult the Government of Puducherry, as was required under
Sections 19A and 20 of the 1956 Act, before amending the Regulations and
notifying the same, rendered the same invalid. Mr. Venkataramani also
reiterated the submission made earlier that there are different streams of
education prevailing in different States, having different syllabi,
curriculum, Board of Examinations and awarding of marks and it would be
unreasonable to conduct a single examination by taking recourse to a
particular stream of education which would have the effect of depriving
effective participation of other students educated in different streams.
89. Mr. Venkataramani submitted that this Court had consistently held
that unaided educational institutions are free to devise their own
admission procedures and that the impugned Regulations were against social
justice and would impinge on the rights of unaided educational institutions
as well as the institutions enjoying the protection of Article 30 of the
Constitution in the Union Territory of Puducherry.
90. Appearing for the Karnataka Private Medical and Dental Colleges'
Association consisting of Minority and Non-Minority private unaided Medical
Colleges and educational institutions in the State of Karnataka, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that the Association had
filed several Writ Petitions before the Karnataka High Court challenging
the validity of the Notifications dated 21.12.2010 and 5.2.2012, by which
the Medical Council of India has attempted to foist a Common Entrance Test
(NEET) on all medical institutions in the country, which have been
transferred to this Court for consideration along with other similar
matters where the issues were common.
91. Mr. Venugopal reiterated that the imposition of NEET was contrary
to the decisions of this Court in the T.M.A. Pai Foundation case (supra)
and in P.A. Inamdar's case (supra). Mr. Venugopal contended that the right
of the Members of the Association to carry on the business and vocation of
imparting medical education had been upheld not only in the two aforesaid
cases, but also in the Islamic Academy of Education case (supra) and in T.
Varghese George Vs. Kora K. George [(2012) 1 SCC 369], Society for Unaided
Private Schools of Rajasthan case (supra) and Rajan Purohit's case
(supra).
Mr. Venugopal urged that the aforesaid right has been based on the
fact that a non-minority professional college has the same fundamental
right which is also possessed by a minority institution under Article
19(1)(g) of the Constitution, but is subject to reasonable restrictions
under Article 19(6) of the Constitution.
92. Mr. Venugopal also voiced the issues common to all these cases as
to whether it would be open to the Government or the MCI, a creature of the
Indian Medical Council Act, 1956, to regulate the admission of students to
all medical colleges and institutions. Mr. Venugopal urged that since the
question had been troubling the Courts in the country for a considerable
period of time, a Bench of Eleven (11) Judges was constituted to settle the
above issues and other connected issues and to put a quietus to the same.
The said Bench heard a number of matters in which the issue had been raised
and it delivered its verdict in what is referred to as the T.M.A. Pai
Foundation case (supra), answering all the questions raised. Certain
common issues contained in the judgment came up for consideration later and
were subsequently referred to a Bench of Seven Judges in P.A. Inamdar's
case (supra) where the issue was finally put to rest.
93. Mr. Venugopal firmly urged that in dealing with the issues raised
in these matters, none of the decisions rendered by this Court in the past
were required to be re-opened and the said issues will have to be
considered and decided by this Court by merely testing their validity
against the ratio of the earlier judgments, and, in particular, the
decision in the T.M.A. Pai Foundation case (supra).
94. Mr. Venugopal's next submission was with regard to the provisions
of the Karnataka Professional Educational Institutions (Regulation of
Admission and Fixation of Fee) (Special Provisions) Act, 2011, hereinafter
referred to as the "Karnataka Act of 2011", which provides for a
consensual arrangement between the State Government and the Petitioner
Association for filling up the seats in the unaided medical colleges being
taken over by the State Government to the extent agreed upon between the
parties. The said Act also regulates the fees to be charged in these
private institutions. Mr. Venugopal urged that the said Act still holds the
field, since its validity has not been challenged. As a result, the
impugned Regulation, now made by the Medical Council of India, purportedly
under Section 33 of the 1956 Act, cannot prevail over the State law. Mr.
Venugopal submitted that the impugned Regulations are, therefore, of no
effect in the State of Karnataka.
95. Mr. Venugopal also urged that having regard to the decision of this
Court in the T.M.A. Pai Foundation case (supra) and the other decisions
referred to hereinabove, the impugned Notifications imposing NEET as a
special vehicle for admission into medical colleges denuding the State and
the private medical institutions from regulating their own procedure, must
be held to be ultra vires Section 33 of the 1956 Act.
96. Mr. Venugopal reiterated the submissions made on behalf of the other
Petitioners and concluded on the observations made in paragraph 3 of the
decision of this Court in State of Karnataka Vs. Dr. T.M.A. Pai Foundation
& Ors. [(2003) 6 SCC 790], which made it clear that all statutory
enactments, orders, schemes, regulations would have to be brought in
conformity with the decision of the Constitution Bench in the T.M.A. Pai
Foundation case (supra), decided on 31.10.2002. Mr. Venugopal submitted
that it, therefore, follows that the Regulations of 2000, 2010 and 2012, to
the extent that they are inconsistent with the decision in the T.M.A. Pai
Foundation case (supra), would be void and would have to be struck down.
97. Mr. G.S. Kannur, learned Advocate, who appeared in support of the
application for intervention, being I.A. No.3, in Transferred Case No.3 of
2013, repeated the submissions made by Mr. K. Parasaran, Dr. Dhawan and Mr.
L. Nageshwar Rao, that the existence of various Boards in a particular
State is bound to cause inequality and discrimination if the Common
Entrance Test was introduced as the only criteria for admission into any
medical college or institution in the country.
98. Appearing for the Christian Medical College Ludhiana Society and the
medical institutions being run by it, Mr. V. Giri, learned Senior Advocate,
reiterated the submissions made by Mr. Harish Salve, on behalf of the
Christian Medical College Vellore Association, but added a new dimension to
the submissions made by submitting that the impugned Regulations had been
issued by the Board of Governors, which had been in office pursuant to the
supersession of the Medical Council, under Section 3A of the 1956 Act. Mr.
Giri submitted that the Board of Governors, which was only an ad hoc body
brought into existence to exercise the powers and perform the functions of
the Council under the Act pending its reconstitution, was not competent as
an Ad hoc body to exercise the delegated legislative power under Section 33
of the said Act and to discharge the functions of the Medical Council, as
contemplated under Section 3 of the 1956 Act.
99. Mr. Giri urged that though Section 33 of the 1956 Act confers power on
the Medical Council of India to make Regulations generally for carrying out
the purposes of the Act, it also enumerates the different functions of the
Council and its powers and duties which are referable to the substantial
provisions of the Act itself. Learned counsel pointed out that clause (l)
deals with the conduct of professional examinations, qualification of
examiners and conditions of admission to such examinations. Mr. Giri urged
that Sections 16 to 18 of the above Act deals with the substantive power
available to the Medical Council of India to require of every University or
Medical Institution information as to the courses of study and examinations
and if necessary, to take steps for inspecting the same. Accordingly, the
Regulation-making power contemplated under Section 33 of the 1956 Act is
referable to the substantive functions to be discharged by the Council
under Sections 16 to 18 of the Act. Mr. Giri contended that no provision
in the Act contemplates that the Council may actually conduct the
examinations. Relying on the views expressed in the T.M.A. Pai Foundation
case (supra), Mr. Giri urged that the impugned Regulations were in direct
violation of the rights guaranteed to a minority educational institutions
under Article 19(1)(g) read with Articles 25, 26, 29(1) and 30 of the
Constitution.
100. Mr. Giri submitted that the Petitioner is a minority educational
institution admitting students from the minority community in a fair,
transparent and non-exploitative manner, based on inter se merit, and
cannot be subjected to the NEET for the purposes of admission to the Under-
graduate MBBS and Post-graduate degrees in medicine. Reemphasising Mr.
Salve's submissions, Mr. Giri submitted that the activity of running
medical, allied health sciences and nursing courses, in order to ensure
constant supply of doctors and other para-medical staff to the hospitals
and other facilities engaged in the healing of the sick, are acts done in
furtherance of the Petitioner's religious faith, which stand protected
under Articles 25, 26 and 30 of the Constitution.
101. Mr. Giri submitted that the Government of Punjab, in its Department
of Medical Education and Research, vide its Notification No.
5/7/07.3HBITI/2457 dated 21.05.2007, for admission to MBBS, BDS, BAMS and
BHMS courses and vide Notification No. 5/8/2007-3HB3/1334 dated 21.03.2007,
for admission in Post-graduate Degree/ Diploma courses in the State of
Punjab, excluded the Christian Medical College and Christian Dental
College, Ludhiana, from the admission process conducted by Baba Farid
University of Health Sciences, Faridkot, on behalf of the State Government
for various Under-graduate and Post-graduate Medical Degree courses. Mr.
Giri submitted that the impugned Regulations, being ultra vires the
provisions of Articles 19(1)(g) and Articles 25, 26, 29(1) and 30 of the
Constitution, having been promulgated by an ad hoc body, were liable to be
struck down.
102. Mr. K. Radhakrishnan, learned Senior Advocate, appeared for the Annoor
Dental College and Hospital, situated in the State of Kerala, adopted the
submissions made by the other counsel and urged that the submissions
advanced, as far as medical colleges and institutions are concerned, apply
equally to dental colleges, which are under the authority of the Dental
Council of India and is governed by the Dentists Act, 1948. Mr.
Radhakrishnan submitted that the impugned Regulations were also ultra vires
the Dentists Act, 1948, Section 20 whereof empowers the Dental Council of
India to prescribe conditions for admission to the courses for training of
dentists and dental hygienists, but does not authorize the Dental Council
of India or any agency appointed by it to conduct admission tests for
selection of students for the BDS and MDS courses. Mr. Radhakrishnan also
urged that the impugned Regulations which attempted to enforce NEET, were
ultra vires the provisions of the Dentists Act, 1948, as also the relevant
provisions of the Constitution and are, therefore, liable to be struck
down.
103. Transferred Case No.8 of 2013 which arises out of Writ Petition
No.5939 (M/S) of 2012, was filed by the U.P. Unaided Medical Colleges
Welfare Association and Others. Appearing for the said Association, Mr.
Guru Krishnakumar, learned Senior Advocate, while adopting the submissions
already made, reiterated that the functional autonomy of institutes is an
integral right under Article 19(1)(g) of the Constitution, as clearly set
out in the decision rendered in the T.M.A. Pai Foundation case (supra).
Learned Senior counsel submitted that the fundamental right guaranteed
under Article 19(1)(g) includes the right to admit students in the
privately run professional colleges, including medical, dental and
engineering colleges, and viewed from any angle, the impugned Regulations
were impracticable, besides causing violence to Article 19(1)(g) of the
Constitution. Mr. Guru Krishnakumar submitted that the impugned Regulations
and the Notifications promulgating the same, were liable to be struck down.
104. Mr. C.S.N. Mohan Rao, learned Advocate, who appeared for the Writ
Petitioner, Vigyan Bharti Charitable Trust in Writ Petition (C) No.15 of
2013, submitted that the Petitioner was a registered charitable trust
running two medical colleges and a dental college in the State of Odisha.
The various submissions made by Mr. Rao were a repetition of the
submissions already made by Mr. Harish Salve and others. Mr. Rao, however,
referred to a Two-Judge Bench decision of this Court in Dr. Dinesh Kumar
Vs. Motilal Nehru Medical Colleges, Allahabad & Ors. [(1985) 3 SCC 727],
wherein, while considering the question of admission to medical colleges
and the All India Entrance Examination, it was, inter alia, held that it
should be left to the different States to either adopt or reject the
National Eligibility Entrance Test proposed to be conducted by the Medical
Council of India. Mr. Rao submitted that as stated by Justice V. Krishna
Iyer in the case of Jagdish Sharan & Ors. Vs. Union of India & Ors. [(1980)
2 SCC 768], merit cannot be measured in terms of marks alone, but human
sympathies are equally important. The heart is as much a factor as the
head in assessing the social value of a member of the medical profession.
105. In Writ Petition (Civil) No.535 of 2012, Saveetha Institute of
Medical and Technical Sciences, a Deemed University, declared as such under
Section 3 of the University Grants Commission Act, 1956, has questioned the
impugned Notifications and the amended Clauses of the MCI Regulations on
the same grounds as in the earlier cases. Mr. Jayanth Muth Raj, learned
Advocate appearing for the Petitioner, repeated and reiterated the
submissions made earlier in regard to the law as laid down in the T.M.A.
Pai Foundation case (supra) and in P.A. Inamdar's case (supra) and urged
that the impugned Notifications had been issued in violation of the
decisions rendered in the said two cases and in other subsequent cases
indicating that private institutions had the right to evaluate their
admission procedure based on principles of fairness, transparency and non-
exploitation. Mr. Muth Raj submitted that in the absence of any
consensual arrangement in the case of the Petitioner, the MCI or the Dental
Council of India could not compel the Petitioner to accept the National
Eligibility-cum-Entrance Test on the basis of the impugned Regulations.
Learned counsel submitted that to that extent, the impugned amended
Regulations and the Notifications issued to enforce the same were ultra
vires Articles 14, 19(1)(g) and 26 of the Constitution and were liable to
be struck down.
106. Writ Petition (Civil) No.495 of 2012 and Transfered Case No.108 of
2012 involve common questions regarding the conducting of NEET in English
and Hindi in the State of Gujarat, where the medium of instructions under
the Gujarat Board of Secondary Education is Gujarati. The submissions made
both on the behalf of the Petitioners and the State of Gujarat were ad idem
to the extent that Entry 66 of List I restricts the legislative powers of
the Central Government to "co-ordination and determination of standards of
education". Thus, as long as the Common Entrance Examination held by the
State or the other private institutions did not impinge upon the standards
laid down by Parliament, it is the State which can, in terms of Entry 25 of
List III, prescribe such a Common Entrance Test in the absence of any
Central Legislation relatable to Entry 25 of List III. Mr. K.K. Trivedi,
learned Advocate, appearing for the Petitioners submitted that the impugned
Regulations and Notifications were, ultra vires Section 33 of the 1956 Act,
since prescribing a Common Entrance Test is not one of the stated purposes
of the Act and were, therefore, liable to be struck down.
107. Appearing for the Medical Council of India, Mr. Nidhesh Gupta,
learned Senior Advocate, submitted that the Medical Council of India Act,
1956, is traceable to Entry 66 of List I, as was held in MCI Vs. State of
Karnataka [(1998) 6 SCC 131]. In paragraph 24 of the said decision it was
categorically indicated that the Indian Medical Council Act being relatable
to Entry 66 of List I, prevails over any State enactment to the extent the
State enactment is repugnant to the provisions of the Act, even though the
State Acts may be relatable to Entry 25 or 26 of the Concurrent List.
108. Mr. Gupta submitted that Entry 66 in List I empowers the Central
Government to enact laws for coordination and determination of standards in
institutions for higher education or research and scientific and technical
institutions. Learned counsel also urged that Section 19-A (1) of the
Indian Medical Council Act, 1956, provides that the Council may prescribe
the minimum standards of medical education required for granting recognised
medical qualifications (other than postgraduate medical qualifications) by
universities or medical institutions in India. Mr. Gupta submitted that
Section 20 relating to post-graduate medical education could also prescribe
similar standards of Postgraduate Medical Education for the guidance of
Universities. Mr. Gupta submitted that Section 33 of the 1956 Act,
empowers the Medical Council of India, with the previous approval of the
Central Government to make Regulations, and provides that the Council may
make Regulations generally to carry out the purposes of the Act, and,
without prejudice to the generality of this power, such Regulations may
provide for "any other matter for which under the Act provision may be made
by Regulations”. Mr. Gupta urged that it is the accepted position that
standards of education are to be determined by the MCI. The questions
which have been posed on behalf of the Petitioners in these various
matters, challenging the vires of the Regulations, are whether the power of
determination of standards of education includes the power to regulate the
admission process and determine the admission criteria, and whether the
determination of standards of education also include the power to conduct
the examinations.
109. Responding to the two questions, Mr. Gupta submitted that once
the 1997 Regulations were accepted by the various Medical Colleges and
Institutions as being in accordance with law and the powers vested under
Entry 66 of List I, the first issue stands conceded, since the 1997
Regulations prescribing the eligibility criteria for admission in medical
courses had been accepted and acted upon by the medical institutions. In
addition to the above, Mr. Gupta contended that Section 33(l) of the 1956
Act vested the MCI with powers to frame regulations to provide for the
conduct of professional examinations, qualifications of examiners and the
conditions of admission to such examinations. Mr. Gupta submitted that,
under the said provision, it can be said that the MCI was within its rights
to conduct the NEET and stipulate the qualifications of examiners and the
conditions of admission to such examinations.
110. Mr. Gupta submitted that it would be incorrect to say that standards
of education can have no direct impact on norms of admission. Learned
senior counsel pointed out that in paragraph 36 of the judgment in Preeti
Srivastava's case (supra), it had been indicated that the standards of
education are impacted by the caliber of students admitted to the
institution and that the process of selection and the criteria for
selection of candidates has an impact on the standards of medical
education. Mr. Gupta submitted that the views expressed by this Court in
the decisions rendered in Nivedita Jain's case (supra) and that of Ajay
Kumar Singh's case (supra), which had taken a contrary view, were overruled
in Preeti Srivastava's case (supra). Mr. Gupta also relied on the
decision of this Court in Bharati Vidyapeeth (Deemed University) and Ors.
Vs. State of Maharashtra & Anr. [(2004) 11 SCC 755], wherein while
following the decision in Preeti Srivastava's case (supra), it was
reiterated that prescribing standards would include the process of
admission. Mr. Gupta submitted that the said decision had, thereafter,
been followed in Prof. Yashpal Vs. State of Chhattisgarh [(2005) 5 SCC
420]; State of M.P. Vs. Gopal D. Teerthani [(2003) 7 SCC 83], Harish Verma
Vs. Rajesh Srivastava [(2003) 8 SCC 69] and in Medical Council of India Vs.
Rama Medical College Hospital & Research Centre [(2012) 8 SCC 80]. Learned
senior counsel urged that the expression “standard” used in Entry 66 of
List I has been given a very wide meaning by this Court in Gujarat
University, Ahemadabad Vs. Krishna Ranganath Mudholkar [(1963) Supp. 1 SCR
112] and accordingly anything concerned with standards of education would
be included within Entry 66 of List I and would be deemed to be excluded
from other Lists. Mr. Gupta also placed reliance on MCI Vs. State of
Karnataka [1998 (6) SCC 131], wherein it was held that it was settled law
that while considering the amplitude of the entries in Schedule VII of the
Constitution, the widest amplitude is to be given to the language of such
Entries. Mr. Gupta urged that without prejudice to the contention that
Entry 66 of List I directly permits the admission process and the
examination itself being regulated and/or conducted by the MCI, even if the
Entries did not directly so permit, the MCI was entitled to regulate the
said functions since even matters which are not directly covered by the
Entries, but are ancillary thereto, can be regulated. Mr. Gupta submitted
that in Krishna Ranganath Mudholkar's case (supra), it was held that power
to legislate on a subject should normally be held to extend to all
ancillary or subsidiary matters, which can fairly and reasonably be said to
be comprehended in that subject. Reference was also made to the decisions
of this Court in Harakchand Ratanchand Banthia Vs. Union of India [(1969) 2
SCC 166]; ITC Vs. Agricultural Produce Market Committee [(2002) 9 SCC 232];
and Banarasi Dass Vs. WTO [1965 (2) SCR 355], wherein the same principle
has been reiterated. Mr. Gupta submitted that Regulations validly made
become a part of the Statute itself, as was indicated in State of Punjab
Vs. Devans Modern Breweries Ltd. [(2004) 11 SCC 26]; Annamalai University
Vs. Information & Tourism Department [(2009) 4 SCC 590] U.P. Power
Corporation Vs. NTPC Ltd. [(2009) 6 SCC 235] and the St. Johns Teachers
Training Institute case (supra). According to Mr. Gupta, the NEET
Regulations having been validly made and the requisite legislation being
available in Sections 19A, 20 and 23 of the Indian Medical Council Act,
1956, the NEET Regulations must be deemed to be part of the Act itself.
111. Regarding the MCI's power to conduct the NEET, Mr. Gupta urged
that once it had been held in Preeti Srivastava's case (supra) that the
standard of education is impacted by the process of selection, the power to
determine the said process of selection is implicit. In fact, Mr. Gupta
submitted that the aforesaid question stands concluded by the judgment of
this Court in Veterinary Council of India Vs. Indian Council of
Agricultural Research [(2000) 1 SCC 750], wherein, while considering the
provisions of the Veterinary Council of India Act which were materially the
same as those of the Indian Medical Council Act, it was held relying on the
judgment in Preeti Srivastava's case (supra) that the Veterinary Council of
India was competent to and had the requisite powers to hold the All India
Entrance Examination.
112. Mr. Gupta urged that this Court had repeatedly emphasised how
profiteering and capitation fee and other malpractices have entered the
field of medical admissions, which adversely affect the standards of
education in the country. Such malpractices strike at the core of the
admission process and if allowed to continue, the admission process will be
reduced to a farce. It was to put an end to such malpractices that the MCI
introduced NEET and was within its powers to do so.
113. On the necessity of furnishing draft Regulations to the State
Governments, as stipulated under Section 19A(2) and for Committees under
Section 20, Mr. Gupta urged that the same was merely directory and not
mandatory. Referring to the decision of this Court in State of U.P. Vs.
Manbodhan Lal Srivastava [1958 SCR 533], learned counsel submitted that
this Court while considering the provisions of Article 320(3) of the
Constitution, which provides for consultation with the Union Public Service
Commission or the State Public Service Commission, held that the said
requirement in the Constitution was merely directory and not mandatory.
Drawing a parallel to the facts of the said case with the facts of the
present set of cases, Mr. Gupta urged that the provisions of Section 19A(2)
must be held to be directory and not mandatory and its non-compliance could
not adversely affect the amended Regulations and the Notifications issued
in pursuance thereof.
Mr. Gupta submitted that before amending the Regulations, detailed
interaction had been undertaken with the State Governments at various
stages. Learned counsel submitted that as far back as on 14.9.2009,
5.2.2010 and 4.8.2010, letters had been written to various State
Governments and the responses received were considered. There were joint
meetings between the various State representatives and the other concerned
parties and the concerns of most of the State Governments were fully
addressed.
114. On the question of federalism and the powers of the State under
Article 254 of the Constitution, Mr. Gupta contended that since the MCI
derived its authority from Entry 66 of List I, it is a subject which is
exclusively within the domain of the Union. Mr. Gupta submitted that all
the arguments advanced on behalf of the Petitioners were on the erroneous
assumption that the Regulations had been made under Entry 25 of List III.
Mr. Gupta pointed out that in paragraph 52 of the judgment in Preeti
Srivastava's case (supra), this Court had held that the impugned
Regulations had been framed under Entry 66, List I and that the Regulations
framed by the MCI are binding and the States cannot in exercise of powers
under Entry 25 of List III make Rules and Regulations which are in conflict
with or adversely impinge upon the Regulations framed by the MCI for Post-
graduate medical education. Mr. Gupta urged that since the standards laid
down by the MCI are in exercise of powers conferred by Entry 66 of List I,
the same would prevail over all State laws on the same subject.
115. Mr. Gupta also urged that the ratio of Lavu Narendranath's case
(supra) had been misunderstood on behalf of the Petitioners and the
arguments raised on behalf of Yenepoya University was based on the ratio
that Entry 66 of List I is not relatable to a screening test prescribed by
the Government or by a University for selection of students from out of a
large number applying for admission to a particular course of study. Mr.
Gupta pointed out that the ratio of the decision in Preeti Srivastava's
case (supra) and in Lavu Narendranath's case (supra) show that the
Government which ran the colleges had the right to make a selection out of
a large number of candidates and for this purpose they could prescribe a
test of their own which was not contrary to any law. It was urged that in
the said case, there was no Central legislation occupying the field. Mr.
Gupta urged that NEET is not a mere screening test, but an eligibility test
which forms the basis of selection. Mr. Gupta submitted that any test
which might be prescribed by a State Government would be against the law in
the present case, being in the teeth of the NEET Regulations.
116. With regard to the submissions made on behalf of the minority
institutions enjoying the protection of Article 30, Mr. Gupta contended
that reliance placed on behalf of CMC, Vellore, on the judgment in the
Ahmedabad St. Xavier's College Society Vs. State of Gujarat [(1974) 1 SCC
717], was entirely misplaced, and, in fact, the said judgment supports a
test such as NEET. Mr. Gupta submitted that on a proper analysis of the
said judgment and in particular the judgment delivered by Chief Justice
Ray, (as His Lordship then was), it would be evident that even in the said
judgment the right of religious and linguistic minorities to establish and
administer educational institutions of the choice of the minorities had
been duly recognised. Chief Justice Ray also observed that if the scope of
Article 30(1) is made an extension of the right under Article 29(1) as a
right to establish and administer educational institutions for giving
religious instruction or for imparting education in their religious
teachings or tenets, the fundamental right of minorities to establish and
administer educational institutions of their choice would be taken away.
It was also observed in the judgment that every section of the public, the
majority as well as minority, has rights in respect of religion as
contemplated in Articles 25 and 26 of the Constitution. Mr. Gupta urged
that the whole object of conferring the right on minorities under Article
30 is to ensure that there would be equality between the majority and the
minority. It was urged that it is for the aforesaid reason that whenever
the majority community conferred upon itself a special power to overrule or
interfere with the administration and management of the minority
institutions, the Supreme Court struck down the said power. Mr. Gupta
submitted that whenever an attempt was made to interfere with the rights
guaranteed to religious and linguistic minorities, as in the St. Xavier's
case (supra), the same being arbitrary and unreasonable, was struck down.
Reliance was also placed on the decision in the case of Rev. Father W.
Proost, and in the case of Rt. Rev. Bishop S.K. Patro, where the impugned
order of the Secretary to the Government dated 22nd May, 1967, set aside
the order passed by the President of the Board of Secondary Education. Mr.
Gupta urged that in the very initial stage of judicial consideration in
these matters, in State of Kerala Vs. Very Rev. Mother Provincial [(1970)
2 SCC 417], the impugned provisions required nominees of the University and
the Government to be included in the Governing Body. The same being a
direct infringement on the rights of the minorities to establish and
administer institutions of their choice, the impugned provision was struck
down.
117. Mr. Gupta submitted that in each of the aforesaid cases, an
attempt was made by the majority to take over the management and to impose
its substantive views. Learned counsel submitted that NEET does nothing of
the sort, since it did not infringe any of the rights guaranteed either
under Article 19(1)(g) or Articles 25, 26, 29 and 30 of the Constitution.
Mr. Gupta urged that the various questions raised on behalf of the
Petitioners herein have been fully answered in P.A. Inamdar's case (supra).
They also meet the tests prescribed in the St. Xavier's case (supra) as
well. Mr. Gupta urged that Justice Khanna in paragraph 105 of the judgment
observed that Regulations which are calculated to safeguard the interests
of teachers would result in security of tenure and would attract competent
persons for the posts of teachers and are, therefore, in the interest of
minority educational institutions, and would not violate Article 30(1) of
the Constitution. Mr. Gupta urged that by the same reasoning, Regulations
which are in the interest of the students and will attract the most
meritorious students, are necessarily in the interest of the minority
institutions and do not, therefore, violate their rights under Article
30(1) of the Constitution.
118. Mr. Gupta submitted that in the St. Xavier's case (supra), Justice
Khanna had indicated in his separate judgment the dual tests of
reasonableness and of making the institution an effective vehicle of
education for the minority community and others who resort to it. Mr.
Gupta submitted that NEET meets the test of reasonableness and fully
assists in making the institution an effective vehicle of education, since
it ensures admission for the most meritorious students and also negates any
possibility of admissions being made for reasons other than merit within
each category. Mr. Gupta submitted that, in fact, in paragraph 92 of the
judgment, Justice Khanna had observed that "a regulation which is designed
to prevent maladministration of an educational institution cannot be said
to offend Clause (1) of Article 30". Mr. Gupta re-emphasized that NEET
was not in any way against the rights vested in educational institutions,
being run by the minorities, but it was in the interest of such minorities
to have their most meritorious students in the best institutes.
119. Dealing with the various tests referred to on behalf of the
Petitioners in the different cases, Mr. Gupta submitted that the ratio in
the T.M.A. Pai Foundation case (supra) also supports the NEET Regulations.
Mr. Gupta contended that the right of minority institutions to admit
students was not being denied, inasmuch as, the concerned institutes could
admit students of their own community, but from the list of successful
candidates who appear for the NEET. Mr. Gupta submitted that in the
aforesaid judgment it was also observed that merit is usually determined by
a common entrance test conducted by the institution or in case of
professional colleges, by government agencies. Mr. Gupta submitted that it
had also been emphasized that Regulations in national interest are to apply
to all educational institutions, whether run by a minority or non-
minorities and that an exception to the right under Article 30 is the power
of the State to regulate education, educational standards and allied
matters. Mr. Gupta submitted that in the T.M.A. Pai Foundation case
(supra), it had been indicated that regulatory measures for ensuring
educational standards and maintaining excellence thereof are no anathema to
the protection conferred by Article 30(1).
120. Mr. Gupta submitted that the admission process followed by CMC,
Vellore, failed to meet any of the tests relating to transparency and
fairness and lack of arbitrariness. Mr. Gupta pointed out that, in the
case of a candidate for admission in the Under-graduate or Post-graduate
courses in the said institution, a candidate cannot be selected unless he
is sponsored by the Diocese and the competition is limited to the
particular candidates, who had been sponsored by a particular Diocese,
which Mr. Gupta submitted is violative of Article 14 of the Constitution
and also the principles of merit.
Mr. Gupta urged that as far as the application of Articles 25 and
26 of the Constitution in matters relating to establishment and
administration of educational institutions is concerned, the same has to be
read in relation to matters of religion and with respect to religious
practices which form an essential and integral part of religion. Learned
counsel submitted that the rights protected under Articles 25 and 26 are
available to individuals and not to organized bodies, such as CMC, Vellore,
or other minority run institutions, as had been held by this Court in
Sardar Vs. State of Bombay [1962 Supp. (2) SCR 496], wherein it was
observed that the right guaranteed by Article 25 is an individual right.
The said view was subsequently endorsed in Sri Sri Sri Lakshmana Yatendrulu
Vs. State of A.P. [(196) 8 SCC 705]. Mr. Gupta submitted that, having
regard to the above, the various associations and minorities, which had
challenged the impugned Regulations, were not entitled to do so and their
applications were liable to be dismissed.
121. Mr. Gupta submitted that the impugned Regulations would apply
equally to "Deemed Universities", declared to be so under Section 3 of the
University Grants Commission Act, 1956, hereinafter referred to as the "UGC
Act", since it cannot be argued that the Deemed University will not follow
any rules at all. Mr. Gupta pointed out that in the Bharati Vidyapeeth's
case (supra), this Court had held that the standards prescribed by
statutory authorities, such as the Medical Council of India, governed by
Entry 66 of List I of the Seventh Schedule to the Constitution, must be
applied, particularly when the Deemed Universities seek recognition of the
medical courses taught by them, under the provisions of the 1956 Act. Mr.
Gupta submitted that the Deemed Universities cannot take the benefit of
recognition under the 1956 Act, but refuse to follow the norms prescribed
therein.
Mr. Gupta pointed out that it had inter alia been indicated in
paragraph 24 of the affidavit filed on behalf of the Commission that the
Commission was also of the view that all the constituent medical colleges
of "Deemed Universities" may be asked to comply with the Notification dated
21.12.2010, issued by the Medical Council of India, in view of Article 6.1
in the UGC (Institutions Deemed to be Universities) Regulations, 2010,
which states that:
"Admission of students to all deemed to be universities, public
or private, shall be made strictly on merit based on an All
India examination as prescribed by the Regulations and in
consistence with the national policy in this behalf, from time
to time."
122. On the percentile system of grading, which had been touched upon
by Dr. Dhawan, it was submitted that the said system of ranking/ grading
was being followed internationally in many of the premier institutions
around the globe.
123. Adverting to the submissions made by Mr. L. Nageshwara Rao, on
behalf of the States of Andhra Pradesh and Tamil Nadu, regarding the
enactment of the A.P. Educational Institutions (Regulation of Admissions
and Prohibition of Capitation Fee) Act, 1983, on the basis of the
Presidential Order dated 10th May, 1979, made under Article 371-D of the
Constitution, Mr. Gupta submitted that neither the said Article nor the
Presidential Order was concerned with standards of education. Mr. Gupta
urged that a reading of Sub-clause (1) of Article 371-D of the Constitution
makes it clear that it confers powers on the President to make an Order
with regard to the State of Andhra Pradesh "for equitable opportunities and
facilities for the people belonging to different parts of the State".
Mr. Gupta urged that the State legislation providing for State level
entrance examination is not relatable to Article 371-D and, as such, the
State legislation had to yield to the Union legislation, which Mr. Gupta
urged had been the consistent view taken in Govt. of A.P. Vs. Mohd. Ghouse
Mohinuddin [(2001) 8 SCC 416]; V. Jaganadha Rao Vs. State of A.P. [(2001)
10 SCC 401]; and NTR University of Health Sciences Vs. G. Babu Rajendra
Prasad [(2003) 5 SCC 350].
124. As to the weightage of marks being given up to a maximum of 30%,
to government servants serving in remote areas, Mr. Gupta said that the
same had been upheld by this Court in State of M.P. Vs. Gopal D. Tirthani
[(2003) 7 SCC 83].
125. Replying to the submissions made on behalf of some of the
other Petitioners and, in particular, on behalf of the Christian Medical
College, Ludhiana, in Writ Petition No. 20 of 2012, Mr. Gupta urged that
Section 3B of the 1956 Act empowers the Board of Governors to exercise the
powers and discharge the functions of the Council and, accordingly, even if
the appointment of the members of the Board of Governors was ad hoc in
nature, it made no difference to their working and discharging the
functions of the Council.
126. Mr. Gupta urged that private bodies and religious and
linguistic minorities have a fundamental right to establish and administer
medical institutions or other institutions of their choice under Articles
19(1)(g) and 30 of the Constitution, but such right was not unfettered and
did not include the right to maladminister the respective institutions.
Learned counsel urged that in the name of protection under Articles 25, 26
and 30 of the Constitution, an institution run by a religious or linguistic
minority did not have the right to lower the standards of education set by
the Medical Council of India or to recruit staff, who were not properly
qualified, or to deprive the students of the necessary infrastructure to
run such courses. Accordingly, the MCI was within its jurisdiction to lay
down proper standards and to also conduct an All-India Entrance Examination
to eliminate any possibility of malpractice. Mr. Gupta urged that the
several Writ Petitions filed on behalf of both States and private
individuals and religious and linguistic minorities are, therefore, liable
to be dismissed with appropriate costs.
127. Mr. Sidharth Luthra, learned Additional Solicitor General,
appearing for the Union of India, in the Ministry of Health and Family
Welfare, at the very outset, submitted that the Union of India fully
supported the stand of the MCI. Mr. Luthra urged that the impugned
Notifications amending the Regulations in regard to the introduction of
NEET for both graduate medical education and post-graduate medical
education had been validly made under powers conferred upon the MCI under
Section 33 of the 1956 Act, upon obtaining the previous sanction of the
Central Government, as required under the said Section. Mr. Luthra
submitted that there was a definite rationale behind holding a single
examination. The learned ASG urged that the NEET Regulations had been
framed by the MCI, after due deliberations with the Central Government and,
broadly speaking, the logic behind enacting the said Regulations were to
introduce uniformity of standards, merit and transparency and to lessen the
hardship of aspiring students. Mr. Luthra urged that the NEET and the
amending Regulations, which had been impugned, were not ultra vires since
the 1956 Act is relatable to Entry 66 of the Union List and prevails over
any State enactment, even though the State Acts may be relatable to Entry
25 or 26 of the Concurrent List, to the extent the provisions of the State
Acts were repugnant to the Central legislation. Mr. Luthra urged that
Regulations framed under Section 33 of the 1956 Act, with the previous
sanction of the Central Government, have statutory status and the said
Regulations were framed to carry out the purposes of the said Act.
128. Mr. Luthra repeated Mr. Gupta's submission that the rights of the
minorities preserved under Article 30 were not adversely affected or
prejudiced in any way, as had been explained in P.A. Inamdar's case
(supra). The learned ASG submitted that NEET had been introduced in the
national interest to ensure that meritorious students did not suffer the
problem of appearing in multiple examinations conducted by various agencies
which also resulted in different standards for admission, which had the
effect of compromising merit. Mr. Luthra urged that the earlier system of
multiple examinations was neither in the national interest nor in the
interest of maintaining the standards of medical education, nor did it
serve the interest of poor/middle class students who had to buy forms of
several examinations and travel across the country to appear in multiple
examinations. It was urged that any Regulation framed in the national
interest must necessarily apply to all educational institutions, whether
run by the majority or the minority groups. It was also urged that such a
Regulation must necessarily be read into Article 30 of the Constitution.
Mr. Luthra referred to the views expressed in that behalf in Paragraph 107
of the judgment in the T.M.A. Pai Foundation case (supra). The learned ASG
submitted that the amended Regulations do not restrict or in any manner
take away the rights of the minority institutions under Articles 19(1)(g)
and 30 of the Constitution to admit students from their community.
129. Mr. Luthra reiterated the submissions made by Mr. Gupta that the
right conferred on the religious and linguistic minorities to administer
educational institutions of their choice, is not an absolute right and may
be regulated in certain special circumstances.
130. The learned ASG also urged that the merit list to be
published on the results of the NEET, will contain all the details of each
candidate, including the State, category, minority status, caste and tribal
status in front of his/her name and rank so that there would be no
hindrance whatsoever in implementing the constitutional principles of
reservation and minority rights and merit. Furthermore, the transparency in
the process of admission would also be fully achieved.
131. On the question of different mediums of instruction in
schools throughout the country, Mr. Luthra submitted that the NEET - UG
would be conducted in multiple languages, such as English, Hindi, Telegu,
Assamese, Gujarati, Marathi, Tamil and Bengali, and hence, the submissions
made that NEET was not being conducted in the regional languages, is
misleading.
132. One other important aspect touched upon by Mr. Luthra is
with regard to the syllabus for NEET, which would be based on the CBSE
syllabus. The learned ASG submitted that the syllabus for NEET had been
prepared by the MCI, after obtaining feedback from different stake-holders,
including the National Board and State Boards, across the country. Mr.
Luthra submitted that the Regulations have been amended to implement the
provisions of the Act so as to meet the difficulties, which had been raised
by some of the States. The learned ASG submitted that the NEET Regulations
were clearly within the competence and jurisdiction of the Medical Council
in the discharge of its obligations to carry out the purposes of the Act,
as had been enjoined in the different decisions of this Court and, in
particular, in Preeti Srivastava's case (supra). The learned ASG urged that
the objections which had been sought to be taken on behalf of the various
Petitioners, including the State Governments, with regard to the holding of
the NEET examination, were wholly misconceived and were liable to be
rejected.
133. Various issues of singular importance, some of which have been
considered earlier, arise out of the submissions made on behalf of the
respective parties questioning the vires of the amended regulations
relating to Under-graduate and Post-graduate medical education, namely,
(i) The validity of the MCI Regulations and the DCI Regulations
and the amendments effected therein with regard to Under-graduate
and Post-graduate courses of medicine in medical and dental colleges
and institutions in the light of Section 19A(2) of the Indian
Medical Council Act, 1956, and the corresponding provisions in the
Dentists Act, 1948.
(ii) The jurisdiction and authority of the MCI and the DCI to
conduct a single National Eligibility-cum-Entrance Test for
admission to the M.B.B.S., B.D.S. and Post-graduate courses in both
the disciplines.
(iii) The rights of the States and private institutions to
establish and administer educational institutions and to admit
students to their M.B.B.S., B.D.S. and Post-graduate courses;
(iv) The impact of NEET on the rights guaranteed to religious
and linguistic minorities under Article 30 of the Constitution.
(v) Do the impugned Regulations come within the ambit
of Entry 66, List I, of the Seventh Schedule to the Constitution?;
(vi) The effect of Presidential orders made under Article 371D
of the Constitution of India.
134. Despite the various issues raised in this batch of cases, the
central issue relates to the validity of the amended Regulations and the
right of the MCI and the DCI thereunder to introduce and enforce a common
entrance test, which has the effect of denuding the State and private
institutions, both aided and unaided, some enjoying the protection of
Article 30, of their powers to admit students in the M.B.B.S., B.D.S. and
the Post-graduate Courses conducted by them. There is little doubt that
the impugned Notifications dated 21.12.2010 and 31.5.2012, respectively,
and the amended Regulations directly affect the right of private
institutions to admit students of their choice by conducting their own
entrance examinations, as they have been doing all along. Attractive
though it seems, the decision taken by the MCI and the DCI to hold a single
National Eligibility-cum-Entrance Test to the M.B.B.S., B.D.S. and the Post-
graduate courses in medicine and dentistry, purportedly with the intention
of maintaining high standards in medical education, is fraught with
difficulties, not the least of which is the competence of the MCI and the
DCI to frame and notify such Regulations. The ancillary issues which arise
in regard to the main issue, relate to the rights guaranteed to citizens
under Article 19(1)(g) and to religious and linguistic minorities under
Article 30 of the Constitution, to establish and administer educational
institutions of their choice.
135. Doubts have been raised regarding the competence of the MCI and
the DCI to amend the 1997 and 2000 Regulations, or the 2007 Regulation and
to issue the impugned Notifications to cover all the medical institutions
in the country, which have their own procedures relating to admissions to
the M.B.B.S., B.D.S. and Post-graduate Courses which passed the triple test
indicated in P.A. Inamdar's case (supra). The validity of the MCI
Regulations of 1997 and 2000 and the DCI Regulations of 2007 and the
amendments effected therein has been questioned with reference to Sections
19A(2) and 20 of the 1956 Act and Section 20 of the 1948 Act. While
empowering the MCI and the DCI to prescribe minimum standards of medical
education required for granting recognised medical qualifications, it has
also been stipulated that the copies of the draft Regulations and all
subsequent amendments thereof are to be furnished by the Council to all the
State Governments and the Council shall, before submitting the Regulations
or any amendment thereof, as the case may be, to the Central Government for
sanction, take into consideration the comments of any State Government
received within three months from the furnishing of such copies. The said
provisions do not appear to have been complied with by the MCI or the DCI,
which rendered the Regulations and the amendments thereto invalid. On
behalf of the MCI an attempt was made to justify the omission by urging
that the directions were only directory and not mandatory. In support of
such a contention reliance was placed on Manbodhan Lal Srivastava's case
(supra), wherein the provisions of Article 320(3) of the Constitution
providing for consultation with the Union Public Service Commission or the
State Public Service Commission, were held to be directory and not
mandatory. A submission was also made that before the Regulations were
amended, MCI had interacted with the State Governments and letters had also
been exchanged in this regard and the responses were taken into account by
the Council while amending the Regulations.
136. We are afraid that the said analogy would not be applicable to the
facts of these cases. The direction contained in Sub-section (2) of
Section 19A of the 1956 Act makes it a pre-condition for the Regulations
and all subsequent amendments to be submitted to the Central Government for
sanction. The Council is required to take into consideration the comments
of any State Government within three months from the furnishing of copies
of the draft Regulations and/or subsequent amendments thereto. There is
nothing to show that the MCI ever sent the draft amended Regulations to the
different State Governments for their views. The submission of the draft
Regulations and all subsequent amendments thereto cannot be said to be
directory, since upon furnishing of the draft Regulations and all
subsequent amendments thereto by the Council to all the State Governments,
the Council has to take into consideration the comments, if any, received
from any State Government in respect thereof, before submitting the same to
the Central Government for sanction.
137. The fact situation in Manbodhan Lal Srivastava's case (supra) was
different from the fact situation in this batch of cases. Article 320(3) of
the Constitution provides for consultation by the Central or State
Government with regard to the matters enumerated therein. In the instant
case, it is not a case of consultation, but a case of inputs being provided
by the State Governments in regard to the Regulations to be framed by the
MCI or the DCI. Realising the difficulty, Mr. Gupta had argued that since
the 1997 and 2000 Regulations had been acted upon by the concerned parties,
the same must be held to have been accepted and the validity thereof was no
longer open to challenge.
138. Mr. Gupta's aforesaid submissions cannot be accepted, inasmuch as, an
invalid provision cannot be validated simply by acting on the basis
thereof.
139. Mr. Gupta has also urged that the MCI derived its authority for
framing the Regulations and/or effecting amendments thereto from Entry 66,
List I, which is within the domain of the Central Government. Accordingly,
the same would have primacy over all State laws on the subject.
140. Mr. Gupta's said submission finds support in Preeti Srivastava's case
(supra), wherein it has been held that the Regulations framed by the MCI is
binding upon the States having been framed under Entry 66, List I of the
Seventh Schedule to the Constitution. But, where does it take us as far as
these cases are concerned which derive their rights and status under
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution? Can the rights
guaranteed to individuals and also religious and linguistic minorities
under the said provisions of the Constitution, be interfered with by
legislation and that too by way of delegated legislation?
141. The four impugned Notifications dated 21.12.2010 and 31.5.2012 make it
clear, in no uncertain terms, that all admissions to the M.B.B.S. and the
B.D.S. courses and their respective Post-graduate courses, shall have to be
made solely on the basis of the results of the respective NEET, thereby
preventing the States and their authorities and privately-run institutions
from conducting any separate examination for admitting students to the
courses run by them. Although, Article 19(6) of the Constitution recognizes
and permits reasonable restrictions on the right guaranteed under Article
19(1)(g), the course of action adopted by the MCI and the DCI would not, in
our view, qualify as a reasonable restriction, but would amount to
interference with the rights guaranteed under Article 19(1)(g) and, more
particularly, Article 30, which is not subject to any restriction similar
to Article 19(6) of the Constitution. Of course, over the years this Court
has repeatedly observed that the right guaranteed under Article 30, gives
religious and linguistic minorities the right to establish and administer
educational institutions of their choice, but not to maladminister them and
that the concerned authorities could impose conditions for maintaining high
standards of education, such as laying down the qualification of teachers
to be appointed in such institutions and also the curriculum to be followed
therein. The question, however, is whether such measures would also
include the right to regulate the admissions of students in the said
institutions.
142. The first, second, third and fourth issues referred to hereinabove in
paragraph 133, are intermingled and are taken up together for the sake of
convenience. The aforesaid issues have been considered and answered by
this Court in the Ahmedabad St. Xavier's College Society case (supra), St.
Stephen's College case (supra), Islamic Academy case (supra), P.A.
Inamdar's case (supra) and exhaustively in the T.M.A. Pai Foundation case
(supra). Can, therefore, by purporting to take measures to maintain high
educational standards to prevent maladministration, the MCI and the DCI
resort to the amended MCI and DCI Regulations to circumvent the judicial
pronouncements in this regard? The answer to such question would obviously
have to be in the negative.
143. The Supreme Court has consistently held that the right to
administer an educational institution would also include the right to admit
students, which right, in our view, could not be taken away on the basis of
Notifications issued by the MCI and the DCI which had no authority, either
under the 1956 Act or the 1948 Act, to do so. The MCI and the DCI are
creatures of Statute, having been constituted under the Indian Medical
Council Act, 1956, and the Dentists Act, 1948, and have, therefore, to
exercise the jurisdiction vested in them by the Statutes and they cannot
wander beyond the same. Of course, under Section 33 of the 1956 Act and
Section 20 of the 1948 Act, power has been reserved to the two Councils to
frame Regulations to carry out the purposes of their respective Acts. It
is pursuant to such power that the MCI and the DCI has framed the
Regulations of 1997, 2000 and 2007, which set the standards for maintaining
excellence of medical education in India. The right of the MCI and the DCI
to prescribe such standards has been duly recognised by the Courts.
However, such right cannot be extended to controlling all admissions to the
M.B.B.S., the B.D.S. and the Post-graduate Courses being run by different
medical institutions in the country. At best, a certain degree of control
may be exercised in regard to aided institutions, where on account of the
funds being provided by the Government, it may have a say in the affairs of
such institutions.
144. These questions have already been considered and decided in the
T.M.A. Pai Foundation case (supra), wherein, it was categorically held that
the right to admit students being an essential facet of the right of a
private medical institution, and, in particular, minority institutions
which were unaided, non-capitation fee educational institutions, so long as
the process of admission to such institutions was transparent and merit was
adequately taken care of, such right could not be interfered with. Even
with regard to aided minority educational institutions it was indicated
that such institutions would also have the same right to admit students
belonging to their community, but, at the same time, it should also admit a
reasonable number of non-minority students which has been referred to as
the "sprinkling effect" in the Kerala Education Bill case (supra).
145. The rights of private individuals to establish and administer
educational institutions under Article 19(1)(g) of the Constitution are now
well-established and do not require further elucidation. The rights of
unaided and aided religious and linguistic minorities to establish and
administer educational institutions of their choice under Article 19(1)(g),
read with Article 30 of the Constitution, have come to be crystalised in
the various decisions of this Court referred to hereinabove, which have
settled the law that the right to admit students in the different
educational and medical institutions is an integral part of the right to
administer and cannot be interfered with except in cases of
maladministration or lack of transparency. The impugned Regulations, which
are in the nature of delegated legislation, will have to make way for the
Constitutional provisions. The freedom and rights guaranteed under
Articles 19(1)(g), 25, 26 and 30 of the Constitution to all citizens to
practise any trade or profession and to religious minorities to freedom of
conscience and the right freely to profess, practise and propagate
religion, subject to public order, morality and health and to the other
provisions of Part III of the Constitution, and further to maintain
institutions for religious and charitable purposes as guaranteed under
Articles 25 and 26 of the Constitution, read with the rights guaranteed
under Article 30 of the Constitution, are also well-established by various
pronouncements of this Court. Over and above the aforesaid freedoms and
rights is the right of citizens having a distinct language, script or
culture of their own, to conserve the same under Article 29(1) of the
Constitution.
146. Nowhere in the 1956 Act nor in the MCI Regulations, has the
Council been vested with any authority to either conduct examinations or to
direct that all admissions into different medical colleges and institutions
in India would have to be on the basis of one common National Eligibility-
cum-Entrance Test, thereby effectively taking away the right of the
different medical colleges and institutions, including those run by
religious and linguistic minorities, to make admissions on the basis of
their own rules and procedures. Although, Mr. Gupta has contended that
Section 33(l) of the 1956 Act entitles the MCI to make regulations
regarding the conduct of professional examinations, the same, in our view,
does not empower the MCI to actually hold the entrance examination, as has
been purported to be done by the holding of the NEET. The power to frame
regulations for the conduct of professional examinations is a far cry from
actually holding the examinations and the two cannot be equated, as
suggested by Mr. Gupta.
147. Although, the controversy has been extended to include the
amendments made to the Entries in the Second and Third Lists of the Seventh
Schedule to the Constitution and the deletion of Entry 11 from the State
List and the introduction of Entry 25 in the Concurrent List, on behalf of
the MCI it has been reiterated that the impugned Notifications and amended
Regulations had been made under Entry 66 of List I by the MCI acting on its
delegated authority and would, therefore, have an overriding effect over
any State law on the subject.
As already indicated hereinbefore, the right of the MCI to frame
Regulations under Entry 66, List I, does not take us anywhere, since the
freedoms and rights sought to be enforced by the Petitioners flow from
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution which cannot be
superseded by Regulations framed by a Statutory authority by way of
delegated legislation. The fact that such power was exercised by the MCI
and the DCI with the previous approval of the Central Government, as
contemplated under Section 33 of the 1956 Act and under Section 20 of the
1948 Act, would not bestow upon the Regulations framed by the MCI and DCI,
which are in the nature of subordinate legislation, primacy over the
Constitutional provisions indicated above. A feeble attempt has been made
by Mr. Gupta to suggest that admission into institutions run by the
Christian Church depended on selection of students by the Diocese. This
procedure, according to Mr. Gupta, was against the concept of recognition
of merit.
148. In our judgment, such a stand is contrary to the very essence of
Articles 25, 26, 29(1) and 30 of the Constitution. In view of the rights
guaranteed under Article 19(1)(g) of the Constitution, the provisions of
Article 30 should have been redundant, but for the definite object that the
framers of the Constitution had in mind that religious and linguistic
minorities should have the fundamental right to preserve their traditions
and religious beliefs by establishing and administering educational
institutions of their choice. There is no material on record to even
suggest that the Christian Medical College, Vellore, or its counter-part in
Ludhiana, St. John's College, Bangalore, or the linguistic minority
institutions and other privately-run institutions, aided and unaided, have
indulged in any malpractice in matters of admission of students or that
they had failed the triple test referred to in P.A. Inamdar's case
(supra). On the other hand, according to surveys held by independent
entities, CMC, Vellore and St. John's Medical College, Bangalore, have been
placed among the top Medical Colleges in the country and have produced some
of the most brilliant and dedicated doctors in the country believing in the
philosophy of the institutions based on Christ's ministry of healing and
caring for the sick and maimed.
149. Although, there is some difference of opinion as to the right to
freedom of religion as guaranteed under Article 25 of the Constitution
being confined only to individuals and not organizations in regard to
religious activities, Article 26(a) very clearly indicates that subject to
public order, morality and health, every religious denomination or any
section thereof shall have the right to establish and maintain institutions
for religious and charitable purposes. The emphasis is not on religious
purposes alone, but extends to charitable purposes also, which would
include the running of a hospital to provide low-cost, but efficient
medical care to all, which the CMC, Vellore, and other private missionary
hospitals of different denominations are doing. So long as a private
institution satisfies the triple test indicated in P.A. Inamdar’s case
(supra), no objection can be taken to the procedure followed by it over the
years in the matter of admission of students into its M.B.B.S. and Post-
graduate courses in medicine and other disciplines. Except for alleging
that the admission procedure was controlled by the Church, there is nothing
even remotely suggestive of any form of maladministration on the part of
the medical institutions being run by the Petitioner Association.
150. This brings us to the issue regarding the impact of the NEET on
the right of the religious and linguistic minorities in view of the
provisions of Article 30(1) of the Constitution. Although, the said
question has been dealt with to some extent while dealing with the other
issues, certain aspects thereof still need to be touched upon. As has been
mentioned hereinbefore, having regard to the provisions of Article 19(1)(g)
of the Constitution, the provisions of Article 30 would have been redundant
had not the framers of the Constitution had some definite object in mind in
including Article 30 in the Constitution. This Court has had occasion in
several matters to consider and even deal with the question. In the
Ahmedabad St. Xavier's College Society case (supra), it was held that the
right under Article 30(1) is more in the nature of protection and was
intended to instill confidence in minorities against any executive or
legislative encroachment on their right to establish and administer
educational institutions of their choice. While the aforesaid observations
help in understanding the intention of the Constituent Assembly in
including Article 30 in the Constitution as a fundamental right untrammeled
by any restrictions, as in the case of other fundamental rights, the real
spirit of the said Article has been captured by Justice V. Krishna Iyer in
Jagdish Sharan's case (supra), wherein His Lordship observed that merit
cannot be measured in terms of marks alone, but human sympathies are
equally important. His Lordship's further observations that the heart is
as much a factor as the head in assessing the social value of a member of
the medical profession, completes the picture. This, in fact, is what has
been attempted to be conveyed by Mr. Harish Salve, appearing for the CMC
Vellore, while submitting that under Article 30 of the Constitution an
educational institution must be deemed to have the right to reject a
candidate having superior marks as against a candidate who having lesser
marks conformed to the beliefs, aspirations and needs of the institution
for which it was established.
151. One of the eleven questions which came to be considered by the
Eleven Judge Bench in the T.M.A. Pai Foundation case, namely, Question
5(a), was whether the minority's rights to establish and administer
educational institutions of their choice would include the procedure and
method of admission and selection of students. While dealing with one of
the five issues reformulated by the Chief Justice as to whether there can
be Government regulations in case of private institutions and, if so, to
what extent, it was indicated in the majority judgment that the right to
establish and administer broadly comprises various rights, including the
right to admit students in regard to private unaided non-minority
educational institutions. It was further observed that, although, the
right to establish an educational institution can be regulated, such
regulatory measures must, in general, be to ensure the maintenance of
proper academic standards, atmosphere and infrastructure (including
qualified staff) and the prevention of maladministration by those in-charge
of management, and that the fixing of a rigid fee structure, dictating the
formation and composition of the Governing Body, compulsory nomination of
teachers and staff for appointment or nominating students for admissions,
would be unacceptable restrictions.
152. As far as private unaided professional colleges are concerned, the
majority view was that it would be unfair to apply the same rules and
regulations regulating admission to both aided and unaided professional
institutions. In that context, it was suggested that it would be
permissible for the University or the Government at the time of granting
recognition, to require a private unaided institution to provide for merit-
based selection, while, at the same time, giving the management sufficient
discretion in admitting students, which could be done by reserving a
certain percentage of seats for admission by the management out of those
students who had passed a common entrance test held by itself, while the
rest of the seats could be filled up on the basis of counselling by the
State agency, which would take care of the poorer and backward sections of
society.
153. However, as far as the aided private minority institutions
are concerned, the inter-play between Article 30 and Article 29(2) of the
Constitution was taken note of in the majority decision and after
considering the various decisions on the said issue, including the decision
in D.A.V. College Vs. State of Punjab [(1971) 2 SCC 269] and the Ahmedabad
St. Xavier's College Society case (supra), reference was made to the
observations made by Chief Justice Ray, as His Lordship then was, that, in
the field of administration, it was not reasonable to claim that minority
institutions would have complete autonomy. Checks on the administration
would be necessary in order to ensure that the administration was efficient
and sound and would serve the academic needs of the institution. Reference
was also made to the concurring judgment of Khanna, J., wherein the learned
Judge, inter alia, observed that the right conferred upon religious and
linguistic minorities under Article 30 is to establish and administer
educational institutions of their choice. Administration connotes
management of the affairs of the institution and such management must be
free of control so that the founders or their nominees could mould the
institution as they thought fit and in accordance with the ideas of how the
interest of the community in general and the institution in particular
would be best served. The learned Judge was of the view that the right of
the minorities to administer educational institutions did not prevent the
making of reasonable regulations in respect of such institutions, but such
regulations could not impinge upon the minority character of the
institution and a balance had to be maintained between the two objectives
- that of ensuring the standard of excellence of the institution and that
of preserving the right of minorities to establish and administer their
educational institutions.
154. The learned Judges also approved the view taken in the St.
Stephen's College case (supra) regarding the right of aided minority
institutions to give preference to students of its own community for
admission. Their Lordships, however, had reservations regarding the
rigidity of percentage of students belonging to the minority community to
be admitted.
155. While answering Question 4 as to whether the admission of students to
minority educational institutions, whether aided or unaided, can be
regulated by the State Government or by the University to which the
institution is affiliated, the learned Judges held that admission of
students to unaided minority educational institutions, namely, schools and
under-graduate colleges, cannot be regulated by the State or the University
concerned, except for providing the qualifications and minimum conditions
of eligibility in the interest of academic standards. The learned Judges
further held that the right to admit students, being an essential facet of
the right to administer educational institutions of their choice, as
contemplated under Article 30 of the Constitution, the State Government or
the University may not be entitled to interfere with that right, so long as
the admission to the unaided educational institutions was on a transparent
basis and merit was adequately taken care of. The learned Judges went on
to indicate that the right to administer, not being absolute, there could
be regulatory measures for ensuring educational standards and maintaining
excellence thereof, and it was more so in the matter of admissions to
professional institutions.
156. In answering Question 5(a), as to whether the rights of minorities to
establish and administer educational institutions of their choice would
include the procedure and method of admission and selection of students,
the learned Judges held that a minority institution may have its own
procedure and method of admission as well as selection of students, but
such a procedure must be fair and transparent and the selection of students
in professional and higher educational colleges should be on the basis of
merit and even an unaided minority institution should not ignore the merit
of the students for admission while exercising its right to admit students
to professional institutions. On the question whether the rights of
minority institutions regarding admission of students and to lay down the
procedure and method of admission would be affected, in any way, by receipt
of State aid, the learned Judges were of the view that while giving aid to
professional institutions, it would be permissible for the authority giving
aid to prescribe conditions in that regard, without, however, affecting the
right of such institutions to actually admit students in the different
courses run by them.
157. What can ultimately be culled out from the various observations made
in the decisions on this issue, commencing from the Kerala Education Bill
case (supra) to recent times, is that admissions to educational
institutions have been held to be part and parcel of the right of an
educational institution to administer and the same cannot be regulated,
except for the purpose of laying down standards for maintaining the
excellence of education being provided in such institutions. In the case
of aided institutions, it has been held that the State and other
authorities may direct a certain percentage of students to be admitted
other than by the method adopted by the institution. However, in cases of
unaided institutions, the position is that except for laying down standards
for maintaining the excellence of education, the right to admit students
into the different courses could not be interfered with. In the case of
aided minority institutions, it has been held that the authority giving aid
has the right to insist upon the admission of a certain percentage of
students not belonging to the minority community, so as to maintain the
balance of Article 19(2) and Article 30(1) of the Constitution. Even with
regard to unaided minority institutions, the view is that while the
majority of students to be admitted should be from the minority community
concerned, a certain percentage of students from other communities should
also be admitted to maintain the secular character of education in the
country in what has been described as a "sprinkling effect".
158. Mr. Parasaran's submissions with regard to the concept of
"Rag Bag" legislation would not apply to the facts of these cases since the
amendments to the Regulations of 1997, 2000 and 2007 were effected under
Entry 66, List I of the Seventh Schedule and no recourse was taken to Entry
25 of the Concurrent List by the MCI and DCI while amending the said
Regulations.
159. This brings us to the last issue, which has been raised before us
regarding the impact of the Presidential Orders made under Article 371D of
the Constitution of India. As pointed out by Mr. L. Nageshwar Rao, learned
Senior Advocate, special enactments have been made in the States of Andhra
Pradesh and Tamil Nadu regarding admission of students in the different
medical colleges and institutions being run in the said States. The said
legislation being under Entry 25 of List III of the Seventh Schedule to the
Constitution, the question which arises is whether the amended MCI
Regulations would have primacy over the said State enactments. The
question is answered by Article 371-D of the Constitution which empowers
the President to make special provisions with respect to the State of
Andhra Pradesh, including making orders with regard to admission in
educational institutions. Clause 10 of Article 371-D provides as follows:
"The provisions of this article and of any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of this Constitution or in any other law
for the time being in force."
Accordingly, the enactments made in the States of Andhra Pradesh
and Tamil Nadu will remain unaffected by the impugned Regulations. We have
already held that the Regulations and the amendments thereto have been
framed by the MCI and the DCI with the previous permission of the Central
Government under Entry 66, List I, but that the Regulations cannot prevail
over the constitutional guarantees under Articles 19(1)(g), 25, 26, 29(1)
and 30 of the Constitution.
160. Apart from the legal aspects, which have been considered at length,
the practical aspect of holding a single National Eligibility-cum-Entrance
Test needs to be considered. Although, it has been submitted by the
learned Additional Solicitor General that a single test would help poor
students to avoid sitting for multiple tests, entailing payment of fees for
each separate examination, it has to be considered as to who such poor
students could be. There can be no controversy that the standard of
education all over the country is not the same. Each State has its own
system and pattern of education, including the medium of instruction. It
cannot also be disputed that children in the metropolitan areas enjoy
greater privileges than their counter-parts in most of the rural areas as
far as education is concerned, and the decision of the Central Government
to support a single entrance examination would perpetuate such divide in
the name of giving credit to merit. In a single window competition, the
disparity in educational standards in different parts of the country cannot
ensure a level playing field. The practice of medicine entails something
more than brilliance in academics, it requires a certain commitment to
serve humanity. India has brilliant doctors of great merit, who are
located mostly in urban areas and whose availability in a crisis is quite
uncertain. What is required to provide health care to the general masses
and particularly those in the rural areas, are committed physicians who are
on hand to respond to a crisis situation. Given the large number of people
who live in the villages in difficult conditions, the country today has
more need of such doctors who may not be specialists, but are available as
general physicians to treat those in need of medical care and treatment in
the far flung areas of the country, which is the essence of what was
possibly envisaged by the framers of the Constitution in including Article
30 in Part III of the Constitution. The desire to give due recognition to
merit is laudable, but the pragmatic realities on the ground relating to
health care, especially in the rural and tribal areas where a large section
of the Indian population resides, have also to be kept in mind when policy
decisions are taken in matters such as this. While the country certainly
needs brilliant doctors and surgeons and specialists and other connected
with health care, who are equal to any in other parts of the world,
considering ground realities, the country also has need for "barefoot
doctors", who are committed and are available to provide medical services
and health care facilities in different areas as part of their mission in
becoming doctors.
161. In the light of our aforesaid discussions and the views expressed in
the various decisions cited, we have no hesitation in holding that the
"Regulations on Graduate Medical Education (Amendment) 2010 (Part II)" and
the "Post Graduate Medical Education (Amendment) Regulation, 2010 (Part
II)", whereby the Medical Council of India introduced the single National
Eligibility-cum-Entrance Test and the corresponding amendments in the
Dentists Act, 1948, are ultra vires the provisions of Articles 19(1)(g),
25, 26(a), 29(1) and 30(1) of the Constitution, since they have the effect
of denuding the States, State-run Universities and all medical colleges and
institutions, including those enjoying the protection of the above
provisions, from admitting students to their M.B.B.S., B.D.S. and Post-
graduate courses, according to their own procedures, beliefs and
dispensations, which has been found by this Court in the T.M.A. Pai
Foundation case (supra), to be an integral facet of the right to
administer. In our view, the role attributed to and the powers conferred
on the MCI and the DCI under the provisions of the Indian Medical Council
Act, 1956, and the Dentists Act, 1948, do not contemplate anything
different and are restricted to laying down standards which are uniformly
applicable to all medical colleges and institutions in India to ensure the
excellence of medical education in India. The role assigned to the MCI
under Sections 10A and 19A(1) of the 1956 Act vindicates such a conclusion.
162. As an off-shoot of the above, we also have no hesitation in holding
that the Medical Council of India is not empowered under the 1956 Act to
actually conduct the NEET.
163. The Transferred Cases and the Writ Petitions are, therefore, allowed
and the impugned Notifications Nos. MCI-31(1)/2010-MED/49068, and
MCI.18(1)/2010-MED/49070, both dated 21st December, 2010, published by the
Medical Council of India along with Notification Nos. DE-22-2012 dated 31st
May, 2012, published by the Dental Council of India and the amended
Regulations sought to be implemented thereunder along with Notification
Nos. DE-22-2012 dated 31st May, 2012, published by the Dental Council of
India, are hereby quashed. This will not, however, invalidate actions so
far taken under the amended Regulations, including the admissions already
given on the basis of the NEET conducted by the Medical Council of India,
the Dental Council of India and other private medical institutions, and the
same shall be valid for all purposes.
164. Having regard to the nature of the cases decided by this judgment,
the parties thereto will bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(VIKRAMAJIT SEN)
New Delhi
Dated: July 18, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
T.C. (C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS. …RESPONDENTS
WITH
T.C. (C) NO.99/2012 and batch
ANIL R. DAVE, J.
1. I have carefully gone through the elaborate judgment delivered by the
learned Chief Justice. After going through the judgment, I could not
persuade myself to share the same view.
2. As the learned Chief Justice is to retire within a few days, I have to
be quick and therefore, also short. Prior to preparation of our draft
judgments we had no discussion on the subject due to paucity of time
and therefore, I have to express my different views but fortunately
the learned Chief Justice has discussed the facts, submissions of the
concerned counsel and the legal position in such a detail that I need
not discuss the same again so as to make the judgment lengthy by
repeating the submissions and the legal provisions, especially when I
am running against time.
3. Sum and substance of all these petitions is that the Medical Council
of India (hereinafter referred to as ‘the MCI’) should not be
entrusted with a right to conduct National Eligibility-cum- Entrance
Test (hereinafter referred to as ‘the NEET’) and whether introduction
of the NEET would violate fundamental rights of the petitioners
guaranteed under the provisions of Articles 19(1)(g), 25, 26, 29(1)
and 30 of the Constitution of India.
4. The submissions are to the effect that if the MCI or any other body
conducts examination in the nature of the NEET, the petitioners, who
are managing medical colleges, would not be in a position to exercise
their discretion in relation to giving admission to the students in
their colleges and therefore, their fundamental right guaranteed under
Article 19(1)(g) and the rights of the minority institutions under
Articles 29 and 30 would be violated. The submission is to the effect
that the minority institutions should have full and unfettered right
to select the students who are to be imparted education in their
colleges. Any restriction or regulation of whatsoever type, would
violate their fundamental rights. Thus, what is to be seen by this
Court is whether the system sought to be introduced by the MCI under
the provisions of the Indian Medical Council Act, 1956 (hereinafter
referred to as ‘the Act’) is violative of any of the legal or
constitutional provisions. In the process of deciding so, in my
opinion, this Court also has to examine whether it would be in the
interest of the society and the students aspiring to study medicine to
have a common examination in the nature of the NEET.
5. Sections 19A and 20 of the Act, which have been reproduced in the
judgment delivered by the learned Chief Justice, permit the MCI to
prescribe the minimum standards of medical education. Section 33 of
the Act also empowers the MCI to make regulations to carry out the
purposes of the Act. Thus, the said provisions enable the MCI to
regulate the system of medical education throughout the country.
6. Let me first of all consider the scope of the aforestated sections and
the provisions of the Act in relation to the regulation of the
standards of education to be imparted in medical colleges. It is a
matter of sound common sense that to have doctors well versed in the
subject of medicine and having proficiency in their field, we should
have suitable and deserving students who should be imparted good
medical education and there should be strict supervision over the
education system so as to see that the students who are not up to the
mark or are not having the highest standards of education are not
declared successful at the examinations.
7. To achieve the aforestated ideal, the system should be such that it
should have effective regulations at three different stages – The
first stage is the admission of the students to medical colleges. The
students who are admitted to the medical course should be suitable and
should have the right aptitude so that they can be shaped well into
the medical profession after being imparted proper education. The
second stage is with regard to determination of syllabus and the
manner of imparting education and for the said purpose, the regulating
authorities should see that proper medical training is given to the
students and for the said purpose sufficiently equipped hospitals
should be there as teaching institutes. It should also be seen that
sufficient number of patients are treated at the hospitals so that the
students can get adequate practical training where the patients are
being treated. Finally, the examinations, which the students have to
pass to prove their worth as successful students should also be
strictly regulated. If there is any lacuna or short-coming at any of
the above three stages, it would adversely affect the professional
standards of the students passing out from the educational
institutions as physicians, who are trusted by the citizens of India
at critical moments, when someone’s life is at stake. I need not
state anything more with regard to the importance of the medical field
or the physicians as it is a matter of common knowledge that to
maintain good health and to cure the diseases and to avoid or reduce
trauma of a patient, existence of a trained and well groomed doctor is
a sine qua non. All these facts equally apply to dentists and
therefore, I am not specially referring to them every time.
8. By virtue of introduction of the NEET to be conducted under the
supervision of the MCI, standards of the students at the stage of
their admission to the medical colleges, be it for admission to the
M.B.B.S. course or the post graduation studies in medical faculties,
would be regulated. Similarly, for imparting education to the
students studying in the field of Dentistry, Dental Council of India
(For short ‘the DCI’) has to regulate admissions so as to see that
eligible and suitable students are admitted to the different courses
in the field of dentistry.
9. There is no need to discuss the importance of quality of input, when
something is to be produced, manufactured or developed. Even when one
thinks of manufacturing an article, the manufacturer is conscious
about the quality of the input and he would invariably select the best
input i.e. such raw material so as to make his final product
excellent. Principle is not different in the field of education. If
an educational institution wants an excellent output in the nature of
a well trained, well educated, well groomed professional, the
institution must see that suitable and deserving students having an
aptitude for becoming good doctors are admitted to the medical
college. If among all good students, there are students who are not
up to the mark, who are lagging behind in their studies, who are weak
in studies, it would not be possible to educate or groom such students
effectively and efficiently. A weak student may lag behind due to his
lower level of grasping or education or training. In the
circumstances, it becomes the duty of the regulating authority to see
that quality of the students at the stage of admission is thoroughly
examined and only deserving and suitable students are given admission
to the medical colleges so as to make them suitable members of a noble
profession upon completion of their studies. So as to see that only
deserving and suitable students are admitted to the medical colleges,
the MCI has introduced the NEET. By virtue of introduction of the
NEET, the students aspiring to become physicians or pursue further
medical studies will have to pass the NEET. The NEET would be a
nationwide common examination to be held at different places in the
country so that all students aspiring to have medical education, can
appear in the examination and ultimately, on the basis of the result
of the examination, suitability and eligibility of the students for
admission to the medical profession can be determined. This system is
a part of regulation whereby entry to the field of medical education
is regulated in such a way that only eligible and suitable students
are given admission to medical colleges.
10. If the NEET is conducted under the supervision of the apex
professional body, it would inspire confidence in the system and in
that event, the selection of the students for admission to the medical
profession would be on merit based selection. No extraneous
consideration would come into play in the process of selection. The
process of selection would not be influenced by irrelevant factors
like caste and creed, community, race, lineage, gender, social or
economic standing, place of residence – whether rural or urban,
influence of wealth or power; and admission would be given only to the
students who really deserve to be well qualified physicians or
dentists. Thus, there would not be any discrimination or influence
in the process of selection. I may add here that though the students
can be selected only on the basis of their merit, it would be open to
the States to follow their reservation policy and it would also be
open to the institutions based on religious or linguistic minority to
select students of their choice, provided the students so selected
have secured minimum marks prescribed at the NEET. From and among
those students, who have secured prescribed qualifying marks, the
concerned institutions, who want to give priority to the students
belonging to a particular class or caste or creed or religion or
region, etc. would be in a position to give preference to such
students in the matter of their admission to the concerned medical
college. Thus, the purpose with which the Articles 25, 26, 29, and 30
are incorporated in our Constitution would be fully respected and
implemented.
11. Furthermore, centralization of the selection process under holding the
NEET would help the students to appear at the examination from any
corner of our nation. The result of the examination would be
published at the same time on one particular day and with the same
standard. There would not be any problem with regard to equalizing
marks and merits of different students passing different examinations
from different regions or states or universities or colleges. The
process of selection would be equal, fair, just and transparent. All
the students would be in a position to compete from a common platform
and the test will have credibility in the eyes of the students and the
society. There are number of professional institutions which are
having only one professional examination and there are some
institutions which also have one common entrance test which would
decide competence and capability of a student for being admitted to
the professional course and the system which is followed by them for
years is quite satisfactory and successful. The students would be
benefited because they will not have to appear at different places on
different days at different examinations for the same purpose. In my
opinion, the aforestated factors, in practical life, would surely help
the students, the profession and the institutions which are not money
minded and are sincere in their object of imparting medical education
to the aspiring students. The cost of appearing at the NEET would be
much less as the aspiring students will not have to purchase several
expensive admission forms and will not have to travel to different
places.
12. An apprehension has been voiced by the counsel for the petitioners
that the minority institutions or the educational institutions
belonging to special classes would be adversely affected because of
the introduction of the NEET. In fact, the said apprehension is not
well founded. The policy with regard to the reservation can be very
well implemented if the NEET is introduced because the NEET would
determine standard or eligibility of a student who is to be imparted
education in the field of medicine. The institution imparting medical
education will have to see that the student to be admitted is having
minimum standard of suitability and the institution will be at a
liberty to select a student of its choice if it wants to promote a
particular class of persons. By admitting suitable and deserving
students having an aptitude for becoming doctors, the religious
institutions would be in a position to have better doctors for
fulfilling their objective.
13. Moreover, the policy with regard to reservation for certain classes,
followed by the States would also not be adversely affected. From the
deserving eligible students, who have procured qualifying marks at the
NEET and who belong to the reserved classes would be given preference
so as to fulfill the policy with regard to reservation. Thus, the
students belonging to the reserved classes would also not suffer on
account of holding the NEET.
14. In the circumstances, it cannot be said that introduction of the NEET
would adversely affect the policy with regard to the reservation or
the policy of the States pertaining to upliftment of downtrodden
persons belonging to certain classes.
15. The MCI has power to regulate medical education and similarly the DCI
has also the power to regulate the education in the field of
Dentistry. Meaning of the word ‘to regulate’ would also include
controlling entry of undeserving or weak students into the profession,
who cannot be groomed in normal circumstances as good physicians or
doctors or dentists. The term ‘regulate’ would normally mean to
control something by means of rules or by exercise of control over a
system. It is an admitted fact that one of the functions of these
apex bodies of the professionals is to regulate the system of
education. In my opinion, we cannot put any fetter on the system
introduced by these bodies, whereby they try to control entry of weak
or undeserving or less competent students to the institutes where
medical education is imparted. Thus, in my opinion, the MCI and the
DCI are competent to exercise their right to regulate the education
system under the provisions of the Act and under the provisions of the
Dentists Act, 1948, which permit them to determine the standard of
students who are to be admitted to these professional courses.
16. Hence, I am of the view that the MCI and the DCI are entitled to
regulate the admission procedure by virtue of the provisions of their
respective Acts, which enable them to regulate and supervise the
overall professional standards.
17. I have now to see whether the legal provisions which permit the
aforestated apex bodies to conduct the NEET, so as to regulate
admission of the students to medical institutes, are in accordance
with legal and Constitutional provisions. The aforestated question
has been rightly answered by this court in the case of Dr. Preeti
Srivastava and Another vs. State of M.P. and Others (1999) 7 SCC 120
to the effect that norms of admission will have a direct impact on the
standards of education. This court has observed that the standards of
education in any institution or college would depend upon several
factors and the caliber of the students to be admitted to the
institutions would also be one of the relevant factors. Moreover, in
view of entry 25 of List III of the Seventh Schedule to the
Constitution, Union as well as the States have power to legislate on
the subject of medical education, subject to the provisions of entry
66 of List I of the Seventh Schedule, which deals with determination
of standards in institutions for higher education. In the
circumstances, a State has the right to control education, including
medical education, so long as the field is unoccupied by any Union
legislation. By virtue of entry 66 in List I to the Seventh Schedule,
the Union can make laws with respect to determination of standards in
institutions for higher education. Similarly, subject to enactments,
laws made with respect to the determination of standards in
institutions for higher education under power given to the Union in
entry 66 of List I of the Seventh Schedule, the State can also make
laws relating to education, including technical education and medical
education. In view of the above position clarified in the case of Dr.
Preeti Srivastava (supra), the NEET can be conducted under the
supervision of the MCI as per the regulations framed under the Act.
As stated hereinabove, Section 33 of the Act enables the MCI to make
regulations to carry out the purposes of the Act and therefore,
conducting the NEET is perfectly legal.
18. In para 36 of the judgment delivered in the case of Dr. Preeti
Srivastava (supra), this Court has held that for the purpose of
maintaining standards of education, it is very much necessary to see
that the students to be admitted to the higher educational
institutions are having high caliber and therefore, in the process of
regulating educational standards in the fields of medicine and
dentistry also the above principle should be followed and the apex
professional bodies should be permitted to conduct examinations in the
nature of the NEET. Regulations made under the Act and the Dentists
Act, 1948 must be treated as part of the Act and therefore, conducting
the NEET cannot be said to be illegal. Submissions were made by the
learned counsel for the petitioners that as copies of the draft
Regulations, as required under Section 19A of the Act, were not
forwarded to the State Governments, the said Regulations cannot be
acted upon. The said submission is of no importance for the reason
that I am in agreement with the submission of the learned counsel
appearing for the MCI that the said provision is not mandatory and
therefore, non-supply of the draft regulations would not adversely
affect the validity of the Regulations and the NEET. It also appears
from the language used in Section 19A of the Act that the said
provision with regard to furnishing copies of the draft regulations to
all the State Governments is not mandatory and any defect in the said
procedure would not vitiate validity of the Regulations or action
taken in pursuance of the Regulations.
19. Similar question with regard to having a common test had arisen for
admitting students aspiring to become veterinary surgeons. The
question was whether it was open to the apex body of the said
profession to conduct a common entrance test. Ultimately, the issue
had been resolved by this court in the matter of Veterinary Council of
India vs. Indian Council of Agricultural Research, (2000) 1 SCC 750.
This court, after considering several issues similar to those which
have been raised in these petitions, held that it was open to the
concerned regulatory Council to conduct a common entrance test.
20. So far as the rights guaranteed under Article 19(1)(g) of the
Constitution with regard to practising any profession or carrying on
any occupation, a trade or business, are concerned, it is needless to
say that the aforestated rights are not unfettered. Article 19(6) of
the Constitution permits the State to enact any law imposing
reasonable restrictions on the rights conferred by Article 19(1)(g) in
relation to the professional or technical qualifications necessary for
practising any profession. Enactments of the Act and the Dentists
Act, 1948, including Regulations made thereunder, which regulate the
professional studies cannot be said to be violative of the
Constitutional rights guaranteed to the petitioners under Article
19(1)(g) of the Constitution. The framers of the Constitution were
conscious of the fact that anybody cannot be given a right to practise
any profession without having regard to his capacity, capability or
competence. To be permitted to practise a particular profession,
especially when the profession is such which would require highly
skilled person to perform the professional duties, the State can
definitely regulate the profession. Even if we assume that all the
petitioner institutions are in business of imparting education, they
cannot also have unfettered right of admitting undeserving students so
as to make substandard physicians and dentists. One may argue here
that ultimately, after passing the final examination, all students who
had joined the studies would be at par and therefore, even if a very
weak or substandard student is given admission, after passing the
final examination, which is supervised by one of the apex bodies
referred to hereinabove, he would be at par with other students who
were eligible and suitable at the time when they were given admission.
In practical life, we do find a difference between a professional who
has passed his professional examination at the first or second trial
and the one who has passed examination after several trials. Be that
as it may, it is for the apex body of the professionals to decide as
to what type of students should undergo the professional training.
The function with regard to regulating educational activity would be
within the domain of the professional bodies and their decision must
be respected so as to see that the society gets well groomed bright
physicians and dentists. Thus, in my opinion, the introduction of the
NEET would not violate the right guaranteed to the petitioners under
the provisions of Article 19(1)(g) of the Constitution of India.
21. So far as the rights guaranteed to the petitioners under the
provisions of Articles 25, 26, 29 and 30 are concerned, in my opinion,
none of the rights guaranteed under the aforestated Articles would be
violated by permitting the NEET. It is always open to the petitioners
to select a student subject to his being qualified by passing the
examination conducted by the highest professional body. This is to
assure that the students who are to undergo the professional training
are suitable for the same. Regulations relating to admission of the
students i.e. admitting eligible, deserving and bright students would
ultimately bring reputation to the educational institutes. I fail to
understand as to why the petitioners are keen to admit undeserving or
ineligible students when eligible and suitable students are available.
I am sure that even a scrupulous religious person or an educational
institution would not like to have physicians or dentists passing
through its institution to be substandard so as to bring down
reputation of the profession or the college in which such a
substandard professional was educated. Minorities - be it religious
or linguistic, can impart training to a student who is found worthy to
be given education in the field of medicine or dentistry by the
professional apex body. In my opinion, the Regulations and the NEET
would not curtail or adversely affect any of the rights of such
minorities as apprehended by the petitioners. On the contrary,
standard quality of input would reasonably assure them of sterling
quality of the final output of the physicians or dentists, who pass
out through their educational institutions.
22. An apprehension was voiced by some of the counsel appearing for the
petitioners that autonomy of the petitioner institutions would be lost
if the NEET is permitted. I fail to understand as to how autonomy of
the said institutions would be adversely affected because of the NEET.
The Government authorities or the professional bodies named
hereinabove would not be creating any hindrance in the administrative
affairs of the institutions. Implementation of the NEET would only
give better students to such institutions and from and among such
highly qualified and suitable students, the minority institutions will
have a right to select the students of their choice. At this stage,
the institutions would be in a position to use their discretion in the
matter of selection of students. It would be open to them to give
weightage to the religion, caste, etc of the student. The
institutions would get rid of the work of conducting their separate
examinations and that would be a great relief to them. Except some
institutions having some oblique motive behind selecting students who
could not prove their mettle at the common examination, all
educational institutes should feel happy to get a suitable and
eligible lot of students, without making any effort for selecting
them.
23. For the reasons recorded hereinabove, in my opinion, it cannot be said
that introduction of the NEET would either violate any of the
fundamental or legal rights of the petitioners or even adversely
affect the medical profession. In my opinion, introduction of the
NEET would ensure more transparency and less hardship to the students
eager to join the medical profession. Let us see the consequence, if
the apex bodies of medical profession are not permitted to conduct the
NEET. A student, who is good at studies and is keen to join the
medical profession, will have to visit several different States to
appear at different examinations held by different medical colleges or
institutes so as to ensure that he gets admission somewhere. If he
appears only in one examination conducted by a particular University
in a particular State and if he fails there, he would not stand a
chance to get medical education at any other place. The NEET will
facilitate all students desirous of joining the medical profession
because the students will have to appear only at one examination and
on the basis of the result of the NEET, if he is found suitable, he
would be in a position to get admission somewhere in the country and
he can have the medical education if he is inclined to go to a
different place. Incidentally, I may state here that learned senior
counsel Mr. Gupta had informed the Court that some medical colleges,
who are more in a profiteering business rather than in the noble work
of imparting medical education, take huge amount by way of donation or
capitation fees and give admission to undeserving or weak students
under one pretext or the other. He had also given an instance to
support the serious allegation made by him on the subject. If only
one examination in the country is conducted and admissions are given
on the basis of the result of the said examination, in my opinion,
unscrupulous and money minded businessmen operating in the field of
education would be constrained to stop their corrupt practices and it
would help a lot, not only to the deserving students but also to the
nation in bringing down the level of corruption.
24. For the aforestated reasons, I am of the view that the petitioners are
not entitled to any of the reliefs prayed for in the petitions. The
impugned notifications are not only legal in the eyes of law but are
also a boon to the students aspiring to join medical profession. All
the petitions are, therefore, dismissed with no order as to costs.
........................................J.
(ANIL R. DAVE)
New Delhi
July 18, 2013
-----------------------
203
