The amount of flak Chief Justice Altamas Kabir is getting for the NEET judgment is quite astonishing. [ “Scrapping of NEET raises questions over Justice Altamas Kabir” : FirstPost / “CJI Final Judgement comes as boon to private colleges” : TOI ]
I think the critics of the judgment are off the mark. In his opinion, Justice Kabir has correctly recognized the impact of admissions regulation on autonomy. He has also not fallen for the high promises made by proponents of NEET such as eliminating capitation fee, reducing commercialization, and so forth. Finally, unlike the RTE Bench, he has correctly interpreted Art 30(1) rights enjoyed by the minority as an additional guarantee to Art 19-1(g) and not separate from it.
I was kind of lazy getting this post out as I had already said everything on Twitter and subsequently the issue ran cold. Now that the Central Government as well as the Medical Council of India (MCI) have filed a review petition in the Supreme Court interest in this crucial case has peaked again.
What is this issue about ?
The Congress-led UPA-II government tried to regulate admissions (undergrad + postgrad) in Medical education by introducing a common exam called NEET. NEET stands for National Eligibility and Entrance Test. Pay attention to the words “eligibility” – which means setting minimum standards, and “entrance” which means inter-se merit ranking. The exam was to be conducted on CBSE syllabus and the agency selected by the Medical Council of India to conduct the test was also CBSE. It was proposed to have a normalization scheme (I know, please keep a serious face) to account for differing standards among the 50+ boards in India.
The relevant new regulations (Sec 33 – Medical Council of India Act – Regulations)
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.
So it is clear that once the NEET is in force, private medical colleges would be required to use the inter-se merit list of each reservation category. They are allowed to filter out categories but they cant rearrange within the same category. Let me stress this further as it is important. Example: A Christian minority medical college can pick a Christian over a higher ranked Hindu but it cannot pick a lower ranked Christian over a higher ranked Christian. To me the NEET notification is crystal clear, the natural fallout of this is that you cannot have another exam in addition to NEET that would shuffle the inter-se merit list discovered in NEET and weight the two.
As you can see, this completely destroys the autonomy of private medical colleges to devise their own standards and instruments of admission. As I said on the RTE post, the ability to select the intake is one of the main attractions in starting this enterprise in the first place. Naturally, almost all private colleges and their associations as well as states of Tamilnadu and Andhra Pradesh went to the Supreme Court. On July 18, a 3 judge bench ruled 2-1 that NEET was unconstitutional. CJ Altamas Kabir wrote the opinion joined by J Vikramjit Sen with a strong dissent by J Anil Dave.
The very next day it was clear the judgment had really rubbed off various pro-government activists the wrong way. A curious side issue of the judgment being leaked was also dragged into the headlines and on to Karan Thapar’s show. The current status is the Union Govt isnt happy and has filed a review petition joined by an NGO called Sankalp.
Quick analysis of the judgment
The actual case is called “Christian Medical College & Ors vs Union of India“. It seems the trajectory of any higher education regulation is the same. You’ve got a socialist state which seeks to provide education as a right (Mohini Jain) confronted by the reality of being third world and cash strapped (Unnikrishnan & Ors). So it reluctantly allows private participation and constantly pushes regulation as a means of satisfying demands of society. In doing so it always runs up against a major bulwark – the constitutional guarantee to religious and linguistic minorities under Art 29 and Art 30.
To really appreciate this case, you have to do a bit of unlearning. Here is the counter intuitive. Colleges like CMC Vellore and St Johns which have 85% minority quota are actually the model minority institutes and colleges like St Stephens and Loyola are iffy. Are you with me ? This is crucial to understand how these cases play out. I blogged with great curiosity the pushback Rev Valson Thampu received from distinguished Hindu alumni when he (rightly) tried to assert the Christian values of the college. This is not to say they aren’t fine colleges, they are exceptional indeed, but they arent exceptional minority colleges.
Once you are comfortable with this you can follow Shri Harish Salve’s winning arguments quite easily. Take CMC Vellore, in addition to a science test there is also a Bible test followed by a searching interview where candidates are evaluated for abilities to serve Jesus Christ in line with the ideology of the college – heed the command of Jesus Christ exhorting His disciples and followers to heal the sick . You have to concede this is a valid ideology.
So here we have a model minority institution which is clearly a candidate for Art 30(1) protection. One can easily imagine a socialist or majoritarian state outlawing such mixing of religion and professional education. There is no question that NEET would impact CMC Vellore adversely as they can no longer weight down a higher ranked Christian candidate due to his lack of religious knowledge or commitment to Jesus Christ over a lower ranked one who demonstrates the above values. Other colleges like Vinayaka Missions , a Telugu minority college, made similar arguments or challenged the authority of the MCI to issue the NEET notification. But I think Salve’s was the clincher.
At this point it was clearly established that the NEET would impact the model minority institution. For arguments sake, if the court were to exempt NEET for “such model minority ” colleges, what about the others ? Here is where I think Justice Kabir demonstrated a great sense of balance and judgment.
- Other minority institutions may not be as committed as CMC and St Johns. Can we rationally distinguish between the two kinds ? There is an absence of an overall principled definition of what a minority institution and lack of a standard of judicial scrutiny to decide individual cases.
- What if non-minority institutions too had such character ? Do we then hold some religious endeavors at a higher pedestal over some other religious or say scientific endeavor? What is a college wanted to select super smart kids via a really tough exam?
- Practicality – How can a single exam based on CBSE syllabus ensure a level playing field ? Granted this is a secondary question but like the JEE-Main fiasco the court cannot ignore this matter altogether.
So instead of picking and choosing and washing it down with literary flourish – the majority simply threw the whole thing out. They rightfully sided with more autonomy.
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,
Justice Dave’s admits in his dissent that he wrote it in a hurry. The dissent bestows upon NEET qualities and abilities it simply does not have.
NEET will stop commercialization
Here is the plain truth. NEET or no NEET – you have to be wealthy to afford a MBBS degree from a private college today. It is also a giant mistake to assume that those rich kids studying in private medical colleges like Manipal or Chettinad lack merit. Sure they may rank lower than general category students of lesser means, but that doesnt mean they cant clear minimum NEET qualifications. Most of them are good and rank well in their higher income category. NEET wont change a thing.
Easy to normalize
Justice Dave says ” here 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.” It turns out this is a very hard problem as the CBSE who designed the JEE-Main are finding out. As more and more complex formulae are used the system loses respect and transparency among the student and parent community.
Have to appear for multiple exams and pay exam fees
This is a strong argument for NEET but there is no reason to believe a market solution cannot emerge here. In my view, this is not a big factor as the most motivated kids will find a way to select a subset of institutions within their budget. About the exam fees, lets not forget we are talking about private MBBS. If you are ready to pay lakhs per year for tuition, reducing exam fees is not a worthwhile policy pursuit.
Religious minority can use NEET as eligibility
NEET is clearly prescribed for eligibility as well as entrance. The hard fact is that medical seats are so few in number that those who aspire are certain to clear basic minimum qualifications. Also if all colleges use NEET as “eligibility only” they have to conduct their own evaluation in addition to NEET as the “entrance”. Now we are back to square one – as with the JEE fiasco. Kids not only have to appear for all the old exams – but also for a new one called NEET.
NEET is not the answer – real issue lies elsewhere
The real problem with medical education is not with NEET. This is a case where the Government must expand its capacities dramatically as private colleges are necessarily going to be out of bounds for most meritorious middle class and poor kids. On the private side, over regulation and the resultant political involvement has created de-facto monopolies. This allows the existing institutes to adopt dubious practices including capitation fees (which rearranges inter-se merit). The greatest example of how bizarre the situation has become can be seen in my pet peeve – the NRI quota.
Because the govt takes a share of the private capacity as well as fixes fees for another part, the colleges are allowed to take in upto 15% NRI students. The colleges like this because the admission norms for NRI students are a lot looser and they can charge them a much higher rate to compensate for govt takings in other categories. As you can see, over regulation on one side has side effects. Squeezed out capacity enables in unexpected ways headroom for arbitrariness and money making.
A lot of this capacity leaks out to the blackmarket.
In the meanwhile, a meritorious kid who does not have parents in a foreign country scratches his head and wonders why he is discriminated against for having dad work in India.
We have a long way to go. Lesser regulation and not more is the answer.
I’ve been tweeting for a few months now about what I consider to be the true conflict line in India. It isn’t Left vs Right, Sen vs Bhagwathi, Hindutva vs Secularism, Muslim vs Hindu, Liberal vs Conservative. The line is this Idea of India vs Rule of Law. Mr Narendra Modi’s letter stating his main concerns over the Food Security Ordinance is quite revealing and improperly analyzed in the media. Here is my take on his letter and how it fits with my overall hypothesis.
What is the “Idea of India”, what is the “Rule of Law”. Can they work together ?
The Idea of India is a book by Prof Sunil Khilnani where he gives a pretty good overview of what it is about. But the thought behind it go back to British Colonial times most notably by John Strachey. The basic observation of early colonial administrators was India is not a “real” country, say like France and Spain are, this is due to the exasperating diversity of the communities who inhabit it. Even the shared Hindu religion is insufficient due to the completely decentralized and deregulated nature of the religion. So in this model, a “plural, inclusive” form of organizing the state is forwarded as the only way of putting it all together. Now, what is this ‘plural, inclusive’ form which is above and beyond the plurality obtained by winning more votes in an common electorate. The Idea of India falls tantalizing short of specifying exactly what this means. What do you mean exactly by ‘take all communities’ along ?
If you buy into the themes behind the Idea of India, I believe you have to necessarily subscribe to the next step – a consociate form of government. In a consociate form of government – you assume that integration of the country isn’t possible and you instead focus on accommodation. In this form of government, factionalism is not only encouraged, but is the only way to represent. Therefore within this scheme factional leaders lay claim to two elements.
- Power share – in all arms of govt, pro-rated to their population share.
- Minority veto – vocal groups who feel outnumbered insist on veto. Sometimes a mutual veto is sought. Nothing moves without everyones consent.
Consociate form of government
This is called consociationalism and is the preferred formula imposed by the west in conflict zones around the world. The political scientist Arend Lijphart has quite a few great free PDF reads on the subject. To take a quick example : Lebanon has a consociate form of Govt where the Prime Minister is always a Sunni Muslim, the President a Maronite Christian, and the Speaker a Shia Muslim. This arrangement percolates down to local government level, each and every public office is split strictly as per a 60:40 (Christian : Muslim) formula, now the ratio is a contested 50:50. From what I’ve read in my private research on the matter, the Lebanese model is a failure. The mutual veto has resulted in stalemate, and the formulas are helpless against changing demographics, an elite “babalog” from each community has captured domain over their respective segments. Other consociate forms can be found in new Iraq Constitution of 2005, where Shias, Sunnis, and Kurds get power sharing. Bosnia-Herzegovina is another example touted as a success following the Dayton accord where relative calm has prevailed since power was split between the Muslims, Croats, and the Serbs by way of rotating presidency all the way down. I think the Idea of India is nothing but consociationalism in disguise.
Adhoc consociate model not constitutional
The Indian system is unique and in a terrible way. In all the above examples, the consociate arrangement was arrived at after extensive deliberations, the rules are clear, the ratios are clear. You can plan your lives accordingly. If you look at the Indian case, the Indian constitution does not codify any group rights, let alone, power sharing. To the best of my knowledge, at no point did the Constituent assembly even consider such a scheme of group accommodation; with the exception of the SC reservation issue. If you look at what is happening around us today, the trend is undeniable, there is a clamour for power sharing which is being sponsored on by the state. The instruments are a never ending stream of invidious schemes with unclear purposes ; we have the caste census, exclusive benefits, vetos and boycotts, carving out districts with minority population, resistance by inside groups to accommodate groups like Jats, Gujjars, Marathas, a Nitish sytle rearrangement of power sharing by sub caste classification, laws that exempt certain religions from state takings of private educational property and so on. The key to note is that the whole system is ad-hoc purely in proportion to intensity of political participation by groups. This operates in a regime of secrecy where key data about who gets what is not readily accessible. Given the secrecy, the negotiations for power sharing are incredibly complex at every level. The sheer amount of energy expended in jostling around like this is incredible and comes at the expense of the national interest. There are no big projects, no set of national principles, no goal or purpose big enough. The main goal is securing a seat at the table where these “transactional deals a.k.a accommodations” are done almost always at the expense of minority groups and non-participants. I’d go a bit farther and say this : This is what keeps us in squalid third world status.
The Rule of Law situation
This is what the Indian constitution originally, and still, supports. All Indians are expected to assume a single public identity – an Indian. A bill of rights protects individual freedom and liberty so in their private lives they can leverage their groups as they wish as long as they do not trespass. Leaders are expected to rise above sectarian lines and look down with disdain upon those who seek segmentation of the population along communal lines. The constitution or even the public discourse outside the elite confines of Delhi has never given room for any autonomy or exemptions along group lines. The reason I use “Rule of Law” is to emphasize one of its features : the generality of application. You can immediately see that the Rule of Law is incompatible with the consociate system (Idea of India). Groups that are mobilized are necessarily going to assert dominance over those that have not. So by definition, you have outside groups subject to extraordinary burdens the inside groups arent. What makes it worse, is once in power, the dominant groups also make the laws that guide the system. So over time, they are able to realize their goal of domination, which necessarily involves expelling those with lower political participation.
Modi vs Nitish in the context of the Food Security Bill.
Nitish Kumar had a condition, now downgraded to a suggestion for supporting the Food Security Bill. He insists on 5 members of the proposed 7 member Food Security Commission being from Women, Minority, OBC, EBC, and “Deprived” . He also wants exclusion of “urban elites”. The cost of the bill to the nation, the rationale for classification of included and excluded, the conditions attached to states like Bihar being major net recipients are all distant thoughts. To him, the yet to be formed NFSC needs power sharing, now. This is a high stakes game because the Food Security Commission will determine inter-se status of groups regarding their inclusion. The factions in his mind are so entrenched that ‘urban elites’ who actually pay disproportionately for the goodies are in fact persona non-grata when it comes to identification. Once these outside groups are eliminated, the great transactional micro level negotiations start about who is in / out. I am not attributing any malice to Nitish, he is in fact the perfect Idea of India guy, When he says, “Sabhko saath leeke chalna hai” – make no mistake, he is talking, perhaps without realizing ,about the consociational mutual veto which I mentioned earlier. Nothing moves unless everyone on the inside of the grand coalition agrees.
Narendra Modi’s letter to the Prime Minister could not offer starker contrast. In the very first point, he makes it clear what he wants. He desires NO discretion about who will be included in the free food program. Pause for a minute.
An Indian politician who does not seek the magic wand of adhoc classification. I cannot recall anyone in recent times who took this position. The caste composition of the yet to be formed commission could not be of lesser importance to him. What he seeks is upfront clear guidelines of inclusion, exclusion, revision. He also thinks that in the absence of clear guidelines an adhoc system of classification will emerge and he expects that to be judicially challenged. This is the closest we have to a Rule of Law guy. That he is pushing for a more expensive general scheme is to completely miss the point. According to him, the Rule of Law style Food Security Bill is necessarily more expensive than adhoc beneficiary selection. Cant trade it in.
Mitron, this Independence Day, think about what you want. The frenetic activity you see in adhoc consociationalism also known as Idea of India has no larger purpose, will solve no big ticket item. We will sink further into third world status if this is left unchecked.
That we would all sink into third world pro-rated by our community share is not something to be proud of. Jaihind.