On Justice Kabir’s correct NEET judgment

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,

The dissent

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.