The idea of a National Eligibility-cum-Entrance Test for medical courses in the country was perhaps too good to succeed. The Supreme Court’s decision to quash the Medical Council of India Regulations that introduced NEET is a direct consequence of the laissez faire in education endorsed by an 11-judge Bench in the TMA Pai Foundation case in 2002. The right to establish and administer institutions under the Constitution was held to include the right to admit students without any interference from the state, subject only to the condition that merit not be ignored. P.A. Inamdar (2005) evolved a triple test for admissions — that they be fair, transparent and non-exploitative — but reiterated that the right to frame such an admission procedure would remain with the unaided institutions. It was too late, anyway, for a smaller Bench to dislodge the earlier ruling that minority institutions had an unfettered right to select or reject candidates based on their own “procedures, beliefs and dispensations.” Some States saw the national eligibility test as an invasion of their rights, besides posing a threat to their scheme of reservation. Further, the States were not given the draft Regulations for their comments before they were framed. All these factors have led to the invalidation of NEET. A significant finding is that the MCI’s power to frame regulations for maintaining standards and conducting professional examinations does not include the right to hold an entrance test.

The question that one should ask is whether an eligibility test necessarily impinges on the rights of minority institutions or undermines reservation. Justice A.R. Dave’s illuminating dissent argues that it does not. In his view, NEET creates a national pool of eligible candidates from whom institutions could select those belonging to a particular minority group they prefer or to any class or category that State-owned or aided institutions want to select under their reservation norms. Instead of reading down the Regulations to that effect, the majority has chosen to declare them wholly unconstitutional. While a single national test may be seen as unfeasible, the reasoning in the main judgment would render even a State-level common test unconstitutional. Unlike engineering, medical courses have far fewer seats in proportion to the number of aspirants, and the scope for profiteering is demonstrably higher. Preventing undue state interference in the right to establish and administer institutions is indeed a constitutional requirement, but maintaining fairness in admissions, preserving inter se merit and curbing commercialisation also need constitutional protection. The Union government must consider fresh legislative measures to meet these objectives.