The Supreme Court has struck down the National Eligibility-cum-Entrance Test (NEET) for medical colleges as unconstitutional, dispelling any doubt as to who calls the shots in India’s higher education sector — private educational institutions that fleece students for capitation fees; private coaching institutes that profit from “customised” State entrance exams lacking uniformity; private banks that provide education loans at exorbitant rates to poor students; and finally, State governments that shore up their vote banks in the guise of protecting minority educational institutions. The Court’s verdict also reminds us who may not have their way in higher education — students who cannot afford to travel to different parts of the country to write entrance exams; students who cannot afford to pay tuition stipulated under management quotas; students who cannot afford to meet the rates charged by coaching institutes; and students from backward socioeconomic classes who cannot compete financially with their peers in the “creamy layer.” The Medical Council of India (MCI), a regulatory body, tried to even the scales by introducing an entrance test to streamline admission procedures, offer seats to meritorious and needy students, and circumvent the nexus between State governments and wealthy, private educators. The Supreme Court, by outlawing NEET, has blown its plan out of the water.
NEET was notified by the Medical Council of India in 2010, pursuant to the Central government’s power to regulate higher education. The test rendered students from across the country eligible to study in any medical college, without having to write multiple State-based exams. Educational institutions run by minority communities could continue their reservation and admission policies as long as they selected students who cleared NEET. The exam would also alter the economics of management quotas: the price of admission to medical colleges across India has skyrocketed because seats are sold on a free market basis. NEET, by broadening the pool of eligible students, would invariably constrict the supply of deep-pocketed candidates in favour of needy, meritorious ones, thus pushing tuition fees down.
But to pass muster with the Supreme Court, NEET needed to satisfy three criteria. First, the MCI could only prescribe “minimum standards in medical education” and the entrance test had to fall within this mandate. Second, the Council’s notification of an all-India exam had to be mindful of the constitutionally shared power of States to legislate on the issue (since education is placed in the Concurrent List of the Constitution). Third, NEET — which required medical colleges to admit students based on its results — had to respect the right of cultural, religious and linguistic minorities to “establish and administer” educational institutions, as protected under Articles 29 and 30 of the Constitution. On all three counts, the Court held, NEET had come a cropper.
In ruling so, the Court has viewed India’s legal make-up as distinct from its politics. Articles 29 and 30 found their way into the Constitution because its drafters rightly foresaw the need to protect the culture, religion and language of “national minorities.” But States became de facto guardians of their right to run educational institutions since “education” was — until 1976 — for the former to exclusively legislate upon. State governments have ritually abused this power to shower privileges on institutions run by small, but wealthy groups who promise votes in exchange for “autonomy.” The 42nd Amendment to the Constitution subsequently moved education to the Concurrent List in an attempt to dilute the power of States. But the Supreme Court, seemingly oblivious to this politics, has set the clock back.
The MCI is required by law to solicit comments on its draft regulations from State governments. The Council does not, however, require the latter’s consent to implement them. On Thursday, the Court held — contrary to case law — that State consultation was a sine qua non for NEET’s validity. The same court which now champions federalism had previously ruled in favour of the Bihar and Gujarat Governors’ powers to appoint university vice-chancellors and Lok Ayuktas respectively, over and above the opposition of State governments.
The tide of opposition against NEET at the Supreme Court came mainly from private and minority educational institutions. NEET simply prescribed certain “minimum qualifications” and eligibility criteria, i.e., rankings, for admission into medical colleges. This is entirely permissible within our constitutional framework, and has even been endorsed by the Supreme Court in previous cases. Nevertheless, the petitioners in Christian Medical College & Others v. Union of India alleged an all-India entrance exam, by “interfering” in their admission procedures, would violate their autonomy.
In conceding this argument, the NEET judgment has in effect made the management of private educational institutions immune from scrutiny. The Supreme Court, through a long line of decisions, from T.M.A. Pai to Islamic Academy to P.A. Inamdar , has tied aid for private educational institutions to autonomy in their management. As long as a minority institution does not receive aid from the government, it may do as it pleases in admitting students and charging fees. To remain financially self-sufficient, however, they need to charge high tuition from students. A minority-run institution’s reservation policies therefore become geared towards the admission of wealthier students from that community, a problem NEET could have tackled.
The same applies for private unaided institutions in general, even if they cannot avail the protection offered by Articles 29 and 30. As for aided medical colleges, minority and otherwise, they are free to “fix” tuition fees and reservation quotas in consultation with State governments on an annual basis. The Supreme Court’s verdicts on higher education have neatly divided the turf between State and Central governments, aided and unaided colleges, and minority and non-minority establishments. This institution-heavy jurisprudence favours the rights of educators over the rights of those who seek an education. NEET was always going to be a casualty.