Lately, the State of Tamil Nadu had been mulling over on the aspects of circumventing the NEET exams to enable admissions in medical institutions. However, such an object of the State is most unlikely to succeed under the Indian constitution which proscribes a State from interfering with any subject in which the Centre has already occupied the field. The State had appointed a...
Lately, the State of Tamil Nadu had been mulling over on the aspects of circumventing the NEET exams to enable admissions in medical institutions. However, such an object of the State is most unlikely to succeed under the Indian constitution which proscribes a State from interfering with any subject in which the Centre has already occupied the field.
The State had appointed a retired judge of the Madras High Court to consider the impact of NEET on rural and socially backward students of the State. Added to it, the media had been continuously publishing articles on the ongoing issue of the State's likelihood of the National Examination being scrapped.
Contrary to political beliefs, the legal inability is evident to either scrap or circumvent NEET by granting any exemption on grounds of minority etc., for many of the inter alia reasons:
Firstly, any State in India cannot legislate a law in the form of a plenary legislation or provision or amendment – with the object of circumventing NEET i.e., any such act either in form of a State examination for purpose of admission into medical institutions or otherwise in the form of exempting a class of students from NEET, would disturb the occupied field of the Centre, for there is already a NEET examination which has further achieved a Constitutional status[1]. Thus, any attempt to substitute the national exam vide a State exam, would not be in derogation of the former, but in addition to.
The vested power of the State Government under Entry 25 to the Concurrent List of the Constitution's 7th Schedule is subject to the Centre's power of enactment on the issue, and not vice versa. The said Entry is extracted infra:
25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
Article 246 of the Constitution which governs the three Lists is of much relevance herein. The same is reproduced:
246. Subject-matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2 [in a State] notwithstanding that such matter is a matter enumerated in the State List.
The import and scope of the words 'subject to clause(1)' prevailing in Article 256(2) and 'subject to clause (1) and (2)' prevailing in Article 246(3) – conveys the position that a State will not be able to supersede any law made by the Centre by invoking the Concurrent List - III, unless otherwise it comes within the exclusive ambit of List - II. Thus if the State Government tries to enact anything in exercise of its powers under the aforesaid Entry in the guise of 'medical education', it would per se be unsustainable, for the State has to yield to the Centre's enactment on the specified Entry.
Any such attempt made by the State, would fall under an encroachment on the Entry envisaged for Centre. Such law would be held as a nullity by the Courts on the ground of transgression alone. It is no more res integra in view of the Constitution Bench judgment in the case of Offshore Holdings (P) Ltd vs BangaloreDevelopment Authority,(2011) 3 SCC 139, which made the following apposite findings on Article 246 and overlapping transgression:
100. One who questions the constitutional validity of a law as being ultra vires, takes the onus of proving the same before the court. Doctrines of pith and substance, overlapping and incidental encroachment are, in fact, species of the same law. It is quite possible to apply these doctrines together to examine the repugnancy or otherwise of an encroachment. In a case of overlapping, the courts have taken the view that it is advisable to ignore an encroachment which is merely incidental in order to reconcile the provisions and harmoniously implement them. If ultimately, the provisions of both the Acts can coexist without conflict, then it is not expected of the courts to invalidate the law in question.
[...]
102. The repugnancy would arise in the cases where both the pieces of legislation deal with the same matter but not where they deal with separate and distinct matters, though of a cognate and allied character. Where the State Legislature has enacted a law with reference to a particular entry with respect to which, Parliament has also enacted a law and there is an irreconcilable conflict between the two laws so enacted, the State law will be a stillborn law and it must yield in favour of the Central law. To the doctrine of occupied/overlapping field, resulting in repugnancy, the principle of incidental encroachment would be an exception.
[Emphasis added]
Added to Article 246, any such law of the State would further be hit under Article 254[2] which provides that any State law inconsistent with the Central law would be void, to the extent of repugnancy pro tanto.
The proviso to Article 254(2) further grants the Parliament with supervening powers to add, amend, vary and repeal the laws of the State at any given point of time. Thus, even if a State law finds its way through Article 246, it will have to face its fate in view of the proviso appended to Article 254(2).
In Thirumuruga Kirupananda VariyarThavathiru Sundara Swamigal Medical Educational & Charitable Trust vs State of TN, (1996)3 SCC 15 an issue of similar nature arose, wherein which the State's law i.e., Dr. MGR Medical University Act was held repugnant to the Centre's law under Section 10A of the Indian Medical Council Act, 1956. The observations qua the applicability of Article 254 are extracted infra:
31. It would thus appear that in Section 10-A Parliament has made a complete and exhaustive provision covering the entire field for establishing of new medical colleges in the country. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by Parliament. Applying the tests laid down by this Court, it must be held that the proviso to sub-section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college is repugnant to Section 10-A inserted in the Indian Medical Council Act, 1956 by the Central Act which prescribes the conditions for establishing a new medical college in the country. The said repugnancy is, however, confined to the field covered by Section 10-A, viz., establishment of a new medical college and would not extend to establishment of other colleges.
32. The fact that the State Act has received the assent of the President would be of no avail because the repugnancy is with the Central Act which was enacted by Parliament after the enactment of the State Act. In view of the proviso to sub-article (2) of Article 254 Parliament could add to, amend, vary or repeal the State Act. In exercise of this power Parliament could repeal the State Act either expressly or by implication. (See: Zaverbhai Amaidas v. State of Bombay [(1955) 1 SCR 799 : AIR 1954 SC 752 : 1954 Cri LJ 1822] , SCR at p. 809; Deep Chand v. State of U.P. [1959 Supp (2) SCR 8 : AIR 1959 SC 648] , SCR at p. 51.) Although the Central Act does not expressly amend or repeal the State Act but the effect of the non obstante clause in sub-section (1) of Section 10-A which gives overriding effect to the provisions of Section 10-A over anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force, is to render inapplicable, and thereby repeal impliedly, the proviso inserted in sub-section (5) of Section 5 of the Medical University Act in the matter of establishment of a new medical college in the State of Tamil Nadu and its affiliation by the Medical University. In other words, as a result of insertion of Section 10-A in the Indian Medical Council Act, 1956 by the Central Act, with effect from 27-8-1992, the proviso to Section 5(5) of the Medical University Act has ceased to apply in the matter of establishment of a medical college in the State of Tamil Nadu and its affiliation to the Medical University and for the purpose of establishing a medical college permission of the Central Government has to be obtained in accordance with the provisions of Section 10-A. If such a permission is granted by the Central Government a further permission of the State Government under the proviso to Section 5(5) of the Medical University Act would not be required for the purpose of obtaining affiliation of such a college to the Medical University.
[Emphasis added]
Thus, any attempt of the State to supplant the Centre's NEET, would result in vain, for there is no scope of State's interference either in the form of legislation or vide any amendments, for the subject of NEET falls and pertains exclusively under the Parliament's domain.
[1] Indian Medical Council (Amendment) Act, 2016 & Dentists (Amendment) Act, 2016
[2] 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
Vignesh Ram is an advocate practicing in New Delhi. Views are personal.