The Irony Of A Former CJI Signing Ordinance To Nullify SC Order- Kerala Ordinance To Regularize Medical Admissions

It is really bizarre when a former Chief Justice of India has to collaborate with the Government to get over a Supreme Court order.  Justice P. Sathasivam, the present Governor of Kerala, had to confront this embarrassing situation, when he had to sign the ordinance mooted by Kerala Government to regularize admissions in two self-financing medical colleges, which were cancelled by the Supreme Court.

In what could be termed as a blatant misuse of executive power and an affront to judicial authority, the Kerala Government proposed an ordinance to regularize admissions to MBBS seats for the academic year 2016-17 in Kannur Medical College and Karuna Medical College, which were cancelled on the ground that they were made in a non-transparent and arbitrary manner. Initially, the Governor, the former Chief Justice of India, was reported to have returned the Ordinance without signing, citing legal anomalies. But when the Government persisted with the matter, the Governor signed the ordinance, and thereby giving his imprimatur to a decision to circumvent the order of the Supreme Court. Ironical, it may sound; perhaps it’s the occupational hazards of a former Chief Justice of India who decided to be a Governor of a State!

The Kerala Government has promulgated Kerala Professional Colleges(Regularization of Admission in Medical Colleges) Ordinance 2017[Ordinance No.21 of 2017] in order to save the admissions by nullifying   judicial orders.   The Ordinance which was notified on 20th of October suffers from apparent constitutional infirmities. Although the Ordinance does not state it clearly, from a bare understanding of the background factual context, it is very clear that the Ordinance intends to benefit Kannur Medical College and Karuna Medical College.

Factual background of cancellation of admissions

Kannur Medical College is a self-financing institution, run by a private trust, Prestige Educational Trust. Likewise, Karuna Medical College is run by a private trust namely Safe Development Alms Trust. From 2016-17 onwards, admissions to medical college seats have to be done on the basis on NEET merit list after following common counselling process. Regarding the admission process, the High Court had passed directions on 26.08.2016 in W.P(c) 28041/16. It was directed that applications for admission should be received only through on-line and such applications shall be uploaded for the scrutiny of the Admission Supervisory Committee immediately on the expiry of the last date for submission of applications. It was further directed that the admission process should be proceeded with only on the basis of a Prospectus, for which approval of the Admission Supervisory committee has been obtained.

Admission Supervisory Committee is a statutory body under the Kerala Professional Colleges or Institutions( Prohibition of Capitation Fee, Regulation of Admission,Fixation of Non-exploitative fee and other measures to ensure equity and excellence in professional education) Act 2006. According to the Committee, there was patent violation of the orders/directions by these two colleges. The web site of the colleges was not accessible most times and also not to the requisite extent. The details of the applications, rejected applications, reason for rejection, whether opportunity was given to cure the defects, how that was implemented, details of the list finalized etc. were never accounted by the Colleges.The reservation of seats in the Management Quota in Kannur Medical College for dependents of the Trustees and Staff was found to be bad by the Committee. The fee structure fixed by the colleges unilaterally, without executing any agreement with the Government, was also found to be excessive by the Committee and was reduced.

The High Court did not accept the challenge made by the said institutions against the directions of the Committee, as per its judgment dated 28.10.2016. The High Court observed as hereunder :-What disturbs this Court equally or more is with regard to the course and procedure pursued by the petitioner Institutions as to the interim order dated 23.08.2016, particularly 'condition No.(ii)'. As per this condition, it was very much obligatory for the petitioners to have uploaded all the applications stated as received online, to the notice of the Admission Supervisory Committee to have it scrutinized, immediately after the last date for submitting the applications. Had the proceedings been duly notified by the Colleges to the notice of the Admission Supervisory Committee then and there, giving effect to the various orders to the extent they were unchallenged, the proceedings could have been pursued and finalized, without much difficulty, enabling all concerned, to understand their position. It is also relevant note that the version of the Committee that the so called lists stated as produced before the Commissioner   were not made available before the Committee for scrutiny and no material has been produced before this Court as well, to show it, if otherwise. There are several lapses on the part of both the petitioner Institutions, which has spoiled much time of this Court as well, besides that of the Committee and the Governmental authorities, including the Commissioner. The laxity of the institutions in following a transparent and non-arbitrary admission process was deprecated in the strongest possible words by the High Court and cost of Rupees One lakh each was imposed on both the colleges.

The Supreme Court also confirmed the cancellation of admission, by dismissing the special leave petitions filed by the colleges.

Regularization by the Ordinance.

The Preamble of the Ordinance states that there was no fault on the part of the students whose admissions got cancelled. Though the Preamble refers to cancellation of admission by the Admission Supervisory Committee, reference to the orders of the High Court and Supreme Court affirming the Committee decision is conspicuous by absence. Section 2 is a non-obstante clause, enabling the Government to regularize the admissions in any medical college during the academic year 2016017, ignoring any judgment, decree, order or proceedings of any court or the Admission Supervisory Committee. As per Section 3, the management of the colleges seeking regularization should make an application to that effect, within fifteen days. The Ordinance also fixes a regularization fee, which is Rupees Three Lakhs per student, as per Section 5. In short, by paying rupees three lakhs per student, the colleges can regularize the cancelled admissions.

Ordinance cannot blatantly nullify judicial order

It is well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision at any time (Madan Mohan Pathak vs. Union of India AIR 1978 SC 803).It means that if the Court says that a particular action ‘A’ cannot be done, then the legislature is not competent to state in a subsequent legislation that ‘A’ can be done(State of Tamil Nadu v. M. RayappaGounder, AIR 1971 SC 231.). Of course, the legislature can neutralise the effect of a judgment by altering the legal basis of the judgment, or by curing the defect in the law. But, the legislature cannot directly invalidate a judgment by declaring that the judgment is not applicable. The Ordinance is definitely falling under the latter category. If it is shown as an attempt to interfere with the judicial process, such law would be invalidated being in breach of doctrine of separation of powers. This was declared by a Constitutional Bench of Supreme Court in State of Kerala vs. State of Tamil Nadu AIR 2014 SC 2407. Therein, the Kerala Legislature enacted Kerala Irrigation and Water Conservation(Amendment) Act 2003, in order to nullify an earlier Supreme Court order which permitted the water level of Mullaperiyar dam to be maintained at 142 feet. The amendment Act stated that water level should not be raised above 136 feet. The Court invalidated the amendment.

The rigour of this principle ought to be more stringent in case of an Ordinance, as it is an indirect way of legislation by the executive, bypassing the elected legislature. Ordinance making power is not a parallel power of legislation and is a power exercisable only when legislature is not in session and it has been conferred in order to enable the executive to meet an emergent situation(R.K Gargv.  Union of India (1981) 4 SCC 675). In D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, Constitution Bench of Supreme Court held that if the Executive takes over the law-making function of the Legislature, it “would be clearly subverting the democratic process which lies at the core of our Constitutional scheme, for then, the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive”The Court made it clear that an Ordinance is a short-term, emergency measure intended only to bridge the gap until the next session of the legislature.What is the emergent situation here which cannot wait till the next assembly session so as to warrant such an ordinance, especially so when the Kerala Legislative Assembly is scheduled to commence its next session on 9^th of November? One is left to wonder.

It is also pertinent to note that a seven judges’ bench of the Supreme Court recently held that placing of ordinance before the legislature was a mandatory requirement, so as to ensure that a situation of ‘Ordinance Raj’ will not prevail.

Single person legislation.

The Ordinance also suffers from the vice of being a ‘single person legislation’. Single person legislations are those legislations which intend to confer benefits on particular, identified persons or entities, as opposed to a general class. Such legislations are frowned upon by the Constitutional Courts as violative of equality clause under Article 14 of Constitution of India (Chiranjit Lal Chowdhari v. Union of India and others AIR 1951 SC 41). The only beneficiaries of the Ordinance are Kannur Medical College and Karuna Medical College. They do not form a class by themselves, having intelligible differentia so as to justify the Ordinance as a piece of class legislation. Hence, this can only be viewed as a mischief played on the Constitution.  And when a former Chief Justice of India approves such an Ordinance in the capacity of a Governor, it can only be termed as a Constitutional embarrassment.