NEET Returns in not so Neat a Manner

A constitutional bench of the apex court has not only upheld the 2007 Madhya Pradesh law providing for the State’s common entrance test but has also set up an oversight committee to supervise the functioning of the Medical Council of India (MCI), which the court observed, has ‘demonstrated neither professional excellence nor ethos’. Another five-judge bench of the Supreme Court, led by Justice Anil Dave, has not only now recalled the controversial 2013 three-judge bench decision delivered by the then Chief Justice of India on his last day in office but also ordered fresh hearing of the matter. What is surprising is that the bench has made NEET mandatory for all states, universities, including private unaided and minority universities, even prior to regular hearing in the matter. The interim order has the effect of final judgment.

The court did not accept even Government of India’s repeated requests to permit state governments to conduct their tests at least this year. Chief Justice TS Thakur did not entertain a similar plea. First phase of NEET was finally held on May 1, 2016 in which 6.67 lakh students took the test and the second phase would be held on July 24, 2016 only for students who have not registered for NEET earlier. Eight persons have already been arrested in Varanasi on the allegation of leakage of NEET paper. Last year, the apex court had itself cancelled the AIPMT due to large-scale cheating in Haryana.

NEET is considered a student-friendly initiative, yet the students are now in great stress due to its implementation from this very year. All political parties are unanimous that the decision would adversely affect the interests of students as parity between the two phases is an impossibility and students taking the test in July would be in an advantageous position. Moreover, a number of states and institutions have already conducted their own tests. Andhra Pradesh test was conducted on April 29, Telangana test is scheduled for May 15 and Karnataka test on May 4. Tamil Nadu does not have a test at all. How would mandatory NEET impact our federalism and diversity is a million dollar question? Is one national test desirable in a country of our size? These are some of the questions the apex court has to answer.

The 2013 majority decision, which was allegedly leaked before its pronouncement, had raised a few fundamental questions about the competence of the MCI to conduct a common test for the whole country. The decision was widely criticised as pro-rich, pro-coaching centres, anti-student and one which would lower the standards of medical education. The 2016 judgment is likely to say that one national test alone can solve all problems of preservation of merit, capitation fee, management quota and profiteering by the coaching institutes.

We need to, not only appreciate the distinction between a university and a medical college but also that one test will take away the powers of even the state governments from conducting tests at the state level. Treating small colleges and big universities as one and the same is indeed an arbitrary classification. Conducting admission test is an essential facet of each university’s autonomy. Each university or institution has a right to emphasise some special areas of study. For instance, Gandhi Medical College, Seva Gram, Vardha has a paper on Gandhian Studies in its test, similar is the case with Armed Forces Medical College which tests a student in defence studies. CMS Vellore too has a right to test the special qualities of service to humanity in its admission test. Similarly, minority institutions’ ‘right to admit students of their choice’ would include the right to set questions of their choice.

Even in the United States, it has been found in a number of surveys that mostly rich, white and politically powerful families’ children make it to the common tests. Thus, there is an element of class in the entire proposal of NEET. Similarly, with one national test, coaching institutes are likely to prosper and since most of the coaching centres are in cosmopolitan and big cities, poor students from rural background who have studied in the vernacular medium may be at a disadvantage in any national test.

Most students are not familiar with negative marking and there are large-scale differences amongst the CBSE and state boards. NEET would certainly promote ‘merit’. But it is difficult to precisely define ‘merit’. If unequals are tested on the basis of one test, merit is surely going to be compromised. Right to equality means likes are to be treated alike not unlikes are to be treated alike. Can we say goodbye to affirmative action because it compromises merit? Even the Modi government distanced itself from an otherwise legitimately expressed concerns of Mohan Bhagwat about having a relook at the reservation policy.

Have we not been admitting students to top medical colleges from the underprivileged sections of our society on very low marks? When 50% seats in IITs, medical colleges and IIMs are already reserved for SCs/STs and OBCs and this reservation has not lowered their standards, why make so much hue and cry about the 15% management quota?

This does not mean that state cannot insist on merit and transparency within the management quota in private unaided institutions. The apex court needs to consider the few advantages which a student gets if there are multiple tests. First, if a student, due to sickness or otherwise, has not done well in one test, he will still have a chance to qualify in another. Secondly, it gives a student the right to select an institution of his choice. Thirdly, with the leakage of CAT, AIPMT or NEET paper and similar other tests, students would have no confidence in the fairness of common entrance test.

The bench led by Justice Anil Dave is absolutely right in saying that the apex court itself had favoured the idea of a common test in its earlier decisions of TMA Pai and Islamic Academy Case. But the issue at present is not only about just one common mandatory test for the whole nation and for all institutions including minority institutions but also about the timeline, from this year itself.

The Supreme Court has been permitting exemption from the common test. In clarifying the 11-judge bench TMA Pai case, the five-judge bench in the Islamic Academy case had held that admission by the management can be by a common entrance test held by ‘itself or by the State/university.’ The institutions which have a special feature and who have been admitting only students of their own community but have a fair and transparent admission procedure for, at least last 25 years, can seek an exemption from common entrance test. NEET accepts no exception and thus this hue and cry. It is good that the court has agreed to ask the MCI to respond to the states’ request to conduct their tests this year.

Prof. Faizan Musthafa is the Vice-Chancellor, NALSAR University of Law, Hyderabad. This Article is first published in The New Indian Express dated 04-05-2016 and published here with special Permission from the author.

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LIVELAW and LIVELAW does not assume any responsibility or liability for the same.