By Shubhangi Roy
We are here to pay homage to the fallen judgement of Christian Medical College and others v. Union of India and others– a judgement widely criticised for sanctioning black marketing of admission to private and unaided medical colleges by striking down the NEET as ultra vires to the constitution.
While deciding the matter, the three judge bench had before it the law of numbers and the law of social justice, it followed the former. Throughout the majority judgement, the two justices have reiterated how the issue of the state control on education was completely settled in the case of TMA Pai Foundation and Others v. Union of India by the eleven judges bench. This judgement is perhaps the Magna Carta that allows individuals and private owners to run unaided educational institutes as their personal playgrounds. But then as the judges of TMA Pai and the later Supreme Court judgements stated, all is well till the admission to such institutions was transparent and merit was adequately taken care of.
With this absurd and vague condition, if it qualifies as a condition at all, the education system was made wide open for all. This case was further approved and cited in the Islamic Academy of Education vs State of Karnataka and Inamdars and others vs State of Maharahstra and others. At a time where privitisation was always looked upon with a hostile wariness; in a country where there are massive protests against foreign investments in retail till date, the TMA Pai judgement stated that to the right to establish an educational institute flows out of the Fundamental Right guaranteed under Article 19(1)(g) and that it is a sacrament to protect this right to business just as any other. Surprisingly, the welfare state of India has stricter and better control on private banks than private colleges.
But to contest that the sacred, hallowed Supreme Court of India has entirely missed out on the importance of their rulings on the future of the Indian nation would be impertinent and unfair. To their credit are cases like Unnikrishnan vs State of Andhra Pradesh case (1993) which attempted to secure for all the right to education. It emphasised on the issue of fee capitation by private and unaided institutes being their method to fleece the education system of India in a manner that makes it inaccessible to a major section of the society. In fact, fearful of a possible commercialisation of education, the Supreme Court, in that case had attempted to envisage a seat system where a 15% of the seats were to be filled by the private professional institutes by its management for whatever fee they intended to charge; 35% candidates to be given admission in accordance to a fee limit fixed by the state government and 50% free seats to be filled with students selected on merit through common entrance test.
This system was obviously flawed for more reasons than one. Firstly, it drained the resources of the educational institutes due to lack of substantial income. Secondly, most of these free seats were taken up by students from affluent families as they tend to score more in common entrances due to access to better tuitions, books and resources.
Then happened the hyper constitutional case of TMA Pai. It struck down the Unni Krishnan judgement as unconstitutional and considered the restrictions an unnecessary imposition on the Fundamental Right of carrying out business under Article 19(1)(g). It is often criticised as the judgement that initiated rampant and unchecked commercialisation of the Indian education.
To be fair, even the judges of TMA Pai judgment did not envisage a complete free reign of private institutions. If read carefully, paragraph 68 of this judgement envisioned a certain control by the government. It reserved some seats to be filled according to the discretion of the institutes management but the rest had to fulfil certain criteria laid down by the state. These criteria and the share of seat to be under state control were to vary from region to region to accommodate the unique social stratification of the region. It had to be similarly applied to religious institutes as well.
These restrictions were clearly ignored in the cases that followed, be it the Islamic institutes case, Inamdar case or the present Christian Medical College case. In the most recent Christian Medical College and others v. Union of India and others, the judges went to the extent of stating that any restrictions on how to admit students would be a restriction to the institutes right under Article 19(1)(g).
But how could one ignore that there exists the option to impose restrictions on this Fundamental Right on grounds provided in Article 19(2), national interest being one of them. Is there any sector more relevant to the interest of the nation than that of education?
Therefore, to mindlessly criticise the present judgement as having no basis in law would be flawed. They followed the law to the word. In fact, this judgement is perhaps one of the finest examples of hyper-constitutionalism, where the judges interpret the constitution as being rigid and inflexible. This is not necessarily wrong. Let us not condemn the judgement merely because it differs from ours, perhaps we are both wrong.
But in light of the public outcry about the falling education standards perhaps it is time to reconsider what is said or interpret it differently. Perhaps it is time to remember the words of the revered retired Jstice Krishna Iyer who, in State of Kerala vs T P Roshana (1979 AIR 765),wrote, The rule of law should not petrify life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality. That is the karuna of the law. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college. The need for controlling its repercussions calls for judicial response. After all, law is not a brooding omnipresence in the sky but an operational art in society.