16/5/2020 The Hindu Editorials Mains Sure ( Arora IAS)
Q-1 The scenario of Higher education in India is still the major concern with regards to minority rights. Justify in the context of Supreme Courts judgements? (250/10 marks)
Recent judgment of the Supreme Court on the National Eligibility-cum-Entrance Test (NEET).
- NEET was initially struck down as unconstitutional in Christian Medical College, Vellore case (2013) by a 2:1 majority.
- In 2016, NEET notifications were incorporated as statutory provisions under the Medical Council of India Act and the Dentists Act.
- In 2016, a review petition was allowed and NEET was made compulsory even prior to a full hearing by the constitution Bench.
- “Freedom of individual development is the basis of democracy,” observed the Commission (1948-49) appointed by the Government of India “to report on Indian University Education and suggest improvements and extensions that may be desirable to suit present and future”.
- It had among its members Dr. S. Radhakrishnan and was cited by then Chief Justice of India, B.N. Kirpal, in the judgment in T.M.A. Pai Foundation & Ors vs State Of Karnataka & Ors (2002).
- The Supreme Court in its judgment has held that there is no fundamental right violation in prescribing National Eligibility cum Entrance Test (NEET) for admissions of graduate and post-graduate programs in medical and dental courses across aided and unaided minority professional institutes and has upheld the NEET examination for institutes across the country.
- The SC has held that a uniform entrance examination like NEET helps weed out evils from the system and various malpractices which have decayed the educational system.
- The author of the article expresses concerns over the recent judgment and argues that key concerns of NEET have been overlooked by the SC bench.
- With NEET and similar other national tests such as the Joint Entrance Examination and Common Law Admission Test, coaching institutes are prospering and gaining undue influence over the coaching industry.
- Student from rural area or from state board getting large-scale variation in the syllabus and standards of the Central Board of Secondary Education and State boards getting disadvantage.
- The author argues that in the case of multiple tests a student tends to gain due to the following reasons:
- If a student falls ill or has not done well in one test, he/she will still have a chance to qualify in another without losing a year.
- It gives a student a right to select an institution of his choice.
Element of class culture:
- Though the SC bench notes that NEET promotes merit, the author argues that true meritocracy requires competition and equality of opportunity.
- Since most of the coaching institutes are located in cities, poorer students from a rural background and who have studied in the vernacular medium face a disadvantage.
- Empirical research in the United States on standardised common tests has found that these tests are biased against the poorer and underprivileged sections of population, women and minorities. Thus there is an element of class in NEET that the Indian judiciary has so far overlooked.
The Concern of Minority rights:
- SC has stated that the minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and regulations to enjoy affiliation and recognition.
- The author argues that minority rights are not the violation of the equality provision in Article 14 as the Constitution does permit classification. Substantive equality, as opposed to formal equality, mandates differential treatment.
- The author argues that the rights of minority institutions are being violated through the regulation measures of the government.
- Though minority institutions cannot grant admission based on their whims and fancies, but if such an institution follows an identifiable or reasonable methodology of admitting students, the imposition of NEET with mandatory centralised counselling is indeed an unreasonable restriction on these institutions.
- Even if one concedes the necessity of NEET, centralised counselling due to which several minority institutions and private medical colleges are unable to fill their seats is indeed an ‘intolerable encroachment’ of the rights of minority institutions.
- This leads to the denial of Article 30 rights of minority institutions and Article 19(g) rights of private unaided institutions. The Supreme Court has upheld the importance of Article 30 time and again through its numerous judgments.
Lessens autonomy of institutes:
- The NEET exam is a clear case of centralization in the educational sector.
- The author argues that NEET lessens the autonomy of universities and higher education institutions, particularly private, unaided ones.
The Increasing government domination of the educational process:
- The author argues that exclusive control of education by the State may have undesirable impacts on the society. Institutions of higher learning controlled and managed by governmental agencies may promote the political purposes of the State.
- The author argues that the trend towards the governmental domination of the educational process must be resisted in the interest of democracy.
- NEET paper has been leaked twice in the last four years and therefore, there is not much confidence in NEET’s fairness and transparency.
- In the 2018 NEET, as many as 49 questions had errors in Tamil translation.
- Some argue that common admission tests cannot measure abilities that are essential for learning such as imagination, curiosity and motivation.
- The Court’s opinion in Kerala Education Bill , on minority rights, has been religiously cited(mentioned) in all subsequent judgments (including the latest judgment on NEET) but without paying much attention to the crucial statement where there was the observation that the key words in Article 30 are ‘of their own choice’.
- Holding ‘choice’ to be the dominant word, then Chief Justice Das said that ‘the content of the article is as wide as the choice of the particular minority can make it’. If a minority institution wants additional qualifications over and above the NEET score, denial of such additional and superior qualifications undermines (undervalues) its choice.
- Even if one concedes(admit) the necessity of NEET, centralised counselling due to which several minority institutions and private medical colleges are unable to fill their seats is indeed an ‘intolerable encroachment(violation)’. Moreover, every vacant seat is the national loss. COVID-19 has only demonstrated India’s extremely poor doctor-population ratio.
Q- As a supreme body the Supreme court plays a critical role to resolve the conflicts of states define in the context of present situation? Explain
- The Supreme Court Judgment on Liquor sale in Tamil Nadu.
- Faced with dwindling revenue due to the stagnation in economic activity since the national lockdown began, States desperate to raise money have resorted to restarting liquor sales.
- Tamil Nadu had restarted liquor sales through outlets of the State-run TASMAC. The Madras High Court initially allowed the State government to open its network of liquor shops, subject to several conditions for maintaining physical distancing. However, after overwhelming evidence of lack of physical distancing, the HC banned across-the-counter sales and directed that only online sale be permitted.
- Tamil Nadu Government had approached the Supreme Court to obtain a stay on the Madras High Court order.
- Keeping with its other interim orders on similar petitions from other states, SC stayed the HC order, paving the way for the resumption of sales through outlets.
- The State government’s argument that the HC ought not to have interfered in a policy matter seems to have convinced the SC.
- The SC seems to be mindful of the need to preserve the policy space of States, choosing not to impose its views or ideas on any government. It wants the state to decide on the viability of opening liquor sales without leading to any adverse spread of the pandemic.
- The number of people testing positive for the novel coronavirus is increasing in Tamil Nadu. The opening of liquor outlets may increase the rate of infection.
- SC’s observation that online sale is not possible in a State like Tamil Nadu seems to be questionable.
- The Supreme Court has consistently held that Article 30 is not so absolute as to be above the law and regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed.
- This is a small window and cannot be widened to take over the entire admission process as some of the smaller Benches (including the latest one) have inferred(concluded). After all, instruction, sanitation, health and discipline will come into play only after candidates are admitted.
- The State government has to live up to its promise of preventing overcrowding in the vicinity of the liquor outlets