THE UNION GOVERNMENT CANNOT REGULATE ADMISSION OF STUDENTS IN UNIVERSITIES
-Dr. Justice A. K. Rajan, L . L D.
1: Constitution of India, VII Schedule, List II (State List), Entry 32reads as follows:-
“32. Incorporation, regulation and winding up of corporation, other than those specified in List I , and universities; unincorporated trading, literary, scientific, religious, and other societies and associations; co-operative societies.”
Entry 44 List I (Union List) reads as follows:-
“44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one state, but not including universities.”
A combined reading of these two provisions makes it clear that only the States have the power to incorporate, (to establish) and to regulate, (to control) the Universities. By Entry 44 list I (Union list) that power to establish a university has been specifically excluded. At the same time that power is specifically conferred on the States. Therefore Union Government cannot start a university or regulate any University.
Universities Acts Regulate admission of students:
2. Prescribing method for admission of Students into affiliated colleges or institutions, fall within the sphere of regulation of a university. Every University Act contains provisions relating to the requirements, like qualification for admission to a particular degree or course, method of examination and all other connected matters.
T.N. Dr. M.G.R. Medical University Act:
3: In Tamil Nadu, Dr. M.G.R. Medical University has been established exclusively to regulate the Medical education in Tamil Nadu. Section 35 of the Act relating to “Admissions to University courses“ reads as follows:-
“35. Admission to University Courses.-(1) No person shall be admitted to a course of study or training in a College or University laboratory or an approved institution to appear for any examination held by the University for conferring any degree, diploma or other academic distinction unless he,–
(a) has passed the qualifying examination prescribed therefore by the university; and
(b) fulfils such other conditions as may be prescribed by the regulations,
Section 36 of the Act relates to admission to University Examinations:
“36. Admission to University examinations:
(1) No candidate shall be admitted to any University examination unless,–
(a) he is enrolled as a member of a University college, university laboratory, affiliated college or approved institution; and…..”
Thus, the T.N. Dr. M.G.R. Medical University Act regulates or prescribes the method of admission to medical colleges and institutions within the State of Tamil Nadu. This has been done exercising the legislative powers conferred by the Constitution on the State of Tamil Nadu.
4: Madras University Act similarly fixes the qualification for admission of students to under graduate and post graduate studies. Thus, admission to a university is a matter that is regulated or controlled by the respective University act. The power to regulate such matters, are vested in the States by the Constitution.
5: Therefore, the Union Government has no power to regulate admission of students in any college affiliated to a university. Because, there is a specific prohibition, imposed by the Constitution, as stated above, prohibiting the Union government from controlling or regulating or in any way, interfering in the matters relating to any university. Therefore, by amending the Medical Council of India Act or any other Union Act, the admission of students to the affiliated colleges cannot be controlled by the Union Government.
M C I & D C I have no power to Regulate Admission of students :
6. Rule making power on matters relating to admission of students to the Medical and Dental courses are vested with the respective universities. That is regulated by the laws and statutes made by the Universities. Every college has to be affiliated to some University; only the students pass out of those colleges will be given the Degrees or Diplomas by the respective universities. Each University is created by a law passed by a competent Legislature of a State which also confers powers on the Universities to frame rules governing the admission of students in the colleges affiliated to it. As stated above T. N. Dr. M. G. R. Medical University specifies the rules for admitting students for the medical and Dental courses. Neither the MCI nor the DCI can have any power in that matter. Therefore they cannot issue any direction to any of the Medical or Dental Universities, to follow a different method for admitting the students in any of the courses conducted by the affiliated institutions.
Consequences of transfer of “Education” from State list to concurrent List:
7. An argument is advanced very often by people from all quarters, that since the entry “Education” is no more in the State List as it has been transported to the Concurrent List ( List III) law made by Union Government will prevail over any law made by any State. That is not that simple. Entry 25 List III reads thus:-
“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.”
This entry is made subject to entries 63 to66 of List I. That is, what is covered under those entries in List I is outside the scope of entry 25 List III. Neither the State Government nor the Union government can make a law, under this entry, over matters covered by the entries 63 to 66.
8: Entry 63 relates to Banaras Hindu University, Aligarh Muslim University, Delhi University, university established under Article 371E; and any other institution declared as institution of National Importance. Entry 64 relates to institutions of scientific or technical education financed by the Union government and dedicated by law by Parliament to be institutions of national importance. Entry 65 relates to union agencies and institutions for professional, vocational or technical training and other related things. Entry 66 reads thus “Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”
9. The above entries in List I make it clear that determination of standards in institutions for higher education or research and scientific and technical institutions is beyond the powers of the States. That is because that is covered under entry 66 List I. For the very same reason, establishment and control of the university fall within the exclusive domain of the States (under Entry 32 List II). Therefore Parliament has no power to make any law regulating or controlling any of the affairs of the Universities.
10. The word “universities” found in Entry 25 List III, creates an impression, at times deliberately created, in the minds of the protagonists of ‘Unitary India’, in contra distinction to ‘Federal India’, as if the word university in Entry 25 encompasses anything and everything relating to university. They wantonly forget the scope of Entries 44 List I and Entry 32 List II. The effect of those entries is that only the uncovered aspects by Entry 44 List I and Entry 32 List II are covered by Entry 25 List III. That is, power to regulate or control Universities is not conferred on the Union Government. It is conferred only on the State governments. Therefore, by amending the Medical Council of India Act, the Union Government cannot control the admission of students in the medical colleges affiliated to the T. N. Dr. M. G. R. Medical University.
Only State Governments can regulate Admissions to University courses:
11: It crystal clear that the power to create and/or regulate a university is vested on the States by Entry 32 List II [State List] in VII Schedule of the Constitution. Exercising that power, only State Legislatures can make a law prescribing the method of admission of students, to any course in an affiliated college of any University. Since the Union Government has no power to regulate the Universities it cannot pass any law prescribing the method for admission of students to any course in any of the affiliated colleges of any university. That is the Scheme of the Constitution of India.
12: T.N. Legislature passed an Act in 2007, abolishing Common Entrance Test for admitting students to the professional courses. Students are admitted to such courses on the basis of the marks obtained in the qualifying Examinations. The rationale behind that is when a student passes the qualifying examination conducted by the competent authorities, he becomes qualified to pursue any further course of higher studies and there is absolutely no need for passing another ‘common entrance examination’. It is a policy decision taken by the competent, T. N. Legislative Assembly. That is being followed from 2007 in the State of Tamil Nadu. That cannot be modified by the Union government by amending Medical Council of India Act..
Supreme Court Judgment dated 28th April 2016-.
13: Under the circumstances, a Writ Petition(C) No.261 of 2016 was filed before the Hon’ble Supreme Court by one ‘Sankalp Charitable Trust’ and another for the prayer:- to “a) Issue a writ of Mandamus or any other appropriate writ ……….directing the Respondents‘ (Union of India and others ) to conduct the National eligibility cum Entrance Test (NEET) for admission to MBBS Courses throughout the country for academic session 2016-17”. The matter was heard on 27th April 2016 and was posted to the next day on 28th April at 12.00 p.m. On that day the Hon’ble Supreme Court has passed the following order:-
“It has been submitted by the learned counsel for all the Respondents that it is proposed to hold the examination in pursuance of Notification dated 21st December2010 issued by the Medical Council of India and the Dental Council of India ( ‘DCI’ for short)” ………..
In view of the submissions made on behalf of the respondents, we record that NEET shall be held as stated by the Respondents. We further clarify that notwithstanding any order passed by any court earlier with regard to not holding NEET, this order shall operate. Therefore, no further order is required to be passed at this stage.
It may be mentioned here that some learned counsel representing those who are not parties to this petition have made submissions that in view of the judgment passed in Christian Medical College , Vellore & others Vs. Union of India & others, reported in (2014) 2 SCC 305, it would not proper to hold NEET and this order should not affect pending matters
We do not agree with the first submission for the reason that the said judgment has already been recalled on 11th April 2016 and therefore, the Notification dated 21st December 2010 are in operation as on today.
It may however be clarified that by this order hearing of the petitions which are pending before this court will not be affected.”
Order of Supreme Court on 11-4-2016:
14: From the order of the Ho’ble Supreme Court, it is seen that there was an earlier decision by the Supreme Court in Christian Medical college case dated 18-7-2013 (reported in 2014 (2) SCC 305) and that decision had been “ RECALLED” on 11th April 2016, by a 5 judges bench headed by Hon’ble Justice Anil R. Dave, allowing the Review petitions; only reasons given for allowing the Revision petitions was that the bench did not follow some binding precedents. It is a debatable issue whether a court can Review and recall a decision rendered by it, without giving all reasons for allowing the review petition, that too without even affording an opportunity to all the parties to the judgement, especially when the validity or enforceability of the very same Notification was the issue. At most the Present Writ Petition could have been tagged on to that case. After hearing all parties a considered judgment should have been passed. It is difficult to comprehend how Hon’ble Justice Anil R. Dave, who, in 2013 differed with the majority view, could recall the majority judgment when the successful parties in 2013 were not heard fully.
The Civil Writ petition itself may not be Maintainable under Article 32.
15: Presumably the Writ Petition (C) No.261 of 2016 was filed under Article 32 of the Constitution, such a petition can be filed only when any of the Fundamental Rights, guaranteed by the Constitution, is violated or if there is an imminent danger of such violation. It is pertinent to point out that as per the constitutional scheme and the rules framed by the Hon’ble Supreme Court of India and the Hon’ble High Court, the person who approaches the court seeking for a Writ of Mandamus must have a Legally Enforceable Right with the corresponding duty cast on the Government. Under the circumstances it is difficult to comprehend which fundamental right of the “SANKALP CHARITABLE TRUST “ was really infringed. The Notification may at the most be a direction to MCI; that does not confer any right on the trust or on any individual. The order does not indicate who was the “another petitioner” as well as who were the “other Respondents”. May be the MCI and CBSE were the respondents. But all the parties before the court in the Vellore Christian Medical college case should have been at least added as parties and their views should have been heard before passing orders. That is one of the Cardinal Principles of Jurisprudence.
Such a Notification cannot be issued by MCI :
16. The Notification dated 21-12 -2010 has been gazetted on 27-12-2010 as “Notification No.MCI-31(1)/2010-Med/49068-In exercise of power conferred by Section 33 of the Indian Medical Council Act,1956………… further amend the “Regulations on Graduate Medical Education ,1997”,.That is, MCI has , with previous sanction of the Union Government, made this regulations. The power to make regulation is granted, generally to carry out the purposes of the Act. The purposes of the Act was enlarged in 1993 by including Ss,10A, 10B and 10C. Section 10A empowers the MCI to make recommendation to the Union Government for granting permission to start a new medical college or new courses of study or to increase the number of seats in a college. S.10C was only a transitory provision; it is no more a live provision.
Only Universities decide mode of Admission to its Affiliated Colleges:
17: The phrase “a student who has been granted a medical qualification” refers to a student who had joined the course already and completed the studies successfully. The phrase does not mean or include a student who is yet to join the medical course. That is the power to make Regulation at the stage before the completion of medical course is NOT included either in the provisions of Section 10B or of Section 33 of the Act. Therefore the MCI has not been conferred or vested with, the power to regulate admission of students in the medical colleges or institutions. Therefore all the regulations including the requirement of passing NEET for admission to medical and Dental Colleges appears ultravires. Only the Universities have the power to determine the method of admission to its affiliated colleges. Every University is a Statutory and Autonomous body, having its own statutes and Regulations. That cannot be regulated by any other body. As seen above, under the Constitution of India, the power of incorporation and regulation of University is a State subject (Entry 32 List II).Therefore the States alone have the power to determine the mode of admission to the affiliated colleges in the Universities with its territory.
18: The Amendment to Medical Council of India Act, which interfere with the powers of the University relating to admission of students to the affiliated medical colleges of T. N. Dr. M. G. R. Medical University appears to be ultra vires the Constitution. Therefore, the MCI’s Regulation–making powers, conferred under Section 33 of the Act, do not extend to make regulations for the admission of students to medical colleges. If all these facts are brought to the notice of the Courts, the Courts would give a serious consideration and pass appropriate orders. Courts are the savours of rule of law and the democracy.
– Justice A. K. Rajan