It is no secret that the people of Tamil Nadu has rejected the National Eligibility cum Entrance Test (NEET) lock, stock and barrel. The argument that NEET is to ensure merit in admissions to medical and dental courses has been thoroughly taken apart by data collected by the Justice A K Rajan Committee appointed by the TN government.

NEET is not an equitable method of selection. It has undermined the diverse social representation in medical studies and favours the affluent segment of society. The social groups which were most affected by NEET were the students from Tamil medium, rural background, government schools, economically and socially disadvantaged groups such as other backward class, scheduled castes, and scheduled tribes. More shockingly, the data revealed that NEET has enabled low performing students in higher secondary level to get admission to MBBS. Therefore, the argument that NEET ensures merit in selection is specious.

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The picture being painted by some is that marks only in NEET determines merit. Recently, in the case of Neil Aurelio Nunes, while upholding 27% OBC reservations in the All India Quota, the Supreme Court obliterated this binary understanding of merit. The court observed that an “exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making”. In other words, the invisible factors such as social, cultural and economic advantages that increase the probabilities of success in these competitive exams are also to be considered while assessing individuals.

This is why common entrance exams were abolished in TN by then chief minister M Karunanidhi in 2006 by enacting a law. And that received Presidential assent. This law provided for admissions to professional courses solely on the basis of marks obtained in the board examinations and was upheld by the Madras high court and Supreme Court in the case of minor S Aswin Kumar. This act was in force from 2007 to 2017, when amendments were made to the Indian Medical Council Act, 1956, and Dentists Act, 1948.

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Under our constitutional setup, the legislature is the voice of the popular sovereign — the people. The state’s executive, which the governor heads, is responsible and accountable to the assembly. The will of the people of Tamil Nadu to junk NEET was given effect by the assembly as it passed the NEET exemption bill unanimously, across party lines. It is this will of the people that the governor defied as he returned the bill. The governor has committed grave fundamental errors in law, which could have been avoided with proper legal advice.

NEET is mandated by Union law — The National Medical Commission Act, 2019. Though the state’s bill is passed under the concurrent list, since the provisions of the state bill is repugnant to a Union law, only the President of India can assent to this bill. When a governor is not competent to assent to a bill, he cannot return it. Therefore, the governor returning this bill, without reserving it for the consideration of the President under Article 200 is ex-facie unconstitutional.

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In his message to the assembly while returning the bill, the governor has quoted the Supreme Court’s decision with regard to Christian Medical College, Vellore, and erroneously interpreted it to mean that the Supreme Court has taken away the state’s power to legislate on NEET. In the CMC case, the Supreme Court was merely concerned with the constitutionality of regulations that enabled NEET vis-à-vis the rights of minorities to establish and administer colleges, and not the competence of states to exempt themselves from NEET.

The interpretation of the state’s powers to legislate on this subject was done in the judgment in Modern Dental College, which CM M K Stalin quoted in his speech in the TN assembly as the House unanimously passed the bill again. The court has explicitly held that the Union’s competence is only to lay down a uniform standard of education whereas the state has concurrent power to legislate over admission process in higher educational institutions. This view was subsequently reiterated by the Court in a constitutional bench judgment in TN Medical Officers Association case.

The governor has not noticed these judgments while returning the bill. The governor has also breached the sacred constitutional relationship between governor, government and legislature, and has forgotten that he is bound by the aid and advice of the council of ministers. The Supreme Court in the case of Nabam Rebia held that a governor is not assigned any significant role in the legislative functioning of the state and cannot have dominating powers and functions over the state executive and the legislature.

Further, in the B K Pavitra case, the Supreme Court held that unless a bill is glaringly unconstitutional, the governor cannot withhold assent and must act with “constitutional statesmanship”. There is no scope for a governor to conduct a personal assessment of a bill passed by the legislature or have subjective satisfaction of the necessity or usefulness of a bill. His personal feelings, understanding, opinion or the basis of the bill is irrelevant, whether it be “jaundiced” or otherwise. Interestingly, the very same governor through his policy address in January 2022 declared that NEET is unnecessary.

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The task of testing the bill’s legality also does not fall to the governor since that is within the exclusive domain of constitutional courts. The governor has defied the doctrine of separation of powers, usurped the role of courts and at the same time, also acted like an appellate authority over the legislature, which breaches the constitutional faith reposed in the governor.

Be that as it may, the chief minister has responded to a glaringly unconstitutional act of gargantuan proportions with dignity. In a special sitting of the TN assembly at Fort St George, from where the Justice Party government promulgated the first communal GO, Stalin’s government reaffirmed its commitment to equality and social justice and sent the bill after passing again. One can only hope that the governor does his job this time around and promptly reserves the bill for the consideration of the President.


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