The Union Ministries of Health and Family Welfare (MoHFW) and Ayush, have strongly opposed the NEET Exemption Bill passed by the Tamil Nadu Assembly in February 2022. The two Ministries contended that the bill was against the Constitution, as Article 254 says that if both the Parliament and the state make laws upon a subject under the Concurrent List, then the law made by the former shall prevail. Since education falls under the Concurrent List, Tamil Nadu’s bill to ban NEET would be against the Constitution, they said.
Dravida Munnetra Kazhagam (DMK) leaders pointed to TNM that the stand taken by these two Ministries clearly demonstrated why education needed to be taken out of the Concurrent List and placed in the State List. The Tamil Nadu Admission to Undergraduate Medical Degree Courses Bill, 2021 was passed for the second time in 2022 and has been sent to the President for assent. DMK MLA from Thousand Lights constituency Ezhilan Naganathan filed a petition in the Madras High Court in September 2021, asking for education to be moved to the State List. Speaking to TNM, he said that Tamil Nadu’s medical education was interrelated with public health. “Our health services and health education are synonymous. We are training doctors, nurses and various other medical faculties to deliver public health, and public health is in the State List and not in the Concurrent List. To efficiently deliver public health to the citizens of the country, the state government can pass any amount of legislation,” he said.
He also said that the Union government could coordinate and frame standards for medical education, but the admission procedures and policy-related decisions should rest upon the state government. “It is the state government that is close to its people, and so it will devise policies accommodative to the people,” he added. Education was initially under the State List in India. Specifically, it was placed under Entry 11 under List II of the Constitution (including universities). This meant that states could decide about education, including admissions, curriculum, and medium of instruction. Only the subject of the coordination and the maintenance of standards in higher education was under the control of the Union government.
However, in 1976, education was moved from the State List to the Concurrent List during the Emergency, through the 42nd Amendment. That is, education was moved to Entry 25 of List III (including technical education, medical education and universities). This meant that the powers that initially rested with the state government were shared between state assemblies and the Parliament, with the latter having supremacy over state assemblies. “Education was taken away from the state without any discussion when Parliament was suspended. When the powers were restored after the Emergency, education was sent to the Concurrent List. There has been a constant infringement of the Union to overrule the state legislations or state executive power in this matter and it has been done irrespective of the governments in power,” said Ezhilan.
DMK Rajya Sabha MP and senior lawyer P Wilson also argued that education should be moved from Concurrent list. “Education was put in the Concurrent List so that the basic doctrine of the Constitution will apply. This meant the Parliament’s decisions will supersede that of state assemblies. However, clause 2 of Article 254 gives the states the power to legislate and send it for President’s approval, which is what we have done and are yet to hear back,” he explained. If education had been in the State list, the governor’s assent would have sufficed. “So far as the bill is concerned, we are asking for the President’s assent. But the larger issue is that we need the power restored to us when it comes to education,” Wilson said.
The responses of the two ministries were made public through an RTI response received by State Platform for Common School System-Tamil Nadu (SPCSS-TN), a group that works for education reforms. In response to whether the bill endangered the sovereignty, unity and integrity of the nation, the Ayush Ministry said yes. The Ministry also said that passing a bill by the Legislative Assembly against an Act passed by the Parliament was “against the federal system of the country”, and that “the proposed bill of the Government of Tamil Nadu may likely hinder the Unity of India.” They also stated that the bill violated the fundamental rights of the citizens.
In response, Ezhilan said that the bill sought exemption for state government medical colleges that are run by the state medical education department. “How does this go against the sovereignty, unity or integrity of India? And how does this violate fundamental rights? NEET has caused several inequalities and gives an advantage to those who have the money and resources to attempt the exam multiple times,” he said.
Speaking to TNM, Prince Gajendra Babu, general secretary of SPCSS-TN said that neither the questions raised by the Union Home Ministry nor the replies by the two Ministries were in accordance with the provisions of the Constitution. “The questions and answers of the concerned Union Ministries are a deliberate attempt to nullify the democratic process. This raises questions about the sovereignty and rights of the citizens who elected the government,” he said.
Ezhilan Naganathan said that they proceeded under the provision of Article 254(2), which states that if there is a repugnancy (conflict) between the State and the Union, the legislation has to go to the President for assent. “This is what we have done. If there was no Article 254(2), then what they have said is right,” he said. According to Article 254(2), when a law made by a State Legislature regarding a matter in the Concurrent List, conflicts with the provisions of a law made by Parliament in the same regard, then the law made by the state after receiving the President's assent shall prevail in that state.
Wilson said that the purpose of sending the legislation to the President was because of the provision under Article 254(2). Taking the example of Jallikattu and Common Entrance Examination, Wilson said that both of them were exempted in Tamil Nadu by way of legislation. “This is the power vested in the state under Article 254 and the state legislature always has the power to legislate and send it for assent. The queries by MHA have been raised without appreciation for the law,” he maintained.
SPCSS-TN also submitted a twenty-page memorandum to the President seeking her assent without further delay. They appealed to the state government to initiate a debate in the Assembly about the questions asked and the answers given “with total disregard to the Constitution of India.” They also want the state government to pass a resolution seeking the assent of the president. It is to be noted that MHA forwarded the comments of the Ministries to the state government, and the latter sent a detailed response to the MHA regarding the same. However, the response was not shared with Prince Gajendra Babu under RTI Act.