It
is really bizarre when a former Chief Justice of India has to collaborate with
the Government to get over a Supreme Court order. Justice P. Sathasivam, the present Governor
of Kerala, had to confront this embarrassing situation, when he had to sign the
ordinance mooted by Kerala Government to regularize admissions in two
self-financing medical colleges, which were cancelled by the Supreme Court.
In
what could be termed as a blatant misuse of executive power and an affront to
judicial authority, the Kerala Government proposed an ordinance to regularize
admissions to MBBS seats for the academic year 2016-17 in Kannur Medical
College and Karuna Medical College, which were cancelled on the ground that
they were made in a non-transparent and arbitrary manner. Initially, the Governor, the former Chief Justice of India, was reported to have returned the Ordinance without signing, citing legal
anomalies. But when the Government persisted with the matter, the Governor had
to sign the ordinance, and thereby had to give his imprimatur to a mischievous
design to circumvent the order of the Supreme Court. Ironical, it may sound; perhaps
it’s the occupational hazards of a former Chief Justice of India being a
Governor of a State!
The
Kerala Government has promulgated Kerala
Professional Colleges(Regularization of Admission in Medical Colleges)
Ordinance 2017[Ordinance No.21 of 2017] in order to save the admissions by
nullifying judicial orders. The Ordinance which was notified on 20th of
October suffers from apparent constitutional infirmities. Although the
Ordinance does not state it clearly, from a bare understanding of the
background factual context, it is very clear that the Ordinance intends to
benefit Kannur Medical College and Karuna Medical College.
Factual background of cancellation of
admissions
Kannur
Medical College is a self-financing institution, run by a private trust,
Prestige Educational Trust. Likewise, Karuna Medical College is run by a
private trust namely Safe Development Alms Trust. From 2016-17 onwards,
admissions to medical college seats have to be done on the basis on NEET merit
list after following common counselling process. Regarding the admission
process, the High Court had passed directions on 26.08.2016 in W.P(c) 28041/16.
It was directed that applications for admission
should be received only through on-line and such applications shall be uploaded
for the scrutiny of the Admission Supervisory Committee immediately on the
expiry of the last date for submission of applications. It was further directed
that the admission process should be proceeded with only on the basis of a
Prospectus, for which approval of the Admission Supervisory committee has been
obtained.
Admission
Supervisory Committee is a statutory body under the Kerala Professional Colleges or Institutions( Prohibition of Capitation
Fee, Regulation of Admission,Fixation of Non-exploitative fee and other
measures to ensure equity and excellence in professional education) Act
2006. According to the Committee,
there was patent violation of the orders/directions by these two colleges. The
web site of the colleges was not accessible most times and also not to the
requisite extent. The details of the applications, rejected applications, reason
for rejection, whether opportunity was given to cure the defects, how that was
implemented, details of the list finalized etc. were never accounted by the
Colleges.The reservation of seats in the Management Quota in Kannur Medical
College for dependents of the Trustees and Staff was found to be bad by the
Committee. The fee structure fixed by the colleges unilaterally, without
executing any agreement with the Government, was also found to be excessive by
the Committee and was reduced.
The High Court did not accept the challenge made
by the said institutions against the directions of the Committee, as per its judgment dated 28.10.2016. The High Court observed as hereunder :-What disturbs this Court equally or more is with regard to the course
and procedure pursued by the petitioner Institutions as to the interim order
dated 23.08.2016, particularly 'condition No.(ii)'. As per this condition, it
was very much obligatory for the petitioners to have uploaded all the
applications stated as received online, to the notice of the Admission
Supervisory Committee to have it scrutinized, immediately after the last date
for submitting the applications. Had the proceedings been duly notified by the
Colleges to the notice of the Admission Supervisory Committee then and there,
giving effect to the various orders to the extent they were unchallenged, the
proceedings could have been pursued and finalized, without much difficulty,
enabling all concerned, to understand their position. It is also relevant note
that the version of the Committee that the so called lists stated as produced
before the Commissioner were not made available before the Committee
for scrutiny and no material has been produced before this Court as well, to
show it, if otherwise. There are several lapses on the part of both the
petitioner Institutions, which has spoiled much time of this Court as well,
besides that of the Committee and the Governmental authorities, including the
Commissioner. The laxity of the institutions in following a transparent and
non-arbitrary admission process was deprecated in the strongest possible words
by the High Court and cost of Rupees One lakh each was imposed on both the
colleges.
The Supreme Court also confirmed the
cancellation of admission, by dismissing the special leave petitions filed by
the colleges.
Regularization by the Ordinance.
The
Preamble of the Ordinance states that there was no fault on the part of the
students whose admissions got cancelled. Though the Preamble refers to
cancellation of admission by the Admission Supervisory Committee, reference to
the orders of the High Court and Supreme Court affirming the Committee decision
is conspicuous by absence. Section 2 is a non-obstante clause, enabling the
Government to regularize the admissions in any
medical college during the academic year 2016017, ignoring any judgment,
decree, order or proceedings of any court or the Admission Supervisory
Committee. As per Section 3, the management of the colleges seeking
regularization should make an application to that effect, within fifteen days.
The Ordinance also fixes a regularization fee, which is Rupees Three Lakhs per
student, as per Section 5. In short, by paying rupees three lakhs per student,
the colleges can regularize the cancelled admissions.
Ordinance cannot blatantly nullify
judicial order
It is well settled that the legislature cannot by a bare declaration,
without anything more, directly overrule, reverse or override a judicial
decision at any time (Madan Mohan Pathak vs. Union of India AIR
1978 SC 803).It means that if the Court says that a particular action ‘A’
cannot be done, then the legislature is not competent to state in a subsequent
legislation that ‘A’ can be done(State of
Tamil Nadu v. M. RayappaGounder, AIR 1971 SC 231.). Of course, the
legislature can neutralise the effect of a judgment by altering the legal basis
of the judgment, or by curing the defect in the law. But, the legislature
cannot directly invalidate a judgment by declaring that the judgment is not
applicable. The Ordinance is definitely falling under the latter category. If
it is shown as an attempt to interfere with the judicial process, such law would
be invalidated being in breach of doctrine of separation of powers. This was
declared by a Constitutional Bench of Supreme Court in State of Kerala vs. State of Tamil Nadu AIR 2014 SC 2407. Therein, the Kerala
Legislature enacted Kerala Irrigation and Water Conservation(Amendment) Act
2003, in order to nullify an earlier Supreme Court order which permitted the
water level of Mullaperiyar dam to be maintained at 142 feet. The amendment Act
stated that water level should not be raised above 136 feet. The Court invalidated the
amendment.
The rigour of this principle ought to be more
stringent in case of an Ordinance, as it is an indirect way of legislation by
the executive, bypassing the elected legislature. Ordinance making power is not a parallel
power of legislation and is a power exercisable only when legislature is not in
session and it has been conferred in order to enable the executive to meet an
emergent situation(R.K Gargv. Union
of India (1981) 4 SCC 675). In D.C.
Wadhwa v. State of Bihar, (1987) 1 SCC 378, Constitution Bench of Supreme
Court held that if the Executive takes over the law-making function of the
Legislature, it “would be clearly
subverting the democratic process which lies at the core of our Constitutional
scheme, for then, the people would be governed not by the laws made by the
legislature as provided in the Constitution but by laws made by the executive”The
Court made it clear that an Ordinance is a short-term, emergency measure
intended only to bridge the gap until the next session of the legislature.What
is the emergent situation here which cannot wait till the next assembly session
so as to warrant such an ordinance, especially so when the Kerala Legislative
Assembly is scheduled to commence its next session on 9th of
November? One is left to wonder.
It is also pertinent to note
that a seven judges’ bench of the Supreme Court recently held that placing of ordinance before the legislature was a mandatory
requirement, so as to ensure that a situation of ‘Ordinance Raj’ will not
prevail.
Single person legislation.
The Ordinance also suffers from
the vice of being a ‘single person legislation’. Single person legislations are
those legislations which intend to confer benefits on particular, identified
persons or entities, as opposed to a general class. Such legislations are
frowned upon by the Constitutional Courts as violative of equality clause under
Article 14 of Constitution of India (Chiranjit
Lal Chowdhari v. Union of India and
others AIR 1951 SC 41). The only beneficiaries of the Ordinance are Kannur
Medical College and Karuna Medical College. They do not form a class by
themselves, having intelligible differentia so as to justify the Ordinance as a
piece of class legislation. Hence, this can only be viewed as a mischief played
on the Constitution. And when a former
Chief Justice of India approves such an Ordinance in the capacity of a
Governor, it can only be termed as a Constitutional embarrassment.
Published in Live Law on 09.11.2017
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