“When boundaries between judiciary and executive get
permeable facilitating easy switch from one role to another, such
constitutional embarrassments are bound to happen”.
It is quite unusual for a law to be made to get over
a particular judgment by a Court. It is further unusual if the law is not one
passed by the legislature, but is made by the government through the ‘ordinance
route’ .It gets more strange when the ordinance, which is specifically intended
to nullify Supreme Court & High Court judgements, is approved by a former
Chief Justice of India on holding the post of the Governor of State. And the
plot gets thicker, when the Supreme Court stays the
Ordinance on the ground that it blatantly seeks to nullify the binding effect
of the order passed by the Supreme Court.
This bizarre situation is created by Kerala Professional
Colleges(Regularization of Admission in Medical Colleges) Ordinance
2017[Ordinance No.21 of 2017]. To
cut a long story short, this Ordinance is promulgated by Kerala Government to
regularize the admissions to private medical colleges, which were cancelled by
the High Court and the Supreme Court as illegal and irregular. The Ordinance is
wrought with apparent legal and constitutional infirmities, which were pointed
out by Live Law earlier. The present Governor of Kerala is Justice P.
Sathasivam, the former Chief Justice of India, and Live Law had earlier commented about
the irony of a former Chief Justice of India signing an Ordinance to nullify a
Supreme Court order. Now, the Medical Council of India has directly approached Supreme Court challenging the Ordinance.
The obvious beneficiaries
of the Ordinance are two self-financing medical colleges :- Kannur
Medical College, run by a private trust, Prestige Educational Trust and Karuna
Medical College, run by a private trust namely Safe Development Alms
Trust. Admissions made to these colleges
during 2016-17 were cancelled by the Admission Supervisory Committee finding that the admissions were not made through
online process as per binding directions. It was also found that admissions
were made without publishing approved prospectus in college website. Though the
Colleges challenged the Committee’s order in High Court of Kerala, the Court did not accept. As per a detailed judgment
dated 28.10.2016 the laxity of
the institutions in following a transparent and non-arbitrary admission process
was deprecated in the strongest possible words by High Court and cost of Rupees
One lakh each was imposed on both the colleges.
During March 2017, Supreme Court also confirmed the
cancellation of admission. The appeals by Colleges were dismissed by bench
comprising Justice Arun Mishra and Justice Amitava Roy, and the plea that
cancellation would cause hardship to students was specifically rejected noting
that it would amount to creating a bad precedent. The review petitions filed by
students also got dismissed subsequently.
After that, the Ordinance was promulgated during October
2017, enabling Government to regularize admissions in any medical college during the academic
year 2016-17, “ignoring any judgment, decree, order or proceedings of any
court or the Admission Supervisory Committee”
. The management of the colleges seeking regularization should make an
application to that effect, and the students have to pay Rupees Three Lakhs as
‘regularization fee’.
Twist
after the Ordinance
But
things did not go smoothly even after the Ordinance. A twist happened, when some
students of Kannur Medical College, whose admissions had got cancelled,
approached the Admission Supervisory
Committee seeking return of the fee remitted. The Committee found that the
College had collected more than permissible fee from the students, between
Rs.22 lakhs to 45 lakhs, which has to be treated as ‘capitation fee’, and
issued a letter to the Director of Medical Education on 19.01.2018 for further
action.
It
was a condition in the Ordinance that admissions will not be regularized if
they are found to be made on payment of ‘capitation fee’. Therefore, B.
Srinivas, Principal Secretary(Health), the Competent Authority designated under
the Ordinance to consider applications for regularization, refused to
regularize the admissions made on payment of ‘capitation fee’. The Addl.Chief
Secretary(Health) Rajeev Sadanandan reported in concurrence with the Competent
Authority, recommending action against Kannur Medical College. However, the
Cabinet sought for another report from the Law Secretary B.G Harindranath. As per
reports in Deccan
Chronicle, the
Law Secretary dismissed the findings of the Committee, Competent Authority and
Addl.Chief Secretary(Health), and held that the findings regarding payment of
capitation fee was made without any material. Hence, the Law Secretary
recommended the regularization of admissions. The cabinet chose to
adopt the report of the Law Secretary and
regularized the admissions.
Challenge
to Ordinance by MCI
Meanwhile,
the Medical Council of India(MCI), got wind of the matter, and challenged the
Ordinance before the Supreme Court. MCI contended that the Ordinance is a piece
of colourable legislation attempting to override judicial orders. It is also
contended that the Ordinance has resulted in compromising merit in admissions.
‘Whether illegal admissions made by a medical college and the same having
been invalidated by the Courts be legalized by promulgating an Ordinance’- MCI asked
in its petition.
The
bench of Supreme Court consisting of Justice Arun Mishra(who headed the earlier
bench which dismissed the colleges’ appeal) and Justice U.U Lalit did not take
it lightly to the Ordinance. The Court observed that the cancellation of
admissions was approved by it after finding that they were not given in
accordance with law. “Thus, prima facie it was not open to sit over the
judgment and validate those very admissions and to venture into regularising
them. Prima
facie it was not open to declare this Court’s order as void or ineffective as
was sought to be done by way of ordnance”, observed
the bench. While staying the Ordinance, the Court also made it clear
that no student will be entitled to reap any benefit of any action taken and
they shall not be permitted to attend the college or the classes or continue in
medical colleges on the basis of the Ordinance.
Governor/Ex-CJI
in tight spot
Just
a day before the Supreme Court order, the Kerala Legislative Assembly had
hastily passed the Bill to convert the Ordinance into legislation, in a rare
show of unity between the ruling front and opposition. Reportedly, the counsel appearing for State
of Kerala submitted before the Court that the Bill had been passed, probably
hoping to render the MCI petition infructuous. However, it turned out to be a
furtive move, as the Bench specifically enquired whether the Bill has been
signed by the Governor and notified. Since
that stage was yet to be over, the Court proceeded to consider the matter,
ignoring the fact of passing of Bill by the Assembly.
Anyhow,
this has now put the Governor/Ex-CJI in a tight spot. All eyes will be on the
Governor to see whether he will now sign the Bill. To sign the Bill signifies open defiance
against the institution of which the Justice Sathasivam was the head a couple
of years ago. But constitutional constraints attached to the Governor post
might compel him to sign it.
This sort of an awkward situation would never have been
envisaged by the Constitutional founders.
But, when boundaries between judiciary and executive get permeable
facilitating easy switch from one role to another, such constitutional
embarrassments are bound to happen. Occupational hazards of an ex-CJI being the
Governor!
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