The Union government’s only agenda behind NEET is to penalise advanced states: Former Madras High Court judge, Justice AK Rajan

Born in January 1943 in a village in Dindigul District in Tamil Nadu, Dr Justice AK Rajan grew up wanting to be an engineer. A change in the State pre-university exam rules in the 1970s however, left him disqualified and so, he opted for law instead as the flexible hours at law college left him with time to tend to his ailing father’s wholesale flower business.However, once Justice Rajan began studying law, there was no looking back. He developed a passion for the law that led him to teaching law and then to the judiciary. He also became the law secretary and drafted several bills that later became Law. In 2000, Justice Rajan was elevated as a judge of the Madras High Court. He retired in January 2005. He has also authored several books on the law and judiciary.Justice Rajan also led the High-Level State Committee to study the impact of NEET on socially backward students..In this interview with Bar & Bench’s Ayesha Arvind, Justice Rajan speaks about why NEET is problematic, the bills he drafted, his time as a judge, and everything else that affects the Indian judiciary..Ayesha Arvind (AA): When did you decide to do law?.Justice AK Rajan (AKRJ): While I was in my final year in BSc, my father fell ill. On the last day of my BSc final year exam, I took him to the hospital. Thereafter he never returned. My father was running a wholesale flower agency. In my childhood, I helped him day and night, except during school hours. After his death, it fell upon my brother and myself to take care of the business. I was 21 years old.But I wanted to continue studying and so the only option I had was to join the law college, because the classes were for limited hours only, like a part time course. Half-day college and then in the shop. I used to attend the afternoon classes.We used to wake up at 2:30 AM. I used to go first to the vegetable market, and after 8:00 AM, go to the flower market. Then we would go to school, which was nearby. After the school hours, we would come back to the shop.When my elder brother became a lawyer, I thought I should do something different, not become a lawyer. I remember my father used to tell me that having a Master’s degree was something very big and prestigious. And that stayed in my head. I decided to do my Master's in International Law and Constitutional Law..AA: But after your LL.M. you decided to teach instead of starting your practice. What was that experience like?.AKRJ: Yes, I became a lecturer in Madras Law College, to fulfil my father’s wish. My brother was also a part-time lecturer. In the history of Madras Law College, we were the first time that two brothers were lecturers at one point of time.I took up that post of a lecture because it was very prestigious. The salary was only 300 rupees per month and later it was increased to 400. One had to put in 8 to 10 hours of teaching every week. Back then, it was very prestigious, and 300 rupees meant was a lot of money during those days..AA: How did the district Judiciary come to you?.AKRJ: That is another story. It will seem unbelievable. In December 1985, an advertisement appeared inviting applications for direct appointment to the post of district judges. There were three vacancies. A friend of mine, a police officer, urged me to apply, but I was wondering if I would fit in a post tied down to a chair, from morning to evening. By the time I applied, the last date was already over.Obviously, my application was returned. The letter read said that if you are still interested, there are three more vacancies, applications are being invited and if so desired you may apply afresh. Again, I applied. The interview for that post was held in 1987 March. The then Chief Justice MN Chandurkar and four other senior-most judges were there in the interview board. It was a very fair process.When the list came, I had been selected. .AA: How was it being a district judge?.AKRJ: It was very interesting and very different from being a lawyer in the High Court. After my training, I was posted as an Essential Commodities Act judge. Every day, I used to have work just for two minutes. Some five bail applications would be in the list, since the maximum sentence that could be imposed was only two years. They were all bailable offences, so there was no possibility of denying bail. I was granting bail and would get done in two minutes.When a senior Madras High Court judge visited Madurai, I requested for more work. He said it was not possible because that court was constituted for a specific Central Act. The free time was used for updating international law, and in settling motor accident claims, assisting in the Lok Adalat. Within six months, I was posted as a Principal District and Sessions Judge in Dindigul..AA: What according to you, are some of the main challenges that district judges face?.One of the most troubling things, in my view, is confirmation of probation, fixation of seniority and promotions when they become due.Another challenge is that judicial orders are, at times, reviewed administratively. Therefore, to avoid such things, the district judges hesitate to do their duties fearlessly. If the magistrates and judges in the state judiciary perform their duties fearlessly, the burden on the higher courts will get reduced.There was a circular earlier to the effect that all orders granting bail for offences under Sections 302, 307, 375 and 397 of the Indian Penal Code (IPC) should be sent to the High Court the very same evening. Dismissal orders need not be sent. Due to this, the district judges stopped granting bail even for minor offences.But district judges are also judges. They must be given a free hand to follow the law and do what they feel is right and legal..AA: You were Law Secretary to the Tamil Nadu government from 1996 to 1999, when M Karunanidhi was the Chief Minister. How did that happen?.AKRJ: Yes, on July 30, 1996, I received a telephone call and I was asked if I would agree to join the government as Law Secretary. I agreed. Within two days, the GO was issued, and I joined on August 2, 1996..AA: During your tenure, you drafted the Anti-Ragging Bill, the Anti-Eve Teasing Bill and several other Bills that became laws. How was your tenure?.AKRJ: The Anti-Ragging Bill came to be drafted by me following the death of a medical college student of Annamalai University. He was murdered by a senior student pursuant to an incident of ragging.The Tamil Nadu Prohibition of Ragging Act 1997 is very severe. It fixes the accountability and responsibility on the college administration. When a student complains of ragging, the authorities are required to forward the complaint to the police station, failing which, the person responsible for the governance of the institution is arrayed as an abettor of the offence. The Act also says that those students proved guilty of ragging will be dismissed from the institution and they should not be admitted in any other institution.The difficulty arose when during drafting of the Bill, I was attempting to define ‘ragging’. No judgment from any court was available. Therefore, the burden was on me to draft an altogether new definition. It took me about 10 full days just to come up with the definition. I consulted former vice-chancellors, students, friends, educationists, high ranking police officers, my own officers and staff and the definition of ragging was finalised.Once the Act was brought into force, the menace of ragging came to a halt. This Act was a first of its kind. Eight States later adopted the Anti-Ragging Act.In 1997, a student of a women’s college was pulled down from a moving motor vehicle in front of the college and she fell down and died. After a few days, the Chief Minister M Karunanidhi called me on a Sunday evening and wanted an Anti-Eve Teasing Bill prepared. He expected the Bill in its final form by the next morning at 10 AM. Thereafter, the Bill was drafted by me and it was passed by the Assembly and came into force. The most challenging task I faced as the Law Secretary, was drafting ‘Tamil Nadu Protection of Interest of Depositors (in Non-Banking Financial Establishment) Act 1997 (TANPID Act). For decades together, fraudulent business organisations promising impracticable returns and lured people into investing money. The Chief Minister instructed me to make law to eradicate the menace. Though the depositors lost money, the promises of returns did not make it a crime under the Indian Penal Code. The lacuna was filled by drafting and making such acts a crime. A fast-track action was designed as found in The Criminal Law Amendment Ordinance 1944. The government was given power to attach the properties of those establishments and then to take them to the Special courts to be created, for further actions. The Special Court was conferred with the powers of both Civil and Criminal Courts. It is a signature legislation by Tamil Nadu. The validity of the Act was challenged ultimately in 2011 the Supreme Court sealed such challenges..AA: The Tamil Nadu Right to Information Bill was also drafted by you, and was subsequently merged with the Central RTI Act. You have expressed some strong views on RTI Act in its current form..AKRJ: When the Tamil Nadu State Assembly passed the Bill in 1996, that was the very first RTI Act in India. Parliament passed the RTI Act in 2000. Under the TN Act, whoever, bona fide requires any information that shall be given to him. The word bona fide, in my view, is very important. The information would be furnished without payment of any money.Under the present Central Act, anyone sitting in any corner thinks he or she is entitled to any random information. There are PIL activists who thing it is their right to get their hands on any kind of information.No government will be happy with RTI in its current form. I do not approve of the RTI Act in its current form.Suppose one’s promotion was delayed or stopped, he has the necessity and the right to know the reason. But why someone unconnected with the issue should get that information?Because of this, numerous PILs are filed before the courts and as a result, precious judicial time is spent in disposing such petitions. When the judges are burdened with such cases mostly relatable to administration, they are unable to concentrate on resolution of legal disputes inter se parties.Some judges are also happy to spend time on PILs without checking the bona fide. Whenever the judges pass some comments, the media publishes it and that will become news.The judiciary is there to adjudicate upon disputes. Most of the PILs are not resolution of ‘disputes’, but to direct the government or its officers to perform their duty..AA: Tell us about your elevation to the Madras High Court..AKRJ: In 1997, there were vacancies in the Madras High Court for judges and I could have become a judge then, but at the time, Justice MS Liberhan was the Chief Justice of the Madras High Court. During his tenure of one-and-a-half years, he did not recommend a single name for appointment as a judge of the High Court. Later, he served as Chief Justice of the Andhra Pradesh and Rajasthan High Court for one-and-a-half years each. And even there, it appears that he did not recommend a single name for appointment of judges of those High Courts. After him, Justice AC Agarwal from Bombay came as the Chief Justice and recommended my name for elevation. On September 29, 2000, I became a judge of the Madras High Court..AA: This brings me to your 2017 petition in the Madras High Court seeking a writ of mandamus, for addition of ten years of actual practise at the Bar to the pensionable service of those judges. You didn’t get a favourable judgement..AKRJ: Yes, I was very disappointed with the judgment. In Tamil Nadu, all judicial officers, after serving 20 years, get full pension.An advocate with 10 years of active practice, if directly elevated as a High Court judge, gets full pension after serving for just two years.But if an advocate, even after serving in the district judiciary for 20 years, gest elevated to the High Court, he or she needs to have completed 33 years of service to receive full pension.It was perhaps a mistake on my part in not approaching the Supreme Court directly..AA: There has always been much talk about the difference in the amount of money that judges make, and what a senior lawyer makes. Is there something lacking when it comes to the remuneration High Court judges receive?.AKRJ: I do not agree with those who say what the judges get paid is inadequate. If one wants to earn more money, they should not accept the judge post. The position or office of a judge was considered as a prestige. They commanded high respect in the society. One cannot aspire for both.Besides, now, judges are well paid. They get accommodation, electricity, telephone, household staff, medical facilities, car with driver, security in the house and personal security etc. What else the government can give?Ma be some senior lawyers earn a lot of money. But all lawyers do not earn so much. After accepting the judge’s office, one cannot think of more.Before 1975, judges used to get just 3,500 rupees per month. Not even dearness allowance; no car, no accommodation, no electricity, and no other perks. Yet they were devoted to their duty.Now one may want a Mercedes Benz or Audi car, but the government gives a Toyota.A judge has a higher calling. Judges have a big responsibility. A judge’s post is a constitutional one and it brings so much prestige. They get to make such a big difference in one’s life..AA: The death of a 17-year-old NEET aspirant in Tamil Nadu earlier this month, and the subsequent suicide of the deceased’s father, has started discussions across the State once again. NEET has become an issue again with the Chief Minister and the Governor speaking about it..AKRJ: NEET has always been an issue. I have maintained from the beginning that it is unconstitutional.First of all, as per the provisions of the Constitution, the Central government has no power to regulate any state university. There is a specific bar in Entry 44 Union List. Secondly, what is the need for such an examination? All along, the states were admitting students to medical colleges based on their own laws.By the 42nd amendment, Entry 11 State List was transported to Entry 25 of the Concurrent List. But Entry 32 State List remains as it is. It says regulation of universities lies with state governments alone.Admission of students into universities and conduct of examinations are the responsibilities of the universities and their regulation is exclusively a State subject. The Union government, therefore, cannot make laws over those matters according to the provisions of the Constitution. Further, there is a specific bar on the Central government on regulating Universities.Therefore, NEET is unconstitutional.That apart, the NEET notification was first issued in 2010. But at that point of time, there was no ‘law’ enabling such notification. A notification without an enabling law is a ‘dead notification’. Such a power was conferred only in 2014 by an amendment. A dead notification cannot get life or be revived by any subsequent legislation. The doctrine of ‘eclipse’ will not apply.The government issued some illegal notification. The Supreme Court directed it to be implemented, through its judgment by the bench headed by Justice Anil R Dave, on a PIL filed by Sankalp Charitable Trust. It was beyond the objects found in its memorandum of association. In my view, the petitioner had no capacity to file such a PIL..AA: The Central government says NEET is a great equaliser, given that there is one common examination for all students. Do you agree?.AKRJ: It is true that successive Union governments wanted to destroy the federal structure of the Indian Union. NEET militates against the federal concept. The Supreme Court has repeatedly held that the Constitution of India is federal in structure and India is a Union of States. India is not a single State. Everything cannot and may not be equalised.Students are studying in different syllabus - state board, CBSE, IB etc. NEET is conducted based on a central board. How can that be done? How is it an equalizer? Also, what is the guarantee that the exam is being conducted in the right manner? There are persons in states such as Uttar Pradesh who did not fare well in the school examinations and have scored high marks in NEET. How is that possible?There are reports every year that a full batch of students who took coaching from a particular coaching institute qualify for NEET. How does all this happen? There was some news recently that of the total 63,000 medical seats available in the whole of India, 61,000 had been bagged by students who had studied from one particular coaching institute. What does it convey?Parents of pupils spend lakhs of rupees on coaching classes. What is the point of studying plus two courses? Why should a student strive to get high marks in plus two examinations? Why should a student prepare for two or three years after passing plus two examinations? Is it not a waste of human resources, preparing for NEET for three years continuously? Is it not robbing the people of their resources, hard earned money? Families have lost their entire savings paying the coaching institutions for NEET..AA: If you are saying that the idea behind NEET is not as noble as the Central government would like one to believe, then what is the real agenda behind NEET?.AKRJ: The Union government’s only agenda behind NEET is to penalize the advanced states and to usurp the states’ powers of admitting its own students in their universities. By regulating the universities, the Union government wants to take away all the authority the state governments have over the universities established by the States, and to reduce states to mere municipal wards. And also to open the doors for foreign students and NRIs, as anyone can write this NEET.Tamil Nadu has the highest number of government medical colleges. These government colleges were built to ensure students from the State, especially those who are marginalised or underprivileged backgrounds, get an opportunity to become doctors who will serve in the State and improve the health system in the State.The State’s earlier method of admitting students to medical colleges based on their Class XII marks was a conscious policy decision, as it ensured a level playing field for all aspirants within the State. And it was working very well.Due to the wide accessibility and comparatively good quality of government schools in the State, Tamil Nadu always had quality medical college students and doctors.What NEET has done now is to test these students, not on their Class XII syllabus, but on their social and economic advantage or disadvantage. On the kind of access they have due to economic and other resources, to be able to afford for spending for coaching classes, to go on preparing year after year.