Four notifications, two dated 21.12.2010 and the other two dated 31.5.2012, issued by the Medical Council of India and the Dental Council of India, were the subject matter of challenge in CMC, Vellore v. Union of India, (2014) 2 SCC 305. CJI Altamas Kabir held that the notifications were ultra vires the provisions of Articles 19(1)(g), 25, 26(a), 29(1) and 30(1) of the Constitution. Hon’ble Justice Anil R. Dave could not “persuade” himself to “share the same view”. He vitally observed: “A student, who is good at studies and is keen to join the medical profession, will have to visit several different States to appear at different examinations held by different medical colleges or institutes so as to ensure that he gets admission somewhere. If he appears only in one examination conducted by a particular University in a particular State and if he fails there, he would not stand a chance to get medical education at any other place. The NEET will facilitate all students desirous of joining the medical profession because the students will have to appear only at one examination and on the basis of the result of the NEET, if he is found suitable, he would be in a position to get admission somewhere in the Country… If only one examination in the Country is conducted and admissions are given on the basis of the result of the said examination, in my opinion, unscrupulous and money minded businessmen operating in the field of education would be constrained to stop their corrupt practices and it would help a lot, not only to the deserving students but also to the nation in bringing down the level of corruption.”
Prefatory words in a dissenting opinion is usual. For instance, Hon’ble Justice Krishna Iyer said once, “great deference and complete concurrence would have otherwise left us merely to say ‘we agree’, to what has fallen from the learned Chief Justice just now, but when basic principles are assailed with textual support, academic backing and judicial dicta, speech, not silence, is our option.” Dave Saab, in his dissent, had none of that flourish. He plainly admitted of having “run against time… as the CJI was to retire within a few days”…
The Headline, Times of India, 19.07.2013:
999 Days Later… The Headline, Times of India, 12.04.2016:
Hon’ble Anil R. Dave pronounced the Reportable Order of the Bench comprising His Lordship, Hon’ble Justice A.K. Sikri, Hon’ble Justice R.K. Agrawal, Hon’ble Justice A.K. Goel and Hon’ble Justice R. Banumathi. The Judges confessed “there was no discussion among the members of the Bench before pronouncement of the Judgment” in CMC, Vellore. Review Petitions were thus allowed.
The issue of ‘discussion’ before the pronouncement of a Judgment seems important. Lokur Saab indicated the same while adjudicating on the NJAC. Should a Judge always have the benefit of knowing what the Bench has thought and nearly concluded? If you say yes, you would have to side Ray J. in The Bharti Judgment. If you say no, you would side CJI Sikri who paraded a parchment as the “View of the Majority“.
We return to the 70’s, for that is where the Truth Lies.