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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 285
September 1, 2012

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Legality and reality of Medical admission: A constitutional analysis

Md. Ashraful Alam


The new procedure for admission in medical colleges on the basis of GPA obtained in SSC and HSC without any admission test has brought an acid protest by the students, candidate for medical admission. The fact is now before the apex court for taking decision whether it should continue the traditional procedure of admission test or to be the new procedure. There have both positive and negative side of the new procedure. Although it is argued that the new procedure will facilitate admission without any monetary harassment of guardians by coaching business as taken in HSC admission, but admission in intermediate college and admission in medical college are not same. There are a lot of protests by the candidates, may be with support of coaching center or may be in own motion of the students themselves. This writing is only to highlight the matter for consideration of all concerned.

Therefore, I would like to draw the attention of all and sundry on two points. First one is equality before law and second one is reasonable classification. The first point as the equality before law is expressly provided by Article-27 of Bangladesh constitution and the second point of reasonable classification is a judicial invention through golden rule of interpretation.

Equality before law and equal protection of law as provided by Article-27 of the constitution is a guarantee in equal circumstance. The article ensures equality among equals and not equality among unequal. For example, the new procedure of medical admission on the basis of HSC and SSC GPA for all students is an equal treatment as per the article. But the question of inequality arises when admission is allowed with different Grade points. In this case what should be the answer? Is it equal treatment or inequality? Although our constitution states about equality however it does not debar the application of reasonable classification. The concept of reasonable classification has created one of the basic milestone in application of equality before law and equal protection of law.

There are a number of judicial precedents as to the application of reasonable classification in equal treatment as provided by article-27. The Court applied the doctrine considering two facts. Firstly, the constitutionality of a statute and secondly, reasonableness of its application. On first point, court justified a statute in standard of consistency with the constitution. Therefore, if a statute is seen to be inconsistent with the constitution, it can be in no way justified under the doctrine of reasonable classification. On second point, court justified the fact whether it was reasonable or not? Now, this is a crucial issue as to determine the standard of reasonable classification. If we analyze some case laws, it may be helpful for us to determine a standard of reasonable classification.

The issue took a judicial interpretation in “Nargis Mirza's case in Calcata High court of India, popularly known as Air Hostess case. Nargis Mirza, an Air Hostess in the Indian Airlines who challenged certain provisions of their service rule wherein an Air Hostess could continue in the job up to 35 years of age, but can be terminated if she gets married within 4 years of her recruitment or her first pregnancy which ever is earlier. When the matter went to Supreme Court, the Supreme Court struck down the condition of terminating the service of the first pregnancy as unreasonable and invalid. The Supreme Court held that the Air hostess not to have any children which is against the human nature. But the validity of the rule for not allowing to get married for 4 years immediately after joining was upheld due to the exigencies of services.

The Court held that this condition is reasonable as per the nature of the job. I've taken this leading case to show that medical college produce doctors who are not man rather second God to save life of human being. By nature it requires some special, meritorious, calculative, sharp and energetic students to be made for service. Can only GPA of a student obtained in HSC and SSC be a basis to declare him eligible for medical admission?

There is another glaring observation of the High Court Division of Bangladesh Supreme Court in- Hamidul Hoq Chowdhoury v. Bangladesh. 34 DLR.190(1982). Honorable Justice of the High Court Division very aptly clarified the concept of equality before law and reasonable classification. At para 11 and 12 it was stated “Equal protection under the constitution means the right to equal treatment in similar circumstance …..Harmony is to be established between a statute seeking the welfare of the community and fundamental right and to that end the executive is authourised to make a reasonable classification as to the subject matter of the statute. The reasonableness is justifiable by the Supreme Court and must be judged by the standard of an ordinary prudent and reasonable man. It should be determined by intelligent differentia which would be available firstly in the statute or by external evidence”. There are two determiners as to standard of reasonable classification under article-27. First, it should be reasonable in consideration of a prudent and reasonable man. Second, it should be justified by external evidence.

On first point, it should be reasonably thought as prudent man whether the scope of medical admission on GPA of HSC and SSC will facilitate admission rather facilitate a new way to do corruption in medical admission. It should be kept in mind that where there is already example of corruption even after admission test, what may be admission without test. I think the answer may not be known to God himself as we have the champion trophy of corruption continuously.

On second point, the court should justify the classification on the basis of external evidence. Therefore, I would like to bring to notice of all on some external factors. Firstly, a student who could not got a high GPA in HSC or SSC due to his illness or any other factors, should he be deprived of the opportunity of proving his quality in competition? Moreover, the education system in Bangladesh is not enough to justify merit of a student only in HSC level. Therefore, on what basis it should be reasonable to decide medical admission without admission test? Secondly, principle of natural justice demands that no person should be condemned unheard. There was no previous notice as to the matter that the medical admission would be on the basis of GPA. Had there been any previous notice, the candidates might have prepared them in such way. Therefore, this sudden decision will deprive not only the meritorious students but also violate the second principle of natural justice. Thirdly, the executive may show cause in response of the High Court Division that the decision has taken on an objective basis to prevent coaching business. But who can give surety that the new procedure will not facilitate a new admission business?

There goes a saying, “power corrupts, absolute power corrupts absolutely”. This system will create another new door (not widow) of corruption in war of merit as rooted not only in our culture but also in our valley.

Now, the apex court is the last resort to decide this crucial issue. If the court does not take right decision, it will paralyze our medical service which will affect the right to health (i.e. right to life) in Bangladesh. Rule of law should not be imperilled under the ill prepared surgeons' knife.

The writer is Senior Lecturer, Department of Law, Uttara University.


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