RAKESH KUMAR AGARWALLA & ANR. v. NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BENGALURU & ORS.

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A take decisions regarding mode of enrolment or admission of students, which we shall notice hereinafter. The above restriction in regulations making power of the Executive Council has been engrafted with purpose and object. The subjects which are mentioned under second proviso where prior concurrence of the Academic Council is required are all matters which are in domain of the Academic Council, thus, even though B strictly second proviso of Section 13(1) is not attracted when no regulations have been framed by the Executive Council but the object and purpose for conditioning the exercise of regulation making power of the Executive Council cannot be lost sight. Sub-section(3) of section 13 also contains a special provision which provides that where the Executive C Council rejects the draft of a regulation proposed by the Academic Council, the Academic Council may appeal to the Chancellor and the Chancellor, may, by order, direct that the proposed regulation may be laid before the next meeting of the General Council for its approval and pending such approval of the General Council it shall have effect from such date as may be specified in that order. Thus, Academic Council D regulations which even though rejected by the Executive Council can be allowed to operate by Chancellor and required to place before General Council for approval and after approval it shall be operated. The above provision indicates that in certain matters the recommendations of the Academic Council has been given prominence and as per sub-section(2) E of Section 13, the Academic Council shall have the power to propose regulations on all the matters specified in (a) to (h) as enumerated in the second proviso of sub-section(1) of Section 13. Thus, Academic Council can propose regulations on mode of enrolment and admission of students also.

51Copy pinpoint51. Now, we proceed to examine the other provisions of Statute to find out as to whether apart from provisions of Section 13 whether there are any other statutory provisions empowering the Academic Council to take decisions regarding admission of students. As noted above, Section 18 of the Act provides that composition, powers and functions of the authorities of the school subject to the provisions of the Act shall G be as specified in the Schedule. Clause 14 of the Schedule provides “subject to the provisions of this Act and the regulations, the Academic Council shall, in addition to all other powers vested in it, have the following powers namely:- “XXXXXXXXXXXXXXXXXX H

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OF INDIA UNIVERSITY, BENGALURU [ASHOK BHUSHAN, J.]

(7) to appoint committees for admission to the School; A XXXXXXXXXXXXXXXXXX (11) to make arrangements for the conduct of examinations and to fix dates for holding them; XXXXXXXXXXXXXXXXXX B (16) to perform, in relation to academic matters, all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of this Act and the regulations.”

52Copy pinpoint52. The above provisions in the Schedule specifically empower the Academic Council to appoint the committees for admission to the school. Admissions to the school, thus, were contemplated to be under the control of Academic Council and the appointment of committees was with the purpose to monitor and conduct the admission of the school. When the Act was enacted in 1986, no procedure was in place regarding admission and the Statute empowered the Executive Council to appoint committees for admission to the school. By virtue of Clause 14(16) with regard to appointment of committees for admission to the school, the Academic Council was to perform “all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of the Act”. Thus, the above statutory provision gave all incidental power to the Academic Council in relation to the admission. E

53Copy pinpoint53. Now, we contrast with the power given to the Academic Council with regard to admission to the school with that of the powers and functions of the Executive Council as given in Clause 9. The powers given to the Executive Council under Clause 9 can be divided in three parts (i) sub-clauses (1), (2), (3) & (9) relates to appointment and service conditions; (ii) sub-clauses (4), (5), (6), (7) & (8) relating to finance and properties and (iii) other contains clauses (10), (11) and (12). Clause (11) empowers the Executive Council to select a common seal for the school and sub-Clause (12) is a general power providing that Executive Council to exercise such other powers and to perform such other duties as may be imposed.

54Copy pinpoint54. We are left with only Clause i.e. sub-Clause (10) which is to the following effect:- “to appoint examiners and moderators, and if necessary to remove them and fix their fees, emoluments and travelling and other allowances after consulting the Academic Council.”

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55Copy pinpoint55. Shri Arvind Datar while referring to power of the Academic Council given in clause 14 sub-clause (11), which empower the Academic Council to make arrangements for the conduct of examinations and to fix dates for holding them, submitted that the said power relate to conduct of examination of various courses, which are run by the school. Sub- clause(10) of Clause 9 of Schedule has to be, thus, also read to mean that appointment of examiners and moderators is with regard to courses run by the school. It is relevant to notice that even the power to appoint examiners and moderators is with the condition, i.e., “after consulting the Academic Council”. When appointment of examiners by the Executive Council is by consultation of the Academic Council, how can in the mode and manner of the admission of the students, the Academic Council can be ignored. The Statutory Scheme of the Act as delineated above, thus, indicates that there is no specific power given to the Executive Council with regard to admission of students except the general power of the Executive Council as contained in Section 10 whereas the statutory provision of Clause 14 of the Schedule specifically empowers the Academic Council to appoint committees for admission to the school. Thus, the Statute contemplated admission to the school under the aegis of Academic Council. Sub-clause (7) of Clause 14 read with sub-clause (16) of clause 14 of Schedule clothes the Academic Council with all powers including mode and manner of admission of the students. Section E 11 of the Act also needs to be referred to. Section 11 of the Act provides that Academic Council shall be the academic body of the school and shall have power of control and general regulation of, and be responsible for the maintenance of standards of instruction, education and examination of the school. Section 11 used the three expressions namely “power of control”, “general regulation of” and “be responsible”. The expressions used in the Section 11 are “maintenance of standards of instructions, education and examination of the school. It is now settled law that the standards of education include admission to the course. The Constitution Bench of this Court in Dr. Preeti Srivastava and Anr. Vs. State of M.P. and Ors., (1999) 7 SCC 120 held that norms of admissions can have direct impact on the standards of education. In paragraph 36, following was laid down:- “36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms H

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of admission can have a direct impact on the standards of A education…………………”

56Copy pinpoint56. When the Academic Council has been given power of control, general regulations and is responsible for maintenance of standards of instruction, education and examination of the school, its one of the functions, undoubtedly is to regulate the admission of students. Reading B of Section 11 with Section 18 and clause 14 of the Schedule clearly provides for role of Academic Council in the admission of students.

57Copy pinpoint57. At this stage, we may also refer to the meeting of the Executive Council dated 29.08.1987 and 30.08.1987 relied by Shri Arvind Datar, learned senior counsel for the respondent No.1. The proceedings have C been brought on the record alongwith the counter affidavit of respondent No.1. Item No. 16 of the meeting dealt with selection of students. It is relevant to extract the item no. 16 of the proceedings which is to the following effect:- “Item No.16 Selection of Students D The draft proposal of the Academic Council to have the selection of the students done through an all India admission test and interview was approved. The procedure for admission test and the selection may be decided by the Academic Council and implemented by the Director. However, the Executive Council E disapproved the recommendation of the Academic Council to pay one way second class train fare to the students called for the interview. The Council noted the sample objective type question paper prescribed by the two experts on the request of Professor Upendra F Baxi. However the matter of finalising the test was left to the Academic Council and the Director. The Council noted the format of admission test provided by M/s/ R.C. Mishra and C.B. Dwivedi of Banaras Hindu University as the instance of Professor Upendra Baxi. The Council also noted the recommendations of Dr. Baxi to pay an honorarium of Rs.1,000.00 and to the two professors for G the work in this regard. The Council approved the payment accordingly of Rs.2,000.00 (Rs.1,000.00 to each) and authorised the Director to write thanking the professors for their contribution. For expenses involved in organising the test and interview, the Council approved a budget allotment of an amount not H

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A exceeding Rs.25,000.00. The Council further decided that the admission to the Ist Year LL.B. class be limited to 80 students and for LL.M. Class the admisison be limited to 10 students. The application fee for admission test and interview may be fixed at Rs.125.00 for LL.B. though it may be reduced to Rs.50/- in the case of SC/ST candidates.” B

58Copy pinpoint58. The above resolution of the Executive Council indicates that it was a draft proposal of the Academic Council regarding admission test, which was approved by the Executive Council. The next following sentence in the resolution is relevant “the procedure for admission test and the selection may be decided by the Academic Council C and implemented by the Director”. The respondent No. 1 himself has brought on the record the proceedings of the meeting of the Academic Council dated 12.12.1987 as Annexure R-1/2 where the mode of selection of the students to the LL.B. Programme was provided for. Thus, the above proceedings of Executive Council and Academic Council itself make it clear that the Executive Council was of the opinion that it is the Academic Council who is statutory authority regarding mode and manner of the admission of the students in LL.B. course. The above proceedings of the Executive Council dated 29.08.1987 and Academic Council dated 12.12.1987 fully support the submission of the learned counsel for the petitioners that it is the Academic Council who is empowered under the statute to take a resolution regarding admission of the students in the LL.B. Course.

59Copy pinpoint59. The authorities of the University exercise powers and functions as entrusted to them in the Statute. This Court in Marathwada University Vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132 F while considering the provisions of Marathwada University Act, 1974, the power of Vice-Chancellor and those of the Executive Council held that when a Statute prescribes a particular body to exercise a power, it must be exercised only by that body. In paragraph 20, following was laid down by this Court:- G “20. Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers H cannot include the power to take disciplinary action for their

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removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1) (xxix) of the Act. It is, therefore, futile to contend that the Vice Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power it must be exercised only by that body. It cannot be exercised by others unless it is delegated……………………”

60Copy pinpoint60. We, however, make it clear that Executive Council in its resolution dated 12.08.2020/18.08.2020 in exercise of general power of administration could have very well taken any resolution regarding completion of admission process but for implementing the decision of 12.08.2020/18.08.2020 of the Executive Council recommendation of Academic Council was required to be obtained regarding mode and manner of conducting separate admission tests by respondent No.1. The recommendation of Academic Council was necessary to be obtained for holding a separate entry test namely NLAT especially when respondent No.1 was proposing to hold the above test instead of admitting the students by CLAT from which common law admission test, admission in LL.B. course was being done for last more than a decade. When the respondent No.1 wanted to conduct NLAT as online home proctored test of 45 minutes containing 40 questions which mode and manner was different from earlier prescriptions, the recommendations of Academic Council were must. The proceedings of the Executive Council meeting, which has been relied by respondent No.1 dated 12.08.2020, the decision of the Executive Council was to the following effect:- “It was resolved unanimously that if there is a further delay in F CLAT, the Vice-Chancellor is empowered to take all necessary steps to ensure that the admission Process for 2020-21 is completed in September, 2020. NLSIU is authorized to run its own admission process and conduct an independent admission test if necessary if there is further postponement of the CLAT G exam.”

61Copy pinpoint61. On 18.08.2020 the Executive Council unanimously reaffirmed its resolution taken on 12.08.2020 to empower the Vice-Chancellor and the University to conduct an independent admission process in the event that CLAT 2020 is delayed further. The resolution was empowering the H

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A Vice-Chancellor to take all necessary steps. All necessary steps have to be understood as steps which are required to be taken as per the statute. When the Act, 1986 empower the Academic Council to take decision regarding admission of the students in LL.B. Course and with regard to mode and manner of conducting the admission test, it was obligatory for the Vice-Chancellor to have obtained the recommendations of the Academic Council. The Vice-Chancellor himself is the Chairman of the Academic Council and there was no difficulty and with regard to meetings of the Academic Council Clause 15 sub-clause (6) provides that if urgent action by the Academic Council becomes necessary, the Chairman of the Academic Council is empowered to permit the business to be transacted by circulation of papers to the members of the Academic Council.

62Copy pinpoint62. We, thus, are of the considered opinion that respondent No. 1 was required by the Statute to obtain recommendation of Academic Council before proceeding to hold NLAT by issuing admission notification dated 03.09.2020. We, thus, in view of the forgoing discussions, hold that admission notification dated 03.09.2020 issued by respondent No.1 could not have been issued without obtaining the recommendation to this effect by the Academic Council. Admission notification dated 03.09.2020 having been issued without recommendation of Academic Council is not in accordance with the provisions of Act, 1986 and is unsustainable. E QUESTION NO.3 Whether the respondent No.1 being founder member of Consortium of National Law Universities, a registered society, is bound by its Bye-Laws and was obliged to admit the students F for integrated B.A.LL.B. (Hons.) Programme through CLAT 2020?

63Copy pinpoint63. We have noted above the sequence of events leading into the creation of a Consortium of National Law Universities. A Memorandum of understanding was signed by seven, then existing National Law G Universities on 23.11.2007 to hold the Combined Admission Test to be organised by NLU on rotation basis on the basis of seniority. In November, 2014, in a meeting of Vice-Chancellors of National Law Universities, the decision was taken to constitute a Consortium of National Law Universities. The Consortium got registered as Society in Karnataka Societies Registration Act, 1960 on 26.03.2019. The Consortium in its H

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various meetings took decisions to streamline conduct of Common Law A Admission Test (CLAT) and for coordination and cooperation among NLUs. One of the aims and objectives of the Society as incorporated in Memorandum is to the following effect: - “V. To administer, control and monitor the conducting of all India common entrance examination for law i.e. CLAT, for and B on behalf of all the participating NLUs, and facilitate admission of students into various NLUs in the country.”

64Copy pinpoint64. The aims and objectives further disclosed that the Consortium aims to make the benefit of legal education of one or more NLUs to the rest of the NLUs. C

65Copy pinpoint65. Clause 3 deals with the governance of the society. Clause 3.3 provides that the society shall exercise powers and perform functions as enumerated therein. Clause 3.3.5 provides that the society shall organise Common Admission Test for UG, PG, Doctoral, Post-Doctoral courses for the National Law Universities across the country. Clause 3.3.6 D provides that society shall provide a platform for admission to all National Law Universities in India through CLAT for UG and PG Law courses if such National Law Universities become the members of the society.

66Copy pinpoint66. The President and Vice-President under the bye-laws are to be elected at the annual meeting of the governing body. As per Bye- E Laws clause 12.1, Vice-Chancellor of National Law School of India University, Bangalore shall be ex-officio Secretary Treasurer of the society. Bye-law 15 deals with “Membership” whereas bye-law 15.3 contains heading “Requirement of Membership”. Bye-Laws 15.3.1 and 15.3.3 which are relevant are as follows: - F “15.3.1. The obligation of membership is to ensure that the Member institution reflects the core values and standards set by the Consortium according appropriate respect for the autonomy of its Member institution. ………… …………… ……………… …………… G 15.3.3. In order that appropriate intellectual rigor may be maintained, a Member institution shall ensure that admission to every academic course or programme of study in each Member institution shall be based on merit assessed through a transparent and reasonable evaluation namely CLAT operated by the Society, H

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A prior to admitting any student. Provided that nothing in this provision shall be deemed to prevent a Member institution from making special provisions for the employment or admission of women, persons with disabilities or for persons belonging to any socially and educationally backward classes of citizens and, in particular, for the Scheduled Castes and the Scheduled Tribes.” B

67Copy pinpoint67. A perusal of Memorandum of Association and Bye-Laws indicates that laudable objects for which National Law Universities came together stood cemented by consortium being registered as a society. As on date, there are 23 National Law Universities which are part of the Consortium. We have noticed above that the respondent No.1 was C the first National Law University which came into existence by Act, 1986 of Karnataka Legislature. Other States followed the suit creating National Law Universities. Different National Law Universities established in different parts of the Country have contributed immensely to the cause of legal education.

68Copy pinpoint68. National Law School of India University, Bangaluru from the beginning shouldered the leading role in conduct of CLAT. Different National Law Universities have been established by different statues and have statutory functions and obligations to achieve a common purpose and to give a boost to legal education in the country. They have themselves imposed obligations on them to be a part of the Consortium for a common cause. CLAT being an All India Examination for different National Law Universities has achieved its own importance and prominence in legal education. The steps taken by National Law Universities to form a Consortium and to cooperate with each other in conduct of CLAT is towards discharge of their public duty entrusted under the different statutes. The duty to uphold its integrity lies on the shoulder of each and every member.

69Copy pinpoint69. Thousands of the students who aspire to have a career in law look forward to the CLAT as a prestigious test and CLAT has proved its usefulness and utility in this country. Students look forward to the G Consortium for providing correct and fair assessment of the merits of the students. The bye-laws under which members are required to admit the students in their law universities on the basis of the CLAT for UG and PG law courses are binding on the members. Bye-Laws although are non-statutory but they have been framed with the aim and object to H be followed by its members.

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70Copy pinpoint70. Even though obligations on members of Consortium under the A Bye-Laws are not statutory obligations but those obligations are binding on the members. All members occupying significant and important status have to conduct in fair and reasonable manner to fulfill the aspirations of thousands of students who look on these National Law Universities as institutions of higher learning, personality and career builders. Further B the statutes under which National Law Universities have been established cast public duties on these NLUs to function in a fair, reasonable and transparent manner. These institutions of higher learning are looked by society and students with respect and great Trust. All NLUs have to conduct themselves in a manner which fulfills the cause of education and maintain the trust reposed on them. C

71Copy pinpoint71. Shri Datar submits that Bye-Laws are in the nature of contract between the society and its members. Shri Datar also referred to the judgment of this Court in Hyderabad Karnataka Education Society versus Registrar of Societies and others, (2000) 1 SCC 566. This Court in the above case had occasion to consider Karnataka Societies D Registration Act, 1960, under which the Consortium has been registered. The submission was made before this Court that Bye-Laws of the society bind both the parties with which submission this Court expresses its concurrence. In paragraph 28, following was observed:- “28. Before leaving the discussion on this point, we may mention E that learned senior counsel for the appellant, Shri Sanyal, placed reliance on some of the decisions of this Court in T.P. Dover v. Lodge Victoria No. 363, S.C. Belgaum [1964] 1 SCR 1, The Co- operative Central Bank Ltd. and Ors. v. The Additional Industrial Tribunal, Andhra Pradesh and Ors. , Kulchhinder Singh and Ors. v. Hardayal Singh Brar and Ors. and Takraj Vasandi Alias K.L. F Basandhi v. Union of India and Ors. on the full Bench judgment of the Andhra Pradesh High Court in the case of Sri Kanaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju AIR (1990) (77) A.P. 171, and contended that bye-laws of a society are a contract between the parties and bind both the parties. That G may be so, however, the question remains whether an illegal bye- law or an illegal contract for that matter can bind any of the contracting parties....”

72Copy pinpoint72. The Court in the above case was concerned with legality of Rule 7A, in the present case; we are not concerned with the challenge H to any rule of the Consortium.

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73Copy pinpoint73. Shri Datar has contended that by accepting the membership of Consortium, the autonomy of its members is maintained. He has referred to Bye-Law 15.3.1 which we have already extracted above. Bye-Law 15.3.1 itself contemplates that the obligation of membership is to ensure that the member institution reflects core values and standards set by the Consortium according appropriate respect for the autonomy of its member institution. The autonomy of member institutions does not in any manner come in the way of holding the Common Law Admission Test(CLAT). Every institution maintains its autonomy as per the statute governing, the obligation to maintain core value of the Consortium in no manner affect the autonomy of the member university. The core values of the Consortium aim to enhance the prestige and content of legal education. Legal education has a pivotal role in the development of the society and regulating the inter se relations between the members of the society.

74Copy pinpoint74. This Court had an occasion to consider the challenge to National D Eligibility cum Entrance Test(NEET) for admission in Medical course in Transferred Case(Civil) No.98 of 2012, Christian Medical College Vellore Association versus Union of India and others. A Pertinent observation has been made by this Court in paragraph 55 in the following words: - “55...Building the nation is the main aspect of education, E which could not be ignored and overlooked. They have to cater to national interest first, then their interest, more so, when such conditions can be prescribed for recognition, particularly in the matter of professional education.”

75Copy pinpoint75. This Court in the above case has held that holding of National F Eligibility cum Entrance Test is a National Interest. What was observed by this Court with regard to NEET is equally applicable to the CLAT. To conduct a Common Law Admission Test for all the Law Universities is both in the national interest as well as in the interest of the education. We have already noticed that it was on a writ petition by a student “Varun Bhagat”, the idea of a Common Law Entrance Test emerged G after discussion with Government of India, Law Universities, etc. and other stakeholders. It was with a lot of discussion, deliberation that the Common Law Admission Test could come into existence. We have come a long way with the Common Law Admission Test which has to be further strengthened and streamlined. H

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76Copy pinpoint76. This Court time and again has emphasised the importance A and usefulness of Common Admission Test for group of institutions imparting same or similar education. This Court held that such Common Test fulfils twin objects of transparency and merit. The Constitution Bench of this Court in P.A. Inamdar and others vs. State of Maharashtra and others, (2005) 6 SCC 537, in paragraphs 136 and B 138 laid down following: “136…………There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of C such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common D Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.

138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.”

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77Copy pinpoint77. Shri Arvind Datar, learned counsel appearing for the respondent No.1 has fairly submitted that the respondent No.1 is still a member of Consortium and has not gone out of Consortium and NLAT conducted by it is only for the present Academic Year to avoid this Academic year as a ‘Zero Year’. He submits that insofar as next academic year the respondent No.1 shall admit students on the basis of result of CLAT. B Shri Datar has referred to the unique system of trimester which is operating in the respondent No.1 University. Shri Datar has further submitted that unless the Under-Graduate law course was not started by 18.09.2020, respondent No.1 would not have been able to complete its trimester.

78Copy pinpoint78. In the counter affidavit filed by the respondent No.1, details of the Trimester is given and proceeding of Academic Council dated 12.12.1987 has been brought on record as Annexure-R-1/2 in which Academic Council has taken the decision on academic terms in following manner: - D “(b) Academic Terms: Each Academic year be divided into 3 Academic terms each with a minimum of 70 working days. This academic term be called a Trimester. Thus the 5-year B.A.LL.B(Hons.) Programme will have 15 Trimesters. It is suggested that the Academic year may E begin from 1st July and the Academic terms may adopt the following pattern: - i) FIRST TRIMESTER — July 1st to September 30 ii) SECOND TRIMESTER — October 1 to January 15. F iii) THIRD TRIMESTER — January 30 to April 30.”

79Copy pinpoint79. As per Academic Council’s above decision, each Academic year is divided into three Academic terms called Trimester with a minimum 70 working days.

80Copy pinpoint80. Shri Sajan Poovayya,learned counsel appearing for the G respondent No.2, has explained that for completing three trimesters, 285 working days are required. He submits that 210 days is for teaching in all the three semesters, 36 days shall be three Sundays in each three months term, 24 days for Government holidays, etc. in three months and 15 days for evaluation and assessment, totalling to 285 days. H

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81Copy pinpoint81. It is true that respondent No.1 University follows a unique A system of Trimester, each semester has 70 teaching days per three months term. The first Trimester as per resolution of academic council was to begin on 01.07.2020 and was to end till 30th September, 2020. This period of three months is not available for respondent No.1 to start the first semester. The entire country is struggling with Pandemic Covid-19 from B March 2020. Loss in the academic year is for all Universities in the Country. The Academic Calendar of each University stood disrupted by Covid-19. None of the Universities have declared the year as a ‘zero year’.

82Copy pinpoint82. The University Grants Commission being aware of the consequences of Covid-19 Pandemic has issued guidelines on the C examination in the Academic Calendar. In the guidelines dated 29.04.2020 with regard to Academic Calendar for the Session 2020-21, following has been provided:- “4. Academic Calendar for the Session 2020-21 D Several School Boards are yet to complete their Class XII Examinations, as of now. Examinations for the Even Semester in the universities are also getting delayed due to national lockdown. Naturally, all these things will delay the admission process in the university system for the next academic session. In order to tackle this situation, the universities may require some amendments in their academic calendar for the academic session 2020-21.”

83Copy pinpoint83. As provided by UGC guidelines which guidelines have been continued by subsequent guidelines dated 06.07.2020, the UGC expected the Universities to carry on some amendments in their academic calendar for the session 2020-21. The Universities are not powerless to modify their Academic Calendar looking to the pandemic. The Academic year 2020-21 is not a normal academic year in which Universities are expected to carry on their teaching and other activities in normal mode and manner. The respondent No.1 University could have very well found out ways and means to start the academic Under-Graduate Law course even if it starts in mid of October 2020 after conduct of the CLAT on 28.09.2020.

84Copy pinpoint84. The counter affidavit filed by the respondent No.3, has suggested various alternatives to be adopted by the Universities to modify their academic year in paragraph 51 and 52. It is suffice to observe that it is for the respondent No.1 to take appropriate decision in the above regard.

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85Copy pinpoint85. We may also notice one more submission of Mr. Datar at this stage. Shri Datar submits that holding of separate exam has become a sheer necessity and not with the intention to violate the Consortium Bye- Laws. He reiterated his submissions that to avoid the academic year 2020-21 to be declared as ‘zero year’, the respondent No.1 proceeded with a separate exam. B

86Copy pinpoint86. We are not persuaded to accept the submission that “Doctrine of Necessity” was applicable in the fact situation of the ongoing pandemic. As noted above, UGC in its guidelines dated 29.04.2020 has already asked all the Universities to modify their academic calendar for the academic year 2020-21. The UGC being the body to maintain standard C of education in the entire country and having contemplated for suitable amending the academic year, “Doctrine of Necessity” does not arise. We thus conclude that being members of the Consortium respondent No.1 ought not to have proceeded with holding a separate test namely “NLAT” nor the academic year 2020-21 be required to be declared as D “zero-year” even if the course starts in the mid of October, 2020. QUESTION NO.4 WHETHER ONLINE HOME PROCTORED EXAMINATION AS PROPOSED BY NOTIFICATION DATED 03.09.2020, LACKS TRANSPARENCY, WAS AGAINST THE E VERY CONCEPT OF FAIR EXAMINATION AND VIOLATIVE OF THE RIGHTS OF THE STUDENTS UNDER ARTICLE 14 OF THE CONSTITUTION?

87Copy pinpoint87. With regard to admission notice dated 03.09.2020, respondent No.1 University issued Press Release NLSIU admission 2020 on F 04.09.2020. Clause 4.4.2 of notice dated 03.09.2020 provided that the test shall be an online entrance examination to be held on 12.09.2020, the candidates will attempt the examination using a Computer device at their respective locations. Paragraph 4.4.2 is as follows: - “4.4.2. Candidates who have submitted a valid application G form will be required to appear for the NLAT. The Test shall be an online entrance examination to be held on 12.09.2020. Candidates will attempt this examination using a computer device at their respective locations. Candidates will have to ensure that they can appear for the examination on the appropriate date and time using a computer device as per the detailed specifications H

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that will be provided, including video and audio inputs. NLSIU A shall not be responsible for any connectivity issues, or failure of internet connection during the examinations. NLSIU reserves the right to cancel any candidate’s examination based on misconduct or examination malpractice.”

88Copy pinpoint88. The notification for technological/system requirement for B NLAT 2020 was issued by the University which provided following among other requirements:- “1. Supported Devices: Desktop computers and laptop computers only (the use of tablets and other mobile devices, including phones shall not be supported nor permitted in the NLAT C 2020.

2. Operating System: Window 7 or above (Windows 10 recommended) (Examination system will not run on any other operating systems, such as Mac OS, Linux, etc.)

3. Minimum Configuration: Processor: Core 2 Duo and above; D Processor speed: 1.5 GHz and above; RAM: Minimum 1 GB.

4. Browser: Google Chrome(84.0.4147.135 or later) only. Click here to download the latest version of Google Chrome.

5. The user account must have administrator privileges to install E required applications.

6. Pop-up blockers on the web browser must be disabled.

7. Java Script must be enabled.

8. Antivirus must be disabled. F

9. Minimum Internet Bandwidth: 1 Mbps minimum; the remote proctoring software streams exam data, including audio and video, directly to the cloud as you take the NLAT 2020. In order to allow the continuous transfer of exam data, the specified minimum connection speed must be maintained at all times...” G

89Copy pinpoint89. In pursuance of notice dated 03.09.2020, 24,603 Candidates have applied and only 23,225 have appeared in the test. For CLAT 2020, above 69,000 students have registered for Under-Graduate law course.

90Copy pinpoint90. The first leg of challenge which has been raised by the petitioner is to home proctored test as notified by respondent No.1, it is H

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A submitted that home proctored test does not fulfill the requirement of fair and transparent test which was expected for a premier law University. The petitioners in this reference relies on the affidavit of respondent No.2, Prof.(Dr.) Sudhir Krishnaswamy which he filed in Writ Petition(Civil) No.4848 of 2020, V.Govinda Ramanan versus Consortium of National Law Universities and Anr. filed in Delhi High Court. The B respondent No.2 as Secretary of the Consortium filed the counter affidavit on behalf of Consortium of National Law University in Delhi University sworn on 25.08.2020. The writ petitioner in the said writ petition claimed that he should be permitted to appear in examination from his home. The counter affidavit pleaded that conducting computer based online centre based test is legal. Opposing the home based online test, respondent No.2 made following statement in paragraph 17 and 18 of the affidavit:- “17. It is submitted that a home based online test for around 78,000 students would not be possible as the test will be completely compromised and may even be manipulated by the participants or coaching centres.

18. Respondent No.1 has over several meetings discussed and assessed the feasibility of conducting CLAT-2020 through various modes including the mode suggested by the Petitioner herein. After due consideration, Respondent No.1 has determined that an online test at home with technological measures cannot ensure transparency, fairness and the integrity of a high stakes examination process such as CLAT.”

91Copy pinpoint91. The respondent No.2 had categorically taken the stand on behalf of the CLAT that online test at home with technological measures cannot ensure transparency and the test will be completely compromised and may even be manipulated by participants and coaching centres. There was no reason for change of mind by respondent No.2 within a week. Affidavit was sworn on 25.08.2020 by respondent No.2 and on 03.09.2020 after a week, notification was issued for conducting NLAT permitting participants to join online examination sitting at their home. G When something was not to be permitted, when home based online test could not have been permitted for CLAT-2020, the same test can also not be permitted for NLAT-2020.

92Copy pinpoint92. We thus find substance in the submissions of the petitioner that permitting of home based online test could not have ensured H

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transparency, fairness and integrity of the examination especially when the test was to be conducted for entrance into a premier Law University of the country.

93Copy pinpoint93. We may notice another submission of the petitioners in this regard. Petitioners’ case is that due to a short period of notice to apply and due to technological requirement, a large number of students especially belonging to marginalised sections of the society were unable to apply within the time allowed by NLAT. The requirement of fulfilling technological support as envisaged by NLAT as noticed above could not have easily been procured by a large number of students.

94Copy pinpoint94. In the proceeding of the faculty meeting dated 06.08.2020 C brought on record by the respondent No.1 along with his counter affidavit as Annexure-R-1/10, it has been mentioned that “NSLIU is the first preference for more than 60 percent of CLAT applicants”. About 69,000 students have registered for CLAT-2020. 60 percent of 69,000 comes to 41,400. The registration into NLAT being only 24,603 out of which only 23,225 could appear makes it clear that a large number of students who could have wanted to apply for admission in respondent No.1 University could not even apply due to shortage of time and technical requirement insisted by respondent No.1 University. The above figures fully support the submissions of the petitioner that a large section of the students especially belonging to marginalised sections of the society were denied the opportunity to appear in the examination.

95Copy pinpoint95. We thus conclude that home based online examination as proposed by the respondent No.1 University for NLAT-2020-21 could not be held to be a test which was able to maintain transparency and integrity of the examination. The short notice and technological requirements insisted by the University deprived a large number of students to participate in the test violating their rights under Article 14 of the Constitution of India. QUESTION NO.5 WHETHER NLAT HELD ON 12.09.2020 WITH RE- G TEST ON 14.09.2020 WAS MARRED BY MALPRACTICES AND DESERVES TO BE SET ASIDE.

96Copy pinpoint96. Petitioners have submitted that examination held on 12.09.2020 as well as re-test held on 14.09.2020 was marred by several malpractices which proved that the apprehensions of the petitioner were true. H

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97Copy pinpoint97. Shri Gupta highlights the various shortcomings in proctoring protocol. Shri Gupta has also referred to the Press Release dated 14.09.2020 by the respondent No.1 where Press Release stated “thereafter, it appears that some candidates have copied the questions and circulated this on some messaging apps and emails after logging in.” Shri Gupta submits that even after noticing the aforesaid fact the Press B Release further states that “while this is a malpractice under NLAT proctoring guidelines, it does not affect the integrity of the exams as questions were already available to all candidates after logging in.”

98Copy pinpoint98. Shri Gupta submits that if the candidates are able to send questions through messaging apps and emails obviously they could receive C the answers as well. Further, Shri Gupta has referred to the Press Release dated 15.09.2020 by the respondent No.1 where University has stated that “some case of examination malpractices deserves criminal investigation and University has already lodged criminal complaints against some actors”.

99Copy pinpoint99. Shri Arvind Datar has strongly refuted the above submission and has referred to the sur-Rejoinder affidavit filed by respondent No.1 where details of technological measures taken by NLSIU for NLAT 2020 has been explained.

100Copy pinpoint100. It is submitted that extensive technological and other measures are implemented to ensure that any candidate attempting any form of malpractices is caught and disqualified from the process either during the exam itself or after the post examination during audit and scrutiny.

101Copy pinpoint101. Shri Datar submits that NLAT 2020 has made use of a combination of Artificial Intelligence and human Proctoring. It is further submitted that in order to give full effect to human and Artificial Intelligence proctoring measures available post examination, respondent No.1 appointed a leading audit firm to carry out an independent forensic audit and assessment of data relating to the examination and submit the report. He submits that care and precautions were taken by University G for conduct of free and fair test and on the basis of some media reports and few materials brought on record, it cannot be concluded that the examination is marred by malpractices especially in proceeding under Article 32 of the Constitution.

102Copy pinpoint102. After having considered the above submission of the learned counsel for the parties, we are of the view that for the present case, it is H

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not necessary for this court to enter into various materials referred to by A the petitioners and the reports and to decide as to whether malpractices were actually adopted in the examination or not. Respondent No.1 being premier University, we have no doubt that it must have taken all necessary precautions to avoid any malpractices and cheating in the examination.

103Copy pinpoint103. As noted above, the University has also filed a complaint of B Cyber Crime which may be inquired in accordance with law. We need not express any opinion in this proceeding under Article 32 with regard to the aspect of malpractices in the test conducted on 12.09.2020 and 14.09.2020 which is essentially a matter of scrutiny of facts and evidence.

104Copy pinpoint104. In view of the foregoing discussion, we are of the considered opinion that Admission notification dated 03.09.2020 issued by respondent No.1 was not in accordance with law and deserves to be set aside.

105Copy pinpoint105. The CLAT examination is already fixed for 28.09.2020 which needs to be conducted on the said date without fail after following all necessary protocols for safety and health of the students and after following the Standard Operating Procedures issued by Ministry of Health and Family Welfare (MoHFW) and Ministry of Human Resource Development(MHRD).

106Copy pinpoint106. We further notice that after the issuance of notification dated 03.09.2020 by the respondent No.1, the meeting of the governing body of Consortium of National Law Universities was held on 05.09.2019 where decision was reiterated to hold CLAT 2020 on 28.09.2020. The governing body further resolved to divest functions of respondent No.2 as Secretary and Treasurer of the Consortium with the immediate effect and in the interim period appointed Professor Faizan Mustafa, senior most member of the Consortium and past President to discharge all the administrative and secretarial functions of the Consortium. The governing body also resolved to shift the Secretariat of the Consortium to the NALSAR University, Hyderabad.

107Copy pinpoint107. We have found that separate admission notice dated 03.09.2020 issued by the respondent No.1 being unsustainable. We are of the view that Status quo ante as on 05.09.2020 should be restored as early as possible i.e. by restoring the respondent No.2 as Secretary of the Consortium as well as restoring the Secretariat of the Consortium to NLSIU, Bengaluru. The governing body may take the decision keeping in mind that CLAT examination scheduled on 28.09.2020 be smoothly H

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A held. The respondent Nos.1 and 2 are also to cooperate with the holding of CLAT scheduled to be held on 28.09.2020.

108Copy pinpoint108. In result of the foregoing discussion, we allow the writ petition in the following manner: - (I) The notice for admission to the five year integrated B B.A.LL.B(Hons.) programme 2020-21 dated 03.09.2020 Annexure -P 14 as well as Press Release on NLSIU admission 2020-21 dated 04.09.2020 Annexure-P 15 are quashed. (II) The respondent No.3 is directed to conduct the CLAT-2020 examination on 28.09.2020 taking all precautions and care for health of the students after following the Standard Operating Procedures (SOPs) of the Ministry of Health and Family Welfare (MoHFW) and Ministry of Human Resource Development(MHRD). (III) The respondent No.3 shall also ensure that the entire process of declaration of the result be completed as early as possible to enable the respondent No.1 and other National Law Universities to start their course by the mid of October-2020. (IV) The respondent No.1 shall also complete the admission of B.A.LL.B(Hons.) programme 2020-21 on the basis of the result of CLAT-2020. (V) The respondent No.3 may take decision at an early date restoring the status of respondent No.2 as the Secretary-Treasurer of the Consortium as well as restoring the Secretariat of the Consortium as to NLSIU, keeping in mind that scheduled exam of CLAT-2020 on 28.09.2020 is not hampered in any manner.

109Copy pinpoint109. In view of our above order passed in the Writ Petition (Civil) No.1030 of 2020, no orders are required in SLP(C) No.11059 of 2020. SLP is disposed of.

G Divya Pandey Matters disposed of.