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Case Analysis: Rakesh Kumar Agarwalla v/s National Law School of India University, Bengaluru

Background of facts:
National Law School of India University (NLSIU), a member of CLAT Consortium announced its own entrance test NLAT, via press release on 3rd of September, 2020 as CLAT postponed several times due to various reasons including lock down in some states. NLAT was challenged in Jharkhand High Court on 4th September. The Court dismissed the petition on 11th September. Meanwhile, separate proceedings were initiated in Supreme Court. On 11th September, Supreme Court allowed the conduct of NLAT on 12thSeptember, provided that the results would be subjected to its subsequent orders. Hearings through video-conferencing took place on 16th and 17th. Judgment was reserved on 17th and pronounced on 21st of September.

Decided date: 21st September 2020
Parties: Petitioner - Rakesh Kumar Agarwalla & Anr.
Respondent - National Law School of India University, Bengaluru & Ors.
Court: Supreme Court of India
Citation: Writ Petition (Civil) No. 1030 of 2020
Bench : Ashok Bhusan, M.R. Shah, R. Subhash Reddy JJ.

Facts of the Case:
The petitioners, Prof. Venkata Rao, former Vice-Chancellor of NLSIU and father of an aspirant, Rakesh Kumar Agarwalla challenged the notification of NLSIU to conduct a separate entrance examination this year owing to the delayed conduct of CLAT 2020 in the Supreme Court, calling it a completely unlawful and arbitrary decision. The petition said that this action by NLSIU has created an unprecedented uncertainty and has put unessential burden on the students who are now uncertain about the future program.

The petitioners exhorted the Supreme Court to quash the notification announcing the conduct of NLAT for NLSIU admissions this year. The petitioners filed a rejoinder before the court affirming that NLSIU badly failed in conducting the NLAT and has made most of the candidates suffer. The petitioner contended that the exam cannot be termed a success as its procedure lacks transparency.

The petitioner thus filed the writ in Supreme Court praying for quashing the conduct of NLAT by NLSIU. A counter affidavit in the matter has also been filed by the NLU Consortium through its Secretary and NALSAR Vice-Chancellor, Prof Faizan Mustafa, supporting the petitioners stand. Moreover, counter-affidavits have also been filed by NLSIU, through its Registrar, Prof Dr Sarasu Esther Thomas and its Vice-Chancellor, Prof Sudhir Krishnaswamy.

The Consortium of NLUs affidavit contends that the supercilious attitude with which NLSIU has conducted the NLAT examination, without any consideration for collective decision making thus keeping the lives of thousands of students in harm, while knowing that the NLAT examination was impossible to conduct, indicates its mala fide behaviour.

The decision to conduct NLAT has efficiently defeated the effort and orders of the Supreme Court in amending the admission process to National Law Universities by integrating it under the leadership of the Consortium. On the other hand, the affidavits filed on behalf of NLSIU and its Vice-Chancellor makes submissions justifying the conduct of its exam, questioning the maintainability of the plea before the Supreme Court, and urging for the writ petition to be dismissed with exemplary costs.

Questions of Law:
Issues considered by the Supreme Court:
  1. Whether the petitioners have locus standi to file the writ petition?
  2. Whether NLSIU being a founder member of Consortium of National Law Universities, a registered society is bound by its Bye-laws?
  3. Whether NLSIU was obliged to admit the students through CLAT 2020 for integrated B.A.L.L.B (Hons.) programme?
  4. Whether online home proctored exam as proposed by notification lacks transparency, was against to the concept of fair examination which is violative to student rights under Article 14 of the Constitution?
  5. Whether the notification of admission could have been issued only after recommendations to the effect by Academic Council, which is statutory authority under the act, 1986 for admission of the students to the five-year integrated B.A.L.L.B (Hons.) Program 2020-2021?
  6. Whether NLAT held on 12th September and with retest on 14th September miserably failed by malpractices and deserves to be set aside?

Contentions raised:
In the Petitioners' rejoinder:
  • NLSIU's decision to conduct NLAT was a parallel move, which is lawfully not permissible.
  • It is largely pointed out that thousands of students were unable to even meet the revised technical requirements needed to write NLAT
  • The “accessibility measures” taken by NLSIU is a mere pretence to earn commendations amid widespread criticism
  • Test centres were only available in 35 cities, which are primarily capital cities, which is completely inequitable and unreasonable.
  • NLSIU has chosen to furtively change its stand by updating its Frequently Answered Questions on its website instead of releasing properly formulated notifications. The information has been released through social media, which has limited reach. There were no newspaper publications.
  • The NLAT mock test itself was blemished and problematic, and it was stated that numerous problems were faced by candidates. Various possibilities for cheating were also reported by media portals.
  • Candidates reported widespread technical issues during the NLAT on 12th September. It is also noted that legal news portals expected these problems and reported on these issues live by inviting students to share their problems.
  • The question paper was reported to have been leaked even after conducting a re-test, bringing into question the integrity of the exam including the protocols of NLSIU.
  • There has never been a leak of exam to that extent and ever reported in any of the earlier law entrance exams conducted by the consortium.
    NLSIU Vice-Chancellor, Prof Sudhir Krishnaswamy, is not only connivant in the entire NLAT fiasco, "but is, in fact, the architect of this completely preventable chaos.
  • Justifications of avoiding a zero year cannot beat the licit expectations of students and their fundamental rights.
In the NLU Consortium's counter-affidavit:
The Consortium asserts that the NLAT exam conducted on 12th September raised various issues which put in question the integrity of the NLAT and violate the students' right of equality or opportunity including:
  • Lack of publicity for the exam:
    NLSIU did not largely publicise the exam. They did not give any known advertisements in newspapers and they did not put any efforts to make each out to all those who had applied for CLAT. Over 40,000 students were under privileged of their right to compete for a seat at NLSIU, particularly students from marginalized classes as only 24603 students applied for NLAT where as 69000 students applied for CLAT.
  • Lack of physical accessibility to test centres:
    NLSIU had outsourced and conducted test centres through an agency named Test Pan. However, they did not organise test centres in West Bengal, North East India and other parties of the country.
  • Technical glitches leading to mismanaging of tests:
    Many of the students reported the failure of the software during the NLAT. It is reported that students were not allowed to appear for examination even though there is no fault on their part. A re-test was also conducted by NLSIU without the leave of the Court. The technology of the exam was unsatisfactory.
  • Concerns of mass-cheating:
    The proctoring software employed by NLSIU was filled with errors.
  • Leakage of the re-exam paper's:
    Inter alia, it is submitted that the proctoring protocols could not be followed since a Safe Assessment Browser (SAB) tool was not asserted upon.
  • A different format, place and time of the exam etc. was followed. Earlier submissions made by the Consortium have also been repeated, i.e. that the decision to conduct NLAT was in violation of NLSIU's parent Act, in violation of the MoA and the bye-laws of the NLU Consortium, and that the apparent purpose for NLAT's conduct that is. to avoid a “Zero year”, is groundless.

By NLSIU and Vice-Chancellor Prof. Sudhir Krishnaswamy:
  • The petitioners lack the locus standi to maintain the writ petition
  • The decision to conduct NLAT is completely justified as it is the only method to avoid a zero year, where aspirants would lose the opportunity to join NLSIU in the present academic year.
  • The Executive Council of the Chief Executive Body of the NLSIU has emphatically permitted NLSIU to conduct its own admissions process. • The NLAT is held pursuant to this emphatical and unanimous decision of the Executive Council.
A member of Consortium of NLUs is not prohibited by MoA and bye-laws from conducting its own admission test, mainly when CLAT is not conducted by the Consortium.
  • Even presuming, without acknowledging, that the bye-laws do not permit it, then the same would be a dispute among the Consortium members and it cannot be urged in this writ petition.
     
  • It would be in the interests of justice and equity that NLSIU be authorized to release the NLAT exam results and complete its admissions in order to commence the academic programme in a timely manner according to the revised academic calendar.
     
  • The writ petition may be dismissed with exemplary costs.

Another counter filed on behalf of NLSIU's Vice-Chancellor, Professor Sudhir Krishnaswamy, adds:
  • The NLSIU Vice-Chancellor is neither a proper nor obligatory party in the issue. The petitions are seeking Prof Krishnaswamy's impleadment on obscure and unproven allegations.
     
  • In his retention as the NLU Consortium's Treasurer Secretary, Prof Krishnaswamy has acted in the best interests of the Consortium, and has performed various duties with regard to the conduct of CLAT 2020
     
  • There is no legal basis for the claim that there was a dispute of interest, as Prof Krishnaswamy discharged both his role as NLSIU's Vice-Chancellor and as Treasurer-Secretary of the Consortium for the benefit of both entities. There was no personal benefit acquired. Prof Krishnaswamy further contends that he has attempted to meet the highest standards of professional conduct, while separating his roles.
     
  • The decision to postponement of CLAT to 28th September was not taken with the consent and approval of Prof Krishnaswamy. A claim made in this regard has been refused. This decision by the Consortium was boisterously protested against by him. • Acceptance to conduct NLAT was also acquired from Justice UU Lalit of the Supreme Court, who is the head of NLSIUs Executive Council.
     
  • In spite of convincing the NLU Consortium of his commitment to conduct CLAT 2020, the Consortium behaved in an adversarial manner.

Reasoning:

Issue 1:
  • The Supreme Court held that the Locus standi exists as Petitioner 1 was a parent of an NLAT candidate, but the Court held that it is not clear from the record that whether he was also a CLAT candidate.
  • Petitioner 2 was a former Vice Chancellor of NLSIU, and a former ex-officio member of the CLAT Consortium. The Court held that “he is fully competent to espouse the cause of education by means of writ petition.
  • An intervention application was also filed by the students whose petition had been dismissed by the Jharkhand High Court, on the basis of which the court relied to hold that Locus standi is not a problem.

Issue 2:
  • The court observed that even though obligations on members of Consortium under the bye-laws are not statutory obligations those are binding on the members including NLSIU.
  • The bye-laws provide that common entrance test would be held by all its members.
  • NLSIU argued that it has a unique academic system-trimester system; not taking admission through NLAT would cause “zero year” - the necessity argument.
  • Supreme Court held that Universities have power to amend their academic calendars; COVID has posed challenges to all the Universities; even UGC has permitted to make changes to academic calendar.

Issue 3:
  • NLSIU was obliged to admit the students through CLAT 2020 for integrated B.A.L.L.B(Hons.) programme as stated in the Issue 2. Thus, NLSIU being member of the Consortium ought not to have proceeded with holding a separate test “NLAT”.
Issue 4:
  • The Court held that online home proctored exam as proposed by NLSIU for NLAT lacks transparency and could not be held to be a test which was able to maintain fairness and Integrity of the examination.
  • The Court observed that as large number of students were deprived to apply for the exam because of the short notice and technological requirements of the University which is indeed against to the concept of fair examination and violative to student rights under Article 14 of the Constitution.
Issue 5:
  • NLAT had been only approved by the Executive Council of NLSIU.
  • The Court after analysing various provisions of law observed that NLSIU require to obtain recommendation of Academic Council by the statute before proceeding to conduct NLAT by issuing admission notification.
  • The Supreme Court held that in view of the scheme of NLSIU Act and the roles and powers of the Executive and Academic Councils of NLSIU, it is clear that a nod from Academic Council was required.
  • The Court even pointed out at an earlier instance where the approval of Academic Council was taken with respect to entrance examinations.
  • In light of the above, the Court declared that the notification was not in accordance with the provisions of act, 1986 and is not sustainable.

Issue 6:
  • The Court firstly mentioned that, “we need not express any opinion in the proceeding with respect to malpractice under Article 32 with regard to aspect of malpractices conducted in the tests conducted on 12th and 14th of September which is essentially a matter of scrutiny of facts and evidence”
  • Given that the Court has already decided in favour of the petitioners in issues 1-5, there was no need to decide whether malpractices actually took place.
  • Thus, the Court held that the notification of admission was not in accordance with law and deserves to be set aside.
Decision of the Court:
The Court quashed the conduct of NLAT and ordered NLSIU to conduct admissions to its courses this year through the CLAT. The Court also ordered that CLAT should be held without fail in accordance with all COVID-related guidelines and the admission process to be completed as soon as possible along with course to be started in mid-October 2020.

Conclusion:
The Supreme Court quashed NLAT in regard with rights of aspirants and fairness, transparency and Integrity of examination.

End-Notes:
  • https://legal-wires.com/buzz/news-nlat-2020-has-been-scrapped-by-supreme-court/
  • https://www.casemine.com/judgement/in/5f69fd753321bc47221f5d41
  • https://www.casemine.com/judgement/in/5f69fd753321bc47221f5d41
  • https://www.legitquest.com/rakesh-kumar-agarwalla-and-anr-vs-national-law-school-of-india-university,-bengaluru-and-ors
  • https://lawsamjho.in/2020/09/23/brief-of-nlat-judgment-of-supreme-court/
  • https://newsbust.in/former-vice-chancellor-of-nlsiu-moves-to-supreme-court-against-separate-entrance-examination-former-vice-chancellor-of-nlsiu-reaches-supreme-court-petition-filed-against-separate-entrance-exam

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