Supreme Court to shortly resume hearing the challenge to National Law School of India University (NLSIU) Bangalore's move to conduct its separate entrance exam - the National Law Aptitude Test (NLAT)
- Role of executive council vis-a-vis academic council
- Whether NLS being memeber of consortium could have conducted a separate exam
- Nature of exam
Justice Bhushan: And fourth issue you address on is that a large number of students were deprived from appearing for the exam because of the short notice. So violation of Article 14 also needs to be addressed
Datar: And the fifth issue I'll address on is locus standi and maintainability.
Justice Bhushan: Petitioner no. 2 has sufficient locus.
Datar: He was the former VC of NLSIU.
Datar: They should have been challenged by the CLAT itself.
Datar addresses on the point of consortium.
Datar: Prayer C is not available anymore because CLAT has removed me from the Consortium.
Justice Bhushan: They have removed only from the office, not from the Consortium.
Datar refers to minutes of the meeting of the members of the Consortium where it was opined that if NLSIU proceeds with the separate exam, it cannot remain part of the Consortium.
Justice Shah: It was only an opinion.
Datar reads the resolution passed by the governing body of the Consortium through which the VC of NLSIU was divested of his position held in thr Consortium.
Datar addresses the Court on the issue of executive council vis-a-vis academic council.
Datar; Academic council will be responsible for the maintenance of standard of education in the School/University and does not have anything to do with the Entrance exam.
Datar: The executive council is responsible for making regulations and for amending and modifying them.
The proposition is if a regulatory body has not made regulations then chief executive body can act in the absence of regulations.
(Datar cites precedent of SC on this)
Datar: There cannot be vacuum.
Justice Bhushan: You're right that there cannot be vacuum and for a period of time there are no regulations, the body can act.
Datar: With regard to conduct of exam, academic council can make recommendations as regards who can be the examiner.
(Datar now refers to regulations that provide for appointment of VC by the Executive committee)
(Datar reads the provisions from regulations which empower VC to take actions in certain situations which can be addressed and approved by the committee later)
Datar: This is like taking an action and getting it ratified.
Datar: I will refer to decisions and how CLAT came about but till date there is no direction from the Court saying there shall be a common exam.
There is no mandate from the SC for holding a common test like CLAT... We just came together to form a society for this.
Datar: Will justify why I held a separate exam.
Justice Reddy: When you took the decision to hold the test, were you part of the society?
Datar: Yes. But I will justify
Justice Reddy: Legally, as part of the society could you have separated from the society to hold the exam?
Datar: The by-laws of the society are like agreement
Justice Shah: Did you inform the Consortium that you were going to hold a separate exam.
Datar: Number of times. I had mentioned that we have a trimester system, don't postpone CLAT further. This was not a knee-jerk reaction.
Justice Reddy: So as on today you are part of the Consortium?
Datar: I have not exited the Consortium. But my submission is they have said as for #CLAT2020 I am no longer part of it and have asked for all records, accounts to be shifted to Hyderabad. I have not exited.
Datar: On 10 or 12th August it was decided that exam will be held on Sept 7.
On Aug 28 a meeting was held and they postponed it on the grounds that WB has lockdown on Sept 7 and Bihar on Sept 6. But why not hold it on Sept 13?
Datar: They say unanimous as if I am a party to it. Meeting of consortium held on August 27 and they say resolution was with my consent. In my affidavit I have said it did not have my consent
Datar: General body of NLU consortium met on August 10 decide when can CLAT be held. Clat2020 was decided to be held on Sept 7. It was signed by Secy treasurer
Datar: This is only a society, not cooperative society. We are registered under the Societies Registration Act. In case of cooperative societies, bylaws are much more onerous.
Datar (quoting the clauses of the by-laws): By joining CLAT, we have not surrendered our autonomy.
For MPhil courses, the bylaws are not fully implemented since everyone is conducting their own exams.
Datar: I want to make it clear, Justice Reddy asked if I'm still part so I said that this year due to the zero year problems, I will hold my exam only for this year.
Datar: Petitioners are alleging that I have violated the bylaws but I want to ask that where in the bylaws does it justify for them to postpone the exam without consulting all the VCs?
Where does it provide for shifting of accounts, records to Hyderabad?
Datar: There are many statements made that the exam was bogus and purity was not maintained.
Justice Bhushan: We have gone through the affidavit.
Justice Bhushan: We are sure the University would have taken steps to maintain the purity of the exam.
Justice Shah: But when there were allegations of certain malpractices in the exam, you also admitted it that there were malpractices but secrecy of exam was not compromised.
Datar: The day the CLAT took a decision to postpone, we called our faculty meeting and considered the options before us for this year
(Datar is reading from the affidavit on this regard)
Datar: Options before us were
- online entrance exam at centres identified across the country
- Home based proctored online exam
Datar: Our entrance fee is ₹150 because we wanted to make it accessible.
We made the exam 45 minutes long
Exam notification says we are following CLAT but the exam instead of 2 years was for 45 minutes.
Datar: Mr. Gopal Sankarnarayanan had made a comment that we were changing the game, when asked to play cricket, we asked them to play football.
But no, students were preparing for a test match and they were asked to play a 50 over match. It's still cricket.
Justice Shah: But the point is students were preparing for a 2 hour long exam and suddenly at such short notice they were told that now their exam is only 45 minutes long.
Datar: The syllabus is the same. But instead of a 2 hour exam we have shrunk it to 45 minutes. Marking system is the same as CLAT.
(On a lighter note)
Justice Shah: Mr. Datar, we have you one hour to argue, you have exceeded that time, so should we fail you?
Datar: Fail me Your Lordships but don't allow the Writ petition.
Senior Counsel Sajan Poovayya, for VC of NLSIU, begins making his submissions.
Poovayya first addresses the issue of change in format of the entrance exam.
Poovayya: Mine is an exam of lower pressure threshold. Students had to answer 45 questions in 45 minutes
Poovayya: The press release on malpractices said that we had taken note of complaints and we have zero tolerance for malpractices and we will look into it
Poovayya: In a physical exam, invigilation takes care of physical acts of malpractices like removing chits etc but in a remote exam, invigilation is not restricted to this.
In remote proctored exam, even the data on key strokes of the computer system is collected.
Poovayya: Extensive technical safeguards were taken.
We made use of AI based proctoring which assesses aspects such as number of times window switch took place.
One of the most renowned firms does a post test auditing of this data.
Poovayya: Other safeguards are answer behaviour pattern and device information including candidate's key strokes' data.
Or traditional intelligence on exam.oaoer leak does not apply here. There is no single exam paper. Questions are similar but there are three batches.
Poovayya: No two persons got the question paper where the questions were in the same order. They all got same batch of questions in one batch of exam, but order was different.
Poovayya: The results are not out, they will be out subject to My Lords' decision but we have analysed all the data from the exam and it has been found that those candidates that engaged in malpractices have been disqualified.
Poovayya: Then, the decision to hold a home proctored online exam was not mine. The options were placed before the entire faculty and a unanimous decision was taken yo hold the exam in this form.
Poovayya: When the first time the decision was taken to defer the CLAT to June, I didn't oppose and NLSIU didn't oppose because I wouldn't have suffered a zero year.
(Poovayya takes the Court through the timeline of subsequent deferrals of the CLAT2020 to a point that NLSIU faced the risk of zero year)
Poovayya: Mine is the only law University in the country that has a trimester system and the rigours of the this system are difficult.
Poovayya: Today in the beginning even Mr. Gopal Sankarnarayanan corrected his submission from earlier to agree that NLSIU is the only University for law to have trimester system.
Poovayya concludes.
Senior Advocate PS Narasimha makes his submissions.
Narasimha: We are all here for saving the institution. Today the question is if the very existence of this institution.
Narasimha: After the judicial intervention and efforts of all the stakeholders of coming together, the consortium was formed for the purpose of holding a common entrance exam for the students
Narasimha: What will happen to the whole purpose of it if everyone wants to walk on and walk out. It is not a private club, all of them subserve an important obligation.
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