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Challenge to conduct of NLAT for NLSIU admissions 2020: Live Updates from Supreme Court [Day 3]

The matter is being heard by a Bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah

Bar & Bench

The Supreme Court is presently hearing the plea challenging the decision of the National Law School of India University (NLSIU), Bengaluru to base its law admissions this year on the basis of its independent National Law Aptitude Test (NLAT) scores instead of CLAT.

The petition has been moved by former NLSIU Vice-Chancellor Professor Venkata Rao and an aggrieved parent.

The NLAT was announced by NLSIU on September 3 and conducted on September 12. A re-test for candidates who reported facing technical difficulties during the exam's conduct was also later conducted on September 14.

Whereas the re-test paper was reported to have been leaked while the exam was still in progress, NLSIU later released a statement asserting that it would not affect the integrity of the exam itself and stating that those who indulged in malpractices during the exam would be weeded out at the admissions stage.

A day before the exam was to be held, the Supreme Court had allowed NLSIU to go ahead with the test's conduct but clarified that the test results would be subject to the results of the case.

The matter was taken up for the first time after NLAT's conduct yesterday. Read an account of yesterday's hearing below:

Arguments in the matter will continue today. The matter is being heard by a Bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah

Live updates of the hearing today feature on this page.

The Bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah has assembled. The matter will be taken up shortly.

Senior Advocate Arvind Datar (for NLSIU) is the first to address the Court.

Datar: The three core issues I'll address are:

  • Role of executive council vis-a-vis academic council

  • Whether NLS being memeber of consortium could have conducted a separate exam

  • Nature of the exam

Justice Bhushan: And the 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 the Consortium.

Datar: Yesterday they (governing body of the Consortium) wrote a letter to me asking me to transfer all the funds to NALSAR, Hyderabad.

Justice Bhushan: Mr. Datar, they have to conduct the CLAT for aspirants all over the country. This is not only about one University.

Datar: They say that the NLSIU cannot remain part of the Consortium.

Justice Bhushan: We will ask them to clarify on this.

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 the 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 the chief executive body can act in the absence of regulations.

(Datar cites Supreme Court precedent 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 the appointment of VC by the Executive committee)

(Datar reads the provisions from the 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: (In relation to NLSIU) Academic council makes the recommendations and it is the Executive Council that approves the recommendations.

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 Supreme Court for holding a common test like CLAT... We just came together to form a society for this.

Datar: I 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 that they have said as for CLAT 2020 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 September 7.

On August 28 a meeting was held and they postponed it on the grounds that West Bengal has a lockdown on September 7 and Bihar on September 6. But why not hold it on September 13?

(Datar takes the Court through all the decisions of the Consortium this year regarding postponing the exam)

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: The General body of NLU consortium met on August 10 to decide when can CLAT be held. CLAT 2020 was decided to be held on September 7. It was signed by the Secretary treasurer

Datar: CLAT reschedule notofication was thereafter issued to hold it on September 28. Lockdown announcement in West Bengal was on September 7, hence CLAT was postponed.

Datar: I understand there was lockdown, but then hold it on September 8 or September 9. Deliberately they put it to September 28.

Court: You have signed this no?

Datar: I have denied it in my affidavit.

Court: Okay we will make note that you have not signed it.

Datar: Whether you call it doctrine of necessity or frustration or overriding circumstances...

But my submission is that the bylaws are in the nature of a contract. If performance of the contract become impossible, I can take my own decisions

Justice Reddy: It is a co-operative society?

Datar: This is only a society, not a cooperative society. We are registered under the Societies Registration Act. In the case of cooperative societies, bylaws are much more onerous.

Datar is taking the Court through the aims and objectives of the society, says that conducting entrance exam is one of them. 

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.

For my autonomy, I can take that decision.

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 hours 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.

(All laugh)

Datar: Sometimes I think it's good I don't have to apply now because I wouldn't have been able to crack these entrance exams.

(Other lawyers on screen nodding and smiling)

Datar continues his submissions.

Datar: Now, even the number of questions were along with the time.

Justice Reddy: Why only 20,000 something students could appear for your exam? This is a top law school

Court: There was shortage of time for students to apply.

Datar: There was plenty of time to apply. And we have engaged the best possible vendor for conduction of the exam.

Datar concludes his arguments.

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 to 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: The Executive Committee has no authority to take a decision on behalf of the Consortium, till it is done in line with the bylaws

(Poovayya takes the Court through the timeline of subsequent deferrals of the CLAT 2020 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 Sankaranarayanan 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 is representing the Consortium)

Narasimha: The benefits for the students of coming together of all the Universities were enormous.

All statutory bodies coming together and forming this association takes the form of a quasi statutory authority.

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: Mr. Datar has referred to it as though it's a contract but we are in the realm of public law. Please don't relegate us to the contract Act.

Narasimha: The way this matter has gone on really pains me because I was involved since the beginning. Pre consortium was a hand holding exercise.

It was ensured that National law schools would hold the exam in the said manner.

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.

Everything will collapse.

Narasimha concludes.

Senior Advocate Nidhesh Gupta, for the petitioner, makes brief rejoinder arguments.

Gupta: Factually to say that the governing body (of the Consortium) made the decisions is not right.

(Gupta contests the submission made by the VC of NLSIU that the signature in the decision to hold CLAT on September 28 is not his)

Gupta: He opposes the decision but nowhere does it say that the signature is not his.

Senior Advocate Nikhil Nayyar representing a petitioner in an SLP makes submissions now.

Nayyar refers to the Supreme Court's decision of April 29, 2020 in relation to NEET exam.

Nayyar: When the first press release came, students had five months... it was extended later.

When it was being extended, it was clearly said that you would be given a 21 day notice in case of further extension.

Nayyar: Students are prejudiced in this new format.

  • Less time window

  • Mock exam one day before

  • CLAT had minus marking for wrong answer but NLAT has minus marking for question not answered

Nayyar: This cannot be a revolving door that people can walk in and walk out.

Nayyar concludes. 

Senior Counsel Gopal Sankaranarayanan makes brief rejoinder submissions.

Supreme Court asks parties to submit their written notes if required.

Judgment reserved, to be delivered on Monday, September 21.

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