Karnataka HC comes to aid of CBSE student asked to repeat exam for bringing mobile phone to exam hall

The Karnataka High Court recently quashed a Memorandum issued by CBSE directing a student to repeat an exam in grounds that she had resorted to "unfair means" after she was found to be carrying a mobile phone in the exam hall prior to the exam. .In doing so, the Court opined that cancelling her exam and asking her to re-take it would violate the rule of proportionality..The CBSE had issued the said memorandum, cancelling the 12th Board exam given by the Petitioner for the subject of Biology. She had carried her mobile phone into the exam hall, which is barred under the CBSE Examination Byelaws..While quashing the order, Justice Krishna P Dixit observed that it is nobody’s case that the petitioner had clandestinely stored any exam material in the phone for making unfair use during the exam. As such, to cancel the student's exam would be a disproportional penalty, the Judge ruled. ."... ordinarily, a student is expected not to carry such instruments into the examination hall, is ideally true but, human fallibility more particularly, in the case of young children going to the examination with associated anxiety needs to be kept in mind; an extreme penalty of cancelling the very examination violates the rule of proportionality and it shakes the conscience of the Court."Karnataka High Court.He went on to strike a chord of empathy, remarking,."...tender minds even when they commit some significant mistakes, cannot be treated with iron gloves; the penalty order arguably may answer the requirement of letter of law but certainly it fall short of the standards of justice and fairness inasmuch as, there is absolutely no material as to the petitioner having used the phone instrument for writing the examination in question; in fact, that is not the allegation at all; one cannot be oblivious to the anxiety of the students and their parents during the crucial examination of the kind, especially during the unprecedented COVID Pandemic...".On a related note, the Judge observed that people are condoned even their mobile phones ring in courtrooms, despite a bar on the same. "... even in Court halls, mobile phones of the counsel ring and often loudly despite repeated instructions to keep them in idle mode; that is not a case of serious culpability; an argument to the contrary would be abhorrent to the notions of reason & justice", the Judge said. .Factual Background .The petitioner, then a class XII student, had carried her mobile phone into the Examination Hall. Once discovered, it was handed over to the Center Invigilator before the commencement of the examination. .Subsequently, an enquiry was held, and an explanation was sought from the petitioner in terms of the CBSE Examination Byelaws. A punitive order cancelling her exam as issued thereafter, on the ground that she had used “unfair means.” She was asked to "repeat" the said exam..Due to this order, coupled with her failing a math exam, the petitioner became ineligible to take up the CBSE's “Compartment Examination” that was scheduled in September 2020. .The only option available to her was to appear for the examinations under “Full Subject Category” which would be scheduled on the basis of a new syllabi and course study. Aggrieved by this, the petitioner approached the High Court. .Arguments Raised .The student told the Court that she had taken her phone into the examination hall by mistake. She added that she had submitted the phone to the exam invigilator at 9:55 am, before the commencement of the exam. .She further contended that she was not given an opportunity for a personal hearing by the Enquiry Board despite many requests. .Opposing these contentions, the counsel appearing for the CBSE contended that a Four Member Committee had already conducted an enquiry into the issue and that the Court should be slow to interfere in such matters. .What the High Court held .After going through the rival contentions raised, the Court opined that this was a fit case of to interfere in. .The Judge noted that the CBSE would come under the wide ambit of Article 12 (State) of the Constitution and therefore, the writ court had jurisdiction in the said matter. .The Court went through the relevant CBSE Examination Byelaws to note that carrying any material before the commencement of the examination per se would not imply that the student has used unfair means during the exams. The Judge explained, ."....it is pertinent to mention that the thrust of the prohibition enacted in the subject Byelaw is not just carrying the “barred items” but carrying it 'during the course of the examination' ... suffice it to say that, carrying any material before the commencement of the examination per se does not fall within the parameters of the fault-line on which this Byelaw is structured; an argument to the contrary, cannot be countenanced without bruising the text & intent of this Byelaw....".The Court also accepted the student's contention that she submitted the phone before 9:55 am, i.e., before the commencement of the exam. The Court further took critical note that the CCTV footage in this case had not been examined to evaluate the petitioner's conduct. The Judge added, ."... if the content of the CCTV footage is not preserved or otherwise not retrievable, it is a fault attributable to the answering respondents and therefore, they cannot be permitted to take advantage thereof to the detriment of the students.".With these, among other, observations, the Bench quashed the memorandum issued by CBSE and directed it to announce the result of petitioner’s Biology examination..Senior Advocate Dhyan Chinnappa and Advocate Mahesh Chowdhary appeared for the petitioner student. .[Read order]