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Supreme Court hears challenge to NLSIU's NLAT: Live Updates

In the last hearing, 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.

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.

In the last hearing on the issue, which was held 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.

Shortly before the hearing in the Supreme Court today, the petitioners have filed a rejoinder in the case, the NLU Consortium has supported their stance in a counter and NLSIU and its Vice-Chancellor have filed counters defending the conduct of NLAT and disputing the maintainability of the petition.

In the meanwhile, an appeal was also moved by five law aspirants on the issue challenging the Jharkhand High Court's decision to decline entertaining their plea on the ground that the matter has pan India ramifications.

The matter before the Supreme Court is being heard by a Bench headed by Justice Ashok Bhushan.

Live updates of the hearing today before the Supreme Court feature on this page.

Bench assembles.

Senior advocate Nidesh Gupta: May I take your lordship to the Act first. Request others to mute themselves

Gupta: We are reading the National Law School of India Act, 1986. The academic council is the academic body of the school..it has the power of control and general regulations. They would take care of standards, admissions and examinations.

Nidhesh Gupta: Now let us come to regulations. It states that except for prior concurrence of academic council, executive council cannot alter mode of enrollment, admission of students.

Gupta: Academic council's prior consent is required. Where the academic council rejects a proposed regulation, it is elevated to the general council and when general council says no, the chancellor cant do anything then as such regulation ceases to have any effect.

Justice Bhushan: Is this exam a mode of regulation?

Senior Advocate Gupta: I will take you through.

Gupta: The academic council has all the head of departments. As per this act, the academic council (AC) functions are clearly demarcated. Matters concerning examination and admissions are within the purview of AC. It has supremacy in that regard and it thus had heads of all departments.

Gupta: today there are 22 National Law Universities are part of this consortium including NLSIU. This consortium is registered as a society which has its own bye-laws. One of its functions is to administer, control and monitor the conduct of CLAT and facilitate admissions

Nidhesh Gupta: Basically the idea is to work together as a consortium and have one common law admission test. This is the memorandum of association of the consortium and the society.

Senior Advocate Gupta: Bye-Law 1.1.3 - CLAT is an exam for all member institutions. It means any NLU formally admitted to the membership of the society. The society is a non-profit one designated to carry the objective defined under MoA.

Nidhesh Gupta: Powers and duties of executive committee under the consortium has the duty to oversee the conduct of CLAT 2020.

Senior Advocate Nidhesh Gupta: The member institutes have no choice as far as admissions are concerned and have to be on the basis of merit and through the test called CLAT. You are bound by CLAT in the memorandum as well as bye-laws. autonomy is only for aspects of reservations, etc.

Gupta: if you dont want to be a part of the consortium you can leave. but as long as one is a part of it they must adhere to the bye-laws. In view of pandemic, CLAT had to postponed like other exams which had been postponed.

Senior Advocate Gupta: Consortium recognized that the entrance cannot be at home. There are numerous reports as to how there was cheating, malpractices, etc. but I will not address that.

Senior Advocate Gupta: On August 10 it was decided that CLAT will be held on September 7. It was signed by the Secretary treasurer, Sudhir Krishnaswamy

Senior Advocate Gupta: A notice for admission by NLSIU was put out to hold NLAT. NLSIU did not even inform the consortium on August 28 that they will go ahead with NLAT.

Gupta: NLAT says the exam be wrapped up before end of September. CLAT is scheduled for September 28. EC of the NLSIU had met on August 12 and 18 to develop an alternative to CLAT. They say NLSIU will not accept CLAT scores for admissions 2020-21

Gupta: Consortium had earlier stated that online home based exam is not fit for all especially the ones who come from the poor background. NLSIU had stated that there would be no transparency and there could be ... manipulation. They have also issued later notification, etc

Justice Bhushan: But is this relevant to set aside NLAT, 2020?

Gupta: What NLSIU has done is not fair and they have registered criminal cases and cyber complaints. They have their own notifications in this regard

SC: The exam was from home?

Senior Advocate Gupta: Yes. very much.

The three-judge bench discusses among themselves.

Gupta: Under the Act, it is the academic council which is supreme. Prior to any change, consent of AC is mandatory. Memorandum and bye-laws of the consortium has CLAT as its core value. You simply have to notify and leave.

Gupta: NLSIU says it has a different entrance for MA in Public Policy, but consortium says CLAT only overlooks UG and PG admissions. After this you want to start a science course etc, you can do what you please and have whatever entrance test.

Gupta: Now see the minutes of the meeting of 1987 in NLSIU affidavit where the executive council took a decision where power was stated to be conferred to academic council. What happened 33 years ago now is not relevant.

Gupta: They say NLSIU is authorized to ensure the admissions take place in September itself and that it can hold its own admission if CLAT is postponed further. We are in September only and CLAT is scheduled for September 28

(Judges discuss among themselves)

Gupta: There is no disclosure to the consortium about the executive council's meetings to the consortium. Does NLSIU ever inform his own EC about the affidavit filed in Delhi HC on August 25 where it states that test cannot be home-based?

Gupta: Does NLSIU tells its own Executive Council that they themselves signed on August 28 that CLAT will be on September 28

Gupta: Whole concern of EC was it should not spill over into October.

Gupta: Their rules state that candidates will have to show 360 degree of the exam room by the webcam. If they don't show within 45 seconds, then proctor locks out the candidate. If a person is helping then he can enter and leave the room 10 times within 45 seconds.

Gupta: NLSIU states that if a student cannot be seen for 45 seconds and does not respond within this time, the exam will be terminated. But a student can go out ask and come back till 45 seconds.

Gupta: Point is this is their document which implicitly recognizes the possibility of malpractices in home-based exam and in fact allows such malpractice to continue. NLAT was reduced to a farce. It was not an exam for merit but for someone's competency in manipulation!

Gupta: NLSIU had a retest on September 14th. 4,680 students had raised queries. there are glitches admittedly along with technical problems. They say students had copied questions and circulated it on messaging apps.

Gupta: NLSIU states that it might be improper conduct but students already had questions after log-in. They admit that students had phones and communicated with others. Bar & Bench carried a report showing how students were circulating the question paper on messaging apps.

Gupta: Still NLSIU says the integrity of exam was not affected. If something goes out of my phone, I can receive the answer too. Where is the question of integrity?

Justice MR Shah: On a lighter note, the pandemic teaches you all this too (refers to cheating methods)

Gupta: Yes, there have been instances where a student had his index finger hidden in his socks from where he pulled out slips which had the answers

Gupta: All that I am showing is their (NLSIU's) documents. Nothing from my end. Now I will submit some judgments.

Gupta: Prior concurrence with the consortium was mandatory. The expression "except prior concurrence" makes it mandatory. (Shows cases to substantiate the point)

Gupta: When NLSIU says PAI Inamdar allows us to admit students, yes CLAT will also allow you to admit students.

Gupta: We have two weeks from now till September 28. NLSIU has 20 hour working week, we are looking at a difference of 6 to 7 days, and all they have to do is add 20 minutes everyday to make up for the time loss till September 28. This is assuming everything I have argued till now is wrong

Gupta: Since NLSIU has trimester, you move one subject to the next semester, winter or summer holidays can be done away with. Paramount is student interest and this zero year argument can be taken care of.

Gupta: 78,000 to appear for CLAT out of which 28,000 appeared for NLAT. It is not possible that 2/3rd of students don't even aspire for the topmost law institute of the country

Senior Advocate Arvind Datar for NLSIU: There is a systematic campaign to denigrate this entire process. We have always vouched for the joint entrance exam.

Datar: We have worked overnight for the rejoinder

Justice Shah: Last-minute preparation before exams (smiles)

Senior Advocate Gopal Sankaranarayanan: This is the third round of litigation concerning the common admission test. In Inamdar's case, it was held that a common exam is the best.

Sankaranarayanan: The CLAT exam is fiercely competitive now. Its not like 2,000 students appearing as during my time. 78,000 students appear and students prepare for the exam from Standard 10th onwards.

Justice MR Shah: You want to say that rule of game has changed for you, right?

Sankaranarayanan: Not only rules, the game has changed itself. I (went for) a ticket for football but instead got a ticket for a cricket match

Senior Advocate Gopal Sankaranarayanan: I appear for the student who was preparing for CLAT. All notifications on the CLAT website are signed and that is what we go by. VC of NLSIU says in an affidavit before High Court that home test cannot take place.

Sankaranarayanan: On August 27 during the meeting, no one said that NLSIU will opt out if CLAT is postponed. It was postponed because West Bengal said there will be a lockdown in the State on the CLAT date. This would have prevented all students from West Bengal to be out of the exam

Sankaranarayanan: A letter was addressed to Justice Lalit and all other members of the Executive Council on September 3. It refers to consortium decision of postponement, they say they opt for NLAT as they have trimesters. NLIU Bhopal too has a trimester system.

Sankaranarayanan: No one was informed it was a home proctotered test. It was only on the website. Complete suppression on information was there to the EC too. Supreme Court ordered there will be exam on September 12. but on 14th they conducted 3 exams.

Sankaranarayanan: Techies registered for the exam to expose the loopholes in the exam. They found that there were issues where students had difficulty. Thus they were asked to email, some did and some did not

Sankaranarayanan: When NLAT took place at 12 pm, 12:52 the paper was leaked and it was everywhere. At the faculty meeting in NLSIU they have stated that 60% of the students had CLAT as the first option for them and thus it would be grave injustice to the students.

Sankaranarayanan: Zero year cannot be at all declared by the University. It can only be made by the government. On August 10, Centre appeared before the standing committee of parliament that in no way this year will be declared as 0 year and that institutes will have relaxed schedule

Sankaranarayanan: UGC and MHRD says calendar for academic year can be amended. But NLSIU says.....

Justice Bhushan : Your connection... we cant hear you

Counsel resumes: see this is what we are saying, if connection is not back in 45 seconds, my attempt is gone.

Sankaranarayanan: Common entrance test like JEE, NEET, CLAT will be held later this month. Just NLAT had to be held earlier. This is not justified.

Senior Advocate Arvind Datar for NLSIU: We have to see whether NLS is entitled to walk out of CLAT. NLS has a governor and executive councils.

Datar: The executive council is superior.

Justice Subhash Reddy: The Act constitutes the councils and lays down the powers and authority of the academic council. Next it states that academic council can take decision regarding conduct of exams and admissions.

Justice Bhushan: if we fix it for tomorrow, how much time you require?

Datar: We would need an hour, between me and Mr Sajan Poovayya.

Supreme Court: We will give time to Advocate Narasimha.

Case adjourned till September 17, 11:30 AM.

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