With the world in the throes of a deadly pandemic, all that concerns the academic ringmasters is the spectacle of exams. They are adamant to test our mettle one final time, before sealing our fate in boxes, certifying students as products capable of global recognition.

If this sounds hyperbolic, then pause and reflect on the following reason adduced by the UGC mandating that students take their final semester examinations: ‘In view of the emerging situation related to COVID-19 pandemic in India, it is important to safeguard the principles of health, safety, fair and equal opportunity for students. At the same time, it is very crucial to ensure academic credibility, career opportunities and future progress of students globally.

Academic evaluation of students is a very important milestone in any education system. The performance in examinations gives confidence and satisfaction to the students and is a reflection of competence, performance and credibility that is necessary for global acceptability.’

Reading this aloud one may surmise that not evaluating final year students would hamper their careers and erode the global acclaim enjoyed by our universities. If only they were truisms, unworthy of being dispelled by putting pen on paper (or sliding cursors on our computers).

Emboldened by the University Grants Commission’s [‘UGC’] directive University of Delhi [‘DU’] plans to conduct online Open Book Exams [‘OBEs’] for the final year/semester students. However, their plan has come under the judicial scanner due to its exclusionary impulse and pitiful simulation. While not commenting on the specifics of the matter, this article aims to show that online OBEs are an unconstitutional experiment.

Final year/semester students: Estranged without reason

The principles which makes equality an article of our constitutional faith

Article 14 of the Constitution of India provides that ‘the State shall not deny to any person equality before the law or the equal protection of law within the territory of India.’ This envisages a negative concept of ‘equality before the law’ in its first part and a positive concept of ‘equal protection of law’ in its second part.

Equality, in its first part, requires similar treatment of those similarly situated while allowing for a differential treatment among those differentially situated. This is commonly understood as ‘like should be treated alike.’ What the Article requires is a similar treatment and not an identical treatment. This means that equality guaranteed under Article 14 of the Constitution of India allows for ‘reasonable classification’ while prohibiting ‘class legislation.’

Preventing the executive from conflating differentiation with discrimination:

To assess whether an executive action doesn’t fall afoul of the principles of equality the judiciary can carry out either a comparative or non-comparative reasonableness analysis. The doctrine of reasonable classification was devised by the judiciary for carrying out the former analysis. The test has two prongs. The first requires an intelligible differentia to exist between the groups classified separately. The second needs a rational nexus between the classification and the intended aim behind the classification itself.

The UGC has deemed it necessary to hold exams only for the final year/semester students. While conceding that all classifications cannot be done with mathematical precision what qualifies these students for this drive has been left unexplained. UGC cites ‘ensuring academic credibility, career opportunities, and future progress of students globally’ (supra) as reasons behind this move.

However, this comes with the caveat that ‘every university/institution has to ensure that it is prepared in all respects to carry out the academic activities following necessary protocols issued by the Central/State Governments and MHRD/UGC from time to time, in view of COVID-19.’ Delhi, amongst other States, is reeling under the pandemic and one can’t predict the trajectory of the pandemic in the near future. If the spread isn’t contained then lockdowns may be imposed.

Online exams for final year students are being advanced as a neat solution to this problem. Those failing to appear for them will be allowed to take them later on an unspecified date. However, this may delay their appraisals and attainment of degrees, stalling their graduation towards a desirable future. This blunt imposition and its fallout are galling because they will make students suffer for no fault of their own.

DU, resolute in its attempt to conduct exams through the online medium fails to recognize that the final year students are not a homogenous group capable of being classified as a distinct category. Under the Choice Based Credit System [‘CBCS’] followed in DU, all semesters have an equal weightage. Thus, merely clearing the exams in the final semester doesn’t make someone eligible to graduate unless they have cleared all backlogs.

Amongst the perceived monolith of final year students are those who are incapable of sitting for these exams. These include the differently-abled reliant on external aid (including scribes, assistants who can scan their copies, those who can transport them to Common Service Centres), the indigent who lack means like smart-phones and a stable internet connection to take the exam in a meaningful manner, first-generation female learners starved of requisite personal equipment regardless of their financial status, those deprived of the internet due to governmental restrictions or inadequacies, those who are vulnerable to physical and mental hazards because their family members are working as ‘corona warriors’, and finally students living with mental ailments which can be aggravated by the anxiety induced by these exams.

The proponents of online OBEs may claim that they are facially neutral and don’t discriminate on the basis of the protected fields under Article 15. This is negated by testing its effect on the groups highlighted above rather than the intention behind its promulgation.

This follows from the vision of substantive equality which neuters any claims of the government that their policy is sound if it discriminates only on the basis of the protected fields mentioned under Article 15(2). Instead, as displayed above, members belonging to those particular fields (e.g. women and Dalits) may have to bear disproportionate hardships. Thus, online OBEs are both discriminatory and derogate from the positive obligations of the state which are the pillars on which stands the edifice of substantive equality under Article 14.

No judicial deference without measuring the executive’s intent and action: Nexus between proportionality and reasonable classification?

The recent past has seen the courts being deferential towards administrative decisions taken by bodies entrusted with regulating internal affairs of academic institutions.

Yet we contend that in the present case DU’s insistence on evaluating the students through the online medium is impermissible even if the court follows the same approach. This is because the rationality behind the nexus between the intended aims (the subject for whom exams are being conducted) and the method for its realization (online OBEs) can’t withstand the test of proportionality propounded in Puttuswamy II.

While the University may be empowered to conduct exams, organizing online OBEs amidst a deadly pandemic can’t serve any legitimate aim, especially when viable alternatives are available. Thus, online OBEs are neither necessary for meeting the intended goals (supra) nor suitable (because of the undue burden it imposes on those unable to sit for them). The University would have seen the folly of enforcing this policy if only it had audited the facilities available with its students to appear for these exams. This would have helped it to provide for the means necessary for its students, stranded in Delhi, or forced to flee back home to attend online lectures.

Instead, it is public knowledge that the University has barely taught the students it is so adamant to evaluate. The Open ‘Book’ Exams are being conducted without providing ‘books’ to the students. The databases made remotely accessible to them do not contain the resources required for studying for the exams. Thus, it is unclear which concepts does the university wants to test its students for. Further, the method of evaluation is fraught with glaring anomalies. There is no mechanism to check whether students will use any unfair means (like enlisting a proxy examinee) when taking the exams.

The online portal is largely dysfunctional and crashes without notice. Uploading large numbers of sheets in a short span of time is a herculean task. That these glitches persist despite four months having elapsed after the UGC notification exhorting universities to make preparations for these exams is unpardonable.

The online OBEs aren’t immune from a non-comparative reasonableness challenge presented under the doctrine of manifest arbitrariness birthed in E.P. Royappa v. State of Tamil Nadu [1974 AIR 555].While the use of this doctrine to strike down legislation may be controversial, its nullification of executive excesses is widely accepted. Further, the absence of an adequate determining principle anchoring the present policy (writ large due to failure to pass the test of reasonable classification) makes it incompatible with the evolution of the doctrine, made by Nariman J.

How the university can give the students a memorable farewell

From the analysis above it is clear that the cancellation of exams is the most fair and equitable decision. However, if an obdurate university continues to flout the precepts of administrative law (giving audience to students) then the courts should conduct a dialogic review of their action in our stead.

The students are now solely banking on the courts to unlock the transformative potential of our Constitution which marked a shift from a culture of authority to a culture of justification. It is through them that the aggrieved citizen students hope to enjoin the administration to fulfil their legitimate expectations from the university administration. The presumption of constitutionality of their actions shouldn’t shield them from judicial scrutiny through a dialogic review.

Thus, the courts should voice the alternatives suggested by the students in front of the administrators. These include the submission of research papers for each subject or internals with an adequate window for submissions and evaluation on the basis of their past performance.

With the fate of the students still hanging in the balance, one can only hope that the courts will help the administration renounce their utopian scheme for one that has universal utility.

(Postscript: The authors are students of Campus Law Centre, Faculty of Law, Delhi University. They would like to thank Prof. Anumeha Mishra for her perceptive comments).