Zoheb Hossain
Let’s start this piece with a multiple choice question – CLAT style.
a.Calamitous Law Admission Test
b.Catastrophic Law Admission Test
c. Chaotic Law Admission Test
d. All of the above.
Instead of giving you an answer key, I will let you decide the answer to this question after reading the following piece.
Unaddressed Concerns of Cheating
At the outset, it must be clarified that this was not just a case highlighting grievances on account of loss of time by students and thereby developing a formula to compensate for such lost time. On the contrary, Para 4 of the judgement, which extracts paragraph 14 of the Report of the Grievance Redressal Committee itself records at item number (9) the following as one of the complaints received from students namely, “deliberate cheating by closure of browser”.
For the sake of the uninitiated, let me elaborate a bit. This above complaint was specifically averred in Writ Petition No. 600/2018, being one of the petitions which was heard and disposed by the Supreme Court. The said writ petition was filed on behalf of 29 students from 6 different states, all of whom had made similar complaints about the technological glitches with the exam interface.
The students complained that the browser would freeze in the middle of the exam, even if a student touched the keyboard by mistake. Thereafter two options would appear on the screen namely, “Start “and “Restart”. If the students, after conferring with the invigilators, chose “restart” as the option, they would go back to where they had left and continue their exam even though it would be fraught with technological glitches and the consequent loss of time as well as loss of focus and concentration.
However, the more egregious part is that several dishonest students figured out that if they press the “start” button they would get to re-do their papers entirely and start from scratch, irrespective of where they had reached in their first attempt. It is worth considering that this is a competitive examination where students are being evaluated on comparative merit and are required to answer 200 questions in 120 minutes meaning 36 seconds for each question.
Therefore, if a student gets a second bite at the apple after having seen all the questions and considered them, he or she gets a huge competitive advantage over those honest students who waited for the invigilators to help and advise them. This is a clear case of an Article 14 violation, wherein the underlying technology is such which enables inherent discrimination between students, rendering the entire process arbitrary and unreasonable.
It must be stated that the Grievance Redressal Committee did not consider several complaints because it would require evidence and on the spot verification. The only complaints considered were on the basis of the audit report prepared by the service provider i.e. Sify Technologies Ltd. Therefore, even the Committee did not have the occasion to examine the above issue, which it candidly mentioned in its report.
The Committee also found that the CLAT 2018 examination was fraught with various imperfections and catalogued the major defects. It was also noted that the service provider was duty-bound to provide trouble-free software, which it had failed to do.
The Case for a Re-test
With the above findings, it proceeded to give two options to redress genuine grievances, one of which was cancellation of the entire test and re-conduct thereof. However, it advised against re-examination in light of the magnitude of the requirements needed for the same and to ensure smooth admission of successful candidates during the current academic year. Therefore, the observation of the Hon’ble Supreme Court in its judgement dated 13/06/2018 at paragraph 8 to the following effect may not be entirely correct:
“The idea so projected is pointing towards loss of time and inconvenience and not suggesting that the purity of examination process was in any way compromised so as to annul the entire process.”
On the contrary, the arguments above clearly show how the underlying technology and the glitches therein had tainted the entire process. It was even suggested to the Court that the mandatory General Instructions issued by the CLAT Committee itself stated that CCTV cameras were required to be installed in each examination hall and the video footage therein should be examined to verify the veracity of the claims made by the students.
The writ petition had also made averments with respect to mass cheating in some centres and it was requested that the Committee should look into the video footage of those centres. The students had also alleged that the CCTV cameras in several centres were dysfunctional with wires wrapped around them or that the camera was facing the wall defeating the whole purpose of having CCTV in the first place. In light of the above allegations, it was the argument of the petitioners that the sanctity of the entire examination was tainted. and therefore a re-examination was the only way forward.
Under these circumstances it would be instructive to examine the precedent in the case of Tanvi Sarwal v. CBSE & Ors. In that case, the Supreme Court, while cancelling the All India Premedical and Pre-Dental Entrance Test of 2015, had held that though it was impossible to identify the beneficiaries of the leaked papers and that even though 44 candidates had been identified, since there would be a lurking possibility of unidentified beneficiary stealing a march over honest candidates, the examination stood denuded of its sanctity.
In the CLAT case, these arguments were made before the Court, which was only inclined to give partial relief of granting extra marks for time lost based on the formula where students who have lost time would have to be compensated in terms of their estimated average efficiency in answering the other questions.
Exorbitant Fees
There are some other alarming details which have emerged after the direction of the Supreme Court to the Grievance Redressal Committee to file its report. Along with the report, several annexures came to be filed which were also made available to the petitioners and the counsel by the Registry of the Supreme Court. Among these documents was the agreement entered into by NUALS, Kochi with the service provider, Sify Technologies Ltd dated 23/11/2017, wherein the scope of work of the service provider is stated as follows:
“the scope of work includes inter alia to enable CLAT 2018 as parents to submit online application, facilitating fee collection through recognised and accepted payment gateways and through challans, processing application, issuing hall tickets, conducting computer based online test at various cities in India (130-150 centres spread over 60 to 70 cities/locations including north-eastern states and Jammu and Kashmir), uploading answer keys, providing opportunity to view one’s own answer sheet, facilitating objections on questions/answers online by the candidates, uploading revised answer keys, if required, preparation of merit and ranked lists as per the reservation norms of various states (category-wise) and allotment of seats among participating universities based on merit and choice of the candidates and re-allotment of seats by shifting candidates to other participating universities based on subsequent vacancies, for which first party is required to prepare the seat allotment list in 3 to 4 successive stages.”
Therefore, it is evident from the above that apart from setting the question paper and supplying the answers to the service provider, NUALS had no further role to play in the entire scheme of things. If that be so, then what is the justification of charging students ₹4000 per form, when as per the agreement, the consideration to be paid to Sify is ₹ 210.04 for each candidate?
The Supreme Court has taken due cognizance of this fact and directed a thorough enquiry into the above issue to examine the need for such a huge mark-up.
Approximately 54,000 students have taken the exam this year, which means that an amount of ₹21 crore 60 lakh was collected from the students, whereas approximately ₹1 crore 13 lakh was paid to the service provider.
NUALS, being a public university created under the statute, is answerable to the students and their parents for charging such exorbitant fees for the form and as pointed out above, making a huge profit out of the examination.
Clause 40 of the agreement with the service provider further provides that “if any unfair practices or operational shortcomings are identified by the second party and conduct of re-examination become necessary, the same shall be carried out by the first party at no additional cost as per the directions of the second party.” Therefore, a re-examination would not involve any further cost to NUALS, Kochi, which is an additional factor which weighed in favour of the said option.
The Service Provider
It has also come to light that the E-tender notice dated 16/10/2017 for selection of service provider in clause 16 clearly stated that “the bidder should not have been blacklisted by central/state government departments/undertakings/institutions. The bidder should not have had any complaints of leakage of question paper, leakage of question bank or mismanagement of exams. An affidavit in respect of the above should be submitted at the time of submission of the bid.”
Prima facie, it appears that the above condition has not been complied with, since Sify has had reported cases of mismanagement of exams. For instance, this and subsequently this. The veracity of these reports ought to have been considered by the CLAT Committee, before awarding the contract to the service provider, or even after these reports came to their attention which were widely reported.
When a public authority, falling within the definition of “State” under article 12 of the Constitution, collects money from students, it is incumbent upon such authority to account for the same and to ensure that public money is being spent in the most efficient manner possible without causing any loss to the public at large. Education of students is a matter of public and national interest and especially that of future lawyers, who will be major stakeholders in the justice delivery system. It is in the interest of the nation that qualified and meritorious lawyers emerge from the legal education system but if the fountainhead itself is spoiled and the entire process is sullied, the credibility of the system is seriously damaged.
Small Victories
In para 13 of the judgement, the Supreme Court has considered all of the above arguments and has rendered a finding that there was complete inadequacy on the part of the service provider in fulfilling its duties. It has even directed the Centre to appoint a committee to look into the matter and take appropriate remedial measures including penal action against the service provider.
The Court has also shown concern that no such instances should be repeated in the coming years. Interestingly, the Court has also observed that the idea of entrusting the task of monitoring the conduct of the entire examination to different law universities every year also needs to be revisited. On the arguments regarding the excess fee charged by the examining authority, the Court has directed the Committee to bestow its consideration to the above aspects and seek inputs from the Bar Council of India. It has further directed filing of a detailed report within three months from the date of the order.
The positive directions by the Supreme Court should be implemented with utmost seriousness and the Union of India should consider a permanent solution to the above problems so that the future of the students is secured and such gross mismanagement of national entrance examinations is not repeated.
In any event, the students who have not succeeded this year should not lose hope. It was their collective intervention both within Courts as well as their advocacy on social media platforms, which created significant awareness on the issues plaguing CLAT 2018, thereby resulting in positive directions by the Supreme Court to the authorities concerned.
This will go a long way in serving as a strong deterrent against arbitrary, casual and callous approach of the authorities in dealing with the national law entrance exams. I have also been informed by the petitioners that almost 800 students have benefited from the compensatory formula adopted by the committee in granting marks for loss of time. However, the long-term effects of the directions are to be tested depending on the seriousness with which the concerned authorities, especially the Union of India, follow through on the directions of the Supreme Court.
Zoheb Hossain is a practising Advocate of the Supreme Court of India and the Delhi High Court and had appeared for the Petitioners challenging the CLAT 2018.