New law doesn't address large-scale, systemic impact of cheating in public exams: Advocate Vikram Hegde

In the wake of the furore arising from the misconduct of the National Eligibility cum Entrance Test (NEET) and other exams, the Central government on June 21 notified the Public Examinations (Prevention of Unfair Means) Act, 2024..The law is purportedly designed to punish unfair practices and prevent question paper leaks in public exams.The Act puts out an exhaustive list of what constitutes using "unfair means", including within its ambit leaking question papers, tampering with answer sheets, manipulating seating arrangements, creating fake websites to cheat for monetary gain etc..This is not the first attempt at addressing the issue of unfair means in public exams. Several states have periodically introduced their own anti-cheating laws for examinations. Rajasthan enacted such a law two years ago, while Andhra Pradesh and Uttar Pradesh have had similar laws since 1998 and 1997, respectively. In 2023, Gujarat , Uttarakhand and Karnataka also introduced measures to prevent cheating..So does the new law effectively address the issues that have prompted student protests across the country? Will it ensure that exams are conducted with fairness and integrity?Bar and Bench's Ratna Singh spoke to Supreme Court Advocate Vikram Hegde to gain some insights into the implications and effectiveness of this new law.Edited excerpts follow..Ratna Singh (RS): What are the differences between the existing law and the new Act?.Vikram Hegde (VK): The general offence of question paper leakages and cheating in examinations was being prosecuted under Sections 406, 409 and 420 of the Indian Penal Code (IPC) which pertain to the offences of criminal breach of trust, criminal breach of trust by a public servant or agent and cheating, respectively. The punishment in those cases under Section 406 is imprisonment upto three years; under 409, the punishment is ten years upto life imprisonment; and in 420 it goes upto seven years. So in a sense, perhaps the punishment for offences that are prescribed under this Act is lesser, because it goes upto only five years for the members of the general public. For public service providers, a heavier penalty has been imposed, where it can go upto life imprisonment or ₹1 crore fine also..RS: What are the areas that haven't been adequately addressed by the law?.VK: In a general sense, the law is directed only towards punishing malpractices. There is no other positive measure that these public authorities are enjoined upon to undertake to ensure that this sort of cheating in examinations doesn’t take place or that at least the possibility of such cheating in examinations is minimised. That is one larger drawback, I would say. The other drawback is that there are some specific kinds of cheating which are very common and well-known, which perhaps has not been covered under the definition of “unfair practices” as defined. To give an example, impersonation. We have had cases where there are people who for money pretend to be one of the candidates and go write the exam on their behalf. Typically, these are people who have been successful in very same examination previously. These situations are not specifically covered under this Act..RS: While the Act contains an exhaustive list of what constitutes 'unfair means' is there any mechanism to prevent such unfair means in public exams?.VK: That is one of the major drawbacks of the Act; other than prescribing punishments for using unfair means, there is no protocol that is laid down in terms of what are the basic safety measures at these public exam authorities that have been named in the first Schedule of the Act. What are things that they should take, what is the sort of strong room procedure that they should maintain. Maybe these can be prescribed by rules made thereafter, but at least some sort of indication of all these things could have been given in the Act. This would have given some sort of guidelines and at least a benchmark for all these authorities..RS: The Common Law Admission Test (CLAT) and other entrance exams for government law universities do not currently come within the ambit of the Act. Do you think they should?.VK: If we look at the entire scheme of the Act, and in particular, some of the provisions which pertain to fact that this can be a model draft for states to adopt, it becomes apparent that this Act is geared towards covering only Central government examinations or examinations that fall within the purview of the Union government. CLAT is conducted by the Consortium of National Law Universities which was created by the respective statues of the various states. For that reason, perhaps CLAT would not fall under the definition of these public authorities or would not fall under the scope of this legislation. That said, since this Act seeks to be a model for states to adopt, CLAT can be brought under a similar legislation at a different point of time, perhaps in a slightly different manner..RS: Do you see the enforcement of the Act decreasing the litigation initiated by students directly before the High Courts and the Supreme Court?.VK: This Act I think is only good for handling individual cases of cheating. It doesn’t take into account the large-scale, systemic impact of an instance of cheating. For example, if we take a look at the cheating that has alleged to have taken place with the NEET examination, there are supposedly some exam centres which compromised the process. Maybe the administrators at those examination centres would be punished, prosecuted under this legislation and maybe the individuals responsible for cheating would be prosecuted under this legislation. That still would not change the fact that the wider examination has been compromised. At the larger level, lakhs and lakhs of students who wrote the exam do not have the feeling that the exam had been a fair process. To that extent, it may not reduce the sort of litigation that goes to the High Courts or the Supreme Court with regard to these examinations. The other aspect is that a lot of the litigation that comes up before the High Court is at the stage of counselling and that involves a lot many things that are not under the purview of this Act..[Watch Interview Here]