The legal battle between the Consortium of National Law Universities (“NLU”) and National Law University of India University, Bangalore (“NLSIU”) is a matter of interest to both lawyers and the aspiring lawyers. A lot of deliberations have been made on the competency of NLSIU to conduct separate entrance exam (“NLAT”) and now it is left to the Supreme Court to decide the matter on 21st September, 2020. Instead of going into those arguments, the present article discusses certain perspectives, which were not put forth before the Court.
Legitimate expectation of students not considered
When the students applied for CLAT in the month of March, 2020, they understood that they had a chance to get into NLSIU, the top most ranked Law university of the country along with other NLUs provided they cleared the entrance examination with appropriate merit. In fact, when the students paid the entrance fee of Rs 4000 (Rs 3500 for reserve category) for CLAT examination, they had the expectation to enter into any of the twenty-two NLUs of the country. When NLSIU backed out at the last moment and went on with its own entrance examination NLAT, the legitimate expectation of the students who had enrolled for CLAT was dashed on two fronts; first, they could not compete for NLSIU, and second, they could compete for only twenty-one NLUs though they had paid to compete for all twenty-two. True, the Counsellor for VC of NLSIU claimed that they had taken enough step to publicize the new development and also kept the examination fee a bare minimum. But this argument does not resolve the unanswered issue: when the students were required pay Rs 4000/- to appear the entrance test for admission to any of the twenty-two NLUs, they had to actually pay an additional Rs 150/-. The authorities cannot wish away saying Rs 150/- is a meagre amount. Taking a cue from Sr. Adv. Mr. Sankarnarayan’s analogy of changing the rule of game (cricket-football analogy) and Sr. Adv. Mr. Datar’s counter argument to it, the author would like to say that (if at all any analogy could be made), one bought a ticket of cricket match for 28th September, only to know that he would be allowed to watch a football match on 12th September with additional expense.
Even if the arguments of Sr. Adv. Mr. Datar is accepted that there was sufficient publicity for the examination and sufficient time was also made available to the candidates to apply for the new examination, the fact was that only 38% of students who had applied for the CLAT appeared for NLAT. What about the remaining 62% of the students? One must not forget that these 62% of the students had a legitimate expectation to get admitted to NLSIU when they had filled the form for CLAT examination way back in March. In Food Corporation of India v M/s Kamdhenu Cattle Feed Industries, a three-judge bench of the Supreme Court held that
he mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law.
In the same case, the court also agreed to the fact the legitimate expectation of one individual cannot be defined solely by his individual perception. When a question arises out of the legitimate expectation of a claimant, it has to be analyzed on the anvil of public interest and a decision needs to be taken. It may so happen that, other important factors may override the legitimate expectation of the individual. The public authority should take a bona fide decision after taking all circumstances into consideration. Such a decision will be non-arbitrary and stand the test of judicial scrutiny. In the present case, the legitimate expectation of more than 50,000 students were not given any weightage by the NLSIU. Moreover they made the situation of the candidates more onerous because when a student applied for CLAT in the month of March with a hope to get into NLSIU, he did not know he had to possess certain digital gadgets of specified technical specification.
Change of Policy was unreasonable and arbitrary
Punjab Communication Ltd. V Union of India may be referred where it was held that a change in policy can defeat substantive legitimate expectation if it can be justified on “Wednesbury” reasonableness. Does the last moment change of policy by NLSIU to conduct NLAT satisfies Wednesbury principle?
- NLSIU has taken factor which ought not to have taken into account
The prime mover for NLISU going for NLAT was its apprehension of a “zero” academic year, had the examination not conducted in the month of September. A zero-academic year can be declared by the Union Government. A parliamentary standing committee of Ministry of Human Resource and Development (now Ministry of Education) had ruled out the possibility of a zero-academic year. When JEE Advance 2020 (for admission into IITs) is scheduled on 27th of September and IITs do not suffer a zero-academic year, the concern of NLSIU (which takes students of similar educational background) is unfounded. The affidavit of NLSIU to the court says, if they don’t admit students by 18th of September, they would have to suffer a Zero academic year. Now as the Court will pronounce its decision on 21st September, what will be the locus standi of NLSIU? Will it declare a zero year or go for admission? It cannot approbate and reprobate on the date of admission.
- NLSIU has failed to take account of factor that ought to have taken into account
The NLSIU did not consider the factor of digital divide in the country. It could not have stressed upon a certain type of technical requirement as a precondition to sit for the examination, unless of course if it wants to limit the access of legal education to affluent elite. They failed to take into account that, not every student can have a laptop with uninterrupted internet supply. Of course, they made provision of test centres too, but are there any test centre in the state of West Bengal or in the North-Eastern states? In any case, they also did not consider the fact that there is inherent dissimilarity between attending examination from a mobile phone and from a laptop/desktop or attending examination from home and from a centre.
- NLSIU’s decision was so unreasonable that no reasonable authority would ever consider imposing it
The list of unreasonable decisions by NLSIU are far too great in conducting the NLAT. Firstly, they selected a home proctored online test, when the VC of NLSIU in his capacity of a member of the consortium of NLU had earlier gone on records to say that it was difficult to maintain integrity of examination in a Home proctored test environment. IITs did not go for it, neither did the NEET. Secondly, in a Home proctored test, a basic requirement to maintain integrity of the test is a safe browsing tool(“SAB”). Naturally, it was a requirement in the first press release made for NLAT. But SAB may not have been compatible with different operating systems. Instead of searching for an alternative or developing a SAB compatible for all OS environments, the requirement/ use of SAB was completely dispensed with. Thirdly, there was always a possibility of technical glitches in an online examination. And NLSIU’s solution for technical glitches was outstanding to say the least – “allow a retest”. Now, the candidates who took the retest can be divided into two broad categories- those who faced a technical glitch and those who did not face a technical glitch yet somehow got a chance to give the test. The second category candidates got two attempts to crack the examination while others got only attempt. It was not mere arbitrary but completely discriminatory. Even if it is considered the second category students did not exist, the first category got one extra day to prepare for the examination than others, rendering the decision to be discriminatory. And what about the students who faced technical glitches in the retest? And by the way, when the Supreme Court said, NLSIU could conduct test on 12th September, it did not mean it could also conduct on subsequent dates for whatsoever reason? Fourthly, NLSIU in their notification said, they would not be publishing a merit list. Only candidates would be intimated about their score and the cut off for it. How are they going to factor in the reservation, unless a select list of candidates is prepared? If they are preparing a select list of candidates, what prevents them to put up online for public disclosure. Fifthly, they claimed if the question paper of the examination was in public domain twenty minutes before the examination was ended, then it was a mere malpractice and integrity of examination was not compromised. Their Counsel told the Court that only one question at a time was available to the students and somebody copied it sent in social media. In fact, the whole of the question paper was downloaded from the source code of the program and transmitted across social media platforms.
NLSIU could have been conducted a safe Home Proctored Examination if it had enough time to make the system failure proof. But they acted hastely on the false premise of zero year and subjected thirty thousand students to unthinkable agony. The change of policy, as the NLSIU claimed, may be their prerogative, but the change was so manifestly arbitrary that it could not stand Wednesbury principles and hence violative of Art. 14 of the constitution.
The Supreme Court in Sayantan Biswas & Ors v National Testing Agency & Ors while dismissing the petition to postpone NEET and JEE (Main) beyond September held that
[t]hough there is pandemic situation, but ultimately life has to go and the career of the students cannot be put on peril for long and full academic year cannot be wasted.
Life has to go on. But such a life shouldn’t fall prey to vagaries of arbitrary decision making destroying the legitimate expectations of the students as well as subjecting them to worst form of confusion and wilderness. The author likes to conclude referring to one of the arguments of Sr. Adv. Mr. Datar before the Supreme Court. He said, NLSIU had two options, either online entrance examination at centers identified across the country or a home proctored online examination. NLSIU with 30 thousand candidates chose the second option whereas the NTA that conducted examinations like NEET and JEE (Main) and handled 22 lakh students chose the first one, without controversy and with all fairness!