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SC to judge NLAT on 21st • Day 2: Datar: Contract frustrated, biggest audit firm to do forensics • Narasimha: NLS come back to CLAT, lead us if you want to [ENDED]

The second day of the National Law Aptitude Test (NLAT) hearings in the Supreme Court is due to start around 11:30am today.

We’ll be liveblogging as we had yesterday, when it was an action- and also humour-packed hearing.

LiveLaw and Bar & Bench are again livetweeting the proceedings, we’ll be blogging them here live.

11:35: Senior advocate Arvind Datar is to start for the respondents (NLS), rebutting the points of the petitioners and the consortium yesterday.

Datar said he would address the following points.

1. He is starting off with the executive council vis-a-vis the academic council.

2. Could NLS have conducted a sparate

3. Safeguards in place for the exam?

The bench added, a fourth point: that a large number of candidates have been deprived, violation of article 14.

5. Regarding Locus - Datar says that Venkata Rao has no standing (though the bench notes: even if the first petitioner doesn’t, the second petitioner (either Venkata Rao or the third petitioner who who joined as intervenor from the Jharkhand high court?), clearly would have locus).

11:38: Datar claims the first petitioner (the parent of a purported Common Law Admission Test (CLAT) and NLAT candidate) has no locus because they could not find a record in the NLAT of them having applied for it.

The former NLS vice-chancellor (VC) Venkata Rao should not have locus either, since he’s neither a member of CLAT or NLS.

11:44: Now discussing whether NLS had power to exit the CLAT consortium.

Datar says that the consortium wrote a letter to NLS yesterday asking for transfer of more than Rs 4 crore CLAT funds from former treasury / secretariat on NLSIU campus to Hyderabad.

Bench responds: CLAT has to be held - leave the CLAT as is - these are all consequential actions because CLAT has to be held.

11:49: Datar now on second point on the issue of AC vs EC at NLS.

There are no regulations at all from 1987 from when NLS was founded specifically about admissions, apparently, says Datar, and the entrance exam was therefore not to do with the academic council (AC), which is responsible for maintaining the standards of education post-admission.

12:02: Going into some history, Datar cites examples of the AC having made recommendations in the past (such as to join the all India admissions test), but only for the executive council (EC) which has the sole authority to execute such recommendations.

12:06: Bench says: Once you are a member, you are bound by the rules of the society? Can you unilaterally go contrary to those rules?

Datar responds that the bylaws of the society are a contract. But in case of force majeure, the crux of the matter, can I make different decisions?

The bench asks again: Did you inform the consortium, the CLAT - if the examination is postponed, we are going to give our separate exam?

Datar: Yes, we have recorded this a number of times, he claims. From July we have been telling them, please don’t postpone it beyond September, I can’t take it.

12:08: Datar: There is a provision in the bylaws for any member to exit. NLS has not exited. But the CLAT consortium has said you are no longer associated. If they tell me, shift all my records to Nalsar, what does it mean?

Bench: But only after you left, did the consortium ask you to transfer the records to Nalsar...

12:15: Datar is listing examples of NLS not having agreed unanimously with the consortium always.

He’s mentioning each of the many CLAT postponements now.

12:18: Datar is mentioning several examples of when NLS registered its disagreement in consortium meetings, apparently.

However, the CLAT consortium kept press releasing that the decisions to postpone were unanimous.

12:20: This notification was not issued with my authority, NLS vice-chancellor (VC) Sudhir Krishnaswamy, sent a message to the consortium saying that he “strongly objects” to the notification having had his name and signature attached.

12:22: Datar says that NLS has said several times, please don’t postpone it beyond September, I can’t take it.

12:26: Why postpone to 28 September, asks Datar, just because of lockdown in West Bengal on 7 September when the CLAT was to be held? Why not just hold it on 8th?

Bench asks: but the consortium order was signed by VC Krishnaswamy?

Datar says: No, that was an email copy (i.e., that it had not been signed by Krishnaswamy).

12:29: Datar talks about how performance of contract became impossible for NLS (the consortium was a society under the Societies Registration Act, he says, arguing with the bench a little about whether it was a cooperative society).

12:39: He’s going through the bylaws of the society in more detail now.

I want to make it clear, this year we don’t take CLAT but next year we will go back. This year the only issue is my zero year problem.

The bench is asking for a conclusion.

The rules are in the nature of contract, and under nature 56 of the contract act, if I can not comply with my contractual obligations - frustration - I can take a stand, the bylaws reserve that right.

12:40: Datar adds: Petitioners are alleging that I have breached the regulation. What is their right to say so, when they violate their own general body rules and have a meeting without all the VCs and postpone to 28 September.

Also, what is their right to shift the headquarters to Hyderabad?

The bench says: The second issue (regarding moving HQs to Hyd) is not at discussion here.

12:41: Datar addresses purity of the examination process.

Bench: In your affidavit you have said you have no doubt and have taken steps.

Datar: We can’t on basis on affidavit and counter-affidavit say the exam was bogus.

Bench asking Datar to wrap up before handing over to senior advocate Sajjan Poovayya.

12:42: Datar mentions the NLS earlier affidavit before the Delhi high court by Krishnaswamy, at which he had sworn that a home-exam was not tenable.

Bench: Can you state, no now it can be done? Your affidavit was 25 August?

Datar asks for some time, since it’s a critical point.

Bench: When allegations of paper leak was there, but said it does compromise secrecy.

Datar, promising to finish in 5-10 minutes, says: Filed affidavit on behalf of the CLAT. Once decision taken to postpone to 28 September. My EC had told me if permission to postpone beyond 7th, has given permission to take measures.

Bench says: EC never said, hold a separate test. Just given VC the power to make a decision.

Live Law tweeted:

Datar: Affidavit in Delhi HC against home-based exam was for basis of #CLAT as it involved 80,000 students. Justice Bhushan: But your EC never said you have to hold a separate exam. They only delegated the power to you to take a decision. https://t.co/uHBFvnAJLc

— Live Law (@LiveLawIndia) Thu, 17 Sep 2020, 12:46

12:45: Datar says Lordship got admission that we admitted that whole thing was impossible now we’re doing it, and now seeking to counter it.

12:47: Datar reading from counter affidavit of NLS.

12:51: Bench: Fact remains that students who have prepared for 2.5 hours examination, before 10 days they are now at the last moment told to prepare for a 45 minute examination.

Bench: The issue is with respect to preparation.

Datar promises he’ll answer the question.

12:53: Datar: What I’m submitting is the exam should be at home based on time constraints, due to my zero year problem.

But syllabus and question pattern is same for students who have prepared for CLAT.

Only from 2 hours I’ve shrunk it to 45 minutes.

12:54: Bench: Mr Datar, we have given you 1 hour, exam time was less than 1 hour, now your time is over.

Hilarity ensues.

12:56: Bench asks: Only 23,000 appear only. Why only 23,000 appear, according to you?

Datar: 78,000 were there, all of them had the chance to appear for 150 rupees. Some persons may say, I may not qualify for NLS, I don’t know, I’m not able to answer that question.

12:57: Bench: Because of shortage of time they were deprived of making application?

Datar: No no no. They had 9 days to apply, more than enough time to apply. 25,000 students applied. I have given details of how before and after the exam, I put so many checks and safeguards.

According to affidavit, there is going to be forensic audit.

The organisation that has conducted, the most leading science and technology cover, one IIM has conducted home exam from this institute.

We chose from 4, selected best institute.

Biggest audit firm in India will conduct forensic audit.

12:59: Datar says that a zero year is not a bogey. If your lordships don’t permit this exam, the entire year is gone.

Gopal Sankaranarayanan had said 150 engineers took the exam just to see how bogus it is.

An open site has been made by Mr Gopal Sankaranarayanan to collect complaints.

13:01: Datar: We can detect through cameras and artificial intelligence, we have enough safety measures to ensure the cleanest possible process.

Datar is done, Poovayya, is up.

Sajjan Poovayya for Sudhir Krishnaswamy

13:02: Poovayya appears directly for the second respondent, VC Sudhir Krishnaswamy.

We have not conducted this exam without certain rigid measures to prevent malpractices. It is not a joke, Poovayya says.

He is saying that my exam is of a lower pressure - of around 1 minute per question - whereas CLAT has 150 questions in 120 minutes.

No child can complain you are giving me more time for lesser number of questions, he says.

13:04: Poovayya points to the rejoinder: law school says, yes there have been some malpractices.

I will straightaway say, it has come to our notice that when we conducted this exam we have detected certain malpractices, we have zero tolerance, but it will not affect integrity.

It is true that when we look at an exam that is taken from a house, juxtaposed to our traditional practice of an exam at a centre, 2 submissions...

1. In a physical exam, invigilation takes into account physical exams.

2. In a remote exam, invigilation is not limited to - a small part of the invigilation is after the exam and data is collected.

Once I log onto to my system, everything that I do, including the pattern of my keystrokes is recorded for data, for example. If Sajjan Poovayya in first 35 minutes has slower keystrokes and all answers are right, the intelligence that is gathered, can find this out, because no uniformity in keystrokes, he says.

13:08: Poovayya continues: During the exam any monkey can try to cheat the system, more students do so possibly, that is the order of the day. Either during the examination itself, or post examination, artificial intelligence (AI) tracks the behaviour:

a) when switches it on

b) duration of each window switch incident

He explains, I can switch between between windows on teleconference, even in this hearing - the lordships would not see. But he can switch between windows.

One of the largest firm will do a forensic audit to see if Sajjan Poovayya has switched between windows.

c) answer behaviour pattern. Like I said - first 20 minutes all answers wrong, second 20 minutes someone prompted the paper - all answers right. Maybe a 3rd party prompted the right answer (after an exam paper was leaked).

d) candidates’ keystroke data. When I start typing my lord, the exam answers.

Our traditional wisdom of a question of a leaked paper does not apply for online: 1st there is no single question paper for everyone. But the question, when the question are issued.

Proctoring is physically done, to see if somebody coming in.

Can have longer cable and another keyboard attached? Poovayya claims that this can be detected by the browser-based software.

13:13: Poovayya: I (Krishnaswamy) put it to the entire faculty of the university, which is even better than the academic council and took a unanimous decision that home-based exam is the best method.

It was not my private decision.

13:15: He’s talking about the leak of the paper during the retest now. But the answer key was not out yet.

But he’s saying it could not have gone out: he managed to download the entire question paper, 20 minutes into the exam.

Once the question paper is out, what is the issue of a leak?

13:17: Poovayya now talking about postponements of CLAT: The only body to take decision of postponement, nobody other than 22 members, are able to take decision which impinges privileges of 22 members.

P: The executive committee of CLAT consortium has no authority to take decision on behalf of consortium, unless that power is delegated to the executive committee.

He’s now referring to the bylaws. The work of the CLAT executive committee should only work by the power delegated to it by the governing body, he says.

13:19: Poovayya: The exec committee of 7 out of 22 members did the first postponement. NLS did not protest back then.

P: The next postponement, also by the exec committee, NLS did not protest.

P: The next delays in August, to an indeterminate future date, Krishnaswamy objected to the notification. An early version included Krishnaswamy’s signature, but a later version had his signature removed.

P: There is not one other university in the country that has a trimester system (Sankaranarayanan has withdrawn that NLIU Bhopal does, says Poovayya).

Poovayya did not defend the merits of such a system but admitted that as many of the counsels arguing (which are NLS products) knew such a system to be “hell”.

13:24: Poovayya: When the decision was taking on 28 August to postpone the CLAT 28 September, NLS VC was implementing the decision to implement decision taken by his EC and faculty.

13:26: Poovayya: We have received report of malpractices. No doubt.

P: In my proctoring, I have put in a system, we will disable those candidates. If those candidates have a problem, they will sue me, I have no problem.

Requesting NLS to come back, please lead us if you want to: Narasimha for CLATs

13:29: Senior advocate PS Narasimha, on behalf of the consortium, says that the offer from the consortium stands and has been in the very beginning: that NLS can come back to the consortium.

Narasimha says: We are requesting NLS to come back, lead us if you want to.

N: What we are all concerned here is to save the institution.

N: Today the question is of the very existence of the institution: what happens to this institution. All national law schools come together, pool together their statutory authorities, and have created this.

N: Today one of the members says, we are again a private Karnataka institution. That’s not the way your Lordships will look at it. Your Lordships will look at it as institutions amenable to writ jurisdiction.

13:32: Narasimha says: The bylaws of the consortium

Bar & Bench tweeted:

Narasimha: After the judicial intervention and efforts of all the stakeholders of coming together, the consortium was formed for the purpose of holding a common entrance exam for the students https://t.co/63m80ZOORR

— Bar & Bench (@barandbench) Thu, 17 Sep 2020, 13:33

13:36: Narasimha: Even assuming there was dissent by NLS with consortium (though he says there is no documentary proof of this), NLS did not give any notice of its intention to conduct its own exam.

N: Making concluding remarks. The matter pains me, I was involved from the very beginning, pre-consortium and post-consortium, a lot of difficulties faced.

N: Coming together of all these people together is one thing. Creating a common exam is another thing. Creating a consortium another. And ensuring NLUs come together.

N: Just imagine the situation: one of the premium colleges says, please permit us and [hold our own exam].

N: It is not in the nature of a club or an individual contract or agreement of the parties. All of them observe a very important public law duty.

Everything will collapse, says Narasimha, implying what would happen. It is an unnecessary and unfortunate incident, he concludes.

13:40: The bench is keen to close, says it has heard everything.

Nidhesh Gupta responds for petitioners

13:40: Nidhesh Gupta wants to respond to points by Datar, says they are important factual points regarding intricacies of the CLAT consortium’s bylaws.

G: Also contesting points in Krishnaswamy’s affidavit, that the NLS VC has never claimed in his affidavit that he had not signed certain orders of the consortium. Has he said anywhere it is not my signature?

G: Regarding the argument that NLS has autonomy, he says it is still subject to work within the frameworks you have agreed.

Bench is asking senior advocate Nikhil Nayyar, who appears for the Jharkhand high court intervention by five students.

Nayyar up for Jharkhand petitioners

13:45: Nikhil Nayyar: Wants to argue for five minutes with a few additional points. Refers Lordships to their own NEET judgment (in Christian Medical Colleges case from April 2020).

NN: In that the Supreme Court noted 5 features of a standard test.

The NLAT should also comply, he says.

NN: When the first press release came in December 2019, students had five months.

NN: All those submissions about ECs and other bodies are “hypertechnical” submissions, how are students concerned with that?

NN: One very important feature in NLAT - CLAT says negative points for wrong answer; the NLAT has negative points also for no answer.

NN: Now notified that three questions are wrong and have been withdrawn.

NN: Regarding zero year... what is the answer for a zero year? What is the real concern for zero year? It is a loss of Rs 17 crores of fees annually that they are concerned about.

Gopal Sankaranarayanan with final right of reply

13:52: Sankaranarayanan: Explain to your lordships who are the members of the academic council today. Justice Indu Malhotra and four other judges of the Supreme Court, three members of the Bar Council, and members of high court advocates.

GS: In the bylaws, specifically mentions in the Act of NLS, clause 13 deals with who the members are. It’s not a hierarchy as Datar had argued. Executive council will execute, but AC has definitive powers.

Bench: Judgment on Monday.

Monday, 21 September, is of course, three days after the date (18 September) that NLS had announced on its admission page that it would start its term.

The final results and admissions were scheduled for 15 September originally, and were updated to be scheduled for 16 September (yesterday), according to the NLS admissions page (see below).

The physical CLAT, so far, remains scheduled for 28 September.

NLS timetable slips dangerously close to CLAT
NLS timetable slips dangerously close to CLAT

Live blog over and out.

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