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SC quashes NLSIU’s problematic NLAT due to AC, 0 year-0, access, notice • NLS may take over CLAT sec’y again [READ JUDGMENT]

This puts a (temporary) end to just over 2 weeks of dramatic events

NLS to rejoin CLAT post SC orders
NLS to rejoin CLAT post SC orders

The Supreme Court has ruled that NLSIU Bangalore’s National Law Aptitude Test (NLAT) exam as invalid, accepting nearly all arguments of the petitioners and rejecting nearly all of NLS’.

The exam had been announced at short notice in a break from the Common Law Admission Test (CLAT) and was marred by technical issues.

Update 11:55: NLSIU has updated its admissions microsite with a link to the final judgment (see screenshot above).

The Supreme Court bench of justices Ashok Bhushan, R Subhash Reddy and MR Shah has now ordered NLSIU to re-join the CLAT 2020 process.

SC quashes NLSIU’s notification on #NLAT2020. SC says that the NLSIU shall conduct its admission process in accordance with the CLAT 2020.

The CLAT completion of results be completed as early as possible so that the Courses by all NLU’s can begin by mid-- October 2020. — LiveLaw

After two days of intense arguments, their lordships have now put the NLAT genie back in the bottle.

What is unclear is how, if at all, NLS will unravel the application fees of the 27,000-odd applicants and how it will re-integrate back into the CLAT system.

Also, NLS will now need to restructure its trimester system and syllabus in order to adjust for the later start date.

We have reached out to NLS, the CLAT convenors and the petitioners’ lawyers for comment.

Update 19:59: NLS has announced it would refund the Rs 150 application fees per candidate, after subtracting Rs 75 “processing charges”.

Update 22:25: Prof Faizan Mustafa hs also made a statement on behalf of the consortium, urging bygones to be treated as bygones.

'Unbelievable truly'

Advocate Shubham Gautam (an NLIU Bhopal 2015 graduate), who had pro bono filed a case in the Jharkhand high court with advocate Baibhaw Gahlaut, and intervened in the Supreme Court case with Kush Chaturvedi (AOR), Aditya Shekhar and Priyashree Sharma, commented:

Filing the case the very next day of notification, getting listed on urgent basis and then losing in Hon’ble Jharkhand High Court. Still appealing before SC And then winning! It’s been one hell of a ride. Happy is the word. This is unbelievable truly. When all decisions have gone against students, the decision of the Hon’ble S.C. comes as a sunshine.

I sincerely thank all the students who agreed to be the petitioners, learned senior advocates who argued on behalf of the petitioners, my colleagues Baibhaw Gahlaut, Aditya Shekhar and AOR Mr. Kush Chaturvedi. Now the students can reward us by performing well in the CLAT 2020 exam. We wish them all the best.

The Supreme Court also ordered that NLSIU should (‘may’) become treasurer / secretary of the CLAT consortium again.

(V) The respondent No.3 may take decision at an early date restoring the status of respondent No.2 as the Secretary-Treasurer of the Consortium as well as restoring the Secretariat of the Consortium as to NLSIU, keeping in mind that scheduled exam of CLAT-2020 on 28.09.2020 is not hampered in any manner.

The judgment

The Supreme Court rejected nearly all of NLSIU’s arguments, starting with its contention that the petitioners’ lacked standing to bring their writ.

However (see below for more detail), the court decided (perhaps wisely, considering all the technological quagmire and buzzwords) that it did not need to enter whether NLS would have been able to catch cheating or not (though the justices expressed “no doubt” that the “premier university... “must have taken all necessary precautions to avoid any malpractices and cheating”.

Access under article 14 was key

The judgment concluded that the main issues were “transparency and integrity” of the exam and its short notice:

95. We thus conclude that home based online examination as proposed by the respondent No.1 University for NLAT- 2020-21 could not be held to be a test which was able to maintain transparency and integrity of the examination. The short notice and technological requirements insisted by the University deprived a large number of students to participate in the test violating their rights under Article 14 of the Constitution of India.

Not persuaded by zero year argument

The judges added that they were not convinced by NLSIU’s rationale that it had been forced to start the NLAT to avoid a so-called ‘zero year’ write-off of the 2020-21 academic session for new joiners:

86. We are not persuaded to accept the submission that “Doctrine of Necessity” was applicable in the fact situation of the ongoing pandemic. As noted above, UGC in its guidelines dated 29.04.2020 has already asked all the Universities to modify their academic calendar for the academic year 2020-21. The UGC being the body to maintain standard of education in the entire country and having contemplated for suitable amending the academic year, “Doctrine of Necessity” does not arise.

We thus conclude that being members of the Consortium respondent No.1 ought not to have proceeded with holding a separate test namely “NLAT” nor the academic year 2020-21 be required to be declared as “zero-year” even if the course starts in the mid of October, 2020.

NLS failed in not consulting its academic council

As had first been raised publicly by Nalsar Hyderabad VC Prof Faizan Mustafa, and as we had confirmed that the NLSIU academic council (AC) indeed had not met, the Supreme Court agreed that NLS notification for the NLAT was invalid without prior AC recommendation:

62. We, thus, are of the considered opinion that respondent No. 1 was required by the Statute to obtain recommendation of Academic Council before proceeding to hold NLAT by issuing admission notification dated 03.09.2020.

We, thus, in view of the forgoing discussions, hold that admission notification dated 03.09.2020 issued by respondent No.1 could not have been issued without obtaining the recommendation to this effect by the Academic Council. Admission notification dated 03.09.2020 having been issued without recommendation of Academic Council is not in accordance with the provisions of Act, 1986 and is unsustainable.

Technology: Trust in Number 1 NLU (and anon forensic consultancy)

On the other hand, the Supreme Court was not really interested in going in more deeply into instances of cheating or faulty technology, saying it placed faith in NLS’ statements in court that its systems were robust enough:

100. It is submitted that extensive technological and other measures are implemented to ensure that any candidate attempting any form of malpractices is caught and disqualified from the process either during the exam itself or after the post examination during audit and scrutiny.

101. Shri Datar submits that NLAT 2020 has made use of a combination of Artificial Intelligence and human Proctoring. It is further submitted that in order to give full effect to human and Artificial Intelligence proctoring measures available post examination, respondent No.1 appointed a leading audit firm to carry out an independent forensic audit and assessment of data relating to the examination and submit the report. He submits that care and precautions were taken by University for conduct of free and fair test and on the basis of some media reports and few materials brought on record, it cannot be concluded that the examination is marred by malpractices especially in proceeding under Article 32 of the Constitution.

...learned counsel for the parties, we are of the view that for the present case, it is not necessary for this court to enter into various materials referred to by the petitioners and the reports and to decide as to whether malpractices were actually adopted in the examination or not. Respondent No.1 being premier University, we have no doubt that it must have taken all necessary precautions to avoid any malpractices and cheating in the examination.

The Supreme Court judgment quashing NLAT

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