NLAT 2020: Is it really wrong?

[Ed Note: We recently published a two-part post written by Bhavisha Sharma and Dayaar Singla on the NLSIU’s decision to conduct NLAT which can be found here and here. Given the nature of the controversy, we had invited response pieces on the matter. We now have an interesting perspective responding to these arguments.]

Events that have unfolded over the past few days have sent shockwaves across the legal fraternity. First came the unilateral announcement of the NLAT by NLSIU, which led to a heated exchange of words between NLSIU administration and the CLAT Consortium represented by Prof. Faizan Mustafa. Simultaneously, students across colleges and states turned to social media to vent their anguish at having to write another entrance exam, that too with such short notice. Several petitions were filed, most notable of which was the one filed by the former vice-chancellor of NLSIU before the Supreme Court claiming that the NLAT would create ‘islands of exclusion’. The Supreme Court has not yet decided on this matter, and had recently allowed the test to be conducted, with the caveat that admissions could take place only after a final judgement of the court. The decisions made by the current Vice-Chancellor of the NLSIU have been widely criticized for many reasons. Recently LAOT, published a two-piece analysis of the overall situation, dissecting the various wrongs and shortcomings of NLSIU and NLAT. In it, the authors analyzed the legality of the recent actions along with its desirability from an equality standpoint. In this article, I shall attempt to briefly respond to a few of the arguments raised by the authors. I shall mainly argue two things: first, that the CLAT Consortium has no authority to remove NLSIU from the Consortium, and second, that the arguments regarding inequality are misplaced.

Legal Authority

Context

Before we dig into the Bye-Laws of the CLAT Consortium, it is important to distinguish between the CLAT Exam, which is the national exam to determine admission into NLUs, and the CLAT Consortium, which is the registered society that, inter alia, conducts the exam. While the CLAT Consortium emerged out of the necessity to conduct a common legal aptitude test, a perusal of the Bye-Laws suggests that this is not the sole purpose of the society. Rather, as per the Bye-Laws, the society has a wider mandate to provide the highest standards of legal education for each Member institution, to make Indian legal education comparable with the reputed international institutions of legal education and provide for matters connected with the admission of a Member institution (Cl. 3.3). Among other things, the Consortium envisages greater sharing of resources and expertise among its members with a goal of furthering the quality of legal education in the country. The functions of conducting a common entrance test (Cl. 3.3.5) and evolving common admission policies (Cl. 3.3.21) are but 2 amidst the 31 other functions of the society, which include the sharing of library resources (Cl. 3.3.18), creation of a credit-sharing system (Cl. 3.3.15), and attracting international students and participating in the globalization of legal education (Cl. 3.3.28). There is no contradiction, therefore, between NLSIU pulling out the CLAT this year, and still wanting to continue with its membership within the Consortium. By merely opting out of the common exam, particularly considering the prevailing COVID-19 circumstances, it cannot be said that NLSIU violated the Bye-Laws.

Conditions of eligibility

In addition to that, the powers of removal possessed by the General Body of the Consortium are also quite limited. The Bye-Laws do not have a provision for the removal of a member, though they do allow a member to voluntarily withdraw from the society by giving due notice to the Secretary-Treasurer (Cl. 15.7). In order to fit their argument, the authors have read the phrase “becomes ineligible for membership” under Cl. 15.7.3 along with Cl. 7.3.8, which allows the Executive Committee to impose or recommend sanctions upon any Member institution to argue that the Executive Committee can, by a decision, make any member institution ineligible for membership. I disagree with this argument for the main reason that such powers cannot be implicitly granted, in the absence of any explicit provision authorizing the forceful removal of a member. The Bye-Laws do not envisage the removal of a member, save by their voluntary withdrawal, and the Executive Body does not have the authority to do the same. Instead, I argue that the determination of eligibility can only be made under Cl. 15.2.4, and on no other grounds. Cl. 15.2.4 reads as follows:

In determining whether a Member institution fulfils and can continue to fulfil the obligations of membership, the controlling issue is the overall quality of the school measured against the standards of quality articulated in Clause 15.3 and satisfaction of the conditions enumerated under and the individual enactments establishing the applicable NLU.

Clause 15.3 contains several provisions describing the standards that the society expects its members to follow. This includes requirements such as academic freedom (Cl. 15.3.3.3), excellent scholarship (Cl. 15.3.2.4), and a rigorous academic program (Cl. 15.3.2.6). However, Clause 15.3.3, also states that:

In order that appropriate intellectual rigor may be maintained, a Member institution shall ensure that admission to every academic course or programme of study in each Member institution shall be based on merit assessed through a transparent and reasonable evaluation namely CLAT operated by the Society, prior to admitting any student.

This is the main provision that NLSIU is said to have violated, and the apparent reason for its removal. However, in order to determine whether a contravention of Cl. 15.3.3 would lead to a disqualification of a member, we need to look at the scheme of the bye-laws to see if it is a mandatory or a directory provision. I argue that this provision is merely directory, because an alternative construction would render every single NLU ineligible for membership. Under Cl. 15.3.3, “admission to every academic course or programme of study in each member institution” is supposed to be conducted through the CLAT. Note the use of the phrase “every academic course or study”. Most NLUs offer various PG degree and diploma courses that have alternative means of admission, some have interviews, individual tests, etc. that are conducted outside the ambit of the CLAT. Reading Cl. 15.3.3 as mandatory would make every institution automatically ineligible for membership! In addition to this, the absence of strict monitoring requirements for the requirements under Cl. 15.3, and provisions providing for removal in case of non-adherence to Cl. 15.3.3 suggest that it is not intended as a mandatory provision, the violation of which would automatically disqualify a member. Commenters have also pointed out that NLSIU might not have received sanction from its Academic Council, which is a mandatory requirement under the NLSIU Act; however, it must be remembered that the absence of evidence is not the evidence of absence. Unless it is confirmed that such approval was never obtained, that allegation is merely baseless speculation. On the whole, a legal ground for terminating the membership of NLSIU, therefore, is not entirely tenable.

In addition to that, the Vice-Chancellor of NLSIU is also the ex-officio Secretary-Treasurer of the Consortium (Cl. 12). From the press statements released, the Vice-Chancellor had repeatedly promised to ensure that he would carry on his obligations as the Secretary-Treasurer of the CLAT with diligence. Despite no evidence that he was acting in bad faith, the Consortium has decided to distance itself from NLSIU.  It is also quite unclear how the members of the Consortium removed the Vice-Chancellor of the NLSIU from that position without enacting an amendment to the Bye-Laws.

While the arguments about preventing hardships to the students by citing past Supreme Court judgements are certainly valid, it must be remembered that all of those decisions were meant to apply in ideal circumstances. The pandemic is an exceptional, black-swan event that has already pushed academic calendars by 3 months, and we should view all these actions through that lens. Whether or not the NLAT might help fix the academic calendar is a decision that many might disagree with; yet one must keep in mind that each NLU faces unique challenges and opportunities, and that a solution preferable to one might not be so to others. When the pandemic subsides, the common entrance exam will return, and the perceived future-hardships will vanish.

On Equality and Fairness

Transparency

The NLAT has been criticized for its lack of equality and fairness on two grounds: the non-publication of results, and the exclusion due to prohibitive technical requirements. The authors have argued that the non-publication of a consolidated mark-list will make the process opaque and susceptible to tampering. This criticism, however, is misguided. Under Cl. 4.5.3 of the NLAT notification, every candidate will be notified of three things: their individual rank, their total mark, and the cut-off mark. From this information alone, a candidate can verify and confirm whether their performance was sufficient to merit admission into the college. If a person scored more than the cut-off and still wasn’t selected, then they will have a clear right to petition for it. If the University had refused to release the answer key and the cut-off marks, there would certainly have been grounds for concern. The University cannot also arbitrarily modify the cut-offs and the admission list, since they are constrained by both, the total student-intake and the category-wise intake limit. In the absence of anything else that might indicate a mala-fide intent on behalf of the administration, such concerns are quite unwarranted. The non-publication of a list, therefore, does not automatically make the process any less transparent or fair. Additionally, the normalization process has also been criticized on the ground that it might lead to arbitrary outcomes. I disagree with this mainly because normalization isn’t per se unfair; in fact, it is commonly employed for other tests in the country, including by the DU. An online exam necessarily requires multiple sets of question-papers to prevent malpractice, and a properly implemented normalization scheme will ensure that each candidate is ranked in a manner commensurate with the difficulty of their test. The other point made by the authors in this regard was that the timeline of the exam would not afford enough time for applicants to challenge any discrepancies. In the ordinary course of nature, the judiciary is not the appropriate forum to challenge a test, and no test-organizer has to plan their schedule to allow students some time to engage the court. I do make a small concession in this regard, in that the University should also ideally notify a protocol to discuss any discrepancies observed by the student in their performance. 

Accessibility

The other main ground of contention is that the exam’s structure and its high technical requirements will exclude the underprivileged. The argument goes that many students lack access to computers and high-speed internet at home, which will create a divide between those who can take the exam from the comforts of their home and the others who either have to be lucky enough to have a test center near them, or have to scramble to make their own arrangements.. Put this way, the argument against having a home-proctored examination seems to be quite convincing. However, the question we must actually ask is, “What alternatives do we have?” One suggestion seems to be that NLSIU should have waited a few more weeks for the CLAT. This seems unfeasible to me. Barely a month ago, students across the country were protesting about the JEE exams being conducted in the middle of a pandemic. Cases of COVID have only increased since then, so how is it that a center-based exam has suddenly become more palatable? There are still those in containment zones and those in quarantine who will not be able to physically attend any test. A center-based examination is also certainly going to put the lives of many students at risk. In my opinion, conducting any sort of offline exam at this moment will unnecessarily endanger the lives of many students, and should not, therefore, be permitted. The only safe alternative, then, would be an online examination. While it is unfortunate that many people in locations that have recently been affected by natural disasters might find it difficult to write the NLAT due to the technical requirements, the alternative for them would have been to travel long distances to a CLAT center. It seems likely to me that on average, a cyber-café or a mobile phone would be much more accessible than a CLAT center. True, under TRAI regulations, a minor is only allowed to occupy cubicles if they are accompanied by a guardian; but interpreting that provision so strictly as to imply that the guardian has to sit beside their ward while taking the exam would be absurd. As long as the student is accompanied by a guardian, the law is not going to impede their test-taking. 

By plucking pan-India statistics about the network penetration and technological literacy across the country, one can certainly paint a despairing picture; but one must remember that those who write the CLAT and NLAT aren’t necessarily a representative sample of the country. For instance, the requirement of English alone reduces the eligibility of the overall population by roughly 85%. In India, knowledge of English has a strong correlation with relative affluence. It is not an unfair assumption, therefore, that those writing the CLAT and NLAT are reasonably familiar with and have access to the internet, or at least to an android phone, particularly since over half the country has access to the internet. There will certainly be many outliers, however, that alone cannot be a reason to scrap the entire model. During these times, it seems to me that every administrator has to choose between difficult options. Unfortunately, it is impossible to ensure that every candidate is provided a perfectly level playing field, particularly right now. Any test is going to inherently be biased against the underprivileged. For an underprivileged student from a rural area, a center-based exam right now would be so much more onerous than an online one. They would have to first find public transport to the nearest city with a test-center, which not only will be a difficult task in itself, considering the situation in many parts of the country, but also will increase the risk of contracting COVID. They would then have to travel to a new city the night prior to the exam, or on that day itself; find lodging and accommodation; and navigate the city using the limited intra-city transportation services; and all of this, just to reach the exam-center. In addition, the parents accompanying these students will also unnecessarily expose themselves to catching the virus, and this might put their entire family at risk. It is quite likely that many people will simply choose to not write the exam, given that merely getting to the exam-center would be difficult and risky. Given the urban-rural divide, conducting a center-based examination in the current scenario would predominantly disadvantage underprivileged students who live outside cities.

In a perfect world, we would ensure that every candidate gets their due; however, given that we are constrained, we have to make compromises since no choice can ensure perfect parity between entrants. We can always marginally increase the accessibility of an exam, and the choice of where we draw the line is a completely arbitrary one. For instance, the authors pointed out that somebody using a smartphone will face an inherent disadvantage compared to someone using a computer. If we were to extend this train of thought, one might also argue that center-based computer exams should not be allowed since those who are accustomed to using computers (mostly the privileged) will have an inherent advantage. The problem, I believe, isn’t one that can be framed in terms of an opposition between privilege and a lack thereof. Any choice is inherently a question of which sections of the underprivileged will be excluded. For instance, the recently conducted JEE saw an almost 20 percentage points decrease in participation;around 2 lakh registered students could not write the exam. A center-based exam, therefore, will certainly exclude a lot of people. I believe that the structure of the NLAT only alters the distribution of disadvantage rather than the total quantum of it. This is because the switch to an online, home-based exam will allow more of the underprivileged, those who might not have been able to attend the center-based CLAT due the pandemic, to participate in the exam, particularly since an Android phone is all that is required to take the test. Unfortunately, this gain will be offset by those who might not have the technical resources to take the exam, and the net result will not be substantially affected. Even if the total number of registrations for the NLAT is shown to be lower than that of the CLAT, that would not necessarily imply prejudice, unless it can be shown that all 70,000 CLAT aspirants wanted to get into NLSIU. Other factors such proximity to their homes, etc. might have influenced their decision to not appear for the NLAT. The present choice, therefore, is not inherently worse or more unfair than any other choice that might have been made.

Conclusion

To give credit where it is due, NLSIU has been responsive to student voices and has lowered its technical requirements to make it more accessible. In response to the allegations of the possibility of wide-spread malpractice, they have also notified a post-facto verification of students’ conduct, which should be able to detect those who cheated and made their way to the top. I sincerely hope that they continue to listen to the suggestions and improve their model to make it as accessible as possible. While there are certainly some shortcomings in the way this situation has unfolded, I feel that a lot of the criticism against the University is unwarranted. By unleashing a volley of attacks and complaints, the more legitimate criticisms often get drowned out. The focus on the legality of the CLAT withdrawal, and the calls to completely scrap the exam, in my opinion, adds nothing constructive to the debate on how the process can be made fairer and more transparent.

[Ed Update: One of the authors of the original post has responded to the arguments made in the piece in the comments below. Read by clicking here]

 

Darsan Guruvayurappan is a third-year student of law at the National Law School of India University, Bangalore. You can reach him at darsang[at]nls[dot]ac[dot]in.

8 comments

  1. The author has first raised some concerns regarding our interpretation of the bye-laws. Here’s my response to the same.

    1. The author has argued that “bye-laws do not envisage the removal of a member, save by their voluntary withdrawal…”

    I reproduce the relevant clause for our readers’ advantage. Cl. 15.7.3 states “A Member institution that withdraws OR becomes ineligible for membership is entitled to … of the Society upon its withdrawal OR becoming ineligible for membership”

    Clearly, Cl. 15.7.3 has 2 case scenarios. First, withdrawal or second, becoming ineligible which must be other than the first case scenario as the clause has the term OR. Therefore, the Bye-laws DO envisage, in so many words, for a situation other than voluntary withdrawal.

    This phraseology is not just in Cl. 15.7.3 but even Cl. 15.2.2 which reads “A membership becomes effective … and continues in effect until the Member institution withdraws OR is no longer eligible for membership

    Author believes that we have tried to read the phrases ‘to fit our argument’ but I would respectfully disagree.

    1. On reading the CLAT requirement the same as other requirements (excellent scholarship etc.) under Cl. 15.3

    The author seems to suggest that all “standards” under Cl. 15.3 are on the same ground “that the society expects its members to follow.” Putting CLAT and other requirements on the same footing seems to be a tad misleading.

    All the generic standards that the author mentions are sub clauses under Cl. 15.3.2 (sub-clauses 1-10; author has specifically mentioned 2, 4 and 6). A reader who has read only the author’s response would be rather surprised to know that these are not even “standards” and 15.3.2 merely states that “The Society values and expects its Members institutions to value…” them.

    On the other hand the CLAT requirement is through Cl. 15.3.3 which the author has reproduced already. Can one compare a clause which mentions bunch of ‘values’ that a Society values itself and merely expects its members to value versus a requirement stating that “a member institution shall ensure that admission… based on merit assessed through…CLAT operated by the Society.”? I hope our readers see the difference between the nature of both of these requirements.

    1. In the final prong of his argument, the author states that he thinks Cl. 15.3.3 is merely directory and not mandatory as in his opinion otherwise it would render every single NLU ineligible for membership!

    One would imagine that such an argument is based on a complete reading of the bye-laws. Rather, the case law relied upon by the author itself states that the “true intention of the legislature” is the determining factor and it must be done “by looking carefully to the whole scope, nature and design of the statute.”

    The author has taken the line that reading 15.3.3 as mandatory would lead to almost all NLUs ineligible as they offer other non-UG/PG degree law courses which do not have admissions through the CLAT. I am unable to agree with this reading of the Clause considering the Clause uses the term ‘CLAT’ which has already been defined under Cl. 1.1.3 to mean a law test for those seeking admission to the undergraduate or postgraduate degree programme. Even Cl. 3.3.6 which delineates the powers and functions of the society explicitly states “…admission to all National Law Universities in India through CLAT for UG & PG Law Courses…”

    More than anything else, as we are supposed to determine the true intention, all Members seem to have clearly understood the intention of this section including the member that the author is defending considering NLSIU used to hold only its UG & PG Law admission through CLAT, which it is now hoping to do through NLAT, for this academic year.

    1. No monitoring requirement

    I disagree as the Consortium also allots CLAT aspirants in the first round of counselling as per the seat matrix that is submitted every year to the Consortium by all the Member institutions. To me, that sounds like rather strict monitoring …

    While I am grateful for the quick response to our post, unfortunately, in the haste the author seems to have either failed to substantively engage with our argument as well as the bye-laws. Rather, there is much food for thought in terms of possible disagreements with our conclusions that may be taken up from our post itself and I am sure there are arguments outside it too which we have failed to think about. For example, the possibility of a MoA binding its members versus the powers that the NLSIU Act gives the University that we have touched upon can be further questioned through a detailed analysis that we were unable to provide.

    Before I move on to the author’s responses on the second post of ours, I must mention that I do look forward to such further engagement with our first post too, however, I hope that such engagement is faithful to the bare text of the provisions that it is engaging with while disagreeing with us.

    On Transparency, the author claims that “in absence of anything else”, our argument for a consolidated merit list or atleast the scores of selected candidates being shown publically are unwarranted when the NLAT is already offering one’s “individual rank, their total marks, and the cut-off marks” as mentioned in their notification.

    However, the author has failed to engage in a substantive manner with the “anything else” that has already happened and been flagged by us in our original post. To reiterate, our argument did not question the fairness or unfairness of a normalization procedure that the author has defended. Rather, we noted that this normalization procedure was mentioned only in the FAQs and contradicts the notification. The FAQ simply mentions that to combine scores across three different exams which may have differing difficult level, a normalization procedure will be used to compile law scores across batches. This would require a change from the originally notified marking structure and the merit list that was supposed to be formed solely on that. Hence, our call for greater transparency seems to be warranted even in the case built by the author.

    In the one exam the author has given the example of, namely the DU JAT, the normalization procedure is notified and the formula to be used for normalization explained. NLSIU still has not done the same. Furthermore, DU JAT not only releases the consolidated merit list, the merit list also mentions original score and normalized score post the equi-percentile score.

    Rather, on taking a cursory look at DU JAT procedure, my argument seems to only have gained more credence. Readers would be surprised to know that DU’s website for DU JAT 2019 results itself carries a note that I reproduce:

    “The result and schedule for admission to BMS, BBA (FIA) and BA (H) Business Economics uploaded on 31 July 2019 has been removed. A corrected and updated result and schedule for admission has been uploaded on 3 August 2019.”

    Clearly, there can be errors, we are not suggesting any malice on NLSIU’s part, but are simply hoping that transparency would help avoid such errors which may otherwise cost candidates their seat!

    Even otherwise, as an external reviewer also pointed out, one would need access to a consolidated master list to simply determine whether the cut-off arrived at for each category of seats post-reservation, which in the case of NLSIU, not only happens both horizontally and vertically, but is currently also under contention in the domicile matter before the Hon’ble Karnataka High Court. Again, we are not alleging malice, but the possibility of mistakes…

    On accessibility, the author believes that we have plucked statistics and the NLAT would only leave out some outliers. He goes on to claim that the structure of the NLAT only alters the distribution of disadvantage rather than the total quantum of it.

    This is an interesting argument to make considering the figures have already been release today by NLSIU itself. The difference is not marginal, it seems that there were only around 27,500 eligible candidates vis-à-vis CLAT’s 68,000. It seems that the outliers have become the majority! Clearly, there has been a change in the total quantum of test takers. It may be noted that this is despite the low fee of Rs. 150 and one can therefore assume that those who had already managed the prohibitive CLAT fee of Rs. 4000 would not have been left out due to financial constraints. The only constraints could be either structure of the NLAT, accessibility or possibly NLAT’s rushed nature allowing only a week for registering. The other option is the one that author believes is the reason, disinterest in NLSIU amongst CLAT aspirants. While I understand that all CLAT aspirants might not be interested in NLSIU, I hope that author would agree with me that it is rather damaging to imagine that the majority is not! If the majority really is not, on a lighter note, hopefully NIRF will reconsider NLSIU’s perception ranking.

    In the conclusion, he states that most issues seem to have been taken care of, however, the hue and cry on many websites monitoring the conduct including Legally India and Bar & Bench seems to suggest that NLAT was definitely not smooth. Here, I do hope it was only for outliers, but that does not seem to be the case with multiple accounts reporting the technical helpline being jammed for the longest time, which apparently had 120+ representatives ready to assist.

    Finally, the author ends his piece by noting that pieces such as ours which focus on questions of legality of CLAT withdrawal and call for a complete scrapping add nothing constructive to the debate. I believe it is extremely dangerous to argue that civil society should not question illegality and should merely engage to improve actions that might be illegal, but according to him only that is acceptable and constructive speech. As a fellow law student, I worry for our friend and hope he does not go further down the path of only improving questionable legal actions and not focusing on their legality itself.

    Once again, thanks for responding to our posts, I look forward to further engagement on this issue.

    1. First of all, thanks for the (extremely, and slightly suspiciously) quick response! Moving onto your responses to my response:

      Interpreting the bye-laws: In your article, you had linked the use of the word ‘ineligible’ in Cl. 15.7 to Cl. 7.3.8, to reason that the executive committee could make a member ineligible for whatever reason. My argument had two prongs: first that eligibility cannot be determined by a sanctioning decision of the executive committee, and second, that other set of criteria must, therefore, be looked into for considering eligibility. The second isn’t based on trying to divine some vague ‘intention of the legislature’ from the actions of the parties, as you mentioned, but to understand how eligibility is to be considered from what is actually written down in the MOA (a textualist understanding of intention of the legislature). From the phrasing of the text, first, there is no direct mention of when an institution actually becomes eligible, and second, there is no mention as to what is to be done when an institution does end up becoming ineligible. I simply ask the question, has the MOA clearly defined eligibility and if so, are those requirements clearly contained within Cl. 15.3? Among other things, since the MOA does not state the consequences of non-compliance to any degree of certainty, I concluded that it is intended to be directory. Perhaps I did not clearly spell this out, but I was here trying to disprove by contradiction, by showing that Cl.15.3 cannot be the basis of a conclusive determination on eligibility. The comment about everybody being ineligible is not a substantive requirement for the argument, as you seem to have construed it. My monitoring argument was also based solely on an assessment of the bye-laws, a textualist understanding of legislative intent, if you may. Given that the bye-laws are silent on these, I’m not sure that your reference to the committee’s conduct is too relevant (perhaps it is not I who is being unfaithful to the bare-text of the MOA). However, apologies for not engaging in a point-for-point rebuttal of your arguments; my intention was to simply provide an alternative view of the situation, while also keeping the word-count down.

      With respect to the marking procedure, the author’s original argument was that the normalization process deviates from the original notification, which mentioned that rankings would be “prepared solely on the basis of the marks obtained.” That provision was only meant to indicate that external results, such as those from board exams and the CLAT, would not be included, rather than the author’s conclusion that adopting a normalization scheme would be akin to relying on marks not obtained from the exam. While transparency in the calculation process would be nice, my argument was simply that it is not absolutely necessary and does not affect the fairness of the procedure. The author also mentioned in the comment that “Even otherwise, one would need access to a consolidated master list to simply determine whether the cut-off arrived at for each category of seats post-reservation, which in the case of NLSIU, not only happens both horizontally and vertically, but is currently also under contention in the domicile matter before the Hon’ble Karnataka High Court.” I must admit, I am unable to properly comprehend the argument being made here, but as I have mentioned, the intake-limit provides a constraint on arbitrarily tweaking the cut-offs. If any deviation were present, that would immediately show up as an increased or decreased intake in the list of selected candidates, which the university will publish. If there are vacant seats in that list, and a student has scored more than the prescribed cut-off for that category, they will undoubtedly be entitled to claim it. I do not, therefore, see how these issues are going to have any tangible effect upon the students’ selection. Once again, publishing this would be nice, but its absence wouldn’t introduce any additional unfairness into the procedure.

      Finally, with respect to the distribution argument, I am simply unable to agree with your contentions. A proper metric of medium exclusion should be percentage of registered candidates who did not appear for the exam, as opposed to the absolute comparison you have made. Simply comparing numbers isn’t quite useful unless you know the preferences of all those who enrolled in the CLAT. I am merely providing an alternative theory that ‘fits’ the data. While all the other reasons might possibly have had an impact, it is merely speculative without additional information (and the same goes for my argument). I do not think that such a conclusion is damaging to the University in any way, since it seems as if around 27,000 students (provided your numbers are right), which is around 40% of the total CLAT registrations, would absolutely prefer NLS over any other college (assuming that your premises are right). In any case, it would be shocking if this would affect NIRF perception scores since that only relies on the perception of employers, academics, and other professionals.

      Finally, I’m quite surprised that the author seems to have inferred from my piece, and its conclusion, that I stand against questioning illegal action. By all means, do question illegality, but my point was that this is not an illegality, and that our concern might be better directed elsewhere. I simply cannot agree with the proposition that an action is illegal merely because you (and others) disagree with it. I assure you that I am not a free-speech-muzzling fascist, as the author seems to think. The power to criticize must contain within it the power to respond, as well. As a fellow law-student, I appreciate your concern over my way forward, and wish the best for you as well, with the hope that our diverging paths may cross once again (though hopefully not on this matter!)

  2. I think @Dayaar has adequately responded to substantive arguments in the piece. While the argument about accessibility was assertive, the reading of the by laws is misleading. Dangerous. Surprised that this was cleared to be published.

    Even if we take the author at his best case i.e. that health concerns must trump accessibility – from an individual student’s standpoint this purpose is not met either. Majority (if not all) students writing NLAT will be writing the CLAT exam later this month as well – thus exposing themselves to the risk of the virus anyway (albeit now – for one less university). In fact, students who are forced to travel to a cyber cafe/someone’s house to write NLAT, will now have to expose themselves to the risk of the virus twice. If the concern was heath, it is curious that NLS did not moot a “take from home CLAT” before the consortium at any stage – their concern only was the delay in CLAT.

    The author merely has to contact his seniors at NLS who worked day and night to arrange laptops/other amenities for students writing NLAT to realise that those facing difficulties are certainly not outliers. Request the author to conduct this basic due diligence before making uninformed (dare I say – elitist) assertions

  3. It’s quite unfortunate that this article has made it to the blog because not only are the arguments half-baked, they are evidently misleading as is quite apparent when one reads the three articles and dayaar’s comment to this article for a holistic understanding. At best, the article is a lesson on why interpretation of statutes is an important subject that the people should pay attention to. At worst, it makes a mockery of the plight of thousands of aspirants by not even trying to put forth a legitimate defence.

    My objections to the article have mostly been captured in Dayaar’s comment. But I will still emphasize on certain points because the author’s position on accessibility is truly baffling. Credit where credit is due- the article contains the token acknowledgement of the underprivileged. Satisfied with conceding that the underprivileged will suffer, the author’s position on accessibility runs as a utilitarian argument relying on fictitious data and hypothetical scenarios that neatly fit the narrative that the author has tried very hard to build. They have provided no evidence for the correlation they draw between affluence and knowledge of the English language. They also concede that despite the correlation there will be many outliers but for their argument’s convenience, they leave out what exactly constitutes “many”. When looking at actual numbers, a starkly different picture is painted (as pointed out by Dayaar) and as much as the author tried to show otherwise, numbers don’t lie.

    The author correctly notes that entrance exams are inherently biased and disadvantageous to some. CLAT is guilty of the same. However, disadvantage is not a threshold that when crossed, anything beyond is attributed the same level. While CLAT may be biased, NLAT is more so with its new pattern, new marking scheme, new mode of examination, technical issues and other aspects that have already been pointed out. The author paints a vivid picture of students who will have to travel to find test centres for CLAT and the risk they will be put at. I hope the author is aware that NLAT itself has achieved no great feat by providing minimal test centres that it doesn’t even trust. The issue of travelling long distances that the author has so eloquently put forward as a criticism for CLAT is equally applicable for NLAT.
    It is also worrying that while the author has utmost concern for the health of those who can afford to take home-proctored NLAT, there is apathy with respect to those who will have to travel for giving exams twice- for NLAT and CLAT. It appears to me that the author has assumed (and rather wrongly) that those who wrote NLAT will give up CLAT. Most likely, even students who have written the home-proctored test will be appearing for CLAT, barring the few who get admitted into NLS (in case the results aren’t delayed or scrapped). Therefore, most of the 68,000 students will appear for CLAT. So, this so-called concern for Covid transmission is not a valid argument in defence of a separate exam.

    The author is quick in giving credit to NLS for being responsive but doesn’t acknowledge appropriately that these changes would not have taken place if not for the objections that were raised by various stakeholders. So the credit that is due to NLS is for delegating their job of making fair policy decisions to the public at large (and even then getting away with cherry-picking the bare minimum). The author brushes aside the question of legality as not a legitimate enough criticism. This makes me question what sort of law does the author plan on practising when legality doesn’t seem to be important to them.

    Lastly, the reality of NLAT was on full display today as mass cheating, technical issues and an unresponsive support staff have dashed the dreams of even more aspirants from an already limited pool. So, the NLAT has ensured admission for those who took the best advantage of their privilege with a side of luck. At least today’s events should make the author reconsider their passionate defence of the NLAT. Regardless, I end this comment with the hope that the author realises that our goal, especially as law people, is not to settle for mediocrity but to strive for excellence. Unfortunately, both the NLAT and this article are a reflection of the former.

    1. Exactly! This article is so biased. It’s probably written by someone who wanted to get into NLSIU but got into NALSAR instead. I gave the NLAT yesterday and CLAT is in 15 days, I was so disappointed to read this article, seems like legal education at a top NLU has made no difference to the author, he fails to look at things objectively, felt like this was a PR article for NLSIU.

  4. The urge to show engagement with counter narratives should be balanced by an editorial duty to prevent (at the very least) misrepresentation; if not argumentation lacking substance or evidential backing.

    If anything, this post does successfully dilute the value of the post it attempts to respond to – though not by virtue of successful rebuttal, but rather, by being published on the same platform as the former.

    Suffice it to say, LAOT really dropped the ball on this one.

  5. The comments on this post reveal that those criticising and defending NLAT have put far too much thought than NLS has in conducting an exam that is fair and equitable.
    On the argument that NLS lowered the technical requirements: Equality and accessibility cannot be an after thought. Hardworking students from underprivileged students or students from smaller cities have as much of a right to give the exam as others.
    On the correlation between english speaking and access: Please take some time to go through the diversity surveys conducted by IDIA of National Law Universities and observe how over the years students from tier 2/ tier 3 cities have access to english education but not necessarily the access in terms of coaching, laptops etcs. Should they then be deprived of a fair shot at studying in NLS?
    If you even did a survey from your own batchmates at NLS you would find that had NLAT been conducted in 2018, they would not be in a position to share that classroom with you.

    Speaking from a position of privilege is easy, speaking from a position of empathy is impossible.

    P.s. great work on the legal interpretation of the bye laws. I hope the consortium takes note of such ambiguity and adopts stricter language in the future.

  6. It is said that to truly understand what an author says you have to first find out what the author fears the most.

    Now it can be argued that the author’s fear is the problems that the pandemic and the underprivileged and the vulnerable. I mean, the author clearly wants them to be safe, out of danger from the deadly virus, but the other commenters have clearly pointed out the problems with these arguments.

    Alternatively, it can also be argued that the author’s greatest is that a lawful action is being questioned unnecessarily. This argument also significantly weaker if you look at the selective reading and blatant misquoting that the author does from the bye-laws of the consortium, as pointed out by other comments. Any person with any sense of responsibility towards legality would atleast want to maintain honesty while reading provisions of law.

    Neither is concern for transparency something that the author is concerned about. In an exam with various categories of students’ admissions are protected because of government interventions, there are bound to be different types of cut-offs. The authors argument is this, in a situation where each student gets to see the cut-off, the marks they obtained and are able to verify this with whether they got the admission letter or not. The author’s counter to this argument, in a reply to another comment, is that slight discrepancies will also lead to an increase in in-take of students. The author seems to ignore reality, as is the case with the entirety of the article, and even fails to imagine a possibility where even by mistake a student that belonged to one category gets sent the cut-off for a different category which they should have been a part of. There can be administrative mistakes, and other issues that crop up when conducting an exam at this scale in 9 days(or is it 10). Going by the way the exam itself tool place, this possibility is clearly not beyond the realm of imagination. If one were to act maliciously, even under the circumstances provided by the author there is quite a lot of possibility for acting in bad faith. What if the University decides to send one cut-off to one student and a different one to another student who belongs to the same category. By the author’s own admission, a small change in the cut-off can lead to a lot of discrepancy in admissions. Clearly, the author really does trust the institution he is a part off, a rarity for any institution, especially one that is mired in controversy given the recent happenings. So opacity is also not the fear for the author, probably because the institution has never acted in a way that is detrimental to his interests. LAOT should probably ask someone who was harmed by the recent change in the scholarship policy at NLS. In any case, opaque systems are rarely questioned by those who have been on the right side of the system.

    Now coming back to the point that the author makes about poor and vulnerable that the author feigns concern for. Like with most arguments in relation to NLAT, the typical NLS refrain that this is being done to maintain standards that the University stands for is clearly visible the author’s arguments. Probably most clearly it is in the argument on the link between English and access to technology. The argument rather simplistically is, “if you know English then you obviously have access to technology to give NLAT. And well if you don’t, then sucks to be you.” That if someone who is smart, brilliant or capable but just because of their economic position, which in more cases than not is also linked their social conditions, shouldn’t be studying with the author at his prestigious law school. The fear is of the out-group coming and occupying a space that he thinks is being diluted by their presence. Sociologist William Sumner defines this bias for the in-group and against the out-group as “each group nourishes its own pride and vanity, boasts itself superior, exists in its own divinities, and looks with contempt on outsiders.” The in-group favouritism is also extremely clear when the author simply refuses to engage with any argument that could question the institution he is a part of. Since, what would be worse than to believe that the in-group he is a part of is less than perfect.

    In sum, the main fear that the author has is of those coming from difficult situations to the university he studies in since having them around probably makes him uncomfortable, or possibly makes him question his values or morals.

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