[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.
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. 22.214.171.124), excellent scholarship (Cl. 126.96.36.199), and a rigorous academic program (Cl. 188.8.131.52). 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
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.
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.
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]