Studying the Judgment on holding Examinations during Pandemic

 

        Day to day life is affected due to COVID-19 Pandemic and so are the Educational institutions and their academic curriculum. Recently, Hon’ble Supreme Court has delivered a judgment [Praneeth K and Ors. Vs. University Grants Commission (UGC) and Ors. (Writ Petition (Civil) No.724 of 2020)] which is well known to one and all. Here, by way of this blog, I have tried to cover few legal aspects of the judgment setting a clear intention to avoid political views.  

        Due to pandemic regular lectures and examinations are affected to the great extent and other means to communicate and conduct lectures and internal assessments have been evolved by the time. Examination happens to be the process in which academic excellence of the students is evaluated based on their preparation and overall performance in the academic year/term.

        Before studying the legal aspects of the judgment it is necessary to consider contradictory views upon which the edifice of the case was based. In view of COVID-19 Pandemic, University Grants Commission (for the sake of brevity hereinafter referred to as “the UGC”) issued guidelines in respect of examinations and academic calendar for the academic year 2019-20 on 29.04.2020. Revised guidelines were issued on 06.07.2020 which were the subject matter of the said judgment. By way of UGC guidelines dtd. 06.07.2020 UGC approved the recommendations of the Expert Committee regarding conduct of terminal semester(s)/ final year(s) examinations by the universities/ institutions and the same were to be completed by the end of September 2020 in offline (pen & paper) or online or blended (online + offline) mode.

        These guidelines gave rise to different views in respect of the conduct of examinations of the final year students which resulted into peculiar decisions of some of the State Governments and State Disaster Management Authorities. States like Maharashtra and West Bengal showed their inability to conduct offline examination contending that it would attract huge risk of transmission of virus.

        In furtherance of which various petitions were filed in the Hon’ble Supreme Court and ultimately clubbed together for adjudication. Few challenged the guidelines of UGC dtd. 06.07.2020 and also supported the idea of declaring results on the basis of past performance/internal assessment, while other challenged the decision of State Disaster Management Authorities and State Governments (Maharashtra & West Bengal) for not holding final year/term examinations.

 

·        The contentions and arguments against holding examination of final year can be summarized in concise form as below; 

-    Guidelines of UGC dtd. 29.04.2020 had given flexibility to Universities to implement guidelines in the best interest of students. If situation does not normalize then grading can be done based on past performance and internal evaluation. Therefore the revised guidelines issued on 06.07.2020 were contrary to the earlier guidelines dtd. 29.04.2020.

-      There would be a huge risk of transmission of virus if offline examinations are conducted before 30.09.2020 as per the revised guidelines of UGC dtd. 06.07.2020. Hence the deadline of 30.09.2020 happens to be unrealistic.

-       Ministry of Home Affairs have issued guidelines on 29.07.2020 directing schools and colleges not to open till 31.08.2020.

-       In view of Section 12 of the UGC Act, 1956 it was necessary for UGC to consult all Universities before issuing the guidelines about conduct of examinations.

-      In view of pandemic, Maharashtra State Disaster Management Authority decided not to conduct offline examinations on 13.07.2020.

-     Section 72 of the Disaster Management Act, 2005 will have overriding effect and the guidelines of UGC would not be binding.

-       Guidelines are violative of Right to life and health. Also the conduct of examination would require huge amount of travel and use of public transport which may result in huge spread of virus.  

-      UGC Guidelines dtd. 06.07.2020 are manifestly arbitrary and liable to be set aside on this ground alone.

-       UGC Guidelines dtd. 06.07.2020 are violative of Art 14 and 21      

-      UGC has no legislative competence. Entry 66 of List I of Schedule VII of the Constitution is referable which lays down for Co-ordination and determination of standards.

-       Constitution Bench judgment of Hon’ble Supreme Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others, (2016) 7 SCC 353 was referred.

-       It was argued that UGC can lay down only the qualification. Not holding final examination and awarding Degree on the basis of earlier semester’s performance is not diluting the standards of education in any manner. The students have completed five semesters (in the State of Maharashtra) by March, 2020 and for final semester internal assessment is also over, hence, the students could have been promoted on the basis of earlier assessments and there is nothing arbitrary in giving Degree to the students on the basis of earlier results.

-    The directions of UGC to hold examination by 30.09.2020 is completely beyond the power of UGC. Revised guidelines do not take into consideration the different situations of different States.

-      Guidelines of UGC are violative of Section 12 of UGC Act, 1956 because of no consultation. Section 12 provides for consultation with Universities and other bodies. Other bodies will include State Disaster Management Authority and also the health experts.

-       Colleges are being used as COVID care centres.

-       Online infrastructure not sufficient for the conduct of examination through online mode.

-       Guidelines are only advisory in nature

-      As per UGC Act, 1956, the Right to confer degree lies with the University only.

-     As per Regulation 6.3 of the UGC (Minimum Standards of Instruction for the Grant of the First Degree through Formal Education) Regulations, 2003, the students must have been made known about structure of the examination at the beginning of academic session.

 

·    The contentions and arguments for holding the examination can be summarized in concise form as below; 

-       Majority of students want examination to be held.

-      Degree of Under graduate is minimum qualification for various employments in India therefore examinations are necessary in the interest of students.  

-       Students must have a chance to improve themselves in final exam.

-       University has enough time to cope with the health situation.

-       Life has to go on in pandemic, methods are to be found.

-       Methodology of evaluation is part of standard of education which is in domain of UGC.

-      No power lies with the State in deciding that Degree be given without examination. No power to direct so.

-       Date of 30^th Sept. 2020 can be moderated in the peculiar situation of a State.

-    Schedule of conducting examination was already declared 29.04.2020.

-       State level committee (Maharashtra) founded by Minister (Higher Technical Education) submitted a report on 06.05.2020 and recommended final exam be held.

-       Revised guidelines dtd. 06.07.2020 consists of offline, online & hybrid mode for the conduct of examination which provide flexibility.  

-      Student who fail to appear in examination can give after 30.09.2020 which is reasonable and protected interest of students.

-       Guidelines are issued after application of mind and considering ground situation.

-       The date of 30.09.2020 is fixed in larger interest and future prospects of students.

-       Ministry of Home Affairs have already given exemption for conducting examination despite closure of schools, colleges and coaching institutions.

-       Powers of UGC to issue guidelines referable to Entry 66 List I and no contrary decision of the State can stand in its way.

-       Regulations, 2003 lays down that the  Universities should adopt the guidelines issues by UGC

-       State can give suggestion to change the schedule but the deadline is fixed in the interest of students.

-       Not necessary that exams should be conducted where teaching is imparted or attendance took place. Exams can take place anywhere and through any medium in present scenario.

 

·       Hon’ble Supreme Court decided the following issues. I have narrated the considerations and findings in brief below;  

1. Guidelines issued beyond domain of UGC ?

        Entry 25 List III provides field to legislate on education, technical education, medical education and universities but the Entry 25 is subject to Entry 66 in List I. The judgment of Modern dental college (para 101) cannot be considered as examinations are to be conducted by the Universities. But UGC can lay down standards with regard to examination. Thus the guidelines issued were not beyond domain of UGC.

2. Revised Guidelines Advisory or Statutory ? contrary to previous one ?

        The Guidelines not contrary to previous guidelines dtd. 29.04.2020. Guidelines are statutory because they have scope under Section 12 of the UGC Act, 1959 which provides for taking step for promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities.

        Also as per Statutory Regulation of 2003 it is duty of university to adopt guidelines issued by UGC.

3. Violative of Art 14 ?

        Examinations are crucial for academic excellence and future opportunities. Not unreasonable and arbitrary.      Rational basis and intelligible differentia exists. Thus no discrimination. Uniformity maintained by applying the guidelines throughout India and same deadline. Various modes of examination are given. Also student can give exam later therefore not arbitrary. Expert committee aware of present scenario.

4. Violative of Art 21 ?  

        SoP for conduct of examination laid down by UGC by letter dtd. 08.07.2020.     Not violative of Art 21.

5. Non compliance of Sec 12 ?

        State Disaster Management Authority or health expert cannot be included in other bodies. Said argument is misconceived. State Disaster Management Authority was not there in 1956. It came in 2005. University can be consulted in reference to particular function / problem.

        If all Universities are consulted for issuing such guidelines then it will make functioning of UGC unworkable. There are than 900 universities in India. If all are consulted for every measure, it will become impossible and impractical for UGC to function.

        Said guidelines happen to be the policy decision of UGC.

        Section 12(j) of the UGC Act, 1959 provides residuary clause which suggests that UGC can invoke its powers to issue guidelines as may be deemed necessary by the commission.

        It cannot be said that UGC has no jurisdiction to issue guidelines without consulting all the Universities, State and Union Territories.

6. Whether State Disaster Management Authority can take decision of not holding examinations ?

        State of Maharashtra took decision not to hold exam on 18.06.2020 and issued G.R. dtd. 19.06.2020 and also the proceedings dtd. 13.07.2020 of State Disaster Management Authority decided not to hold examination.

        State Disaster Management Act, 2005 is enacted for effective management of disasters and matters connected therewith and incidental thereto.

        On 18.06.2020, State of Maharashtra decided that the examinations of professional courses cannot be arranged. With regard to Non-Professional courses it was decided that the result will be declared by adopting suitable formula after obtaining in writing form students that they intend to get the Degree without appearing in the exam.

        It was contended that the decision of Maharashtra Government is well within guidelines of Ministry of Home Affairs dtd. 30.05.2020.

        Question is whether State Disaster Management Authority could have taken contrary decision to the directives of UGC.

        Sec 72 of the Disaster Management Act, 2005 discuss about overriding effect. The said Act has been enacted to combat disaster and save human life. Saving human life is of paramount importance.  

        Decisions of Central Government, National Disaster Management Authority and National Disaster Committee shall hold the field and no contrary decision can be taken by the State Disaster Management Authority or State Government.

        Ministry of Home Affairs and MHRD permitted to conduct the examination.

        But State Government can assess the situation better and health of its subjects cannot be compromised in any case that is why overriding effect u/s. 72 is given.  

        There is no order of National Disaster Management Authority fettering the powers of State Disaster Management Authority.

        Direction of UGC 06.07.2020 so far as it compel University and College to complete examination by 30.09.2020 shall be overridden by the decision of State Disaster Management Authority exercising powers under the Disaster Management Act, 2005.

7. Whether State Disaster Management Authority can promote students without giving examination?

        State Disaster Management Authority of State of Maharashtra resolved to promote students without taking final examinations.

        UGC Act was enacted in reference to entry No. 66 of List I of Schedule VII of the Constitution.  

        State can legislate on education including Universities but State Legislation is subject to Entry 66 of List I.

        Guidelines issued by UGC are statutory and referable to Act of 1956 and shall have precedence.

        State Disaster Management Authority is to manage the disaster and matters connected therewith. Section 72 applies for the decision taken within four corners of the Act.

        The decision of State Disaster Management Authority of State of Maharashtra that Physical exams cannot be conducted was within four corners of Disaster Management Act, 2005.

        But students should be promoted without appearing in final year / term examination is not within domain of the Disaster Management Authority.  

        Central enactment or guidelines issued shall have precedence by virtue of same being referable to Entry 66 List I.

        No jurisdiction to State Disaster Management Authority to promote student without examination.

        Promoting students does not fall within jurisdiction under Disaster Management Authority  hence protection of Sec 72 not available.  

 

·       The Conclusions of the judgment can be summarized as below ;

1. The Revised Guidelines of UGC are within the domain of the UGC and they relate to coordination and determination of standards in institutions of higher education.

2. The Guidelines dtd. 06.07.2020 are not contrary to the earlier Guidelines dated 29.04.2020.

        The object was to lay down a uniform academic calendar for all the Universities and final /terminal examinations be held.

3. The Guidelines dtd. 06.07.2020 has to be treated

to have been issued in exercise of the statutory powers vested in the UGC under Section 12 of the UGC Act, 1956.

        As per Regulations, 2003, duty of the Universities to adopt the Guidelines.

4. The differentiation made in the Revised Guidelines to hold final or terminal semester examination and to give option for earlier years/intermediate semester for not holding the examination has a rational basis.

        The differentiation has nexus with the object to be achieved. Hence no discrimination.

5. The revised Guidelines are not violative of Art. 14 because one date, i.e., 30.09.2020 has been fixed irrespective of the conditions prevailing in individual States.

        The date was fixed throughout the country to maintain uniformity.

6. The Revised Guidelines & SoP for conduct of examinations clearly shows deep concern with the health of all stakeholders, i.e., students as well as the exam functionaries.

        Guidelines not violative of Art. 21.

7. The expression “other bodies” used in the Sec. 12 of the UGC Act, 1956 is in reference to other bodies apart from Universities.

        Other bodies in Sec. 12 would not mean State Disaster Management Authority or health experts.

        The revised guidelines are not in breach of Sec. 12 of UGC Act, 1956.

8. The Disaster Management Act, 2005 empowers the State Disaster Management Authority as well as the State Government to take measures for prevention and mitigation of a disaster and the action taken by the authorities under the Disaster Management Act have been given overriding effect to achieve the purpose and object of the Act, 2005.

        Saving of human life has been given paramount importance under the Act, 2005.

        Primacy have been given to the actions and measures taken under the Act, 2005 over anything inconsistent in any other law for the time being in force.

9. The direction in Revised Guidelines insofar as it directs the Universities and Colleges to complete the final year/terminal year examination by 30.09.2020 shall be overridden by any contrary decision taken by the State Disaster Management Authority or the State Government exercising power under the Disaster Management Act, 2005.

        The decision of State Disaster Management Authority/State not to hold final year/terminal semester examination by 30.09.2020 in exercise of power under Disaster Management Act, 2005 shall prevail over deadline fixed by the UGC i.e. 30.09.2020 in respect to the concerned State.

10. The State Governments or State Disaster Management Authority in exercise of power under Disaster Management Act, 2005 has no jurisdiction to take a decision that the students of final year/terminal students should be promoted on the basis of earlier year assessment and internal assessment, which decision being contrary to UGC Guidelines has to give way to the UGC Guidelines.

        The decision of the State/State Disaster Management Authority to promote the students in the final year/terminal semester on the basis of previous performance and internal assessment being beyond the jurisdiction of Disaster Management Act, 2005 has to give way to the guidelines of UGC.

11.   If any State/Union Territory in exercise of jurisdiction under Disaster Management Act, 2005 has taken a decision that it is not possible to conduct the final year/terminal semester examination by 30.09.2020, such State/Union Territory can make an application to the UGC for extending the deadline which shall be considered by UGC and rescheduled date be communicated to such State/Union Territory at the earliest.

       

        From the legal aspects of the judgment discussed above, it is evident that the UGC Guidelines shall prevail in exceptional circumstances like the one students facing today. But the State Disaster Management Authority being at ground level and having enough knowledge of ground situation, can take its own decisions for prevention and mitigation of disaster. Therefore, though the deadline is fixed by the UGC guidelines, it is not binding on States if contrary decisions are taken by the State Disaster Management Authority in respect of conduct of examination by invoking the provisions of Disaster Management Act. But the same will create chaos at All India level if examinations are deferred in few States while other conducting the same.

        From the above interpretations, now it is clear that the State Disaster Management Authority cannot decide to grant a degree to the students without examination, but it can certainly avoid/postpone the decision of UGC to conduct examination to protect health of its subjects.

        In my opinion the situation of pandemic is exceptional and there exists no legislation prescribing specific provisions to deal with. Decision of State Disaster Management Authority is also within its domain to the extent it shows inability to conduct examinations within prescribed deadline whereas the decision of UGC is also within its domain to conduct examinations throughout India. In my opinion the real problem is that we do not have any special legislation to decide the things as to what specific action is required in such exceptional circumstances.

        UGC happens to be the body constituted by the Central Act, whereas, State Disaster Management Authority is body constituted under Disaster Management Act, 2005 giving ample powers to State Disaster Management Authority with a special power under Section 72 to enjoy those powers.