Rakesh Kumar Agarwalla & Anr. vs National Law School of India University, Bengaluru & Ors.

14 of Schedule to the Act – Held: Clause 14 of the Schedule specifically empowers the Academic Council to appoint committees for admission to the school – Thus, the statute contemplated admission to the school under the aegis of Academic Council – Further, s.11 r/w s.18 and Clause 14 of the Schedule clearly provides for role of Academic Council in the admission of students. National Law School of India Act, 1986 – Admission – Power of Academic Council vis-à-vis Executive Council – Discussed. Karnataka Societies Registration Act, 1960 – Consortium of National Law Universities was incorporated as a registered society – Bye-Laws provided each member institution to ensure admission through CLAT – Delay in conduct of CLAT 2020 due to COVID-19 – Respondent No.1, founder member of the Consortium issued notification for conducting separate test – Respondent No.1 if bound by Bye-Laws – Held: Even though obligations on members of Consortium under the Bye-Laws are not statutory obligations but are binding on the members – Being member of the Consortium, respondent no.1 ought not to have proceeded with holding a separate test – National Law School of India Act, 1986. Doctrines/Principles – Doctrine of necessity – When not applicable – Delay in conduct of CLAT for academic year 2020-21 due to COVID-19 – Eventually postponed to September 2020 – However, Respondent No.1 issued notification for conducting separate test contending that it became a sheer necessity – Held: Academic year 2020-21 not required to be declared as zero-year even if the course starts in the mid of October, 2020 – UGC having contemplated for amending the academic year, Doctrine of Necessity does not arise.

Disposing of the matters, the Court

HELD: 1. QUESTION NO.1

Whether the petitioners have locus to file the writ petition? The petitioner No.1 in the writ petition has pleaded that he is parent of a CLAT 2020 aspirant, who also seeks to represent various such similarly placed students across the nation, who are aggrieved. Even though with regard to petitioner No.1, details of his ward has not been given except that petitioner No.1 is a parent of CLAT 2020 student but in view of the credentials of petitioner No.2, the writ petition is fully maintainable at his instance. The affidavit in support of the writ petition has been sworn by petitioner No.2. A common rejoinder affidavit has also been sworn by petitioner No.2. The Memorandum of Association of Consortium of National Law Universities, which is a registered society under Karnataka Societies Registration Act, 1960 registered on 26.03.2019 contains a list of Initial Members Subscribers of the Consortium in which name of petitioner No.2 was mentioned as Member Subscriber No.1. Petitioner No.2 being Vice-Chancellor of respondent No.1 became the ex-officio Secretary Treasurer of the Society, his details are also mentioned in paragraph 7 of the Memorandum. A person, who has worked as Vice-chancellor of respondent No.1 and was also member of Consortium, which is entrusted to conduct CLAT, he is fully competent to espouse the cause of education by means of the writ petition. Thus, the objection of the respondent that petitioners have no locus to file the writ petition is rejected. Alongwith the writ petition a Special Leave Petition (C) No.11059 of 2020 has been listed, which has been filed by five petitioners, who were candidates for CLAT 2020-2021. The admission notice dated 03.09.2020 was challenged by them by means of a Writ Petition (C) No.2454 of 2020 in High Court of Jharkhand at Ranchi, which writ petition was dismissed. Challenging which judgment, they have filed the aforesaid special leave petition. The aforesaid five petitioners have also filed an application I.A. No. 91083 of 2020 in Writ Petition (C) No.1030 of 2020 to intervene in the matter, they being affected and aggrieved persons by the notice dated 03.09.2020. Those students, who are aggrieved by the admission notification dated 03.09.2020 are also before this Court. Thus, issues raised have to be decided on merits rejecting the objection of respondent No.1 regarding locus. [Paras 29, 32-35][329-B, F-H; 330-C-H; 331-A-B]

2.1 QUESTION NO.2

Whether the admission notification dated 03.09.2020 by respondent no.1 could have been issued only after recommendations to that effect by the academic council, which is the statutory authority under the act, 1986 for admission of the students to the five year integrated B.A.LL.B. (Hons.) Programme 2020-2021?

National Law School of India Act, 1986 was enacted to establish and incorporate National Law School of India University at Bengalore (now Bengaluru). Under Section 8, authorities of the schools have been enumerated, which includes the Executive Council as well as the Academic Council. Section 10 deals with the Executive Council. Section 11 of the Act deals with Academic Council. The Executive Council is empowered to frame Regulations to provide for the administration and management of the affairs of the school under Section 13 of the Act. Section 18 deals with authorities and officers of the school, their composition, powers and functions, subject to the provisions of the Act have been specified in the Schedule or as may be provided by the Regulations. The Schedule provides for Membership of the Executive Council, Term of the Executive Council and powers and functions of the Executive Council. Clause 9 of the Schedule provides for powers and functions of the Executive Council. Clause 13 deals with membership of the Academic Council and Clause 14 provides for powers and duties of the Academic Council. [Paras 38-43][331-G-H; 332-B, E; 334-B, D-E; 336-C]

2.2 There can be no dispute that Executive Council is the Chief Executive Body of the school and the administration, management and control of the school is vested in the Executive Council and in the administration, right to admit the students is included but the Statute has to be further looked into to find out as to whether there are any other statutory provisions to regulate the admission of students or there is any other authority of the school, which is vested with the power to take decision regarding admission of the students. Power under Section 13 empowering the Executive Council to frame regulations and power under Section 10 to administer, manage and control the school are two separate powers and even though the regulations have not been framed under Section 13 regarding admission of the students, the Executive Council can very well exercise its power under Section 10 to administer, manage and control the affairs of the school. However, the provisions contained in Section 13 throw considerable light on the statutory scheme. The second proviso providing for prior concurrence of the Academic Council on enumerated subjects including “mode of enrolment and admission of students” has been provided for since under the Scheme of the Statute it is the Academic Council which has been empowered to take decisions regarding mode of enrolment or admission of students. The above restriction in regulations making power of the Executive Council has been engrafted with purpose and object. The subjects which are mentioned under second proviso where prior concurrence of the Academic Council is required are all matters which are in domain of the Academic Council, thus, even though strictly second proviso of Section 13(1) is not attracted when no regulations have been framed by the Executive Council but the object and purpose for conditioning the exercise of regulation making power of the Executive Council cannot be lost sight. Sub-section(3) of section 13 also contains a special provision which provides that where the Executive Council rejects the draft of a regulation proposed by the Academic Council, the Academic Council may appeal to the Chancellor and the Chancellor, may, by order, direct that the proposed regulation may be laid before the next meeting of the General Council for its approval and pending such approval of the General Council it shall have effect from such date as may be specified in that order. Thus, Academic Council regulations which even though rejected by the Executive Council can be allowed to operate by Chancellor and required to place before General Council for approval and after approval it shall be operated. The above provision indicates that in certain matters the recommendations of the Academic Council has been given prominence and as per sub-section(2) of Section 13, the Academic Council shall have the power to propose regulations on all the matters specified in (a) to (h) as enumerated in the second proviso of sub-section(1) of Section 13. Thus, Academic Council can propose regulations on mode of enrolment and admission of students also. [Paras 46, 50][338-E-F; 341-F-H; 342A-F]

2.3 Section 18 of the Act provides that composition, powers and functions of the authorities of the school subject to the provisions of the Act shall be as specified in the Schedule. Clause

14 of the Schedule to the Act provides “subject to the provisions of this Act and the regulations, the Academic Council shall, in addition to all other powers vested in it, have the powers as enumerated in Clauses 14(7), 14(11) and 14(16). The said provisions in the Schedule specifically empower the Academic Council to appoint the committees for admission to the school. Admissions to the school, thus, were contemplated to be under the control of Academic Council and the appointment of committees was with the purpose to monitor and conduct the admission of the school. When the Act was enacted in 1986, no procedure was in place regarding admission and the Statute empowered the Executive Council to appoint committees for admission to the school. By virtue of Clause 14(16) with regard to appointment of committees for admission to the school, the Academic Council was to perform “all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of the Act”. Thus, the above statutory provision gave all incidental power to the Academic Council in relation to the admission. [Paras 51, 52][342-G-H; 343-C-E]

2.4 The powers given to the Executive Council under Clause 9 can be divided in three parts (i) sub-clauses (1), (2), (3) & (9) relates to appointment and service conditions; (ii) subclauses (4), (5), (6), (7) & (8) relating to finance and properties and (iii) other contains clauses (10), (11) and (12). Clause (11) empowers the Executive Council to select a common seal for the school and sub-Clause (12) is a general power providing that Executive Council to exercise such other powers and to perform such other duties as may be imposed. While referring to power of the Academic Council given in clause 14 sub-clause (11), which empower the Academic Council to make arrangements for the conduct of examinations and to fix dates for holding them, it is submitted that the said power relate to conduct of examination of various courses, which are run by the school. Sub-clause(10) of Clause 9 of Schedule has to be, thus, also read to mean that appointment of examiners and moderators is with regard to courses run by the school. It is relevant to notice that even the power to appoint examiners and moderators is with the condition, i.e., “after consulting the Academic Council”. When appointment of examiners by the Executive Council is by consultation of the Academic Council, how can in the mode and manner of the admission of the students, the Academic Council can be ignored. The Statutory Scheme of the Act, thus, indicates that there is no specific power given to the Executive Council with regard to admission of students except the general power of the Executive Council as contained in Section 10 whereas the statutory provision of Clause 14 of the Schedule specifically empowers the Academic Council to appoint committees for admission to the school. Thus, the Statute contemplated admission to the school under the aegis of Academic Council. Sub-clause (7) of Clause 14 read with subclause (16) of clause 14 of Schedule clothes the Academic Council with all powers including mode and manner of admission of the students. Section 11 of the Act also needs to be referred to. Section 11 of the Act provides that Academic Council shall be the academic body of the school and shall have power of control and general regulation of, and be responsible for the maintenance of standards of instruction, education and examination of the school. Section 11 used the three expressions namely “power of control”, “general regulation of” and “be responsible”. The expressions used in the Section 11 are “maintenance of standards of instructions, education and examination of the school. It is now settled law that the standards of education include admission to the course. When the Academic Council has been given power of control, general regulations and is responsible for maintenance of standards of instruction, education and examination of the school, its one of the functions, undoubtedly is to regulate the admission of students. Reading of Section 11 with Section 18 and clause 14 of the Schedule clearly provides for role of Academic Council in the admission of students. [Paras 53, 55, 56][343-FG; 344-A-G; 345-C]

Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors., (1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 – followed.

2.5 At this stage, the meeting of the Executive Council dated 29.08.1987 and 30.08.1987 may also be referred to. The proceedings have been brought on the record alongwith the counter affidavit of respondent No.1. Item No. 16 of the meeting dealt with selection of students. The resolution of the Executive Council indicates that it was a draft proposal of the Academic Council regarding admission test, which was approved by the Executive Council. The next following sentence in the resolution is relevant “the procedure for admission test and the selection may be decided by the Academic Council and implemented by the Director”. The respondent No.1 himself has brought on the record the proceedings of the meeting of the Academic Council dated 12.12.1987 as Annexure R-1/2 where the mode of selection of the students to the LL.B. Programme was provided for. Thus, the above proceedings of Executive Council and Academic Council itself make it clear that the Executive Council was of the opinion that it is the Academic Council who is statutory authority regarding mode and manner of the admission of the students in LL.B. course. The above proceedings of the Executive Council dated 29.08.1987 and Academic Council dated 12.12.1987 fully support the submission of the learned counsel for the petitioners that it is the Academic Council who is empowered under the statute to take a resolution regarding admission of the students in the LL.B. Course. The authorities of the University exercise powers and functions as entrusted to them in the Statute. [Paras 57-59][345-C; 346-B-F]

Marathwada University v. Seshrao Balwant Rao Chavan (1989) 3 SCC 132 : [1989] 2 SCR 454 – relied on.

2.6 It is, however, made clear that Executive Council in its resolution dated 12.08.2020/18.08.2020 in exercise of general power of administration could have very well taken any resolution regarding completion of admission process but for implementing the decision of 12.08.2020/18.08.2020 of the Executive Council recommendation of Academic Council was required to be obtained regarding mode and manner of conducting separate admission tests by respondent No.1. The recommendation of Academic Council was necessary to be obtained for holding a separate entry test namely NLAT especially when respondent No.1 was proposing to hold the above test instead of admitting the students by CLAT from which common law admission test, admission in LL.B. course was being done for last more than a decade. When the respondent No.1 wanted to conduct NLAT as online home proctored test of 45 minutes containing 40 questions which mode and manner was different from earlier prescriptions, the recommendations of Academic Council were must. On 18.08.2020 the Executive Council unanimously reaffirmed its resolution taken on 12.08.2020 to empower the Vice-Chancellor and the University to conduct an independent admission process in the event that CLAT 2020 is delayed further. The resolution was empowering the Vice-Chancellor to take all necessary steps. All necessary steps have to be understood as steps which are required to be taken as per the statute. When the Act, 1986 empower the Academic Council to take decision regarding admission of the students in LL.B. Course and with regard to mode and manner of conducting the admission test, it was obligatory for the ViceChancellor to have obtained the recommendations of the Academic Council. The Vice-Chancellor himself is the Chairman of the Academic Council and there was no difficulty and with regard to meetings of the Academic Council Clause 15 sub-clause

(6) provides that if urgent action by the Academic Council becomes necessary, the Chairman of the Academic Council is empowered to permit the business to be transacted by circulation of papers to the members of the Academic Council. Thus, 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. Thus, 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. [Paras 60-62][347-C-E, H; 348-A-E]

3.1 QUESTION NO.3

Whether the respondent No.1 being founder member of Consortium of National Law Universities, a registered society, is bound by its Bye-Laws and was obliged to admit the students for integrated B.A.LL.B.(Hons.) Programme through CLAT 2020?

A Memorandum of understanding was signed by seven, then existing National Law Universities on 23.11.2007 to hold the Combined Admission Test to be organised by NLU on rotation basis on the basis of seniority. In November, 2014, in a meeting of Vice-Chancellors of National Law Universities, the decision was taken to constitute a Consortium of National Law Universities. The Consortium got registered as Society in Karnataka Societies Registration Act, 1960 on 26.03.2019. The Consortium in its various meetings took decisions to streamline conduct of Common Law Admission Test (CLAT) and for coordination and cooperation among NLUs. The aims and objectives further disclosed that the Consortium aims to make the benefit of legal education of one or more NLUs to the rest of the NLUs. Clause 3 deals with the governance of the society. Clause 3.3 provides that the society shall exercise powers and perform functions as enumerated therein. Clause 3.3.5 provides that the society shall organise Common Admission Test for UG, PG, Doctoral, Post-Doctoral courses for the National Law Universities across the country. Clause 3.3.6 provides that society shall provide a platform for admission to all National Law Universities in India through CLAT for UG and PG Law courses if such National Law Universities become the members of the society. Bye-Laws of Consortium of National Law Universities were also framed. The President and Vice-President under the bye-laws are to be elected at the annual meeting of the governing body. Bye-Laws provide that each member of the institution ensure the admission on merit assessed through CLAT. As per Bye-Laws clause 12.1, Vice-Chancellor of National Law School of India University, Bangalore shall be ex-officio Secretary Treasurer of the society. Bye-law 15 deals with “Membership” whereas bye-law 15.3 contains heading “Requirement of Membership”. A perusal of Memorandum of Association and ByeLaws indicates that laudable objects for which National Law Universities came together stood cemented by consortium being registered as a society. As on date, there are 23 National Law Universities which are part of the Consortium. The respondent No.1 was the first National Law University which came into existence by Act, 1986 of Karnataka Legislature. Other States followed the suit creating National Law Universities. Different National Law Universities established in different parts of the Country have contributed immensely to the cause of legal education.[Paras 63-67][348-G-H; 349-A-E; 350-B-D]

3.2 Even though obligations on members of Consortium under the Bye-Laws are not statutory obligations but those obligations are binding on the members. All members occupying significant and important status have to conduct in fair and reasonable manner to fulfill the aspirations of thousands of students who look on these National Law Universities as institutions of higher learning, personality and career builders. Further the statutes under which National Law Universities have been established cast public duties on these NLUs to function in a fair, reasonable and transparent manner. These institutions of higher learning are looked by society and students with respect and great trust. All NLUs have to conduct themselves in a manner which fulfills the cause of education and maintain the trust reposed on them. Bye-Law 15.3.1 itself contemplates that the obligation of membership is to ensure that the member institution reflects core values and standards set by the Consortium according appropriate respect for the autonomy of its member institution. The autonomy of member institutions does not in any manner come in the way of holding the Common Law Admission Test (CLAT). Every institution maintains its autonomy as per the statute governing, the obligation to maintain core value of the Consortium in no manner affect the autonomy of the member university. The core values of the Consortium aim to enhance the prestige and content of legal education. Legal education has a pivotal role in the development of the society and regulating the inter se relations between the members of the society. To conduct a Common Law Admission Test for all the Law Universities is both in the national interest as well as in the interest of the education. This Court time and again has emphasised the importance and usefulness of Common Admission Test for group of institutions imparting same or similar education. [Paras 70, 73, 75 and 76][351-A-C; 352-B, C, F, G; 353-A-B] P.A. Inamdar and others v. State of Maharashtra and others (2005) 6 SCC 537 : [2005] 2 Suppl. SCR 603 – followed.

Hyderabad Karnataka Education Society v. Registrar of Societies and others (2000) 1 SCC 566 : [1999] 5 Suppl. SCR 161 – distinguished.

Christian Medical College Vellore Association v. Union of India and others (2020) 8 SCC 705 – relied on.

3.3 It is true that respondent No.1 University follows a unique system of Trimester, each semester has 70 teaching days per three months term. The first Trimester as per resolution of academic council was to begin on 01.07.2020 and was to end till 30th September,2020. This period of three months is not available for respondent No.1 to start the first semester. The entire country is struggling with Pandemic Covid-19 from March 2020. Loss in the academic year is for all Universities in the Country. The Academic Calendar of each University stood disrupted by Covid19. None of the Universities have declared the year as a ‘zero year’. The University Grants Commission being aware of the consequences of Covid-19 Pandemic issued guidelines on the examination in the Academic Calendar. As provided by UGC guidelines which guidelines have been continued by subsequent guidelines dated 06.07.2020, the UGC expected the Universities to carry on some amendments in their academic calendar for the session 2020-21. The Universities are not powerless to modify their Academic Calendar looking to the pandemic. The Academic year 2020-21 is not a normal academic year in which Universities are expected to carry on their teaching and other activities in normal mode and manner. The respondent No.1 University could have very well found out ways and means to start the academic Under-Graduate Law course even if it starts in mid of October 2020 after conduct of the CLAT on 28.09.2020. The Court is not persuaded to accept the submission that “Doctrine of Necessity” was applicable in the fact situation of the ongoing pandemic. UGC in its guidelines dated 29.04.2020 had 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. 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.[Paras 81-83, 86][355-A-C, F-G; 356-C-D]

4. QUESTION NO.4

Whether online home proctored examination as proposed by notification dated 03.09.2020, lacks transparency, was against the very concept of fair examination and violative of the rights of the students under Article 14 of the Constitution? In the proceeding of the faculty meeting dated 06.08.2020 brought on record by the respondent No.1 along with his counter affidavit, it has been mentioned that “NSLIU is the first preference for more than 60 percent of CLAT applicants”. About 69,000 students registered for CLAT-2020. 60 percent of 69,000 comes to 41,400. The registration into NLAT being only 24,603 out of which only 23,225 could appear makes it clear that a large number of students who could have wanted to apply for admission in respondent No.1 University could not even apply due to shortage of time and technical requirement insisted by respondent No.1 University. The figures fully support the submissions of the petitioner that a large section of the students especially belonging to marginalised sections of the society w ere denied the opportunity to appear in the examination. 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. [Paras 94, 95][359-C-F]

5. QUESTION NO.5

Whether NLAT held on 12.09.2020 with re-test on 14.09.2020 was marred by malpractices and deserves to be set aside.

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. The Court need not express any opinion in this proceeding under Article 32 with regard to the aspect of malpractices in the test conducted on 12.09.2020 and 14.09.2020 which is essentially a matter of scrutiny of facts and evidence. [Paras 102, 103][360-H; 361-A-C]

6. The writ petition is allowed in the following manner: -

(I) The notice for admission to the five year integrated B.A.LL.B (Hons.) programme 2020-21 dated 03.09.2020 Annexure -P 14 as well as Press Release on NLSIU admission 2020-21 dated 04.09.2020 Annexure-P 15 are quashed.

(II) The respondent No.3 is directed to conduct the CLAT2020 examination on 28.09.2020 taking all precautions and care for health of the students after following the Standard Operating Procedures (SOPs) of the Ministry of Health and Family Welfare (MoHFW) and Ministry of Human Resource Development (MHRD).

(III) The respondent No.3 shall also ensure that the entire process of declaration of the result be completed as early as possible to enable the respondent No.1 and other National Law Universities to start their course by the mid of October-2020.

(IV) The respondent No.1 shall also complete the admission of B.A.LL.B (Hons.) programme 2020-21 on the basis of the result of CLAT-2020.

(V) The respondent No.3 may take decision at an early date restoring the status of respondent No.2 as the SecretaryTreasurer 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.

In view of above order passed in the Writ Petition (Civil) No.1030 of 2020, no orders are required in SLP(C) No.11059 of 2020.[Para 108 and 109][362-B-F]

Varun Bhagat v. Union of India decision dated 25.07.2008 of Supreme Court inWrit Petition (C) No.

68 of 2006; T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587; PTC India Limited v. Central Electricity Regulatory Commission (2010) 4 SCC 603 : [2010] 3 SCR 609; V.T. Khanzode and Ors. v. Reserve Bank of India and Anr. (1982) 2 SCC 7 : [1982] 3 SCR 411 – referred to.