RAKESH KUMAR AGARWALLA & ANR. versus NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BENGALURU & ORS.
[2020] 10 S.C.R. 299, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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RAKESH KUMAR AGARWALLA & ANR.
v.
NATIONAL LAW SCHOOL OF INDIA
UNIVERSITY, BENGALURU  & ORS.
(Writ Petition (Civil) No. 1030 of 2020)
SEPTEMBER 21, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
National Law School of India Act, 1986 – Admission of
students, mode of enrolment – Recommendation of Academic Council
– Statutory requirement of – Delay in conduct of CLAT for academic
year 2020-21 due to COVID-19 – Initially it was to be held in May
2020 but was eventually postponed to 28.09.2020 – However,
respondent no.1-National Law School of India University, Bengaluru
(NLSIU) issued notification dated 03.09.2020 for conducting a
separate test, National Law Aptitude Test (NLAT) through online
home proctored examination for admission to its five year integrated
B.A.LL.B (Hons.) Programme 2020-21 – Challenged – Held:
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 – The
same having been issued without such recommendation is not in
accordance with the provisions of 1986 Act – Notice dated
03.09.2020 as well as Press Release dated 04.09.2020 on NLSIU
admission 2020-21 are quashed – Respondent No.3 - Consortium
of National Law Universities to conduct the CLAT-2020 examination
on 28.09.2020 following the Standard Operating Procedures (SOPs)
of Ministry of Health and Family Welfare and Ministry of Human
Resource Development –
Respondent No.1 to complete the admission
of B.A.LL.B (Hons.) Programme 2020-21 on the basis of result of
CLAT-2020 – Constitution of India – Art.14.
National Law School of India Act, 1986 – Power of Executive
Council u/ss.13 and 10 – Difference between – Discussed.
National Law School of India Act, 1986 – Second proviso to
s.13(1), (2) – Held: As per sub-s.(2) of s.13, the Academic Council
shall have power to propose regulations on all the matters specified
[2020] 10 S.C.R. 299
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in (a) to (h) as enumerated in the second proviso of sub-sec.(1) of
s.13 – Thus, the Academic Council can propose regulations
regarding mode of enrolment and admission of students also.
National Law School of India Act, 1986 – ss.11, 18; Clause
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?
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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]
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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
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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; 342-
A-F]
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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) sub-
clauses (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
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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 sub-
clause (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-F-
G; 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
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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
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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 Vice-
Chancellor 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
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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 Bye-
Laws 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
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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]
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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 Covid-
19. 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
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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 were 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.
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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 CLAT-
2020 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 Secretary-
Treasurer of the Consortium as well as restoring the Secretariat
of the Consortium as to NLSIU, keeping in mind that scheduled
exam of CLAT-2020 on 28.09.2020 is not hampered in any
manner.
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]
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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.
Case Law Reference
[2002] 3 Suppl. SCR 587
referred to
Para 45
[2010] 3 SCR 609
referred to
Para 48
[1982] 3 SCR 411
referred to
Para 49
[1999] 1 Suppl. SCR 249
followed
Para 55
[1989] 2 SCR 454
relied on
Para 59
[1999] 5 Suppl. SCR 161
distinguished
Para 71
(2020) 8 SCC 705
relied on
Para 74
[2005] 2 Suppl. SCR 603
followed
Para 76
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1030 of 2020.
Under Article 32 of the Constitution of India
With
SLP (C) No. 11059/2020
Nidhesh Gupta, Gopal Sankaranarayanan, Nikhil Nayyar, Arvind
P. Datar, Sajan Poovayya, P.S. Narasimha, Sr. Advs., P.B. Suresh, Vipin
Nair, Karthik Jayashankar, Sughosh Subramanyam, Agnish Aditya,
Ms. Japneet Kaur, Madhav Gupta, Ms. Pallavi Singh, Shrutanjaya
Bharadwaj, Ms. Vriti Gujral, Vishal Sinha, Ms. Gayatri Verma, Kush
Chaturvedi, Aditya Shekhar, Ms. Priyanshree Sharma PH, Divyanshu
Rai, Baibhaw Gahlaut, Shubham Gautam, Aditya Narayan, Rohit Sharma,
Rounak Nayak, Atul Agarwal, Lekha Chandrasekhar, Rahul Unnikrishnan,
Patibhanu Singh Kharola, Ms. Raksha Agrawal, Kumar
Dushyant Singh,
K. Parameshwar, M.V. Mukunda, Ms. Aditi Tripathi, Kush Chaturvedi,
RAKESH KUMAR AGARWALLA v. NATIONAL LAW SCHOOL
OF INDIA UNIVERSITY, BENGALURU
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Sandeep Deshmukh, Nishant Sharma, Rajat Gaur, Sujoy Gaur and Rakesh
K. Sharma, Advs. for the appearing parties.
The following Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This writ petition filed in Public Interest under Article 32 of the
Constitution of India questions admission notification dated 03.09.2020
issued by National Law School of India University, Bengaluru for
conducting separate admission entrance examination, the National Law
Aptitude Test(NLAT) scheduled for 12.09.2020. The petitioner seeks a
direction to National Law School of India University (hereinafter referred
to as “NLSIU”) to admit students only through Common Law Admission
Test, 2020(CLAT) examination scheduled to take place on 28.09.2020.
The writ petition is filed by two petitioners. First petitioner is the father
of a student aspiring to gain admission into five years LL.B. programme
of National Law University and the petitioner No.2 is the former Vice-
Chancellor of National Law School of India University, Bengaluru.
2. We may notice certain background facts for considering the
issues which have been raised in the writ petition.  NLSIU, a premier
Law University of the country, was established pursuant to a joint initiative
of the Supreme Court of India, the Bar Council of India and the Karnataka
Bar Council. Bar Council of India, set up a society, namely, National
Law School of India Society as a registered society under
the Karnataka
Societies Registration Act, 1960. On request made to Government of
Karnataka for establishing the School as University by a Statute, the
State Government established National School of India University,
Bengaluru by National Law School of India Act, 1986 (hereinafter
referred to as ‘the Act, 1986’). We shall notice the relevant provisions
of the Act, 1986 a little later. The NLSIU was meant to be a premier
School of Legal Education with five years undergraduate Law Course.
Following the footsteps of NLSIU, National Academy of Legal Studies
and Research (NALSAR) was established in Hyderabad in 1998 and
the National University of Juridical Sciences, Kolkata (NUJS) was
established in Kolkata in 1999 and National Law Institute University,
Bhopal (NLIU) was established by Act No.41 of 1997 by Madhya
Pradesh Legislature. Over the course of time States enacted similar
Statutes to create institutions for legal education which came to be known
as National Law Universities across the country. All the National Law
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Universities have prescribed criteria for admission as well as syllabus
structure. In the initial years all National Law Universities were
conducting their own admission tests for admitting students in five years
Law course. A writ petition being Writ Petition(C)No.68 of 2006 Varun
Bhagat vs. Union of India came to be filed in this Court under Article
32 of the Constitution,  impleading Union of India through the Secretary,
Ministry of Law, Justice and Company Affairs, Ministry of Human
Resource Development through its Secretary, Bar Council of India,
NLSIU, Bengalore and five other National Law Universities. The writ
petitioner prayed for a direction to the respondent to lay down the
mechanism of centralised admission process to the various National Law
Universities to facilitate the interests of the students. This Court issued
notice in the writ petition. Learned Additional Solicitor General of India
made a statement before this Court that Ministry of Human Resource
Development in consultation with the various Law Universities and other
concerned stakeholders, shall take steps to examine and evolve a scheme/
policy in accordance with which a combined entrance examination could
be conducted for premier National Law Universities.  The Government
of India convened various meetings with Directors/Vice-Chancellors and
other educational functionaries. In the Writ Petition No.68 of 2006
counter-affidavit was filed on behalf of Department of Higher Education,
Ministry of Human Resource Development where detailed steps taken
by the Ministry of Human Resource Development were enumerated
including details of various meetings which were held with Vice-
Chancellors of Law Universities in the year 2006 between September,
2006 to December, 2006. In paragraph 10 of the counter-affidavit
following was stated:
“10....It is expected that all the required informational notes shall
be received during the course of February, 2007 and further steps
shall be timely taken in order to ensure that the process of holding
a Combined Admission Test for the academic session 2008-2009
is put in place as expeditiously as possible.”
3. The National Law Universities entered into a Memorandum of
Understanding dated 27.11.2007 where the National Law Universities
decided to hold a common admission test, namely, Common Law
Admission Test (CLAT). Every University shall conduct the examination
starting with the oldest University. When the Writ Petition No.68 of
2006 came for hearing on 25.07.2008, this Court noticed that prayers
RAKESH KUMAR AGARWALLA v. NATIONAL LAW SCHOOL
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sought in the writ petition have already been accomplished, this Court
passed following order:
“The prayers sought for in the writ petition have already been
accomplished, so the writ petition is disposed of.”
4. The Common Law Admission Test (CLAT) started to be held
with effect from the year 2008 for admission in five years law course of
National Law Universities, which was a great relief to the students’
community aspiring for joining a professional course in Law. The CLAT
was conducted at different centres throughout the country. The number
of National Law Universities kept on growing one by one and currently
there are 23 National Law Universities in the country.
5. Writ petition being Writ Petition (C)No.600 of 2015 came to be
filed by one Shamnad Basheer praying that an independent professional
body conducting CLAT on annual basis be constituted. This Court passed
various orders in the aforesaid writ petition. On 28.11.2018 this Court
passed the following order in the aforesaid writ petition:
“Application for intervention is dismissed as withdrawn.
Shri Atmaram N.S. Nadkarni, learned Additional Solicitor
General appearing on behalf of the Union of India, Ministry of
Human Resource & Development states that the Government
has prepared a report and shall further convene a meeting of all
the parties to these petitions, NTA and the Bar Council of India;
seek their views and make appropriate recommendations for the
holding of the examination within four weeks.
List thereafter.”
6. A meeting was held on 10.12.2018 by Secretary, Department
of Higher Education, Government of India in compliance of the aforesaid
order, the Bar Council of India who was a participant in the meeting
stated that BCI as a statutory body has no objection in constitution of a
Consortium of NLSIU for conducting the examination but as a key
stakeholder, they would be part of monitoring body for conducting and
monitoring the examination. In the meeting major point which emerged
and noted was “the way forward would be to have a better, robust,
transparent and accountable institutional structure for conduct of the
examination through a Consortium of NLSIU being the stakeholder in
the conduct of the examination (and as agreed by the petitioner, BCI
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and NLIA) was asked to take exams in transparent and robust manner”.
The Consortium of National Law Universities was incorporated as a
registered society under the Karnataka Registration of Societies Act,
1960 on 26.03.2019. The Vice-Chancellor of the NLSIU was to be the
ex-officio Secretary-Treasurer of the Consortium. The Memorandum
of Understanding of Consortium of National Law Universities noticed
the directions issued by this Court in Varun Bhagat vs. UOI and
deliberations made by the University Grants Commission, Ministry of
Human Resource Development and Government of India. The main
aims and objectives of the Consortium in clause 3 of the Memorandum
were inter alia:
“(i) To provide the highest standards of legal education to make
Indian legal education comparable with the most reputed
international institutions of legal education.
(iii)  To provide better co-ordination amongst the NLUs and other
legal institutions to achieve highest standard of legal education in
the country. Further the Consortium recognizes the autonomy of
its member institutions and therefore its decisions will need adoption
by the member institutions for implementation in such institutions.
(v)To administration, control and monitor the conducting of all
India common entrance examination for law in CLAT, for and on
behalf of all the participating NLUs, and facilitate admission of
students into various NLUs in the country.
(xi) To make the benefits of legal education of one or
more NLUs
available to the rest of NLUs.
(xix) To evolve uniform policies in terms of admission, course
semester system, uniform grading system and the like in tune with
global standards.”
7. Clause 5 provided for governing body of the Society. The first
governing body of the Society was constituted with 16 academicians/
Vice Chancellors in which first name was of the petitioner No.2, Prof.
R. Venkata Rao being Vice-Chancellor of NLSIU. Bye-Laws of
Consortium of National Law Universities were also framed. Member of
institution is defined in clause 1.1.13 to the following effect:
“1.1.13. “Member institution” means by NLU formally admitted
to the membership of the Society in accordance with the Bye-
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Laws and having paid the Subscription Fee and signing the master
list of the Member institutions maintained by the Society.”
8. Clause XV dealt with membership. Bye-Laws provide that
each member of the institution ensure the admission on merit assessed
through CLAT. Para 15.3.3 is as follows:
“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. Provided that nothing in this provision
shall be deemed to prevent a Member institution from making
special provisions for the employment or admission of women,
persons with disabilities or for persons belonging to any socially
and educationally backward classes of citizens and, in particular,
for the Scheduled Castes and the Scheduled Tribes.”
9. The Consortium successfully conducted the CLAT for admission
in academic year 2019-20. In academic year 2020-21 Consortium notified
the schedule for admission in which 10.05.2020 was fixed for CLAT
2020 test. Due to pandemic caused by the COVID-19 virus nationwide
lockdown was imposed on 23.03.2020 by the Government of India. Due
to the lockdown, CLAT was required to be postponed for public health
and safety reasons. The examination scheduled for
10.05.2020 was
postponed. The Executive Committee of the Consortium on 29.06.2020
resolved to shift away from physical test to centre-based online test.
10. Date 22.08.2020 was fixed for conduct of the test. However,
due to big jump/increase in COVID-19 cases and lockdown till 30.08.2020
the examination which was scheduled to be held on 22.08.2020 was
postponed to 07.09.2020. The Executive Committee of the Consortium
received a communication from Professor Nirmal Kanti Chakrabarti,
Vice Chancellor, NJUS, Kolkota that the West Bengal had decided to
impose a complete lockdown on 07.09.2020. The Consortium met on
28.08.2020 and postponed the examination to 28.09.2020.
11. Now, we may notice the events which took place at the end of
NLSIU. The five years degree course offered by NLSIU consists of
five academic years each academic year is divided into three semesters,
each term called the Trimester having a minimum of 70 working days.
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The academic term ordinarily starts from 1st July to 30th  September,
second starts from November to February and third starts from March
and ends in June.  After postponing of CLAT from 22.08.2020 to
07.09.2020, Faculty meeting of NLSIU was held on 06.08.2020 to
consider the contingency plan to prevent zero year.
12. Faculty meeting discussed various possible solutions. It was
also noted that as a last option a separate admission procedure should be
developed. A meeting of the Executive Council of NLSIU was held on
l2.08.2020. In its meeting it was resolved that if there is any further
delay in CLAT examination, the Vice Chancellor is empowered to take
all necessary steps to ensure that the admission process of 2020-21 is
completed in September, 2020. Again in adjourned meeting of the
Executive Council on 18.08.2020, the Executive Council reaffirmed
resolution to empower the Vice-Chancellor and the University to conduct
the independent admission process in the event CLAT is delayed further.
Another Faculty meeting was held on 31.08.2020 where it was noted
that CLAT 2020 was postponed from 07.09.2020 to 28.09.2020. On
03.09.2020 NLSIU, Bengaluru issued notice for admission to the five
years B.A.LL.B(Hons.) programme 2020-21 proposing to conduct NLAT
test 2020 on 12.09.2020, the candidates were to attempt the examination
by using a computer device at their respective locations. Paragraph 4.4.2.
of the notice stated:
“4.4.2 Candidates who have submitted a
valid application form
will be required to appear for the NLAT. The Test shall be an
online entrance examination to be held on 12 September, 2020.
Candidates will attempt this examination using a computer device
at their respective locations. Candidates will have to ensure that
they can appear for the examination on the appropriate date and
time using a computer device as per the detailed specifications
that will be provided, including video and audio inputs. NLSIU
shall not be responsible for any connectivity issues, or failure of
internet connection during the examination. NLSIU reserves the
right to cancel any candidate’s examination based on misconduct
or examination malpractice.”
13. A press release of NLSIU for admission 2020-21 was issued
on 04.09.2020 in the above regard. NLSIU, Vice Chancellor, respondent
No.2 gave an interview with “Bar and Bench” regarding separate
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admission test, namely, NLAT by NLSIU. This writ petition was filed in
this Court on 08.09.2020 praying for following relief:
“i) ISSUE A WRIT OF CERTIORARI or any other appropriate
writ, order or direction  to quash the impugned undated Admissions
Notification released on 03.09.2020, at Annexure P-14 of the
present Writ Petition, issued by the Respondent No.1;
ii) ISSUE A WRIT OF CERTIORARI or any other appropriate
writ, order or direction to quash the impugned Notification for
Technical/System Requirements for the NLAT 2020;
iii) ISSUE A WRIT OF MANDAMUS or any other appropriate
writ, order or direction to direct Respondent No.1 to admit students
only through CLAT;”
14. This Court on 11.09.2020 by issuing notice directed that the
examination for admission in pursuance to notification dated 04.09.2020
may take place but neither the result shall be declared nor any admission
be made consequent thereto. Counter-affidavits have been filed by
respondent Nos.1, 2 and 3 to the writ petition to which a common
rejoinder-affidavit has been filed on behalf of the petitioner. A sur-
rejoinder-affidavit has also been filed by the respondent No.1.
15. We may also notice very briefly facts in SLP(C) No.11059 of
2020. SLP has been filed against the judgment dated 11.09.2020 of the
High Court of Jharkhand at Ranchi in Writ Petition (C) No.2454 of 2020.
The writ petition was filed by five students in the High Court of Jharkhand
praying for quashing the notification dated 03.09.2020 issued by the
NLSIU for declaring a separate examination for admission to its 5 years
LL.B(Hons.) course. The petitioners’ case in the writ petition before
the High Court was that the petitioners have registered for CLAT
examination 2020 to be conducted by the CLAT Consortium. They
challenged the notice dated 03.09.2020 issued by NLSIU and prayed
for quashing the notice. The writ petition was dismissed by the High
Court. Challenging the judgment of the High Court dated 11.09.2020
SLP has been filed. The SLP petitioners have also filed IA No.91083/
2020 in writ petition NO.1030 of 2020 to intervene in the writ petition.
Applicants in their application have pleaded that they applied for
undergraduate examination through CLAT 2020 and prepared regularly
for the couple of years for CLAT examination. The notice dated
03.09.2020 by NLSIU came as surprise to the applicants, aggrieved by
the said notice they filed writ petition in the High Court.
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16. We have heard Shri Nidesh Gupta, learned senior counsel and
Shri Gopal Sankaranarayan, learned senior counsel, for the petitioners.
Shri Arvind Datar, learned senior counsel for respondent No.1, Shri Sajan
Poovayya, learned senior counsel for respondent No.2 and Shri P.S.
Narasimha for respondent NO.3. Shri Nikhil Nayyar, learned senior
counsel, has appeared for petitioner in SLP as well as in IA No.91083 of
2020.
17. Shri Nidhesh Gupta, learned senior counsel for the petitioner
submits that the notification dated 03.09.2020 issued by respondent No.1
notifying separate admission test ‘NLAT’ is in breach of statutory
provisions of Act, 1986. The admission notice dated 03.09.2020 issued
by respondent No.1 relies on the meeting of the Executive Council of
the University dated 12.08.2020 and 18.08.2020 as well as Faculty
meeting dated 06.08.2020. It is submitted that under the Act, 1986 it is
the Academic Council of NLSIU which has been empowered under the
Act, 1986 with regard to admission of the students. The Executive Council
has no power. Shri Gupta submits that Section 13 empowers the Executive
Council to frame Regulations to provide for administration and
management of affairs of the School. Second proviso of which Section
stipulates that except with the prior concurrence of the Academic
Council, Executive Council shall not make any regulation affecting mode
of enrolment or admission of students. He submits that respondent No.1
before issuing the
notice dated 03.09.2020 has not conducted any meeting
of Academic Council nor there is any resolution or concurrence of
Academic Council with regard to the mode of admission as notified on
03.09.2020. Shri Gupta refers to provisions of Act, 1986 especially
Schedule to the Act in which powers and functions of the Executive
Council as well as powers and duties of Academic Council have been
enumerated. He submits that powers and duties of the Academic Council
as enumerated in Act, 1986 specifically contains power to appoint
Committees for admission to the School whereas in the duties and the
functions of the Academic Council, there is no power which indicates
that it is the Executive Council which shall take decision regarding mode
and manner of the admission of the students. He submits that the
notification dated 03.09.2020 not being backed by any recommendation
of the Academic Council could not have been issued by the respondent
No.1. Admission notice being not in accordance with statutory provisions
of Act, 1986 is liable to be set aside on this ground alone. Referring to
the Minutes of meetings of the Executive Council dated 29.08.1987 to
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30.08.1987 as relied by respondent No.1 in its counter-affidavit, Shri
Gupta submits that it was Academic Council which met on 12.12.1987
and finalized procedure for admission as has been brought on record in
the counter-affidavit of respondent No.1 himself. Thus, with regard to
procedure for admission of the students, it is Academic Council which
has to take a decision. Shri Gupta further submits that NLSIU being a
member of Consortium it was obliged to admit the students in NLSIU on
the basis of the CLAT examination 2020. The decision to conduct a
combined test for all Universities including respondent No.1 was  a
decision which was arrived on the direction issued by this Court in Varun
Bhagat vs. UOI and after due deliberations made by University Grants
Commission, Ministry of Human Resource Development and Bar Council
of India. Referring to Bye-Laws of the Consortium, Shri Gupta submits
that respondent No.1 was obliged to follow the Bye-Laws it having agreed
to abide by the rules of the Consortium. Respondent No.1 being still
continuing as member of Consortium had no authority or jurisdiction to
proceed to conduct a separate test NLAT for admission for the year
2020-21. Shri Gupta submits that the reason given by respondent No.1
to proceed to take separate test for admission for the year 2020-21 that
it was done to avoid zero year, is also not correct. It is submitted that
there were ways and means to complete
the teaching in all three
Trimesters which is being observed by respondent No.1. Shri Gupta
submits that the CLAT examination 2020 being scheduled for September
28, 2020 is in September 2020 itself, there was no occasion for respondent
No.1 to rush for a separate admission. Shri Gupta further submits that in
CLAT 2020, there have been more than 78,000 registrations where in
NLAT there have been only about 26,000. He submits that it is
inconceivable that such a large number of students who aspire from
respondent No.1 would not appear. Shri Gupta further submits that the
test conducted by respondent No.1 on 12.09.2020, i.e., home proctored
test cannot ensure transparency, fairness and integrity. Shri Gupta
referred to the counter-affidavit filed by respondent No.2 dated 25.08.2020
in Writ Petition No.4848 of 2020 filed before Delhi High Court where
writ petitioner prayed that CLAT may be conducted as home based
examination. Counter-affidavit was filed on behalf of Consortium through
its Secretary, the respondent No.2 stating that a home based online test
for around 78,000 students could not be possible the test will be completely
compromised. He submits that even after taking that stand in affidavit,
respondent No.2 proceeded to hold the NLAT 2020 as a home proctored
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examination. He submits that examination held on 12.09.2020, which
was of 45 minutes with 40 marks was the examination conducted with
lack of transparency and fairness. Large scale irregularities, malpractices
were noticed in examination on 12.09.2020. Respondent No.2 has held
a retest on 14.09.2020. Respondent No.1 itself has admitted that there
have been malpractices and complaints were lodged for criminal
investigation. Shri Gupta further submits that respondent No.2 never
brought into the notice of Consortium that it is proposing to hold separate
test, the decisions in the meetings of Executive Council dated 12.08.2020
and 18.08.2020 were never shared by respondent No.2 with the
Consortium. Suddenly, respondent No.1 issued notice dated 03.09.2020
which has taken the Consortium by surprise. Shri Gupta further submits
that separate test conducted by respondent No.1 is not in the students’
interest, 78,000 students have registered for CLAT 2020 and more than
2/3rd students give preference for respondent 1. The short notice of
examination to conduct home based examination deprived a large number
of marginal section of the society especially those who could not afford
to have means to join in the examination from their home due to lack of
technical support. The technical requirement, which was prescribed by
admission notice, was not easy to fulfill by a poor student, which deprived
large number of marginal students to participate. Shri Gupta submits
that
CLAT examination is scheduled on 28.09.2020 and respondent No.1
on the basis of CLAT examination can very well complete its admission
and start its course by mid of October and there was no such
insurmountable difficulty as claimed by respondent No.1 for hurriedly
conducting the separate test. Shri Gupta submits that admission notice
may be set aside and the admission in the Respondent No.1 may also be
taken on the basis of CLAT examination 2020, which is scheduled to be
held on 28.09.2020.
18. Shri Gopal Sankaranarayan, learned senior counsel, appearing
for petitioner No.1 submits that unilateral withdrawal from CLAT 2020
by respondent No.1 was not possible. The students have been preparing
for CLAT 2020 in a particular method, suddenly they are told by respondent
No.1 that now they have to appear in NLAT which is in different format.
In the meeting dated 28.08.2020 of Executive Council of CLAT, there
was no indication by respondent No.2 that in case the CLAT is postponed
he will hold a separate entrance test for admission in respondent No.1.
The notification dated 03.09.2020 suddenly comes surprising all. On
12.09.2020 respondent No.1 has conducted three exams and a retest on
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14.09.2020. The excuse of zero year is a bogey. The zero year cannot
be declared by respondent No.1.
19. Shri Arvind Datar, learned senior counsel for respondent No.1,
refuting the submission of learned counsel for the petitioner contends
that writ petitioners have no locus to file this writ petition, no details
have been given with regard to ward of petitioner No.1 who claims to be
aspirant to CLAT 2020. Petitioner No.2 who is a former Vice-Chancellor
of the respondent No.1 and at present Chairperson of Private Law
College has no locus to challenge the admission notification dated
03.09.2020. He submits that at best it could have been Consortium which
can be said to be aggrieved which has not come to the Court. It is due to
inordinate delay in conducting CLAT 2020 that the respondent No.1 had
no option except to proceed to hold a separate test to save academic
year 2020 from being declared as a zero year. It is submitted that NLSIU
maintains trimester system divided into three academic terms each with
a minimum of 70 working days.  It is submitted that unless first trimester
starts from 18.09.2020, respondent No.1 could not complete its all the
three trimesters. It is submitted that respondent No.1 has made bonafide
efforts to convince Consortium to conduct the CLAT 2020 in a timely
manner. It is submitted that Faculty of NLSIU at their meeting on
06.08.2020 resolved that NLSIU need to take all necessary steps to
avoid zero year. The Executive Council in its meetings on 12.08.2020
and 18.08.2020 resolved unanimously that if there is a further delay in
CLAT, the Vice-Chancellor is empowered to take all necessary steps to
ensure that the Admissions Process for 2020-21 is completed in
September, 2020. NLSIU, being left with no other alternative, had to act
with alacrity to complete the admissions process and commence classes
by 18.09.2020 and avoid a ‘zero year’.
20. Shri Datar submits that under Section 10, the Executive Council
is the chief executive body of the School, which has right of
administration, management and control of the School. He submits that
right of administration and management encompasses right to admit
students, hence, the Executive Council has right to take decision regarding
admission of the students. He has referred to first Executive Council
meeting dated 29.08.1987/30.08.1987 wherein the mode of admission
was decided by the Executive Council as by a common entrance test.
The determination of the method of admission to NLSIU vests under
the statute with Executive Council. Referring to second proviso to Section
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13 of Act, 1986 Shri Datar submits that no regulation has yet been framed
regarding admission, second proviso has no application. At present there
are no regulations in place regarding admission in NLSIU hence it was
not necessary to obtain prior concurrence of Academic Council for
admission in NLSIU. Further Vice Chancellor has emergency powers
under Clause 18(5) of Schedule to the Act, 1986, with regard to compliance
with the Bye-Laws of Consortium.  Shri Datar submits that Bye-Laws
cannot detract or inhibit plenary statutory power conferred on the
Executive Council by Act, 1986. The process for admission initiated by
notice 03.09.2020 has been held in a transparent manner. Application
fee for the test is limited for just Rs.150/-(for General Category
candidates) and Rs.125/-(for SC/ST candidates) so that it was easily
accessible to all students. The examination is online home proctored
examination hence students do not go out for additional test centres.
With a view to check malpractice, NLAT has taken extensive precautions
in the form of human and AI proctoring, as also pre-exam, during-exam
and post-exam checks, to prevent malpractice. Extensive technological
and other measures are implemented to ensure that any candidate
attempting any form of malpractice is caught and disqualified from the
process, either during the examination itself or during the post-examination
audit and scrutiny. While the examination is ongoing human proctors and
super-proctors also received live data on the candidates and are
empowered to warn candidates and even disqualify them, if they notice
any form of malpractice. NLSIU has appointed a leading audit firm to
carry out an independent forensic audit and assessment of the various
data relating to the examination and submit a report. It is submitted that
students during the examination were given different batch of question
papers to rule out any kind of malpractice. The various reports made in
electronic media are not credible and cannot be a ground for proving
allegation that in examination held on 12.09.2020 and 14.09.2020 any
malpractices were adopted. Insofar as the allegation  that the paper was
leaked on 14.09.2020, it is submitted that allegation is of downloading of
the papers in the last 15 minutes of the examination, which has not in
any way affected integrity of examination. Shri Datar submits that the
allegation made by the petitioner cannot be gone into and determined
regarding conduct of the examination dated 12.09.2020, in proceedings
under Article 32 of the Constitution. There is no violation of Article 14 of
the Constitution of India, all students were invited to register themselves
in NLAT only on the fee of Rs.150/-. About 26,000 students appeared in
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the examination. Shri Datar has very fairly submitted that respondent
No.1 is still member of the Consortium and separate examination
conducted is only for the year 2020-21 and from the next year NLSIU
shall conduct admission on the basis of CLAT examination to be held by
the Consortium. He further submits that decision for postponement of
the CLAT examination on 28.08.2020 was not unanimous and protest
was raised by respondent No.2 and he did not sign the proceedings. He
further submits that difficulty of respondent No.1 of it having trimesters
was pointed by the respondent No.2 in the meeting of the Executive
Council of the Consortium. The conduct of the respondent No.2 was
bonafide and all actions were taken by respondent No.1 in the interest
of the respondent No.1.
21. Shri Datar submits that due to postponement of examination
by Consortium of CLAT 2020 beyond 07.09.2020 the purpose of
successfully conducting trimesters by respondent No.1 was frustrated.
22. Shri Sajan Poovayya, learned senior counsel appearing for
respondent No.2 submits that respondent No.2 was bound by the
resolution taken by Executive Council on 12.08.2020 and 18.08.2020. In
the Faculty meeting dated 06.08.2020 decision was taken to choose the
best option. He submits that it was a General Body of the Consortium
which could have taken decision to adjourn the CLAT examination. The
decision dated 28.08.2020 to postpone the examination from
07.09.2020
to 28.09.2020 was taken by Executive Committee of the Consortium
which had no authority. There is no power delegated to Executive
Committee to take a decision. Till 05.08.2020 the respondent No.2 has
not done anything for separate examination. On 31.08.2020 the entire
Faculty again met and decided for home-based computer test.
23. Shri P.S. Narasimha, learned senior counsel, appearing for
respondent No.3, Consortium has referred to developments leading to
formation of Consortium, he has also referred to the orders of this Court
in writ petition in Varun Bhagat vs. Union of India and Shamnad
Basheer vs. Union of India (supra). He submits that due to judicial
interventions and considerable time and effort from all the stakeholders,
the different Universities have come together to form the Consortium,
whose primary objective is to conduct the Common Law Admission
Test for the benefit of admissions of all its members. The Consortium
and all the members of the Society ought not to be relegated to the
status of a private society or club. He submits that although Universities
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joining the Consortium have done so voluntarily but the fact remains that
statutorily set up Universities bear statutory duties, who have come
together to form Consortium to achieve a statutory purpose. With the
formation of the Consortium, statutory obligations of the respective
Universities to regulate their admission procedure stands jointly
crystallized and vested in the Consortium. In effect, the Consortium today
undertakes a statutory function in furtherance of a laudable public
purpose. The Bye-Laws of the Consortium is to be harmoniously read
with the statutory prescriptions of the respective Universities under the
State legislations. The institutional integrity of the Consortium which has
been achieved after long process must be preserved and facilitated the
purpose for which it is established. He submits that it must rigorously
demonstrate transparency and uphold the trust reposed on it by its
beneficiaries. He submits that the Consortium was kept in dark about
the decision of the respondent Nos.1 and 2 to hold a separate entrance
examination until the issuance of notification dated 03.09.2020. In the
Consortium meeting dated 10.08.2020 respondent No.2 did not inform
about the Faculty meeting dated 06.08.2020. Further, respondent No.2
failed to disclose the decisions arrived at the Executive Council meetings
dated 12.08.2020 and 18.02.2020 to the Consortium in its meeting dated
28.08.2020.
24. The Consortium while conducting the CLAT essentially
undertakes a statutory public duty and must not betray the trust reposed
in it by the aspirants. The abrupt decision of respondent No.1 to hold its
own examination, without taking Consortium into confidence, undermines
the credibility of the Consortium.
25. Shri Nayyar appearing for the SLP petitioners as well as in
I.A.No.91083 of 2020 submits that applicants are the students who have
registered themselves for CLAT 2020 and they have challenged the
notice dated 03.09.2020 in the Jharkhand High Court which writ petition
has been dismissed resulting in filing of SLP(C)No.11059 of 2020. The
applicants have also filed I.A.No.91083 of 2020 in the Writ Petition
No.1030 of 2020 and have supported the cause of the writ petition. Shri
Nayyar further submits that the above applicants have also appeared in
the examination held on 12.09.2020. He submits that all India tests are
being conducted which has its own benefits. Shri Nayyar submits that
when the decision was taken by the Consortium on 18.05.2020 to
postpone the examination fixed for 21.06.2020 it was mentioned that 21
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days notice will be given to the students for fixing a date. Shri Nayyar
has also submitted that the test which was conducted on 12.09.2020
was neither transparent nor fair. Mock test was held only one day before.
Shri Nayyar  submits that there is negative marking of .25 in not  answering
a question which was not a condition in the CLAT. He submits that one
of the reasons for respondent to proceed to hold separate test is alleged
loss of 17 crores which cannot be a relevant reason.
26. Shri Gopal Sankaranarayan, learned counsel appearing for
the petitioner also contended that the Academic Council consists of Judges
of the Supreme Court, which meetings were neither called nor convened
by the respondent No.1. He reiterates that it is the Academic Council
which was body competent to take decision regarding admission and
procedure of admission. He has referred to Clauses 13 and 14 of the
Schedule to Act, 1986.
27. Learned counsel for the parties have also referred to several
judgments of this Court which shall be referred to while considering the
submissions of the parties.
28. We have considered the submissions of the parties and have
perused the records.
29. From submissions of the learned counsel for the parties and
pleadings, following questions arise for consideration:-
(1) Whether the petitioners have locus to file the writ petition?
(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?
(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?
(4) Whether online home proctored examination as proposed by
notification dated 03.09.2020, lacks transparency, was against
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the very concept of fair examination and violative of the rights
of the students under Article 14 of the Constitution?
(5) Whether NLAT held on 12.09.2020 with retest on 14.09.2020
was marred by malpractices and deserves to be set aside?
QUESTION NO.1
WHETHER THE PETITIONERS HAVE LOCUS TO FILE
THE WRIT PETITION?
30. Shri Arvind P. Datar, learned senior counsel appearing for the
respondent No.1 has questioned the maintainability of the writ petition at
the instance of petitioner Nos. 1 and 2. He submits that petitioner No.1
claimed to be father of an aspiring law student, however, no materials of
which have been placed on record to depict the said fact.  The petitioner
No.2 is the Chairperson of a private Law College, which college is not
the member of Consortium, hence, respondent No.2 is not aggrieved in
any manner.
31. The objection raised by learned senior counsel for the
respondent has been refuted by the learned counsel for the petitioners.
It is submitted that the writ petition, which has been filed in a public
interest is fully maintainable at the instance of the petitioners. It is
submitted that petitioner No.1 being parent of an aspiring law student
can very well maintain the writ petition to secure the future of his ward.
The petitioner No.2 has been the Ex-Vice Chancellor of respondent
No.1 and was founder member of the Consortium, which was registered
as society under Karnataka Societies Registration Act, 1960.  It is
submitted that petitioner
No.2, who has been at the helm of affairs and
has been associated with legal education has every right to espouse the
cause of education and students.
32. It is true that although petitioner No.1 claimed to be parent of
an aspiring law student but no details have been given in the writ petition
or in the common rejoinder affidavit as to whether the ward of petitioner
No.1 is applicant to CLAT, 2020. 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.  In paragraph 5 of the writ petition, following has
been pleaded:-
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“5.  It is quite important to note that the petitioner No.2
herein is a notable legal scholar whose involvement in the
development of legal education in India and more
particularly the respondent No.1 University is paramount.
The petitioner No.2 has previously served as the Vice
Chancellor of the respondent No.1 University and has also
closely contributed to the development of CLAT.  The
petitioner No.2 with his vast experience in the academic
sector, pertinently in the legal academia and even more
pertinently with the respondent No.1 University, is
aggrieved by the arbitrary conduct of the respondent No.1
University……..”
33. 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 as noted above,
we are of the view that 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. We, thus, reject the objection of the
respondent that petitioners have no locus to file the writ petition. It is
also relevant to notice that 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.
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34. The above 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, who have been
represented by Shri Nikhil Nayyar, learned senior counsel.
35. We, thus, are of the view that issues raised have to be decided
on merits rejecting the objection of respondent No.1 regarding locus.
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?
36. As noted above, submission of Shri Nidesh Gupta, learned
senior counsel for the petitioners is that it is the Academic Council of
respondent No.1, which is the statutory authority under Act, 1986 to
take decision regarding admission of the students in integrated B.A.LL.B.
(Hons.) Programme. Shri Arvind Datar, learned senior counsel appearing
for the respondent No.1 has relied on Minutes of the Executive Council
dated 12.08.2020 and 18.08.2020 and contends that the Executive Council
of the respondent No.1 is fully authorised and entitled to take a decision
regarding admission of the students and the
actions taken by the Vice-
Chancellor in pursuance of the aforesaid decision of the Executive Council
are fully valid and are in accordance with the provisions of the Act,
1986.
37. Before we enter into the respective submissions of the learned
counsel for the parties regarding above question, we may notice the
provisions of the statute in the above regard.
38.  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,
which is to the following effect:-
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“10. The Executive Council.-
(1) The Executive Council shall be the chief executive body
of the School.
(2) The administration, management and control of the
School and the income thereof shall be vested with the Executive
Council which shall control and administer the property and funds
of the School.”
39. Section 11 of the Act deals with Academic Council in following
manner:-
“11. The Academic Council.- The Academic Council shall be
the academic body of the School, and shall, subject to the provisions
of this Act and the regulations, have power of control and general
regulation of, and be responsible for, the maintenance of standards
of instruction, education and examination of the School, and shall
exercise such other powers and perform such other duties as
may be conferred or imposed upon it by this Act or the regulations.
It shall have the right to advise the Executive Council on all
academic matters.”
40. 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 13 of the Act, which is
relevant for the present case is as follows:-
“13. Regulations.-
(1) Subject to the provisions of this Act, the Executive
Council shall have, in addition to all the other powers vested in it,
the power to frame regulations to provide for the administration
and management of the affairs of the School:
Provided that the
Executive Council shall not make any
regulation affecting the status, powers or constitution of any
authority of the School until such authority has been given an
opportunity of expressing an opinion in writing on the proposed
changes, and any opinion so expressed shall be considered by the
Executive Council;
Provided further that except with the prior concurrence of
the Academic Council, the Executive Council shall not make, amend
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or repeal any regulation affecting any or all of the following matters,
namely:-
(a)
the constitution, powers and duties of the Academic
Council;
(b)
the authorities responsible for organising teaching in
connection with the School courses and related
academic programmes;
(c)
the withdrawal of degrees, diplomas, certificates and
other academic distinctions;
(d)
the establishment and abolition of faculties,
departments, halls and institutions;
(e)
the institution of fellowships, scholarships, studentships,
exhibitions, medals and prizes;
(f)
conditions and modes of appointment of examiners
or conduct or standard of examinations or any other
course of study;
(g)
mode of enrolment or admission of students;
(h)
examinations to be recognised as equivalent to school
examinations.
(2) The Academic Council shall have the power to propose
regulations on all the matters specified in (a) to (h) above and
matters incidental and related thereto in this regard.
(3) Where the Executive Council has rejected 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 that
pending such approval of the General Council it shall have effect
from such date as may be specified in that order:
Provided that if the regulation is not approved by the General
Council at such meeting, it
shall cease to have effect.
(4) All regulations made by the Executive Council shall be
submitted, as soon as may be, for approval, to the Chancellor and
to the General Council at its next meeting, and the General Council
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shall have power by a resolution passed by a majority of not less
than two thirds of the members present, to cancel any regulation
made by the Executive Council and such regulations shall from
the date of such resolution cease to have effect.”
41. 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. Section 18 is to the following effect:-
“18. Authorities and officers of the School etc.-
The authorities of the School and their composition, powers,
functions and other matters relating to them, the officers of the
School and their appointment, powers, functions and other matters
relating to them and all other matters relating to the finances,
powers, teaching, administration and management of  the affairs
of the School shall, subject to the provisions of this Act be as
specified in the Schedule or as may be provided by the regulations.”
42. 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, which provides for powers
and functions of the Executive Council is to the following effect:-
“9. Powers and functions of the Executive Council.-
Without prejudice to clause 5, the Executive Council shall
have the following powers and functions, namely:-
(1) to appoint, from time to time, the Vice Chancellor, the
Registrar, the Librarian, Professors, Associate Professors,
Assistant Professors and other members of the teaching staff, as
may be necessary, on the recommendations of the selection
committee constituted by regulations for the purpose:
Provided that no action shall be taken by the Executive
Council, except in cases covered by the second proviso, in regard
to the number, qualifications and emoluments of teachers,
otherwise than after consideration of the recommendations of the
Academic Council:
Provided further that it shall not be necessary to constitute
any selection committee for making appointments,-
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(a) to any supernumerary post; or
(b) to the post of professor of a person of high academic
distinction, eminence and professional attainment invited by the
Executive Council to accept the post;
(2) to create administrative, ministerial and other necessary
posts, to determine the number and emoluments of such posts, to
specify minimum qualification for appointment to such posts and
to appoint persons to such posts on such terms and conditions of
service as may be prescribed by the regulations made in this behalf,
or to delegate the powers of appointments to such authority or
authorities or officer or officers as the Executive Council may,
from time to time, by resolution, either generally or specifically,
direct;
(3) to grant in accordance with the regulations leave of
absence other than casual leave to any officer of the School and
to make necessary arrangements for the discharge of the functions
of such officer during his absence;
(4) to manage and regulate the finances, accounts,
investments, property, business and all other administrative affairs
of the School and for that purpose to appoint such agents, as it
may think fit;
(5) to invest any money belonging to the School, including
any unapplied income, in such stock, funds, shares or securities,
as it may from time to time, think fit or in the purchase of immovable
property in India, with the like power of varying such investments
from time to time;
(6) to transfer or accept transfers of any movable
or
immovable property on behalf of the School;
(7) to enter into, vary, carry out and cancel contracts on
behalf of the School and for that purpose to appoint such officers
as it may think fit;
(8) to provide the buildings, premises, furniture and apparatus
and other means needed for carrying on the work of the School;
(9) to entertain, adjudicate upon, and if it thinks fit, to redress
any grievances of the officers of the School, the teachers, the
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students and the School employees, who may, for any reason,
feel aggrieved, otherwise than by an act of a court;
(10) to appoint examiners and moderators, and if necessary
to remove them and to fix their fees, emoluments and travelling
and other allowances, after consulting the Academic Council;
(11) to select a common seal for the School and to provide
for the custody of the seal; and
(12) to exercise such other powers and to perform such
other duties as may be conferred or imposed on it by or under this
Act.”
43. Clause 13 deals with membership of the Academic Council
and Clause 14 provides for powers and duties of the Academic Council.
Clause 14 is as follows:-
“14. Powers and duties of the Academic Council.-
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 following powers, namely:-
(1) to report on any matter referred or delegated to it by
the General Council or the Executive Council;
(2) to make recommendations to the Executive Council with
regard to the creation, abolition or classification of teaching posts
in the School and the emoluments and the duties attached thereto;
(3) to formulate and modify or revise schemes for the
organisation of the faculties, and to assign to such faculties their
respective subjects and also to report to the Executive Council as
to the expediency of the abolition or sub-division of any
faculty or
the combination of one faculty with another;
(4) to make arrangements through regulations for the
instruction and examination of persons other than those enrolled
in the School;
(5) to promote research within the School and to require,
from time to time, reports on such research;
(6) to consider proposals submitted by the faculties;
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(7) to appoint committees for admission to the School;
(8) to recognise diplomas and degrees of other universities
and institutions and to determine their equivalence in relation to
the diplomas and degrees of the School;
(9) to fix, subject to any conditions accepted by the General
Council, the time, mode and conditions of competition for
fellowships, scholarships and other prizes, and to award the same;
(10) to make recommendations to the Executive Council in
regard to the appointment of examiners and if necessary their
removal and the fixation of their fees, emoluments and travelling
and other expenses;
(11) to make arrangements for the conduct of examinations
and to fix dates for holding them;
(12) to declare the result of the various examinations, or to
appoint committees or officers to do so, and to make
recommendations regarding the conferment or grant of degrees,
honours, diplomas, licences, titles and marks of honour;
(13) to awards stipends, scholarships, medals and prizes
and to make other awards in accordance with the regulations and
such other conditions as may be attached to the awards;
(14) to publish lists of prescribed or recommended text-
books and to publish syllabus of the prescribed courses of study;
(15) to prepare such forms and registers as are, from time
to time, prescribed by regulations; and
(16) to perform, in relation to academic matters, all such
duties and to do all such acts as may be necessary for the proper
carrying out
of the provisions of this Act and the regulations.”
44. We having noticed the statutory provisions under the Act, 1986,
now, proceed to consider the respective submissions of the learned counsel
for the parties.  As noted above, the question, which is up for consideration
is as to whether with regard to admission of students, recommendation
of the Academic Council is statutory requirement or not.
45. Shri Datar submits that as per Section 10, the Executive Council
is the Chief Executive Body of the school and the administration,
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management and control of the school is vested with the Executive
Council, hence, with regard to admission of students, power is vested
with the Executive Council. He submits that admission of students is
one of the facets of administration. He has relied on judgment of this
Court in T.M.A. Pai Foundation and Ors. Vs. State of Karnataka
and Ors., (2002) 8 SCC 481 where in paragraph 50 of the judgment,
this court held that right to establish and administer broadly comprised
right to admit students. Paragraph 50 is as follows:-
“50. The right to establish and administer broadly comprises of
the following rights:-
(a) to admit students:
(b) to set up a reasonable fee structure:
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of
any employees.
46. 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.
47. To buttress his submission, Shri Gupta has
placed reliance on
second proviso of Section 13 of the Act as noted above.  Section 13(1)
empowers the Executive Council to frame Regulations to provide for
the administration and management of the affairs of the school.  However,
the power of Executive Council to frame regulations is conditioned by
second proviso, which is to the following effect:-
“Provided further that except with the prior concurrence of the
Academic Council, the Executive Council shall not make, amend
or repeal any regulation affecting any or all of the following matters,
namely:-
XXXXXXXXXXXXXXXx
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(g) mode of enrolment or admission of students;
XXXXXXXXXXXXXXX”
48. Shri Datar submits that there can be no quarrel with the
statutory requirement as contained in second proviso to Section 13, he,
however, submits that the second proviso of Section 13 is not applicable
in the present case, since no regulations have been framed regarding
enrolment or admission of students. When no regulations have been
framed and Executive Council has not proposed any regulation or
amendment therein, the embargo under second proviso is not attracted.
Shri Datar further submits that the power under Section 13 to frame
regulations is a separate and independent power.  When the power is
given to the Executive Council under Section 10, he submits that even if
no regulations were framed by Executive Council under Section 13, it
can very well exercise its general power conferred by Section 10 of the
Act. Shri Datar has placed reliance on judgment of this Court in PTC
India Limited Vs. Central Electricity Regulatory Commission,
(2010) 4 SCC 603. The Constitution Bench of this Court in the above
case had occasion to consider various provisions of Electricity Act, 2003.
Section 79 of the Act enumerated the functions of Central Commission
whereas Section 178 empowers the Central Commission to make
regulations. This Court held that the functions of Central Commission
enumerated in Section 79 are separate and distinct from functions of
Central Commission under Section 178, following
was laid down in
paragraphs 53 and 55:-
“53. Applying the abovementioned tests to the scheme of the 2003
Act, we find that under the Act, the Central Commission is a
decision-making as well as regulation-making authority,
simultaneously. Section 79 delineates the functions of the Central
Commission broadly into two categories - mandatory functions
and advisory functions. Tariff regulation, licensing (including inter-
State trading licensing), adjudication upon disputes involving
generating companies or transmission licensees fall under the head
“mandatory functions” whereas advising the Central Government
on formulation of National Electricity Policy and tariff policy would
fall under the head “advisory functions”. In this sense, the Central
Commission is the decision-making authority. Such decision-making
under Section 79(1) is not dependent upon making of regulations
under Section 178 by the Central Commission. Therefore, functions
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of the Central Commission enumerated in Section 79 are separate
and distinct from functions of the Central Commission under
Section 178. The former are administrative/adjudicatory function
whereas the latter are legislative.
55.  To regulate is an exercise which is different from making of
the regulations. However, making of a regulation under Section
178 is not a precondition to the Central Commission taking any
steps/measures under Section 79(1). As stated, if there is a
regulation, then the measure under Section 79(1) has to be in
conformity 
with 
such 
regulation 
under 
Section
178.………………………”
49. We may notice another judgment of this Court in V.T.
Khanzode and Ors. Vs. Reserve Bank of India and Anr., (1982) 2
SCC 7.  Section 58(1) of the Reserve Bank of India Act, 1934 provided
that the Central Board may, with the previous sanction of the Central
Government, make regulations consistent with this Act to provide for all
matter for which provision is necessary or convenient for the purpose of
giving effect to the provisions of this Act.  No regulations were framed
under Section 58(1).  Argument was raised that conditions of service
cannot be framed by administrative circulars but must be framed by the
regulations made under Section 58 of the Act.  Repelling the said
argument, this Court laid down following in paragraph 18:-
“18. In support of this submission, reliance is placed by the learned
Counsel on the
statement of law contained in paragraphs 1326
and 1333 (pages 775 and 779) of Halsbury’s Laws of England, 4th
Edn. In paragraph 1326 it is stated that:
Corporations may be either statutory or non-statutory and
a fundamental distinction exists between the powers and liabilities
of the two classes. Statutory corporations have such rights and
can do such acts only as are authorised directly or indirectly by
the statutes creating them; non-statutory corporations, speaking
generally, can do everything that an ordinary individual can do
unless restricted directly or indirectly by statute.
Paragraph 1333 says that :
The powers of a corporation created by statute are limited
and circumscribed by the statutes which regulate it, and extend
no further than is expressly stated therein, or is necessarily and
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properly required for carrying into effect the purposes of its
incorporation, or may be fairly regarded as incidental to, or
consequential upon, these things which the legislature has
authorised. What the statute does not expressly or impliedly
authorise is to be taken to be prohibited.
There is no doubt that a statutory corporation can do only such
acts as are authorised by the statute creating it and that, the powers
of such a corporation cannot extend beyond what the statute
provides expressly or by necessary implication. If an act is neither
expressly or impliedly authorised by the statute which creates the
corporation, it must be taken to be prohibited. This cannot,
however, produce the result for which Shri Nariman contends.
His contention is not that the Central Board has no power to frame
staff regulations but that it must do so under Section 58(1) only.
On that argument, it is material to note that Section 58(1) is in the
nature of an enabling provision under which the Central Board
“may” make regulations in order to provide for all matters for
which it is necessary or convenient to make provision for the
purpose of giving effect to the provisions of the Act. This provision
does not justify the argument that staff regulations must be framed
under it or not at all. The substance of the matter is that the Central
Board has the power to frame regulations relating to the conditions
of service of the Bank’s staff. If it has that power, it may exercise
it either in accordance with Section 58(1) or by acting appropriately
in the exercise of its general power of administration and
superintendence.”
50. We find substance in the submission of Shri Datar that 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
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take decisions regarding mode of enrolment or admission of students,
which we shall notice hereinafter. 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.
51. Now, we proceed to examine the other provisions of Statute
to find out as to whether apart from provisions of Section 13 whether
there are any other statutory provisions empowering the Academic
Council to take decisions regarding admission of students. As noted above,
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 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 following
powers namely:-
“XXXXXXXXXXXXXXXXXX
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(7) to appoint committees for admission to the School;
XXXXXXXXXXXXXXXXXX
(11) to make arrangements for the conduct of examinations
and to fix dates for holding them;
XXXXXXXXXXXXXXXXXX
(16) to perform, in relation to academic matters, all such
duties and to do all such acts as may be necessary for the proper
carrying out of the provisions of this Act and the regulations.”
52. The above 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.
53. Now, we contrast with the power given to the Academic
Council with regard to admission to the school with that of the powers
and functions of the Executive Council as given in Clause 9. 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) sub-clauses (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.
54. We are left with only Clause i.e. sub-Clause (10) which is to
the following effect:-
“to appoint examiners and moderators, and if necessary to
remove them and fix their fees, emoluments and travelling and
other allowances after consulting the Academic Council.”
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55. Shri Arvind Datar 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, 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 as delineated
above, 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 sub-clause
(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. The Constitution
Bench of this Court in Dr. Preeti Srivastava and Anr. Vs. State of
M.P. and Ors., (1999) 7 SCC 120 held that norms of admissions can
have direct impact on the standards of education.  In paragraph 36,
following was laid down:-
“36. It would not be correct to say that the norms for admission
have no connection with the standard of education, or that the
rules for admission are covered only by Entry 25 of List III. Norms
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of admission can have a direct impact on the standards of
education…………………”
56. 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.
57. At this stage, we may also refer to the meeting of the Executive
Council dated 29.08.1987 and 30.08.1987 relied by Shri Arvind Datar,
learned senior counsel for the respondent No.1. 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. It is
relevant to extract the item no. 16 of the proceedings which is to the
following effect:-
“Item No.16
Selection of Students
The draft proposal of the Academic Council to have the
selection of the students done through an all India admission test
and interview was approved. The procedure for admission test
and the selection may be decided by the Academic Council and
implemented by the Director. However, the Executive Council
disapproved the recommendation of the Academic Council to pay
one way second class train fare to the students called for the
interview.
The Council noted the sample objective type question paper
prescribed by
the two experts on the request of Professor Upendra
Baxi. However the matter of finalising the test was left to the
Academic Council and the Director. The Council noted the format
of admission test provided by M/s/ R.C. Mishra and C.B. Dwivedi
of Banaras Hindu University as the instance of Professor Upendra
Baxi. The Council also noted the recommendations of Dr. Baxi to
pay an honorarium of Rs.1,000.00 and to the two professors for
the work in this regard. The Council approved the payment
accordingly of Rs.2,000.00 (Rs.1,000.00 to each) and authorised
the Director to write thanking the professors for their contribution.
For expenses involved in organising the test and interview,
the Council approved a budget allotment of an amount not
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exceeding Rs.25,000.00. The Council further decided that the
admission to the Ist Year LL.B. class be limited to 80 students
and for LL.M. Class the admisison be limited to 10 students. The
application fee for admission test and interview may be fixed at
Rs.125.00 for LL.B. though it may be reduced to Rs.50/- in the
case of SC/ST candidates.”
58. The above 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.
59. The authorities of the University exercise powers and functions
as entrusted to them in the Statute. This Court in Marathwada
University Vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132
while considering the provisions of Marathwada University Act, 1974,
the power of Vice-Chancellor and those of the Executive Council held
that when a Statute prescribes a particular body to exercise a power, it
must be exercised only by that body. In paragraph 20, following was laid
down by this Court:-
“20. Counsel for the appellant argued that the express power of
the Vice-Chancellor to regulate the work and conduct of officers
of the University implies as well, the power to take disciplinary
action against officers. We are unable to agree with this contention.
Firstly, the power to regulate the work and conduct of officers
cannot include the power to take disciplinary action for their
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removal. Secondly, the Act confers power to appoint officers on
the Executive Council and it generally includes the power to
remove. This power is located under Section 24(1) (xxix) of the
Act. It is, therefore, futile to contend that the Vice Chancellor can
exercise that power which is conferred on the Executive Council.
It is a settled principle that when the Act prescribes a particular
body to exercise a power it must be exercised only by that body.
It cannot be exercised by others unless it is
delegated……………………”
60. We, however, make it 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. The proceedings of the Executive Council meeting, which
has been relied by respondent No.1 dated 12.08.2020, the decision of
the Executive Council was to the following effect:-
“It was resolved unanimously that if there is a further delay in
CLAT, the Vice-Chancellor is empowered to take all necessary
steps to ensure that the admission Process for 2020-21 is
completed in September, 2020.  NLSIU is authorized to run its
own admission process and conduct an independent admission
test if necessary if there is further postponement of the CLAT
exam.”
61. 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
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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 Vice-Chancellor 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.
62. We, thus, are of the considered opinion that respondent No. 1
was required by the Statute to obtain recommendation of Academic
Council before proceeding to hold NLAT by issuing admission notification
dated 03.09.2020. We, thus, in view of the forgoing discussions, hold
that admission notification dated 03.09.2020 issued by respondent No.1
could not have been issued without obtaining the recommendation to this
effect by the Academic Council. Admission notification dated 03.09.2020
having been issued without recommendation of Academic Council is not
in accordance with the provisions of Act,
1986 and is unsustainable.
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?
63. We have noted above the sequence of events leading into the
creation of a Consortium of National Law Universities. 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
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various meetings took decisions to streamline conduct of Common Law
Admission Test (CLAT) and for coordination and cooperation among
NLUs. One of the aims and objectives of the Society as incorporated in
Memorandum is to the following effect: -
“V. To administer, control and monitor the conducting of all
India common entrance examination for law i.e. CLAT, for and
on behalf of all the participating NLUs, and facilitate admission of
students into various NLUs in the country.”
64. 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.
65. 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.
66. The President and Vice-President under the bye-laws are to
be elected at the annual meeting of the governing body. 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”. Bye-Laws 15.3.1 and
15.3.3 which are relevant are as follows: -
“15.3.1. The obligation of membership is to ensure that the
Member institution reflects the core values and standards set by
the Consortium according appropriate respect for the autonomy
of its Member institution.
…………
……………
……………… ……………
15.3.3. 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,
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prior to admitting any student. Provided that nothing in this provision
shall be deemed to prevent a Member institution from making
special provisions for the employment or admission of women,
persons with disabilities or for persons belonging to any socially
and educationally backward classes of citizens and, in particular,
for the Scheduled Castes and the Scheduled Tribes.”
67. A perusal of Memorandum of Association and Bye-Laws
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. We have noticed above that 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.
68. National Law School of India University, Bangaluru from the
beginning shouldered the leading role in conduct of CLAT. Different
National Law Universities have been established by different statues
and have statutory functions and obligations to achieve a common purpose
and to give a boost to legal education in the country. They have themselves
imposed obligations on them to be a part of the Consortium for a
common
cause. CLAT being an All India Examination for different National Law
Universities has achieved its own importance and prominence in legal
education. The steps taken by National Law Universities to form a
Consortium and to cooperate with each other in conduct of CLAT is
towards discharge of their public duty entrusted under the different
statutes. The duty to uphold its integrity lies on the shoulder of each and
every member.
69. Thousands of the students who aspire to have a career in law
look forward to the CLAT as a prestigious test and CLAT has proved its
usefulness and utility in this country. Students look forward to the
Consortium for providing correct and fair assessment of the merits of
the students. The bye-laws under which members are required to admit
the students in their law universities on the basis of the CLAT for UG
and PG law courses are binding on the members. Bye-Laws although
are non-statutory but they have been framed with the aim and object to
be followed by its members.
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70. 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.
71. Shri Datar submits that Bye-Laws are in the nature of contract
between the society and its members. Shri Datar also referred to the
judgment of this Court in Hyderabad Karnataka Education Society
versus Registrar of Societies and others, (2000) 1 SCC 566. This
Court in the above case had occasion to consider Karnataka Societies
Registration Act, 1960, under which the Consortium has been registered.
The submission was made before this Court that Bye-Laws of the society
bind both the parties with which submission this Court expresses its
concurrence. In paragraph 28, following was observed:-
“28. Before leaving the discussion on this point, we may
mention
that learned senior counsel for the appellant, Shri Sanyal, placed
reliance on some of the decisions of this Court in T.P. Dover v.
Lodge Victoria No. 363, S.C. Belgaum [1964] 1 SCR 1, The Co-
operative Central Bank Ltd. and Ors. v. The Additional Industrial
Tribunal, Andhra Pradesh and Ors. , Kulchhinder Singh and Ors.
v. Hardayal Singh Brar and Ors. and Takraj Vasandi Alias K.L.
Basandhi v. Union of India and Ors. on the full Bench judgment
of the Andhra Pradesh High Court in the case of Sri Kanaseema
Co-operative Central Bank Ltd. v. N. Seetharama Raju AIR
(1990) (77) A.P. 171, and contended that bye-laws of a society
are a contract between the parties and bind both the parties. That
may be so, however, the question remains whether an illegal bye-
law or an illegal contract for that matter can bind any of the
contracting parties....”
72. The Court in the above case was concerned with legality of
Rule 7A, in the present case; we are not concerned with the challenge
to any rule of the Consortium.
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73. Shri Datar has contended that by accepting the membership
of Consortium, the autonomy of its members is maintained. He has
referred to Bye-Law 15.3.1 which we have already extracted above.
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.
74. This Court had an occasion to consider the challenge to National
Eligibility cum Entrance Test(NEET) for admission in Medical course in
Transferred Case(Civil) No.98 of 2012, Christian Medical College Vellore
Association versus Union of India and others. A Pertinent observation
has been made by this Court in paragraph 55 in the following words: -
“55...Building the nation is the main aspect of education,
which could not be ignored and overlooked. They
have to cater to
national interest first, then their interest, more so, when such
conditions can be prescribed for recognition, particularly in the
matter of professional education.”
75. This Court in the above case has held that holding of National
Eligibility cum Entrance Test is a National Interest. What was observed
by this Court with regard to NEET is equally applicable to the CLAT. 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.
We have already noticed that it was on a writ petition by a student
“Varun Bhagat”, the idea of a Common Law Entrance Test emerged
after discussion with Government of India, Law Universities, etc. and
other stakeholders. It was with a lot of discussion, deliberation that the
Common Law Admission Test could come into existence. We have come
a long way with the Common Law Admission Test which has to be
further strengthened and streamlined.
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76. This Court time and again has emphasised the importance
and usefulness of Common Admission Test for group of institutions
imparting same or similar education. This Court held that such Common
Test fulfils twin objects of transparency and merit. The Constitution
Bench of this Court in P.A. Inamdar and others vs. State of
Maharashtra and others, (2005) 6 SCC 537, in paragraphs 136 and
138 laid down following:
“136…………There is nothing wrong in an entrance test being
held for one group of institutions imparting same or similar
education. Such institutions situated in one State or in more than
one State may join together and hold a common entrance test or
the State may itself or through an agency arrange for holding of
such test. Out of such common merit list the successful candidates
can be identified and chosen for being allotted to different
institutions depending on the courses of study offered, the number
of seats, the kind of minority to which the institution belongs and
other relevant factors. Such an agency conducting Common
Entrance Test (CET, for short) must be one enjoying utmost
credibility and expertise in the matter. This would better ensure
the fulfillment of twin objects of transparency and merit. CET is
necessary in the interest of achieving the said objectives and also
for saving the student community from harassment and
exploitation. Holding of such common entrance test followed by
centralized counseling or, in other words, single window
system
regulating admissions does not cause any dent in the right of
minority unaided educational institutions to admit students of their
choice. Such choice can be exercised from out of list of successful
candidates prepared at the CET without altering the order of merit
inter se of the students so chosen.
138. It needs to be specifically stated that having regard to the
larger interest and welfare of the student community to promote
merit, achieve excellence and curb malpractices, it would be
permissible to regulate admissions by providing a centralized and
single window procedure. Such a procedure, to a large extent,
can secure grant of merit based admissions on a transparent basis.
Till regulations are framed, the admission committees can oversee
admissions so as to ensure that merit is not the casualty.”
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77. Shri Arvind Datar, learned counsel appearing for the respondent
No.1 has fairly submitted that the respondent No.1 is still a member of
Consortium and has not gone out of Consortium and NLAT conducted
by it is only for the present Academic Year to avoid this Academic year
as a ‘Zero Year’. He submits that insofar as next academic year the
respondent No.1 shall admit students on the basis of result of CLAT.
Shri Datar has referred to the unique system of trimester which is
operating in the respondent No.1 University. Shri Datar has further
submitted that unless the Under-Graduate law course was not started
by 18.09.2020, respondent No.1 would not have been able to complete
its trimester.
78. In the counter affidavit filed by the respondent No.1, details
of the Trimester is given and proceeding of Academic Council dated
12.12.1987 has been brought on record as Annexure-R-1/2 in which
Academic Council has taken the decision on academic terms in following
manner: -
“(b) Academic Terms:
Each Academic year be divided into 3 Academic terms each with
a minimum of 70 working days. This academic term be called a
Trimester. Thus the 5-year B.A.LL.B(Hons.) Programme will
have 15 Trimesters. It is suggested that the Academic year may
begin from 1st July and the Academic terms may adopt the
following pattern: -
i) FIRST TRIMESTER — July 1st to  September 30
ii) SECOND TRIMESTER — October 1 to January 15.
iii) THIRD TRIMESTER —
January 30 to April 30.”
79. As per Academic Council’s above decision, each Academic
year is divided into three Academic terms called Trimester with a minimum
70 working days.
80. Shri Sajan Poovayya,learned counsel appearing for the
respondent No.2, has explained that for completing three trimesters, 285
working days are required. He submits that 210 days is for teaching in
all the three semesters, 36 days shall be three Sundays in each three
months term, 24 days for Government holidays, etc. in three months and
15 days for evaluation and assessment, totalling to 285 days.
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81. 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
Covid-19. None of the Universities have declared the year as a ‘zero
year’.
82. The University Grants Commission being aware of the
consequences of Covid-19 Pandemic has issued guidelines on the
examination in the Academic Calendar. In the guidelines dated 29.04.2020
with regard to Academic Calendar for the Session 2020-21, following
has been provided:-
“4. Academic Calendar for the Session 2020-21
Several School Boards are yet to complete their Class XII
Examinations, as of now. Examinations for the Even Semester in
the universities are also getting delayed due to national lockdown.
Naturally, all these things will delay the admission process in the
university system for the next academic session. In order to tackle
this situation, the universities may require some amendments in
their academic calendar for the academic session 2020-21.”
83. 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.
84. The counter affidavit filed by the respondent No.3, has
suggested various alternatives to be adopted by the Universities to modify
their academic year in paragraph 51 and 52. It is suffice to observe that
it is for the respondent No.1 to take appropriate decision in the above
regard.
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85. We may also notice one more submission of Mr. Datar at this
stage. Shri Datar submits that holding of separate exam has become a
sheer necessity and not with the intention to violate the Consortium Bye-
Laws. He reiterated his submissions that to avoid the academic year
2020-21 to be declared as ‘zero year’, the respondent No.1 proceeded
with a separate exam.
86. We are not persuaded to accept the submission that “Doctrine
of Necessity” was applicable in the fact situation of the ongoing pandemic.
As noted above, UGC in its guidelines dated 29.04.2020 has already
asked all the Universities to modify their academic calendar for the
academic year 2020-21. The UGC being the body to maintain standard
of education in the entire country and having contemplated for suitable
amending the academic year, “Doctrine of Necessity” does not arise.
We thus conclude that being members of the Consortium respondent
No.1 ought not to have proceeded with holding a separate test namely
“NLAT” nor the academic year 2020-21 be required to be declared as
“zero-year” even if the course starts in the mid of October, 2020.
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?
87. With regard to admission notice dated 03.09.2020, respondent
No.1 University issued Press Release NLSIU admission 2020 on
04.09.2020. Clause 4.4.2 of notice dated 03.09.2020 provided that the
test shall be an online entrance examination to be held on 12.09.2020,
the candidates will attempt the examination using a Computer device at
their respective locations. Paragraph 4.4.2 is as follows: -
“4.4.2. Candidates who have submitted a valid application
form will be required to appear for the NLAT. The Test shall be
an online entrance examination to be held on 12.09.2020.
Candidates will attempt this examination using a computer device
at their respective locations. Candidates will have to ensure that
they can appear for the examination on the appropriate date and
time using a computer device as per the detailed specifications
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that will be provided, including video and audio inputs. NLSIU
shall not be responsible for any connectivity issues, or failure of
internet connection during the examinations. NLSIU reserves the
right to cancel any candidate’s examination based on misconduct
or examination malpractice.”
88. The notification for technological/system requirement for
NLAT 2020 was issued by the University which provided following among
other requirements:-
“1. Supported Devices: Desktop computers and laptop
computers only (the use of tablets and other mobile devices,
including phones shall not be supported nor permitted in the NLAT
2020.
2. Operating System: Window 7 or above (Windows 10
recommended) (Examination system will not run on any other
operating systems, such as Mac OS, Linux, etc.)
3. Minimum Configuration: Processor: Core 2 Duo and above;
Processor speed: 1.5 GHz and above; RAM: Minimum 1 GB.
4. Browser: Google Chrome(84.0.4147.135 or later) only. Click
here to download the latest version of Google Chrome.
5. The user account must have administrator privileges to install
required applications.
6. Pop-up blockers on the web browser must be disabled.
7. Java Script must be enabled.
8. Antivirus must be disabled.
9. Minimum Internet Bandwidth: 1 Mbps minimum; the remote
proctoring software streams exam data, including audio and video,
directly to the cloud as you take the NLAT 2020. In order to allow
the continuous transfer of exam data, the specified minimum
connection speed must be maintained at all times...”
89. In pursuance of notice dated 03.09.2020, 24,603 Candidates
have applied and only 23,225 have appeared in the test. For CLAT 2020,
above 69,000 students have registered for Under-Graduate law course.
90. The first leg of challenge which has been raised by the
petitioner is to home proctored test as notified by respondent No.1, it is
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submitted that home proctored test does not fulfill the requirement of
fair and transparent test which was expected for a premier law University.
The petitioners in this reference relies on the affidavit of respondent
No.2, Prof.(Dr.) Sudhir Krishnaswamy which he filed in Writ
Petition(Civil) No.4848 of 2020, V.Govinda Ramanan versus Consortium
of National Law Universities and Anr. filed in Delhi High Court. The
respondent No.2 as Secretary of the Consortium filed the counter affidavit
on behalf of Consortium of National Law University in Delhi University
sworn on 25.08.2020. The writ petitioner in the said writ petition claimed
that he should be permitted to appear in examination from his home. The
counter affidavit pleaded that conducting computer based online centre
based test is legal. Opposing the home based online test, respondent
No.2 made following statement in paragraph 17 and 18 of the affidavit:-
“17. It is submitted that a home based online test for around
78,000 students would not be possible as the test will be completely
compromised and may even be manipulated by the participants or
coaching centres.
18. Respondent No.1 has over several meetings discussed
and assessed the feasibility of conducting CLAT-2020 through
various modes including the mode suggested by the Petitioner
herein. After due consideration, Respondent No.1 has determined
that an online test at home with technological measures cannot
ensure transparency, fairness and the integrity of a high stakes
examination process such as CLAT.”
91. The respondent No.2 had categorically taken the stand on
behalf of the CLAT that online test at home with technological measures
cannot ensure transparency and the test will be completely compromised
and may even be manipulated by participants and coaching centres.
There was no reason for change of mind by respondent No.2 within a
week. Affidavit was sworn on 25.08.2020 by respondent No.2 and on
03.09.2020 after a week, notification was issued for conducting NLAT
permitting participants to join online examination sitting at their home.
When something was not to be permitted, when home based online test
could not have been permitted for CLAT-2020, the same test can also
not be permitted for NLAT-2020.
92. We thus find substance in the submissions of the petitioner
that permitting of home based online test could not have ensured
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transparency, fairness and integrity of the examination especially when
the test was to be conducted for entrance into a premier Law University
of the country.
93. We may notice another submission of the petitioners in this
regard. Petitioners’ case is that due to a short period of notice to apply
and due to technological requirement, a large number of students
especially belonging to marginalised sections of the society were unable
to apply within the time allowed by NLAT. The requirement of fulfilling
technological support as envisaged by NLAT as noticed above could not
have easily been procured by a large number of students.
94. In the proceeding of the faculty meeting dated 06.08.2020
brought on record by the respondent No.1 along with his counter affidavit
as Annexure-R-1/10, it has been mentioned that “NSLIU is the first
preference for more than 60 percent of CLAT applicants”. About 69,000
students have 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 above figures fully support
the submissions of the petitioner that a large section of the students
especially belonging to marginalised sections of the society were denied
the opportunity to appear in the examination.
95. We thus conclude that home based online examination as
proposed by the respondent No.1 University for NLAT-2020-21 could
not be held to be a test which was able to maintain transparency and
integrity of the examination. The short notice and technological
requirements insisted by the University deprived a large number of
students to participate in the test violating their rights under Article 14 of
the Constitution of India.
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.
96. Petitioners have submitted that examination held on 12.09.2020
as well as re-test held on 14.09.2020 was marred by several malpractices
which proved that the apprehensions of the petitioner were true.
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97. Shri Gupta highlights the various shortcomings in proctoring
protocol. Shri Gupta has also referred to the Press Release dated
14.09.2020 by the respondent No.1 where Press Release stated
“thereafter, it appears that some candidates have copied the questions
and circulated this on some messaging apps and emails after logging in.”
Shri Gupta submits that even after noticing the aforesaid fact the Press
Release further states that “while this is a malpractice under NLAT
proctoring guidelines, it does not affect the integrity of the exams as
questions were already available to all candidates after logging in.”
98. Shri Gupta submits that if the candidates are able to send
questions through messaging apps and emails obviously they could receive
the answers as well. Further, Shri Gupta has referred to the Press Release
dated 15.09.2020 by the respondent No.1 where University has stated
that “some case of examination malpractices deserves criminal
investigation and University has already lodged criminal complaints
against some actors”.
99. Shri Arvind Datar has strongly refuted the above submission
and has referred to the sur-Rejoinder affidavit filed by respondent No.1
where details of technological measures taken by NLSIU for NLAT
2020 has been explained.
100. It is submitted that extensive technological and other measures
are implemented to ensure that any candidate attempting any form of
malpractices is caught and
disqualified from the process either during
the exam itself or after the post examination during audit and scrutiny.
101. Shri Datar submits that NLAT 2020 has made use of a
combination of Artificial Intelligence and human Proctoring. It is further
submitted that in order to give full effect to human and Artificial
Intelligence proctoring measures available post examination, respondent
No.1 appointed a leading audit firm to carry out an independent forensic
audit and assessment of data relating to the examination and submit the
report. He submits that  care and precautions were taken by University
for conduct of free and fair test and on the basis of some media reports
and few materials brought on record, it cannot be concluded that the
examination is marred by malpractices especially in proceeding under
Article 32 of the Constitution.
102. After having considered the above submission of the learned
counsel for the parties, we are of the view that for the present case, it is
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not necessary for this court to enter into various materials referred to by
the petitioners and the reports and to decide as to whether malpractices
were actually adopted in the examination or not. Respondent No.1 being
premier University, we have no doubt that it must have taken all necessary
precautions to avoid any malpractices and cheating in the examination.
103. As noted above, the University has also filed a complaint of
Cyber Crime which may be inquired in accordance with law. We 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.
104. In view of the foregoing discussion, we are of the considered
opinion that Admission notification dated 03.09.2020 issued by respondent
No.1 was not in accordance with law and deserves to be set aside.
105. The CLAT examination is already fixed for 28.09.2020 which
needs to be conducted on the said date without fail after following all
necessary protocols for safety and health of the students and after
following the Standard Operating Procedures issued by Ministry of Health
and Family Welfare (MoHFW) and Ministry of Human Resource
Development(MHRD).
106. We further notice that after the issuance of notification dated
03.09.2020 by the respondent No.1, the meeting of the governing body
of Consortium of National Law Universities was held on
05.09.2019
where decision was reiterated to hold CLAT 2020 on 28.09.2020. The
governing body further resolved to divest functions of respondent No.2
as Secretary and Treasurer of the Consortium with the immediate effect
and in the interim period appointed Professor Faizan Mustafa, senior
most member of the Consortium and past President to discharge all the
administrative and secretarial functions of the Consortium. The governing
body also resolved to shift the Secretariat of the Consortium to the
NALSAR University, Hyderabad.
107. We have found that separate admission notice dated
03.09.2020 issued by the respondent No.1 being unsustainable. We are
of the view that Status quo ante as on 05.09.2020 should be restored as
early as possible i.e. by restoring the respondent No.2 as Secretary of
the Consortium as well as restoring the Secretariat of the Consortium to
NLSIU, Bengaluru. The governing body may take the decision keeping
in mind that CLAT examination scheduled on 28.09.2020 be smoothly
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held. The respondent Nos.1 and 2 are also to cooperate with the holding
of CLAT scheduled to be held on 28.09.2020.
108. In result of the foregoing discussion, we allow the writ petition
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 CLAT-2020
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 Secretary-Treasurer
of the Consortium as well as restoring the Secretariat of the
Consortium as to NLSIU, keeping in mind that scheduled exam
of CLAT-2020 on 28.09.2020 is not hampered in any manner.
109.
In view of our above order passed in the Writ Petition (Civil)
No.1030 of 2020, no orders are required in SLP(C) No.11059 of 2020.
SLP is disposed of.
Divya Pandey
Matters disposed of.