LAW FOR ALL : 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?

Monday, September 21, 2020

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?

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?

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’).

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.

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 85 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.

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 93 year 2020-21 be required to be declared as “zero-year” even if the course starts in the mid of October, 2020.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

WRIT PETITION(CIVIL)NO. 1030 OF 2020

RAKESH KUMAR AGARWALLA & ANR. ...PETITIONER(S)

VERSUS

NATIONAL LAW SCHOOL OF INDIA

UNIVERSITY, BENGALURU & ORS. ...RESPONDENT(S)

With

Special Leave Petition (C)No.11059 of 2020.

J U D G M E N T

ASHOK BHUSHAN,J.

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 ViceChancellor 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 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/ViceChancellors 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 counteraffidavit 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 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 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 SecretaryTreasurer 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-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 centrebased 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. 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 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-rejoinderaffidavit 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.

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 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 ByeLaws 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 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 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 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 superproctors 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 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 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 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 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:-

“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 exofficio 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

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.

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:-

“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 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;

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 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,-

(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

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;

(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, 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:

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

(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 decisionmaking 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 decisionmaking authority. Such decision-making under

Section 79(1) is not dependent upon making of

regulations under Section 178 by the Central

Commission. Therefore, functions 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 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 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 subsection(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

(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.”

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 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 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 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 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 ViceChancellor 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 ViceChancellors 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. 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, PostDoctoral 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 byelaws are to be elected at the annual meeting of the

governing body. As per Bye-Laws clause 12.1, ViceChancellor 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, 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 ByeLaws indicates that laudable objects for which National

Law Universities came together stood cemented by

consortium being registered as a society. As on date,

there are 23 National Law Universities which are part

of the Consortium. 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.

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 byelaws 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.

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.

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.”

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.

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.

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 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 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 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 NLAT2020-21 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

100

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.

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.”

101

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

102

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 not necessary for this

103

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.

104

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

105

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 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

106

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

107

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.

.......................J.

( ASHOK BHUSHAN )

.......................J.

( R. SUBHASH REDDY )

.......................J.

( M.R. SHAH )

SEPTEMBER 21, 2020

NEW DELHI

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Monday, September 21, 2020

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?