RAKESH KUMAR AGARWALLA & ANR. versus NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BENGALURU & ORS. on 21 September 2020

RAKESH KUMAR AGARWALLA & ANR.

v.

NATIONAL LAW SCHOOL OF INDIAUNIVERSITY, BENGALURU & ORS.

(Writ Petition (Civil) No. 1030 of 2020)

SEPTEMBER 21, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

National Law School of India Act, 1986 – Admission ofstudents, mode of enrolment – Recommendation of Academic Council– Statutory requirement of – Delay in conduct of CLAT for academicyear 2020-21 due to COVID-19 – Initially it was to be held in May2020 but was eventually postponed to 28.09.2020 – However,respondent no.1-National Law School of India University, Bengaluru(NLSIU) issued notification dated 03.09.2020 for conducting aseparate test, National Law Aptitude Test (NLAT) through onlinehome proctored examination for admission to its five year integratedB.A.LL.B (Hons.) Programme 2020-21 – Challenged – Held:Respondent No.1 was required by the statute to obtainrecommendation of Academic Council before proceeding to holdNLAT by issuing admission notification dated 03.09.2020 – Thesame having been issued without such recommendation is not inaccordance with the provisions of 1986 Act – Notice dated03.09.2020 as well as Press Release dated 04.09.2020 on NLSIUadmission 2020-21 are quashed – Respondent No.3 - Consortiumof National Law Universities to conduct the CLAT-2020 examinationon 28.09.2020 following the Standard Operating Procedures (SOPs)of Ministry of Health and Family Welfare and Ministry of HumanResource Development – Respondent No.1 to complete the admissionof B.A.LL.B (Hons.) Programme 2020-21 on the basis of result ofCLAT-2020 – Constitution of India – Art.14.

National Law School of India Act, 1986 – Power of ExecutiveCouncil u/ss.13 and 10 – Difference between – Discussed.

National Law School of India Act, 1986 – Second proviso tos.13(1), (2) – Held: As per sub-s.(2) of s.13, the Academic Councilshall have power to propose regulations on all the matters specified

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Ain (a) to (h) as enumerated in the second proviso of sub-sec.(1) ofs.13 – Thus, the Academic Council can propose regulationsregarding mode of enrolment and admission of students also.

National Law School of India Act, 1986 – ss.11, 18; Clause14 of Schedule to the Act – Held: Clause 14 of the ScheduleBspecifically empowers the Academic Council to appoint committeesfor admission to the school – Thus, the statute contemplatedadmission to the school under the aegis of Academic Council –Further, s.11 r/w s.18 and Clause 14 of the Schedule clearly providesfor role of Academic Council in the admission of students.

CNational Law School of India Act, 1986 – Admission – Powerof Academic Council vis-à-vis Executive Council – Discussed.

Karnataka Societies Registration Act, 1960 – Consortium ofNational Law Universities was incorporated as a registered society– Bye-Laws provided each member institution to ensure admissionDthrough CLAT – Delay in conduct of CLAT 2020 due to COVID-19– Respondent No.1, founder member of the Consortium issuednotification for conducting separate test – Respondent No.1 if boundby Bye-Laws – Held: Even though obligations on members ofConsortium under the Bye-Laws are not statutory obligations butare binding on the members – Being member of the Consortium,Erespondent no.1 ought not to have proceeded with holding a separatetest – National Law School of India Act, 1986.

Doctrines/Principles – Doctrine of necessity – When notapplicable – Delay in conduct of CLAT for academic year 2020-21due to COVID-19 – Eventually postponed to September 2020 –FHowever, Respondent No.1 issued notification for conductingseparate test contending that it became a sheer necessity – Held:Academic year 2020-21 not required to be declared as zero-yeareven if the course starts in the mid of October, 2020 – UGC havingcontemplated for amending the academic year, Doctrine of Necessitydoes not arise.G

Disposing of the matters, the Court

HELD: 1. QUESTION NO.1

Whether the petitioners have locus to file the writ petition?

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Conclusion

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

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A2.1 QUESTION NO.2

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

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

F2.2 There can be no dispute that Executive Council is theChief Executive Body of the school and the administration,management and control of the school is vested in the ExecutiveCouncil and in the administration, right to admit the students isincluded but the Statute has to be further looked into to find outas to whether there are any other statutory provisions to regulateGthe admission of students or there is any other authority of theschool, which is vested with the power to take decision regardingadmission of the students. Power under Section 13 empoweringthe Executive Council to frame regulations and power underSection 10 to administer, manage and control the school are twoHseparate 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 underSection 10 to administer, manage and control the affairs of theschool. However, the provisions contained in Section 13 throwconsiderable light on the statutory scheme. The second provisoproviding for prior concurrence of the Academic Council onenumerated subjects including “mode of enrolment and admissionof students” has been provided for since under the Scheme ofthe Statute it is the Academic Council which has been empoweredto take decisions regarding mode of enrolment or admission ofstudents. The above restriction in regulations making power ofthe Executive Council has been engrafted with purpose and object.The subjects which are mentioned under second proviso whereprior concurrence of the Academic Council is required are allmatters which are in domain of the Academic Council, thus, eventhough strictly second proviso of Section 13(1) is not attractedwhen no regulations have been framed by the Executive Councilbut the object and purpose for conditioning the exercise ofregulation making power of the Executive Council cannot be lostsight. Sub-section(3) of section 13 also contains a special provisionwhich provides that where the Executive Council rejects the draftof a regulation proposed by the Academic Council, the AcademicCouncil may appeal to the Chancellor and the Chancellor, may,by order, direct that the proposed regulation may be laid beforethe next meeting of the General Council for its approval andpending such approval of the General Council it shall have effectfrom such date as may be specified in that order. Thus, AcademicCouncil regulations which even though rejected by the ExecutiveCouncil can be allowed to operate by Chancellor and required toplace before General Council for approval and after approval itshall be operated. The above provision indicates that in certainmatters the recommendations of the Academic Council has beengiven prominence and as per sub-section(2) of Section 13, theAcademic Council shall have the power to propose regulationson all the matters specified in (a) to (h) as enumerated in thesecond proviso of sub-section(1) of Section 13. Thus, AcademicCouncil can propose regulations on mode of enrolment andadmission of students also. [Paras 46, 50][338-E-F; 341-F-H; 342-A-F]

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A2.3 Section 18 of the Act provides that composition, powersand functions of the authorities of the school subject to theprovisions of the Act shall be as specified in the Schedule. Clause14 of the Schedule to the Act provides “subject to the provisionsof this Act and the regulations, the Academic Council shall, inaddition to all other powers vested in it, have the powers asBenumerated in Clauses 14(7), 14(11) and 14(16). The saidprovisions in the Schedule specifically empower the AcademicCouncil to appoint the committees for admission to the school.Admissions to the school, thus, were contemplated to be underthe control of Academic Council and the appointment ofCcommittees was with the purpose to monitor and conduct theadmission of the school. When the Act was enacted in 1986, noprocedure was in place regarding admission and the Statuteempowered the Executive Council to appoint committees foradmission to the school. By virtue of Clause 14(16) with regardto appointment of committees for admission to the school, theDAcademic Council was to perform “all such duties and to do allsuch acts as may be necessary for the proper carrying out of theprovisions of the Act”. Thus, the above statutory provision gaveall incidental power to the Academic Council in relation to theadmission. [Paras 51, 52][342-G-H; 343-C-E]E2.4 The powers given to the Executive Council underClause 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 propertiesand (iii) other contains clauses (10), (11) and (12). Clause (11)

Fempowers the Executive Council to select a common seal forthe school and sub-Clause (12) is a general power providing thatExecutive Council to exercise such other powers and to performsuch other duties as may be imposed. While referring to powerof the Academic Council given in clause 14 sub-clause (11), which empower the Academic Council to make arrangements for theGconduct of examinations and to fix dates for holding them, it issubmitted that the said power relate to conduct of examination ofvarious courses, which are run by the school. Sub-clause(10) ofClause 9 of Schedule has to be, thus, also read to mean thatappointment of examiners and moderators is with regard toHcourses 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 appointmentof examiners by the Executive Council is by consultation of theAcademic Council, how can in the mode and manner of theadmission of the students, the Academic Council can be ignored.The Statutory Scheme of the Act, thus, indicates that there is nospecific power given to the Executive Council with regard toadmission of students except the general power of the ExecutiveCouncil as contained in Section 10 whereas the statutory provisionof Clause 14 of the Schedule specifically empowers the AcademicCouncil to appoint committees for admission to the school. Thus,the Statute contemplated admission to the school under the aegisof Academic Council. Sub-clause (7) of Clause 14 read with sub-clause (16) of clause 14 of Schedule clothes the Academic Councilwith all powers including mode and manner of admission of thestudents. Section 11 of the Act also needs to be referred to.Section 11 of the Act provides that Academic Council shall bethe academic body of the school and shall have power of controland general regulation of, and be responsible for the maintenanceof standards of instruction, education and examination of theschool. Section 11 used the three expressions namely “power ofcontrol”, “general regulation of” and “be responsible”. Theexpressions used in the Section 11 are “maintenance of standardsof instructions, education and examination of the school. It isnow settled law that the standards of education include admissionto the course. When the Academic Council has been given powerof control, general regulations and is responsible for maintenanceof standards of instruction, education and examination of theschool, its one of the functions, undoubtedly is to regulate theadmission of students. Reading of Section 11 with Section 18 andclause 14 of the Schedule clearly provides for role of AcademicCouncil in the admission of students. [Paras 53, 55, 56][343-F-G; 344-A-G; 345-C]

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

2.5 At this stage, the meeting of the Executive Councildated 29.08.1987 and 30.08.1987 may also be referred to. The AB

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Aproceedings have been brought on the record alongwith thecounter affidavit of respondent No.1. Item No. 16 of the meetingdealt with selection of students. The resolution of the ExecutiveCouncil indicates that it was a draft proposal of the AcademicCouncil regarding admission test, which was approved by theExecutive Council. The next following sentence in the resolutionBis relevant “the procedure for admission test and the selectionmay be decided by the Academic Council and implemented bythe Director”. The respondent No.1 himself has brought on therecord the proceedings of the meeting of the Academic Councildated 12.12.1987 as Annexure R-1/2 where the mode of selectionCof the students to the LL.B. Programme was provided for. Thus,the above proceedings of Executive Council and AcademicCouncil itself make it clear that the Executive Council was of theopinion that it is the Academic Council who is statutory authorityregarding mode and manner of the admission of the students inLL.B. course. The above proceedings of the Executive CouncilDdated 29.08.1987 and Academic Council dated 12.12.1987 fullysupport the submission of the learned counsel for the petitionersthat it is the Academic Council who is empowered under thestatute to take a resolution regarding admission of the studentsin the LL.B. Course. The authorities of the University exerciseEpowers and functions as entrusted to them in the Statute. [Paras57-59][345-C; 346-B-F]

Marathwada University v. Seshrao Balwant RaoChavan (1989) 3 SCC 132 : [1989] 2 SCR 454 – reliedon.

F2.6 It is, however, made clear that Executive Council in itsresolution dated 12.08.2020/18.08.2020 in exercise of generalpower of administration could have very well taken any resolutionregarding completion of admission process but for implementingthe decision of 12.08.2020/18.08.2020 of the Executive CouncilGrecommendation of Academic Council was required to be obtainedregarding mode and manner of conducting separate admissiontests by respondent No.1. The recommendation of AcademicCouncil was necessary to be obtained for holding a separate entrytest namely NLAT especially when respondent No.1 wasproposing to hold the above test instead of admitting the studentsH

by CLAT from which common law admission test, admission inLL.B. course was being done for last more than a decade. Whenthe respondent No.1 wanted to conduct NLAT as online homeproctored test of 45 minutes containing 40 questions which modeand manner was different from earlier prescriptions, therecommendations of Academic Council were must. On 18.08.2020the Executive Council unanimously reaffirmed its resolution takenon 12.08.2020 to empower the Vice-Chancellor and the Universityto conduct an independent admission process in the event thatCLAT 2020 is delayed further. The resolution was empoweringthe Vice-Chancellor to take all necessary steps. All necessarysteps have to be understood as steps which are required to betaken as per the statute. When the Act, 1986 empower theAcademic Council to take decision regarding admission of thestudents in LL.B. Course and with regard to mode and mannerof conducting the admission test, it was obligatory for the Vice-Chancellor to have obtained the recommendations of theAcademic Council. The Vice-Chancellor himself is the Chairmanof the Academic Council and there was no difficulty and withregard to meetings of the Academic Council Clause 15 sub-clause(6) provides that if urgent action by the Academic Councilbecomes necessary, the Chairman of the Academic Council isempowered to permit the business to be transacted by circulationof papers to the members of the Academic Council. Thus,respondent No. 1 was required by the Statute to obtainrecommendation of Academic Council before proceeding to holdNLAT by issuing admission notification dated 03.09.2020. Thus,admission notification dated 03.09.2020 issued by respondentNo.1 could not have been issued without obtaining therecommendation to this effect by the Academic Council.Admission notification dated 03.09.2020 having been issuedwithout recommendation of Academic Council is not inaccordance with the provisions of Act, 1986 and is unsustainable.[Paras 60-62][347-C-E, H; 348-A-E]

3.1 QUESTION NO.3

Whether the respondent No.1 being founder member ofConsortium of National Law Universities, a registered society,is bound by its Bye-Laws and was obliged to admit the students AB

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Afor integrated B.A.LL.B.(Hons.) Programme through CLAT2020?

A Memorandum of understanding was signed by seven, thenexisting National Law Universities on 23.11.2007 to hold theCombined Admission Test to be organised by NLU on rotationBbasis on the basis of seniority. In November, 2014, in a meetingof Vice-Chancellors of National Law Universities, the decisionwas taken to constitute a Consortium of National LawUniversities. The Consortium got registered as Society inKarnataka Societies Registration Act, 1960 on 26.03.2019. TheConsortium in its various meetings took decisions to streamlineCconduct of Common Law Admission Test (CLAT) and forcoordination and cooperation among NLUs. The aims andobjectives further disclosed that the Consortium aims to makethe benefit of legal education of one or more NLUs to the rest ofthe NLUs. Clause 3 deals with the governance of the society.DClause 3.3 provides that the society shall exercise powers andperform functions as enumerated therein. Clause 3.3.5 providesthat the society shall organise Common Admission Test for UG,PG, Doctoral, Post-Doctoral courses for the National LawUniversities across the country. Clause 3.3.6 provides that societyshall provide a platform for admission to all National LawEUniversities in India through CLAT for UG and PG Law coursesif such National Law Universities become the members of thesociety. Bye-Laws of Consortium of National Law Universitieswere also framed. The President and Vice-President under thebye-laws are to be elected at the annual meeting of the governingFbody. Bye-Laws provide that each member of the institutionensure the admission on merit assessed through CLAT. As perBye-Laws clause 12.1, Vice-Chancellor of National Law Schoolof India University, Bangalore shall be ex-officio SecretaryTreasurer of the society. Bye-law 15 deals with “Membership”

whereas bye-law 15.3 contains heading “Requirement ofGMembership”. A perusal of Memorandum of Association and Bye-Laws indicates that laudable objects for which National LawUniversities came together stood cemented by consortium beingregistered as a society. As on date, there are 23 National LawUniversities which are part of the Consortium. The respondentHNo.1 was the first National Law University which came into existence by Act, 1986 of Karnataka Legislature. Other Statesfollowed the suit creating National Law Universities. DifferentNational Law Universities established in different parts of theCountry have contributed immensely to the cause of legaleducation.[Paras 63-67][348-G-H; 349-A-E; 350-B-D]

3.2 Even though obligations on members of Consortiumunder the Bye-Laws are not statutory obligations but thoseobligations are binding on the members. All members occupyingsignificant and important status have to conduct in fair andreasonable manner to fulfill the aspirations of thousands ofstudents who look on these National Law Universities asinstitutions of higher learning, personality and career builders.Further the statutes under which National Law Universities havebeen established cast public duties on these NLUs to function ina fair, reasonable and transparent manner. These institutions ofhigher learning are looked by society and students with respectand great trust. All NLUs have to conduct themselves in a mannerwhich fulfills the cause of education and maintain the trust reposedon them. Bye-Law 15.3.1 itself contemplates that the obligationof membership is to ensure that the member institution reflectscore values and standards set by the Consortium accordingappropriate respect for the autonomy of its member institution.The autonomy of member institutions does not in any mannercome in the way of holding the Common Law Admission Test(CLAT). Every institution maintains its autonomy as per thestatute governing, the obligation to maintain core value of theConsortium in no manner affect the autonomy of the memberuniversity. The core values of the Consortium aim to enhancethe prestige and content of legal education. Legal education hasa pivotal role in the development of the society and regulatingthe inter se relations between the members of the society. Toconduct a Common Law Admission Test for all the LawUniversities is both in the national interest as well as in theinterest of the education. This Court time and again hasemphasised the importance and usefulness of Common AdmissionTest for group of institutions imparting same or similar education.[Paras 70, 73, 75 and 76][351-A-C; 352-B, C, F, G; 353-A-B]

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[2020] 10 S.C.R.

AP.A. Inamdar and others v. State of Maharashtra andothers (2005) 6 SCC 537 : [2005] 2 Suppl. SCR 603 –followed.

Hyderabad Karnataka Education Society v. Registrarof Societies and others (2000) 1 SCC 566 : [1999] 5BSuppl. SCR 161 – distinguished.Christian Medical College Vellore Association v. Unionof India and others (2020) 8 SCC 705 – relied on.

3.3 It is true that respondent No.1 University follows aunique system of Trimester, each semester has 70 teaching daysCper three months term. The first Trimester as per resolution ofacademic council was to begin on 01.07.2020 and was to end till30th September,2020. This period of three months is not availablefor respondent No.1 to start the first semester. The entire countryis struggling with Pandemic Covid-19 from March 2020. Loss inDthe academic year is for all Universities in the Country. TheAcademic Calendar of each University stood disrupted by Covid-19. None of the Universities have declared the year as a ‘zeroyear’. The University Grants Commission being aware of theconsequences of Covid-19 Pandemic issued guidelines on theexamination in the Academic Calendar. As provided by UGCEguidelines which guidelines have been continued by subsequentguidelines dated 06.07.2020, the UGC expected the Universitiesto carry on some amendments in their academic calendar for thesession 2020-21. The Universities are not powerless to modifytheir Academic Calendar looking to the pandemic. The AcademicFyear 2020-21 is not a normal academic year in which Universitiesare expected to carry on their teaching and other activities innormal mode and manner. The respondent No.1 University couldhave very well found out ways and means to start the academicUnder-Graduate Law course even if it starts in mid of October2020 after conduct of the CLAT on 28.09.2020. The Court is notGpersuaded to accept the submission that “Doctrine of Necessity”was applicable in the fact situation of the ongoing pandemic. UGCin its guidelines dated 29.04.2020 had already asked all theUniversities to modify their academic calendar for the academicyear 2020-21. The UGC being the body to maintain standard ofHeducation in the entire country and having contemplated for suitable amending the academic year, “Doctrine of Necessity”does not arise. Being members of the Consortium respondentNo.1 ought not to have proceeded with holding a separate testnamely “NLAT” nor the academic year 2020-21 be required tobe declared as “zero-year” even if the course starts in the mid ofOctober, 2020.[Paras 81-83, 86][355-A-C, F-G; 356-C-D]

4. QUESTION NO.4

Whether online home proctored examination as proposedby notification dated 03.09.2020, lacks transparency, was againstthe very concept of fair examination and violative of the rights ofthe students under Article 14 of the Constitution?

In the proceeding of the faculty meeting dated 06.08.2020brought on record by the respondent No.1 along with his counteraffidavit, it has been mentioned that “NSLIU is the firstpreference for more than 60 percent of CLAT applicants”. About69,000 students registered for CLAT-2020. 60 percent of 69,000comes to 41,400. The registration into NLAT being only 24,603out of which only 23,225 could appear makes it clear that a largenumber of students who could have wanted to apply for admissionin respondent No.1 University could not even apply due toshortage of time and technical requirement insisted by respondentNo.1 University. The figures fully support the submissions of thepetitioner that a large section of the students especially belongingto marginalised sections of the society were denied theopportunity to appear in the examination. Home based onlineexamination as proposed by the respondent No.1 University forNLAT-2020-21 could not be held to be a test which was able tomaintain transparency and integrity of the examination. The shortnotice and technological requirements insisted by the Universitydeprived a large number of students to participate in the testviolating their rights under Article 14 of the Constitution of India.[Paras 94, 95][359-C-F]

5. QUESTION NO.5

Whether NLAT held on 12.09.2020 with re-test on14.09.2020 was marred by malpractices and deserves to be setaside.

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AFor the present case, it is not necessary for this court toenter into various materials referred to by the petitioners andthe reports and to decide as to whether malpractices were actuallyadopted in the examination or not. The Court need not expressany opinion in this proceeding under Article 32 with regard tothe aspect of malpractices in the test conducted on 12.09.2020Band 14.09.2020 which is essentially a matter of scrutiny of factsand evidence. [Paras 102, 103][360-H; 361-A-C]

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

(I) The notice for admission to the five year integratedCB.A.LL.B (Hons.) programme 2020-21 dated 03.09.2020Annexure -P 14 as well as Press Release on NLSIU admission2020-21 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 careDfor health of the students after following the Standard OperatingProcedures (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 entireEprocess of declaration of the result be completed as early aspossible to enable the respondent No.1 and other National LawUniversities to start their course by the mid of October-2020.

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

(V) The respondent No.3 may take decision at an early daterestoring the status of respondent No.2 as the Secretary-Treasurer of the Consortium as well as restoring the Secretariatof the Consortium as to NLSIU, keeping in mind that scheduledexam of CLAT-2020 on 28.09.2020 is not hampered in anyGmanner.

In view of above order passed in the Writ Petition (Civil)No.1030 of 2020, no orders are required in SLP(C) No.11059 of2020.[Para 108 and 109][362-B-F]

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Varun Bhagat v. Union of India decision dated25.07.2008 of Supreme Court inWrit Petition (C) No.68 of 2006; T.M.A. Pai Foundation and Ors. v. State ofKarnataka and Ors. (2002) 8 SCC 481 : [2002] 3 Suppl.SCR 587; PTC India Limited v. Central ElectricityRegulatory Commission (2010) 4 SCC 603 : [2010] 3SCR 609; V.T. Khanzode and Ors. v. Reserve Bank ofIndia and Anr. (1982) 2 SCC 7 : [1982] 3 SCR 411 –referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1030 of 2020.

Under Article 32 of the Constitution of India With SLP (C) No. 11059/2020

Nidhesh Gupta, Gopal Sankaranarayanan, Nikhil Nayyar, ArvindP. Datar, Sajan Poovayya, P.S. Narasimha, Sr. Advs., P.B. Suresh, VipinNair, Karthik Jayashankar, Sughosh Subramanyam, Agnish Aditya,Ms. Japneet Kaur, Madhav Gupta, Ms. Pallavi Singh, ShrutanjayaBharadwaj, Ms. Vriti Gujral, Vishal Sinha, Ms. Gayatri Verma, KushChaturvedi, Aditya Shekhar, Ms. Priyanshree Sharma PH, DivyanshuRai, Baibhaw Gahlaut, Shubham Gautam, Aditya Narayan, Rohit Sharma,Rounak Nayak, Atul Agarwal, Lekha Chandrasekhar, Rahul Unnikrishnan,Patibhanu Singh Kharola, Ms. Raksha Agrawal, Kumar Dushyant Singh,K. Parameshwar, M.V. Mukunda, Ms. Aditi Tripathi, Kush Chaturvedi, A

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ASandeep Deshmukh, Nishant Sharma, Rajat Gaur, Sujoy Gaur and RakeshK. Sharma, Advs. for the appearing parties.

The following Judgment of the Court was delivered by ASHOK BHUSHAN, J.B

B1. This writ petition filed in Public Interest under Article 32 of theConstitution of India questions admission notification dated 03.09.2020issued by National Law School of India University, Bengaluru forconducting separate admission entrance examination, the National LawAptitude Test(NLAT) scheduled for 12.09.2020. The petitioner seeks adirection to National Law School of India University (hereinafter referredCto as “NLSIU”) to admit students only through Common Law AdmissionTest, 2020(CLAT) examination scheduled to take place on 28.09.2020.The writ petition is filed by two petitioners. First petitioner is the fatherof a student aspiring to gain admission into five years LL.B. programmeof National Law University and the petitioner No.2 is the former Vice-DChancellor of National Law School of India University, Bengaluru.

2. We may notice certain background facts for considering theissues which have been raised in the writ petition. NLSIU, a premierLaw University of the country, was established pursuant to a joint initiativeof the Supreme Court of India, the Bar Council of India and the KarnatakaEBar Council. Bar Council of India, set up a society, namely, NationalLaw School of India Society as a registered society under the KarnatakaSocieties Registration Act, 1960. On request made to Government ofKarnataka for establishing the School as University by a Statute, theState Government established National School of India University,Bengaluru by National Law School of India Act, 1986 (hereinafterFreferred to as ‘the Act, 1986’). We shall notice the relevant provisionsof the Act, 1986 a little later. The NLSIU was meant to be a premierSchool of Legal Education with five years undergraduate Law Course.Following the footsteps of NLSIU, National Academy of Legal Studiesand Research (NALSAR) was established in Hyderabad in 1998 andGthe National University of Juridical Sciences, Kolkata (NUJS) wasestablished in Kolkata in 1999 and National Law Institute University,Bhopal (NLIU) was established by Act No.41 of 1997 by MadhyaPradesh Legislature. Over the course of time States enacted similarStatutes to create institutions for legal education which came to be knownas National Law Universities across the country. All the National Law H

Universities have prescribed criteria for admission as well as syllabusstructure. In the initial years all National Law Universities wereconducting their own admission tests for admitting students in five yearsLaw course. A writ petition being Writ Petition(C)No.68 of 2006 VarunBhagat vs. Union of India came to be filed in this Court under Article32 of the Constitution, impleading Union of India through the Secretary,Ministry of Law, Justice and Company Affairs, Ministry of HumanResource Development through its Secretary, Bar Council of India,NLSIU, Bengalore and five other National Law Universities. The writpetitioner prayed for a direction to the respondent to lay down themechanism of centralised admission process to the various National LawUniversities to facilitate the interests of the students. This Court issuednotice in the writ petition. Learned Additional Solicitor General of Indiamade a statement before this Court that Ministry of Human ResourceDevelopment in consultation with the various Law Universities and otherconcerned stakeholders, shall take steps to examine and evolve a scheme/policy in accordance with which a combined entrance examination couldbe conducted for premier National Law Universities. The Governmentof India convened various meetings with Directors/Vice-Chancellors andother educational functionaries. In the Writ Petition No.68 of 2006counter-affidavit was filed on behalf of Department of Higher Education,Ministry of Human Resource Development where detailed steps takenby the Ministry of Human Resource Development were enumeratedincluding details of various meetings which were held with Vice-Chancellors of Law Universities in the year 2006 between September,2006 to December, 2006. In paragraph 10 of the counter-affidavitfollowing was stated:

“10....It is expected that all the required informational notes shallbe received during the course of February, 2007 and further stepsshall be timely taken in order to ensure that the process of holdinga Combined Admission Test for the academic session 2008-2009is put in place as expeditiously as possible.”

3. The National Law Universities entered into a Memorandum ofUnderstanding dated 27.11.2007 where the National Law Universitiesdecided to hold a common admission test, namely, Common LawAdmission Test (CLAT). Every University shall conduct the examinationstarting with the oldest University. When the Writ Petition No.68 of2006 came for hearing on 25.07.2008, this Court noticed that prayers AB

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Asought in the writ petition have already been accomplished, this Courtpassed following order:

“The prayers sought for in the writ petition have already beenaccomplished, so the writ petition is disposed of.”

4. The Common Law Admission Test (CLAT) started to be heldBwith effect from the year 2008 for admission in five years law course ofNational Law Universities, which was a great relief to the students’community aspiring for joining a professional course in Law. The CLATwas conducted at different centres throughout the country. The numberof National Law Universities kept on growing one by one and currentlyCthere are 23 National Law Universities in the country.

5. Writ petition being Writ Petition (C)No.600 of 2015 came to befiled by one Shamnad Basheer praying that an independent professionalbody conducting CLAT on annual basis be constituted. This Court passedvarious orders in the aforesaid writ petition. On 28.11.2018 this CourtDpassed the following order in the aforesaid writ petition:

“Application for intervention is dismissed as withdrawn.

Shri Atmaram N.S. Nadkarni, learned Additional SolicitorGeneral appearing on behalf of the Union of India, Ministry ofHuman Resource & Development states that the GovernmentEhas prepared a report and shall further convene a meeting of allthe parties to these petitions, NTA and the Bar Council of India;seek their views and make appropriate recommendations for theholding of the examination within four weeks.

List thereafter.”

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6. A meeting was held on 10.12.2018 by Secretary, Departmentof Higher Education, Government of India in compliance of the aforesaidorder, the Bar Council of India who was a participant in the meetingstated that BCI as a statutory body has no objection in constitution of aConsortium of NLSIU for conducting the examination but as a keyGstakeholder, they would be part of monitoring body for conducting andmonitoring the examination. In the meeting major point which emergedand noted was “the way forward would be to have a better, robust,transparent and accountable institutional structure for conduct of theexamination through a Consortium of NLSIU being the stakeholder inthe conduct of the examination (and as agreed by the petitioner, BCIH

and NLIA) was asked to take exams in transparent and robust manner”.The Consortium of National Law Universities was incorporated as aregistered society under the Karnataka Registration of Societies Act,1960 on 26.03.2019. The Vice-Chancellor of the NLSIU was to be theex-officio Secretary-Treasurer of the Consortium. The Memorandumof Understanding of Consortium of National Law Universities noticedthe directions issued by this Court in Varun Bhagat vs. UOI anddeliberations made by the University Grants Commission, Ministry ofHuman Resource Development and Government of India. The mainaims and objectives of the Consortium in clause 3 of the Memorandumwere inter alia:

“(i) To provide the highest standards of legal education to makeIndian legal education comparable with the most reputedinternational institutions of legal education.

(iii) To provide better co-ordination amongst the NLUs and otherlegal institutions to achieve highest standard of legal education inthe country. Further the Consortium recognizes the autonomy ofits member institutions and therefore its decisions will need adoptionby the member institutions for implementation in such institutions.

(v) To administration, control and monitor the conducting of allIndia common entrance examination for law in CLAT, for and onbehalf of all the participating NLUs, and facilitate admission ofstudents into various NLUs in the country.

(xi) To make the benefits of legal education of one or more NLUsavailable to the rest of NLUs.

(xix) To evolve uniform policies in terms of admission, coursesemester system, uniform grading system and the like in tune withglobal standards.”

7. Clause 5 provided for governing body of the Society. The firstgoverning 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 ofConsortium of National Law Universities were also framed. Member ofinstitution is defined in clause 1.1.13 to the following effect:

“1.1.13. “Member institution” means by NLU formally admittedto the membership of the Society in accordance with the Bye- A

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ALaws and having paid the Subscription Fee and signing the masterlist of the Member institutions maintained by the Society.”

8. Clause XV dealt with membership. Bye-Laws provide thateach member of the institution ensure the admission on merit assessedthrough CLAT. Para 15.3.3 is as follows:B

“In order that appropriate intellectual rigor may bemaintained, a Member institution shall ensure that admission toevery academic course or programme of study in each Memberinstitution shall be based on merit assessed through a transparentand reasonable evaluation namely CLAT operated by the Society,Cprior to admitting any student. Provided that nothing in this provisionshall be deemed to prevent a Member institution from makingspecial provisions for the employment or admission of women,persons with disabilities or for persons belonging to any sociallyand educationally backward classes of citizens and, in particular,for the Scheduled Castes and the Scheduled Tribes.”D

9. The Consortium successfully conducted the CLAT for admissionin academic year 2019-20. In academic year 2020-21 Consortium notifiedthe schedule for admission in which 10.05.2020 was fixed for CLAT2020 test. Due to pandemic caused by the COVID-19 virus nationwidelockdown was imposed on 23.03.2020 by the Government of India. DueEto the lockdown, CLAT was required to be postponed for public healthand safety reasons. The examination scheduled for 10.05.2020 waspostponed. The Executive Committee of the Consortium on 29.06.2020resolved to shift away from physical test to centre-based online test.

10. Date 22.08.2020 was fixed for conduct of the test. However,Fdue to big jump/increase in COVID-19 cases and lockdown till 30.08.2020the examination which was scheduled to be held on 22.08.2020 waspostponed to 07.09.2020. The Executive Committee of the Consortiumreceived a communication from Professor Nirmal Kanti Chakrabarti,Vice Chancellor, NJUS, Kolkota that the West Bengal had decided toGimpose a complete lockdown on 07.09.2020. The Consortium met on28.08.2020 and postponed the examination to 28.09.2020.

11. Now, we may notice the events which took place at the end ofNLSIU. The five years degree course offered by NLSIU consists offive academic years each academic year is divided into three semesters,each term called the Trimester having a minimum of 70 working days.H

The academic term ordinarily starts from 1[st] July to 30[th] September,second starts from November to February and third starts from Marchand ends in June. After postponing of CLAT from 22.08.2020 to07.09.2020, Faculty meeting of NLSIU was held on 06.08.2020 toconsider the contingency plan to prevent zero year.

12. Faculty meeting discussed various possible solutions. It wasalso noted that as a last option a separate admission procedure should bedeveloped. A meeting of the Executive Council of NLSIU was held onl2.08.2020. In its meeting it was resolved that if there is any furtherdelay in CLAT examination, the Vice Chancellor is empowered to takeall necessary steps to ensure that the admission process of 2020-21 iscompleted in September, 2020. Again in adjourned meeting of theExecutive Council on 18.08.2020, the Executive Council reaffirmedresolution to empower the Vice-Chancellor and the University to conductthe independent admission process in the event CLAT is delayed further.Another Faculty meeting was held on 31.08.2020 where it was notedthat CLAT 2020 was postponed from 07.09.2020 to 28.09.2020. On03.09.2020 NLSIU, Bengaluru issued notice for admission to the fiveyears B.A.LL.B(Hons.) programme 2020-21 proposing to conduct NLATtest 2020 on 12.09.2020, the candidates were to attempt the examinationby 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 formwill be required to appear for the NLAT. The Test shall be anonline entrance examination to be held on 12 September, 2020.Candidates will attempt this examination using a computer deviceat their respective locations. Candidates will have to ensure thatthey can appear for the examination on the appropriate date andtime using a computer device as per the detailed specificationsthat will be provided, including video and audio inputs. NLSIUshall not be responsible for any connectivity issues, or failure ofinternet connection during the examination. NLSIU reserves theright to cancel any candidate’s examination based on misconductor examination malpractice.”

13. A press release of NLSIU for admission 2020-21 was issuedon 04.09.2020 in the above regard. NLSIU, Vice Chancellor, respondentNo.2 gave an interview with “Bar and Bench” regarding separate A

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Aadmission test, namely, NLAT by NLSIU. This writ petition was filed inthis Court on 08.09.2020 praying for following relief:

“i) ISSUE A WRIT OF CERTIORARI or any other appropriatewrit, order or direction to quash the impugned undated AdmissionsNotification released on 03.09.2020, at Annexure P-14 of theBpresent Writ Petition, issued by the Respondent No.1;

ii) ISSUE A WRIT OF CERTIORARI or any other appropriatewrit, order or direction to quash the impugned Notification forTechnical/System Requirements for the NLAT 2020;

iii) ISSUE A WRIT OF MANDAMUS or any other appropriateCwrit, order or direction to direct Respondent No.1 to admit studentsonly through CLAT;”

14. This Court on 11.09.2020 by issuing notice directed that theexamination for admission in pursuance to notification dated 04.09.2020may take place but neither the result shall be declared nor any admissionDbe made consequent thereto. Counter-affidavits have been filed byrespondent Nos.1, 2 and 3 to the writ petition to which a commonrejoinder-affidavit has been filed on behalf of the petitioner. A sur-rejoinder-affidavit has also been filed by the respondent No.1.

15. We may also notice very briefly facts in SLP(C) No.11059 ofE2020. SLP has been filed against the judgment dated 11.09.2020 of theHigh 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 Jharkhandpraying for quashing the notification dated 03.09.2020 issued by theNLSIU for declaring a separate examination for admission to its 5 yearsFLL.B(Hons.) course. The petitioners’ case in the writ petition beforethe High Court was that the petitioners have registered for CLATexamination 2020 to be conducted by the CLAT Consortium. Theychallenged the notice dated 03.09.2020 issued by NLSIU and prayedfor quashing the notice. The writ petition was dismissed by the HighCourt. Challenging the judgment of the High Court dated 11.09.2020GSLP 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 forundergraduate examination through CLAT 2020 and prepared regularlyfor the couple of years for CLAT examination. The notice dated03.09.2020 by NLSIU came as surprise to the applicants, aggrieved byHthe said notice they filed writ petition in the High Court.

16. We have heard Shri Nidesh Gupta, learned senior counsel andShri Gopal Sankaranarayan, learned senior counsel, for the petitioners.Shri Arvind Datar, learned senior counsel for respondent No.1, Shri SajanPoovayya, learned senior counsel for respondent No.2 and Shri P.S.Narasimha for respondent NO.3. Shri Nikhil Nayyar, learned seniorcounsel, has appeared for petitioner in SLP as well as in IA No.91083 of2020.

17. Shri Nidhesh Gupta, learned senior counsel for the petitionersubmits that the notification dated 03.09.2020 issued by respondent No.1notifying separate admission test ‘NLAT’ is in breach of statutoryprovisions of Act, 1986. The admission notice dated 03.09.2020 issuedby respondent No.1 relies on the meeting of the Executive Council ofthe University dated 12.08.2020 and 18.08.2020 as well as Facultymeeting dated 06.08.2020. It is submitted that under the Act, 1986 it isthe Academic Council of NLSIU which has been empowered under theAct, 1986 with regard to admission of the students. The Executive Councilhas no power. Shri Gupta submits that Section 13 empowers the ExecutiveCouncil to frame Regulations to provide for administration andmanagement of affairs of the School. Second proviso of which Sectionstipulates that except with the prior concurrence of the AcademicCouncil, Executive Council shall not make any regulation affecting modeof enrolment or admission of students. He submits that respondent No.1before issuing the notice dated 03.09.2020 has not conducted any meetingof Academic Council nor there is any resolution or concurrence ofAcademic Council with regard to the mode of admission as notified on03.09.2020. Shri Gupta refers to provisions of Act, 1986 especiallySchedule to the Act in which powers and functions of the ExecutiveCouncil as well as powers and duties of Academic Council have beenenumerated. He submits that powers and duties of the Academic Councilas enumerated in Act, 1986 specifically contains power to appointCommittees for admission to the School whereas in the duties and thefunctions of the Academic Council, there is no power which indicatesthat it is the Executive Council which shall take decision regarding modeand manner of the admission of the students. He submits that thenotification dated 03.09.2020 not being backed by any recommendationof the Academic Council could not have been issued by the respondentNo.1. Admission notice being not in accordance with statutory provisionsof Act, 1986 is liable to be set aside on this ground alone. Referring tothe Minutes of meetings of the Executive Council dated 29.08.1987 to AB

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A30.08.1987 as relied by respondent No.1 in its counter-affidavit, ShriGupta submits that it was Academic Council which met on 12.12.1987and finalized procedure for admission as has been brought on record inthe counter-affidavit of respondent No.1 himself. Thus, with regard toprocedure for admission of the students, it is Academic Council whichhas to take a decision. Shri Gupta further submits that NLSIU being aBmember of Consortium it was obliged to admit the students in NLSIU onthe basis of the CLAT examination 2020. The decision to conduct acombined test for all Universities including respondent No.1 was adecision which was arrived on the direction issued by this Court in VarunBhagat vs. UOI and after due deliberations made by University GrantsCCommission, Ministry of Human Resource Development and Bar Councilof India. Referring to Bye-Laws of the Consortium, Shri Gupta submitsthat respondent No.1 was obliged to follow the Bye-Laws it having agreedto abide by the rules of the Consortium. Respondent No.1 being stillcontinuing as member of Consortium had no authority or jurisdiction toproceed to conduct a separate test NLAT for admission for the yearD2020-21. Shri Gupta submits that the reason given by respondent No.1to proceed to take separate test for admission for the year 2020-21 thatit was done to avoid zero year, is also not correct. It is submitted thatthere were ways and means to complete the teaching in all threeTrimesters which is being observed by respondent No.1. Shri GuptaEsubmits that the CLAT examination 2020 being scheduled for September28, 2020 is in September 2020 itself, there was no occasion for respondentNo.1 to rush for a separate admission. Shri Gupta further submits that inCLAT 2020, there have been more than 78,000 registrations where inNLAT there have been only about 26,000. He submits that it isinconceivable that such a large number of students who aspire fromFrespondent No.1 would not appear. Shri Gupta further submits that thetest conducted by respondent No.1 on 12.09.2020, i.e., home proctoredtest cannot ensure transparency, fairness and integrity. Shri Guptareferred to the counter-affidavit filed by respondent No.2 dated 25.08.2020in Writ Petition No.4848 of 2020 filed before Delhi High Court whereGwrit petitioner prayed that CLAT may be conducted as home basedexamination. Counter-affidavit was filed on behalf of Consortium throughits Secretary, the respondent No.2 stating that a home based online testfor around 78,000 students could not be possible the test will be completelycompromised. He submits that even after taking that stand in affidavit,respondent No.2 proceeded to hold the NLAT 2020 as a home proctoredH

examination. He submits that examination held on 12.09.2020, whichwas of 45 minutes with 40 marks was the examination conducted withlack of transparency and fairness. Large scale irregularities, malpracticeswere noticed in examination on 12.09.2020. Respondent No.2 has helda retest on 14.09.2020. Respondent No.1 itself has admitted that therehave been malpractices and complaints were lodged for criminalinvestigation. Shri Gupta further submits that respondent No.2 neverbrought into the notice of Consortium that it is proposing to hold separatetest, the decisions in the meetings of Executive Council dated 12.08.2020and 18.08.2020 were never shared by respondent No.2 with theConsortium. Suddenly, respondent No.1 issued notice dated 03.09.2020which has taken the Consortium by surprise. Shri Gupta further submitsthat separate test conducted by respondent No.1 is not in the students’interest, 78,000 students have registered for CLAT 2020 and more than2/3[rd] students give preference for respondent 1. The short notice ofexamination to conduct home based examination deprived a large numberof marginal section of the society especially those who could not affordto have means to join in the examination from their home due to lack oftechnical support. The technical requirement, which was prescribed byadmission notice, was not easy to fulfill by a poor student, which deprivedlarge number of marginal students to participate. Shri Gupta submitsthat CLAT examination is scheduled on 28.09.2020 and respondent No.1on the basis of CLAT examination can very well complete its admissionand start its course by mid of October and there was no suchinsurmountable difficulty as claimed by respondent No.1 for hurriedlyconducting the separate test. Shri Gupta submits that admission noticemay be set aside and the admission in the Respondent No.1 may also betaken on the basis of CLAT examination 2020, which is scheduled to beheld on 28.09.2020.

18. Shri Gopal Sankaranarayan, learned senior counsel, appearingfor petitioner No.1 submits that unilateral withdrawal from CLAT 2020by respondent No.1 was not possible. The students have been preparingfor CLAT 2020 in a particular method, suddenly they are told by respondentNo.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, therewas no indication by respondent No.2 that in case the CLAT is postponedhe will hold a separate entrance test for admission in respondent No.1.The notification dated 03.09.2020 suddenly comes surprising all. On12.09.2020 respondent No.1 has conducted three exams and a retest on AB

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A14.09.2020. The excuse of zero year is a bogey. The zero year cannotbe 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 contendsthat writ petitioners have no locus to file this writ petition, no detailsBhave been given with regard to ward of petitioner No.1 who claims to beaspirant to CLAT 2020. Petitioner No.2 who is a former Vice-Chancellorof the respondent No.1 and at present Chairperson of Private LawCollege has no locus to challenge the admission notification dated03.09.2020. He submits that at best it could have been Consortium whichcan be said to be aggrieved which has not come to the Court. It is due toCinordinate delay in conducting CLAT 2020 that the respondent No.1 hadno option except to proceed to hold a separate test to save academicyear 2020 from being declared as a zero year. It is submitted that NLSIUmaintains trimester system divided into three academic terms each witha minimum of 70 working days. It is submitted that unless first trimesterDstarts from 18.09.2020, respondent No.1 could not complete its all thethree trimesters. It is submitted that respondent No.1 has made bonafideefforts to convince Consortium to conduct the CLAT 2020 in a timelymanner. It is submitted that Faculty of NLSIU at their meeting on06.08.2020 resolved that NLSIU need to take all necessary steps toavoid zero year. The Executive Council in its meetings on 12.08.2020Eand 18.08.2020 resolved unanimously that if there is a further delay inCLAT, the Vice-Chancellor is empowered to take all necessary steps toensure that the Admissions Process for 2020-21 is completed inSeptember, 2020. NLSIU, being left with no other alternative, had to actwith alacrity to complete the admissions process and commence classes Fby 18.09.2020 and avoid a ‘zero year’.

20. Shri Datar submits that under Section 10, the Executive Councilis the chief executive body of the School, which has right ofadministration, management and control of the School. He submits thatright of administration and management encompasses right to admitGstudents, hence, the Executive Council has right to take decision regardingadmission of the students. He has referred to first Executive Councilmeeting dated 29.08.1987/30.08.1987 wherein the mode of admissionwas decided by the Executive Council as by a common entrance test.The determination of the method of admission to NLSIU vests underthe statute with Executive Council. Referring to second proviso to SectionH

13 of Act, 1986 Shri Datar submits that no regulation has yet been framedregarding admission, second proviso has no application. At present thereare no regulations in place regarding admission in NLSIU hence it wasnot necessary to obtain prior concurrence of Academic Council foradmission in NLSIU. Further Vice Chancellor has emergency powersunder Clause 18(5) of Schedule to the Act, 1986, with regard to compliancewith the Bye-Laws of Consortium. Shri Datar submits that Bye-Lawscannot detract or inhibit plenary statutory power conferred on theExecutive Council by Act, 1986. The process for admission initiated bynotice 03.09.2020 has been held in a transparent manner. Applicationfee for the test is limited for just Rs.150/-(for General Categorycandidates) and Rs.125/-(for SC/ST candidates) so that it was easilyaccessible to all students. The examination is online home proctoredexamination hence students do not go out for additional test centres.With a view to check malpractice, NLAT has taken extensive precautionsin the form of human and AI proctoring, as also pre-exam, during-examand post-exam checks, to prevent malpractice. Extensive technologicaland other measures are implemented to ensure that any candidateattempting any form of malpractice is caught and disqualified from theprocess, either during the examination itself or during the post-examinationaudit and scrutiny. While the examination is ongoing human proctors andsuper-proctors also received live data on the candidates and areempowered to warn candidates and even disqualify them, if they noticeany form of malpractice. NLSIU has appointed a leading audit firm tocarry out an independent forensic audit and assessment of the variousdata relating to the examination and submit a report. It is submitted thatstudents during the examination were given different batch of questionpapers to rule out any kind of malpractice. The various reports made inelectronic media are not credible and cannot be a ground for provingallegation that in examination held on 12.09.2020 and 14.09.2020 anymalpractices were adopted. Insofar as the allegation that the paper wasleaked on 14.09.2020, it is submitted that allegation is of downloading ofthe papers in the last 15 minutes of the examination, which has not inany way affected integrity of examination. Shri Datar submits that theallegation made by the petitioner cannot be gone into and determinedregarding conduct of the examination dated 12.09.2020, in proceedingsunder Article 32 of the Constitution. There is no violation of Article 14 ofthe Constitution of India, all students were invited to register themselvesin NLAT only on the fee of Rs.150/-. About 26,000 students appeared in AB

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Athe examination. Shri Datar has very fairly submitted that respondentNo.1 is still member of the Consortium and separate examinationconducted is only for the year 2020-21 and from the next year NLSIUshall conduct admission on the basis of CLAT examination to be held bythe Consortium. He further submits that decision for postponement ofthe CLAT examination on 28.08.2020 was not unanimous and protestBwas raised by respondent No.2 and he did not sign the proceedings. Hefurther submits that difficulty of respondent No.1 of it having trimesterswas pointed by the respondent No.2 in the meeting of the ExecutiveCouncil of the Consortium. The conduct of the respondent No.2 wasbonafide and all actions were taken by respondent No.1 in the interestCof the respondent No.1.

21. Shri Datar submits that due to postponement of examinationby Consortium of CLAT 2020 beyond 07.09.2020 the purpose ofsuccessfully conducting trimesters by respondent No.1 was frustrated.

22. Shri Sajan Poovayya, learned senior counsel appearing forDrespondent No.2 submits that respondent No.2 was bound by theresolution taken by Executive Council on 12.08.2020 and 18.08.2020. Inthe Faculty meeting dated 06.08.2020 decision was taken to choose thebest option. He submits that it was a General Body of the Consortiumwhich could have taken decision to adjourn the CLAT examination. TheEdecision dated 28.08.2020 to postpone the examination from 07.09.2020to 28.09.2020 was taken by Executive Committee of the Consortiumwhich had no authority. There is no power delegated to ExecutiveCommittee to take a decision. Till 05.08.2020 the respondent No.2 hasnot done anything for separate examination. On 31.08.2020 the entireFaculty again met and decided for home-based computer test.F

23. Shri P.S. Narasimha, learned senior counsel, appearing forrespondent No.3, Consortium has referred to developments leading toformation of Consortium, he has also referred to the orders of this Courtin writ petition in Varun Bhagat vs. Union of India and ShamnadBasheer vs. Union of India (supra). He submits that due to judicialGinterventions 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 AdmissionTest for the benefit of admissions of all its members. The Consortiumand all the members of the Society ought not to be relegated to theHstatus of a private society or club. He submits that although Universities joining the Consortium have done so voluntarily but the fact remains thatstatutorily set up Universities bear statutory duties, who have cometogether to form Consortium to achieve a statutory purpose. With theformation of the Consortium, statutory obligations of the respectiveUniversities to regulate their admission procedure stands jointlycrystallized and vested in the Consortium. In effect, the Consortium todayundertakes a statutory function in furtherance of a laudable publicpurpose. The Bye-Laws of the Consortium is to be harmoniously readwith the statutory prescriptions of the respective Universities under theState legislations. The institutional integrity of the Consortium which hasbeen achieved after long process must be preserved and facilitated thepurpose for which it is established. He submits that it must rigorouslydemonstrate transparency and uphold the trust reposed on it by itsbeneficiaries. He submits that the Consortium was kept in dark aboutthe decision of the respondent Nos.1 and 2 to hold a separate entranceexamination until the issuance of notification dated 03.09.2020. In theConsortium meeting dated 10.08.2020 respondent No.2 did not informabout the Faculty meeting dated 06.08.2020. Further, respondent No.2failed to disclose the decisions arrived at the Executive Council meetingsdated 12.08.2020 and 18.02.2020 to the Consortium in its meeting dated28.08.2020.

24. The Consortium while conducting the CLAT essentiallyundertakes a statutory public duty and must not betray the trust reposedin it by the aspirants. The abrupt decision of respondent No.1 to hold itsown examination, without taking Consortium into confidence, underminesthe credibility of the Consortium.

25. Shri Nayyar appearing for the SLP petitioners as well as inI.A.No.91083 of 2020 submits that applicants are the students who haveregistered themselves for CLAT 2020 and they have challenged thenotice dated 03.09.2020 in the Jharkhand High Court which writ petitionhas been dismissed resulting in filing of SLP(C)No.11059 of 2020. Theapplicants have also filed I.A.No.91083 of 2020 in the Writ PetitionNo.1030 of 2020 and have supported the cause of the writ petition. ShriNayyar further submits that the above applicants have also appeared inthe examination held on 12.09.2020. He submits that all India tests arebeing conducted which has its own benefits. Shri Nayyar submits thatwhen the decision was taken by the Consortium on 18.05.2020 topostpone the examination fixed for 21.06.2020 it was mentioned that 21

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Adays notice will be given to the students for fixing a date. Shri Nayyarhas also submitted that the test which was conducted on 12.09.2020was neither transparent nor fair. Mock test was held only one day before.Shri Nayyar submits that there is negative marking of .25 in not answeringa question which was not a condition in the CLAT. He submits that oneof the reasons for respondent to proceed to hold separate test is allegedBloss of 17 crores which cannot be a relevant reason.

26. Shri Gopal Sankaranarayan, learned counsel appearing forthe petitioner also contended that the Academic Council consists of Judgesof the Supreme Court, which meetings were neither called nor convenedby the respondent No.1. He reiterates that it is the Academic CouncilCwhich was body competent to take decision regarding admission andprocedure of admission. He has referred to Clauses 13 and 14 of theSchedule to Act, 1986.

27. Learned counsel for the parties have also referred to severaljudgments of this Court which shall be referred to while considering theDsubmissions of the parties.

28. We have considered the submissions of the parties and haveperused the records.

29. From submissions of the learned counsel for the parties andEpleadings, 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 byrespondent No.1 could have been issued only afterrecommendations to that effect by the Academic Council,Fwhich is the statutory authority under the Act, 1986 foradmission of the students to the five year integratedB.A.LL.B. (Hons.) Programme 2020-2021?

(3) Whether the respondent No.1 being founder member ofConsortium of National Law Universities, a registered society,Gis bound by its Bye-Laws and was obliged to admit the studentsfor integrated B.A.LL.B. (Hons.) Programme through CLAT2020?

(4) Whether online home proctored examination as proposed bynotification dated 03.09.2020, lacks transparency, was againstH

the very concept of fair examination and violative of the rightsof the students under Article 14 of the Constitution?

(5) Whether NLAT held on 12.09.2020 with retest on 14.09.2020was marred by malpractices and deserves to be set aside?

QUESTION NO.1

WHETHER THE PETITIONERS HAVE LOCUS TO FILETHE WRIT PETITION?

30. Shri Arvind P. Datar, learned senior counsel appearing for therespondent No.1 has questioned the maintainability of the writ petition atthe instance of petitioner Nos. 1 and 2. He submits that petitioner No.1claimed to be father of an aspiring law student, however, no materials ofwhich have been placed on record to depict the said fact. The petitionerNo.2 is the Chairperson of a private Law College, which college is notthe member of Consortium, hence, respondent No.2 is not aggrieved inany manner.

31. The objection raised by learned senior counsel for therespondent has been refuted by the learned counsel for the petitioners.It is submitted that the writ petition, which has been filed in a publicinterest is fully maintainable at the instance of the petitioners. It issubmitted that petitioner No.1 being parent of an aspiring law studentcan very well maintain the writ petition to secure the future of his ward.The petitioner No.2 has been the Ex-Vice Chancellor of respondentNo.1 and was founder member of the Consortium, which was registeredas society under Karnataka Societies Registration Act, 1960. It issubmitted that petitioner No.2, who has been at the helm of affairs andhas been associated with legal education has every right to espouse thecause of education and students.

32. It is true that although petitioner No.1 claimed to be parent ofan aspiring law student but no details have been given in the writ petitionor in the common rejoinder affidavit as to whether the ward of petitionerNo.1 is applicant to CLAT, 2020. The petitioner No.1 in the writ petitionhas pleaded that he is parent of a CLAT 2020 aspirant, who also seeksto represent various such similarly placed students across the nation,who are aggrieved. In paragraph 5 of the writ petition, following hasbeen pleaded:- A

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A“5. It is quite important to note that the petitioner No.2herein is a notable legal scholar whose involvement in thedevelopment of legal education in India and moreparticularly the respondent No.1 University is paramount.The petitioner No.2 has previously served as the ViceChancellor of the respondent No.1 University and has alsoBclosely contributed to the development of CLAT. Thepetitioner No.2 with his vast experience in the academicsector, pertinently in the legal academia and even morepertinently with the respondent No.1 University, isaggrieved by the arbitrary conduct of the respondent No.1CUniversity……..”

33. Even though with regard to petitioner No.1, details of his wardhas not been given except that petitioner No.1 is a parent of CLAT 2020student 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.DThe affidavit in support of the writ petition has been sworn by petitionerNo.2. A common rejoinder affidavit has also been sworn by petitionerNo.2. The Memorandum of Association of Consortium of National LawUniversities, which is a registered society under Karnataka SocietiesRegistration Act, 1960 registered on 26.03.2019 contains a list of InitialMembers Subscribers of the Consortium in which name of petitionerENo.2 was mentioned as Member Subscriber No.1. Petitioner No.2 beingVice-Chancellor of respondent No.1 became the ex-officio SecretaryTreasurer of the Society, his details are also mentioned in paragraph 7 ofthe Memorandum. A person, who has worked as Vice-chancellor ofrespondent No.1 and was also member of Consortium, which is entrusted Fto conduct CLAT, he is fully competent to espouse the cause of educationby means of the writ petition. We, thus, reject the objection of therespondent that petitioners have no locus to file the writ petition. It isalso relevant to notice that alongwith the writ petition a Special LeavePetition (C) No.11059 of 2020 has been listed, which has been filed by

five petitioners, who were candidates for CLAT 2020-2021. TheGadmission notice dated 03.09.2020 was challenged by them by means ofa Writ Petition (C) No.2454 of 2020 in High Court of Jharkhand at Ranchi,which writ petition was dismissed. Challenging which judgment, theyhave filed the aforesaid special leave petition.

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34. The above five petitioners have also filed an application I.A.No. 91083 of 2020 in Writ Petition (C) No.1030 of 2020 to intervene inthe matter, they being affected and aggrieved persons by the noticedated 03.09.2020. Those students, who are aggrieved by the admissionnotification dated 03.09.2020 are also before this Court, who have beenrepresented by Shri Nikhil Nayyar, learned senior counsel.

35. We, thus, are of the view that issues raised have to be decidedon merits rejecting the objection of respondent No.1 regarding locus.

QUESTION NO.2

WHETHER THE ADMISSION NOTIFICATION DATED03.09.2020 BY RESPONDENT NO.1 COULD HAVE BEENISSUED ONLY AFTER RECOMMENDATIONS TO THATEFFECT BY THE ACADEMIC COUNCIL, WHICH IS THESTATUTORY AUTHORITY UNDER THE ACT, 1986 FORADMISSION OF THE STUDENTS TO THE FIVE YEARINTEGRATED B.A.LL.B. (HONS.) PROGRAMME 2020-2021?

36. As noted above, submission of Shri Nidesh Gupta, learnedsenior counsel for the petitioners is that it is the Academic Council ofrespondent No.1, which is the statutory authority under Act, 1986 totake decision regarding admission of the students in integrated B.A.LL.B.(Hons.) Programme. Shri Arvind Datar, learned senior counsel appearingfor the respondent No.1 has relied on Minutes of the Executive Councildated 12.08.2020 and 18.08.2020 and contends that the Executive Councilof the respondent No.1 is fully authorised and entitled to take a decisionregarding admission of the students and the actions taken by the Vice-Chancellor in pursuance of the aforesaid decision of the Executive Councilare fully valid and are in accordance with the provisions of the Act,1986.

37. Before we enter into the respective submissions of the learnedcounsel for the parties regarding above question, we may notice theprovisions of the statute in the above regard.

38. National Law School of India Act, 1986 was enacted toestablish and incorporate National Law School of India University atBengalore (now Bengaluru). Under Section 8, authorities of the schoolshave been enumerated, which includes the Executive Council as well asthe Academic Council. Section 10 deals with the Executive Council,which is to the following effect:-

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A“10. The Executive Council.-

(1) The Executive Council shall be the chief executive bodyof the School.

(2) The administration, management and control of theSchool and the income thereof shall be vested with the ExecutiveBCouncil which shall control and administer the property and fundsof the School.”

39. Section 11 of the Act deals with Academic Council in followingmanner:- “11. The Academic Council.- The Academic Council shall beCthe academic body of the School, and shall, subject to the provisionsof this Act and the regulations, have power of control and generalregulation of, and be responsible for, the maintenance of standardsof instruction, education and examination of the School, and shallexercise such other powers and perform such other duties asDmay be conferred or imposed upon it by this Act or the regulations.It shall have the right to advise the Executive Council on allacademic matters.”

40. The Executive Council is empowered to frame Regulations toprovide for the administration and management of the affairs of theEschool under Section 13 of the Act. Section 13 of the Act, which isrelevant for the present case is as follows:- “-13. Regulations.

(1) Subject to the provisions of this Act, the ExecutiveCouncil shall have, in addition to all the other powers vested in it,Fthe power to frame regulations to provide for the administrationand management of the affairs of the School:

Provided that the Executive Council shall not make anyregulation affecting the status, powers or constitution of anyauthority of the School until such authority has been given anGopportunity of expressing an opinion in writing on the proposedchanges, and any opinion so expressed shall be considered by theExecutive Council; Provided further that except with the prior concurrence ofthe Academic Council, the Executive Council shall not make, amend H

or repeal any regulation affecting any or all of the following matters,namely:- A

(a) the constitution, powers and duties of the AcademicCouncil; (b)the authorities responsible for organising teaching inBconnection with the School courses and relatedacademic programmes;

(c) the withdrawal of degrees, diplomas, certificates andother academic distinctions; (d)the establishment and abolition of faculties,Cdepartments, halls and institutions; (e)the institution of fellowships, scholarships, studentships,exhibitions, medals and prizes; (f)conditions and modes of appointment of examinersor conduct or standard of examinations or any otherDcourse of study; (g)mode of enrolment or admission of students; (h)examinations to be recognised as equivalent to schoolexaminations.

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(2) The Academic Council shall have the power to proposeregulations on all the matters specified in (a) to (h) above andmatters incidental and related thereto in this regard.

(3) Where the Executive Council has rejected the draft ofa regulation proposed by the Academic Council, the AcademicCouncil may appeal to the Chancellor and the Chancellor, may, byorder, direct that the proposed regulation may be laid before thenext meeting of the General Council for its approval and thatpending such approval of the General Council it shall have effectfrom such date as may be specified in that order:

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Provided that if the regulation is not approved by the GeneralCouncil at such meeting, it shall cease to have effect.

(4) All regulations made by the Executive Council shall besubmitted, as soon as may be, for approval, to the Chancellor andto the General Council at its next meeting, and the General Council H

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shall have power by a resolution passed by a majority of not lessthan two thirds of the members present, to cancel any regulationmade by the Executive Council and such regulations shall fromthe date of such resolution cease to have effect.”

41. Section 18 deals with authorities and officers of the school,Btheir composition, powers and functions, subject to the provisions of theAct have been specified in the Schedule or as may be provided by theRegulations. Section 18 is to the following effect:- “18. Authorities and officers of the School etc.- The authorities of the School and their composition, powers,Cfunctions and other matters relating to them, the officers of theSchool and their appointment, powers, functions and other mattersrelating to them and all other matters relating to the finances,powers, teaching, administration and management of the affairsof the School shall, subject to the provisions of this Act be asDspecified in the Schedule or as may be provided by the regulations.”

42. The Schedule provides for Membership of the ExecutiveCouncil, Term of the Executive Council and powers and functions of theExecutive Council, Clause 9 of the Schedule, which provides for powersand functions of the Executive Council is to the following effect:-

E“9. Powers and functions of the Executive Council.- Without prejudice to clause 5, the Executive Council shallhave the following powers and functions, namely:-

(1) to appoint, from time to time, the Vice Chancellor, theRegistrar, the Librarian, Professors, Associate Professors,FAssistant Professors and other members of the teaching staff, asmay be necessary, on the recommendations of the selectioncommittee constituted by regulations for the purpose:

Provided that no action shall be taken by the ExecutiveCouncil, except in cases covered by the second proviso, in regardGto the number, qualifications and emoluments of teachers,otherwise than after consideration of the recommendations of theAcademic Council:

Provided further that it shall not be necessary to constituteany selection committee for making appointments,- H

(a) to any supernumerary post; or

(b) to the post of professor of a person of high academicdistinction, eminence and professional attainment invited by theExecutive Council to accept the post;

(2) to create administrative, ministerial and other necessaryposts, to determine the number and emoluments of such posts, tospecify minimum qualification for appointment to such posts andto appoint persons to such posts on such terms and conditions ofservice as may be prescribed by the regulations made in this behalf,or to delegate the powers of appointments to such authority orauthorities 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 ofabsence other than casual leave to any officer of the School andto make necessary arrangements for the discharge of the functionsof such officer during his absence;

(4) to manage and regulate the finances, accounts,investments, property, business and all other administrative affairsof the School and for that purpose to appoint such agents, as itmay think fit;

(5) to invest any money belonging to the School, includingany unapplied income, in such stock, funds, shares or securities,as it may from time to time, think fit or in the purchase of immovableproperty in India, with the like power of varying such investmentsfrom time to time;

(6) to transfer or accept transfers of any movable orimmovable property on behalf of the School;

(7) to enter into, vary, carry out and cancel contracts onbehalf of the School and for that purpose to appoint such officersas it may think fit;

(8) to provide the buildings, premises, furniture and apparatusand other means needed for carrying on the work of the School;

(9) to entertain, adjudicate upon, and if it thinks fit, to redressany grievances of the officers of the School, the teachers, the A

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students and the School employees, who may, for any reason,feel aggrieved, otherwise than by an act of a court;

(10) to appoint examiners and moderators, and if necessaryto remove them and to fix their fees, emoluments and travellingand other allowances, after consulting the Academic Council; B

(11) to select a common seal for the School and to providefor the custody of the seal; and

(12) to exercise such other powers and to perform suchother duties as may be conferred or imposed on it by or under thisAct.”

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43. Clause 13 deals with membership of the Academic Counciland Clause 14 provides for powers and duties of the Academic Council.Clause 14 is as follows:- “14. Powers and duties of the Academic Council.- D

Subject to the provisions of this Act and the regulations theAcademic Council shall, in addition to all other powers vested init, have the following powers, namely:-

(1) to report on any matter referred or delegated to it bythe General Council or the Executive Council; E

(2) to make recommendations to the Executive Council withregard to the creation, abolition or classification of teaching postsin the School and the emoluments and the duties attached thereto;

(3) to formulate and modify or revise schemes for theorganisation of the faculties, and to assign to such faculties theirrespective subjects and also to report to the Executive Council asto the expediency of the abolition or sub-division of any faculty orthe combination of one faculty with another; F

(4) to make arrangements through regulations for theinstruction and examination of persons other than those enrolledGin 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; H

(7) to appoint committees for admission to the School;

(8) to recognise diplomas and degrees of other universitiesand institutions and to determine their equivalence in relation tothe diplomas and degrees of the School;

(9) to fix, subject to any conditions accepted by the GeneralCouncil, the time, mode and conditions of competition forfellowships, scholarships and other prizes, and to award the same;

(10) to make recommendations to the Executive Council inregard to the appointment of examiners and if necessary theirremoval and the fixation of their fees, emoluments and travellingand other expenses;

(11) to make arrangements for the conduct of examinationsand to fix dates for holding them;

(12) to declare the result of the various examinations, or toappoint committees or officers to do so, and to makerecommendations regarding the conferment or grant of degrees,honours, diplomas, licences, titles and marks of honour;

(13) to awards stipends, scholarships, medals and prizesand to make other awards in accordance with the regulations andsuch 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 timeto time, prescribed by regulations; and

(16) to perform, in relation to academic matters, all suchduties and to do all such acts as may be necessary for the propercarrying 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 counselfor the parties. As noted above, the question, which is up for considerationis as to whether with regard to admission of students, recommendationof the Academic Council is statutory requirement or not.

45. Shri Datar submits that as per Section 10, the Executive Councilis the Chief Executive Body of the school and the administration, A

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Amanagement and control of the school is vested with the ExecutiveCouncil, hence, with regard to admission of students, power is vestedwith the Executive Council. He submits that admission of students isone of the facets of administration. He has relied on judgment of thisCourt in T.M.A. Pai Foundation and Ors. Vs. State of Karnatakaand Ors., (2002) 8 SCC 481 where in paragraph 50 of the judgment,Bthis court held that right to establish and administer broadly comprisedright to admit students. Paragraph 50 is as follows:- “50. The right to establish and administer broadly comprises ofthe following rights:- C(a) to admit students:

(b) to set up a reasonable fee structure:

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching); and D(e) to take action if there is dereliction of duty on the part ofany employees.

46. There can be no dispute that Executive Council is the ChiefExecutive Body of the school and the administration, management andcontrol of the school is vested in the Executive Council and in theEadministration, right to admit the students is included but the Statute hasto be further looked into to find out as to whether there are any otherstatutory provisions to regulate the admission of students or there is anyother authority of the school, which is vested with the power to takedecision regarding admission of the students.

F47. To buttress his submission, Shri Gupta has placed reliance onsecond proviso of Section 13 of the Act as noted above. Section 13(1)empowers the Executive Council to frame Regulations to provide forthe administration and management of the affairs of the school. However,the power of Executive Council to frame regulations is conditioned bysecond proviso, which is to the following effect:-G

“Provided further that except with the prior concurrence of theAcademic Council, the Executive Council shall not make, amendor repeal any regulation affecting any or all of the following matters,namely:- XXXXXXXXXXXXXXXxH

(g) mode of enrolment or admission of students; XXXXXXXXXXXXXXX”

48. Shri Datar submits that there can be no quarrel with thestatutory requirement as contained in second proviso to Section 13, he,however, submits that the second proviso of Section 13 is not applicablein the present case, since no regulations have been framed regardingenrolment or admission of students. When no regulations have beenframed and Executive Council has not proposed any regulation oramendment therein, the embargo under second proviso is not attracted.Shri Datar further submits that the power under Section 13 to frameregulations is a separate and independent power. When the power isgiven to the Executive Council under Section 10, he submits that even ifno regulations were framed by Executive Council under Section 13, itcan very well exercise its general power conferred by Section 10 of theAct. Shri Datar has placed reliance on judgment of this Court in PTCIndia Limited Vs. Central Electricity Regulatory Commission,(2010) 4 SCC 603. The Constitution Bench of this Court in the abovecase had occasion to consider various provisions of Electricity Act, 2003.Section 79 of the Act enumerated the functions of Central Commissionwhereas Section 178 empowers the Central Commission to makeregulations. This Court held that the functions of Central Commissionenumerated in Section 79 are separate and distinct from functions ofCentral Commission under Section 178, following was laid down inparagraphs 53 and 55:- “53. Applying the abovementioned tests to the scheme of the 2003Act, we find that under the Act, the Central Commission is adecision-making as well as regulation-making authority,simultaneously. Section 79 delineates the functions of the CentralCommission broadly into two categories - mandatory functionsand advisory functions. Tariff regulation, licensing (including inter-State trading licensing), adjudication upon disputes involvinggenerating companies or transmission licensees fall under the head“mandatory functions” whereas advising the Central Governmenton formulation of National Electricity Policy and tariff policy wouldfall under the head “advisory functions”. In this sense, the CentralCommission is the decision-making authority. Such decision-makingunder Section 79(1) is not dependent upon making of regulationsunder Section 178 by the Central Commission. Therefore, functions A

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of the Central Commission enumerated in Section 79 are separateand distinct from functions of the Central Commission underSection 178. The former are administrative/adjudicatory functionwhereas the latter are legislative.

55. To regulate is an exercise which is different from making ofthe regulations. However, making of a regulation under Section178 is not a precondition to the Central Commission taking anysteps/measures under Section 79(1). As stated, if there is aregulation, then the measure under Section 79(1) has to be inconformity with such regulation under Section178.………………………”

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49. We may notice another judgment of this Court in V.T.Khanzode and Ors. Vs. Reserve Bank of India and Anr., (1982) 2SCC 7. Section 58(1) of the Reserve Bank of India Act, 1934 providedthat the Central Board may, with the previous sanction of the CentralGovernment, make regulations consistent with this Act to provide for allDmatter for which provision is necessary or convenient for the purpose ofgiving effect to the provisions of this Act. No regulations were framedunder Section 58(1). Argument was raised that conditions of servicecannot be framed by administrative circulars but must be framed by theregulations made under Section 58 of the Act. Repelling the saidEargument, this Court laid down following in paragraph 18:- “18. In support of this submission, reliance is placed by the learnedCounsel on the statement of law contained in paragraphs 1326and 1333 (pages 775 and 779) of Halsbury’s Laws of England, 4[th]Edn. In paragraph 1326 it is stated that:

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Corporations may be either statutory or non-statutory anda fundamental distinction exists between the powers and liabilitiesof the two classes. Statutory corporations have such rights andcan do such acts only as are authorised directly or indirectly bythe statutes creating them; non-statutory corporations, speakingGgenerally, can do everything that an ordinary individual can dounless restricted directly or indirectly by statute.

Paragraph 1333 says that :

The powers of a corporation created by statute are limitedand circumscribed by the statutes which regulate it, and extendHno further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of itsincorporation, or may be fairly regarded as incidental to, orconsequential upon, these things which the legislature hasauthorised. What the statute does not expressly or impliedlyauthorise is to be taken to be prohibited.

There is no doubt that a statutory corporation can do only suchacts as are authorised by the statute creating it and that, the powersof such a corporation cannot extend beyond what the statuteprovides expressly or by necessary implication. If an act is neitherexpressly or impliedly authorised by the statute which creates thecorporation, 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 framestaff 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 thenature of an enabling provision under which the Central Board“may” make regulations in order to provide for all matters forwhich it is necessary or convenient to make provision for thepurpose of giving effect to the provisions of the Act. This provisiondoes not justify the argument that staff regulations must be framedunder it or not at all. The substance of the matter is that the CentralBoard has the power to frame regulations relating to the conditionsof service of the Bank’s staff. If it has that power, it may exerciseit either in accordance with Section 58(1) or by acting appropriatelyin the exercise of its general power of administration andsuperintendence.”

50. We find substance in the submission of Shri Datar that powerunder Section 13 empowering the Executive Council to frame regulationsand power under Section 10 to administer, manage and control the schoolare two separate powers and even though the regulations have not beenframed under Section 13 regarding admission of the students, theExecutive Council can very well exercise its power under Section 10 toadminister, manage and control the affairs of the school. However, theprovisions contained in Section 13 throw considerable light on the statutoryscheme. The second proviso providing for prior concurrence of theAcademic Council on enumerated subjects including “mode of enrolmentand admission of students” has been provided for since under the Schemeof the Statute it is the Academic Council which has been empowered to A

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Atake decisions regarding mode of enrolment or admission of students,which we shall notice hereinafter. The above restriction in regulationsmaking power of the Executive Council has been engrafted with purposeand object. The subjects which are mentioned under second provisowhere prior concurrence of the Academic Council is required are allmatters which are in domain of the Academic Council, thus, even thoughBstrictly second proviso of Section 13(1) is not attracted when noregulations have been framed by the Executive Council but the objectand purpose for conditioning the exercise of regulation making power ofthe Executive Council cannot be lost sight. Sub-section(3) of section 13also contains a special provision which provides that where the ExecutiveCCouncil rejects the draft of a regulation proposed by the AcademicCouncil, the Academic Council may appeal to the Chancellor and theChancellor, may, by order, direct that the proposed regulation may belaid before the next meeting of the General Council for its approval andpending such approval of the General Council it shall have effect fromsuch date as may be specified in that order. Thus, Academic CouncilDregulations which even though rejected by the Executive Council can beallowed to operate by Chancellor and required to place before GeneralCouncil for approval and after approval it shall be operated. The aboveprovision indicates that in certain matters the recommendations of theAcademic Council has been given prominence and as per sub-section(2)Eof Section 13, the Academic Council shall have the power to proposeregulations on all the matters specified in (a) to (h) as enumerated in thesecond proviso of sub-section(1) of Section 13. Thus, Academic Councilcan propose regulations on mode of enrolment and admission of studentsalso.

F51. Now, we proceed to examine the other provisions of Statuteto find out as to whether apart from provisions of Section 13 whetherthere are any other statutory provisions empowering the AcademicCouncil to take decisions regarding admission of students. As noted above,Section 18 of the Act provides that composition, powers and functionsof the authorities of the school subject to the provisions of the Act shallGbe as specified in the Schedule. Clause 14 of the Schedule provides“subject to the provisions of this Act and the regulations, the AcademicCouncil shall, in addition to all other powers vested in it, have the followingpowers namely:- “XXXXXXXXXXXXXXXXXX

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(7) to appoint committees for admission to the School; XXXXXXXXXXXXXXXXXX

(11) to make arrangements for the conduct of examinationsand to fix dates for holding them; XXXXXXXXXXXXXXXXXX

(16) to perform, in relation to academic matters, all suchduties and to do all such acts as may be necessary for the propercarrying out of the provisions of this Act and the regulations.”

52. The above provisions in the Schedule specifically empowerthe Academic Council to appoint the committees for admission to theschool. Admissions to the school, thus, were contemplated to be underthe control of Academic Council and the appointment of committeeswas with the purpose to monitor and conduct the admission of the school.When the Act was enacted in 1986, no procedure was in place regardingadmission and the Statute empowered the Executive Council to appointcommittees for admission to the school. By virtue of Clause 14(16) withregard to appointment of committees for admission to the school, theAcademic Council was to perform “all such duties and to do all suchacts as may be necessary for the proper carrying out of the provisionsof the Act”. Thus, the above statutory provision gave all incidental powerto the Academic Council in relation to the admission.

53. Now, we contrast with the power given to the AcademicCouncil with regard to admission to the school with that of the powersand functions of the Executive Council as given in Clause 9. The powersgiven to the Executive Council under Clause 9 can be divided in threeparts (i) sub-clauses (1), (2), (3) & (9) relates to appointment and serviceconditions; (ii) sub-clauses (4), (5), (6), (7) & (8) relating to finance andproperties and (iii) other contains clauses (10), (11) and (12). Clause(11) empowers the Executive Council to select a common seal for theschool and sub-Clause (12) is a general power providing that ExecutiveCouncil to exercise such other powers and to perform such other dutiesas may be imposed.

54. We are left with only Clause i.e. sub-Clause (10) which is tothe following effect:- “to appoint examiners and moderators, and if necessary toremove them and fix their fees, emoluments and travelling andother allowances after consulting the Academic Council.”

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A55. Shri Arvind Datar while referring to power of the AcademicCouncil given in clause 14 sub-clause (11), which empower the AcademicCouncil to make arrangements for the conduct of examinations and tofix dates for holding them, submitted that the said power relate to conductof 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 meanBthat appointment of examiners and moderators is with regard to coursesrun by the school. It is relevant to notice that even the power to appointexaminers and moderators is with the condition, i.e., “after consultingthe Academic Council”. When appointment of examiners by theExecutive Council is by consultation of the Academic Council, how canCin the mode and manner of the admission of the students, the AcademicCouncil can be ignored. The Statutory Scheme of the Act as delineatedabove, thus, indicates that there is no specific power given to theExecutive Council with regard to admission of students except the generalpower of the Executive Council as contained in Section 10 whereas thestatutory provision of Clause 14 of the Schedule specifically empowersDthe Academic Council to appoint committees for admission to the school.Thus, the Statute contemplated admission to the school under the aegisof Academic Council. Sub-clause (7) of Clause 14 read with sub-clause(16) of clause 14 of Schedule clothes the Academic Council with allpowers including mode and manner of admission of the students. SectionE11 of the Act also needs to be referred to. Section 11 of the Act providesthat Academic Council shall be the academic body of the school andshall have power of control and general regulation of, and be responsiblefor the maintenance of standards of instruction, education and examinationof the school. Section 11 used the three expressions namely “power ofcontrol”, “general regulation of” and “be responsible”. The expressionsFused in the Section 11 are “maintenance of standards of instructions,education and examination of the school. It is now settled law that thestandards of education include admission to the course. The ConstitutionBench of this Court in Dr. Preeti Srivastava and Anr. Vs. State ofM.P. and Ors., (1999) 7 SCC 120 held that norms of admissions canGhave 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 admissionhave no connection with the standard of education, or that therules for admission are covered only by Entry 25 of List III. Norms H

of admission can have a direct impact on the standards ofeducation…………………”

56. When the Academic Council has been given power of control,general regulations and is responsible for maintenance of standards ofinstruction, education and examination of the school, its one of thefunctions, undoubtedly is to regulate the admission of students. Readingof Section 11 with Section 18 and clause 14 of the Schedule clearlyprovides for role of Academic Council in the admission of students.

57. At this stage, we may also refer to the meeting of the ExecutiveCouncil dated 29.08.1987 and 30.08.1987 relied by Shri Arvind Datar,learned senior counsel for the respondent No.1. The proceedings havebeen brought on the record alongwith the counter affidavit of respondentNo.1. Item No. 16 of the meeting dealt with selection of students. It isrelevant to extract the item no. 16 of the proceedings which is to thefollowing effect:- “Item No.16Selection of Students

The draft proposal of the Academic Council to have theselection of the students done through an all India admission testand interview was approved. The procedure for admission testand the selection may be decided by the Academic Council andimplemented by the Director. However, the Executive Councildisapproved the recommendation of the Academic Council to payone way second class train fare to the students called for theinterview.

The Council noted the sample objective type question paperprescribed by the two experts on the request of Professor UpendraBaxi. However the matter of finalising the test was left to theAcademic Council and the Director. The Council noted the formatof admission test provided by M/s/ R.C. Mishra and C.B. Dwivediof Banaras Hindu University as the instance of Professor UpendraBaxi. The Council also noted the recommendations of Dr. Baxi topay an honorarium of Rs.1,000.00 and to the two professors forthe work in this regard. The Council approved the paymentaccordingly of Rs.2,000.00 (Rs.1,000.00 to each) and authorisedthe 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 ABC

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exceeding Rs.25,000.00. The Council further decided that theadmission to the Ist Year LL.B. class be limited to 80 studentsand for LL.M. Class the admisison be limited to 10 students. Theapplication fee for admission test and interview may be fixed atRs.125.00 for LL.B. though it may be reduced to Rs.50/- in thecase of SC/ST candidates.”

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58. The above resolution of the Executive Council indicates that itwas a draft proposal of the Academic Council regarding admission test,which was approved by the Executive Council. The next followingsentence in the resolution is relevant “the procedure for admissiontest and the selection may be decided by the Academic CouncilCand implemented by the Director”. The respondent No. 1 himselfhas brought on the record the proceedings of the meeting of the AcademicCouncil dated 12.12.1987 as Annexure R-1/2 where the mode of selectionof the students to the LL.B. Programme was provided for. Thus, theabove proceedings of Executive Council and Academic Council itselfDmake it clear that the Executive Council was of the opinion that it is theAcademic Council who is statutory authority regarding mode and mannerof the admission of the students in LL.B. course. The above proceedingsof the Executive Council dated 29.08.1987 and Academic Council dated12.12.1987 fully support the submission of the learned counsel for thepetitioners that it is the Academic Council who is empowered under theEstatute to take a resolution regarding admission of the students in theLL.B. Course.

59. The authorities of the University exercise powers and functionsas entrusted to them in the Statute. This Court in MarathwadaUniversity Vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132Fwhile considering the provisions of Marathwada University Act, 1974,the power of Vice-Chancellor and those of the Executive Council heldthat when a Statute prescribes a particular body to exercise a power, itmust be exercised only by that body. In paragraph 20, following was laiddown by this Court:-G“20.

“20. Counsel for the appellant argued that the express power ofthe Vice-Chancellor to regulate the work and conduct of officersof the University implies as well, the power to take disciplinaryaction against officers. We are unable to agree with this contention.Firstly, the power to regulate the work and conduct of officersHcannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers onthe Executive Council and it generally includes the power toremove. This power is located under Section 24(1) (xxix) of theAct. It is, therefore, futile to contend that the Vice Chancellor canexercise that power which is conferred on the Executive Council.It is a settled principle that when the Act prescribes a particularbody to exercise a power it must be exercised only by that body.It cannot be exercised by others unless it isdelegated……………………”

60. We, however, make it clear that Executive Council in itsresolution dated 12.08.2020/18.08.2020 in exercise of general power ofadministration could have very well taken any resolution regardingcompletion of admission process but for implementing the decision of12.08.2020/18.08.2020 of the Executive Council recommendation ofAcademic Council was required to be obtained regarding mode andmanner of conducting separate admission tests by respondent No.1. Therecommendation of Academic Council was necessary to be obtainedfor holding a separate entry test namely NLAT especially when respondentNo.1 was proposing to hold the above test instead of admitting the studentsby CLAT from which common law admission test, admission in LL.B.course was being done for last more than a decade. When the respondentNo.1 wanted to conduct NLAT as online home proctored test of 45minutes containing 40 questions which mode and manner was differentfrom earlier prescriptions, the recommendations of Academic Councilwere must. The proceedings of the Executive Council meeting, whichhas been relied by respondent No.1 dated 12.08.2020, the decision ofthe Executive Council was to the following effect:- “It was resolved unanimously that if there is a further delay inCLAT, the Vice-Chancellor is empowered to take all necessarysteps to ensure that the admission Process for 2020-21 iscompleted in September, 2020. NLSIU is authorized to run itsown admission process and conduct an independent admissiontest if necessary if there is further postponement of the CLATexam.”

61. On 18.08.2020 the Executive Council unanimously reaffirmedits resolution taken on 12.08.2020 to empower the Vice-Chancellor andthe University to conduct an independent admission process in the eventthat CLAT 2020 is delayed further. The resolution was empowering the

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AVice-Chancellor to take all necessary steps. All necessary steps haveto be understood as steps which are required to be taken as per thestatute. When the Act, 1986 empower the Academic Council to takedecision regarding admission of the students in LL.B. Course and withregard to mode and manner of conducting the admission test, it wasobligatory for the Vice-Chancellor to have obtained the recommendationsBof the Academic Council. The Vice-Chancellor himself is the Chairmanof the Academic Council and there was no difficulty and with regard tomeetings of the Academic Council Clause 15 sub-clause (6) providesthat if urgent action by the Academic Council becomes necessary, theChairman of the Academic Council is empowered to permit the businessCto be transacted by circulation of papers to the members of the AcademicCouncil.

62. We, thus, are of the considered opinion that respondent No. 1was required by the Statute to obtain recommendation of AcademicCouncil before proceeding to hold NLAT by issuing admission notificationDdated 03.09.2020. We, thus, in view of the forgoing discussions, holdthat admission notification dated 03.09.2020 issued by respondent No.1could not have been issued without obtaining the recommendation to thiseffect by the Academic Council. Admission notification dated 03.09.2020having been issued without recommendation of Academic Council is notin accordance with the provisions of Act, 1986 and is unsustainable.E

QUESTION NO.3

Whether the respondent No.1 being founder member ofConsortium of National Law Universities, a registered society,is bound by its Bye-Laws and was obliged to admit the studentsFfor integrated B.A.LL.B. (Hons.) Programme through CLAT2020?

63. We have noted above the sequence of events leading into thecreation of a Consortium of National Law Universities. A Memorandumof understanding was signed by seven, then existing National LawUniversities on 23.11.2007 to hold the Combined Admission Test to beGorganised by NLU on rotation basis on the basis of seniority. In November,2014, in a meeting of Vice-Chancellors of National Law Universities,the decision was taken to constitute a Consortium of National LawUniversities. The Consortium got registered as Society in KarnatakaSocieties Registration Act, 1960 on 26.03.2019. The Consortium in itsH

various meetings took decisions to streamline conduct of Common LawAdmission Test (CLAT) and for coordination and cooperation amongNLUs. One of the aims and objectives of the Society as incorporated inMemorandum is to the following effect: - “V. To administer, control and monitor the conducting of allIndia common entrance examination for law i.e. CLAT, for andon behalf of all the participating NLUs, and facilitate admission ofstudents into various NLUs in the country.”

64. The aims and objectives further disclosed that the Consortiumaims to make the benefit of legal education of one or more NLUs to therest of the NLUs.

65. Clause 3 deals with the governance of the society. Clause 3.3provides that the society shall exercise powers and perform functions asenumerated therein. Clause 3.3.5 provides that the society shall organiseCommon Admission Test for UG, PG, Doctoral, Post-Doctoral coursesfor the National Law Universities across the country. Clause 3.3.6provides that society shall provide a platform for admission to all NationalLaw Universities in India through CLAT for UG and PG Law courses ifsuch National Law Universities become the members of the society.

66. The President and Vice-President under the bye-laws are tobe elected at the annual meeting of the governing body. As per Bye-Laws clause 12.1, Vice-Chancellor of National Law School of IndiaUniversity, Bangalore shall be ex-officio Secretary Treasurer of thesociety. Bye-law 15 deals with “Membership” whereas bye-law 15.3contains heading “Requirement of Membership”. Bye-Laws 15.3.1 and15.3.3 which are relevant are as follows: - “15.3.1. The obligation of membership is to ensure that theMember institution reflects the core values and standards set bythe Consortium according appropriate respect for the autonomyof its Member institution.

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15.3.3. In order that appropriate intellectual rigor may bemaintained, a Member institution shall ensure that admission toevery academic course or programme of study in each Memberinstitution shall be based on merit assessed through a transparentand reasonable evaluation namely CLAT operated by the Society,

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prior to admitting any student. Provided that nothing in this provisionshall be deemed to prevent a Member institution from makingspecial provisions for the employment or admission of women,persons with disabilities or for persons belonging to any sociallyand educationally backward classes of citizens and, in particular,for the Scheduled Castes and the Scheduled Tribes.”

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67. A perusal of Memorandum of Association and Bye-Lawsindicates that laudable objects for which National Law Universities cametogether stood cemented by consortium being registered as a society.As on date, there are 23 National Law Universities which are part ofthe Consortium. We have noticed above that the respondent No.1 wasCthe first National Law University which came into existence by Act,1986 of Karnataka Legislature. Other States followed the suit creatingNational Law Universities. Different National Law Universitiesestablished in different parts of the Country have contributed immenselyto the cause of legal education.D

68. National Law School of India University, Bangaluru from thebeginning shouldered the leading role in conduct of CLAT. DifferentNational Law Universities have been established by different statuesand have statutory functions and obligations to achieve a common purposeand to give a boost to legal education in the country. They have themselvesEimposed obligations on them to be a part of the Consortium for a commoncause. CLAT being an All India Examination for different National LawUniversities has achieved its own importance and prominence in legaleducation. The steps taken by National Law Universities to form aConsortium and to cooperate with each other in conduct of CLAT istowards discharge of their public duty entrusted under the differentFstatutes. The duty to uphold its integrity lies on the shoulder of each andevery member.

69. Thousands of the students who aspire to have a career in lawlook forward to the CLAT as a prestigious test and CLAT has proved itsusefulness and utility in this country. Students look forward to theGConsortium for providing correct and fair assessment of the merits ofthe students. The bye-laws under which members are required to admitthe students in their law universities on the basis of the CLAT for UGand PG law courses are binding on the members. Bye-Laws althoughare non-statutory but they have been framed with the aim and object toHbe followed by its members.

70. Even though obligations on members of Consortium under theBye-Laws are not statutory obligations but those obligations are bindingon the members. All members occupying significant and important statushave to conduct in fair and reasonable manner to fulfill the aspirations ofthousands of students who look on these National Law Universities asinstitutions of higher learning, personality and career builders. Furtherthe statutes under which National Law Universities have been establishedcast public duties on these NLUs to function in a fair, reasonable andtransparent manner. These institutions of higher learning are looked bysociety and students with respect and great Trust. All NLUs have toconduct themselves in a manner which fulfills the cause of educationand maintain the trust reposed on them.

71. Shri Datar submits that Bye-Laws are in the nature of contractbetween the society and its members. Shri Datar also referred to thejudgment of this Court in Hyderabad Karnataka Education Societyversus Registrar of Societies and others, (2000) 1 SCC 566. ThisCourt in the above case had occasion to consider Karnataka SocietiesRegistration Act, 1960, under which the Consortium has been registered.The submission was made before this Court that Bye-Laws of the societybind both the parties with which submission this Court expresses itsconcurrence. In paragraph 28, following was observed:- “28. Before leaving the discussion on this point, we may mentionthat learned senior counsel for the appellant, Shri Sanyal, placedreliance 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 IndustrialTribunal, 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 judgmentof the Andhra Pradesh High Court in the case of Sri KanaseemaCo-operative Central Bank Ltd. v. N. Seetharama Raju AIR(1990) (77) A.P. 171, and contended that bye-laws of a societyare a contract between the parties and bind both the parties. Thatmay be so, however, the question remains whether an illegal bye-law or an illegal contract for that matter can bind any of thecontracting parties....”

72. The Court in the above case was concerned with legality ofRule 7A, in the present case; we are not concerned with the challengeto any rule of the Consortium.

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A73. Shri Datar has contended that by accepting the membershipof Consortium, the autonomy of its members is maintained. He hasreferred to Bye-Law 15.3.1 which we have already extracted above.Bye-Law 15.3.1 itself contemplates that the obligation of membership isto ensure that the member institution reflects core values and standardsset by the Consortium according appropriate respect for the autonomyBof its member institution. The autonomy of member institutions does notin any manner come in the way of holding the Common Law AdmissionTest(CLAT). Every institution maintains its autonomy as per the statutegoverning, the obligation to maintain core value of the Consortium in nomanner affect the autonomy of the member university. The core valuesCof the Consortium aim to enhance the prestige and content of legaleducation. Legal education has a pivotal role in the development of thesociety and regulating the inter se relations between the members of thesociety.

74. This Court had an occasion to consider the challenge to NationalDEligibility cum Entrance Test(NEET) for admission in Medical course inTransferred Case(Civil) No.98 of 2012, Christian Medical College VelloreAssociation versus Union of India and others. A Pertinent observationhas been made by this Court in paragraph 55 in the following words: -

“55...Building the nation is the main aspect of education,Ewhich could not be ignored and overlooked. They have to cater tonational interest first, then their interest, more so, when suchconditions can be prescribed for recognition, particularly in thematter of professional education.”

75. This Court in the above case has held that holding of NationalFEligibility cum Entrance Test is a National Interest. What was observedby this Court with regard to NEET is equally applicable to the CLAT. Toconduct a Common Law Admission Test for all the Law Universities isboth 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 emergedGafter discussion with Government of India, Law Universities, etc. andother stakeholders. It was with a lot of discussion, deliberation that theCommon Law Admission Test could come into existence. We have comea long way with the Common Law Admission Test which has to befurther strengthened and streamlined.

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76. This Court time and again has emphasised the importanceand usefulness of Common Admission Test for group of institutionsimparting same or similar education. This Court held that such CommonTest fulfils twin objects of transparency and merit. The ConstitutionBench of this Court in P.A. Inamdar and others vs. State ofMaharashtra and others, (2005) 6 SCC 537, in paragraphs 136 and138 laid down following:

“136…………There is nothing wrong in an entrance test beingheld for one group of institutions imparting same or similareducation. Such institutions situated in one State or in more thanone State may join together and hold a common entrance test orthe State may itself or through an agency arrange for holding ofsuch test. Out of such common merit list the successful candidatescan be identified and chosen for being allotted to differentinstitutions depending on the courses of study offered, the numberof seats, the kind of minority to which the institution belongs andother relevant factors. Such an agency conducting CommonEntrance Test (CET, for short) must be one enjoying utmostcredibility and expertise in the matter. This would better ensurethe fulfillment of twin objects of transparency and merit. CET isnecessary in the interest of achieving the said objectives and alsofor saving the student community from harassment andexploitation. Holding of such common entrance test followed bycentralized counseling or, in other words, single window systemregulating admissions does not cause any dent in the right ofminority unaided educational institutions to admit students of theirchoice. Such choice can be exercised from out of list of successfulcandidates prepared at the CET without altering the order of meritinter se of the students so chosen.

138. It needs to be specifically stated that having regard to thelarger interest and welfare of the student community to promotemerit, achieve excellence and curb malpractices, it would bepermissible to regulate admissions by providing a centralized andsingle 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 overseeadmissions so as to ensure that merit is not the casualty.”

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A77. Shri Arvind Datar, learned counsel appearing for the respondentNo.1 has fairly submitted that the respondent No.1 is still a member ofConsortium and has not gone out of Consortium and NLAT conductedby it is only for the present Academic Year to avoid this Academic yearas a ‘Zero Year’. He submits that insofar as next academic year therespondent No.1 shall admit students on the basis of result of CLAT.BShri Datar has referred to the unique system of trimester which isoperating in the respondent No.1 University. Shri Datar has furthersubmitted that unless the Under-Graduate law course was not startedby 18.09.2020, respondent No.1 would not have been able to completeits trimester.C

78. In the counter affidavit filed by the respondent No.1, detailsof the Trimester is given and proceeding of Academic Council dated12.12.1987 has been brought on record as Annexure-R-1/2 in whichAcademic Council has taken the decision on academic terms in followingmanner: -D“(b) Academic Terms:

Each Academic year be divided into 3 Academic terms each witha minimum of 70 working days. This academic term be called aTrimester. Thus the 5-year B.A.LL.B(Hons.) Programme willhave 15 Trimesters. It is suggested that the Academic year mayEbegin from 1st July and the Academic terms may adopt thefollowing pattern: -

i) FIRST TRIMESTER — July 1st to September 30

ii) SECOND TRIMESTER — October 1 to January 15.

Fiii) THIRD TRIMESTER — January 30 to April 30.”

79. As per Academic Council’s above decision, each Academicyear is divided into three Academic terms called Trimester with a minimum70 working days.

80. Shri Sajan Poovayya,learned counsel appearing for theGrespondent No.2, has explained that for completing three trimesters, 285working days are required. He submits that 210 days is for teaching inall the three semesters, 36 days shall be three Sundays in each threemonths term, 24 days for Government holidays, etc. in three months and15 days for evaluation and assessment, totalling to 285 days.H

81. It is true that respondent No.1 University follows a uniquesystem of Trimester, each semester has 70 teaching days per three monthsterm. The first Trimester as per resolution of academic council was tobegin on 01.07.2020 and was to end till 30th September, 2020. This periodof three months is not available for respondent No.1 to start the firstsemester. The entire country is struggling with Pandemic Covid-19 fromMarch 2020. Loss in the academic year is for all Universities in theCountry. The Academic Calendar of each University stood disrupted byCovid-19. None of the Universities have declared the year as a ‘zeroyear’.

82. The University Grants Commission being aware of theconsequences of Covid-19 Pandemic has issued guidelines on theexamination in the Academic Calendar. In the guidelines dated 29.04.2020with regard to Academic Calendar for the Session 2020-21, followinghas been provided:- “4. Academic Calendar for the Session 2020-21

Several School Boards are yet to complete their Class XIIExaminations, as of now. Examinations for the Even Semester inthe universities are also getting delayed due to national lockdown.Naturally, all these things will delay the admission process in theuniversity system for the next academic session. In order to tacklethis situation, the universities may require some amendments intheir academic calendar for the academic session 2020-21.”

83. As provided by UGC guidelines which guidelines have beencontinued by subsequent guidelines dated 06.07.2020, the UGC expectedthe Universities to carry on some amendments in their academic calendarfor the session 2020-21. The Universities are not powerless to modifytheir Academic Calendar looking to the pandemic. The Academic year2020-21 is not a normal academic year in which Universities are expectedto carry on their teaching and other activities in normal mode and manner.The respondent No.1 University could have very well found out waysand means to start the academic Under-Graduate Law course even if itstarts in mid of October 2020 after conduct of the CLAT on 28.09.2020.

84. The counter affidavit filed by the respondent No.3, hassuggested various alternatives to be adopted by the Universities to modifytheir academic year in paragraph 51 and 52. It is suffice to observe thatit is for the respondent No.1 to take appropriate decision in the aboveregard.

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A85. We may also notice one more submission of Mr. Datar at thisstage. Shri Datar submits that holding of separate exam has become asheer necessity and not with the intention to violate the Consortium Bye-Laws. He reiterated his submissions that to avoid the academic year2020-21 to be declared as ‘zero year’, the respondent No.1 proceededwith a separate exam.B

86. We are not persuaded to accept the submission that “Doctrineof Necessity” was applicable in the fact situation of the ongoing pandemic.As noted above, UGC in its guidelines dated 29.04.2020 has alreadyasked all the Universities to modify their academic calendar for theacademic year 2020-21. The UGC being the body to maintain standardCof education in the entire country and having contemplated for suitableamending the academic year, “Doctrine of Necessity” does not arise.We thus conclude that being members of the Consortium respondentNo.1 ought not to have proceeded with holding a separate test namely“NLAT” nor the academic year 2020-21 be required to be declared asD“zero-year” even if the course starts in the mid of October, 2020.

QUESTION NO.4

WHETHER ONLINE HOME PROCTOREDEXAMINATION AS PROPOSED BY NOTIFICATION DATED03.09.2020, LACKS TRANSPARENCY, WAS AGAINST THEEVERY CONCEPT OF FAIR EXAMINATION AND VIOLATIVEOF THE RIGHTS OF THE STUDENTS UNDER ARTICLE 14OF THE CONSTITUTION?

87. With regard to admission notice dated 03.09.2020, respondentNo.1 University issued Press Release NLSIU admission 2020 onF04.09.2020. Clause 4.4.2 of notice dated 03.09.2020 provided that thetest shall be an online entrance examination to be held on 12.09.2020,the candidates will attempt the examination using a Computer device attheir respective locations. Paragraph 4.4.2 is as follows: - “4.4.2. Candidates who have submitted a valid applicationGform will be required to appear for the NLAT. The Test shall bean online entrance examination to be held on 12.09.2020.Candidates will attempt this examination using a computer deviceat their respective locations. Candidates will have to ensure thatthey can appear for the examination on the appropriate date andtime using a computer device as per the detailed specificationsH

that will be provided, including video and audio inputs. NLSIUshall not be responsible for any connectivity issues, or failure ofinternet connection during the examinations. NLSIU reserves theright to cancel any candidate’s examination based on misconductor examination malpractice.”

88. The notification for technological/system requirement forNLAT 2020 was issued by the University which provided following amongother requirements:- “1. Supported Devices: Desktop computers and laptopcomputers only (the use of tablets and other mobile devices,including phones shall not be supported nor permitted in the NLAT2020.

2. Operating System: Window 7 or above (Windows 10recommended) (Examination system will not run on any otheroperating 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. Clickhereto download the latest version of Google Chrome.

5. The user account must have administrator privileges to installrequired 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 remoteproctoring software streams exam data, including audio and video,directly to the cloud as you take the NLAT 2020. In order to allowthe continuous transfer of exam data, the specified minimumconnection speed must be maintained at all times...”

89. In pursuance of notice dated 03.09.2020, 24,603 Candidateshave 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 thepetitioner is to home proctored test as notified by respondent No.1, it is

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Asubmitted that home proctored test does not fulfill the requirement offair and transparent test which was expected for a premier law University.The petitioners in this reference relies on the affidavit of respondentNo.2, Prof.(Dr.) Sudhir Krishnaswamy which he filed in WritPetition(Civil) No.4848 of 2020, V.Govinda Ramanan versus Consortiumof National Law Universities and Anr. filed in Delhi High Court. TheBrespondent No.2 as Secretary of the Consortium filed the counter affidaviton behalf of Consortium of National Law University in Delhi Universitysworn on 25.08.2020. The writ petitioner in the said writ petition claimedthat he should be permitted to appear in examination from his home. Thecounter affidavit pleaded that conducting computer based online centreCbased test is legal. Opposing the home based online test, respondentNo.2 made following statement in paragraph 17 and 18 of the affidavit:- “17. It is submitted that a home based online test for around78,000 students would not be possible as the test will be completelycompromised and may even be manipulated by the participants orDcoaching centres.

18. Respondent No.1 has over several meetings discussedand assessed the feasibility of conducting CLAT-2020 throughvarious modes including the mode suggested by the Petitionerherein. After due consideration, Respondent No.1 has determinedEthat an online test at home with technological measures cannotensure transparency, fairness and the integrity of a high stakesexamination process such as CLAT.”

91. The respondent No.2 had categorically taken the stand onbehalf of the CLAT that online test at home with technological measuresFcannot ensure transparency and the test will be completely compromisedand may even be manipulated by participants and coaching centres.There was no reason for change of mind by respondent No.2 within aweek. Affidavit was sworn on 25.08.2020 by respondent No.2 and on03.09.2020 after a week, notification was issued for conducting NLATpermitting participants to join online examination sitting at their home.GWhen something was not to be permitted, when home based online testcould not have been permitted for CLAT-2020, the same test can alsonot be permitted for NLAT-2020.

92. We thus find substance in the submissions of the petitionerthat permitting of home based online test could not have ensuredH

transparency, fairness and integrity of the examination especially whenthe test was to be conducted for entrance into a premier Law Universityof the country.

93. We may notice another submission of the petitioners in thisregard. Petitioners’ case is that due to a short period of notice to applyand due to technological requirement, a large number of studentsespecially belonging to marginalised sections of the society were unableto apply within the time allowed by NLAT. The requirement of fulfillingtechnological support as envisaged by NLAT as noticed above could nothave easily been procured by a large number of students.

94. In the proceeding of the faculty meeting dated 06.08.2020brought on record by the respondent No.1 along with his counter affidavitas Annexure-R-1/10, it has been mentioned that “NSLIU is the firstpreference for more than 60 percent of CLAT applicants”. About 69,000students have registered for CLAT-2020. 60 percent of 69,000 comes to41,400. The registration into NLAT being only 24,603 out of which only23,225 could appear makes it clear that a large number of students whocould have wanted to apply for admission in respondent No.1 Universitycould not even apply due to shortage of time and technical requirementinsisted by respondent No.1 University. The above figures fully supportthe submissions of the petitioner that a large section of the studentsespecially belonging to marginalised sections of the society were deniedthe opportunity to appear in the examination.

95. We thus conclude that home based online examination asproposed by the respondent No.1 University for NLAT-2020-21 couldnot be held to be a test which was able to maintain transparency andintegrity of the examination. The short notice and technologicalrequirements insisted by the University deprived a large number ofstudents to participate in the test violating their rights under Article 14 ofthe Constitution of India.

QUESTION NO.5

WHETHER NLAT HELD ON 12.09.2020 WITH RE-TEST ON 14.09.2020 WAS MARRED BY MALPRACTICESAND DESERVES TO BE SET ASIDE.

96. Petitioners have submitted that examination held on 12.09.2020as well as re-test held on 14.09.2020 was marred by several malpracticeswhich proved that the apprehensions of the petitioner were true.

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A97. Shri Gupta highlights the various shortcomings in proctoringprotocol. Shri Gupta has also referred to the Press Release dated14.09.2020 by the respondent No.1 where Press Release stated“thereafter, it appears that some candidates have copied the questionsand circulated this on some messaging apps and emails after logging in.”Shri Gupta submits that even after noticing the aforesaid fact the PressBRelease further states that “while this is a malpractice under NLATproctoring guidelines, it does not affect the integrity of the exams asquestions were already available to all candidates after logging in.”

98. Shri Gupta submits that if the candidates are able to sendquestions through messaging apps and emails obviously they could receiveCthe answers as well. Further, Shri Gupta has referred to the Press Releasedated 15.09.2020 by the respondent No.1 where University has statedthat “some case of examination malpractices deserves criminalinvestigation and University has already lodged criminal complaintsagainst some actors”.D99. Shri Arvind Datar has strongly refuted the above submissionand has referred to the sur-Rejoinder affidavit filed by respondent No.1where details of technological measures taken by NLSIU for NLAT2020 has been explained.

100. It is submitted that extensive technological and other measuresEare implemented to ensure that any candidate attempting any form ofmalpractices is caught and disqualified from the process either duringthe exam itself or after the post examination during audit and scrutiny.

101. Shri Datar submits that NLAT 2020 has made use of acombination of Artificial Intelligence and human Proctoring. It is furtherFsubmitted that in order to give full effect to human and ArtificialIntelligence proctoring measures available post examination, respondentNo.1 appointed a leading audit firm to carry out an independent forensicaudit and assessment of data relating to the examination and submit thereport. He submits that care and precautions were taken by UniversityGfor conduct of free and fair test and on the basis of some media reportsand few materials brought on record, it cannot be concluded that theexamination is marred by malpractices especially in proceeding underArticle 32 of the Constitution.

102. After having considered the above submission of the learnedcounsel for the parties, we are of the view that for the present case, it isH

not necessary for this court to enter into various materials referred to bythe petitioners and the reports and to decide as to whether malpracticeswere actually adopted in the examination or not. Respondent No.1 beingpremier University, we have no doubt that it must have taken all necessaryprecautions to avoid any malpractices and cheating in the examination.

103. As noted above, the University has also filed a complaint ofCyber Crime which may be inquired in accordance with law. We neednot express any opinion in this proceeding under Article 32 with regardto the aspect of malpractices in the test conducted on 12.09.2020 and14.09.2020 which is essentially a matter of scrutiny of facts and evidence.

104. In view of the foregoing discussion, we are of the consideredopinion that Admission notification dated 03.09.2020 issued by respondentNo.1 was not in accordance with law and deserves to be set aside.

105. The CLAT examination is already fixed for 28.09.2020 whichneeds to be conducted on the said date without fail after following allnecessary protocols for safety and health of the students and afterfollowing the Standard Operating Procedures issued by Ministry of Healthand Family Welfare (MoHFW) and Ministry of Human ResourceDevelopment(MHRD).

106. We further notice that after the issuance of notification dated03.09.2020 by the respondent No.1, the meeting of the governing bodyof Consortium of National Law Universities was held on 05.09.2019where decision was reiterated to hold CLAT 2020 on 28.09.2020. Thegoverning body further resolved to divest functions of respondent No.2as Secretary and Treasurer of the Consortium with the immediate effectand in the interim period appointed Professor Faizan Mustafa, seniormost member of the Consortium and past President to discharge all theadministrative and secretarial functions of the Consortium. The governingbody also resolved to shift the Secretariat of the Consortium to theNALSAR University, Hyderabad.

107. We have found that separate admission notice dated03.09.2020 issued by the respondent No.1 being unsustainable. We areof the view that Status quo ante as on 05.09.2020 should be restored asearly as possible i.e. by restoring the respondent No.2 as Secretary ofthe Consortium as well as restoring the Secretariat of the Consortium toNLSIU, Bengaluru. The governing body may take the decision keepingin mind that CLAT examination scheduled on 28.09.2020 be smoothly

A

B

C

D

E

F

G

H

Aheld. The respondent Nos.1 and 2 are also to cooperate with the holdingof CLAT scheduled to be held on 28.09.2020.108. In result of the foregoing discussion, we allow the writ petitionin the following manner: -

(I) The notice for admission to the five year integratedBB.A.LL.B(Hons.) programme 2020-21 dated 03.09.2020Annexure -P 14 as well as Press Release on NLSIU admission2020-21 dated 04.09.2020 Annexure-P 15 are quashed.

(II) The respondent No.3 is directed to conduct the CLAT-2020examination on 28.09.2020 taking all precautions and care forChealth of the students after following the Standard OperatingProcedures (SOPs) of the Ministry of Health and Family Welfare(MoHFW) and Ministry of Human ResourceDevelopment(MHRD).

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

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

(V) The respondent No.3 may take decision at an early daterestoring the status of respondent No.2 as the Secretary-Treasurerof the Consortium as well as restoring the Secretariat of theConsortium as to NLSIU, keeping in mind that scheduled examFof 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.

G

Divya Pandey

Matters disposed of.

H