We live in post truth era and therefore facts do not matter anymore. We keep on saying that India's Covid-19 management is the best in the world yet the fact is that today we have second highest number of Covid-19 positive cases in the world and for last two weeks have been registering world's highest number of positive cases and deaths per day. We have been asserting that our economy won't be affected by Covid-19 and is doing well yet today we are the worst performing economy in the world. We have been saying that we have not lost a single inch of our land to China yet ground reality on border presents an entirely different and gloomy picture. Similarly we are told that there were repeated CLAT postponements and NLSIU, Bangalore had no option but to conduct its own independent National Law Admission Test (NLAT) due to slow, rigid and unwieldy attitude of Consortium of National Law Universities.
Since the two major grounds of NLSIU's decision given in the affidavit filed in the matter of Master Balachandar Krishnan(W.R No 8878/2020) in the Karnataka High Court after the conclusion of arguments in a petition seeking merely the cancellation of domicile quota where strangely postponement of CLAT was not even under challenge are said to be repeated CLAT postponement and possibility of Zero year if admission test is not conducted on September 12, it is necessary to examine these two grounds in some details as future of students is at stake and thousands of students and parents are now under tremendous mental stress as CLAT-2020 aspirants now have to appear in two instead of one admission test. By filling CLAT-2020 forms, they were under the legitimate expectation that through CLAT, they will be entitled to admission in all National Law Universities including NLSIU.
There is no denial of fact that NLSIU being the first National Law University in terms of its establishment in 1988 had the first mover advantage and did play the leading role in transforming the legal education in the country under the encouraging leadership of Late Prof NR Madhavamenon, an alumnus of Aligarh Muslim University and Prof N.L. Mitra, an alumnus of Calcutta University and Utkal University. But other National Law Universities too played an equally important role in taking forward this new model of legal education forward such as Prof. Ranbir Singh at NALSAR, Hyderabad and my teacher Prof V.S. Rekhi at NLIU, Bhopal. Accordingly in 2010, Prime Minister Manmohan Singh called all National Law Universities as 'islands of excellence'. Legally speaking all National Law Universities are the creation of State Acts and are State Universities and that's why most of them have domicile quota.
Since we are examining CLAT postponement, it is in the fitness of things to revisit the origin of CLAT. Supreme Court of India in Varun Bhagat v.Union of India(W.P. No.68 of 2006) decided on November 23, 2007 mooted the idea of Common Law Admission test for the then existing seven National Law Universities. Accordingly University Grants Commission, MHRD, Government of India and Bar Council of India came together and CLAT was conceptualized through an MoU signed between the then existing NLUs. Since NLSIU was the first National Law University, first CLAT was conducted by it in 2008. This MoU was amended in 2014 leading to the establishment of the Consortium of National Law Universities. When Consortium was registered, permanent secretariat was set up in Bangalore and NLSIU was made its ex-officio Secretary-Treasurer.
The primary role of the Consortium was to conduct CLAT for all the member institutions and no member institution so far it remains a member of the Consortium has right to conduct its own independent test. There is no provision either in the MoU or in the Consortium Bye-laws which permit a member of Consortium to conduct its own admission test for UG(Law) and PG(Law). For other courses, these universities are free to conduct their own tests and therefore NLSIU or other NLUs completing admission process of other courses is not relevant here. In fact Clause 3(A)(v) clearly lays down main aims and objectives of the consortium ie to administer, control and monitor the conducting of all India common entrance examination for law i.e. CLAT for and on behalf of all the participating NLUs,(emphasis added) and facilitate admission of students in various NLUs in the country. Of course, every NLU has a right to withdraw from the Consortium and conduct its own admission test.
The 11 judge bench of the Supreme in TMA Pai foundation (2002) also emphasized the need of common admission test so that students are not put of hardship of appearing in multiple admission tests. It is a different thing that this author personally feels that all admission tests basically favor elite, privileged and aspirants living in big cities and does not test curiosity, creativity and commitment to society etc. Moreover Supreme Court laid lot of emphasis on the 'fair and transparent' admission process in universities. Does NLSIU's decision to not publish consolidated merit list of all candidates appearing in NLAT meet the requirement of fair and transparent admission process?
Now let us discuss the CLAT-2020 and the so called five postponements. Unlike previous years when the CLAT was conducted by the CLAT convener, this year Secretary- Treasurer was closely involved in all decisions relating to the conduct of CLAT. Prof Sudhir Krishnaswami has indeed done an exceptional job and he was appreciated in most meetings of the Consortium.
CLAT was originally scheduled for the May 10,2020 but was postponed in March itself to May 24,2020. As the entire Nation was in lockdown till May 31, 2020, the Executive Committee of the Consortium met on April 21, 2020 and decided to postpone it to June 21, 2020. No one including NLSIU, Bangalore raised any objection to this postponement. Is it then right now to blame Consortium for at least these two postponements? The Executive Committee met again on June 17,2020 and took into account that since several states are still in lockdown and in other states large number of containment zones are closed and JEE and NEET too have been postponed and therefore let us wait and see when are these two tests scheduled. The idea was to learn from these two big admission tests. Secretary-Treasurer was requested to find out the possibility of alternative methods of conducting CLAT ie Computer centre based or home proctored test etc. It was resolved to even seek CLAT aspirants' preferences in this regard. Accordingly the survey was conducted and preferences of CLAT aspirants were ascertained and discussed in the Executive Committee. No other admission test has ever demonstrated this kind of democratic decision making. It was resolved to fix the date after August 15. Subsequently in early July, decision was made to shift from physical paper and pen test to centre based computer test and August 22, 2020 date was announced. This much of time was required to find a reliable and efficient service provider as due to the inefficiency of service provider in 2018, lot of inconvenience was caused to the CLAT aspirants and decision to switch over to physical pen-and paper test was made for the CLAT-2019. Members in Executive Committee did discuss the difficulties which NLSIU may face due to its trimester system but neither dissent was pressed nor recorded. This author similarly had suggested to explore the possibility of admissions on the basis of X and XII marks but since others did not agree, I too did not record my dissent. Consortium has a policy of free and frank discussions and decisions are taken by majority.
The August 22, 2020 test had to be postponed in view big jump in the Covid-19 positive cases and lock down till August 30, 2020 brought in by the number of states. Some other states continued night curfew, introduced twice a week lockdowns and imposed stringent restrictions on the movement in the containment zones etc. Within days of postponement, Governing Board resolved to conduct it on September 7 despite reservations expressed by this author and some others. In this meeting Prof VC Vivekanandan, Vice-Chancellor, HNLU insisted on the recording of his dissent on the sudden fixation of September 7 date.
Unlike NEET or JEE, Consortium of NLUs is not free to fix any date of its choice for the CLAT-2020. It is dependent on the service provider and all dates after the centre based computer test decision was made were given by the service provider depending upon availability of dates with him. On August 27, 2020, Executive Committee received a communication from Prof Nirmal Chakraborty, the Vice-Chancellor of NUJS, Kolkata about West Bengal government's decision to have complete lockdown on September 7, 2020 and accordingly, CLAT was finally postponed to September 28 as we cannot conduct our test if a major state is in complete lockdown. Even in this meeting NLSIU Vice-Chancellor did not inform the Executive Committee that his Faculty meeting on August 6, 2020 and Executive Council of NLSIU it its meetings of August 12, 2020 and August 18, 2020 had already resolved to conduct their own independent admission test. These dates are mentioned in the NLAT Notification of NLSIU. He was clearly under a duty to speak and inform Consortium of this decision, yet he preferred not to share this vital information with the Executive Committee. It is not known to this author whether he informed his own Executive Council that Consortium Bye-laws do not have any provision under which a member institution can conduct its own test.
Consortium is small body with great sensitivity as it consists of 22 senior teachers for whom safety and welfare of students is of prime importance. Thus in reality Consortium can only be blamed for just one postponement ie September 7, 2020 which was done due to the West Bengal lock down announcement. There will be no more postponement of CLAT as latest unlock guidelines of the union government no more permit any state to announce its own lockdown. How far this decision impinges on our federal character is not an issue here?
It should also be kept in view that no national level admission test was conducted till August 31, 2020 and therefore blaming consortium for the so called postponements till August is grossly unfair. NEET was scheduled for May 3 but was postponed like CLAT to the last week of May but could not be held and is now scheduled for September 13, 2020.
The first national level admission test was JEE(Mains) and was conducted from September 1 to 6 in spite of huge protests by the students and after the go-ahead given by a bench led by Justice Arun Mishra.
Union MHRD Minister had himself announced on July 1 that JEE will be held from September 1 to 6 which was a clear acknowledgement by the government that it was neither feasible nor desirable to conduct it in July and August. Consortium attaches highest importance to the decisions of Union Education Minister. Thus blaming consortium for August postponement of CLAT is not right.
Moreover, it should also be noted that JEE(Advanced)will be held on September 27,2020 for top 2,50,000 candidates of JEE(Mains) after the declaration of JEE(Mains) result on September 11,2020. The counseling to these premier IITs which in terms of rankings, publications, patents, consultancy, prestige and academic standards are shoulders ahead of all other Indian universities will start only on October 6, 2020 and end on October 9, 2020. In fact for B.Arch, the test is scheduled for October 6,2020. Thus classes in IITs will start in the middle of October. If IITs are not having problem of zero year, how any law university can build its entire case on the so called zero year.
Similarly NEET too was postponed number of times. It is in case of NEET that we have Supreme Court judgments such as Priya Gupta(2012) and Jasmine Kaur(2014) setting the deadline of September 30,2020 for admissions though apex court has also held that in 'pressing emergencies', even medical admissions can be held after September 30. Who can deny that we are facing an unprecedented pressing emergency this year? Unlike medical admissions, there is no last date of admissions laid down by the Supreme Court for admissions to B.A. LL.B and LLM and therefore heavens are not following to fall if classes in NLUs start in the second week of October like IITs.
Moreover as per University Grants Commission, in normal situations universities should have 180 working days. This year in view of extra-ordinary situation due to Covid-19, this number cannot be insisted upon as till September 21, 2020, there is no permission from union government to open universities. Due to the closure of universities in July and August, the working days requirement can easily be brought down to 120 days or even less. True, universities that have trimester system like NLSIU have a very tight schedule yet the normal rule 70 working days per trimester as per NLSIU website should be insisted upon this year and if like schools 30 percent syllabus is reduced, one can easily reduce the trimester duration from 70 working days to 45 days. Generally a trimester is supposed to be of 12 weeks' duration, this year it can easily be reduced to 8-10 weeks. We all know that learning does not take place only in the class rooms. Since NLUs are having just on-line classes rather than physical classes, even if we start our classes from October 15, there is no threat of this year becoming zero year.
Unlike other NLUs which have semester system and have 5 or 6 courses per semester, NLSIU follows trimester system with just four courses per trimester. In this exceptional year, one or two courses may be shifted to subsequent four and half year. Assuming though not accepting that they need to necessarily do 60 hours of classroom instruction at any cost as per NLSIU's own affidavit in Karnataka High Court per course, it means 240 hours which works out to be 20 hours per week in 12 week trimester. Is it impossible and absolutely illegal for NLSIU to conduct 24 to 26 hours instead of 20 classes per week? To say that 12 week trimester or 60 hours policy of a university is written in stone and cannot be amended even in extra-ordinary situations is flawed understanding both of law as well as of higher education. Have not we even amended more than hundred times our constitution which is the supreme law of land?
Under Section 11 of the NLSIU Act,1986, it is the Academic Council which is the appropriate body to take academic decisions such as maintenance of standards, instructions and examinations etc. The matter of reducing 60 hours rule should have ideally been referred to it. Moreover under Section 11 of NLSIU Act, Academic Council of NLSIU has the 'right to advise the Executive Council on 'all academic matters'(emphasis added). In fact under Section 13(1)(g) of NLSIU Act, Executive Council cannot make any regulation on the 'enrollment or admission'(emphasis added) to NLSIU without the 'prior concurrence'(emphasis added) of the Academic Council. NLSIU has not stated in its notification of NLAT that Executive Council in its meetings of August 12 and 13 was acting on the recommendation of its Academic Council. The legality of Executive Council's decision for going ahead with NLAT without Academic Council's recommendation/ prior concurrence may be raised by the affected students.
Recently former Vice Chancellor of Delhi University and eminent scholar Prof Dinesh Singh wrote a long piece for The Print in which he recalled how Delhi University(during1972-72 & 1982-83) had disruption of teaching for months together due to protests and agitations and Allahabad University(during 1980s) was indeed three years behind in terms of its academic calendar yet through innovation, creativity and dynamic academic and compassionate leadership, two premier universities did succeed in bringing back their academic calendar on time without a single zero year. Even NALSAR University of Law in 1998 started its classes from December 1 and yet the students graduated on time in May 2003.
National Law Universities are an integral part of wider fraternity of higher education which has 900 other universities including 44 central universities. Some of these universities too like IITs have much better NIRF and other rankings and are equally concerned about their academic calendar. Most of these universities have not yet been able to even start their admission process yet no university is announcing that it will have zero year. One hopes that the better sense will eventually prevail and NLSIU Vice-Chancellor who is an outstanding and upcoming scholar in his own right will review his decision of conducting NLAT this year and that too just two weeks before CLAT. If he really feels suffocated within the Consortium, he has every right to withdraw from it and in future conduct NLSIU's own admission test.
(The author is the Vice-Chancellor of NALSAR University Of Law And Former Vice-President & President of Consortium of National Law Universities. The views are personal)