The Karnataka High Court on Tuesday (06th October) observed that "A tender student, even when the delinquency is established, cannot be treated as the offender of the war crime; it hardly needs to be mentioned that all this has entered the framing of this judgment."
The Bench of Justice Krishna S. Dixit was hearing the plea of a Petitioner-student who challenging the punitive Memorandum dated 29.07.2020 issued by CBSE, whereby, "-- her exam in the subject (044) Biology of AISSCE (Main)-2020 is hereby cancelled for using unfair means in the said Examination -- her result is declared as ESSENTIAL REPEAT".
Brief facts of the case
In connection with this incident an enquiry was held, after receiving the explanation from the petitioner in terms of EXAMINATION BYE-LAWS 1995 promulgated by the Central Board of Secondary Education; the impugned punitive order had been issued to the effect that her exam in the subject Biology (044) of AISSCE has been cancelled for using "Unfair means" and that she was declared as "Essential Repeat".
As a consequence of the above punitive order, coupled with her failure in Mathematics Examination, petitioner became ineligible to take up "Compartment Examination" that was scheduled in September 2020 and eventually, she has to appear for the examinations under "Full Subject Category" which would be scheduled on the basis of new Syllabi and the Course Study; with this grievance, the petitioner is at the doorsteps of this Court.
The Court was of a considered opinion that relief needs to be granted to the petitioner. The Court, while perusing the relevant Bye-Law, came to the conclusion that the thrust of the prohibition enacted in the subject Byelaw is not just carrying the "barred items" but carrying it "during the course of the examination".
Further, the Court opined, carrying any material before the commencement of the examination per se does not fall within the parameters of the fault-line on which this Byelaw is structured; an argument to the contrary, cannot be countenanced without bruising the text & intent of this Byelaw;
The Court also noted that she had deposited the said instrument at 9.55 am i.e., prior to the commencement of the examination with the official of the Examination Hall gains acceptance since admittedly, it was returned to her after the examination was over and with no much murmur.
The Court further observed that the timing of the deposit and demeanour of the student could have been ascertained from the CC-TV footage which was not done, the explanation offered for not doing the same being not plausible, the case of the petitioner thus, won credence.
Further, the Court opined that the very purpose of installing CC-TV is to capture such incidents and keep them as a record for proving the delinquency or innocence of the students concerned.
Importantly, the Court said that if the content of the CCTV footage is not preserved or otherwise not retrievable, it is a fault attributable to the answering respondents and therefore, they cannot be permitted to take advantage thereof to the detriment of the students.
Significantly, the Court said,
"Tender minds even when they commit some significant mistakes, cannot be treated with iron gloves; the penalty order arguably may answer the requirement of letter of law but certainly, it fall short of the standards of justice and fairness inasmuch as there is absolutely no material as to the petitioner having used the phone instrument for writing the examination in question; in fact, that is not the allegation at all; one cannot be oblivious to the anxiety of the students and their parents during the crucial examination of the kind, especially during the unprecedented COVID Pandemic." (emphasis supplied)
The Court also took into account the fact that the Constitution of India enshrines several Articles guaranteeing Rights & Privileges to children and these are complemented with numerous legislative and quasi-legislative measures keeping in mind India's 1992 ratification of the United Nations Conventions on the Rights of the Child, 1989 (UNCRC).
A further direction was issued to the Central Board of Secondary Education to organize necessary examination for the petitioner along with other such candidates if any so that they complete All India School Certificate (Main) Examination – 2020 with the same Syllabi and the Course Study, if they are otherwise eligible; this shall be done on or before 31st day of December, 2020.
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