Public Examinations Act 2024: Too late, too little

Passed in February but notified in June, it lacks rules for implementation and might not be effective in checking malpractices like the NEET-UG leaks.

Students stage a protest demanding re-examination of NEET-UG 2024 results outside the Kashi Hindu University in Varanasi on June 8. | Photo Credit: PTI

By choosing to notify the Public Examinations (Prevention of Unfair Means) Act, 2024 on June 21—even though it was passed by Parliament on February 9 and received the President’s assent on February 12—the Centre has invited questions about its inexplicable delay.

When Parliament enacts an Act, it may leave it to the government to choose a future date to notify it. If an Act does not have such a provision, it comes into force immediately upon receiving the President’s assent. In some instances, the Act itself may specify the date on which it will come into force. Parliament delegates this power to the government to enable it to put proper mechanisms and institutions in place to enforce the Act. As per Section 1(2) of The Public Examinations (Prevention of Unfair Means) Act, 2024, it shall come into force on such date as the Centre may appoint by notification in the Official Gazette. The government did so by appointing June 21 as the date on which the Act’s provisions would come into force.

Section 16(1) requires the Centre to make rules, by notification in the Official Gazette, to carry out the Act’s provisions. Section 16(2) states that such rules may provide procedures, processes, and activities for conducting public examinations and any other prescribed matters. Section 17 requires that every rule made under the Act be laid before each House of Parliament while in session for a total period of 30 days to obtain its consent.

The delay in notifying the Act would have been justified if the government had prepared Rules during the intervening period. If the general election to Parliament prevented the creation of mechanisms and framing of Rules, there was no urgency to notify the Act on June 21. It could have awaited the laying of Rules in the upcoming session of Parliament. Without the requisite Rules in place, the Act would be unenforceable.

The national outrage against the recent question paper leak in the NEET-UG and UGC-NET exams has likely forced the government to appear to be taking stern measures against malpractices in public examinations, even though the notified Act cannot have retrospective effect.

The government was aware of the legislative vacuum in dealing with unfair means and offences committed by entities involved in conducting public examinations by the Centre and its agencies when introducing the Bill. In the Statement of Objects and Reasons, the government admitted that malpractices in public examinations lead to delays and cancellations, adversely impacting the prospects of millions of youth.

“Therefore, it is imperative that elements that exploit vulnerabilities of examination system are identified and effectively dealt with by a comprehensive Central legislation”, said Jitendra Singh, then Minister of State (Independent Charge) of the Ministry of Science and Technology, on January 29.

The Bill aimed to bring greater transparency, fairness, and credibility to public examination systems and reassure youth that their sincere efforts would be fairly rewarded. It also sought to deter individuals, organised groups, or institutions engaging in unfair means for monetary or wrongful gains.

The Bill specified that “candidates” would not be liable for action within its purview and would continue to be covered under existing administrative provisions of the concerned public examination authority. It is unclear whether the government maintains this leniency toward candidates, some of whom played dubious roles in recent question paper leaks and secured unjustified ranks.

The government declared that the Bill would serve as a model draft for States to adopt at their discretion, aiding them in preventing criminal elements from disrupting State-level public examinations.

Assuming the government believed in the Bill’s Statement of Objects and Reasons when introducing it in Parliament, ensuring its passage, and promptly securing the President’s assent, the four-month delay in notification and further delay in creating implementation mechanisms raise doubts about the government’s sincerity.

This inexplicable delay suggests that the government might have overlooked the issues plaguing the public examination system, despite awareness, believing that the proposed law, even if immediately notified, was unlikely to achieve comprehensive reform. Conversely, it is reasonable to suggest that the delay in notification may have emboldened individuals, organised groups, and institutions to continue their unfair practices for monetary gains, knowing the Act could not have retrospective effect.

The key clauses

The definition of “institution” in Section 2(1)(f) of the Act excludes the National Testing Agency (NTA), which is currently under scrutiny for its omissions and commissions. According to this provision, an “institution” refers to any agency, organisation, body, association of persons, business entity, company, partnership, or single proprietorship firm, by whatever name it may be called, excluding the public examination authority and the service provider engaged by such authority.

The Act specifies unfair means to include unauthorised access to or leakage of question papers or answer keys, assisting a candidate, tampering with computer networks or resources, tampering with documents for shortlisting or finalizing merit lists or ranks, conducting fake examinations, and issuing fake admit cards or offer letters for monetary gain. It also prohibits disclosing exam-related confidential information prematurely and unauthorised entry into exam centres to create disruptions.

The Act is perceived as harsh due to its stringent punitive clauses. Section 9 States that all offences under this Act shall be cognizable, non-bailable, and non-compoundable.

Students protest over the NEET-UG and UGC-NET examinations issue outside the Ministry of Education in New Delhi on June 20, 2024. | Photo Credit: SHASHI SHEKHAR KASHYAP/THE HINDU

Under Section 10(1), any person resorting to unfair means or committing offences under this Act shall be punished with imprisonment for a term not less than three years, which may extend to five years, and with a fine up to Rs.10 lakh. In case of default in payment of the fine, additional imprisonment shall be imposed, as per the provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS), likely to come into effect from July 1. Until the BNS is in force, the IPC shall apply.

Section 10(2) holds the service provider liable for a fine up to Rs.1 crore, and the proportionate cost of the examination shall also be recovered from the service provider. Also, the service provider will be barred from being assigned any responsibility for conducting public examinations for four years.

The Act shifts the burden of proving innocence to the accused under Section 10(4), which states that a person shall not be liable for punishment if they can prove the offence was committed without their knowledge and that they exercised due diligence to prevent the commission of such an offence.

The Act protects the chairperson, members, officers, and other employees of the public examination authority by designating them as ‘public servants’ within the meaning of the BNS. Section 14 of the Act states that no suit, prosecution, or other legal proceedings shall lie against any public servant for actions done in good faith or intended to be done in the discharge of their official functions or in the exercise of their powers. The first proviso to Section 14 specifies that public servants of any public examination authority shall be subject to administrative action as per the service rules of such authority. The second proviso states that nothing shall prevent proceedings against such public servants where a prima facie case exists for establishing the commission of an offence under this Act.

Public examinations refer to those conducted by authorities specified under the Schedule to the Act or notified by the Centre. These include the Union Public Service Commission, Staff Selection Commission, Railway Recruitment Board, NTA, Institute of Banking Personnel Selection, and Departments of the Central government and their attached offices for recruitment.

The Act’s stringent measures aim to deter cheating and the adoption of unfair means. However, the effectiveness of such provisions is questionable, as existing State laws against cheating in public examinations in Uttarakhand, Gujarat, Rajasthan, Chhattisgarh, Uttar Pradesh, and Andhra Pradesh have not proved to be effective deterrents. This raises concerns about whether the new law will genuinely prevent unfair means in public examinations or if it is merely lip service.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.