On 28.08.2020, the Supreme Court (“Court”) had dismissed the writ petitions challenging UGC’s guidelines dated 06.07.2020 mandating all Universities to compulsorily conduct and complete exams for all final year students by 30.09.2020 (“revised guidelines”).

Among other things, the Petitioners had argued that the revised guidelines violated their right to equality under Article 14. It is also important to note that the revised guidelines were challenged by final year students as well as States such as Maharashtra.

In this piece, the authors will focus their analysis to the Court’s findings on the Article 14 issue raised by the Petitioners.

Summary of the UGC Guidelines

1. 04.2020 guidelines

The first set of guidelines were issued by UGC on 29.04.2020. The same was advisory as can be inferred from their preamble, which reads:

“The guidelines are advisory in nature and each university may chart out its own plan of action taking into consideration the issues pertaining to COVID – 19 Pandemic.”

Furthermore, under Point 4 of the Examination section, it was stated that,

“Terminal semester/year examinations for PG/ UG courses/programmes may be conducted by universities as suggested in the academic calendar keeping in mind the protocols of “social distancing”

Additionally, the guidelines also provided an Academic Calendar with the disclaimer that:

“The Academic Calendar is suggestive in nature. The universities may adopt/adapt it after making a comprehensive assessment of their level of preparedness…..”

Under this Advisory Academic Calendar, it was suggested that the evaluation and declaration of results for the terminal semester students could be done by 31.07.2020.

2. 07.2020 guidelines

The UGC came out with its revised guidelines in July. Point 1 provided that for terminal semester students,

“The universities are required to complete the examinations by the end of September 2020 in offline (pen & paper)/online/blended (online + offline) mode following the prescribed protocols/ guidelines related to COVID-19 pandemic.”

While the first set of guidelines gave latitude to the Universities to evaluate the pandemic situation and “chart out its own plan” regarding the conduct of examinations and the academic calendar, the second set of guidelines made it mandatory on the Universities to conduct examinations for final year students by September end.

Article 14 challenge: Arguments of the Parties

The revised guidelines were challenged by final year students as well as state governments for being violative of Article 14 of the Constitution. The challenge was raised mainly on the following grounds: –

a. Revised guidelines are violative   of   Article   14   because   they   apply throughout   the   India   and   give   one   fix   date,   e., 30.09.2020 irrespective of the conditions prevailing in the State. The argument was that various states are facing different level of threats and different difficulties, such as floods, cyclones etc. and thus imposing the same deadline for conduting exams on all the states is discriminatory.

b. There is no rational distinction/intelligible differentia between final year students and other students, and thus mandating exams only for final year students is discriminatory.

c. The revised guidelines are manifestly arbitrary.

The Respondents, in support of the revised guidelines argued that: –

a. The revised guidelines were issued after   application   of   mind   and   due consideration   of   ground  

b. Final year exams are very important, as “the performance in examination brings in scholarship and recognition, as well as job opportunities“.

c. Decision to conduct the exams by September 30^th has been taken to ensure that the degrees of the students are provided to them at the earliest for admission into foreign universities and higher education, and is thus in the interest of the students themselves.

Article 14: Questions before the Court

From the aforementioned submissions of parties, the questions facing the Court were: –

1. Whether the same deadline could be fixed for all states?
2. Whether holding exams only for final year students was a violation of Article 14?
3. Whether the revised guidelines were manifestly arbitrary?

Court’s findings

Each of the petitioners three arguments required the Court to apply a different test to determine whether the revised guidelines violated Article 14 or not.

1. Same deadline for all states

The essence of this argument was that the revised guidelines treated unequals equally by imposing a uniform deadline on the States. It has been time and again reiterated that treating unequals as equals is also a violation of Article 14, and a constitution bench of the Court had in Twyford tea Co. Ltd. And Another vs The State Of Kerala And Another elucidated on the test to be followed by the Court in such cases: –

“If different subjects are equally treated there must be some basis on which the differences have been equalised otherwise discrimination will be found. To be able to succeed in the charge of discrimination, a person must establish conclusively that persons equally circumstanced have been treated unequally and vice versa.”

Thus when the Petitioners had argued that each State was an ‘unequal’ due to the different threats facing them, the Court was required to satisfy itself that these different threats were equalised by the revised guidelines before they could treat the ‘unequal’ states equally by imposing a uniform guideline.

However instead of this examination, the Court rejected the argument by holding that a same deadline was necessary to maintain “uniformity”, and failed to examine whether the differences between the states were equalised by the revised guidelines or not.

2. Conducting final examinations only for final year students

The Court dealt with the second question in in three paras (70-73). Here, the Court highlighted the importance of exams. Concerning the differential treatment of final year students, it went on to explain on the importance of exams for final year students, it held that exams are the only way to figure out what students know, it is a reflection of their capability, an opportunity to improve their overall marks and crucial for employment oppurtunities.

Based on these observations the Court held that the revised have a rational basis and there is an intelligible differentia between the student of Final year/Terminal semester and other students, and thus rejected this challenge.

In its reasoning, the Court nowhere explains why exams are more important for final year students than the other students. Surely the observations regarding the importance of examinations should be equally applicable to all students, even for employment opportunities, any prospective employer is only concerned with the aggregate marks of the student and not just her terminal semester marks – as terminal semester exams are not like Class X or XII marks. This examination was necessary to explain as to why final year students are to be treated as a separate class.

Furthermore, the Court could not have stopped its examination here, as has been held in numerous cases, the ‘classification test’ has two requirements, i.e: –

(a) an intelligible differentia between the individuals or groups that are subjected to differential treatment;

(b) a rational nexus between that differentia and object sought to be achieved by the State.

So even if the Court concluded that there was a rational distinction between final year students and other students, it still needed to examine that this distinction had a reasonable nexus with the object sought to be achieved by the revised guidelines.  This can be seen from a constitution bench judgement of the Court in Kangsari Haldar & Another vs The State Of West Bengal), wherein the Court held that,

“If both these tests are satisfied the statute must be held to be valid…… If either of the two tests is not satisfied the statute must be struck down as violative of Art. 14.”

In its Judgement, the Court firstly did not explain the intelligible differentia between terminal semester students and other students, and secondly it did not even attempt to test the revised guidelines against the second limb of the classification test.

3. Manifestly Arbitrary test

The Court rejected this argument by holding that the revised guidelines were issued after proper application of mind as: –

a. The academic calender in the earlier guidelines contemplated the conduct of examinations by July 2020, and the revised guidelies extended this deadline to September after noticing that “The number of covid cases are still rising and likely to increase further…”

b. The revised guidelines allowed three modes for conducting examinations for final year students (Offline, Online and Hybrid mode).

c. Provision for examination through special chance to any final year student who is unable to appear in the examinations due to any reasons.

Now unlike the “classification test”, there are no fixed standards for applying the manifestly arbitrariness test, and the Court has previously explained arbitrariness to be, “Manifest arbitrariness, therefore, must be something done capriciously, irrationally and/or without determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”

Thus there is no specific manner in which this test needs to be applied, however it can be noted that, here, the Court failed to note that the academic calender provided under the earlier guidelines were only suggestive in nature, and allowed the Universities to adapt them to their needs. Furthermore, since there was no mandate for conducting examinations for the final year students in the earlier guidelines, many Universities, including certain National Law Universities and IITs’ had awarded degrees based on the aggregate marks of the final year students.

Maybe if the Court had taken these factors into account, then the result would have been different.

Conclusion

During the hearing, Justice Bhushan had observed that students cannot decide on their welfare, and that only the authorities were competent to decide the same. However the students could hope that the authorities make reasoned decisions on their future, and that when the decision was challenged before the Court, the Court would examine the decision against the constitution by applying the well established constitutional tests under Article 14. In our humble opinion, the Court has failed in this exercise.

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ABOUT THE AUTHORS

Pranav Narsaria

Pranav is an advocate based in Mumbai and can be reached at pranavnarsaria@gmail.com.

Vishal Sinha

Vishal is an advocate practicing in the Supreme Court of India and can be reached at vishalfkt@gmail.com.