Introduction

The Public Examinations (Prevention of Unfair Means) Act, 2024 (‘the Act’) represents a significant legislative effort by the government to combat unfair practices in public examinations. While the Act’s objectives are laudable, its hasty implementation in the face of the backlash of the alleged malpractices in conducting the National Eligibility cum Entrance Test (NEET) and the University Grants Commission National Eligibility Test (UGC-NET) raises questions over its implementation as being nothing more than “damage control”. Some of its provisions raise several critical issues that merit a thorough intersectional legal analysis to understand the repercussions of this Act. This article will, first, examine potential flaws within the Act. Secondly, evaluate the solutions provided to some of these problems by the Public Examinations (Prevention of Unfair Means) Rules, 2024 (‘the Rules’). Finally, it will propose further legal solutions to address the remaining gaps.

Potential Flaws in the Act

Ambiguity in Definitions and Overreach

The Act contains broad and ambiguous definitions, particularly concerning “unfair means” (Section 3), “competent authority” (Section 2(c)), and “public examination authority” (Section 2(l)). This ambiguity can lead to subjective interpretation and inconsistent enforcement.

The term “unfair means” is defined broadly in Section 3 without clear examples or thresholds, which can lead to varying interpretations by different authorities. This lack of specificity can result in inconsistent application of the law and arbitrary enforcement actions. According to the Act, “unfair means” includes any act or omission done or caused to be done by any person or group of persons or institutions for monetary or wrongful gain. It further encompasses actions such as leakage of question papers, collusion, accessing or taking possession of exam materials without authority, providing unauthorised assistance during exams, tampering with answer sheets, and more. The use of broad phrases like “any act or omission,” “monetary or wrongful gain,” and “providing unauthorized assistance” opens the definition to a wide range of interpretations.

For instance, the Act does not specify which electronic devices are prohibited or under what circumstances. Does “unauthorized possession” include having a switched-off smartphone in one’s bag? What about carrying a smartwatch or a calculator that is turned off? Different authorities might interpret these situations differently, leading to inconsistent penalties. A student with a switched-off smartphone in their bag could be punished as severely as someone actively using a device to cheat.

Another area of ambiguity is the term “accessing or taking possession of exam materials without authority” which broadly covers unauthorised access to exam materials. Does this include accidentally finding a dropped question paper or overhearing a leaked answer? The broadness of “without authority” can lead to penalising individuals who did not intentionally seek out these materials. For example, a student who finds a dropped question paper in the hallway and picks it up with the intention of returning it to an official could be penalised under this broad definition. The Act should clarify that intentional and malicious actions to gain unauthorised access are punishable, while inadvertent or incidental encounters are not.

Broad and ambiguous definitions invite legal challenges. A similar issue of broad and ambiguous definitions can be seen in the Prevention of Money Laundering Act (PMLA). The PMLA was enacted to prevent money laundering and to provide for the confiscation of property derived from money laundering. However, the Act included broad definitions, such as “proceeds of crime” and “money laundering,” which were criticised for being overly inclusive and vague.

For example, under the PMLA, “proceeds of crime” is defined as any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. This broad definition could potentially encompass a wide range of activities, including legitimate business transactions that are indirectly linked to criminal activity. The term “money laundering” itself is defined in a manner that can include not only those directly involved in laundering money but also those who inadvertently facilitate the process, leading to concerns about overreach and potential misuse.

Just as the ambiguous definitions in the PMLA led to legal challenges and concerns about the potential for arbitrary enforcement, the broad definitions in the Act invite legal challenges. Ambiguous definitions lead to several significant issues. Firstly, authorities may apply the law based on personal interpretations, leading to unfair treatment of candidates. For example, one exam centre might impose severe penalties for minor infractions, while another might overlook significant breaches. Secondly, candidates and institutions may contest penalties and decisions in court, leading to prolonged litigation and uncertainty. This can undermine the primary goal of the Act to deter unfair practices. If the law is perceived as arbitrary or unfairly applied, it fails to deter misconduct effectively. Lastly, similar offences may be treated differently, undermining the principle of equal treatment under the law. For instance, two candidates caught with similar infractions might receive vastly different punishments depending on the subjective interpretation of “unfair means” by different authorities.

Disproportionate Punishments

The Act mandates severe minimum punishments for offences (Section 10), which may be disproportionate for minor infractions, potentially leading to unjust outcomes. The severity of these punishments does not consider the varying degrees of offences and the context in which they occur. These overly severe penalties can lead to unjust outcomes, deter reporting of minor infractions, and ultimately undermine the fairness and integrity of the examination system along with nullifying the very object of the Act.

For example, the Act mandates a minimum imprisonment term of three years for any person found guilty of resorting to unfair means (Section 10). This includes minor infractions such as unauthorised possession of electronic devices. A candidate caught with a switched-off smartphone in their bag, even if the phone was not used to cheat, would face a minimum of three years in prison. This is disproportionate to the severity of the offence as the student would still face the same minimum imprisonment term as someone involved in a sophisticated cheating ring.

Similarly, the Act also specifies additional imprisonment for default on fine payments (Section 10 (1)), which can disproportionately affect financially disadvantaged individuals. Candidates from lower socio-economic backgrounds may struggle to pay hefty fines and face additional imprisonment, exacerbating existing inequalities. For instance, a candidate from a poor family caught with unauthorised notes might be fined ten lakh rupees. If unable to pay, they face extended imprisonment, adding a severe burden on both the individual and their family.

Potential for Misuse and Corruption

The broad enforcement powers granted by the Act without sufficient checks and balances can lead to misuse of power and corruption. The lack of oversight and accountability mechanisms may result in arbitrary enforcement and abuse of authority.

This can be countered by establishing specific checks and balances to ensure enforcement powers are exercised judiciously. This includes measures such as judicial authorisation for certain actions. For instance, before conducting a raid on a suspected cheating ring’s headquarters, authorities would need to obtain a court order after proving a prima facie case. Independent oversight committees would help to monitor the actions of enforcement authorities and address complaints of misuse or abuse.

Such transparent procedures and regular audits will enhance accountability. They would ensure that the powers granted by the Act are used responsibly and transparently, preventing corruption and protecting the rights of candidates.

Whistleblower Protection

One of the major flaws of the Act is that it lacks explicit protections for whistleblowers. Whistleblowers play a crucial role in exposing unfair practices and ensuring the integrity of public examinations. However, without explicit protections, individuals who witness or are aware of malpractice may be reluctant to come forward. Fear of retaliation—such as loss of employment, harassment, or legal action—can prevent crucial information from reaching authorities, allowing unethical practices to persist. For instance, a teacher at an examination centre becomes aware that a colleague is leaking exam papers to a group of students for financial gain. Without whistleblower protection, the teacher fears retaliation from the colleague and the administration, who might seek to cover up the incident to avoid scandal. As a result, the students who receive the leaked papers gain an unfair advantage, undermining the integrity of the examination and disadvantaging other students.

Similarly, take the case of an IT specialist working for an examination board who discovers a security vulnerability that could allow hackers to access exam questions. Fearing that reporting the issue might lead to job loss or legal action due to the potential fallout, the specialist remains silent. This could be exploited by malicious actors, leading to a widespread cheating scandal. The credibility of the examination board is severely damaged, and the results of affected examinations are called into question.

Technological Challenges

The Act lacks comprehensive provisions to address the numerous technological challenges associated with modern examination processes. These challenges include cybersecurity threats as the Act does not specify measures to prevent or mitigate cybersecurity threats, such as hacking into examination systems, leaking exam papers online, or unauthorised access to digital exam materials. There is no explicit mention of how to handle digital cheating methods, such as the use of sophisticated gadgets, AI tools, or software that can predict or manipulate exam answers. It also does not address the need for stringent data protection policies to secure the sensitive information of candidates and examination materials.

Analysis of the Rules

The Rules, published on June 24, 2024, address some of the issues identified in the Act but leave certain gaps unaddressed. While they provide more detailed guidelines and structure to some of the Act’s provisions, they do not comprehensively solve all the challenges presented by the Act.

Addressed Issues

Some technological challenges are addressed through the introduction of Computer-Based Test Provisions in Chapters III & IV. The Rules include detailed guidelines for managing computer-based tests, covering registration, biometric check-in, question paper management, and evaluation. These provisions help in standardising the procedures and securing the digital examination process.

Norms, Standards, and Guidelines (Section 5) specify requirements for digital infrastructure, including server specifications, network infrastructure, and security measures. This ensures that the physical and digital setup for examinations meets high-security standards.

Regarding misuse and corruption, reporting mechanisms are introduced in Chapter VII of the Rules. They provide structured formats (Forms 1 and 2) for reporting incidents of unfair means or offences, involving multiple levels of review. This structured reporting can help in documenting incidents comprehensively and ensuring that they are addressed systematically.

Remaining Issues and Further Solutions

Ambiguity in Definitions and Overreach

The Rules do not address the broad and ambiguous definitions in the Act. To resolve this, the Act should be amended to provide clearer, more specific definitions. For example, “unfair means” (Section 3) should include explicit examples and thresholds. Currently, the term could encompass a wide range of behaviours, from minor infractions like bringing unauthorised notes to severe offences like hacking into examination systems. Defining these explicitly helps to ensure that enforcement actions are not arbitrary and applied uniformly.

For instance, collusion with exam officials is one term that could be interpreted broadly. The extent of interactions that constitute collusion is not clearly defined. Is any communication with exam officials suspect, or only those that involve sharing exam content? Could asking for clarification on a question be considered collusion? This lack of clarity can lead to allegations of collusion based on trivial interactions. An exam official discussing general exam procedures with a candidate could be interpreted as collusion by some authorities. The Act should define collusion explicitly, such as direct communication involving the sharing of exam content or unauthorised assistance, while incidental or non-substantive interactions should not be penalised.

Similarly, in ‘unauthorized possession of electronic devices’ it should specify which devices are prohibited and under what circumstances, like using smartphones during an exam versus merely having one in possession. For example, a student caught using a smartphone to look up answers during an exam should face much more severe penalties than a student who simply has a switched-off phone in their bag.

Furthermore, the roles and responsibilities of the “competent authority” and “public examination authority” should be distinctly outlined to prevent jurisdictional conflicts. For instance, the “competent authority” could be defined as the Ministry overseeing the examination process, while the “public examination authority” could be the specific bodies conducting the examinations like the Union Public Service Commission or the Staff Selection Commission. This delineation ensures that each entity knows its boundaries and responsibilities, reducing overlap and potential conflicts. A well-defined scope will ensure that enforcement actions are not arbitrary and are applied uniformly.

Disproportionate Punishments

The Rules do not address the issue of severe minimum punishments. The solution here could lie in introducing a tiered penalty system that categorises offences based on their severity. For instance, the Act could specify:

Minor Infractions: For example, a student found with handwritten notes that were not used during the examination but were present in their possession. Here, the appropriate and proportionate penalty would be a small fine of INR 5,000 and they could be barred from the exam.

Moderate Infractions: Here, take the case of a candidate caught with a smartwatch or earpiece used to receive answers during the exam. He should face a suspension from taking any public examinations for one year and a fine of INR 50,000.

Severe Infractions: An organised cheating racket involving multiple candidates and exam officials, using high-tech methods to leak and distribute exam papers should face the strictest penalties. For example, a group that sets up a network to steal exam papers, distribute them to candidates, and manipulate results would face the harshest penalties. Here, the punishment could be imprisonment for up to five years and a fine of INR 1,000,000.

Categorising offences based on their severity is necessary. This system should take into account the nature and context of the offence, ensuring that punishments are fair and just. This approach allows for a more nuanced application of the law, considering the intent, impact, and circumstances of each offence.

Technological Challenges

While the Rules cover digital infrastructure, they do not mandate regular security audits or an incident response plan. Including provisions for regular cybersecurity audits and a detailed incident response plan will help in identifying and mitigating potential threats proactively. For example, examination authorities could be required to conduct annual cybersecurity audits and have predefined protocols for responding to data breaches.

Furthermore, the Rules lack detailed provisions for penalising specific digital malpractices. While they cover the management and security of digital exams, they do not explicitly define and penalise offences such as the use of AI tools to manipulate exam answers or hacking into exam databases. The solution to this lies in amending the Rules to explicitly define and penalise specific digital malpractices. Clear penalties will act as a deterrent and ensure consistent enforcement.

Misuse and Corruption

The Rules provide structured reporting but do not establish independent oversight committees. Forming independent oversight committees to monitor enforcement actions and investigate complaints is essential. These committees should be empowered to take corrective actions and ensure accountability. For instance, independent oversight bodies could review the actions of examination authorities and ensure that enforcement powers are not misused.

Structured reporting mechanisms, as provided by the Rules, are essential for documenting incidents of unfair means and ensuring that they are addressed systematically. However, without independent oversight, these mechanisms can lead to several problems like bias and partiality where examination authorities, tasked with both conducting exams and enforcing rules, may have conflicts of interest. They might overlook or downplay infractions to protect their reputation or the success rates of their exams. Similarly, there exists a lack of accountability as without independent oversight, there is no external body to hold examination authorities accountable for their actions. This can lead to arbitrary and unchecked enforcement of rules. Different examination authorities may interpret and enforce the rules differently, leading to inconsistencies and perceived unfairness among candidates.

In 2018, the Central Board of Secondary Education (CBSE) faced a scandal when question papers for the Class 10 mathematics and Class 12 economics exams were leaked. The lack of independent oversight meant that internal reviews were insufficient to restore public trust. An independent committee could have provided a transparent investigation, held responsible parties accountable, and recommended systemic improvements. Similarly, NEET saw a major impersonation scam in 2019, where candidates hired impersonators to take the exam on their behalf. An independent oversight body could have ensured a thorough and impartial investigation, identified loopholes in the examination process, and proposed measures to prevent such incidents.

Whistleblower Protection

The Rules do not explicitly provide legal immunity or incentives for whistleblowers. Incorporating a whistleblower protection clause ensuring confidentiality and protection from retaliation would help alleviate such concerns. For example, creating confidential reporting mechanisms with secure channels, such as encrypted online portals and anonymous hotlines, for reporting unfair practices. These channels would protect the identity of the whistleblower and ensure their safety. Providing legal protection against defamation suits and other retaliatory actions for whistleblowers who report in good faith would also help improve such a mechanism. For example, a teacher who reports an organised cheating scheme would be protected from any legal action taken by those implicated in the report. with incentives such as monetary rewards and public recognition can further encourage reporting. Introducing such a clause along with incentives such as monetary rewards and public recognition can further encourage reporting.

Conclusion

The Public Examinations (Prevention of Unfair Means) Act, 2024, along with its accompanying Rules, represents a significant effort to ensure the integrity of public examinations in India. However, several issues remain unaddressed, requiring further legal amendments and the introduction of additional provisions. By refining definitions, introducing a tiered penalty system, establishing checks and balances, addressing technological challenges, and protecting whistleblowers, the Act can better achieve its objectives of fairness and integrity in public examinations. These comprehensive legal solutions will help create a robust and equitable examination system, safeguarding the rights of all stakeholders and upholding the principles of justice.

(This post has been authored by Saksham Agrawal, a second-year law student at National Law School of India, Bangalore)

CITE AS: Saksham Agrawal, ‘Damage Control or Reform? Decoding the Public Examinations Act, 2024’ (The Contemporary Law Forum, 1 August 2024) <https://tclf.in/2024/08/01/damage-control-or-reform-decoding-the-public-examinations-act-2024/>date of access.