Is the Unfair Practices Act being Fair Enough???

They say that a single piece of paper cannot decide your future, but it does. Recently, the NEET-UG Examination conducted by National Testing Agency (NTA) for the admission to M.B.B.S, B.D.S, AYUSH and other related courses in the Government and the Private institution across the country was leaked. Posing a very big question as to where the buck should stop. It is very unfortunate that the lives of the youth who are appearing for this exam is in jeopardy. The entire question zero down to various levels including:

 a. Paper leak,

b. Sale and purchase of Papers,

c. Cheating as an unfair practice,

d. The existence of Paper leak Mafia,

e. The role of the authorities who are involved in such scam.

At least 48 instances of paper leaks in 16 states over the last five years, in which the process of hiring for government jobs was disrupted. The leaks touched the lives of at least 1.51 crore applicants for about 1.2 lakh posts. The introduction of a new Act. The Public Examinations (Prevention of Unfair Means) Act 2024 came into being.

 What the Act Consist of:

It seeks to prevent the use of “Unfair Means” in public examinations and brings greater transparency, fairness and credibility. The primary aim is to check cheating in Government recruitment exam.

The schedule lists Five Public Examination Authorities, Union Public Service Commission (UPSC), the Staff Selection Commission (SSC), the Railway Recruitment Boards (RRBs), the Institute of Banking Personnel Selection (IBPS), the National Testing Agency (NTA).

NTA conducts the JEE (Main), NEET-UG, UGC-NET, the Common University Entrance Test (CUET). Apart from these designated public examination authorities, all “Ministries or Departments of the Central Government and their attached and subordinate offices for recruitment of staff” will also come under the purview of the new law. Also the central government can add new authorities in the schedule through a notification as and when required.

This includes:

a.   Monitoring the conduct of examinations,

b.  Handling of complaints

c. Auditing of examination procedures to detect and prevent malpractices

d.  Tampering with the computer systems.

e.   Manipulation in seating arrangements. 

Unfair Means Defined under the Act:

The unfair means relating to the conduct of a public examination shall include any act or omission done or caused to be done by any person or group of persons or institutions, and include but not be restricted to, any of the following acts for monetary or wrongful gain.

It lists at least 15 actions that amount to using unfair means in public examinations for monetary or wrongful gain. Few are mention herein:

(i) leakage of question paper or answer key or part thereof;

(ii) participating in collusion with others to effect leakage of question paper or answer key;

(iii) tampering with any document necessary for short-listing of candidates or finalising the merit or rank of a candidate in a public examination;

(iv) deliberate violation of security measures to facilitate unfair means in conduct of a public examination;

(v) manipulation in seating arrangements, allocation of dates and shifts for the candidates to facilitate adopting unfair means in examinations;

(vi) creation of fake website to cheat or for monetary gain;

(vii) conduct of fake examination, issuance of fake admit cards or offer letters to cheat or for monetary gain.

Offence & Punishment:

Offender	Punishment	Fine
Any person committing the offence	3-5 years imprisonment	Upto Rs.10 lakhs
The service provider	4-year bar from conducting the public exam	Upto Rs.1 crore and proportionate cost of exam
Director, Senior Management or person in-charge of service provider	3-10 years of imprisonment	Upto Rs.1 crore
Persons involved in organized crime	5-10 years of imprisonment	Upto Rs.1 crore
Institution involved in the organized crime	Attachment and forfeiture of the property	Proportionate cost of exam

If the convict fails to pay the fine, “an additional punishment of imprisonment shall be imposed, as per the provisions of the Bharatiya Nyay Sanhita, 2023.

Disadvantages:

Discretion of State Governments:

While the bill aims to serve as a model for states to adopt, the discretion given to state governments may lead to variations in implementation across different states. This could potentially weaken the effectiveness of the law in preventing unfair means in public examinations.

Exploitable Loopholes in Sanctions:

The provisions of the bill, such as the punishment for offenders, may contain loopholes that can be exploited to evade criminal sanctions. For example, if the fine imposed on a service provider is not commensurate with the financial gains they derive from unfair means, it may not serve as a sufficient deterrent.

Lack of Clarity on National Technical Committee:

While the bill proposes the formation of a High-Level National Technical Committee on Public Examinations, there is a lack of clarity regarding its composition, qualifications, and mandate.

Without clear guidelines on the composition and qualifications of committee members, there may be concerns regarding their expertise and impartiality in devising foolproof IT security systems and national standards for examination conduct.

Potential for Legal Challenges:

The bill may face legal challenges related to its provisions on cognizability, non-bailability, and non-compoundability of offenses. There could be debates on whether such stringent measures are proportionate to the gravity of the offenses and whether they adhere to principles of natural justice.

Conclusion:

Cheating is a form of theft. Theft is a punishable offence under India Law. Keeping this view in consideration cheating is recognized as an offence and punishments have been prescribed to deal with the same. How far the punishment will act as a deterrence will be evident in the coming years. It is a sad state of affairs that the cheating in exams which used to be confined to few students has assumed such a huge proportion with the coming years. We can safely put this in the category of organized crime and a White Collar Crime which runs in a network.

The focus should now shift on to the students around which the whole scams revolve. The entire education system runs like a market where the examinee/students are treated like consumers of the product called the question paper. Since the consumers (Examinee/students) demands the product (Question Paper) the service providers like Institutions, Director, Senior Management or Person in-charge of Exam provides the supply (Question Paper) of the same. Like the real market condition, the price of the commodity (Question Paper) is fixed accordingly.

 Since many students/examinees belong to the poor section of the society they may be forced to sell off their lands or put their land and houses on mortgage so that they are able to purchased the question papers. This process in-turn would force these students later once they assume office to take heavy bribes making the entire system a corrupt process. Further, on the economic scenario this may lead to high inflation making the market very expensive where a common man may be affected badly.

 As we have seen that the process of cheating manifest itself in all kinds of social and economic maladies it is therefore required to use ethics and morality to train the students not to get involved in such activities which may have multiple repercussion thereby effecting the entire Nation.

The legislation alone cannot be a solution to such a deep-rooted malady. This process is adversely affecting those students who are hardworking and meritorious. They do not find any place in the main stream society and are deprived of their Fundamental and Human Rights. Some meritorious student reported to have committed suicides this is a complete sham and speaks in volume about corruption making inroads in to the subject like education in years to come if this is not checked it would result in application of Gresham Law principle which states bad money drives good money out of circulation. Similarly bad students will drive good students out from the society.

- MAMTA SINGH SHUKLA

(ADVOCATE DELHI HIGH COURT)

MOBILE - 9560044035

Email id - adv.mamtasinghshukla@gmail.com