BCI Direction To Conduct End Semester Examination : A Constitutional Scrutiny

The preamble objective of quality travels through the vehicle of article 14, 15, and 16 of Indian Constitution. Article 15 and 16 are narrow in their scope and limited to certain specific situations, but whereas article 14 is more broad and a general protection against the violation equality. The equality jurisprudence has been advanced considerably in recent past through various judgements of the constitutional courts of our country. The Hon'ble Delhi High Court in Madhu v. Northern Railway^[1]placed its reliance upon a Canadian supreme court judgement Andrews v Law Society of British Columbia^[2] and held that: "the touchstone to examine the validity of an allegedly discriminatory action is whether or not the effect of the action has a disproportionate impact on a class of citizens." and thereby read the doctrine of 'Disparate Impact' within the equality scheme of our constitution. Disparate Impact basically means the adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex^[3]. It is to be noted that the Hon'ble Delhi High Court did not restrict the operation of this doctrine only to the instances of article 15 or 16 but intentionally extended it to cover class of citizens to confer a greater protection under article 14. A detailed discussion on this can also be traced in His Lordship Justice Dr. D Y Chandrachud's concurring view, in Navtej Singh Johar v. Union of India^[4], under the heading "E.1 Facial neutrality: through the looking glass(para 394 and 395 )" where it was held that : "Thus, when an action has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society, it would be suspect."

The Bar Council of India's direction to conduct the end semester examination might appear to be a neutral academic standard on its face and non-discriminatory by its intention, however if we investigate little deep into it we realise that this examination, if conducted, will only become a new tool to indirectly discriminate against the students from the lower socio-economic section on the wrong side of the digital divide. Prof.(Dr.) Yogeesh. J, Principal P E S Law College Mandya, Karnataka says, "In my college, I have many of my students coming from low socio-economic background who are unfortunately not being able to attend online classes due to various barriers. The total strength of my college is around 180 out which only around 90 students are being able to avail this facility of online education." Similar response came from Dr. Sanjith M N, Principal, S B R R Mahajana Law College, Mysore Karnataka. He said that out of 140 students in his college, only 40 to 50 students are being able to take the advantage of the online learning process. A global study conducted for the year 2018 by Pew Research Centre^[5], suggests that among the surveyed countries, ownership of smartphone is lowest in India, where only 24% report having a smartphone. Another nationwide survey conducted by National Statistical Office, Ministry of Statistics and Programme Implementation, Government of India on Household Social Consumption: Education for the year 2017-18 shows that only 10.7 % Percentage of households has a computer while 23.8 % households has an internet facility In India and the percentage goes down to 4.4 and 14.9 respectively in rural India.^[6] Further mere access to internet is not sufficient to take part in the digital education, but one must also necessarily have consistency and stability in the internet connectivity. A 3^rd year student of law at Karnataka State Law University's Law school, Hubli, Karnataka, Mr. Shambhunath Yadiyapur, says "My endeavours in the contest of online education have been futile due to constant deprivation of reliable accessibility of the internet in my region(Dunetha, Daman and Diu); the recent Cyclone didn't help either. Furthermore, monsoon would be an additional menace."

So therefore the students who are unable to follow the online mode of education for various reasons like affordability, accessibility, remote locality etc., would effectively be compelled to write examination on subjects which they were never taught and that will have a disproportionate impact on these students and will impose an extra burden, obligation, or disadvantage on such individuals who were already marginalised. The Bar Council of India vide its communication dated 27th May, 2020 (bearing letter No.BCI:D:1401/2020) or the Press Release Dated 09.06.2020 surprisingly does not address on how the law universities/colleges must move ahead to take remedial measures so as to mitigate the adverse effect of the shutdown of the educational institutions. There is now widespread agreement that in a national health emergency situation like this, the flow of education must go on through the online modes. But we must not forget that education is a right in our country, and internet is a privilege. India as it stands today, cannot afford to evaluate its students based on education which is disseminated through internet.

Therefore In my opinion The Bar Council of India's direction to conduct the end semester examination does not satisfy the constitutional demand of article 14 and hence is unconstitutional.