Karnataka High Court Reserves Judgment On State's Appeal To Conduct Board Exams For Classes 5, 8, 9 And 11

The Karnataka High Court on Monday reserved its verdict on the appeal filed by the State Government challenging a single judge bench order which quashed its decision to hold Board Exams for students of Classes 5, 8 and 9 and 11 standard of the schools affiliated to the State Board.

A division bench of Justice K Somashekhar and Justice Rajesh Rai K reserved the order after hearing the parties. It said “Matter is heard in toto. Matter is reserved for judgment. Parties are permitted to submit their written submissions forthwith.”

Karnataka government had brought out two notifications dated October 6 and October 9, 2023 appointing the KSEAB (Karnataka School Examination & Assessment Board) as competent authority to conduct the "Summative Assessment-2" exams.

This decision was challenged before the High Court and a Single Judge had quashed the government notifications. However, in State's appeal to a Division Bench, the Single Judge's judgment was stayed. Challenging the Division bench order, organisations of private schools and parents filed special leave petitions before the Supreme Court which put a hold on the exams by setting aside the interim order.

In appeal the state government argued that no student or parent has come before the court because it is in their interest "...if the exam is to be quashed now, the respective schools will have to draw the exams for the students. It is not that exams will not be held. We will now have to tell govt school teachers to set the exams paper but the standards will drop," Additional Advocate General Vikram Huilgol appearing for the State contended.

He argued that the impugned notifications quashed by the single judge merely designate KSEAB as the competent authority to conduct the exam and it is the Government Order dated November 16, 2023 which in fact declares that board exams (officially termed as Summative Assessment-2) for classes 5th, 8th, 9th and annual examination for class 11th for the subject academic year will be held. However, the GO remained unchallenged.

It was said “Section 22 of the Karnataka Education Act empowers the competent authority to regulate the examination system by prescribing internal assessment, external assessment or partly internal and partly external assessment. He argued that to exercise such powers, issuance of notifications by way of executive action is sufficient and there is no mandate under Karnataka Education Act or KSEAB Act to frame Rules for holding exams.”

Further, the Single Judge has proceeded to quash the impugned Notifications, sans any observation, either on the power of the State Government under Section 22 of the Karnataka Education Act to regulate the scheme of assessment/examination; or the power of the KSEAB under Section 15(a)(iv) of the KSEAB Act, the AAG argued.

Counsel A Velan appearing for a parents body who was impleaded in the appeal argued that parents have a fundamental right in such cases. "No notice is given to me...is it not a violation of my constitutional rights?”

Referring to the Constituent Assembly debates, National Education Policy, US Court decisions, Apex court decisions and International Covenants to which India is a signatory, Velan argued, “Executive cannot be allowed to issue the notification without consultation with the stakeholders...I am not contending that board exams should be or should not be conducted, but we should be consulted, and our view should be considered.”

Velan claimed that exam anxiety is one of the causes for suicide among students and urged that the examination may be conducted, if found in best interest of students on consideration of all relevant factors, only after the parents are consulted. "My parental rights here is being robbed."

Advocate K V Dhananjay appearing for the Registered Unaided Private Schools Management Association Karnataka & others submitted that the GO, as claimed by the State, has remain unchallenged as it is a government proceeding and nobody challenges it. "The impugned notifications introduce a board exam for schools and college affiliated to SSLC board by invoking Section 22 of Karnataka Education Act. We have questioned this, and this is notified. The notification in the official gazette becomes law.”

Further he contended that both the notifications are not issued after framing rules under Section 145 of the Karnataka Education Act and they go before Legislature. He said, “Law is made by Karnataka Legislature--The Education act. State government is exercising delegated legislation. If the Legislature has decided that they want a particular statute to be implemented in a particular manner, the delegate (state) has to simply abide by it. It cannot come out with a notification.”

Emphasising that there cannot be excessive delegation, Dhananjay said “Section 22, taken as the whole framing of Rules is mandatory.” He added “Rules are always made after the previous publication. Section 41 of the Act also emphasises on framing of rules. That is because education is an extremely valuable activity, school cannot be shut down on frivolous purpose or ground.”

He added, “The impugned notification was not following the procedure. they just say ignore Section 22, and Section 145, it cannot be done.The question is when the statute says framing rules, then it has to be done by framing rules. It cannot be done by way of issuing notifications...Under Section 145 previous publication of rules is mandatory. Section 22 cannot be read in such a way that it violates section 145 it is not permissible.”

Dhananjay also claimed that if section 22 were to receive the meaning the State wants, the next day it can be questioned by a school seeking to strike it down on the ground of excessive delegation. "It should not be open to being attacked.”

Further he claimed “The impugned notifications are orders, violation by schools, if the government wants to proceed against the school, they are not able to show under which provisions violation will be punished. Without framing rules the notifications have to go. They cannot say 'so what' rules are not framed such an argument is not maintainable.”

Case Title: State of Karnataka & Others And REGISTERED UNAIDED PRIVATE SCHOOLS MANAGEMENT ASSOCIATION KARNATAKA & others.

Case No: WA 293/2023.