Examining Public Examinations (Prevention Of Unfair Means) Act: Does It Pass Critical Lens?

WHY IS THE ACT APPARENTLY PICTURE-PERFECT?

• Wide Scope of Application

The Act is the first of its kind legislation for dealing with unfair practices and offences involved in the conduct of public examinations by the Central Government. The scope of the Act has been kept wide enough to accommodate other agencies as required, which can be added through notification by the Central Government^[2].

• Considerate of the Candidates' Welfare

Bona fide candidates of the public examinations are kept outside the purview of the Act. As specified in the Statement of Objects and Reasons^[3], even the defaulting candidates will not be punished within the Act however, appropriate action will rather be taken by the concerned public examination authority.

• Inclusive and Comprehensive

The Act contains a total of 19 Sections divided into VI Chapters to comprehensively address all of the issues pertaining to the prevention of unfair means in the public examination. The legislation is quite inclusive in terms of the definitions. For instance, it deals with various kinds of unfair means ranging from leakage of the question paper, direct or indirect assistance to any candidate to violation of security measures and even tampering with the computer systems. It also takes into account minute details like manipulation in seating arrangements and so on.

• Stringent and Equitable Punishment

The Act, while assigning stringent and preventive punishment for offenders, recognises the greater responsibility of a service provider as compared to a person by assigning the former a punishment ranging from 3 to 10 years and a fine of 1 crore rupees^[4] in contrast to a punishment of ranging from 3 to 5 years along with a fine of 10 lakh rupees for any person^[5] resorting to unfair means or offences specified under the Act. It further provides for a 4-year ban for the service provider from conducting public examination^[6], which is a concrete measure towards fixing their liability, underscoring the legislative foresight to create a deterrent effect in the long term against any person or institution indulging in such activities.

Provision	Offender	Punishment	Fine
Section 10(1)	Person committing the offence	3-5 years imprisonment	Upto Rs.10 lakhs
Section 10(2)	The service provider	4-year bar from conducting the public exam	Upto Rs.1 crore and proportionate cost of exam
Section 10 (3)	Director, Senior Management or person in-charge of service provider	3-10 years of imprisonment	Upto Rs.1 crore
Section 11(1)	Persons involved in organized crime	5-10 years of imprisonment	Upto Rs.1 crore
Section 11(2)	Institution involved in the organized crime	Attachment and forfeiture of the property	Proportionate cost of exam

Table 1: Punishment for offences under the Act^[7]

• Power to Refer Investigation to a Central Agency

Remarkably, the Act empowers the Central Government to refer^[8] any case under the Act to a Central Investigating Agency whenever necessary in order to ensure expeditious and cautious disposal of matters concerned.

• Designation of a Public Servant

The Act designates the officials of public examination authority as public servants^[9], thereby ensuring accountability and transparency in the process. As a result, appropriate administrative action can be taken against the defaulting public servants, following the service rules and procedures of the authority.

• Status of an Organised Crime

Formidably, under Section 11^[10], the Act also deals with organised crimes, raising the punishment to a minimum of 5 years and a maximum of 10 years with a fine of up to 1 crore rupees. Interestingly, if any institution is involved in the commission of an organised crime, its property will be subject to attachment and forfeiture by the government.

WHAT REMAINS TO BE ADDRESSED: INVESTIGATING THE POTENTIAL PROBLEMS

Problem #1. Fate of public examinations cancelled due to unfair means such as paper leaks.

Solution: Rescheduling of the cancelled examinations.

Rescheduling of exams that are affected by unfair means like paper leakage and are cancelled still remains a matter of concern inter alia. Considering the scale of public exams, wherein the fates of lakhs of candidates appearing for the examination are at stake, it becomes devastating if the exams are not rescheduled within an appropriate time limit. The Act does not provide any definite time period under which the exam must be re-conducted. It is suggested that the ideal time period should be within 6 months from the notification of cancellation of the exam to prevent any loss of merit and preparation of the candidates, thus ensuring a fair opportunity for every candidate.

Problem #2. Invigilators and Officials are unaware of examination procedures.

Solution: Capacity Building Programs should be conducted.

It often occurs that invigilators and administrative officers are unaware of proper procedures and protocols for conduction of the examination. This brings in inefficiency, leaving room for the adoption of unfair means and undue benefit to certain candidates. In order to prevent this, an eligibility criterion to invigilate public examinations should be laid down. Additionally, intensive training programs and workshops need to be conducted for the invigilators in order to ensure that they are well-equipped with the necessary skills. Development and distribution of booklets and modules related to fair and ethical practices and common procedures of the exam can also be done.

Problem #3. Underutilization of Modern Technology and AI.

Solution: Data Analytics and AI should be used for surveillance in the examination process.

It is perplexing that, despite the fact that offenders are leveraging technology for their schemes, authorities are yet to effectively use similar advancements. Electronic methods can streamline the question paper-setting process, significantly cutting down the time involved. Moderators can review and verify question sets digitally, eliminating the need for manual oversight. By maintaining a centralised question bank, managing and updating questions becomes more efficient. Additionally, electronic printing and distribution of exam papers can minimise the risk of paper leaks. Integration of technology and modern techniques such as Artificial Intelligence (AI) is not only limited to the boundaries of the examination hall but it extends beyond to include the evaluation stage as well. AI can be integrated to catch any discrepancies in the evaluation process overlooked by the human eye.

Problem #4. Investigation referred to a DSP level officer.

Solution: A Specialized Investigation Authority should be created.

For the purposes of investigation, the Act provides for an officer not below the rank of Deputy Superintendent of Police (DSP) or Assistant Commissioner of Police to investigate the unfair means in public examinations. However, considering that the offences covered under the Act are not routine or usual offences but impact a whole segment of candidates, a specialized investigation and regulation authority should be established for systematic investigation of the matters pertaining to offences specified under the Act.

THE SOCIAL JUSTICE PERSPECTIVE

Examination malpractices are nothing new under the scorching sun in the Indian subcontinent. An investigation by The Indian Express (“The Big All-India Exam Leak”) reveals that in the past five years, 41 paper leaks across 15 states have impacted 140 lakh job seekers competing for over one lakh vacancies^[11]. The widespread malpractices in examinations have far-reaching consequences, ranging from undermining confidence in educational institutions to diminishing the value of qualifications and certifications, thereby fostering a culture of ethical decline in society.

Somewhere between political motives and malicious intentions of a few, the bona fide candidate is the one getting caught in the crossfire. The arduous journey of realising a dream can quickly collapse into failure with news of question paper leaks and exam cancellations. Every paper leak or examination malpractice has a butterfly effect on the lives of millions of students, not to leave out the mental, financial and physical toll it has on the candidate and their families. When this toll becomes unbearable, it is not uncommon to witness news of candidates committing suicide, leading to a loss of youth assets the country so boasts of.

The failure to effectively address examination leaks has exacerbated anxiety and disappointment among young candidates. The situation is further complicated by the involvement of various commercial predators, such as coaching centres, printing presses, and consulting firms, who exploit the vulnerabilities of candidates for profit motives.

Although the hopes have been held high enough on account of all the stakeholders, the jury is still out on to what extent the enactment of the Public Examinations (Prevention of Unfair Means) Act of 2024 would positively reform the public examination system and rid it of its ills.

In a recent judgement, the Calcutta High Court has observed that the “object of a public examination cannot by any means be construed to be so restrictive as to be cruel on the candidates.”^[12] In light of the above, it can be said that even though the Act is made to prevent the use of unfair means and malpractices in public examinations, the main objective of the act, i.e. to protect the bona fide candidates and punish the offenders, should not be swept under the carpet. The increasing instances of paper leaks should act as a clarion call for the effective implementation of the Public Examinations (Prevention of Unfair Means) Act, 2024.

Views Are Personal.

References:

[1] Nootan Sharma, ''I Didn't Fail the Exam, System Failed Me'—NEET 2024 Students Go Back to Preparing Again' The Print (Noida, 11 June 2024) accessed 15 June 2024.