New public exams law aims to prevent cheating, but late rules hamper enforcement due to NEET-UG and UGC-NET paper leaks

By choosing to notify the Public Examinations (Prevention of Unfair Means) Act, 2024 on June 21 – even though it was passed by Parliament on February 9 and received the President’s assent on February 12 – the Center has sparked questions about his inexplicable delay.

When Parliament adopts a law, it can leave it to the government to choose a later date to notify it. If a law does not contain such a provision, it comes into force immediately after receiving the assent of the President. In some cases, the law itself may specify the date on which it will come into force. Parliament delegates this power to the government to enable it to put in place appropriate mechanisms and institutions to enforce the Act. As per section 1(2) of the Public Examinations (Prevention of Unfair Means) Act, 2024, it shall come into force on such date as the Center may appoint by notification in the Official Gazette. The government did this by setting June 21 as the date the provisions of the law came into force.

Section 16(1) requires the Center to make rules, by notification in the Official Gazette, to implement the provisions of the Act. Section 16(2) provides that these rules may provide for procedures, processes and activities for conducting public reviews and any other prescribed matters. Section 17 requires any rule made under the Act to be laid before each House of Parliament during its session for a total period of 30 days to obtain its consent.

The delay in notifying the Act would have been justified if the government had prepared rules in the meantime. Although the general elections to Parliament prevented the creation of mechanisms and the development of rules, there was no urgency to notify the law on June 21. She could have waited for rules to be established during the next session of Parliament. Without the required rules in place, the law would be unenforceable.

The national outrage over the recent leak of question papers in NEET-UG and UGC-NET exams has probably forced the government to appear to be taking stern action against malpractices in public exams, even though the notified law cannot have retroactive effect.

While introducing the Bill, the government was aware of the legislative gap in terms of unfair means and offenses committed by the entities involved in the conduct of public examinations by the Center and its agencies. In the statement of reasons and objections, the government admitted that mistakes made during public exams led to delays and cancellations, damaging the prospects of millions of young people.

“Therefore, it is imperative that elements that exploit vulnerabilities in the examination system are identified and dealt with effectively through comprehensive central legislation,” said Jitendra Singh, then Minister of State (Independent Charge) in the Ministry of Science and Technology, January 29. .

The bill aimed to bring more transparency, fairness and credibility to public examination systems and reassure young people that their sincere efforts would be fairly rewarded. It also aimed to deter individuals, organized groups or institutions from using unfair means to obtain monetary or unjustified gains.

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The bill clarified that “applicants” would not be responsible for actions within its jurisdiction and would continue to be covered by the existing administrative provisions of the relevant public review authority. It is unclear whether the government continues this leniency towards candidates, some of whom played questionable roles in recent question paper leaks and obtained unjustified rankings.

The government said the bill would serve as a model that states could adopt at their discretion, helping them prevent criminal elements from disrupting public examinations at the state level.

Assuming that the Government believed the statement of objects and reasons of the Bill when it was presented to Parliament, ensuring its passage and promptly obtaining the President’s assent, the four-month delay in notification and The further delay in creating implementation mechanisms raises doubts about the sincerity of the government.

This inexplicable delay suggests that the government may have overlooked the problems plaguing the public review system, even if it was aware of them, believing that the bill, even if immediately notified, had little chance to achieve comprehensive reform. Conversely, it is reasonable to suggest that the delay in notification may have encouraged individuals, organized groups and institutions to continue their unfair practices for monetary gain, knowing that the Law could not have any effect retroactive.

Key clauses

The definition of “institution” in section 2(1)(f) of the Act excludes the National Testing Agency (NTA), which is currently under scrutiny for its omissions and commissions. According to this provision, an “institution” means any agency, organization, body, association of persons, commercial entity, company, partnership or sole proprietorship, by whatever name it may be called, excluding public examination and service authority. supplier engaged by this authority.

The law specifies unfair means, including unauthorized access to or leaking of questionnaires or answer keys, assistance to a candidate, tampering with computer networks or resources, tampering with documents intended for pre-selection or finalizing merit lists or rankings, conducting fake examinations and issuing fake admissions. cards or offer letters for monetary gain. It also prohibits premature disclosure of confidential examination-related information and unauthorized entry into examination centers to create disruption.

The law is perceived as harsh due to its strict punitive clauses. Section 9 states that all offenses under this Act must be cognizable, non-bailable and non-prosecutable.

Under Article 10 (1), any person resorting to unfair means or committing offenses under this Act shall be punished with imprisonment for a term of not less than three years, which may extend to ‘to five years, and a fine of up to Rs.10 lakh. . In case of failure to pay the fine, further imprisonment will be imposed as per the provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS), which is likely to come into force from July 1. Until the BNS is in force, the IPC will have to apply.

Section 10(2) holds the service provider liable for a fine of up to Rs 1 crore, and the proportionate cost of the examination is also to be recovered from the service provider. Furthermore, the service provider cannot be entrusted with any responsibility for the conduct of public examinations for four years.

The law shifts the burden of proving innocence to the accused under section 10(4), which states that a person shall not be liable to punishment if he or she can prove that the offense was committed at his or her discretion. without knowledge and that she exercised reasonable diligence to prevent the commission. of such an offense.

The law protects the president, members, officers, and other employees of the public review authority by designating them as “public servants” within the meaning of the BNS. Section 14 of the Act provides that no suit, prosecution or other legal proceeding shall be brought against any public servant for acts done in good faith or intended to be done in the discharge of his official duties or in the exercise of his powers. The first provision of Article 14 specifies that officials of any public review authority shall be subject to administrative measures in accordance with the service rules of that authority. The second provision states that nothing shall prevent prosecution of such officials where there is a prima facie case to establish the commission of an offense under this Act.

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Public examinations mean those conducted by the authorities specified in the Schedule to the Act or notified by the Centre. These include Union Public Service Commission, Staff Selection Commission, Railway Recruitment Board, NTA, Institute of Banking Personnel Selection and Departments of the central government and their attached offices for recruitment.

The strict measures of the law aim to deter cheating and the adoption of unfair means. However, the effectiveness of these provisions is questionable, as state laws against cheating in public examinations in Uttarakhand, Gujarat, Rajasthan, Chhattisgarh, Uttar Pradesh and Andhra Pradesh do not apply. have not been shown to be effective as a deterrent. This raises concerns about whether the new law will truly prevent unfair methods in public examinations or whether it is just paying lip service.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly a senior associate editor at Frontline, he reported and commented on legal issues.