Exams Uncompromised

The Public Examinations (Prevention of Unfair Means) Act, 2024 (hereinafter referred to as the “Act”) aims to curb unfair means in public examinations. The Act has come into effect on 21^st June, 2024.

Who is a candidate under the Act?

A candidate is an individual authorized by the public examination authority to participate in a public examination, which also encompasses someone authorized to act as a scribe on their behalf during the examination.

What is a public examination authority?

The term public examination authority refers to an authority designated by the Central Government through periodic notifications to conduct public examinations.

What is a public examination?

It refers to any examination organized by the public examination authority, which includes bodies like the Union Public Service Commission, Staff Selection Commission, Railway Recruitment Boards, Institute of Banking Personnel Selection, Central Government Ministries or Departments and their affiliated offices for recruiting personnel, the National Testing Agency, and any other authority designated by the Central Government.

What is an institution under the Act?

Institution refers to any entity or organization, regardless of its name, such as an agency, organization, association, business entity, company, partnership, or sole proprietorship. It does not include the public examination authority and any service provider appointed by that authority.

Who is a service provider?

A service provider is any entity, organization, association, business entity, company, partnership, or sole proprietorship firm, along with its associates, subcontractors, and providers of computer resources or materials, engaged by the public examination authority to facilitate the conduct of public examinations.

What is a public examination centre?

It is a location chosen by either the service provider or the public examination authority for conducting public examinations. This can encompass various types of premises such as schools, computer centers, institutions, buildings, or parts thereof. It also includes the surrounding land and perimeter utilized for security and other necessary purposes during the conduct of public examinations.

What is unfair means?

Engaging in unfair practices during a public examination encompasses any act or omission committed or instigated by an individual, group, or institution. This includes, but is not limited to, actions taken for financial or improper advantage. The unfair means relating to the conduct of a public examination includes any act or omission done for monetary or wrongful gain such as leakage of question paper or answer key; participating in collusion with others to effect leakage of question paper or answer key; accessing or taking possession of question paper or an Optical Mark Recognition response sheet without authority; providing solution to one or more questions by any unauthorized person during a public examination; directly or indirectly assisting the candidate in any manner unauthorizedly in the public examination; tampering with answer sheets including Optical Mark Recognition response sheets; altering the assessment except to correct a bona fide error without any authority; willful violation of norms or standards set up by the Central Government for conduct of a public examination on its own or through its agency; tampering with any document necessary for short-listing of candidates or finalizing the merit or rank of a candidate in a public examination; deliberate violation of security measures to facilitate unfair means in conduct of a public examination; tampering with the computer network or a computer resource or a computer system; manipulation in seating arrangements, allocation of dates and shifts for the candidates to facilitate adopting unfair means in examinations; threatening the life, liberty or wrongfully restraining persons associated with the public examination authority or the service provider or any authorized agency of the Government; or obstructing the conduct of a public examination; creation of fake website to cheat or for monetary gain; and conduct of fake examination, issuance of fake admit cards or offer letters to cheat or for monetary gain. Under the Act, no person or group of persons or institutions shall collude or conspire to facilitate indulgence in any such unfair means.

What is meant by disruption to conduct public examination?

No unauthorized individual who is not involved in the administration or examination process, nor any person who is not a candidate, shall enter an examination center with the intention to disrupt the conduct of a public examination. No authorized person responsible for conducting a public examination shall, prior to the designated time for distributing question papers, open, leak, possess, access, or solve any portion of such papers or provide confidential information related to them for financial or improper gain. Additionally, any individual involved in the examination process shall not disclose or make known any information obtained in the course of their duties for personal advantage or improper gain, except where authorized to do so.

What if unfair means, conspiracy for unfair means and disruption to conduct public examination are committed?

If anyone, whether an individual, group, or institution, engages in unfair means, conspires to do so, or disrupts the administration of a public examination, the service provider responsible for conducting the examination must immediately report the offence to the relevant police authorities and notify the public examination authority. However, if the service provider responsible for conducting the examination itself resorts to unfair practices or facilitates such actions, the public examination authority must report this to the police authorities.

What are the offences in respect of service providers and other persons?

Any person, including those associated with a service provider, will be considered to have committed an offense if they assist any unauthorized conduct in a public examination, whether individually or in collaboration with others or institutions. If a service provider or anyone associated with it fails to report instances of unfair means or offences, they will be deemed to have committed an offence. In cases where it is evident during an investigation that an offence by a service provider was committed with the consent or knowledge of a director, manager, secretary, or other officer of the provider, such individuals may also be held accountable. However, if such persons can prove that they were unaware of the offence and took all necessary precautions to prevent it, they will not be subject to punishment under the Act.

Are the offences under the Act bailable?

All offences under the Act are cognizable, non-bailable and non-compoundable.

What is the punishment for offences under the Act?

Anyone found guilty of resorting to unfair means or committing offenses under the Act will face imprisonment ranging from 3 to 5 years and may also be fined up to 10 lakh rupees. Failure to pay the fine will result in additional imprisonment. Service providers can be fined up to 1 crore rupees, and they will be required to pay the costs associated with the examination they were responsible for. Additionally, they will be prohibited from handling any public examination responsibilities for 4 years. If it is determined during an investigation that an offence under the Act occurred with the knowledge or collusion of a director, senior manager, or other responsible person within the service provider firm, they may face imprisonment ranging from 3 to 10 years and a fine of 1 crore rupees. Failure to pay this fine will also result in additional imprisonment. However, if any such person can prove they were unaware of the offence and took all necessary precautions to prevent it, they will not be held liable under the Act.

What is an organized crime?

It refers to an illegal activity carried out by an individual or a group of individuals who engage in unfair means through collaboration and conspiracy, aiming to achieve or benefit from improper gains related to a public examination. If any individual, group of individuals, including the examination authority, service provider, or any institution, engages in organized crime, they will face imprisonment for a period ranging from 5 to 10 years and a fine of not less than 1 crore rupees. Failure to pay the fine will result in additional imprisonment. In cases where an institution is involved in organized crime, its assets will be seized and forfeited, and it will also be required to cover the costs associated with the examination.

Which officers are empowered to investigate under the Act?

An offence under the Act will be investigated by a police officer of at least the rank of Deputy Superintendent of Police or Assistant Commissioner of Police. The Central Government also has the authority to transfer the investigation to any Central Investigating Agency.

Are the chairperson, members, officers and employees of public examination authority called as public servants?

When the chairperson, members, officers, and other employees of the public examination authority perform their duties under the provisions of the Act, they are considered public servants.

What happens when action is taken in good faith by any public servant?

No legal action or prosecution can be initiated under the Act against any public servant for actions taken in good faith or intended to be carried out while performing official duties or exercising powers. However, public servants employed by a public examination authority may face administrative consequences according to the authority’s service rules. Nonetheless, the Act does not prevent proceedings against such public servants if there is sufficient evidence to establish that an offence under the Act has been committed.

Who makes rules to carry out the provisions of the Act?

The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of the Act, lay down procedures, processes and activities for being adopted for conduct of the public examination.

What was held in Reshmi Bhagat v State of West Bengal?

In Reshmi Bhagat v. State of West Bengal, 2024 SCC OnLine Cal 3040, it was held that the object of a public examination cannot by any means be construed to be so restrictive as to be cruel on the candidates.

How can the objectives of the Act be achieved?

The aim of the Act is to create a robust framework that deters and prevents unfair means during public examinations. The following measures need to implemented comprehensively: -

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Enforcing the Act effectively and increasing oversight to monitor examination centers, candidates, and personnel involved.

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Implementing technological solutions such as securing online testing platforms, biometric verification, and CCTV surveillance to prevent cheating.

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Providing training to examination staff and raising awareness among candidates about the consequences of unfair means.

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Establishing mechanisms for reporting suspicious activities and encouraging whistleblowers to come forward.

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Ensuring severe penalties for offenders, including imprisonment and fines.

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Maintaining transparency in examination processes and holding authorities accountable for ensuring fair conduct of public examinations.

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Working closely with educational institutions, law enforcement agencies, and other stakeholders to uphold integrity in public examinations.

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Organizing seminars and conferences on the need to curb unfair means in public examinations.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and he is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.