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It was an usual day for Ms. Rai, who topped the arts stream of the Bihar Board Examination when she was giving the interview until some question was asked to her for which her answer seems to have created some faux pas which led to some unforeseeable event. She wasn’t alone, there were a lot others as well along with her. The interview was broadcasted, though the students were under no obligation to answer them, they embarked on the misadventure by attempting to reply to these unanticipated subjective questions which were asked instead of the congratulatory messages, which is pretty unusual. What happened next was one would have expected of the Bihar government to do given with the red face they were left with after the interview. The results of a couple of toppers were cancelled after a retest was taken in haste by an ad hoc panel constituted by the Bihar School Education Board (BSEB), just merely to show their solemnity before the media.

Soon after the retest, three of the previously declared rank holders are facing imminent arrest, and Ms. Rai who topped the arts stream has already been arrested[1] after failing a retest held in June. This was quite unexpected for the toppers to have a retest and face penal consequences after they gave interviews to the media. A probe was ordered by the government so as to control the damage caused. The probe by separate committees led to the resignation top members of the BSEB and arrest of others.

The speed at which the investigation was conducted to deal with such a high profile criminal scam, and bringing people who were involved in the scam to justice may have brought praise to the state government and the agencies involved in investigating the crime. But such haste shown by the government shouldn’t lead to injustice for certain individuals.

This incident is not something new, people are aware of the systemic problems in the examination conducted by the BSEB, with news channels in the past showing how the use of unfair means is common at certain public examination centers with last year the level of cheating reaching a new height with parents climbing floors to give their children answer booklets to books and chits. Such incidents calls for imposition of strict measures during the conduct of examinations, scrutiny of answer booklets along with a public debate on this issue.

However, some questions remain. Why didn’t the state board take any action if it had the information of the mass use of the unfair means and why it chose to go ahead with the exam and only order the retest of few selected toppers and not of everyone. Why did it make the toppers the scapegoats by conducting an interview-cum exam by a panel of 15 experts whose legality is itself in question. Another question appears is that why weren’t commerce students penalized and only toppers from the science and humanities stream scrutinized.

The reason which apparently appears for commerce toppers not being scrutinized is due to the fact that they were not interviewed by the media. The whole process of retest by the panel appears to be arbitrary, and there’s a possibility of judicial review among other things for violating the fundamental right f equality guaranteed under Article 14 of the affected science and humanities stream students. The retest was based on the current knowledge.

The basic issue here is not to ascertain the subjective knowledge of the candidates. The issue is whether the result of these candidates were credible or not, the credibility cannot be displaced on the basis of some informal postmortem review etc. To test the candidates on the basis of current knowledge and scrap their results is to indulge in an ad hominem attack. Further one may argue that when the exam was written based so why was the interview a suitable mode of reassessment, and it may be intimidating for some of the candidates who are not used to it and particularly after the media pressure and public ridicule. This along with the depression caused due to shame on social media along with being a national ridicule may have lead to the arts stream topper not appear before the committee on the appointed day and even after a week. Her interview to the media is irrelevant in judging her performance in the exam. The girl not being from a convent school and from a big metro being confronted by clever journalists would have led her to fumble in front of them and mumble something which was irrelevant. Instead what happened next is the media played the clip again and again for cheap publicity and then the inevitable happened- Trial by Media as called in popular notion with many so called experts called on the media channel asking the girl to be arrested etc. Though the board asked the girl to reappear after a week, it could be apprehended that the girl was not in a fit state of mind to face the panel for the review process.

It was reported that the girl was arrested immediately after she failed the retest before the panel by not answering a single question correctly. The accusation against her was that of forgery and cheating. It is hoped that the agencies will have some substantial evidence against this as well as other students and are not merely witch hunted for the regain of the loss of credibility. From the face it appears that the prosecution might have some strong case against the accused as the courts issued a Non Bailable warrant (NBW).[2] But the question remains is that was there really a need for the state to seek a NBW against the students of whom some are below the age of 18 and not hard-core criminals. It is interesting to note that they apex court[3] has laid down direction when and how a NBW has to issued by courts:

  • A NBW has to be issued when the person would not voluntary appear before the court,
  • Police authorities are unable to find the accused person so as to serve him with a summon,
  • The accused person can harm anyone if not placed in custody immediately.

 

The selective criminal investigation of successful candidates merely on the basis of media interactions has to be condemned. There has been a loss of reputation to these students with the media casting shadows on them. It is doubtful whether this retest and review process by the panel will stand any legal scrutiny when the students approach the High court challenging their disqualification and arrest. It was reported in the media that the arts topper confessed to the police[4] of cheating in the exam but one interesting question that arises is that section 25[5] and 26[6] of the Indian Evidence Act bars a confession made to a police office while being in a police custody. The restriction only applies to confession which means as laid down by the Privy Council in Pakal Narayan Swami[7] case as “either admit in terms the offence or at any rate substantially all the facts which constitute the offence”.

The events over the last few weeks cast a shadow on the process which was used by the board and the panels to have a retest and review process of the selected toppers of only two streams. Albeit, it has been concluded by the BSEB and the state government of the mass use of unfair means in the exam, the proper step would have been to scrap the entire result and order retest of every individual though the process will be lengthy and costly but will serve the purpose of justice and will remove the ambit of arbitrariness.[8] It will be logically desirable for the investigative agencies to be impartial while dealing with the accused student in the exam cheating cases.

But some questions remains like whether the accused persons were investigated and prosecuted merely on the basis of their interactions with the media and thus criminal cases were initiated against them and the results of the retests conducted by the BSEBs whose own constitution and powers along with its actions may be impugned on dubious grounds or was there some independent evidence available and thus such investigation which is conducted in a haste establishing a prima facie case against them. Even if these accuse students are exonerated, they will remain a public ridicule, depressed and be attached with stigma due to the media trials and the much hastily adopted procedures by the BSEBs and would have suffered irreversible damage to their careers, reputation and personal liberty.

[1] Bihar Topper Ruby Rai of BSEB examination arrested, available at http://www.oneindia.com/podcast/bihar-topper-ruby-rai-bseb-examination-arrested8944.html.

[2] Bihar Toppers Scam: Rubi Rai denied bail by the court, available at http://www.hindustantimes.com/india-news/bihar-toppers-scam-rubi-rai-denied-bail-by-juvenile-court/story-CzbK2f5JzzGG0qXRMuhlEP.html.

[3] Inder Mohan Goswami & Anr. v. State of Uttranchal & Ors., AIR 2007 SC.

[4] Bihar Toppers Paid Rs 20 Lakh….,  June 23, 2016 THE TIMES OF INDIA available at http://timesofindia.indiatimes.com/city/patna/Bihar-toppers-paid-Rs-20-lakh-each-for-results-confesses-ex-BSEB-chairman/articleshow/52875583.cms.

[5] Section 25, THE INDIAN EVIDENCE ACT, 1872.

[6] Section 26, THE INDIAN EVIDENCE ACT, 1872.

[7] Pakkal Narayan Swami v. Emperor, (1939) 41 BOMLR 448.

[8] Right to Equality-Doctrine of Reasonable Classification and Principle of absence of arbitrariness, available at https://advocateguru.com/right-to-equality-doctrine-of-reasonable-classification-and-principle-of-absence-of-arbitrariness/.

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