Cracking Down on Exam Cheating: Understanding the Legislation & Impact of - The Public Examinations (Prevention of Unfair Means) Act, 2024

The Public Examinations (Prevention of Unfair Means) Act, 2024, marks a pivotal development in India's effort to safeguard the integrity of its public examination system. This legislation was notified following a series of high-profile examination scandals that had called into question the credibility of major public examinations such as the National Eligibility cum Entrance Test (NEET) and the University Grants Commission National Eligibility Test (UGC-NET). The Act was passed by Parliament and received the assent of the President on February 12, 2024, reflecting the urgent need to address widespread concerns about exam malpractices.

The introduction of this Act comes at a critical juncture when the examination system is under intense scrutiny due to repeated incidents of paper leaks, cheating, and other unfair practices. These malpractices have not only undermined the fairness of the examinations but have also eroded public trust in the educational and testing processes. The central government's decision to enact a stringent legal framework is a response to the increasing calls for accountability and transparency in public examinations.

The notification of the Act was expedited following public outcry and political pressure. Just a day before the Act was enforced, Education Minister Dharmendra Pradhan faced questions regarding its implementation timeline. His assurance that the law ministry was in the process of framing the necessary rules highlighted the government's commitment to tackling this issue head-on. The prompt action to notify the Act underscores the government's determination to restore the integrity of public examinations.

Under this new legislation, severe penalties are imposed on individuals and entities found guilty of engaging in or facilitating unfair means. The Act stipulates strict punishments, including imprisonment and hefty fines, aimed at deterring potential offenders. This robust legal framework is designed to cover a wide range of unfair practices, ensuring comprehensive protection against any form of malpractice.

The Act also addresses the responsibilities and accountability of examination service providers. By imposing stringent penalties on service providers who fail to report or are complicit in malpractices, the Act ensures that all parties involved in the examination process uphold the highest standards of integrity. This move is expected to significantly reduce incidents of paper leaks and other fraudulent activities, thereby enhancing the credibility of public examinations.

Overview of the Act

Definitions

The Act contains detailed definitions to clarify the scope and applicability of its provisions. Some of the key definitions are:

• Candidate: This term refers to any person who has been granted permission by the public examination authority to appear in a public examination. It also includes individuals authorized to act as scribes for such candidates. This definition ensures that the Act covers all participants in the examination process.
• Communication Device: As defined in the Information Technology Act, 2000, a communication device includes any electronic device used for communication, such as mobile phones, tablets, and laptops. This definition is crucial in the context of preventing the use of such devices to facilitate cheating.
• Competent Authority: The competent authority is the Ministry or Department of the Central Government that is administratively concerned with the public examination authority. This definition designates the government bodies responsible for overseeing the implementation and enforcement of the Act.
• Public Examination: This term encompasses any examination conducted by a designated public examination authority. The Schedule of the Act specifies these authorities, and the Central Government can notify additional authorities as required. This broad definition ensures that the Act covers a wide range of public examinations.
• Organised Crime: Organised crime, in the context of this Act, refers to any unlawful activity committed by a person or group of persons involving unfair means in collusion and conspiracy for wrongful gain related to public examinations. This definition highlights the seriousness of such offenses and the need for stringent measures.
• Service Provider: A service provider is defined as any agency, organization, body, association of persons, business entity, company, partnership, or single proprietorship firm engaged by the public examination authority to conduct public examinations. This definition includes associates, subcontractors, and providers of support for any computer resource or material. It ensures that all entities involved in the examination process are accountable under the Act.
• Public Examination Centre: This refers to the premises selected by the service provider or public examination authority for conducting public examinations. It includes schools, computer centers, institutions, and any buildings or parts thereof used for examination purposes. This definition also encompasses the entire periphery and land appurtenant to the examination center, ensuring comprehensive coverage for security and other related reasons.

Prohibited Unfair Means

The Public Examinations (Prevention of Unfair Means) Act, 2024, outlines a comprehensive list of prohibited unfair means to ensure the integrity and fairness of public examinations. These unfair practices encompass a wide range of activities, each aimed at preventing any form of malpractice that could compromise the examination process. The following are the key unfair means prohibited by the Act:

• Leakage of Question Papers or Answer Keys: Any unauthorized disclosure or distribution of question papers or answer keys, in whole or in part, before or during the examination is strictly prohibited. This includes unauthorized access to these materials.
• Collusion to Effect Leakage: Participating in any form of collusion with others to facilitate the leakage of question papers or answer keys is considered an unfair means. This covers organized efforts to undermine the examination process.
• Unauthorized Possession of Examination Materials: Accessing or taking possession of question papers or Optical Mark Recognition (OMR) response sheets without proper authorization is prohibited. This includes both physical and digital forms.
• Providing Unauthorized Solutions: Offering solutions to one or more questions by any unauthorized person during a public examination is forbidden. This rule aims to prevent any external assistance that could give certain candidates an unfair advantage.
• Assisting Candidates Unauthorisedly: Directly or indirectly assisting a candidate in any manner that is unauthorized during a public examination is prohibited. This includes providing answers, hints, or any other form of support.
• Tampering with Answer Sheets: Any tampering with answer sheets, including OMR response sheets, is considered an unfair practice. This includes altering responses or manipulating the sheets to affect the candidate's results.
• Unauthorized Alteration of Assessment: Altering the assessment of examination materials without proper authority, except for correcting bona fide errors, is prohibited. This ensures the integrity of the grading process.
• Violation of Norms or Standards: Willfully violating any norms or standards set by the Central Government for conducting public examinations, either directly or through an agency, is an unfair means.
• Tampering with Examination-Related Documents: Tampering with any documents necessary for shortlisting candidates or finalizing their merit or rank is prohibited. This includes falsifying records or manipulating data.
• Security Violations: Deliberately violating security measures established to protect the integrity of the examination process is an unfair practice. This includes breaching examination center security or compromising examination protocols.
• Manipulation in Examination Processes: Manipulating seating arrangements, allocation of dates, or shifts for candidates to facilitate unfair means is prohibited. This ensures a fair and consistent examination environment for all candidates.
• Threatening Examination Personnel: Threatening the life, liberty, or restraining individuals associated with the examination authority, service providers, or any authorized government agency is prohibited. This includes any actions that obstruct the conduct of the examination.
• Creation of Fake Websites: Creating fake websites to deceive candidates or for monetary gain is considered an unfair means. This prevents fraudulent activities that could mislead candidates.
• Conduct of Fake Examinations: Conducting fake examinations or issuing fake admit cards or offer letters to cheat or for monetary gain is prohibited. This ensures that only legitimate examinations are conducted.

Offences and Penalties

The Act imposes stringent penalties for those found guilty of engaging in or facilitating unfair means. These penalties are designed to act as a strong deterrent against malpractice and to uphold the integrity of the examination system. The key offences and their corresponding penalties are as follows:

• Cognizable, Non-Bailable, and Non-Compoundable Offences: All offences under this Act are classified as cognizable, non-bailable, and non-compoundable, ensuring that offenders are subject to immediate legal action and cannot easily evade justice.
• Punishments for Individuals: Any person found guilty of resorting to unfair means will face a minimum imprisonment of three years, which can extend up to five years. In addition, they may be fined up to ?10 lakh. In cases of non-payment of the fine, additional imprisonment as per the provisions of the Bharatiya Nyaya Sanhita, 2023, will be imposed.
• Penalties for Service Providers: Service providers who fail to report or are complicit in unfair means will be fined up to ?1 crore. They will also be liable for the proportionate cost of the examination and will be barred from conducting public examinations for a period of four years.
• Senior Officials of Service Providers: If it is established during the investigation that any senior official from the service provider had consented to or was involved in committing the offence, they will face imprisonment for a minimum of three years, extendable to ten years, and a fine of ?1 crore. Non-payment of the fine will result in additional imprisonment as per the Bharatiya Nyaya Sanhita, 2023.
• Organized Crime: For organized crimes involving unfair means, the Act imposes a minimum imprisonment of five years, which can extend up to ten years, and a fine of at least ?1 crore. In cases where institutions are involved in organized crime, their property will be subject to attachment and forfeiture, and the proportionate cost of the examination will be recovered from them.
• Examination Authority and Public Servants: Members, officers, and employees of the public examination authority are deemed to be public servants. They are protected from legal proceedings for actions taken in good faith under this Act, but they are still subject to administrative action under service rules.
• Protection for Good Faith Actions: No legal proceedings shall lie against any public servant for actions done in good faith in discharge of their official duties under this Act. However, this protection does not prevent proceedings where a prima facie case of an offence exists.

Role of Service Providers

The Public Examinations (Prevention of Unfair Means) Act, 2024, places significant responsibility on service providers involved in the conduct of public examinations. These service providers, which can include agencies, organizations, business entities, companies, partnerships, or single proprietorship firms, play a crucial role in maintaining the integrity of the examination process. The Act outlines specific duties and liabilities for these entities to ensure they uphold the highest standards of conduct and transparency.

Service providers are mandated to report any instances of unfair means or offences to the concerned police authorities and the public examination authority immediately. This obligation underscores the importance of vigilance and proactive reporting in preventing malpractices. Failure to report such incidents, or being complicit in them, can lead to severe penalties, including hefty fines and disqualification from conducting future examinations.

Additionally, if any senior official of the service provider is found to have consented to or been involved in committing an offence, they will face stringent penalties, including imprisonment and significant fines. This provision ensures that accountability extends to the highest levels of the organization, reinforcing the importance of ethical conduct and compliance with the law.

The Act also prohibits the use of any premises other than the designated examination centers for conducting examinations unless there is a force majeure situation and prior written approval is obtained from the public examination authority. This measure is intended to prevent unauthorized changes that could compromise the examination's security and integrity.

Inquiry and Investigation

To ensure thorough and impartial investigations into offences under the Act, the Public Examinations (Prevention of Unfair Means) Act, 2024, specifies that inquiries and investigations must be conducted by officers of a certain rank. Specifically, the Act mandates that an officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police will be responsible for investigating any offences. This requirement is designed to ensure that investigations are handled by experienced and competent officers, thereby enhancing the credibility and effectiveness of the investigative process.

Furthermore, the Central Government retains the power to refer investigations to any Central Investigating Agency. This provision allows for the involvement of specialized agencies in cases that may require more extensive or technical investigation capabilities. By empowering higher-level and central agencies to conduct inquiries, the Act aims to ensure that all offences are thoroughly investigated, and that justice is served.

Miscellaneous Provisions

The Public Examinations (Prevention of Unfair Means) Act, 2024, includes several miscellaneous provisions to support its implementation and enforcement:

• Public Servants: The Chairperson, Members, officers, and other employees of the public examination authority are deemed to be public servants within the meaning of the Bharatiya Nyaya Sanhita, 2023. This designation provides them with certain protections and responsibilities under the law. Until the Bharatiya Nyaya Sanhita is implemented, the provisions of the Indian Penal Code will apply.
• Protection of Actions Taken in Good Faith: The Act provides legal protection to public servants for any actions taken in good faith while discharging their official duties. This provision ensures that public servants can perform their roles without fear of legal repercussions, provided their actions are in accordance with the law and intended to uphold the integrity of the examination process. However, this protection does not shield public servants from administrative actions in terms of service rules or from legal proceedings if a prima facie case of an offence exists.
• Supplementary to Other Laws: The provisions of this Act are in addition to, and not in derogation of, any other laws currently in force. This means that the Act complements existing legal frameworks and provides an additional layer of protection and enforcement against unfair means in public examinations. In cases of inconsistency, the provisions of this Act will prevail, ensuring its primacy in addressing examination-related offences.
• Rule-Making Power: The Central Government is empowered to make rules to carry out the provisions of this Act. This includes laying down procedures, processes, and activities for conducting public examinations. The rule-making power allows the government to provide detailed guidelines and protocols to ensure effective implementation and compliance with the Act.
• Laying of Rules Before Parliament: Every rule made under this Act must be laid before each House of Parliament while in session for a total period of thirty days. This period can be in one session or multiple successive sessions. If both Houses agree to make any modifications or annul the rule, it will take effect only in the modified form or be nullified. This process ensures parliamentary oversight and accountability in the rule-making process.
• Power to Remove Difficulties: If any difficulties arise in implementing the provisions of the Act, the Central Government may issue orders to remove such difficulties within three years of the Act's commencement. These orders will be published in the Official Gazette and laid before each House of Parliament as soon as possible. This provision ensures flexibility and responsiveness in addressing any challenges that may emerge during the implementation of the Act.

Conclusion

The Public Examinations (Prevention of Unfair Means) Act, 2024, represents a pivotal legislative measure aimed at safeguarding the integrity of public examinations in India. This Act, introduced in response to numerous scandals and widespread malpractice, is a comprehensive legal framework designed to address and mitigate unfair means in public examinations. By imposing stringent penalties and establishing clear guidelines, the Act seeks to restore public trust in the examination system and ensure a fair and transparent process for all candidates.

The Act's provisions underscore the seriousness with which the government views examination malpractices. By categorizing all offences under this Act as cognizable, non-bailable, and non-compoundable, it sends a strong message that such activities will not be tolerated. The severe penalties, including substantial fines and lengthy imprisonment terms for individuals and service providers involved in unfair practices, act as a significant deterrent against any attempts to undermine the examination process.

Moreover, the role of service providers is meticulously outlined, holding them accountable for any lapses in reporting or complicity in malpractices. This accountability extends to senior officials within these organizations, ensuring that ethical conduct is maintained at all levels. The stringent requirements for reporting and the severe consequences for non-compliance highlight the importance of vigilance and integrity in the conduct of public examinations.

The investigative framework established by the Act, involving officers of a high rank and the provision for central agency involvement, ensures that offences are thoroughly investigated with the necessary expertise and resources. This approach enhances the credibility of the investigation process and ensures that justice is served promptly and effectively.

The miscellaneous provisions, including the protection of actions taken in good faith and the supplementary nature of the Act to existing laws, provide a robust legal foundation for the Act's implementation. The rule-making powers vested in the Central Government ensure that the Act can be adapted and refined to address emerging challenges and nuances in the examination process.

The Way Ahead

Looking forward, the successful implementation of the Act will require meticulous rule-making and enforcement. As mentioned by the Education Minister, the Law Ministry is currently framing the necessary rules to operationalize this legislation. These rules will play a crucial role in detailing the procedures and protocols for examination authorities and service providers, ensuring that the Act's provisions are effectively translated into practice. Continuous monitoring, stakeholder training, and public awareness campaigns will be essential to address any challenges and to establish a transparent, fair, and secure examination system in India.

Implications of the Act on NEET and UGC-NET Exam Leak Cases

The NEET and UGC-NET exam leak cases have recently highlighted significant vulnerabilities in the public examination system. In the 2024 NEET exam, allegations surfaced regarding question paper leaks, with multiple arrests made, including exam facilitators who were found to have received large sums of money in exchange for leaked papers. Similarly, the UGC-NET exam faced issues with allegations of cybercrime and question leaks, leading to widespread demand for re-examinations and rigorous investigations.

The Public Examinations (Prevention of Unfair Means) Act, 2024, will have profound implications for these cases. The Act’s stringent penalties, including imprisonment and hefty fines, will serve as a robust deterrent against such malpractices. The mandatory reporting of unfair means by service providers and the severe consequences for non-compliance will ensure greater accountability and vigilance among all parties involved in the examination process.

Moreover, the provision for high-level investigations by officers of the rank of Deputy Superintendent of Police or higher, along with the possibility of central agency involvement, ensures that offences are investigated thoroughly and impartially. This robust investigative framework will help in uncovering the full extent of the malpractices and bringing the culprits to justice, thereby restoring trust in the examination system.