

Screenshot of a website's coverage of the Bihar topper scam



The razzmatazz and revelry of certain toppers who had proved their mettle in the intermediate exam conducted by the Bihar School Education Board (BSEB) was cut short after some of them had brief interactions with certain news channels. The channels went into a tizzy soon after and upon their own inferences, raised fingers on the merit of these candidates in subjects they had already been formally examined. The students in zeal, though under no obligation to respond to the barrage of questions, embarked on the misadventure by attempting to reply to these much unanticipated subjective questions, instead of what one expects in such interactions— congratulatory remarks with questions about preparation. This led to the cancellation of results of a couple of toppers after a retest was hastily taken by an ad hoc panel quickly constituted by the board, apparently a face saving exercise, to show their solemnity before the electronic media in preserving the sanctity of the public examinations conducted by them.

As the events unfold, at least three of the previously declared rank holders in this examination are imminently facing arrest, and the former arts topper, a girl candidate, has already been arrested immediately after failing a retest held on June 25, 2016. None of these toppers would have thought of the penal consequences they will face after the ominous media interactions. The Chief Minister of Bihar also ordered a probe with investigation from a ”criminal angle” to do damage control, leading to an investigation by the Bihar Police’s SIT (comprising of police and CID officials), and constitution of two separate probe committees, one by the BSEB and the other by the state government. Under the mounting pressure, due to the alleged irregularities in the said examination, the BSEB chairman Lalkeshwar Prasad Singh, and secretary Harihar Nath Jha also resigned. The SIT also arrested the former BSEB Chairman Lalkeshwar Prasad Singh and his wife Usha Singh, a former JD(U) MLA, from Varanasi on June 20, 2016.

The speed of investigation in this case to deal with an alleged criminal scam, and bring to justice those who are involved should bring plaudits to the state government and its agencies, but haste by the state to show efficiency should not lead to injustice to certain individuals. The entire series of events commenced with media interactions which went viral, directly ridiculing certain toppers, and indirectly deriding the reputation of the BSEB, triggering a tirade between the politicians in the state and at the centre, leading to retests of certain rank-holders being conducted by an ad hoc panel of experts

In this incident, nobody is oblivious of the systemic problems in the examination system conducted by this state board, and these very channels have in the past rightly shown how the mass use of unfair means had been rampant at certain public school examination centres. This calls for imposing strict measures during the conduct of examinations and scrutiny of answer booklets, having zero tolerance for use of unfair means, and also encourage public debate on these issues.

Questions for the Bihar Education Board

However, few questions remain. If the state board had credible information about the mass use of unfair means in the recent intermediate examination conducted by it, why didn’t it cancel the same and again conducted the entire examination? Instead, it chose the convenient way out without owning responsibility for a possible failure of its examination system, by making some of its successful candidates scapegoats by again conducting an interview-cum-examination by a panel of fifteen academic experts, whose sanctity and legality itself should be in question. This led to the unfair penalisation of a couple of students in the form of cancellation their results, with directions to them for reappearing in the inter examination. It may be seen at the onset, to the delight of the commerce toppers, that only toppers from the humanities and science streams were re-scrutinized by the board.

Why were the toppers of the commerce stream not reviewed? This it seems, is due to the reason, that none of the commerce toppers was interviewed by the news channels. The entire review exercise conducted by the board appears to be arbitrarily conducted at different stages, and may be amenable to judicial review inter alia for violating the fundamental right of the affected candidates granted to them under Article 14 of our constitution, which guarantees equality before law. The exemption to the commerce toppers itself is unjust to the others. Secondly, only the first seven toppers in the order of merit in arts and science each were called for the review exam. On what basis did the board arbitrarily arrive at the cut off of first seven toppers to face the review board? Is the board suspicious about the results of the first seven candidates alone, and presumes impeccability in results of all the other candidates in the merit list? Mere administrative convenience cannot be a justification. The same argument can be marshalled for the reportedly twenty five questions which were asked to the candidates in the review exam, with seventy per cent as the cut off marks to clear the review test. If presumably, as an after thought, after the review exam conducted on the specious basis, the review committee infers that in a particular case prima facie there may have been use of unfair means benefitting that candidate, in absence of direct evidence which is not likely to be available now, and in any case can be disputed, can the committee decide to cancel its own result just on basis of inferences drawn from its review exam.

Did the board have sufficient evidence to take selective retests? The question is of the validity of “reviewing” the student’s current knowledge as a response to possible use of unfair means. For example, isn’t it possible for a lily livered candidate to be nervous for various reasons in answering the questions before the review committee; more so, when his entire course of plan for future endeavours may have been unsettled by the decision of this new assessment test. Isn’t it conceivable, that some of these toppers were just lucky to get a question paper which contained most of the questions which they had prepared well, whereas the review committee may have asked them unanticipated questions. Isn’t it also plausible, that after the board examination, which must have been a few months ago, the candidates being reviewed might have been totally out of touch with the subjects concerned, enjoying their summer vacations, and particularly considering the rote learning which some of them may have employed for their preparation, or their sheer lack of interest in these subjects, much of their learning might have been whitewashed by now. Is it not possible that the unanticipated and rude shock of reassessment at a short notice might have subjected some of these unprepared candidates to an evaluation process which possibly will lead to erroneous conclusions.

The basic issue here is not to ascertain the subjective knowledge of these candidates at present. The issue is, whether their intermediate exam board result is credible or not, and since it was announced to be so earlier, the assumption about its credibility cannot be displaced on the basis of any inferential postmortem analysis or review. To scrap their results on basis of testing the current knowledge of the successful candidates is to confound the issue, and indulge in an ad hominem attack. Furthermore, isn’t it arguable, that when the mode of this board examination is a written examination, conducting an interview itself is an unsuitable mode of reassessment, and may be an intimidating experience for some of these candidates, particularly in the wake of huge public and media pressure. Loosing one’s composure in the review tests and national ridicule and shame, may lead to depression in certain candidates, as veritable from the request of the girl candidate who was the arts topper but who reportedly failed to appear before the committee on the appointed day due to depression, and even subsequently after a week. She was shamed and ridiculed though her interview is irrelevant to judge her performance in the examination whose result has indubitably proved that she had excelled in the same. Not being a convent-educated child from a big metro, confronted by an overassertive inquisitorial journalist, she may have fumbled and nervously mumbled something which was quite irrelevant, as even suggested by her grandfather in print media. Instead, the news channels continuously replayed her interview clip ad nauseam drawing their hasty erroneous conclusions about her merit as a topper, and though the board has asked her to reappear after a week, it could be apprehended at the outset that she may not be in a fit state of mind to face this unjustified review process.

Neccessity of the Non-Bailable Warrant

On June 25, 2016 it was shockingly reported that she was arrested immediately after coming out of the retest before the panel, which she “failed”, unable to answer even a single question by the re-evaluation panel correctly. The panel cancelled her result after the review. The criminal accusation against her is reportedly that of cheating and forgery. It is hoped, that the investigative agency has credible evidence against the students charged of serious offences, and it is not merely a witch-hunt against the vulnerable juveniles to regain the loss of credibility by the state government. It is likely that there may be some substance in the prosecution’s case, as non-bailable warrants (NBWs) have been issued against four of these students till date. However, without seeking to influence the ongoing process of criminal investigation and subsequent trial, I as a legal academic, with the caveat of not being privy to the proceedings before the court which has issued the NBWs, have some skepticism about the need to issue NBWs against the said students in this case. Was there a real need to seek NBWs by the State against the accused students, who are not some hard-core criminals. The following directions of the Apex Court in Inder Mohan Goswami & Another v State Of Uttaranchal & Others (2007) are instructive on the issue of ‘how and when warrants should be issued by the Court:

The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants…. When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.

One common link between certain candidates re-scrutinised including, the arts and science topper, was the Vishun Roy (VR) College in Bhagwanpur at Vaishali, of which they were students; and which possibly had a dubious reputation of producing a number of rank holders in past. No adverse conclusions can be drawn against these toppers merely for being students of a particular college, and mere suspicion against them cannot replace legal proof. To fix this so called board examination racquet, criminal cases were registered against a number of accused persons who were allegedly involved, and the alleged kingpin Bachcha Rai, who was the principal of the VR College, was arrested along-with several others including, certain teachers working in some other institutions. The alleged complicity of those arrested also indicates that the irregularities, if they were indeed present in these recent inter examination, were not restricted to one institution or examination centre. Those arrested were also reported to have close connection with the former BSEB Chairperson Lalkeshwar Prasad Singh.

If there is a rot somewhere, the criminal investigation to book those who are involved is laudatory. However the selective persecution of certain successful candidates on basis of media interactions has to condemned. Who should be responsible for this infamy caused in bargain to these students, affecting their well-being, casting their credibility in doubt? This becomes all the more serious for those whose personal liberty is at stake, and are either imminently facing arrests or already arrested. What if they are finally acquitted or discharged? For all this, and I shudder to think, if any of these students in state of depression were to cause self harm, who will owe the responsibility for the same? Will it be the ever zealous electronic news media, which in its zeal to reveal the truth and unravel the shortcomings of the system, at least this time, in a sort of media trial, has caused unnecessary harm to the reputations of certain individual school students, apart from possible psychological injury to these individuals? Or, will it be the BSEB which acted swiftly this time, but perhaps too late for curing the possible shortcomings of the public examination it had already conducted, and whose results were duly declared by it, solely to do the damage control, to selfishly protect its own reputation, though risking to besmirch reputation and careers of many of its successful protégées, which it was duty-bound to protect. It is doubtful, that the dubious review process and adverse consequential decisions of the education board against certain rank holders which followed will stand legal scrutiny, as the grandfather of the science topper has already suggested about approaching the High Court challenging the cancellation of his kin’s result. After her arrest, the arts topper was reported in media to have confessed to the police. Though it may sound damning, the evidentiary value of such a confession is challengeable. Sections 25 and 26 of the Indian Evidence Act of 1872 (IEA), in general, bars a ”confession” made to a police officer, and in police custody respectively from being proved (and so used) against the accused. This restriction applies to a “confession”, which for the purposes of the IEA, as laid down by the Privy Council in Pakala Narayana Swami v King-Emperor (1939) means to: “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 do not portend well for the future. It would have been advisable for the board to have rather made systemic surgical corrections in conductance of its future examinations, after proper deliberations, rather than disturbing the results it had already declared after presumably following due examination process. However, if it is concluded by the BSEB and the state government that there has been mass use of unfair means in the examination in question then the only action advisable, and which alone may be countenanced would be to scrap the entire result and conduct the entire examination afresh, and not arbitrarily conduct re-examination selectively. Establishing the criminal culpability of any of the candidates accused in this alleged scam is a separate but connected issue in which the fairness and objectivity of the investigative agency will be crucial, and though the competence and impartiality of our courts cannot be doubted, the need for swift criminal justice to take these cases to their logical conclusion will be extremely desirable

However, a troubling question remains unanswered to my mind. Is the basis and motivation for initiating criminal cases against these toppers the the media interaction tapes, the results of the retests conducted by the BSEB—whose constitution, powers, dubious procedure, and ultimate actions may be impugned on legal grounds—or is the basis independently collected credible information and evidence in this ongoing investigation, which is being conducted with much haste, establishing a prima facie case against them. Regardless of the ultimate outcome of the cases against these hitherto blue-eyed rank-holders of the BSEB, even if they are ultimately exonerated, they will in the meanwhile remain ostracised, ridiculed, depressed, and stigmatised; and possibly would have suffered from an irreparable damage to their careers, reputations, personal liberty, and health. How the suitable reparations, if at all it is possible, to these accused students can be made for all the adverse damage suffered by them, if they were to ultimately prevail through the law and justice system, is a larger question, which also needs to be pondered upon and debated, though the state government, its agencies, and particularly the electronic media, in this confounding environment, all presently appear to be in a self-congratulatory mode, and at least at present are not likely to even think about this problematic issue.

References :

Inder Mohan Goswami & Another v State Of Uttaranchal & Others (2007): SCC, SC, 12, p 1.

Pakala Narayana Swami v Emperor (1939): AIR, BOMLR, 41, p 428.