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 SC says courts can't examine answer sheets

By Our Correspondent
On June 12 the vacation bench of Supreme Court overturned an Allahabad High Court judgement and said that the courts cannot take upon itself the task of verifying answers in an examination under the exercise of judicial review.

The bench set aside the Allahabad high court's March 30 order by which it had directed for re-evaluation of answer sheets of the preliminary examination for upper-subordinate services in Uttar Pradesh.

Unless there is doubt about the answers, the judiciary cannot intervene, otherwise, it would open a floodgate, the bench said. The court said it can examine the matter only to the extent that the examination process was fair.

The vacation bench of Justices U U Lalit and Deepak Gupta made these observations while reserving its judgement for June 14 on a batch of petitions by candidates challenging the correctness of answer keys to preliminary examinations conducted by the Uttar Pradesh Public Service Commission (UPPSC) in 2017 for various posts in provincial civil services.

"When there are conflicting views, then the court must bow down to the opinion of the experts. Judges are not and cannot be experts in all fields and, therefore, they must exercise great restraint and should not overstep their jurisdiction to upset the opinion of the experts," the bench said while dismissing a batch of petitions of students seeking stay of the mains examination.

A group of candidates led by Rahul Singh questioned the move by the UPPSC to declare the schedule for conducting Main examination from June 18. The petitioner-candidates sought modification of the top court's stay order on May 18 against the Allahabad High Court's direction to the UPPSC to re-draw the rank list of the successful candidates of preliminary examinations after finding that the answer keys of some questions were wrong.

Pleading UPPSC case the Additional Solicitor General Maninder Singh said that about 16,000 candidates were declared successful in preliminary examinations after a 26-member experts panel reviewed the answer keys. He said the main examinations has already been delayed. The judicial review must come to end somewhere, otherwise, the whole yearly schedule would go haywire.

Referring to a 1983 verdict, it said the court had recommended a system of moderation, avoiding ambiguity in the questions and prompt decisions be taken to exclude suspected questions and no marks be assigned to such questions.

It noted that UPPSC even before publishing the first list of answer keys got it moderated by two expert committees and invited objections, which were also examined by a 26-member expert committee.

It said that the 26-member expert committee after examining the objections had recommended that five questions needs to be deleted and in two questions, key answers should be changed.

The court said that all the questions needed a long process of reasoning and the high court itself has noticed that the stand of the commission is also supported by certain text books.

"In view of the above discussion we are clearly of the view that the high court over stepped its jurisdiction by giving the directions, which amounted to setting aside the decision of experts in the field," it said, setting aside the order of the high court.

On June 12, the apex court had said the sanctity of an examination would be lost if courts through their power of judicial review keep interfering with the decisions taken by authorities conducting competitive tests.

The top court said a line needs to be drawn to determine to what extent a judicial review can be allowed of the decisions taken by authorities conducting the examinations.

Delhi varsity photocopy kiosk wins copyright case

By Sanjiv Dube
In a startling case a single-judge bench of the Delhi High Court has dismissed copyright suits by three international publishers against the sale of photocopied books and pages in Delhi University.

The judgement delivered on September 16 by a bench of Justice Rajiv Sahai Endlaw upheld the Delhi University contention that the use of reproduced copyrighted books by students was a "reasonable educational need".

Justice Endlaw also lifted a ban on the photocopier kiosk from issuing copies of chapters from textbooks of the three publishers to students.

The kiosk, Rameshwari Photocopy Service near Delhi School of Economics (DSE) in north campus, pleaded that since the university library does not have the required number of books on the subjects as stipulated by the university syllabi, the students get the photocopies done for study and reference and that he was only helping the students tide over their problem. He said he takes a nominal charge from the students as directed by the DSE.

In November 2012, the court had prohibited Rameshwari Photocopy Service on a petition moved by publishers including University Press, Cambridge University Press and Taylor & Francis.

The publishers had alleged that the kiosk was violating their copyright and “at the instance of Delhi University” was causing huge financial losses as students stopped buying their text books.

But Delhi University, defendant number 2 in the case, supported the photocopiers, saying the use of reproduced copyrighted books by students was a “reasonable educational need” and should not be treated as infringement.

The university pleaded that "world over Universities permit students to copy limited pages from any work for use in research and for use in the classroom by a student or teacher and this is recognised by Sections 52 (1)(a) & (i) of the Copyright Act."

The university pleaded that "the facility of photocopying limited portions of books for educational and research purposes could have been provided within the library if the University had adequate space, resources and manpower at its disposal."

It said that it "has granted the facility of photocopying to defendant No.1 (Rameshwari Photocopy Service) keeping the interest of the students in mind."

Reacting to the High Court judgement, most Intellectual property right experts hailed the verdict. “Copyright laws are meant to balance public and private interests but in recent years, the public interest has been eroded due to lobbying. The HC has restored that balance,” said an expert.

“The court has actually said that copyright is not divine and that education is an important social need. This is a huge moment,” he added.

Students hail decision
The decision was hailed by the students, teachers and photocopy shop owners in Delhi University.

Students can now photocopy study material from books published by international publishing giants. Overjoyed, they said the decision was ‘historic’, because it was about the larger right to access resource material for education, which was upheld by the court.

Dharmpal Singh, owner of the photocopy shop, said although he was yet to read the order, this meant a huge victory for the students. “Most of the books are not available in the country and those which do, cost any where from Rs 3,000 to 8,000 and above. It is just not possible for students to buy these books. This made them buy locally sourced books, most which were not up to the mark,” he said.

Singh has been running the kiosk for 20 years.

Students enrolled in the Masters and PhD courses, in particular, were the worse-affected by the ban.

“While there is a batch of 80-100 students in each course, the university library has only a single copy of the book. In this case, photocopying remained the only option,” said Apoorva Gautum, president, Association of Students for Equitable Access to Knowledge.

The association was formed soon after the ban was imposed in 2012 and became a party to the case. It includes around 200 students.


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