In a delightful legal irony, a plea before the Delhi High Court has charged the Union Public Service Commission of asking “disproportionately vague” questions in the Civil Services (preliminary) exam 2023 about, among other things, due process, when the commission’s failure to announce the answer key before closing the invitation of objections is itself an “empty formality” and a violation of due process. The high court will hear the matter on July 3.
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Consider the following question from this year’s Civil Services (preliminary) examination 2023:
“In India, which one of the following constitutional amendments was widely believed to be enacted to overcome the judicial interpretations of the fundamental rights?”
As usual, four options were provided. “1st amendment”, “42nd amendment”, “44th amendment” and “86th amendment”.
The question here is not which constitutional amendment was enacted to “overcome the judicial interpretation of fundamental rights”. The question is, which constitutional amendment “was widely believed” to have been enacted for the said purpose.
The Constitution (first amendment) Act, 1951 stated that any law or regulation added to the Ninth Schedule to the Constitution cannot be declared to be void on the ground of inconsistency with any other provision of the Constitution.
Meanwhile, the forty-second amendment declared that there shall be no limitation on the lawmaking power of the Parliament with respect to any provision of the Constitution and that the validity of any constitutional amendment cannot be called into question in any court on any ground.
Since both the first amendment and the forty-second amendment were brought in for the purpose of preventing judicial intervention, it may be assumed that a candidate was expected to have arrived at the results of a survey on which one is more “widely believed” to have been enacted for this purpose.
Since the official answer key has not been released by the Union Public Service Commission (UPSC), it is not known which option it considers correct.
On July 3, the Delhi High Court will hear a petition seeking the quashing of the exam, and issuing directions to the UPSC to reconduct the exam, the results of which are scheduled to be declared on June 12.
The plea, filed by advocate Rajeev Kumar Dubey on behalf of certain candidates, deplores the UPSC’s practices of asking of questions “which are disproportionately vague” and not publishing an official answer key to the examination until after the declaration of the final result.
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In the view of the petitioners, uploading the answer key after the culmination of the entire process “defeats the whole purpose of the answer key”. The non-publication of the key is “not only arbitrary but defies all principles of fairness, logic and rationality”, it has been submitted.
Civil Services (preliminary) examination 2023 was conducted on May 28. Thereafter, a window of one week was provided inviting objections and representations. The commission received around 16,000 representations during the intervening period, according to the petition.
The UPSC released the results of the preliminary round on June 12. Since no clarifications were issued by the UPSC, the petitioners say it is only logical to assume that none of the representations made by candidates were considered.
The process of inviting objections was “an empty formality”, according to them.
The high court has been urged to direct the UPSC to produce information related to the decision on those representations on affidavit.
The petitioners have prayed the high court to direct the UPSC to stop the selection process till the pendency of the instant writ petition and direct it to publish the answer key immediately.
According to the Constitution
In another question in this year’s exam, the candidates are asked to consider the following statements:
i) According to the Constitution of India, the Central government has a duty to protect states from internal disturbances.
ii) The Constitution of India exempts states from providing legal counsel to a person being held for preventive detention.
iii) According to the Prevention of Terrorism Act 2002, confession of the accused before the police cannot be used as evidence.
“How many of the above statements are correct?”, the paper asks.
Statements two and three are wrong, and there is no confusion about this. Nowhere does the Constitution “exempt the states” from providing legal aid to a person held in preventive detention; neither did the Prevention of Terrorism Act, 2002 (now repealed) exempt the confession of an accused to be treated as evidence.
The first statement is technically correct since the Constitution (in Article 355) imposes a duty on “the Union to protect states against external aggression and internal disturbance”.
However, the petitioners have argued that the first statement is also not correct since the provision does not use the term ‘Central government’. It uses the term ‘Union’ to refer to the Union government.
“Had it been a general statement, it could have been correct,” the petitioners say. But the question specifically says “according to the Constitution”.
Their argument, in essence, is as follows: in an exam that is supposed to reward technicality and in-depth knowledge of things, are candidates expected to ignore technicalities of wording?
In other words, when the question asked if a statement is true “according to the Constitution”, did it mean exactly according to the Constitution or approximately according to the Constitution?
Since the official answer key has not been released by the UPSC, it is not known which option it considers correct.
Due process of law, in essence
Consider another question which has been flagged by the petitioners: “In essence, what does ‘due process of law’ mean?”
The options provided are: “The principle of natural justice”, “The procedure established by law”, “Fair application of law” and “Equality before law”.
The term ‘due process of law’ has not been used in the Constitution. Article 21 of the Constitution uses the term ‘procedure established by law’ in guaranteeing that no person shall be deprived of their life or liberty except according to the procedure established by law.
The original draft of the Constitution used the term ‘due process of law’, but its alteration to ‘procedure established by law’ by the Constituent Assembly signifies that the two terms are not interchangeable.
However, in the case of Maneka Gandhi versus Union of India (1978) the Supreme Court held that the mere prescription of some kind of procedure is not enough to comply with Article 21’s mandate. The procedure prescribed by law must be fair, just and reasonable and a procedure would be called fair only if it embodies the principles of natural justice.
Due process of law is an import from American jurisprudence, and has been used in the context of American law to mandate State officials to follow fair procedure before depriving a person of life, liberty or property.
While there is no definitive list of the “required procedures” that due process requires, a fair procedure includes an unbiased tribunal, notice of the proposed action and the grounds asserted for it, opportunity to present reasons why the proposed action should not be taken, the right to present evidence, right to know opposing evidence and requirement of a reasoned Order.
In a sense, ‘due process of law’, at least in American jurisprudence, is an extrapolation of the principles of natural justice, which are, in essence, protections against arbitrariness that go beyond local laws and regulations.
The UPSC’s use of the term ‘principle of natural justice’, as if there is only one, could be said to confuse a candidate even further.
In another sense, ‘due process of law’ also implies the fair application of law, since fairness is an essential ingredient of requirements of due process.
As mentioned earlier, since the official answer key has not been released by the UPSC, it is not known which option it considers correct.
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It may be presumed that the petitioners are hoping that the procedure established by law as well as due process of law will be followed while deciding their petition.
They also hope that both the commission and the petitioners are treated equally before the law and that the law is applied fairly.
