Asif Azad v Union of India and Others (WP(C) No. 24410 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** # **WP(C) NO. 24410 OF 2022** ## **PETITIONER:** ASIF AZAD, AGED 30 YEARS, DARUSSALAM, PARAYATHUKONAM P.O, KIZHUVILAM, THIRUVANANTHAPURAM, KERALA, PIN - 695104 BY ADV.ASIF AZAD (Party-In-Person) ## **RESPONDENTS:** - 1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF EDUCATION, SHASTHRI BHAWAN, NEW DELHI, INDIA, PIN – 110 001 - 2 NATIONAL HUMAN RIGHTS COMMISSIONS (NHRC) REPRESENTED BY DIRECTOR GENERAL, FARIDKOT HOUSE, COPERNICUS MARG, NEW DELHI, INDIA, PIN – 110 001 - 3 NATIONAL TESTING AGENCY, REPRESENTED BY DIRECTOR GENERAL, FIRST FLOOR, NSIC-MDBP BUILDING, OKHLA INDUSTRIAL ESTATE, NEW DELHI, INDIA, PIN – 110 020 - 4 DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, VELLAYAMBALAM, CITYTHIRUVANANTHAPURAM, KERALA, PIN - 695010 SRI. K.P.HARISH, SR.G.P., SRI. NIRMAL. S, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24410 OF 2022 :: 2 :: ## **JUDGMENT** Dated this the 5[th] day of August 2022 ## **S.MANIKUMAR, C.J.** This public interest litigation is filed seeking issuance of directions to the third respondent – National Testing Agency to reconduct the NEET exam and for a direction to the first respondent to publish the common protocol to conduct examinations. 2. Claiming himself to be public interest litigant, a mechanical Engineer has sought for the following reliefs: “1. To issue any order for the facts, reasons and circumstances stated in the accompanying petitions which is duly supported by an affidavit, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to pass an order or direction in the nature of Mandamus there by directing the respondent no.1 to publish a common protocol to conduct examinations across India. 2. The facts, reasons and circumstances stated in the accompanying petitions this Hon'ble Court may graciously be pleased to direct respondent no.2 to give victims a free counselling who experienced mental rape while taking the NEET exam. 3. To issue any order or direction to respondent no. 1 to pay a compensation for ruining the Life, Mental and Physical Agony, Stress, Depression of the girls for violating Article 21 of Stress, Constitution of India.” WP(C) NO. 24410 OF 2022 :: 3 :: 3. Brief facts of the case is that female candidates who were to appear in the NEET qualifying exam were asked to remove their inner wears before appearing for the aforementioned qualifying test. This instruction was allegedly implemented on account of beep sound emanated from the metal detector while frisking process was carried out the scan using metal detector was intended to detect the presence of any unwanted electronic gadgets, metallic equipments, large buttons etc. during the course of examination. Subsequently in the wake of such emanating beep sound the female candidates, who were subjected to such scanning, were insisted upon to remove their inner wears with metallic buttons, hooks and fasteners. 4. On the averments and prayers sought for, the first and foremost contention raised by Mr. S. Nirmal, learned Standing Counsel appearing for respondent No.3 - the National Testing Agency is that the writ petition does not satisfy the requirements of a public interest litigation and hence the same is not maintainable. According to the learned Standing Counsel, petitioner has made inappropriate averments against the agency, which has conducted NEET examination for nearly three lakhs students across the country. It is submitted that WP(C) NO. 24410 OF 2022 :: 4 :: Crime No. 1065/22 has already been registered in the Chadayamangalam Police Station and the investigation is underway. He further submitted that National Testing Agency (NTA) is conducting NEET (UG) since 2019 with the approval of the Ministry of Health and Family Welfare and the Ministry of Human Resource Development which is now known as the Ministry of Education), in pursuance of the direction of the Hon'ble Supreme Court of India vide judgment dated 22.11.2018 in C.A.No.11230 or 2018 in the matter of CBSE v. T.K.Rangarajan & others. 5. As per Section 14 of the National Commission Act, 2019 (Appendix) which has come into force on 24[th] September 2020, NEET (UG) has to be conducted as a common and uniform National Eligibility cum Entrance test (NEET), on single day in single shift in Pen and Paper mode and QR based, for admission to the undergraduate medical education in all medical institutions, including those governed under any other law in force. 6. A detailed statement, dated 4[th] August 2022, has been filed on behalf of the third respondent, relevant portion of which reads thus: “11. It is further submitted that the National Testing Agency has published a 113 paged booklet prescribing the WP(C) NO. 24410 OF 2022 :: 5 :: guidelines upon which the National Eligibility Cum Entrance Test (UG) 2022 had to be held. The frisking/biometric norms were also detailed in the guidelines for Centre Superintendent and NTA authorized Agency, which are reproduced as under for ready reference: ➢ There would be a separate frisking/ biometric zone for male and female candidates (in registration Room/Hall). Only female staff will frisk the female candidates in the enclosure. ➢ Hand held Metal detector with long rod for detection of prohibited Metallic equipment/Mobiles/Electronics/ Communication equipment or any small Electronic Bugs will be used by the authorized Agency. ➢ No candidate will be allowed to enter the examination zoom without frisking/ biometric. ➢ The trained manpower to be supplied by the Agency will include male & female frisking/ biometric personnel. ➢ Personnel involved in frisking/ biometric must take care of the sensitivity issues related to Gender/ Religion/ Sociocultural and regional differences and should not hurt the sentiment of any candidate. True copy of the relevant page of the Guidelines of NEET (UG) 2022 pertaining to frisking are attached herewith as Annexure R3 (b). 12. It is submitted that after the conduct of the NEET (UG) 2022 on 17.07.2022, NTA learnt only through media reports that few female candidates were allegedly forced to remove their innerwear during frisking at one of the Centers of NEET (UG) - 2022 near Kollam District in Kerala. In furtherance, a FactFinding Committee has been constituted by NTA to ascertain the facts in detail. 13. It is further submitted that the alleged incident at Kollam is only an unfortunate and untoward incident which has been reported. It may be mentioned that NTA has been conducting NEET (UG) examination since 2019 and has WP(C) NO. 24410 OF 2022 :: 6 :: successfully conducted NEET (UG) 2019, 2020 and 2021. Furthermore, NTA has conducted more than 100 examinations since 2018 and as per the record, no such incident has been reported in NEET (UG) or any other examination conducted by NTA. All examinations has been, conducted in a smooth and fair manner for the past three years. 14. It may also be mentioned that the Gender/ Religion/ Socio-cultural and regional sentiments of the candidates appearing for the examinations conducted by NTA are of paramount consideration and there are various guidelines/SOP already in place to ensure that the examination personnel are sensitized. If required, the existing norms/ guidelines/ instructions/ SOP regarding frisking may be revised to ensure that the examination personnel are further sensitized in the matter, so as to ensure the dignity of the candidates and integrity of the examination process. 15. It is further submitted that Crime No. 1065/22 has already been registered in the Chadayamangalam Police Station and the investigation is underway. As per the Statement filed by the 4[th] Respondent, all the accused involved in the said incident were arrested and have been granted Bail by the Judicial First Class Magistrate, Kadakkal on 20/07/2022. The case bearing Crime No. 1065/22 U/s 354, 509, 109 & 34 IPC of Chadayamangalam Police Station is still under investigation and the law is following its course. 16. It is submitted that the affected party has not sought for any relief with respect to counseling or compensation and therefore no relief can be granted to the petitioner in this regard.” ## 7. Mr.K.P.Harish, learned Senior Government Pleader appearing for the 4[th] respondent - Director General of Police submitted that accused 1 to 5 were arrested on 19.07.2022 and produced before the WP(C) NO. 24410 OF 2022 :: 7 :: Hon'ble JFMC, Kadakkal and the court remanded them in Judicial Custody. All the accused have approached the Court for bail and the court enlarged them on bail on 20.07.2022. Now the case in crime No.1065/2022 registered for the offences punishable under Sections 354, 509, 109 and 34 IPC of Chadayamangalam Police Station is under investigation. 8. A detailed statement has been filed on behalf of the fourth respondent, relevant portion of which reads thus: “2. It is submitted that, the Writ Petition is filed by the petitioner seeking an order or direction in the nature of mandamus there by directing the 1[st] respondent to publish a common protocol to conduct examination across India and such other relief. This petition was filed by the complainant after the incident that the female candidate who appeared for NEET qualifying examination at Marthoma Institute of Information Technology Ayoor, were forced to remove their inner wear having metal hooks after frisking. 3. It is humbly submitted that, with regard to the allegation of misbehavior towards the female candidates who appeared for the NEET examination at Marthoma College, Ayoor by the authorities concerned, a complaint from Sri Gopakumar. Harivilasom, Padinjattekizhakkemuri, Sooranadu North, Kunnathoor was received in this office on 17.07.2022 late evening which entered in camp petition register, vide No: 3199/camp/ptn/22-QR. 4. In that complaint, the complainant Gopakumar alleged that his daughter was subjected to humiliation and mental harassment due to the strict instruction and the act of those persons who were engaged in the frisking and security checking of the candidates as such she was forced to remove WP(C) NO. 24410 OF 2022 :: 8 :: her inner wear as it has some metal hook. Due to this mental agony she was not able to attend the exam properly. 5.The said complaint was endorsed to the Deputy Superintendent Police, Kottarakkara on 18.07.2022 for enquiry and further necessary action. As instructed, Smt. Priya P.M. Sub Inspector Crime, Chadayamangalam Police Station having jurisdiction recorded the statement of the said candidate at her residence at Sooranadu. On the basis of her statement, a case in Crime No. 1065/22 U/S. 354 & 509 IPC was registered on 18.07.2022 at 22.02 hrs in Chadayamangalam Police Station against one identifiable woman. The case was registered by SHO Chadayamangalam and investigation is being conducted by Deputy Superintendent of Police, Kottarakkara vide Order No. 296/Camp/DPC/22-QR issued from this office on 18.07.2022. 6. The brief of the case is that female candidates who were to appear in the NEET qualifying exam were asked to remove their inner wears before appearing for the aforementioned qualifying test. This instruction was allegedly implemented on account of beep sound emanated from the metal detector while frisking process was carried out the scan using metal detector was intended to detect the presence of any unwanted electronic gadgets, metallic equipments, large buttons etc. during the course of examination. Subsequently in the wake of such emanating beep sound, the female candidates, who were subjected to such scanning were insisted upon to remove their inner wears mostly with metallic buttons, hooks and fasteners. In light of such directions from the authorities, the female candidates who were compelled to sit alongside with their male counterparts without wearing inner wear resulted in great humiliation and mental stress resulting in lack of concentration and studiousness, which is very essential for appearing in qualifying examination like NEET. 7. It is further submitted that, during the course of investigation the details of staff engaged in the NEET examination duty and the CCTV footage of the said checking area was collected and verified. It is revealed that the NEET examination was conducted by National Testing Agency, the 3[rd] respondent in this writ petition and they out sourced to 'Star WP(C) NO. 24410 OF 2022 :: 9 :: Securities' Thiruvanathapuram to provide additional manpower for frisking and checking duties. The same was endorsed to their district co-ordinator Aravindakshan at Mynagappally. As per the demand of Sri Aravindakshan, one Joby Thomas, residing within the jurisdiction of Chadayamangalam Police Station arranged 8 persons for the required duty at the center. The duty persons were Shijo Sam team leader, Sabu, Abhishek, Adarsh, Jostna Joby, Beena Liju, Geethu, Ashny. The frisking of male candidates were done by Shijo Sam, Sabu Abhishek, Adarsh and that of female candidates were Jostna Joby, Beena Liju, Geethu, Ashny. In which the temperature checking was done by Ashny outside the gate, the other 3, namely Jostna Joby, Beena Liju, Geethu, were engaged in frisking and checking with HHMD inside a closed room. Outside the frisking room there were 2 cleaning staff of Marthoma College namely Smt. Mariyamma K. and Smt. Mariyamma S. for helping the checking team. 8. It is also submitted that, during the course of investigation another 4 similar petitions alleging harassment by the staff engaged in examination duty received in Chadayamangalam police station and their statements were also recorded for the purpose of investigation. The visuals and the photographs of the female staff were identified by the said candidates who have forced them to remove their inner garments causing insult to their modesty. During the course of investigation, section 34 IPC was added on 19.07.2022 and a report was filed before the JFMC, Kadakkal in this regard. 9. It is further submitted that, these suspected women were summoned to the police station and questioned. Which revealed that Jostna Joby, Beena Liju & Geethu were engaged in frisking and HHMD checking who restricted those having detected with metal in their body wears and kept outside the room for clearing the objectionable material. They were sent to a nearby cabin under the stair room used by the cleaning staff for removing their inner wears having metal hooks. The complainant of this case was reluctant to remove the inner wear as she ashamed herself to appear before others as she have worn a thin banyan cloth T-Shirt. She was compelled by the cleaning staff to remove the same and to appear the exam WP(C) NO. 24410 OF 2022 :: 10 :: asking which is her priority either her future or dress. As such the complainant obtained a shawl from her parents through the exam co-ordinator of the centre Priji Kurian Issac, teaching staff of the said college and she appeared the examination under mental stress. She intimated the matter to her parents on the way back to home and which lead to registering the case. 10. It is submitted that the investigation revealed that Smt. Mariyamma S (46) W/O Babu, Muttukonathu Puliyaraputhenveedu Kambamkodu, Valakom, Mariyamma K (45) w/o Shibu. Thundil Padinjattathil, Vattayam, Peringalloor, Ayoor, Geethu, (27) W/O Sajith, Revathy, Kallumala Chadayamangalam, Beena (34) W/O Jiju, Jiji Vilason, Manjappara, Koottukkal & Jyotsna (21) D/O Joby Thomas, Kaduthanathu House, Pavoor, Manappara, Kottukkal compelled the candidates to remove their inner wears. Thereby they have committed the same with the knowledge that their act of compelling the candidates to remove their inner wears will definitely cause insult to their privacy and their modesty and compelled them to appear before others without proper dress to their satisfaction. As such they were arrayed A1 to A5 and they were arrested at 17.43 hrs on 19.07.2022 and produced before the Hon'ble JFMC, Kadakkal. The Hon'ble Court remanded them in Judicial Custody. 11. It is humbly submitted that even though the chief coordinator of the examination centre Dr. Priji Kurian Issac and the observer of NTA Sri Shamnad who present in the centre were aware of the incidents and they did not take any rational decision or involvement to clarify or avoid such untoward incidents and which resulted to a big trauma to the candidates and their parents. Hence section 109 IPC was added and report was filed before the JFCM Kadakkal in this regard. 12. Upon further investigation Sri Prijikurian Issac aged 45 s/o Issac Samuel, Velutherilveedu, Punalur and Shamnad aged 35, s/o Davood, Block No 11, Kalluvettamkuzhi were identified and arrested on 20.07.2022 and produced before the Hon'ble Court. All accused approached the Court for bail and the court enlarged them on bail on 20.07.2022. Now the case in WP(C) NO. 24410 OF 2022 :: 11 :: crime No 1065/2022 U/s 354,509,109 & 34 IPC of Chadayamangalam police station is under investigation. 13. Upon investigation 7 female candidates disclosed that the authorities had insisted them to remove their inner wears and that caused them to sit in front of other male candidates and male invigilators without wearing inner wears in light and transparent dresses. As part of the investigation a letter has been sent to the Director NTA for obtaining the address details of the candidates, to find out more victims. Moreover it is asked to provide the terms and conditions, eligibility criteria, the directions given to the Central Superintendent. Observer, Deputy Observer etc. 14. It is further submitted that Guidelines issued by NTA in connection with NEET Examination was collected from NG Babu District Co-ordinator of NTA. Statements of Sri. Ajith, General Manager Sri. Santhosh Operation manager of Star security who engaged in security check in connection with NEET Exam was recorded and documents have been collected. 15. It is submitted that, a letter was sent to the State Level Officer NTA, seeking all specific details pertinent to NEET exam including the criteria of the selection of the examination center. Halltickets of the candidates attended in the center, attendance sheet etc. More over videographs and the statement of videographer deputed for NEET exam duty at Marthoma Institute of Information Technology Ayoor were collected. 16. It is humbly submitted that police officials conducted discreet and comprehensive enquiry in this regard. All the orders of the Hon'ble Court in this regard will be complied in its true spirit.” 9. As regards prayer No.1, no mandamus can be issued to the respondents to conduct a common protocol to conduct examinations across the country as procedure and protocol depends upon nature of WP(C) NO. 24410 OF 2022 :: 12 :: subjects and selection of candidates. That apart, it is purely the domain of respondents 1 and 3 (Union of India and National Testing Agency). As regards relief Nos.2 and 3 , it is purely personal. It is imperative that the staff engaged at the centres to be sensitized about the dress and examination code. 10. Having heard learned counsel for the parties and perused the materials available on record, we are of the view that the investigation is going on and the matter is pending consideration before the criminal court. In such circumstances, we find that the interference of this court is not required. In the light of the above, this writ petition is closed. **sd/S.MANIKUMAR CHIEF JUSTICE** **sd/SHAJI P. CHALY JUDGE** jes WP(C) NO. 24410 OF 2022 :: 13 :: ## **APPENDIX** ## PETITIONER'S EXHIBITS: - EXHIBIT P 1 COPY OF THE EXTRACT OF THE NEWS PUBLISHED BY NDTV THROUGH THEIR WEBSITE DATED 19.07.2022 - EXHIBIT P 2 COPY OF THE EXTRACT OF THE NEWS PUBLISHED BY TIMES NOW THROUGH THEIR WEBSITE DATED 19.07.2022 - EXHIBIT P 3 COPY OF THE EXTRACT OF THE NEWS PUBLISHED BY INDIAN EXPRESS THROUGH THEIR WEBSITE DATED 19.07.2022 ## RESPONDENTS' ANNEXURES: - ANNEXURE R4(A) TRUE COPY OF THE FIR AND FIS IN CRIME NO. 1065/22 OF CHADAYAMANGALAM POLICE STATION - ANNEXURE R3(A) TRUE COPY OF THE DATA-SHEET DETAILING OF THE ORIENTATION PROGRAMS CONDUCTED BY NTA - ANNEXURE R3(B) TRUE COPY OF THE RELEVANT PAGE OF THE GUIDELINES OF NEET (UG) 2022 PERTAINING TO FRISKING // TRUE COPY // P.S. TO JUDGE