act 001 of 2024 : The Public Examinations (Prevention of Unfair Means) Act, 2024

CHAPTER I

PRELIMINARY

CHAPTER II

UNFAIR MEANS AND OFFENCES

CHAPTER III

PUNISHMENT FOR OFFENCES

CHAPTER IV

PUNISHMENT FOR OFFENCES

CHAPTER V

MISCELLANEOUS

CHAPTER VI

AMENDMENT TO THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 1944

Section 1.Short title and commencement.

(1) This Act may be called the Public Examinations (Prevention of Unfair Means) Act, 2024.

(2) It shall come into force on such date¹ as the Central Government may, by notification in the Official Gazette, appoint.

1. 21st June, 2024, vide notification NO. S.O. 2422(E), dated 21st June, 2024, see Gazette of India, Extraordinary, Part II, sec. 3(ii).

Section 2.Definitions.

(1) In this Act, unless the context otherwise requires,--

(a) "candidate" means a person who has been granted permission by the public examination authority to appear in public examination and includes a person authorised to act as a scribe on his behalf in the public examination;

(b) "communication device" shall have the same meaning assigned to it in clause (ha) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);

(c) "competent authority" shall mean the Ministry or a Department of the Central Government administratively concerned with the public examination authority;

(d) "computer network", "computer resource" and "computer system" shall have the meanings respectively assigned to them in clauses (j), (k) and (l) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);

(e) "conduct of public examination" shall include all the procedures, processes and activities, as may be prescribed, for being adopted for the conduct of public examination;

(f) "institution" means any agency, organisation, body, association of persons, business entity, company, partnership or single proprietorship firm, by whatever name it may be called, which is other than the public examination authority and the service provider engaged by such authority.

Explanation.--For the purposes of this clause, it is clarified that "company" includes a company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2003); or a limited liability partnership firm as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (7 of 2009);

(g)"notification" means a notification published in the Official Gazette and the expression "notify" shall be construed accordingly;

(h) "organised crime" means an unlawful activity committed by a person or a group of persons indulging in unfair means in collusion and conspiracy to pursue or promote a shared interest for wrongful gain in respect of a public examination;

(i) "person associated with a service provider" means a person who performs services for or on behalf of such service provider irrespective of whether such person is an employee or an agent or a subsidiary of such service provider, as the case may be;

(j) "prescribed" means prescribed by rules made under this Act;

(k) "public examination" means any examination conducted by the public examination authority, as specified in the Schedule, or conducted by such other authority as may be notified by the Central Government;

(l) "public examination authority" means an authority as specified by the Central Government by a notification, from time to time for conducting the public examinations;

(m) "public examination centre" means such premises, which is selected by the service provider or otherwise selected by the public examination authority, to be used for conduct of public examination and which, amongst others, may include any school, computer centre, institution, any building or part thereof and the same shall include the entire periphery and land appurtenant thereto which may be used for security and other related reasons for conduct of the public examinations; and

(n)"service provider" means any agency, organisation, body, association of persons, business entity, company, partnership or single proprietorship firm, including its associates, subcontractors and provider of support of any computer resource or any material, by whatever name it may be called, which is engaged by the public examination authority for conduct of public examination.

(2) Words and expressions used herein but not defined and defined under any other law for the time being in force, shall have the same meanings as assigned to them in those laws.

Section 3.Unfair means.

The unfair means relating to the conduct of a public examination shall include any act or omission done or caused to be done by any person or group of persons or institutions, and include but not be restricted to, any of the following acts for monetary or wrongful gain---

(i) leakage of question paper or answer key or part thereof;

(ii) participating in collusion with others to effect leakage of question paper or answer key;

(iii) accessing or taking possession of question paper or an Optical Mark Recognition response sheet without authority;

(iv) providing solution to one or more questions by any unauthorised person during a public examination;

(v) directly or indirectly assisting the candidate in any manner unauthorisedly in the public examination;

(vi) tampering with answer sheets including Optical Mark Recognition response sheets;

(vii) altering the assessment except to correct a bona fide error without any authority;

(viii) willful violation of norms or standards set up by the Central Government for conduct of a public examination on its own or through its agency;

(ix) tampering with any document necessary for short-listing of candidates or finalising the merit or rank of a candidate in a public examination;

(x) deliberate violation of security measures to facilitate unfair means in conduct of a public examination;

(xi) tampering with the computer network or a computer resource or a computer system;

(xii) manipulation in seating arrangements, allocation of dates and shifts for the candidates to facilitate adopting unfair means in examinations;

(xiii) threatening the life, liberty or wrongfully restraining persons associated with the public examination authority or the service provider or any authorised agency of the Government; or obstructing the conduct of a public examination;

(xiv) creation of fake website to cheat or for monetary gain; and

(xv) conduct of fake examination, issuance of fake admit cards or offer letters to cheat or for monetary gain.

Section 4.Conspiracy for unfair means.

No person or group of persons or institutions shall collude or conspire to facilitate indulgence in any such unfair means.

Section 5.Disruption to conduct public examination.

(1) No person, who is not entrusted or engaged with the work pertaining to the public examination or conduct of public examination or who is not a candidate, shall enter the premises of the examination centre, with intent to disrupt the conduct of the public examination.

(2) No person authorised, engaged or entrusted with the duties to conduct public examination shall, before the time fixed for opening and distribution of question papers––

(a) open, leak or possess or access or solve or seek assistance to solve such question paper or any portion or a copy thereof in unauthorised manner for monetary or wrongful gain;

(b) give any confidential information or promise to give such confidential information to any person, where such confidential information is related to or in reference to such question paper for monetary or wrongful gain.

(3) No person, who is entrusted or engaged with any work pertaining to public examination shall, except where he is authorised in furtherance of his duties so to do, reveal or cause to be revealed or make known to any other person any information or part thereof which has come to his knowledge for any undue advantage or wrongful gain.

Section 6.Other offences.

If any person or group of persons or institution commits any unfair means or offence under sections 3, 4 and section 5, the service provider shall forthwith report the offence to the concerned police authorities and also inform the public examination authority:

Provided that if the service provider resorts to unfair means and commits the offence or is involved in facilitating an offence, the public examination authority shall report the same to the concerned police authorities.

Section 7.No premises other than examination centre shall be used for public examination.

It shall be an offence for the service provider or any person associated with the service provider to cause any premises, other than the examination centre, authorised by the public examination authority, to be alternatively used for the purpose of holding public examination, without the written approval of the public examination authority:

Provided that nothing contained in this section shall be an offence where any change in the examination centre without prior consent of the public examination authority is due to any force majeure.

Section 8.Offences in respect of service providers and other persons.

(1) Any person, including the person associated with a service provider, shall be deemed to have committed an offence if he individually or in collusion with any other person or group of persons or institutions assists any person or group of persons or institutions in any manner unauthorisedly in the conduct of public examination.

(2) Service provider or any person associated with it shall be deemed to have committed an offence if he fails to report incidence of any unfair means or commission of any offence.

(3) Where an offence committed by a service provider is, prima facie, established during investigation to have been committed with the consent or connivance of any director, manager, secretary or other officer of such service provider, such person shall also be liable to be proceeded against:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment under the Act, if he proves, that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

Section 9.Cognizable offences.

All offences under this Act, shall be cognizable, non-bailable and non-compoundable.

Section 10.Punishment for offences under this Act.

(1) Any person or persons resorting to unfair means and offences under this Act, shall be punished with imprisonment for a term not less than three years but which may extend to five years and with fine up to ten lakh rupees. In case of default of payment of fine, an additional punishment of imprisonment shall be imposed, as per the provisions of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023):

Provided that until the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) is brought into force, the provisions of the Indian Penal Code (45 of 1860), shall be applicable in place of the said Act.

(2) The service provider shall also be liable to be punished with imposition of a fine upto one crore rupees and proportionate cost of examination shall also be recovered from such service provider and he shall also be barred from being assigned with any responsibility for the conduct of any public examination for a period of four years.

(3) Where it is established during the investigation that offence under this Act has been committed with the consent or connivance of any Director, Senior Management or the persons incharge of the service provider firm, he shall be liable for imprisonment for a term not less than three years but which may extend to ten years and with fine of one crore rupees. In case of default of payment of fine, an additional punishment of imprisonment shall be imposed as per the provisions of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023):

Provided that until the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) is brought into force, the provisions of the Indian Penal Code (45 of 1860), shall be applicable in place of the said Act.

(4) Nothing contained in this section shall render any such person liable to any punishment under the Act, if he proves, that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

Section 11.Organised crimes.

(1) If a person or a group of persons including the examination authority or service provider or any other institution commits an organised crime, he shall be punished with imprisonment for a term not less than five years but which may extend to ten years and with fine which shall not be less than one crore rupees. In case of default of payment of fine, an additional punishment of imprisonment shall be imposed as per the provisions of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023):

Provided that until the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) is brought into force, the provisions of the Indian Penal Code (45 of 1860), shall be applicable in place of the said Act.

(2) If an institution is involved in committing an organised crime, its property shall be subjected to attachment and forfeiture and proportionate cost of examination shall also be recovered from it.

Section 12.Officers empowered to investigate.

(1) An officer not below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police shall investigate any offence under this Act.

(2) Notwithstanding anything contained in sub-section (1), the Central Government shall have the powers to refer the investigation to any Central Investigating Agency.

Section 13.Members, officers and employees of public examination authority to be public servants.

The Chairperson, Members, officers and other employees of the public examination authority shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023):

Provided that until the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) is brought into force, the provisions of the Indian Penal Code (45 of 1860), shall be applicable in place of the said Act.

Section 14.Protection of action taken in good faith by any public servant.

No suit, prosecution or other legal proceedings under this Act, shall lie against any public servant, in respect of anything which is done in good faith or intended to be done in the discharge of his official functions or in exercise of his powers:

Provided that the public servants in the service of any public examination authority shall be subject to administrative action in terms of service rules of such public examination authority:

Provided further that nothing shall prevent proceeding against such public servants where, prima facie case exists for establishing commission of an offence under this Act.

Section 15.Provisions of this Act to be in addition to other laws.

The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force:

Provided that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law in force.

Section 16.Power to make rules.

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:––

(a) to lay down procedures, processes and activities for being adopted for conduct of the public examination;

(b) any other matter which is to be or may be prescribed.

Section 17.Laying of rules.

Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session, immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall, thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 18.Power to remove difficulties.

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions within three years, not inconsistent with the provisions of this Act, as appear to it to be necessary for removal of difficulty.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 19.Amendment of Ordinance 38 of 1944.

In the Criminal Law (Amendment) Ordinance, 1944, in the Schedule, after serial number 5 and entries relating thereto, the following serial number and entries shall be inserted, namely:––

"6. An offence punishable under the Public Examinations (Prevention of Unfair Means) Act, 2024.".