Saturday, 21 November 2020

How to appreciate evidence in case of admission of guilt by law student about plagiarism?


 The vehement contention of the University Counsel

that, petitioner in his mail dated 02.03.2020 has admitted

the ‘offence of plagiarism’, is difficult to countenance;

petitioner had sent a mail of the kind vide Annexure-R5, is

true, though unfairly enough, he has not whispered about

this in the Writ Petition; it is a representation ‘to

reconsider my case’ of plagiarism and not an admission;

true it is that, there are a few stray sentences such as ‘This

is my first plagiarism violation’; however, the same is

followed by other sentences which seek to explain why it is

not a case of plagiarism; he has specifically stated that

certain things needed to be mentioned as they are and,

that would not amount to plagiarism; even in his mail

dated 28.2.2020 at Annexure-R1 to the S.O., he has

written ‘This is my first violation’; but this too is followed

by a denial in the very same paragraph.

f) It has been a long settled position of law that a

stray sentence giving the impression of admission of the

guilt shall not be interpreted in isolation when the rest of

the matter in the representations suggests the contra; one

has to gather a holistic impression from reading the entire

text and not a few sporadic sentences appearing here &

there in a script, whilst considering if what is stated

amounts to admission. An acclaimed jurist of yester

decades Mr.Rupert Cross in his treatise ‘EVIDENCE’, (3rd

Edn. London- Butterworks 1967) at page 433 states: “An

admission being any statement … which is adverse to a

party’s case, the only conditions of admissibility, when the

statement emanates from the party himself concern the

capacity in which he is acting and the reception of the

entirety of the statement…”; it is more so when one is

dealing with the educational career of young minds like the

petitioner herein; loose & lavish wording of the

representations, need to be given a due discount; the

respondent –University is not justified in seeking shelter

under a leaking umbrella of a poor student.


IN THE HIGH COURT OF KARNATAKA, BENGALURU

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO. 9395 OF 2020 (EDN-RES)

BETWEEN:

SRI HRUDAY. P B Vs  THE VICE CHANCELLOR, THE NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

DATED:  18TH DAY OF NOVEMBER, 2020

Petitioner who joined the Five Year B.A. LL.B (Hons.)

Course in the respondent – University from the Academic

Year 2017-18, is declared to have secured “F Grade” in

Child Rights Law examination held on 13.03.2020 since he

was not given any mark because of alleged plagiarism of

the Project Work in question; he was also not allowed to

take Special Repeat Examination of third trimester in the

third year, allegedly in breach of assurance of the

University.

2. Aggrieved by the above action of the respondent

- University, petitioner has knocked at the doors of Writ

Court with the following prayers:

“(i) To call for the records relating to issue of

impugned endorsement by the 2nd respondent

University dated 01.08.2020 vide Annexure-H

and the order dated 10.08.2020, passed by the

1st respondent against the appeal of the petitioner,

(vide Annexure-L1) denying the petitioner

admission to Fourth Year B.A. LL.B.(Hons.) for the

Academic Year 2020-21 and after perusal set

aside the same.


(ii) To direct the respondent University to await

result of extra seminar course that the petitioner is

permitted to pursue in July, 2020 and get himself

promoted to Next Year”.

3. After service of notice, the respondents having

entered appearance through their advocate, have filed

Statement of Objections on 17.10.2020 and make

submission in justification of the impugned action.

4. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

is inclined to grant relief to the petitioner as under and for

the following reasons:

a) The essential grievance of the petitioner emanates

from the so called ‘admitted’ charge of plagiarism and

therefore, advertence to the extant Regulations

concerning the same becomes relevant; Clause 4 of

Regulation III of the B.A LL.B (Hons.) Academic and

Examinations Regulations of 2009 reads as under:

“(4) Plagiarism:

a) Any evidence of plagiarism, if found by

the subject teacher, in the form of noncitation

of sources or copying from another

student’s project or form his/her own earlier

project without acknowledgment of the same,

will result in the matter being referred to the

UGC Chairperson by the subject teacher in

writing as also a written intimation to the

student in this regard by the teacher.

b) If the matter is referred to the UGC

Chairperson by the teacher, the UGC

Chairperson shall refer the matter to the Vice

Chancellor immediately. The Vice Chancellor,

in turn, shall look into the matter and decide

whether to refer the matter to the Disciplinary

Matters Advisory Review and Investigation

Committee (hereinafter, “DARIC”) for

disciplinary action at the earliest. In the

event that the Vice Chancellor decides not to

refer the matter to the DARIC, he shall record

his reasons in writing for the same.

c) Pending the decision of the Vice

Chancellor or the DARIC, if referred thereto,

viva voce for the project shall be conducted.

d) If the student is found guilty of

plagiarism, he/she shall be punished as per

the DARIC Rules”.

Apparently, this provision of the Regulations prescribes an

elaborate procedure with several hierarchical checks &

balances, presumably because very serious consequences

follow a proven act of plagiarism; the text & context of the

said Regulation show both the prescription of procedure

and designation of the personnel, who process the

complaint of plagiarism stagewise.

b) These Regulations do not define plagiarism, is not

in dispute; in fact, the University Circular dated

04.10.2019 at Annexure-R9 to the S.O. states: “From the

2nd term of A.Y. 2019-20, the U.G. Council will clarify the

concept and application of Plagiarism rules through FAQs

to be circulated in the first fortnight of this term. The AER

2009 will be applied in full from November 2019”; therefore

the concept needs to be understood in a common parlance;

Ramanatha Aiyar’s “Advanced Law Lexicon” 3rd Edn,

Wadhwa Nagpur states: “Plagiarism: Publishing borrowed

thoughts as original; stealing literary matter from the work

of another author. The act or an instance of copying or

stealing another’s words or ideas and attributing them as

ones own”; the learned Lexicographer also mentions about

Paul Goldstein’s ‘Copyright’s Highway 12 (1994) which

lucidly explains the concept as under:

“Plagiarism, which many people commonly

think has to do with copyright, is not in fact a

legal doctrine. True plagiarism is an ethical,

not a legal, offense and is enforceable by

academic authorities, not Courts. Plagiarism

occurs when someone – a hurried student, a

neglectful professor, an unscrupulous writer –

falsely claims someone else’s words, whether

copyrighted or not, as his own. Of course, if

the plagiarized work is protected by copyright,

the unauthorized reproduction is also a

copyright infringement.”

c) Plagiarism is a very serious matter that involves

ethics and reputation of the student/person concerned;

proven plagiarism operates as a hazardous stigma at the

campus and the person carrying the same is ordinarily

shunned; it may affect his educational and employment

opportunities as well; that is the reason, why the

respondent-University has taken appreciable pains in

meticulously structuring the provision in the extant

Regulations so that the innocents are not victimized;

however, it has not adhered to the minimum of the

fairness standards enacted therein; ‘more is not necessary

to specify and less is insufficient to leave it unsaid’. There

is absolutely no material on record to show that the

subject teacher having found the evidence of plagiarism

had referred the matter to the UGC Chairman in writing

and had sent a written intimation to the student;

petitioner came to know of the alleged plagiarism only after

enquiry with the Registry of the University when his exam,

result was not announced; this act of the University

constitutes a grave error apparent on the face of the

record.

d) The entire episode of so called ‘plagiarism’ is

framed on the basis of a few notoriously cryptic mails

exchanged between the Course Teacher and the Exam

Department, detrimentally keeping the petitioner in

darkness; the said mails are printed on a short paper at

Annexure-R7 to the S.O., and the same are reproduced

hereunder:

“Subject: FW: Turnitin report –reg.

--------- Forwarded message ---------

From: Suchithra Menon C. <suchithra@nls.ac.in>

Date: Wed, Feb 12, 2020 at 1:09 PM

Subject: Re: Turnitin report –reg.

To: Third Year LLB <thirdllb@nls.ac.in>

Yes, the projects are plagiarized.

On Fri, Feb 7, 2020 at 10:57 AM Third Year LLB

<thirdllb@nls.ac.in> wrote:

Madam,

Pl, indicate if the project is plagiarized and send the

report.

With best regards

D.K. Keshavamurthy,

Exam dept.

On Tue, Feb 4, 2020 at 4:47 PM Dr. Suchithra

Menon C. <suchithra@nls.ac.in> wrote:

Thanks for the mail.

On Tue, 4 Feb 2020, 16:39 Third Year LLB

<thirdllb@nls.ac.in> wrote:

Madam,

PFA, the following students having similarity index

more than 30%. Pl, indicate the remarks.

With best regards

D.K. Keshavamurthy,

Exam dept.”

e) The vehement contention of the University Counsel

that, petitioner in his mail dated 02.03.2020 has admitted

the ‘offence of plagiarism’, is difficult to countenance;

petitioner had sent a mail of the kind vide Annexure-R5, is

true, though unfairly enough, he has not whispered about

this in the Writ Petition; it is a representation ‘to

reconsider my case’ of plagiarism and not an admission;

true it is that, there are a few stray sentences such as ‘This

is my first plagiarism violation’; however, the same is

followed by other sentences which seek to explain why it is

not a case of plagiarism; he has specifically stated that

certain things needed to be mentioned as they are and,

that would not amount to plagiarism; even in his mail

dated 28.2.2020 at Annexure-R1 to the S.O., he has

written ‘This is my first violation’; but this too is followed

by a denial in the very same paragraph.

f) It has been a long settled position of law that a

stray sentence giving the impression of admission of the

guilt shall not be interpreted in isolation when the rest of

the matter in the representations suggests the contra; one

has to gather a holistic impression from reading the entire

text and not a few sporadic sentences appearing here &

there in a script, whilst considering if what is stated

amounts to admission. An acclaimed jurist of yester

decades Mr.Rupert Cross in his treatise ‘EVIDENCE’, (3rd

Edn. London- Butterworks 1967) at page 433 states: “An

admission being any statement … which is adverse to a

party’s case, the only conditions of admissibility, when the

statement emanates from the party himself concern the

capacity in which he is acting and the reception of the

entirety of the statement…”; it is more so when one is

dealing with the educational career of young minds like the

petitioner herein; loose & lavish wording of the

representations, need to be given a due discount; the

respondent –University is not justified in seeking shelter

under a leaking umbrella of a poor student.

g) What intrigues this Court is about the enormity

of unfair treatment which the petitioner was meted out at

the hands of a Law University, in a serious matter like this;

it is anguishing that the University did not afford an

opportunity of personal hearing despite his written

request vide mail of 02.03.2020 at Annexure-R5 to the

S.O.; in Biblical literature, even God is said to have given

an opportunity of hearing to Adam & Eve before punishing

them for consuming the proscribed fruit, in the Eden

Garden; which heavens would have fallen down, had a

reasonable opportunity of personal hearing been afforded,

remains as a mystery rapped in enigma; after all,

procedural fairness is a constitutional mandate when the

answering respondent is an instrumentality of the “State”

under Article 12 of the Constitution; it is high time that


this University of national repute be reminded that it is

dealing with our children and not others’ chattel; and,

h) The last contention of the learned counsel for the

University that it has shown leniency in not taking a

stringent action for the act of plagiarism and therefore its

action in not awarding any mark to the project work of the

petitioner cannot be faltered, is difficult to agree with; the

punitive action of not awarding any mark to the project

work itself is founded on the wrongly assumed admission

of guilt, when the mails of the petitioner show the contrary,

as already discussed above; no Regulation nor Ruling is

cited at the Bar which authorizes zeroing of a toiled

student’s performance value sans a finding of guilt arrived

after holding a due enquiry when the charge is apparently

serious; added to this, the University has not articulated

the principles on which a charge of plagiarism is to be

founded; there is absolutely no justification for not holding

even a preliminary enquiry; since the matter is being

decided on merits after a lengthy hearing, it is not

desirable to remit the same for reconsideration at the

hands of the University, much water having flowed under

the bridges, by now.


In the above circumstances, this writ petition

succeeds; a Writ of Certiorari issues quashing the

impugned orders at Annexures-H & L1; a Writ of

Mandamus issues to the respondent-University to assess

and award marks to the petitioner’s Project Work in

question; petitioner shall be continued to keep the term by

way of carry over/carry forward, disregarding the

attendance shortage, if any.

No costs.


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