Covid-19 has closed the doors of schools and colleges in Bangladesh once again as the Government has decided to opt for a two weeks shut down.  The young minds of the country still suffer as their future seems uncertain in the wake of the pandemic. The confusion surrounding the method of holding the secondary and the higher secondary examination is accelerating among the students. However, in 2021, Bangladesh Government introduced the Intermediate and Secondary Education (Amendment) Act 2021 in an effort to mitigate the gap in the education system that was created due to failure to hold the public and board examination during Covid-19. The Government also enacted the Bangladesh Technical Education Board (Amendment) Act 2021 and the Bangladesh Madrasah Board (Amendment) Act 2021 for the equivalent board examination. The amended provisions allowed the Government to issue instructions to grant certificates at the end of the academic year without holding examinations or conducting examinations with a short syllabus in case of pandemic, epidemic, Act of God or for any other unavoidable circumstances. Subsequently, the Government decided to allow the higher secondary examinees of 2020 to receive an “auto pass” and both the secondary and higher secondary examinees took part in only subject based examination in 2021 due to the surge of Covid-19 cases.
The Government undertook a number of laudable measures for the purpose of spreading the light of education since 1990 to achieve the goals of Education for All and Millennium Development Goals which are – Compulsory Primary Education Act 1990, Non-formal Education Act 2014, National Education Policy 2010, and so on . The Constitution of Bangladesh in Article 17 focuses on free and compulsory education to all children within the ambit of fundamental principle of state policy. Article 17 requires the country to take effective measures to remove illiteracy and produce properly trained and motivated students. But does the auto pass examination scheme in selective subjects for the students truly achieve the objective of Article 17? The Constitution clearly asks for a society of educated and capable citizens. However, it is submitted that merely handing out auto pass certificates does not uphold the true spirit of Article 17. Though examination is a popular and widely used means to evaluate the merit of the students, only passing such examinations should not be regarded as the sole purpose of education. As such, the decision of auto pass or examinations in selective subjects can invoke much debate in the question of constitutionality in the context of fundamental principle of state policy.
Article 8(2) specifically provides that the fundamental principles of state policy are not judicially enforceable . On the other hand, the fundamental principle of state policy casts an obligation on the government to act upon them . It was further added by the case of Anwar Hossain Chowdhury v. Government of Bangladesh and Others  that applying the fundamental principle of state policy while making laws shall be a duty of the state. As such, on one hand the fundamental principle of state policy is not judicially enforceable and on the other, its reflection in the laws and policies of the State is required. This gives rise to a paradoxical situation regarding the implementation of the fundamental principle of state policy.
Thus, when the fundamental principle of state policy mentions the purpose of education is to produce “properly trained and motivated students”, thereby requiring such principle to be reflected in the country’s endeavours, it is submitted that measures such ‘auto pass’ schemes in selective subjects become a controversial issue because the aspect of skill and training remains unassessed amongst the graduating students. In Maharshi Mahesh Jogi v. State of M.P. & Ors (2013), the Supreme Court of India held that ‘education’ is an instrument by which the skills and productive capacities are developed and endowed. The Indian Supreme Court also held that ‘literacy’ forms the cornerstone for making the provision of equality of opportunity a reality. It can be very well argued that certifying the examinees through an ‘auto pass’ does not impart ‘education’. The Supreme Court of India in another landmark judgment  held that an educated citizen could meaningfully exercise his political rights, discharge social responsibilities satisfactorily and develop spirit of tolerance and reform. The purpose of education was vividly described by Martin Luther King as he asserted famously, ‘The function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education’. Keeping all these aspects of education in mind, the question that arises is this – does the auto pass scheme achieve any of these objectives? It is humbly submitted that it does not.
Imparting proper education is not possible with the measures like auto pass or examinations on mere three subjects. Given the prolonged closure of schools, universities and other learning institutions, many countries and institutions have adopted different feasible methods including both in-person and online examinations to respond to Covid-19. Education institutions in Germany, for example, undertook to hold in-person examinations maintaining distance and hygiene for each student . Moreover, Universities of Oxford and Cambridge in the United Kingdom conducted their examinations online . However, considering the socio-economic situation of Bangladesh, online examination might not be feasible for all students. Therefore, one solution could be lessening the examination time through shortening the length of the questions instead of abandoning different subjects altogether and, at the same time, increasing the exam centres throughout the country to ensure safe distance between the examinees. Besides, adoption of a mixed system of online and in-person examination can also be a matter of discussion for the Ministry of Education.
Written by Junayed Chowdhury, Sadia Islam and Aftab Uddin at Vertex Chambers
† Disclaimer: The opinions and comments expressed in this Blawg are not to be regarded or construed as legal advice by and from Vertex Chambers or any of its members. It is highly advisable that any person should seek independent legal advice before relying on any of the contents of this Blawg.
 Notification No.04.00.0000.514.16.001.21-141 dated 21.01.2022 published by the Cabinet Division
 Ministry of Primary and Mass Education, EFA 2015 National Review BANGLADESH (2015) page 3
 M. Saleem Ullah v. Justice Mohammad Abdul Quddus Chowdhury (1994) 46 DLR 691
 M.A. Wahab v The Secretary, Ministry of Land (1996) 1 MLR (HC) 338
 Anwar Hossain Chowdhury v Government of Bangladesh and Others (1989) 41 DLR (AD) 165
 Bandhua Mukti Morcha Vs Union of India (1997)
 UNESCO, COVID-19 A glance of national coping strategies on high-stakes examinations and assessments (2020), page 6
 UNESCO, COVID-19 A glance of national coping strategies on high-stakes examinations and assessments (2020), page 12