Remote Proctoring- Invigilating the Invigilator

Venisa Dbritto and Nidhi Mirchandani

• Introduction

The coronavirus pandemic has created havoc all around the world and forced it to pause everything
including human contact with the outside world. Taking birth in China, it brought a gigantic crisis on a
global level. Since the declaration of lockdowns across the planet, the nations and their governments
have been tasked with their moral duty of protecting its citizens and looking for long-lasting and durable
solutions to address this economic and humanitarian crisis. This pandemic also created a new issue for
students trying to learn and, to accommodate it, the world shifted to a new strategy of digital learning or
e-learning to avoid physical contact and prevent spread of the virus. Students are forced to attend their
classes from home via their computer systems or on their mobile phones. Exams and tests have had
to be shifted online to avoid contact.

This gave rise to remote proctoring. An online exam supervising system. Remote proctoring makes it
possible for students to take an exam from a remote location while ensuring the integrity of the exam.
Here, live proctors have to continuously invigilate the student’s activity in order to maintain the decorum
of the exam and to ensure that no student is using unfair means to pass the exam. These live proctors
have access to view students constantly via a large video screen who will be checking the students ID
and their environment, and watching for any infringements.

• Reasons why Remote Proctoring became a topic of concern

During an online examination, the live proctors monitor the candidate’s audio, videos and screen in real
time. There has been a surge in demand for proctors as every institution has shifted to the method of
the online examination in order to follow the social distancing protocol. This led to colleges appointing
people without proper background checks as online proctors to quickly accommodate this surge. Right
now, it seems that any person can be an online proctor by providing some basic personal information
and most of these institutions hiring these proctors fail to do a strict background test of these proctors.
This led to people of menacing mentality taking advantage of these loopholes by behaving in a
mischievous or downright criminal manner. For mysterious reasons, these proctors have complete


Ms. Venisa Dbritto and Ms. Nidhi Mirchandani are third year BLS LLB students from Adv. Balasaheb Apte College of Law,
Mumbai University. [Authored on 15.03.2021]

Published in Article section of www.manupatra.com

access to each student’s name, identity card, housing address, government recognised document
(Aadhar card), phone number, etc.

Often this led to proctors exercising tyrannical power of eliminating students from their online
examination without any solid proof just on the basis that they suspected some malicious activity.

One terrifying incident came into public light when a few female students from a renowned college in
Mumbai shared their experience on social media of how they were harassed during their online
examination by these online proctors who were sending them awful, distressing and utterly
objectionable messages. They sent unsolicited messages riddled with obscenities to female students
on their personal contact number and the students were threatened with dire consequences regarding
their upcoming exams if they failed to respond. The proctors did have such an authority to cancel said
student’s exam with fake claims of cheating. In addition, there were also cases where proctors asked
the female students to adjust the camera at a certain angle and clicked pictures of the student. 1

These proctors resorted to unsolicited behaviour and asked the female students to lower their camera
or set the camera in a specific angle. The anxiety of being watched by someone behaving
inappropriately for 3 hours forced some female students to quit their exam in between.

The students also need to show their government recognised identity card as the identity proof. These
government identity cards have a unique identification number and the person’s bank account, phone
number, address and other important confidential information is linked to that unique number. A student
also complained that her personal data and her aadhaar card number was used for a loan application
while another student claimed that her photo and personal details were stored on the proctor’s system.
The proctor can access the student’s confidential and personal information easily and can make
mischievous use of the information which could have serious and grave consequences.

Furthermore, these online proctors have complete access to the student's computer system and also
have the authority to change the settings of the system. The proctors can view all the information stored
in the system, change settings, turn-off programs to keep a control on the cheating. Thus, invasion of
privacy is seen as the biggest threat that comes with online proctoring.

These situations have given rise to privacy concerns regarding online proctoring used for exams and in
the words of Earl Warren, “The fantastic advances in the field of electronic communication constitute a
greater danger to the privacy of the individual.”

1 https://www.thenewsminute.com/article/nmims-students-allege-harassment-online-proctor-during-exams-141207

Published in Article section of www.manupatra.com

• Laws related to the breach of data privacy

A new bill was presented in front of our parliament in recent times regarding the personal data privacy
issues. The Personal Data Protection bill, 2019 pursues a secured plan for protecting data of the
individuals with a creation of a framework for processing such sensitive personal data. The bill also
seeks to establish a Data Protection authority for the better working of the procedure.

However, currently India’s mechanism for data protection and privacy is instituted in the Information
technology Act, 2000 [“the IT Act”] sections 43A and 72A and corresponding to the IT Act, 2000 is
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data
or Information) Rules, 2011 [“the IT Rules”].

Section 43A of the IT Act establishes a liability on a body corporate which also embraces firm, sole
proprietorship or other association of individuals engaged in commercial or professional activities into
its definition, which owns any sensitive personal information of a person to itself without the use of any
procedure for protecting the data of the person and results of such negligence leads to wrongful gain
or wrongful loss of any person. Thereafter, Section 72A of the IT Act provides penalty to the person
who has attained access to personal information of a person and disclosed the sensitive personal data
of that person without consent, with the intention of causing that it would cause wrongful gain or wrongful
loss. Such penalty may include imprisonment extending to 3 years or fine extending 5 lakh rupees or
with both. In addition, the IT Rules makes sures that the corporate body publishes an online privacy
policy and along with that, it grants individuals the right to their sensitive personal information. It also
mandates that the corporate body must obtain consent before disclosing any information and gives right
to access to the individuals. 2

The Personal Data Protection bill, 2019 proposes to supersede the IT Act, 2000 and deleting
aforementioned sections (section 43A and 72A). The Expert committee (Chairperson: Justice B.N.
Srikrishna) in its report 3 submitted in July, 2018 stated that even though the IT Rules were very detailed
and effective for a long time in data protection, it’s shortcomings couldn’t be hidden because of the pace
in which the digital economy has been developing 4. For example, the report held that the definition of
sensitive personal data under the Rules is narrow and some of its provisions can be overridden by a
contract.

The committee of Personal Data Protection bill was set up after the Supreme Court’s landmark
judgement of Justice K S Puttaswamy (Retd.) & Anr. vs. Union of India and Ors 5 which settled the
deliberations on the subject of Right to Privacy. In the judgement, the constitution bench of the Hon'ble
Supreme Court held that Right to privacy is a fundamental right that needs to be protected. The court
further observed that privacy of personal data and facts is essential for right to privacy.

In order to meet the necessity of an Act which is in pace with the developing digital economy, a
committee of experts was set up in July, 2017 to scrutinize and draft various issues related to data
protection in India. The Bill plans on regulating 3 categories of data, that is, Personal Data, Sensitive

2 R.K Dewan & Co, Personal Data Protection Laws in India (2020)
3 “A Free and Fair Digital Economy”, Report of the Committee of Experts under the Chairmanship of Justice B. N. Srikrishna, July
2018.
4https://www.prsindia.org/sites/default/files/bill_files/Legislative%20Brief%20-

%20Personal%20Data%20Protection%20Bill%202019.pdf
5 MANU/SC/1054/2018

Published in Article section of www.manupatra.com

Personal Data, and Critical Personal Data. Inter alia, the bill prescribes the manner in which personal
data needs to be collected, processed, used, disclosed, stored and transferred.

Since there have been incidents where the proctor also messaged the victim on social media, the
offence also attracts the provisions of Cyber Stalking 6. Section 354D of the Indian penal Code states
“Any man who follows a woman and contacts, or attempts to contact such woman to foster personal
interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a
woman of the internet, email or any other form of electronic communication commits the offence of
stalking.”

Furthermore, Section 509 of the Indian Penal code protects the individual if someone is repetitively
bugging with derogatory verbal abuse because of the gender of the victim. The section delivers that
any person who utters any word or makes any sound or gesture, intending that such word, sound or
gesture be heard or seen by a woman and insult her modesty, shall be held punishable with one-year
imprisonment and/or fine.

Thereafter, the victim can also additionally file a case of defamation (Section 499, IPC) against the
offender.

• Conclusion

Today, people all over the world are concerned about breach of their privacy. When personal and
confidential data which has to be kept private gets in wrong hands, atrocious and dreadful things can
happen. Data breach, security threats and cybercrime can lead to theft of valuable information of a
person, which can lead to an adverse effect on the person. The issue of remote proctoring giving easy
access to the confidential information of an individual and making students feel unsafe while giving their
exam, needs to be fixed. In the words of Gary Kavocs, “Privacy is not an option, and it shouldn’t be the
price we accept for just getting on the internet.” Feeling safe with privacy and data security should be
the basic right of every human being and the colleges relying on remote proctoring should take special
efforts to ensure that the privacy of students is not compromised.

6 https://blog.ipleaders.in/cyber-stalking/

Published in Article section of www.manupatra.com