On April 4th 2013, the Congress Vice President Mr Rahul Gandhi addressed a gathering of CII (Confederation of Indian Industry). He described his understanding of the problems facing the country and his vision for how these problems ought to be addressed. I appreciate both his and Mr Modi’s informal styles of speaking and I think this kind of articulation on both sides is a healthy development.
Lets take a look at the “Idea of Rahul”.
More than an Idea, a practice
First off, the Idea of Rahul is a misnomer. The operative principles behind it are those that are actually in practice for 65 years now. What we see around us today are the effects of these practices. Mr Gandhi in his speech reaffirmed these practices and the only new thing one heard was a renewed call for doing more of the same thing. This time deeper, more efficiently at a higher cost. To supporters of the establishment it has always seemed unfair that Mr Modi gets to play the game on a clean slate while Mr Gandhi is burdened with having to explain why it is that a renewed commitment to the same ideas that left us in third world status can produce different outcomes. However Mr Gandhi managed to shirk off these burdens and has managed to achieve the status of a rank outsider to his own government. Lets set that aside and focus on the “vision” part.
Society driven by positive rights
What is the basic infrastructure? The basic infrastructure as designed by the UPA is a rights based paradigm. Give everybody the basic minimum on a number of key ideas. Give him a basic minimum on the job front, give him a basic minimum on the education front, give him a basic minimum o the information which is what Nandan is doing. That is what we are trying to do with the rights based approach. The rights based approach is important because it allows people to move, it builds this movement
This approach is the crux of the vision of Mr Gandhi. What are simply rules for non-discriminatory access to public goods are now wrapped in a guarantee of legally enforceable rights. A quick overview of these rights paradigms are in order for those who are a bit unfamiliar.
Negative rights : Calls for people to forbear from certain activity like punching your in your face or stealing your stuff. These are very well understood and date back to primitive society where hominids turned in their natural instincts for violence to the custody of the state.
Positive rights : Calls for people to demand that others provide them some goods as a matter of right. So you have to DO something rather than FORBEAR from doing something in the negative rights scenario. The claims made under this are as wide ranging as ramps for the handicapped to extreme cases of paying off a faction in exchange for their votes.
Samaritan rights : This is a special category of positive rights, where someone can walk up to you and only you and demand a payment as matter of right. I added this in after observing how the Congress’ flagship “Right to Education” works on the ground. It is not sufficient that the group claiming lack of privilege is saved – but it demands to be saved by a particular entity. For example this right is asserted against the most prominent school in the area rather than the second most prominent school or the government school.
Mr Gandhi envisions an India empowered with a long list of positive rights. A list with various benefits and exemptions piled one on top of another. Mr Modi envisions an India with negative rights which are far easier to administer and are likely to see dramatically less litigation because the boundaries are well understood. This is the fundamental difference between the two sides.
Mechanics of transfer society
Once you buy into Mr Gandhi’s view of a society driven by positive rights, you have to ask the next obvious question, “How would this work?”. Positive rights presupposes an environment of scarcity, because without scarcity these rights are as meaningful as a “Right to watch T20 cricket on TV”. So when you see laws like the Right to Education or Information you should sit up and ask how this right, which translate into statutory burdens on the other side, will remove the fundamental problem of scarcity.
In a scarcity environment if a large number of people are going to assert their positive rights, this leads to the greatest problem of all. How to justly adjudicate competing claims ? This requires a network of institutions each capable of “deep monitoring”. These institutions would in theory be used to weed out the bogus claims from the genuine ones. This is where systems like Aadhaar and various other bodies are placed. The theory is you could give this whole scheme a coat of respectability if the state could monitor consumption patterns remotely and in sufficiently fine grain.
Of course, even the above wont work as the primary political institution in India is not “need based transfers” but social justice. So after an initial round these transfer payments will and must be aligned with the social justice platforms because that is how the state and in turn political power is organized. We already see that in the Right to Education, Food,Prime Ministers 15 Point Program, the AP Congress caste based waiver of electricity dues, the setting up of public universities giving preference to minorities, and on and on.
Even if the whole scheme is built by the amazing brain power of Nilekani to a 100% efficiency, it will lead us back to the same familiar situation we are in today. Factions will form around access to these positive rights in such a way that the faction with a higher level of political participation will have their claims heard ahead of those with lower levels of participation. The factions that capture this kind of power – for example by capturing the institutions that monitor the schemes – will simply seek to throw a shroud of secrecy over the program itself. This way new entrants, claimaints to these same positive rights will have to cross hurdles the incumbents never had to. Just look at the violent Gujjar and Jat protests sweeping parts of the country. You will notice how they are being subject to close scrutiny to access the same benefits that factions from Tamilnadu have simply taken for granted for 65 years. Also observe how castes and communities with low levels of political participation, like those breaking stones get almost nothing while the institutions that are supposed to monitor access look the other way.
A reinvigorated emphasis on positive rights will only make groups stick tighter. The prize for capturing access to these goods will not be enhanced many fold. Groups will duke it out one against the other and almost always ravage the unprotected participants. The Courts in this scheme are just bystanders and will seek to drive a compromise and leave the tough questions for later. Time’s running out there too as everytime a compromise is made the political class builds an embankment by chipping away at the constitution.
We’ve been there done that and we’ve failed.
Private public partnership
Embracing the excluded is essential to the wealth of the nation. If we do not embrace them we will all suffer. Its very simple In a democracy, the poor have a veto. And we have to carry the poor and the weak with us. India will only move forward with inclusive growth that embraces everyone and is open and attainable to those inside this room and those very very far outside. Now there is a strong connection between harmony and growth. I spoke about this energy and this movement. and there is two ways this movement can go, it can go harmoniously or it can go disrupted and the idea of the Congress party is that it should go harmoniously.
The basic assumption is economic activity is by itself exclusive, in the sense that those who participate in it corner a disproprotionate share of the benefits. It is questionable if the tension between growth and harmony exists in the manner Mr Gandhi presents it to us. Can there be more harmony with groups fighting over scraps, such as those unfortunate souls on Tilak Express, or does harmony follow when there is growth in an environment of simple non discrimnatory access ? Going with the American theme in his speech. One wonders if Mr Gandhi considered the possibility that these folks were not coming to Mumbai in search of their dreams, in the same sense a beauty queen from the Midwest goes to Hollywood. They were looking to survive, escape the horrific Darkness brought upon by these same policies.
It is important to note that the CII is not representative of entreprenuerial spirit in the country. Like political parties most of these houses are family run and have immediate access to policy makers and regulators the small time startups do not possess. The general theme of inclusiveness in the business environment is that these corporates must pitch in for the loosely defined goal of inclusiveness. The CII folks are eager because their proximity to power, admirably mentioned by Mr Gandhi as the ability to call up Montek, ensures that they can comply with whatever regulation that is about to come their way. Startups cannot, they can barely keep up with the barrage of circulars and clarfications from the taxman.
Public private partnerships are in general a bad idea in my opinion. The whole principle is that the state would trade in some part of the public trust to private individuals who are allowed to exploit it. Even though Mr Gandhi never mentioned the Coal Scam, we all know the issues involved there. Those with access can corner these goods in the name of providing public benefits, while the state can make an excuse for not auctioning these citing the same reasons.
To conclude, a system of positive rights will cause groups to be at each others throats. It is bad for industry as they have to comply with various regulations that have nothing to do with their core businesses. Industries also have to secure approvals for their enterprise from a number of politically active stakeholders because anyone can walk up and claim something or the other. The whole idea of conditional growth only in the presence of an acceptable transfer payment will make way for an arbitrary state. The Rule of Law takes a back seat as the ever expanding apparatus of government gets entangled in endless tribunals of balancing one set of claims against another.
The energy spent in securing a spot on the negotiating table of positive rights will cause a beehive like activity where no honey is produced.
The Gujarat CM Mr Narendra Modi gave a 2 hour speech at the India Today Conclave on Mar 16 2013. It offered a rare glimpse into the political philosophy of the man. Here is my take on where he stands with respect to the various democratic institutions that are in place.
To start you would have noticed the repetitive use of the following phrase :
“Kya ye hum nahi kar sakthey!”
In English this translates to “Can we not do this”. I have marked the word “kar” (action) in red because that is the operative word here. How many of us get that funny feeling in the stomach when we travel overseas to countries like Singapore, Korea ?. You see the order, visible, touchable development outside and the pride of the cab driver inside and go ‘This isnt fair, Why cant we pull this off. Certainly these folks arent that much smarter?”. The funny feeling – which can be described as a mix of shame and guilt – stays with you for a while. Whatever your individiual achievements are, you feel small and worthless because your country is mired in third world filth and all you hear is some mumbo jumbo about why we deserve to be in this state. It is like wandering into a glamorous party when your mom is sick. Some get sloshed at the open bar and put the thought out of their minds. Some get out of the party, take mom to the hospital, get her treated, then come back. The idea is not to withdraw into a shell. It is to come back to the party next year and rock the hell out of it – this time free of guilt and shame.
I sensed this with Modi.
He is unable to accept that India cannot do things that others like Korea have demonstrated can be done. If you put this on top of everything else, the rest of Modi’s approach falls into place.
Utilitarianism in disguise ?
Will Modi pursue an exit out of third world by throwing human rights under the tyres? This is a common fear that might be drummed up by the media in the coming days. I dont think there is any evidence to that effect. I dont think that would work in India either. The inherent resistance to centralized oppression in India is too strong. What is likely however is that he will not entertain group demands for consensus before works are taken up. In other words, no group can have a veto because their arguments for a guaranteed minimum pro-rata share are simply not heard. In that sense he is certainly a utilitarian. He even said in his speech that his government is legitimate as long as it provides goods. The 10-minute video at the start that had no mention of any hyphenated-identity group is his certificate of legitimacy. Such a person is very senstive to HDI numbers as his entire philosophy rests on this belief - develop and welfare will come. When figures of malnutrition, even if they are lagging indicators are put before him – he sits up and takes notice. He isnt trying to impress the glitterati assembled in the Conclave ballroom – but if evidence is tumbling out that welfare doesnt follow such visible development, it scares him. It invalidates in one shot his deepest convictions. In this case, his state reacted by investing Rs 2000 Cr in 1yr to address this. Even if you consider him a utilitarian, his model of social welfare is far superior to the current one. You pursue production first, then if some specific indicator lags you isolate and hit that with a vengeance. Then on to the next indicator. This is far better than front loading programs like NREGA with an outlay of $40B without telling us what it is you are trying to solve.
Special protections & law
Someone asked Mr Modi what place special protection for minorities had in his scheme of things. His reply was “no protection for anyone”. I suspect what he meant was he was for equal protection not special protection. He is a rare politician that gets the “majority rule with minority rights ” concept right in its original sense. It is the cornerstone of democracy but not in terms of religion or some other identity. What is means is the winners at the election cannot rape and loot the losers. So the losers - belonging to any group - can always rely on protections that are immune to the machinations of the transient majority. This simple concept is perverted in the Indian scenario by our intellectuals. He also counts on traditional restraint and commonsense found in Indian society to power his agenda rather than seek approval of specific constitutonal provisions. So he is unlikely to be a constitutionalist in the sense that some right leaning folks will expect.
His dig on the endless parade of “Right to XYZ Act” hit the right spot with me. He says that these rights are inherent and covered in some general sense in the constitution. They do not need to be encoded as a positive right because what is needed is “Action” and not “Acts“. This is a huge paradigm shift from the Congress which views positive rights, even samaritan rights, where one group has justiciable claims against another, as something that is desirable. For Modi, positive rights merely result in huge costs, endless litigation, moral dillemmas, leading to a general sapping of energy. Not worth a price to pay for things like education, information, food, shelter which can be provided for simply by acting upon it. I think a fall back to the basic principles of law, sometimes mockingly called by Indian liberals as ‘first principles style’ is much needed. We need to step away from the current trend to challenge at the drop of a hat – ’Lets take it to the Supreme Court’.
Mr Modi might well be the only politician in India to propose that private players be allowed access to railroads. He comes across as an idea-man who has on multiple occassions approached the PM and Planning Commission for schemes such as solar parks along the border to compost dumps. His idea of letting private trains run has to be singled out for special mention. The current UPA mentality is to tom-tom marginal improvements to Tatkal, which is merely a way to contain the impact of a pervasive socialist shortage Things have gotten so bad that if you say during normal interaction that you arrived by train, people look at you with awe and admiration. People might scoff at the simple idea of pilgrimage trains, but I think there is a massive potential there for national integration.
I think the participants squandered a great opportunity to get his views on communal riots vs development. Instead of an in-your-face adversarial approach, they should have nudged him to articulate his vision on the matter. It is evident that in the face of tangible development Gujarat has managed not only to be riot free for the past decade but even caste flare-up like Dharmapuri or Maharashtra any of the innumerable caste riots have been absent. The basic idea is if you empower folks with real skills, as he outlined in his earlier SRCC speech, and put them on a positive spiral then the incentive to breakout in violence at the drop of hat is absent. Everyone’s mind is a occupied about how to scale up to the next level as they believe in the PROJECT not because of some numbers measured by Indian Statistical Institute but because they can see and touch for themselves what growth means for them. The UPA is moving in the opposite direction by moving its attention of skilling and into a minefield where values are substituting real skills. Lessons have to be learnt from Korea who shown the way of creating a knowledge based society. It means hard work and stressful exams, so sorry to say that.
In conclusion, even if you were a believer in the redistributive model and assertion of hyphenated identity rights – you need to stop and take a hard look at Modi. We need to first pull ourselves out of abject poverty and third world squalour so that these liberal models of development make sense.
I believe Modi is the man to do it.
Hartosh Singh Bal has a new article up on the Global New York Times site titled “Classes Warfare“. In that he narrates a personal account of his inability to wrangle a nursery seat for his three year old son.
New Delhi’s top private nursery schools are perhaps as competitive as an Ivy League college, but that’s not saying much about the means required to get in. I should know: I spent the last month filling in application forms to 10 private schools for my three-year-old son, and he wasn’t admitted to any.
Source : NYT Global Site
I dont want to make light of a serious situation. I dont know of a single family for which this would not be a nightmare scenario. But Mr Bal misses the point entirely about why the situation is so. He says that the RTE Judgment in the Delhi High Court failed to provide “some remedy” to the throngs of parents. If only the petitioners had been successful in court. In this post, I argue that is not the case. If people really want a remedy they must call out the RTE Act itself for the damage it is about to wreck and hopefully make the next year better.
Recap of RTE situation in Delhi
The RTE judgment in the Delhi HC has not been reported on very well in the press. The RTE Act is known for the 25% quota but there is another clause in there. Sec 13(1) which bars schools from screening any parent or student. From what I understand, RTE “Enabled” Private Schools in Delhi were following this formula give or take : 25% RTE Quota + 20% Management Quota + 55% Lottery with weights. The weights had to do with assignment of points for siblings, alumni, location etc. All of which seem reasonable to me. The matter in front of the court was the 75% quota as it applied to nursery ( < 1st std) admissions. The petitioners would not give any discretion to the school managements for the 75% and would only accept a lottery. The Court denied their position, but nudged the HRD Ministry to amend the law itself. The case is also going up the Supreme Court.
As it turned out, Mr Hartosh Bal ended with a less than 1:10 odds of landing a seat. If the court had sided with the petitioners all 75% would be thrown open to lottery. In that scenario, the new odds according to his own statistics are 1:30 (1500 seats and 50000) applicants. An even lesser chance. Folks are unwilling to confront the most obvious question.
Why arent new schools opening up to pick up this wild demand ?
It is fashionable to slam school managements as the evil who actively look for ways to discriminate. The media is hammering into us that it isnt capacity mismatch that left us out rather active bias on basis of power, economic status, and whatnot. Being able to select students for admission is a vital facet of the right to run an educational institution and indeed a great incentive for starting one. After all, if the private schools had lesser applicants than the number of seats there would be zero screening. They screen because of the demand and they screen based on what their conception of an ideal private unaided school is. If they want a power politician school, they’ll pick neta kids, some pick army men, some purely pick moneybags – perhaps to fund the new block, some pick English speakers. Remember the demand is not just for seats, but for seats with certain other group characteristics.
Without autonomy in admissions, and that includes screening, the entire range of incentives to start schools vanish suddenly. To that add an amorphous and discriminatory RTE act any adventure into starting a school is foolish. There is very little due process protection against any NGO armed with a Xerox copy of the RTE act. The fundamental anti-trespass nature of private property goes for a toss. The RTE Act’s biggest fallout is going to be evaporation of capacity. No one will come forward to establish a school unless protections such as those for religious minorities are offered (which deserves 10 posts in itself). As some great man said “You will never sow if you arent sure you will be allowed to reap“.
Despite my strident opposition to the RTE, I am not an extremist. Screening is evil if schools work themselves into a monopoly situation by virtue of having been there first. The main reason for monopolies to arise is this. The impossibility of any newcomer to fulfil regulatory requirements the incumbents are exempted from. In such cases, the well recognized legal doctrine of ‘reasonable non discriminatory conditions’ can be enforced like it is for telecom and electric providers. But that doesn’t have to be the case here where there is no resource crunch. Clear rules, lets start with repeal of RTE, will encourage new players to enter. I can already see people drooling over the 50,000 kids of middle class parents, some of whom are ready to pay $10,000 for a seat. It may be unpalatable for socialists that new schools will cater to rich, but think harder. It will improve the odds from 1,500/50,000 to 1,500/20,000 because the other 30,000 are knocked off due to their willingness to pay. There are no losers in this scenario.
What can a common man do. For starters, educate yourself about what laws like RTE entail. It is hard because the media does not carry substantial analysis of any statute rather focusing on consequences. Once the facts are out there you will recognize. Laws like RTE will shrink capacity, undermine property rights, equal protection, and freedom of occupation.
It doesn’t matter if we lose in a lottery or in a beauty pageant. We still have to break the news to our kids. The beauty pageant will increase total capacity and the lottery will shrink it.
The CON-led UPA government is all set to table the “Equal Opportunity Commission Bill (for Minorities only for now)” in the Budget Session of Parliament 2013. I would call this the “Unequal protection under the Equal Opportunity Commission Bill 2013“. Yeah, its crazy like that.
I will collate a list of materials here.
Hopefully we can kick up a storm at least in the social media teacup.
On Feb-15 2013, a 5 Judge bench of the Gujarat High Court found that the UPA governments pre-matric scholarship program exclusively for minority communities was constitutional. Details of this vast scheme which has benefited more than a crore students at taxpayer cost of Rs 810 Crore (Union Budget 2012-13) can be found on the Minority Affairs e-Scholarship website.
Kartikeya Tanna has analyzed the judgment in a two part series over at Niti Central Part 1: All Muslims are not backward and Part 2: Religion cant decide welfare. Head on over there for a detailed analysis of the majority and minority opinions. I am not going to rehash the points made there, but will focus on a particular issue. One which lies at the root of most of these cases involving the state classification for providing private goods. The issue is this : Do we have a standard of judicial review when the govt decides to classify the common body of citizens ? If we do have a standard, what is it ?
Role of scrutiny in the two positions
The majority position can be summarized as follows : The scholarship programs are not in violation of the equality guarantees in Art 15(1) of the constitution ( ..”(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them ). The honorable judges in the majority opined that this is a valid classification because it is not just for minorities but for minorities who have been shown as lagging by the Sachar report. There is no need to look beyond that because according to the opinions in Dr Saurabh Choudhary vs Union of India (residence based classification) (2004) and Ashok Kumar Thakur vs Union of India (OBC quota) (2007) - the US style “strict scrutiny” was not applicable to India. So objections based on the actual findings of the report arent going to carry much weight.
The minority position can be summarized as follows : The programs violate Art 15(1) because similarly situated candidates of Hindu (non-minority) will be excluded from this program only on the basis of religion. This is a strong position because for OBC benefits, atleast on paper, similarly situated upper caste students are not eliminated. The reason is if a community could show social and educational backwardness they too stood a chance of being identified as OBCs by statutory bodies such as the NCBC and various state commissions. However in this case, the only difference is religion which cannot be transcended. The 2 judges in the minority also break open the actual content of the Sachar report. They need to review the findings because they assert that if one had to test for valid classification a “strict scrutiny” is a must (P98). Once they adopted an enhanced scrutiny vs the majority judges, the rest of their judgment falls into place naturally. Sachar never studied Christians or Sikhs so such a piggybacking would result in a heterogeneous group. Even among Muslims Sachar found that they were ahead in 10 major states including Gujarat. See my 2006 post on “Sachar Literacy Rate puzzle“.
The two positions are rooted in different standards of review. On one side you have a “conceivable / rational basis” which is a very low standard of review and on the other “enhanced / strict / substantial review” which would actually test the basis of the classification being litigated.
Scrutiny in other classification
Social justice is the primary ground for deviating from the equality provisions. The two platforms of social justice are 1) SC/ST and 2) OBC. Members of the former are enumerated in the constitution so evidence takes a back seat there. The OBC category is however based on social and educational backwardness which by its nature must be measured. Much of the current confusion is due to the fallout of a low standard of review of the OBC category. If there is one thing Sachar found, it was that in many parts of the country Muslim communities were not being given their pro-rata share in the OBC platform. The right approach must be to subject the OBC platform itself to a rigorous scrutiny so that such grievances have a valid and secular redressal. To illustrate the tight spot – consider the notice given by the Supreme Court to the Tamilnadu government to collect data about backwardness. Sure enough the commission came out with a report which inter-alia questioned the court’s domain itself.
These chapters clearly show that the report has hardly any bearing on the Commission’s mandate. Among other things, it questions the judiciary for its Mandal rulings, portrays it as an interloper in state policy, and overturns its mandate to the Commission.
Source : The Hindu – P. Radhakrishan Perpetuating the scourge of casteism
So here we are. Sachar showed that the primary platform simply wasnt delivering pro-rata share to some vocal groups. It is also immune to a substantial review under the prevailing “rational basis” test. So the only option is to partition public goods along yet another dimension of minority. The right fix in my opinion is to move in the direction of Nagaraj and subject all classifications involving groups listed in Art 15(1) to a substantial review.
Why is this case important
The Congress government has a slew of ambitious minority-only programs under the Prime Ministers 15-point program. We have seen how in education minority schools are not only exempt from the deeply flawed Right to Education Act but they are also given public money under the IDMI scheme run by the HRD. The 12th 5 year plan also envisages 15% of all expenditure be channeled to minorities, there are minority universities like the controversial Tipu Sultan University being setup, KV style schools are being planned in minority areas, fund allocation to territory is sought to be linked to the religious composition of that territory under the MSDP scheme. The direction is clear. All these invidious schemes will meet challenge. Even though the immediate scheme of pre-matric scholarship may only cost a few hundred crores the magnitude isnt important. The same principles will be used for programs which involve no 800 Crores but 8000 Crores. With a conceivable basis test as the standard all these can sail through which in my humble opinion would be an abdication of judicial duty of review.
I’d also like to single out the most important factor in my humble view. The deference given to the creation of an omnibus category called the “Minority” which includes not only Muslims but politically and numerically significant groups like Christians, Sikhs. If you dont have a “Narrow Tailoring” test – which is part of the strict scrutiny doctrine, you will end up with such anomalous situations where a Syrian Christian in Kerala can be classified along with Muslims based on a study that only pointed out targeted pockets of backwardness. Lower standards of scrutiny tend to look the other way when faced with these situations. The political class, particularly the Congress party would of course like this freedom to create adhoc factional coalitions that are setup in confrontation with the majority coalitions on the other side. This cannot be good for any democracy as people will be ever locked up in fights and never be able to vote on big ticket issues like corruption.
In conclusion, Reality Check India, the valiant fighter for lost causes, would like to toss the topic of judicial standard of review into the arena of public debate.
Here is a copy of the judgment for those interested.
Both Articles 29 and 30 come under Part III of the Indian constitution under a heading called “Cultural and Educational rights”. Article 29 is titled “Protection of Interest of Minorities” and Article 30 “Right of minorities to establish and administer educational institutions”. Till date the court does not seem to have addressed one question. Why is it that we have such a provision ? A coherent rationale for differentiating the minority and Hindu institutions is yet to emerge. In this post, I argue it makes little sense to differentiate on the basis of religion when faced with matters of preservation of culture. We look at three important cases where the political class launched an assault on Sanskrit and it needed judicial intervention to survive.
Is there any link between 29(1) and 30(1) ?
A recap 29(1) says
29. Protection of interests of minorities.—(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
The spirit behind the whole regime of positive rights bestowed upon minorities in 30(1) is so that it can give life to the clause in 29(1). In plain words, the right to run convent schools allow the Christian minority to exercise the right in 29(1) which leads to conservation of their culture. There is an unmistakable trend today spearheaded by liberal activists and college owners that seeks to divorce the two. They put forth the idea that Art 30(1) and Art 29(1) are unrelated. The only thing that matters is 1) minority individuals control the institutions. There is some room for compromise with the state but in effect what they want is an unconditional positive right based only on their religious identity. I don’t think that stands up to scrutiny nor does the court in several cases. After all, the constitution does not bestow a positive right to minorities to establish other types of industry such as fast food franchises. Both minorities and Hindus can and do open Dominos outlets for example. For the rest of this post we are going to assume a linkage between 29(1) and 30(1).
Do Hindus (non-minority) have the right to preserve Sanskrit ?
The original argument in favour of Articles 29/30 was that in a Hindu majority India it was inconceivable that ancient cultures and literature needed any positive protection. No legislature would dare undermine the majority culture because that would lead to certain electoral defeat. Hindus could rely on political checks but the minorities did not have this protection. This necessitated a judicial check in the form of a statement of positive rights only for minorities. To be sure there are minority institutions like CMC Vellore and St Johns Bangalore that can be said to be truly serving their community in a very Christian environment. The framers could have envisioned a majoritarian or socialist state. One that could in theory outlaw their modes of teaching , altered their character, or simply nationalized them. So the minorities were given a judicial check and the majority relied on relatively weaker equality based provisions in the hope that the political system would favour them anyway.
The problem is of course that subsequent interventions resulted in fragmentation of Hindus so that the political check no longer worked. Factions sprang up overnight, riding on adhoc benefits, they were ready to toss the ancient scripts in exchange for temporal benefits.
Lets take a look at the incredible travails Sanskrit has gone through in three cases.
1994 – Santosh Kumar and Ors vs Ministry of Human Resources Development [Link]
In 1994 the Congress government under Narasimha Rao and the HRD Minister Arjun Singh removed Sanskrit as an optional subject in CBSE Class XII. The principal reason cited was that the CBSE Board did not have enough resources to teach Persian and Arabic. According to them that could only mean one thing. Offering Sanskrit as an elective and not offering Persian and Arabic was against secularism. The decision was therefore remove Sanskrit even as an elective. This was challenged and it made it to the Supreme Court which reinstated it. Read the judgment linked to note how far the government went to persuade the court. KTS Tulsi then additional Solicitor General representing the Govt said if they had to teach Sanskrit they also had to teach French, German, and Lepcha.
The desire to keep Sanskrit out does not stop here, as the submission also is that if Sanskrit comes, the Board shall have to bring in language like French and German. This is not all, as it is contended by the Addl. Solicitor General that the Board feels that arrangement may have then to be made for imparting education even in Lepcha, a language whose name many of the Indians might not have even heard.
AIR 1995 SC 293 Hansaria J P 4
The court came down really hard on the government and restored Sanskrit. It was a narrow escape for the most important linguistic key to unlocking the ancient texts of this land. The upside of this case was the court seemed to coverge to a position taken in an earlier judgment in State of Bombay vs Bombay Educational Society 1954. In that case, Barnes High School an Anglo Indian Christian school refused admission even to Indian Christians on account of their not having English as their mother tongue and due to their Asiatic descent. The court held that Art 29 protections applied to all sections including the majority community. I think this view has come to the fore now.
1997 – Bal Sewa Educational vs Tamil Nadu [Link]
Shanmugha College of Engineering is a famous college in Tamilnadu located near Thanjavur. In 1997, the trust that runs the college applied to be considered as a Linguistic Minority College on the basis that all the founders were well versed in Sanskrit and that development of Sanskrit was one of their goals. I think this is the only time an institution has asserted Art 30 rights on the basis of Sanskrit. An exceedingly interesting case if only to observe how the then DMK Karunanidhi government reacted. At first glance, the claim appears to be flaky. What can be the connection between Sanskrit and Instrumentation Engineering ? Look harder, there are dozens of Telugu linguistic minority colleges like Venkateswara College. What is the link between Telugu and Electrical Engineering ? So the entire regime is lacking an internal consistency. The Shanmugha administrators can surely be pardoned because as Tamil Hindus the advantages of minority status was too alluring. Worth a shot. The state government would of course have none of it and responded that – Sanskrit was a dead language and denied the status. The Madras HC observed.
Tamil Nadu, the antipathy towards Sanskrit was confined to a section trying to make political capital out of it, and that it was strongly organised and effectively expressed. Several Sanskrit lecturers and teachers represented to us that, when Sanskrit versus were sung in prayer or any Sanskrit feature was presented in public functions in the colleges and the schools, a section of the student population started jeering and booing. Such things, along with certain ad-ministrative measures coming one after another, have been slowly pushing Sanskrit to the wall in this part of the country. It is, indeed, an irony of fate that this should be the situation in a region to which the rest of India used to look up as a vertical asylum of Indian culture and traditional learning. The anxiety which the people here felt about the future of Sanskrit was clearly borne out by the fact that Madras sent the largest number of replies to our questionnaire.
Madras High Court Judgment MLJ 1998 (596) SS Subramani J pp 96
The court quashed the order and asked the government to reconsider. I dont know what happened after that to the college. I do know that Dr Murli Manohar Joshi’s initiatives as well as the court judgments in TMA Pai followed by clarifications in Islamic Academy and PA Inamdar removed a lot of shackles from private unaided institutions of even the non-minority communities. In light to the RTE act, I suppose you can expect quite a few claims of this sort to be made.
Once again, being a culture of the majority religion proved to be of zero help. The political check not only failed but even went to the extent of declaring the language as dead unworthy of anyone laying claim to it. This once again shows that the Art 29 protections are essential to the Hindus as well. In any case, the next year the BJP lead NDA government was voted into power and it was expected to provide some breathing room for Sanskrit. Time to move to the next case.
2002 – Aruna Roy and Ors vs Union of India [Link]
The NDA government under the HRD Minister Dr Murli Manohar Joshi gave much needed respect to the native cultural traditions of this land. The NCERT syllabus sought to include values embodied in ancient India such as Dharma, vedic mathematics and vedic astronomy. It is of utmost importance to note that none of these required the compulsory study of any religious rituals or religious scriptures. However, Aruna Roy, BG Verghese and other activists would have none of it. They went to court and were initially successful in obtaining a stay pending a hearing. Their objections were two fold, the first one was that CABE was not consulted. This was set aside as this was only an advisory body which had no statutory status (not set up by law or by any rules).
Their second and substantial criticism was that the impugned syllabus was anti-secular and that Sanskrit was being imposed along with a laundry list of objections.Everything with the word “Vedic” in it was challenged.
- Dont want vedic astrology : Wrong. The syllabus had vedic astronomy – which is a well recognized science.
- Dont want vedic maths : Wrong. Adverse reaction to word Vedic. Vedic maths is just techniques.
- Dont want Sanskrit : Wrong. It wasnt being imposed but optional. Refered to Santosh Kumar (see above case)
- Other items in list such as opposition to Hindu festival celebrations were disposed too.
The court which had stayed the syllabus found out that upon scrutiny the Aruna Roy group had no substance. It vacated the stay and allowed the syllabus to continue. There was gloom in the activist world that their latest attack on Hindu and Indian culture failed once again in the court. The thing to remember once again is this. The fact that Hindus as majority offered zero guarantees against raiders. Time and again they had to resort to judicial protection to ward to active political and activist pressure to bury it. This only makes the Bombay Society stance that even Hindus need positive rights under Art 29 even stronger.
To be continued..
1. Various SC Judgments
2. Fundamental rights and their enforcement. Udai Raj Rai, Prentice Hall India 2011 Edition
In light of the exemption granted to minority unaided schools with respect to burdens and regulations in the RTE (Right to Education Act) I launched into a deep study of original sources. I read almost the entire body of case law, never missed a news report related to RTE, observed closely the interplay and overlap of HRD and Minority Affairs. I have completed most of what I set out to do in April 2012. It was the most rewarding 8 months of part time study. I want to share it all with you here. No jargon or philosophy I promise.
Series on Article 30
The ground to be covered is so vast that I cant address it all in one post. Instead I am going to break it up into chunks so that each chunk can be read on its own.
Let us make sure we equip ourselves with the two most basic constitutional provisions,
Article 30(1) – the “minorities only” clause that is at the centre of all this.
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice
Article 19(1)(g) – the “secular provision” that has gained traction as one that protects ALL citizens including Hindus and minorities from engaging in any activity including education.
(g) All citizens shall have the right, to practise any profession, or to carry on any occupation, trade or business
Summary : Art 29(1) under “Protection of interests of Minorities” says any section of citizens having a distinct culture, language, or script of its own shall have the right to conserve the same. Does 29(1) have anything to do with Art 30(1) ? I cite case law to show how Sanskrit and Vedic culture has come under incessant political and activist attack and had to resort to judicial help to scrape through.
Part 2-3 : Coming soon. Regulation, wholesale exemptions, competitive advantage, nationalization of non-minority institutes.
The Congress led UPA government’s flagship inclusive platform is called the “Prime Ministers 15 point Minority Program”. This program provides for a specific (15%) set-asides of all schemes and exclusive benefits. Here is the official release from Press Information Bureau
The new programme envisages location of a certain proportion of development projects in minority concentration areas. It also provides that, wherever possible, 15% of targets and outlays under various schemes should be earmarked for the minorities. The schemes of Ministry of Minority Affairs covered under this Programme are meant exclusively for minorities.
Source : pib.nic.in (emphasis mine)
Now there are several programs in the 15 point agenda that are of interest only to minorities. They include advances to Wakf management, improvement of Urdu teaching, Madrassa modernization and so forth. One could make a case for investment into these goods. They might serve a national interest such as streamlining administration or pulling back radicalization of Madrassas by injecting a public component into their revenue sources. Non minorities have no interest in these goods.
What should stun everyone is that 12 of the 15 schemes are simply public goods that every citizen of India is interested in. Schools, roads, houses, scholarships, and employment loans. It is a fundamental departure from any concept of a modern state to alienate such goods on the basis of religion. The state cannot create such goods and not make it available to everyone.
Modi is the only Indian leader to stand up to it
One of the many schemes under the banner of the PMs 15-Point Minority Program is a pre-matric and post-matric scholarship program. This is a vast program benefiting 50 Lakh minorities at a cost of Rs 650 Cr per year. All states have implemented this scholarship that excludes the majority community without a whimper. All except one. Modi’s government has refused to implement this even if that meant giving up the crores of money from the centre. This is the bone of contention in a case currently under consideration in the Gujarat High Court. Kartikeya Tanna has an excellent analysis of the case on Firstpost. The conditions for availing of these scholarships, which we should not forget are created out of general tax payer money, was that the child had to belong to Sikh, Christian, Buddhist, or Parsi. The Gujarat HC struck down the 15-point scholarship program on the ground that other things being equal a Hindu student cannot access this good. The case is now in front of a 5 judge bench of the Gujarat High Court pending a ruling.
A common technical defence is that after an allocation has been made to a certain ministry it should be allowed to spend for welfare of whomsoever it chooses fit. If you alienate a public good, irrespective of the mechanism you used, such as slotting it under a Minority Affairs Ministry head, that should not be allowed. You only have to walk a few steps ahead. Assume that this ministry decides that the best way is aid their community members is to refund their income tax. This would result in a differential tax rate for different religions. That would instantly be recognizable as an undesirable thing. Yet these religious appropriations have those properties. Another example is the creation of Tipu Sultan Minority University and three others. Rahman Khan who runs minority schools and is also the Minority Affairs Minister arrogantly claims “..no point in opposing the move“.
In the rest of this post, we will throw some light on one of these schemes called IDMI.
IDMI – Infrastructure Development for Minority Institutions
IDMI is a scheme under the Human Resources Development created with 125 Crores in the 11th 5 year plan and poised to increase further in the 12th 5 year plan. Here is that this scheme does :
The scheme will fund infrastructure development of private aided or unaided minority institutions to the extent of 75% and subject to a maximum of Rs. 50 lakhs per institution for strengthening of educational infrastructure and physical facilities in the existing school including (i) additional classrooms, (ii) science / computer lab rooms, (iii) library rooms, (iv) toilets, (v) drinking water facilities and (vi) hostel buildings.. etc
Source : India.gov.in
In short, minority schools even unaided can apply for upto Rs 50Lakhs from the central government. These applications will be scrutinized and approved by a body called GAIC to which the HRD will appoint two members belonging to the minority community.
Last week, the Times of India carried this report about how this scheme works on the ground in Kerala.
Though the scheme will fund infrastructure development of private-aided or unaided minority institutions to the extent of 75% and subject to a maximum of Rs 50 lakh per institution, the state has even recommended for funds even thrice the maximum limit prescribed under the scheme.
While the state received Rs 5.59 crore in the first year under the scheme, the amount has increased to Rs 25.9 crore last year, which, according to the figures with the ministry of human resource development, is the highest amount disbursed under the scheme for any state under the scheme.
In 2011-12, 154 minority schools in Kerala both aided and unaided received Rs 54.18 Crores to fund improvements. The data including the names of schools and amounts is available online on the HRD website.
Burdens and benefits
As a believer in secular liberal democracy, these adhoc waivers and tilts in the distribution of burdens shocks me. A Hindu run school right across the street is not only burdened with the vague and draconian Right to Education Act but is also deprived of even participating in these liberal grants created with public money. Ask any school principal how difficult is it to raise even 5 Lakhs,say for 10 new computers. It is hard. The flood of minority school applicants from Kerala for these grants attests to this fact. Remember that under RTE, non minority schools are not even allowed to charge a development fee in order to execute these works. Recently DPS Pune was fined an astronomical Rs 22 Crore.
If this is your secularism, I want none of it.
Neither should you, as the gains from such partitioning will be short lived.
Q: Why did not hear about this scheme ? Not from the media, not from think tanks, not from intellectuals who live and breathe distributive justice.
India is witnessing a collective outrage over the brutal rape and attempted murder of a 23-year old girl. I want to take a crack at three fundamental issues at play here.
1. Can we hang this perpetrator ?
If you notice the senior Congress ministers arent committing to extending the death penalty to rarest of rare rape cases at all. They are issuing some slimy statements. Lets assume for a moment they are serious about it based on this report.
Essentially, the Home Minister has promised:
» A strong law to deal with rapists that wil provide for capital punishment in certain cases; and,
» A commission of inquiry to review police responses to last Sunday’s rape.
Source : Niticentral
Say you amended the penal code to introduce the death penalty for the rarest of rare rape cases, would it apply to the accused in this case ? I dont think so. Such an application would be an example of retroactive or ex-post-facto law. This is generally regarded as evil for good reason. Zoom out from this case and think about if such laws can be passed as a general case. You cannot regulate your conduct with respect to any set of laws if
- they go back and redefine what is illegal in order to catch you
- having caught you for a violation, they redefine the penal code to punish you harder or softer
- having caught and punished you, they can roll back the new laws and codes
It is for this reason retroactive laws are banned in most countries. In India, Article 20(1) specifically bans such laws.
Article 20(1) in The Constitution Of India 1949
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
It appears the Congress government, and to a lesser extent, the BJP are playing us when they announce such measures. Most of them are in the legal profession and they know they are holding out false hope. You could probably amend the constitution to add a escape clause to 20(1) , but think about it : Do you want to sacrifice the entire basis of law for one case ?
2. Is death penalty for rape a good deterrent ?
If you are against death penalty in principle, obviously death penalty for rape is not on the table and the argument ends there. If you are for the death penalty in homicide cases, then you have a think a bit harder. You have to start separating the various types of such violations. The clearest separation is sexual violence against a minor vs an adult. On one hand if you believe the death penalty is a deterrent to murder then why cant it be a deterrent to rape ? I suspect the answer is that is murder has a property of an “end of the road” finality which rape doesnt have. Its really is all over in one case and there is no further legal interpretation required. This is not to diminish the life long psychological scars left on the rape victim, it just means it is a lot harder to have clarity while sentencing.
We are already facing an onslaught by far left marxist intellectuals, activists, and media outlets over abolishing all death penalty. Those of us who support it for its deterrence qualities stand to lose everything by extending it to rape. The finer points have already been discussed thread bare in Kennedy v Louisiana (child) and Coker v Georgia (adult) My own position is I dont support death penalty for adult rape and I am torn about child violence. Indian activists will yell “India is not America” but please read the briefs in those two cases to build up your own positions one way or another. Sidestep what you read in the Indian media.
3. What effect did the UPA pardons have ?
The Congress led UPA government in June 2012 pardoned 23 people on death row. Some of them had committed crimes worse than this on children and all of them had been sentenced to die by the Supreme Court after the ‘rarest of the rare’ doctrine came into effect.
Take the case of Molai Ram v MP. Here was a rape and murder committed by two convicts serving term on other charges. They brutally raped and killed a 16 year old girl inside the jail premises and dumped her body in a septic tank. Take the case of Shobit vs Bihar where a dacoity killed a family of six including two young boys who were snatched from the mothers lap and shot. The killers didnt want a Hindi film style revenge when the boys grew up because they had seen their father getting murdered. There is an example of a Sushil Murmu v Jharkhand where a killer kidnapped someones 9 year old son and beheaded him in a ritual sacrifice even though he had a 9 year old of his own. Then there was a 5 year old girl. Then there was a 10 year old boy. The list goes on and on and on. Notice what the Supreme Court observed in Murmu
This in our view is an illustrative and most exemplary case to be treated as the ‘rarest of rare cases’ in which death sentence is and should be the rule, with no exception whatsoever. Appeal fails and is dismissed.
Finally there is the case of Mulla vs UP, where poverty was stated as a mitigating factor in overturning the death penalty. What this means in effect is that certain citizens can have an “inside” track when it comes to sentencing. This should shock us because it flies against basic principles of rule of law that calls for a general application. The only mitigating factors ought to be related to psychological state.
In effect, the marxists have not only succeeded in abolishing the death penalty through the backdoor but have undermined the uniform application of law. Would I support hanging the perpetrator in this case when the killers of the jailors daughter are alive ? No way.
On the big canvas I firmly believe the death penalty is a required deterrent in India. The life outside jail is one of filth, uncertainty, poverty, and violence. For many on the margins, life inside jail isn’t that big a deal. What works in Norway and France, life on the riviera, benevolent state stipends wont work in India. A real cost benefit analysis would compare the uniform application of the death penalty in homicide vs a holistic reform system.
- Holistic reform : Assign social workers to those accused of gruesome crimes in order to make them better people. How much would it cost to run this ? Now that the deterrent factor is gone, how much would it cost to admit the flood of people that enter this system ?
We, the citizens of this third world country, should first get out of filth and squalor in a hurry. This is not to say that the rule of law must be treated as an inconvenience. We should revert to the simplest formulations of the rule of law. All available deterrents should be used to the optimum levels and no extraordinary processes to anyone.