Those who have been following this blog and @realitycheckind on Twitter will be familiar with my strident opposition to the Right to Education Act. Getting your child into a school of your wish and means is about as basic a human need as food and water, yet our state has sunk us. This elementary need is defeated not in some remote jungle, but in the nations capital. I’ve blogged about the Delhi nursery admissions issue last year and this year too.
Continuing from where we left off in January, there was a flurry of litigation by Private Non-Minority schools, which did not move the Delhi High Court nor the Supreme Court. Following the legal cul-de-sac, private non-minority schools diligently conducted lotteries using the rules announced by the govt.
Schools conducted anywhere from 3 to 6 lotteries in the following manner.
- Lottery for 25% EWS (income based) + DG (SC/ST/OBC (non-creamy layer)
- Lottery for 5% Girls quota
- Lottery for those tied at 95 points (Alumni + Sibling)
- If left over seats, Lottery for those tied at 90 points (Sibling only)
- If left over seats, Lottery for those tied at 75 points (Transfers + Alumni)
- If left over seats, Lottery for those tied at 70 points (just neighborhood)
A quick refresher of the points system. If you are from the neighborhood defined by a 8kms radius, you get 70 points, 5 points for alumni, 20 pts for having a sibling in the same school, 5 points for out of state transfers.
Also note that EWS (income) / DG (caste) candidates can apply in the cross subsidized 25% quota as well as the open seats. In addition girls can apply in the 5% girls quota as well as the open seats.
On Feb 27, after the lotteries were conducted under mandated video surveillance, it turned out that a disproportionate number of winners had emerged from the transfer points category. This was challenged again, which led to the Delhi govt getting a notice from the Delhi HC. The Delhi Govt (Mr Najeeb Jung) promptly scrapped the admissions of those who won the lotteries by claiming the 5% inter-state transfer points.
This is where we are now.
A question of odds
Since private schools run by Hindus have completely lost their autonomy to select even a single student – the debate shifts to the mechanics of the lottery. This is not an obsession with detail, but rather the central issue. After all, if the system prescribed by law turns out to be arbitrary, the schools are forced to participate in an immoral scheme against their will. Not very far from tyranny.
Post cancellation of all winners with the 5% transfer points; the situation looks like this.
- Those schools who only conducted three lotteries. All seats are taken by EWS+DG/Siblings+Alumni – so there is no impact because the 75 transfer pointers never had a chance to begin with.
- Those schools only conducted four lotteries. Same thing, All open seats taken by Siblings at 90 points. So transfer pointers at 75 never had a chance.
- Those schools who conducted five and six lotteries – there is an impact. See below.
Schools which held five lotteries
The very fact that they held five lotteries means they had vacant seats for 75-pointers after ALL the siblings and the alumni+siblings were granted admission. Now if the 75-pointers with transfer points are ejected, what happens ?
- If there are enough alumni 75-pointers, they will simply occupy the seats vacated by the transfer pointers.
- If after all alumni are accommodated, there are seats left, the transferees join the general category (70 pointers) in a NEW 6th lottery.
In both these cases, there is no difference in the odds of the transfer pointees.
Schools which held six lotteries
This is where the tension is. If a school has already held the sixth lottery for 70-pointers, it follows that all seats are already taken. If you accept the principle that winners must not be stripped (except the transfer point winners) this leads to the following
- Only the vacated seats by transferees,are now subject to a fresh lottery for leftovers at 70-points.
- The transferees join the losers of the earlier lottery this time to bid for a much smaller fraction of seats.
- For the earlier losers at 70-points, this is the second lottery, but for the transferees this is the first. So the relative odds odds of transferees are 1:2 compared to a system where they didnt have transfer points at all.
- The use of waiting lists further complicates the matter. The waiting list from the previous lottery are also winners in the sense that any vacancy has to absorb them. Therefore cancelling the waiting list winners and forcing partial redraw is sure to send them to court next.
This per se is a highly immoral quota because it imposes by law a 52.5% 47.5% Girl:Boy ratio in RTE “enabled” schools while on the ground the demographics do not match.But lets set that aside for now. Now, if a transfer point girl has got admission in the general quota, then her admission now stands cancelled. It is not clear if the girls lottery included all girls, including winners. If not, the transfer girls who won in general 75-point draw have a very strong case to move court again.
This is what happens down the road when arbitrary laws are not judicially checked up front. It does the Honorable Delhi HC no good if, after approving the points system it turns around asks justifications on an ad-hoc basis for certain points.
An equally valid question is : What is the justification for alumni points? Why have 20 and not 5 points for siblings ? Why have 70 points for neighborhood? Why 70 ? why not 40, 50, 60. The truth is none of these are justified if the transfer points are not justified. The 5% alumni points is now snarkily called “dynasty points”? Two siblings today will spawn into four in one generation. You are locking down, by law, non-minority schools into families. I’d say the transfer points is a far more defensible scheme than this ludicrous system.
Those transferred to Delhi from other states rarely do it out of love for Lutyens. They are also unlikely to have the other points. In the new system, they have to pick their rental house first and then apply for schools. This is the reverse of what normally happens, they first get a school admission, then look for a rental place. Does that mean they should get a 5% head up over long time Delhi residents? Not at all. As I said, the whole system is arbitrary. How many of you even know what you need to know about the 25% quota. What if I told you 30-40% are taken by non -poor under the Disadvantaged Group category which includes SC/ST (no income limit) and OBC (non creamy layer 4.5Lakh)? If you are going to crucify hapless 5% transfer pointees, should you not subject all the rules to a sweeping scrutiny?
What we have on our hands is a group that is wronged. Based on a govt announced points program, one which they never asked for, they applied with 75 points. To now go back and strip the winners reeks of unconstitutionality. Was this category misused by Noida folks? The right way is to pin the blame on those who allowed such an invasive law to be passed without even this level of thought.
I have been saying this for a while on Twitter. A society based on Rule of Law is distinguished by the state exercising its coercion powers based on principles of generality, predictability, and non-retroactivity. All three are absent from the our recent education laws. In a society based on arbitrariness and adhocism the rulers private prejudices and preferences leak their way into rules for the general public.
What if the use of arbitrariness is itself not uniform? Carefully placed arbitrary laws in one domain and tight and very specific laws especially the punitive portions in another domain is one of the essential elements of tyranny. In an Idea of India state, where sectarian laws are used as a tool of accommodation, we have to be extra alert. We have to focus not just on how these laws are institutionalized but rather on whether the arbitrariness itself has a hidden form. What appears arbitrary on the surface, could serve to turn the exemption from these very laws into a private good to be distributed to certain inside groups.
The Supreme Court on Feb 18th 2014 finally put an end to the endless ping-pong between the judiciary and executive by commuting to life the capital sentence of three of the assassins convicted of killing former PM Rajiv Gandhi, 15 others, and injuring, some grievously 45 innocents. For high quality commentary on this topic head over to Centre Right India where Amar and Aravindan have written well informed and contrasting takes on the topic. I would like to add my bit to the discussion largely supplementing what these two commentators have written.
A most diabolical conspiracy brought to fruition
On a searing hot night of May 1991 a devilish conspiracy was brought to bear. The above picture is an especially poignant one which I found on Shri Ajay Makens twitter profile. Regardless of my political position, I recognize the emotional devastation of losing a father in his prime that has been endured by Rahul Gandhi. The reason I use this image is to show that exactly the same impact has also been felt by the children of 15 others who were killed that night. It is easy to get carried away by the medias constant one sided sob stories of the assassins about how Jail life has been so hard on them and families. It is essential you keep this balance in mind. Those who have brought into the idea that the whole case is fabricated and these people are innocent can stop reading now. Read about the case first and then come back and continue.
This post is also not about the desirability of the death penalty. We assume it is on the table, like it is, and the only issues are those surrounding the administration of it.
Mitigating factor of delay in mercy petition
Google tells us that the average time spent on death row by a criminal before being executed in the United States is 10-15 years with many going over 20 years. This includes the sensational case of Jack Alderman who was executed in 2008 after 33 years on death row. Whether this is desirable or not is a separate issue that ties into the larger abolitionist debate. Warts included we do have a grip on the vexed question of sentencing guidelines; of which murderers get picked for capital punishment and which ones get life terms. The issues surrounding the political mercy process is where the trouble lies.
The judgement of the 3-Judge bench led by Hon CJI Sathasivam quotes liberally from the criminal’s cry of anguish
Murugan: “it has been 5 years since I had sent my petition requesting Justice. I live like a moving dead body with the rope tangling in front of my eyes always in solitary confinement. I request justice but not mercy.”
Perarivalan: For about 8 years, I have been serving sentence as death sentence convict. So, the sufferings of my parents, brothers, wife and daughter can not be described in words. I ask God daily why they should suffer due to m..
They also highlighted sufferings on account of solitary confinement, mental agony, etc.
Remarkably the honorable court seems to be satisfied and moved by these letters about the mental state of the criminals. The lack of remorse and evidence of reformation in these convicts arent examined. No doubt, this is a complex issue and there are strong arguments for the so called “Death Row Phenomenon” that the court has accepted. However one wonders if a medical mental examination could prove that this state of limbo (but living) had a real medical impact on them.
The alternative opinion may be illustrated by the following game.
Say you grant a criminal on death row a choice between two processes for a mercy petition.
Choice 1: (Fast Track) – petition will be disposed off within 6 weeks, if delay is beyond that you live. But you die immediately if rejected within 6 weeks.
Choice 2: (Slow Track) – petition has no time limit, you live until it is decided, appealed, then decided again.
Which choice do you think the prisoner would take? I think most would instantly opt for the second choice. The second choice leaves wide open the possibility that the politics of the country could, in the interim, abolish capital punishment. So instead of the absolute mental state the relative choices have to be examined. After all, the very fact that you are in jail and not outside isnt particularly pleasant for the born free mental state either.
Accountability, or lack thereof
A shocking part of the judgment is the following submission by the govt
a note was prepared but thereafter the file was lying in the drawer of some officer of the Ministry of Home Affairs, and, hence, could not be processed. As regards delay of 5 years and 8 months, learned Attorney General fairly admitted that this delay couldn’t be explained in any way
There is no accountability for such sloth. Furthermore there is no check to ascertain that this sloth is only due to a general malaise of incompetence or something more sinister.
Now consider the following scenario if only delay can lead to commutation in the absence of accountability. A babu or a babu in collusion with a politician now possesses the power to commute by simply ignoring a petition. Armed with this power they can act maliciously by choosing to immediately forward petitions of persons belonging to rival tribes while holding back those from their own tribes. This leads to various anomalies and the storm being raised by Ms Mehbooba Mufti in Kashmir about the process for Afzal Guru is the best example of this. Of course the state will have no answer to Ms Mufti leading to erosion of trust in the residual elements of Rule of Law in India.
If these criminals are to go free due to executive delay, then those responsible for the delay must go to jail. There is no way around this.
Jayalalithaa in the centre of the storm
Within hours of the Supreme Court judgment there was a near unanimous clamor from the Tamil media and political outfits that all those prisoners must be released. Vaiko, Periyar Dravidar Kalagam, parents of the criminals pointed to the last paragraph in the judgment that hinted at Sec 432 of the IPC (the power of the state to release prisoners). There is no way Jayalalitha is going to agree to end up holding this boiling hot pot of overflowing goo – so she pro-actively announced intention to release all the 7 prisoners
Predictably the entire Delhi media and the Congress and BJP exploded at Jayalalithaa for her decision.
Folks seem to place a great emphasis on Jayalalithaa’s alleged papering over procedural checks in Sec 432 and 433 of the CrPC; but reality is that for a government it is not a huge ask to fulfil these checks. If you instead look at the substantive end of the case Jayalalithaas actions could be justified.
1. The intensity of activism in a model Idea of India state like Tamilnadu needs to be taken into account.
2. The court have not only commuted the sentence but also approved that the prisoners endured mental torture over 14 year delay.
3. The court did not expressly opine on the desirability of Sec 432/433 IPC ; quite the opposite hinted at the applicabilty of these provisions to the current case. This has been expertly picked up by Vaiko and a host of other parties.
4. Once there three major convicts (Murugan, Santhan, Perarivalan) are released, it makes little sense to hold the other 4 serving life terms (Nalini, Robert Pious, Jayakumar, and Ravichandran) – so she had to let go all seven.
5. Given the above facts; the Jayalalithaa govt would be seen as nursing a personal grudge based on you-know-what in Dravidian terminology.
6. Jaya would like to have the Central Govt to hold this pot by invoking & interpreting Sec 435 of CrPC appropriately.
The trajectory of this case over the years is alarming and exposes the chinks in the Rule of Law and its vulnerability to activism and sectarianism. I would go a step further and say this case lends further credence to my hypothesis that the Rule of Law cannot go along with the Idea of India. Under the guise of abolition of death penalty, a whole set of arguments are being made to let these convicts go. It is important to note that none of the convicts have demonstrated an iota of remorse or disowning of their ideology. Instead their capture, their trial, and incarceration are portrayed as further evidence of the oppression of Tamils in India and in Sri Lanka.
The restless eagerness of Murugan for a reunion with his daughter in London can only be understood by Rahul Gandhi who does not have that option any more.
UPDATE: See the part marked in red
Sushma Swaraj of the BJP is a Lokpal Selector Selector Selector.
So are Prime Minister Manmohan Singh, Speaker Meira Kumar, and Supreme Court Judge H.L Dattu. Together these four are going to first select an “eminent jurist” who will complete a 5 member committee whose only job to select another committee who will eventually select the inaugural 8-member Lokpal.
You may wonder what Justice Dattu is doing here, because as per the Lokpal Act the Chief Justice of India should join this panel. Actually as per the Lokpal Act, the CJI or anyone he nominates can be on the panel. The catch here is those on the selection panels cant aspire to be Lokpal. It would be tantamount to selecting yourself. So CJI Sathasivam has kept the doors open for himself to be a Lokpal.
This five-member selection committee will choose the Lokpal and other members.
Source: Indian Express
That a premier Indian newspaper like the Indian Express gets a crucial detail totally wrong is astounding. Lets clear it up. As per the Lokpal Act Sec 4 (3) The task of these 5 people (assuming they can select the eminent jurist) is to select a “search committee” consisting of seven eminent people of standing.
Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management ..
Sec 4 (3) of Lokpal Act
The restriction is that the eminent people of standing in the search committee should have 50% quota for SC/ST/OBC/Minority/Women.
The search committee then selects the final Lokpal panel which consists of a Lokpal and Eight members. Five of the eight must be from SC/ST/OBC/Minority/Women and four from the legal field. UPDATE: Thanks to a commentor, this isnt correct. The search committee does not actually select the final panel but returns the names to the original selection committee which then adds its own names and selects the final panel. – EDIT – In my opinion this only makes it worse.
Is your head spinning yet? Is this feasible ? Today, we are at stage 0 – the discussion revolves around whether PP Rao is a more eminent jurist than Harish Salve or Fali Nariman. Tomorrow a dozen supreme court justices will compete for the judicial slots. A thousand NGOs and activists will compete the the “civil society” slots. The sheer energy spent by all those in the ecosystem will be astounding. Who do you leave out?
Packing Lokpal with Congress loyalists?
Sushma Swaraj is fighting all the way to the president while Manmohan Singh and others wont budge. This is an all too familiar sight and expected because of the high stakes involved. Simply put this is an institution that is begging to be captured.
The multi stage selection of Lokpal enhances the possibility of total capture – because if you capture a bare majority of selectors at Stage 0 – then ALL selectors at Stage 1 can be owned. This is perhaps the reason why Mrs Swaraj is so worried.
The caste and religious quotas for the search and final Lokpal will see extreme involvement from political outfits as they will veto candidates who are not seen to work for the benefit of these classes. The Lokpal also suffers from fatal flaws in paneling. It is too much to go into it in this post – but a quick point.
If the rationale was to ensure communal representation in a judicial/investigative body to protect the interests of those defendants – then paneling (selecting two/three member “benches”) defeats the purpose. Mark my words this will be an explosive issue in the future as both defendants and litigants will question the neutrality of any panel on grounds of religion, caste, or gender. What they are really expecting is like a representative jury system.
Modi should watch the developments carefully as a loaded Lokpal can dissipate any projects that he might embark on. There is enough ambiguity on the statute books and enough well paid activists to checkmate any discretion on the part of officials executing these projects.
Given the horrendous implications of this ill conceived piece of legislation on our economic well being – it is perhaps good that they are not able to start the engine.
Please lets not call the mechanic.
The official new nursery admissions rules 12795_12809_dt_18122013 . Note Sec 14(e) has been amended since to extend the radius for neigbourhood schools from 6Km to 8Km.
Readers of this blog will recall last years analysis of the traumatic nursery admissions season in Delhi ( Delhi nursery admission meets the RTE ). This year, the Lieutenant Gov of Delhi Mr Najeeb Jung has turned the tables on the Private Schools by abolishing all discretion in admission and imposing a rigid points and quota system on them. It is no longer surprising that an issue of this magnitude has zero comment in the media. Lets see if we can fill in the gaps.
Non Minority Private Rules
To really appreciate the issues you must spend a minute to understand the exact formula proposed. It is also important to critically distinguish between the Points vs Quotas. Here is the formula for unaided non-minority schools.
The entire capacity of the school is divided into four quotas :
- 25% Right to Education quota – where caste based and income based cross subsidized “free” seats are clubbed together into a single lottery ( per Delhi High Court order which banned sub quotas) Topic for another post.
- 5% For Girl students
- 5% For children and grandchildren of Staff
- 65% For allocation by points system below
The points system to be used for the 5% girls and 70% open quota is as follows
- 70% for neighbourhood – defined by 8KM aerial distance. We can have another discussion about road distance, but aerial distance is the only parameter that is justifiable.
- 20% for if sibling is studying in school.
- 5% if either parent is an alumni (typically must have graduated from the school – so if you studied LKG to 9th but moved in 10th you arent an alumni)
- 5% for inter-state transfers
The critical issue with the points system is the following.
All applications at a higher point must be cleared before opening applications at a lower point.
Lets consider an oversubscribed school X – all applicants trying to get their 2nd or 3rd kid in have to be cleared at points 90 before the first applications are opened for single child parents. Similarly all 2nd children of alumni must be cleared before the first applications are opened for 2nd children of non-alumni. If at any stage there are more applications than there are number of seats – a lottery will be used to settle the matter. We will see shortly how this absolutely entrenches privilege as people with lower points are squeezed out.
Minority Private Rules
The rules for minority unaided schools are as following :
- They need to reserve 20% seats for poor in exchange for having been allotted land in the 60′s and 70′s. This has since been struck down by the Delhi High court in St Columba’s and Catholic schools case. All unaided minority schools are expected to be out unless the original land lease deed stipulated this condition. [Source (IE): "Relief for St Columba's" ]
- They can adopt any rule they want to select and admit their respective minority students. In other words, the Delhi School Education Rules does not apply to them.
- If after admitting minority students, these schools decide to admit Hindu students or students of a different minority than that of the institution, they must follow the above Rules towards all seats in this category. This has since been struck down by the Delhi High Court on a petition by Society of Catholic Schools (Arch Diocese of Delhi) and Society of Minority Schools. [Source TOI : Minority schools can define own rules ]
- So as it stands – all restrictions are now off minority unaided schools. This have full autonomy in the sense the law does not apply to them at all.
A misguided copy from school assignments in advanced countries
At the heart of the matter is the idea floated by left wing intellectuals that somehow or the other excellent capacity exists but is hidden by the cunning machination of private school managements. If only we could arm twist them the capacity will be unlocked to benefit the hordes. They refuse the face the reality that there are not enough seats and no system of adjusting this or that knob is going to create new capacity. Quite the opposite.
If you are familiar with school process in USA and other advanced countries, they have a system of school assignment not dissimilar to this one. The crucial difference is that only applies to public schools (government schools). The reason for neighborhood and sibling points is to optimize school bus costs. The whole territory is divided into carefully mapped school districts with guaranteed similar infrastructure and facilities (relatively speaking) available across the board. They are able to do it due to their first world status. Can we do it ? Can we create Delhi Public School quality government capacity across the entire breadth of the country ? This is where the stark reality of being third world hits you. Private schools can and do fill in the gaps – at the expense of dramatic variation in facilities.
By removing all autonomy in admissions followed up by a non stop barrage of defamation from left wing news outlets like The Hindu , the signaling is clear. Private players are severely disincentivised to open up new capacity. As I mentioned in the previous blog on Delhi admissions : Would you exert yourself opening a school if you have no say in admissions, fee structure, and had to de-facto nationalize your effort?
Due to the uneven distribution of private school capacity old and established areas typically play host to traditionally good schools. By a neighbourhood points system you give these residents a reward. There was a news report how parents are busy renting out new houses in established areas just to enable themselves with the all important 70 points. This also gives rise to the anomalous situation where you can temporarily shift, get the neighborhood points, and then go back to your original residence. How does the USA say the Boston School district handle this ? It is true that you can pull that stunt there too – but most parents shift to a nearby school because remember the first world status has given them nearly equal schools across districts. This combined with the fact that buses are not provided across school districts means the parents typically abide. There is no such incentive in Delhi.
Privilege is also entrenched by Alumni points, the so called Aam Aadmi sure as hell isnt an alumni of St Columba’s , Delhi Public School, or Modern School. Without as much as batting an eyelid the left intellectuals have put their stamp of approval on a scheme which actually serves to lock out swathes of people. Also there is no reason why siblings cannot go to different schools – personally we siblings in our household and had no problems going to different schools across town whatsoever. A corner case is that of girls and boys schools where siblings necessarily have to attend different schools. Therefore officially disadvantaging the first child over those privileged or lucky enough to have got one kid on board is senseless. Once again a relic of mindless copying from the west where the motivations for sibling points are publicly funded schools and buses.
Gender quota is another highly debatable scheme and potentially an infringement on the equality clauses in the constitution. Since ALL capacity – whether the caste+income quota, euphemistically called EWS, under Right to Education is decided by a lottery. It goes without saying that when the chips fall, girls and boys will benefit proportionally. By forcing an extra 5% girls quota – the government is essentially turning all classes – by law – in to 53 girls and 47 boys. This combined with the demographic reality of more boys than girls places parents with single male child in a unviable position.
Minority school exemption
Those who follow me on Twitter at @realitycheckind will know that I consider this to be the acid test of Indian secularism. Secularism is not certain types of personal attitudes by can only be tested by the kinds of laws that are passed. Right to Education comes up a cropper on this.
The only restriction on minority schools in the original notification was that if a given minority had to admit outsiders they had to do so by lottery. Consider that both Mr Najeeb Jung and Mr Rahul Gandhi are alumni of St Columbas, the old rules would have necessarily locked them out as they would have had to enter via a lottery and not by management discretion.
As per my information, there are atleast 37 Sikh, 1 Muslim, and 156 Christian minority private schools in Delhi. They not only constitute a sizable chunk of the overall capacity, but a very large chunk of desirable capacity like St Columba’s, Carmel and others. Since the new rules as well as the Right to Education act do not apply to them in-toto, the very rationale for these laws are dimmed. One cannot be faulted for reaching the conclusion that a cheap form of sectarianism and not any love for the underprivileged is what animates these efforts.
The legal issues are quite clear. When a new law that is confiscatory in nature is passed, the authorities are fully aware that the owners are going to seek legal remedy. They also know that two groups, viz the minorities and Hindus (non-minority) have different standards – one is going to win on a mere facial challenge to the law and the other group is going to have to construct all kinds of elaborate arguments. Indeed the true test of secularism is when you know you can easily pull a communal law through courts yet you hold back.
Come February the myriad of lotteries are going to cause parents a lot of anguish as reality hits them. The cheerleading propaganda efforts of the entire media which painted a rosy picture of parents supporting the move will be a distant memory even if only a few weeks old.
Those who win – feel good, those who lose – feel bad. Those who won last year pretend they never went through the trauma this year. It is just another milestone as we stumble along in our effort to destroy the primary education sector.
Just want to record this tidbit in the context of the ongoing ruckus in Madras High Court regarding shortlist of additional judges.
Since Justice Prakash belongs to Brahmin community, it may not be proper to argue social justice before the bench.
This followed a ‘memo’ presented by S. Prabakaran, counsel for R. Gandhi, seeking change of bench because one of the judges on the present bench, Justice P. N. Prakash is a Brahmin and the..
This is the first instance where a judge has had to recuse himself or herself from a case owing to a lack of jurisdiction across communal lines. A logical progression of this is that “social justice” cases affecting inside groups cannot be fairly heard by judges belonging to outside groups.
We just dropped 10 rungs on the 20 rung rule of law ladder.
Justice PN Prakash was earlier opposed due to being from Kerala
The Congress government in Karnataka has recently notified the Karnataka Professional Education Act 2006 (PDF – as notified sourced from COMED-K). Tragically, this is receiving little or no commentary in the media despite its groundbreaking nature. In this blog, I hope to throw some light on why you need to pay attention to this.
First a little background.
In India, professional colleges typically refer to the three disciplines of Medical, Dental, and Engineering. When it comes to private professional colleges, there is a long history to the tug of war between government regulation and autonomy of the management of these colleges. In 2005, most issues came to a settlement after a lengthy legal fumble with the 7-Judge bench deciding P.A Inamdar vs State of Maharashtra. In that judgment, it was clarified that the state could not impose its reservation policy on private education – both minority and non-minority. The political class could not stomach that as regulating access to a small pie of educational opportunities is a powerful tool to distribute benefits to this or that faction. The Congress led UPA-1 govt under the then HRD Minister Mr Arjun Singh moved the 104th Amendment bill that was passed and eventually became the 93rd Amendment to the constitution.
The 93rd Amendment added the following to Article 15.
“(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”.
Let me break it down. The non-minorities were offered parity with the minorities under TMA Pai, then Inamdar under Article 19 (1) (g) which says “anyone can conduct any profession, trade, or business”. The 93rd amendment cancels all three judgments (Pai, Islamic Academy, Inamdar) and once again restores minority institutions to a higher pedestal by severely curtailing protections under Art 19 (1) (g). The 93rd Amendment was challenged along with the OBC Quota in Ashok Kumar Thakur vs Union of India in 2007. The court held that the 93rd amendment was not in conflict with the Basic Structure insofar as it applies to Govt educational institutions. It did not strike down the part where it applied to private unaided institutions and instead punted it for a future court. It was understood that the 93rd Amendment could be reopened for challenge once a state actually passes a law.
This month Karnataka notified exactly such a law.
The Karnataka Professional Education Regulation Act 2006
The substantive parts of this act are :
- No govt quota seats in any private institution.
- Unaided Non-Minority must provide 50% quota along Karnataka government lines. SC / ST / OBC (5 subgroups)
- Unaided Minority need not provide SC/ST/OBC quota but must ensure 66% of seats are allocated to that minority group that runs the college
- No upper limit to fees. Each college can set fees according to its location, infrastructure, quality etc. A 2-Judge panel will nail complaints of exorbitant fees.
- A 15% NRI ( or NRI sponsor quota) is allowed even encouraged for purposes of cross subsidization
- Only two entrance tests are envisioned. CET for govt colleges and COMED-K which is an all India test for private colleges. Things are still up in the air as minority colleges want their own test. But this is the rough formula.
To understand the impact of this – you need to understand how the system works today. Roughly this is the arrangement in place for the past few years.
- Private colleges surrender a number of seats to the government – approx 40% – this is called the government quota
- The govt fills the 40% using the usual scheme of 50% quota from the merit list from a government exam.
- This 40% is highly subsidized – as they only pay fees as applicable in government colleges.
- In the balance 60% – the management can do anything they want under conditions of transparency. They are allowed a 15% NRI quota with typically high fees to make up for the Govt quota + the management quota.
Impact on poor
First thing to note is Karnataka is no exception to other states. Quality government college capacity is severely lacking. In the old scheme, the effective govt capacity was Govt Colleges + Sum of all 40% seats in all private colleges. To quantify the mismatch consider the fact that Karnataka as 42 Private Medical colleges and only 11 Government ones. On the Engineering side there are roughly 200 private colleges and only 12 Govt colleges. So if you are a poor student in Karnataka today – the number of seats you can aim for based on affordability is dramatically reduced. What they’ve done is replaced a regime of affordable seats and converting it into a “social justice” quota. It goes without saying that from next year, private colleges will hike all fees to even out the disparities that have now disappeared.
Impact on Karnataka OBC/SC/ST
After this new law, OBC/SC/ST candidates will be able to exclusively access a huge number of extra seats – albeit at a higher cost. Under the new regime – all private non-minority colleges must reserve 50% of total capacity to OBC/SC/ST students from Karnataka. Note that in the previous regime 40% was taken by the govt and given in the ration 20% under quota to OBC/SC/ST from Karnataka and remaining to open category from Karnataka. After this act the number of seats more than doubles ( from 20% of total private non-minority capacity to 50% of private capacity) . The government is also refunding all fees for certain categories. So overall, this new scheme is a win for reserved categories who can afford these seats.
Impact on Karnataka Unreserved category
This group will be hit hardest. In my view, the impact can be so severe that a legal challenge to the entire scheme is called for. Let me explain. In the old scheme, under the 40% Govt quota – Karnataka based open category students could compete with each other for 20%.
Under the new scheme, Karnataka OBC/SC/ST have dramatically increased their share from 20% to 50% where they compete only with other Karnataka students of the respective category. However, the Karnataka Open Category is left in the lurch – they are clubbed with the remaining 50% who have to compete in an All India Exam like COMED-K with highly trained students from states like AP. To this add the 15% NRI quota – which further reduces the pie that is up for grabs to 35%.
Now if you are a unreserved poor students – the hit will be severe and the only seats affordable and accessible to you are the seats in government colleges. In addition to this, the unreserved category students aren’t necessarily topping the exams either. If youve been reading this blog you’d know these arent classifications based on monitoring or presence of disabilities. I’ve documented the extreme case of 2013 Tamilnadu Medical Admissions here.
Impact on Minorities
Under the new act, private minority colleges must reserve 66% of all seats to students from their group. This is an extremely welcome decision which will hopefully reverberate all over. Both linguistic and religious minority institutions today are asserting protections under Art 30 without any connection to serving their communities. Other than this, they are under no obligation for providing any other kind of quota. One institute that might be impacted is Manipal University which, under this law could be forced to admit 66% Konkani native speakers !! I’ve always maintained that the whole Article 30 protection regime needs a principled look. It is unacceptable that speakers of Tamil or Telugu are able to run normal secular colleges from a higher platform. We are still waiting for a court with chops to undertake this most important exercise.
Those who follow me on twitter @realitycheckind know that I consider this to be the most abominable form of quota ever. Under the NRI or NRI Sponsored Quota – if a brother/sister/father/uncle/aunt is able to foot your bill from overseas – you leapfrog over an ocean of native Indians who have no such luck. The quota is not minor but rather 15% of total intake. If it is cross subsidy you seek than it should be open to all rich kids not just who are lucky enough not to be working in India. The NRI quota has no place in a civilized country and must be abolished.
Long time readers would be aware of a Reality Check India tradition, we maintain a Hall of Fame for those who actually speak up against invidious schemes inside legislatures. We have less than a handful in eight years.
Today, we welcome Mr Bookanakere Siddalingappa Yeddyurappa to the Hall Of Fame.
Thank you Sir.
- Mr Tathagat Satpathy (Lok Sabha 1 in 544 !)
- M/s PC Alexander, Chandan Mitra, SS Ahluwalia, R Bajaj (Rajya Sabha 4 out of 246),
- Mr Sharad Joshi (Rajya Sabha 1 in 186 !)
Mr Yeddyurappa has been fighting a solo battle against the invidious “Bidaai” scheme of the Congress government in Karnataka. This scheme follows the general trend set by the Congress govt at the centre of communal appropriations. The Bidaai provides for Rs 50,000 as marriage gift to Minority girls whose parents income is less than 1.5Lakh. A Hindu girl, no matter how backward in social or economic terms, right across the street will not be eligible for this scheme.
Indian liberals, historians, and assorted intellectuals who are looking for a “nice right intellectual” debate. Why not start here ? These schemes are incompatible with all liberal conceptions of democracy and why is it that Mr Yeddyurappa and not you who is protesting..
Should victims of rape and possibly other crimes have a choice to opt-out of the criminal justice process ? Mrs Shome Choudhary repeated again this morning that she would never involve the police unless the victim asked for it (TOI print edition page 4). She subsequently backtracked but that might only be because the victim DID want to involve the police. There have also been a flurry of op-eds by articulate women and feminist lawyers that propose a paradigmatic change – that victims of sex assaults should be allowed to opt out mainly because the trial is too traumatic. Not dismissing the traumatic part in any way but lets examine the proposal.
A quick scan of some of their Twitter timelines indicate widespread and even enthusiastic support for this proposal from fellow lawyers and a public policy think tank. This is an extremely disturbing situation where emotions are running high and arguments are weak. Things are the way they are for a reason – they all know it being trained lawyers.
Hope this post brings out the legal issues in a way all stakeholders can understand.
Before we proceed – lets set the frame of reference. The question is this : Should a victim of rape be allowed to opt-out from the criminal justice process and settle for other kinds of punishments. This settlement can involve the criminal or can involve just herself – perhaps in a spiritual way. The key additional assumption is 1) the crime has been brought to the notice of society and by extension the police. This means she has already told someone about its occurrence and not kept it to herself.
Here are the reasons why I think we should be very very very wary of this idea. This post isnt particular to the Tehalka sex assault story dominating news headlines today.
In the case of Tehelka Editor-In-Chief Mr Tarun Tejpal – the forum for such a settlement was suggested to be the Sex Harassment Committee setup following the Vishakha guidelines. The choice was presented as if the victim could choose the civil route and/or the criminal route probably because assault can be both tort and crime. But that is not a choice at all because the options aren’t independent.
For example : If the victim chooses the civil route and releases all the criminal acts – then she automatically throws water on the civil case as well. The prosecution is going to challenge any compensation she seeks with “You cant possibly hurt that bad that you need 20 Crores (or whatever) – because you didnt even bother the criminal case” See? So that is it not the real choice here – the choice is a) go through the public justice system (criminal and civil) or b) settle it privately in an alternate forum.
If we allowed this, how would the law and order landscape of the country look.
It is critical that crimes are processed through the public process because that is the only way the authorities can build a criminal record or database. These are the people who are going to have to deal with catching and prosecuting criminals in the future. Any police will tell you how critical it is they have this database. Those who settle will never figure in these records and those unable to settle (probably due to being poor) will figure disproportionately in the record. Cant allow this.
David Friedman has a great definition of stigma. It is the cost to you owing to the fact that other people know about your previous criminal history. Say you are caught for rape and serve 3 years. The cost to you is not just the 3 years you spent in jail but also that when you get out others know about you and increase your costs by modulating their own behaviour.
Example : You are a habitual sex offender who gets out of jail for an offence. Even after you are rehabilitated as a free man, things are going to be very different for you. The girls who work with you in your new job, know about your history and are going to make it very hard for you to score with the same nonchalance you were used to before your conviction. This very crucial deterrent is missing from a settlement system. It doesn’t matter how you wing it procedurally in the forum – it wont work.
This is a clincher for me in the Indian context.
There are a lot of things convicted criminals cannot do. You only have to look at UPA minister Laloo Prasad Yadav who had to lose his MP seat and probably wont be able to contest in the future. You are denied participation in political process, you are frequently rounded up for preventive detention, getting a passport requires court permission, you cant apply for a US Visa easily, you cant get a job in many private security firms and on and on. Given the likelyhood that rich and sophisticated people are more likely to be successful in settling than the poor and earthy – you will end up with a bizarre anomaly.
You will have MPs and MLAs who zoom around Delhi and TV studios while some poor sod is rotting in jail for committing the same crime. The only difference is the suave guy had the money or the charisma or the smooth talking power of veiled threat to have won the victim over. This is a gross situation.
Only rape? Think again
It may seem easy to clearly separate sex assault and only allow the above settlement for those cases, but it is very hard to pull this off in a general manner. What if a call girl gets thrashed black and blue ? She may fear entering the criminal system too for fear of having her true profession revealed. What if a gay man gets his face smashed up by a bigot – he too may balk at the criminal justice system if he is not ready to come out yet. The list goes on and on.
Hope this clarifies my tweets earlier on the subject. It is very critical that we as a country hold the ground on this one and not let it be carelessly discussed in an adhoc manner.
Indian news and social media is on fire with the sexual assault charges against the Editor-In-Chief of the Tehelka News Magazine, Mr Tarun Tejpal. The details are here at Delhi Durbar.
As the story developed, Ms Shoma Chowdhary the Editor of Tehelka is reported to have snapped at some reporter “Are you the aggrieved party”. There were also several tweets by lawyers and journalists who suggested that the victim was free to choose between criminal and civil complaints. This is disturbing on many levels because the contents of the leaked email clearly indicate the possible commissioning of a crime.
The justice system of India and most countries rests on a clear distinction between the “crimes” and “torts”, or simply criminal and civil law. The way these two branches are prosecuted, the standard of evidence, and the punishment are all different. If someone cheats you on a contract or defames you – you should bring a lawsuit against that person with the final goal of getting some compensation. If you and the cheater can come to a deal to avoid a prolonged trial – case closed. All go home happy. It is not possible to send the cheater/defamer to jail as an outcome of the trial, the evidential standard is a lot looser. I am simplifying a lot here, but this is how Tort/Civil cases largely work. There is a laundry list of acts that are classified as Torts.
Murder, rape, assault, are crimes and they don’t qualify for the above process.
Crimes are a different beast altogether. In jurisdictions that have public prosecution of crimes, i.e. almost everywhere, the official plaintiff is not the individual who has been hit, but the people or the “society”. This may seem very unfair to the victim, because there is no redress or restitution. For example : Nirbhaya’s parents would have got nothing at the end of the trial process – but for the ex-gratia provided by the Delhi government. The upside of this arrangement is – you cant buy your way out of a crime.
In my studies on legal systems, I stumbled upon this interesting reason why crimes are prosecuted by the state. I dont recall where I read it, but it goes like this. Start by assuming the opposite, that only the aggrieved party has the right to initiate criminal process against an accused. Also assume that all individuals are equally aggressive pursuing justice when harm is caused to them. Obviously, this fails the test of murder. Because the aggrieved party is dead, there can be no one to hire prosecutors and initiate the process. Lets expand this one step, you can grant that the kin (family) of the deceased can also be considered to be an aggrieved party. Then what happens to orphans ? A system like this will put orphans at great risk because murdering them will invite no prosecution. You can extend this further to say friends and acquaintances, but then what happens to loners, those who recently moved, those who have more enemies ? The real answer is when a crime is committed – it is the entire society that is harmed and the state must bear the expenses of 1) prosecuting the accused and 2) for prison facilities using the taxpayer money. So the basic position can be summarized as this : You cant opt-out of the criminal justice process. In this and other cases, monetary settlement is only one aspect. There can be activism driven pressure and other kinds of indoctrination.
There are libertarian arguments for dismantling the public prosecution altogether and go for a market driven solution. In this scenario,you would buy some kind of “Crime Insurance” so in the event you are attacked you are never short of resources to pursue the aggressor. Seems quite outlandish.
On Shoma’s outburst
If there is information about the commission of a cognizable (a more serious kind of) offence, or if a police officer suspects there to be one, he can take up investigations without any specific complaint. Of course he has to apply his mind to ascertain there is sufficient grounds to believe such a crime has been committed. The Goa Police under Mr Manohar Parikkar is doing exactly this. In case of Torts, she is absolutely right, the public has no right to jump around if the aggrieved (injured) party is quiet. Unfortunately for Mrs Shoma Chowdhury the details available in the public domain point squarely to a crime and not a tort. As pointed out by many on social media – the alleged acts , if true, squarely constitute rape under the new anti-rape laws.
The latest news is that Tehelka has set up a committee to hear the sex harassment case. That is a good development, but the facts in the public domain indicate that the only option for the committee is to turn it over to the police as a formal complaint. Why?
The basic idea is quite fascinating. Say you witness or someone tells you about them witnessing a crime – someone’s hand getting chopped off by a machete. Should you report it to the police ? Will you be legally liable if you keep quiet ? The answer is – you are under no legal obligation to report it. This explains all the Indian movies where villages witness a gruesome crime but no one comes forward to report it. There is one exception however. If you are in a command position : say a teacher, nurse, railway ticket collector, or a committee hearing one class of complaints like sexual harassment. Then you are a mandatory reporter.
Most tragic that people are willing to drop down several rungs to exhume long settled and well understood conceptions of law to deal with specific cases on an adhoc basis.
A tale of two leaders
Indian social media is abuzz today with various unsavory tags and pictures of who was at the time of this nations infancy an absolute rock star. Before we thumb our noses at the disrespectful chattering masses, lets understand the factors that are causing this.
In this short post, I try to contrast the popularity trajectories of two of Asia’s most influential leaders.
Aristocrat, suave, educated, highly articulate, intellectual, published, unprecedented stature, unchallenged leadership as long as he lived, comfortable with western way of thinking and life, ladies man, player, handsome, powerful debater, natural orator, Brahmin but beef eater, dams, IITs, Hindu but befriended Muslims, North Indian but did not impose Hindi, pity for the weak, mercy for the destitute.
Contribution : Nehru’s simultaneous celebration and nurturing of that other critical ‘D’ word: Diversity. Democracy and diversity, or better still, democracy with diversity—that is Jawaharlal Nehru’s legacy to India. We should defend it to the last. [ Historian Ram Guha ]
Park Chung-Hee of Korea
Military background dictator, raised in crushing poverty, undernourished, short statured, cleared competitive exams to join Japanese colonial teacher training school, then army, imperious, ever suspicious, took over in coup, first arrested then arm twisted business leaders, tortured people, proclaimed himself permanent leader, killed by own intelligence officer.
Contribution : Miracle on the Han. He took what was a piss poor country, amongst the worlds poorest, poorer than India or even North Korea and transformed it, placed it on an automatic path to First World status. Today Korea is a gleaming confident country with 10 times the per capita of India.
Koreans love this man today.
Personal charisma and expansive idealism about international order will always come a distant second to “Okay fine, why are we third world again ?”
Unfair ? You bet.