The Right to Education Act 2009 is the single most devastating and sectarian piece of legislation in recent times. I can sense from my interactions that there is a general and growing negative feeling about this law. Post Pramati vs Union of India, the situation on the ground is that all minority schools – aided or unaided – are completely exempt from the law. This has the effect of instantly immunizing the top and most sought after schools from RTE.
Given this judicial position grounded in an Idea of India positive rights cocktail jurisprudence – the only solution is to repeal the act. This is well within the mandate won by the Narendra Modi led govt. It is time to go back and honor the most fundamental maxim of the Rule of Law — uniform application. It it cant apply to all, it cant apply to any.
I feel there is an ongoing effort to temporize by civil society activists and think tanks. By conceding some minor provisions they hope to salvage and retain the core of the law. This will probably get a lot of play in the media too. They will simply not pay any attention to the sectarian exemption that looms large – which gives rise to serious doubts about their agenda. If you ignore the exemptions, what you have left is a mirage or an academic exercise at best. We must all pretend and use terminology like “private schools” which have no real life meaning.
RTE 2.0 amendments by Centre for Civil Society
In this light, the New Delhi based Think Tank Centre for Civil Society has proposed a set of amendments. If accepted, these will lead to what they call RTE 2.0.
Link to RTE 2.0 Amendments Summary http://ccs.in/sites/default/files/research-rte20-summary.pdf
In consultation with : Absolute Return for Kids, Accountability Initiative, Bharti Foundation, Central Square Foundation, IPE Global, J-PAL South Asia, NUEPA, Pratham, Teach for India, The World Bank, University of Chicago Center in New Delhi, Vidhi Centre for Legal Policy and Yuva Foundation
Its a high power 5-star activist lobby. It is kind of distressing to note that a govt body (NUEPA) is involved in this. Needless to say these recommendations would carry a lot of weight in the HRD Ministry. However, this should not deter us from critiquing it. Here is a point by point assessment of these amendments.
Fixing RTE – the real way
The real issue with RTE is that schools are split into “RTE Enabled” and “RTE Exempt” in an environment already fraught with dreadful regulation and arbitrariness. In other words, the common parts are arbitrarily regulated and the RTE doesn’t do anything about that, but only lays on special burdens on top of the common part on the non minorities. This is what makes the law so unique – you cannot make a secular critique of a sectarian law. The problem with the civil society folks is that they simply will not engage with this aberration at all.
The way to fix RTE is to frame policies such that post enactment of the statute the Enabled Schools are not left worse off vis-a-vis the Exempt schools. This simple rule should be the touchstone of any policy. So how to do this ?
One way is to treat the 25% quota as a taking in the sense of eminent domain and fully compensate without questions what the schools charge for other students. This includes all fees in vogue such as extra curriculars, uniforms, swimming, etc. This is clearly a nutty scheme – just for activist feel good kicks – you will send up sponsoring a kid to Vasant Valley while you could educate 10 kids for the same amount in govt schools.
The real intractable issue is with Section 13 – which bans ANY screening procedure even for the 75% that is not reserved for caste or income quota. I have painfully documented the multi layer lotteries conducted in Delhi last year for nursery admissions. The hectic litigation followed by sheer fatigue resulted in an questionable judgment. Essentially the RTE Act results in all admissions to private “Enabled” schools being nominated by the state.
I conclude that the burdens imposed by #RTE on Enabled schools are so onerous and of a such a nature that you cannot compensate in a way that they end up at the same level as Exempt schools.
This is why repeal of the #RTE act is the only way out.
Critique of RTE 2.0 proposal
Now lets turn to a point by point critique of the proposed amendments. For your reference here is a link to RTE 2.0 Amendments Summary http://ccs.in/sites/default/files/research-rte20-summary.pdf
Sec 3 : Extends RTE to lower and upper kindergarten by extending RTE from 6-14 to 4-14. Makes it worse because total number of subsidy years is now extended to 10 instead of 8 earlier.
Sec 4 : Introduce standardized testing to measure. No need for a statute like RTE for this. It is better to leave it to boards like CBSE. I have some strong opinions on inter-board standards so that there is a uniformity at least in English, Science and Maths between states.
Sec 12 : EWS/DG Quota
Removes the distance criteria, so that some schools will be absolutely flooded. Given the lottery situation and amendment to Sec 12 (1) below it will lead to the absurd outcomes. Kid A from locality A will chug across town to attend School Z which is not his preference. While Kid Z will criss cross him from other side. This is how the lottery works. These dynamics are completely lost on Civil Society Centre.
Transfers all nominations to the government. On one hand this removes headache from school but on the other hand schools are now forced to accept dubious candidates. This is a deal breaker because there are cross subsidies involved. NO ONE wants to enter into a philanthropic venture and being forced to indulge in immoral activity. The immoral activity in this case is being forced to ask one of your poorer students to subsidized a richer student.
Payment. Any delay of more than 3 months attracts interest and penalty. This is a wash. If schools arent able to recover refunds today, they wont recover refund + interest tomorrow. Today non-payment from govt results in schools holding back teachers salaries, cutting back on safety and accessories. This will only result in a flight of qualified teachers and bright students from RTE Enabled schools to RTE Exempt schools. I am following a case in Pune where this is happening as we speak.
The entire idea that tier 2 and 3 schools can sufficiently contrast privilege and grant 10 years of freeship based on a temporary economic status is preposterous. The amendments also offer nothing on cross subsidy. Charging the hapless 75% fee paying students while their parents already pay Education Cess and Service Tax is the very definition of a capitation fee !!
Verdict : Eyewash #FAIL
Sec 13 : Completely missing
No amendments are proposed to the most oppressive provision of the RTE – the right of school managements to select students.
Sec 13 outlaws any kind of screening for all intake including the 75%. Sec 13 also includes jungle raj childish fines such as “If caught schools have to pay 10 times the amount of capitation charged from student”. Sec 13 of the #RTE is easily the most dangerous part and is directly responsible for the 7 month lottery ordeal in the national capital last year. Its about to start this week for the next year. Once again remember the balance – the RTE Exempt schools can select however they want.
Verdict : Intention not clear why this was omitted
Sec 16 : No kid failed
This has been modified to “kid can be failed with written consent from parents”. Really ? Piling on more and more paperwork while commonsense indicates no parent would agree to fail their kid is not very smart.
Adding language to legal drafting like “Every effort shall be made to provide child special training..” is just screaming for litigation.
Verdict : Fail without permission
Sec 18 : Recognition Certificate
Modified to include govt schools in recognition. Adds in a new rule that says no private school shall be derecognized until all govt schools are recognized. Not sure how top civil society types and one Vidhi Legal can draft laws like this. One wonders how we can have a relative law ; you are all okay until there is ONE govt school in the red in your area. This sort of belies the inability of these guys to understand how a complex society works. If the legality of your conduct is relative and is pinned to an outlier - then that will be focus of activism and litigation. The govt will decree all schools to be compliant and the civil society activists will try to pull down one. The most likely scenario is absent clear rules and only relative rules, NGOs will pick which ones to go after in court.
Verdict : Not workable
Sec 19 : Budget schools
Learning outcomes to be included for budget schools. That is welcome. However the points system being assigned a maximum of 30% is arbitrary because we dont know what 100% is. Nor do we know what a passing percentage is.
Verdict : +ve needs cleanup
The rest of the recommendation applies to school management committees of aided Hindu schools. There is no point going into these given they are under a mountain of other onerous and outright discriminatory laws. A complete surrender to local political and NGO types in SMCs is like humane slaughter. Welcome.
Why not amend ?
It is tempting to think that we can introduce and pass baby amendments and slowly blunt the edges of the RTE Act. In reality, it does not work that way. Parliament time is precious. If you pass these amendments in this winter session - you will not be able to debate the real substantial parts of the RTE Act. Before you know it, your five years are up and its time to go back to the people. This time with more chaos,shortage, sectarianism, and loss of quality in the education sector.
This is not a personal attack. Hope all the five star outfits mentioned take it in the right spirit.
Jaideep Prabhu set the proverbial cat amongst the pigeons with his provocative article in Firstpost titled “Is religious conversion a fundamental right” . He makes a forceful argument that a blanket ban on proselytization and conversion cannot be considered an assault on fundamental rights. Goes on to say.
By privileging the Semitic moral world order, the Indian state sowed the seeds of violent conflict. The perceived protection of the state via preferential treatment in terms of personal laws, religious institutions, educational establishments, and the outright legal bias (think Shah Bano or the Prevention of Communal and Targeted Violence Bill) instigates communities against each other and against the Nehruvian state. As Roover eloquently states, “the seeds of religious violence are sown by the liberal state; however, it is the communities that harvest them.” Source: Firstpost
Abhinandan Sekhri of News Laundry made a sincere attempt to debunk it. Then Sandeep chimed in with a fine rebuttal on India Facts. Which was then rebutted again. Meanwhile, Scroll.In carried a piece by Shoiab Daniyal summarizing the states that have regulated conversions and explaining Rev Stanislaus vs State of Madhya Pradesh. Sekrhi, Daniyal, and dare I say the majority of our educated middle class share the following view. A proselytization ban is the paranoid and insecure Hindu using his numbers to weasel out of competing in the free marketplace of religions. Some nuggests from their articles.
Sekhri: I am an absolutist when it comes to freedom of speech and expression. This is a concept alien to many who live their lives in fear of extinction, in insecurity and paranoia. Daniyal : Finally, the fact that individuals can be legally tied down to their religion of birth and do not have the full freedom to make their own decisions is one in a long line of measures taken by the Indian state that treats the country as a conglomeration of communities and not of individuals. This is an extremely slippery slope to be on, one that the country must look to get out of.
The soul market
Lets recast the argument into simple terms.
Hindus claim to have a great religion with a very rich tapestry of rituals, practices. They talk about the Dharmic faith’s superior notions of absolute truth vs “The word”, its inclusiveness and lack of violence towards Heathens. There is also no top down layer of clergy that intrude into your way of life, no punishment for heresy or apostasy, no excommunication. If these are such great virtues as you claim, then why not let Christian missionaries do their gig – then you go in and present Hinduism. Let the people decide.
Now this is too simplistic. Almost no one converts because they are attracted by these high doctrinal differences. They convert for more mundane reasons such as temporal benefits. Then the argument continues.
Fine, lets say the Christian missionary from Alabama is teaming up with a local Diocese and building a school and offering a seat in exchange for hopping on board. Why cant Hindus build a school and match him? If he can fly 40,000 miles into a strange land why cant Hindus do this in their own land?
I believe this is a very important, widespread, and valid expectation that needs to be addressed head on.
Economic costs of conversion
I believe Rev Stanislaus as well as the Freedom of Religion laws in a few Indian states are the wrong place to start. Defining “Force and Fraud” is tough and worse it equates the “act of conversion” to a discrete contract. Conversion is not a single contract but a life time of smaller contracts. While the specific act of conversion; say dunking in a pond maybe free of duress, the subsequent obligations on a newly converted individual may not be. Which is why legal bans on the act of conversion alone are so problematic.
Let us examine what the costs are for a new convert.
The first cost of a convert out of Hinduism is that he loses his right of free religious syncretism. For those who may not know – religious syncretism is a way of improvising a religion by selecting desirable elements from various sources. Syncretism is a heresy.
I warn everyone who hears the words of the prophecy of this scroll: If anyone adds anything to them, God will add to that person the plagues described in this scroll. And if anyone takes words away from this scroll of prophecy, God will take away from that person any share in the tree of life and in the Holy City, which are described in this scroll.
The second cost is he subjects his freedom of everyday living to a layer of clergy. The key to remember is Christianity is not ONE religion but many branches. If a family converts into say a Pentecost – they lose their right to wear jewelery, flashy clothing, compulsory congregations etc etc. Converts into Adventists or LDS or other protestant denominations have to make quite a few changes to diet and social practice. Your typical elite Christian friend usually can get away with a lot of things, but new converts are typically monitored and required to have a certain level of participation. The extent to which these rules are enforced depends on the local congregation or parish, but there is always some enforcement.
So the costs for a new convert are giving up syncretic i.e, his pagan practices and subjecting themselves to monitoring from a layer of clergy.
On the benefits side; there are those who genuinely find the regimentation and the singular truth to be attractive. But outside of that circle the benefits are more temporal. One might expect to erase caste identity by smothering it with a larger and more visible one, but even that has to be mixed with something tangible. More aggressive missionaries simply give cash or loans.The single most important benefit however is always access to educational services from lowest to the highest levels.
So, the urban liberal wonders All this is fine, but why cant Hindus do the above too instead of clamoring for a ban on proselytization ?
Until this point. I am solidly with Sekhri, Dhaniyal and the secularists.
After all, if it turns out that all the purported benefits of Dharmic religions like its ability to syncretize and offer religious autonomy have a net economic cost of being lesser than a school seat – we Hindus have a bigger problem. Hindus should focus on providing that school seat or medical services etc instead of preventing others from doing so.
But this ignores the elephant herd in the room. The so called market is neither free nor fair. The law is used to first burden and then checkmate the Hindu response and to encourage conversions in an insidious way. But it isnt Shah Bano or Uniform Civil Code or Ayodhya temple or Haj Subsidy that is the culprit. These are red herrings – I have chased them too and discovered that they have limited effect due to their lack of impact on public law.
The real distortion is in the educational landscape. Most recently the UPA’s outright communal programs like minorities-only scholarships, explicit govt cash to minority schools only, and MSDP have started to contribute to the distortion.
How Idea of India arranges incentives
A band of Nehruvian Indians might have pulled off the biggest mass hypnosis in history. It is to make Indians inert and exhibit zombie-like behaviour when interacting with the institution of law. It took me a few years to snap out of it, so I wish to help others too. People assume that the laws in force must have a some moral basis. Because? Well, various eminent folks are deeply and visibly engaged in law and so many of our politicians are also lawyers. We occasionally see streams of groups and individuals obtaining relief from the courts. We also trust the argumentative legal community to have enough vitality and a culture of dissent. If the eminences hold forth bizarre positions – their sparring partners will rush in and demolish them.
Say this doesn’t happen, all you see in the media is happy silence or mutual admiration. You are trained to assume that this consensus indicates that the laws must be fine, completely in alignment with modernity and Rule of Law, and our own constitution. Our inner unease with its morality and unfairness must be explained in other ways. Is it due to our inherent belief systems, maybe it is our Hindu faith that must be questioned ? This confusion exists only in the groups have been burdened by law, as I explain later.
Sorry for the detour, but this is essential to understand how the Hindu is unable to, rather prevented by law from, responding effectively to proselytizing religions.
Two key problems
Lets now turn our attention to the specifics. In terms of political economy, Dharmic society should be treated as a conglomeration of ‘discrete and insular minorities‘ (to borrow a term from a US Judge Harlan Stone in his famous footnote in Carolene Products). Therefore the very idea that there is a permanent political minority in India is wrong. That such a permanent political minority is exactly the same as Christians and Muslims is even more suspect. They are able to freely make alliances with Hindu groups like Yadavs, Kurmis, Kurubas, the various Tamil groups, etc and we just got off a decade of rule of the Congress party which brought together this alliance. So the real discrete minorities in India are small Dharmic groups, jatis, and tribes practising a bewildering array of rituals.
Problem 1 : Rights of Dharmic discrete and insular minorities are ravaged by an extremely low standard of judicial scrutiny.
This is exactly the opposite of the US position. Followers of my Twitter account are frequently annoyed at my focus on “minor” matters like the Jallikattu ban, the continuous harassment of Dahi Handi activities, the recent animal sacrifice ban in Himachal temples, the superstion bills etc. Let me explain why this is of such paramount importance. If Dharmics have to respond to Proselytizers they have to bank on their strength of diversity and inclusiveness. Now for many of the Dharmic groups, their primary interface with the larger fold is in through their practices. If the law adopts a very low standard of “baby scrutiny” and bans age old Hindu customs like animal sacrifices in HP just by looking at some gory pictures; that group stands humiliated. Its members are confused.
For example : Jallikattu organizers (Tamil Hindus) are unable to understand why packing cattle in trucks and slitting their throats by the thousands every single day is not only legal but subsidized by govt but they get to go to jail for playing with their pet bulls? Similarly Himachali Hindus are aghast that their Jatka sacrifice on one day to their Devi-Devta is illegal but year round Halal slaughter in pink revolution is not. They then turn to liberal intellectuals in India for an answer and are met with silence. In stark contrast, the US when confronted by a ban by the State of Florida on animal sacrifice by the Santeria religion - threw it out in Church of Lukumi Babalu vs State of Florida.
In India, the establishment has arranged the legal system in such a way that the practices of ‘discrete minorities’ which comprise the Dharmic faith are easy pickings for any activist. On the other hand, practices of Semetic minorities are completely immune. This preference might then be duly conveyed by the proselytizers to the masses as the Indian state establishing their religion as a ‘preferred’ one .
Problem 2 : Gratuitous rights not available to Dharmics
In Problem 1, we saw that when the state injures a Dharmic minority group the court usually lets it pass with “baby” scrutiny. On the positive rights side, Dharmic groups are denied gratuitious rights available to Semetic religions. The biggest and most important conflict site is in the realm of education.
I do believe this is the biggest Indian story since independence. What started off as a negative right ; ie dont touch our schools, has now turned into a monster. I have documented extensively how far the minorities have come in appropriating the domain of education. This is aided and abetted by lawyers, media, and intellectuals.
Furthermore, the wealth of Hindu Dharmic Jatis and Tribes are captured in Temples that are under secular administration. The funds of the dioceses and Islamic trusts are in their own control.
Despite all this – Hindus have managed to squeak through and enter the education sector. But the Right to Education Act has the effect of stripping them of even this and turn the clock backwards. By thrusting a intrusive inspection and compliance regime, under constant pressure from various High Courts over PILs from NGOs, forced into immoral cross subsidy, endless lotteries, media defamation, and nomination issues – Hindus are forced to beat the retreat. The minorities, even the publicly funded ones, however are entirely immune from this.
We have to understand the paradigmatic importance of control of access to education when it comes to free market of ideas. It is not just about schools raking in money. Most in fact dont rake in money directly. Those who run schools and colleges wield tremendous influence. High court judges and former chief ministers routinely approach and beseech top school management to accommodate their kin. The issue with aided minority schools and colleges are even worse. For example: We are trained to believe St Stephens Delhi is a model college worthy of replication. But if you told an American jurist that the Indian govt not only provides full aid to parochial colleges with explicit discrimination but also imposes more burdens on completely private Hindu colleges – he would be aghast. The US goes to extraordinary lengths to ensure public money doesnt touch private or parochail schools. See my posts on St Stephens here and here.
Do any of these recommendations sound weird ?
1. Re-open all cases of imposing burdens on discrete minorities and subject it to enhanced scrutiny. This will lead to overturning bans on Jallikattu, HP Animal Sacrifice Ban and others like Nag Panchami.
2. Nudge a doctrine of strict scrutiny for any future case of banning or even regulating any minority cultural practice.
3. There is no way around repealing the Right to Education Act. There is precedence in Very Rev Mother Provincial vs Kerala a 1970 Supreme Court case – where the KL govt tried to impose on private educational institutions, minorities got exemption, then they said – “lets toss the whole thing, there is not enough left on the plate here”
4. If you cant turn over Hindu temples to Hindus – atleast stipulate that 60-70% of temple funds appropriated by HRCE & lying as unused bullion in State Banks must be routed to Hindu Trusts to run schools.
5. Roll back the concept of aided minority schools and colleges, or actually any “aided” school where management of govt money is in private hands. Either the govt runs the school or not.
6. Open up wide debate on moral and legal basis of the 93rd Amendment where only Hindu run colleges are subjected to a yet-to-be-declared quota system.
7. Immediately discontinue UPA’s over the top egregious programs like IDMI and MSDP. It stuns me we still have them, but that is a topic for another day.
To ask for ‘let Hindus duke it out in market of ideas’ with proselytizers is a clear sign of ignorance. A complete disconnect with the strategic landscape in India. You have to roll back all that I have mentioned for a level playing field to emerge.
First Idea of India style laws need to undone, their arguments deflated, and a new confident regime of uniformity rolled out. Its not an easy task.
Why do minority schools not publicize their “status” ? Not a single person I interacted with knew that Vibgyor was a Parsi Minority school nor had information about exactly what “minority” any of the major schools were. Be it DPS Schools in Bangalore or Ryan International or any of the hundreds of schools. Why is secrecy the norm? I walk through this extremely important issue in this article.
ADMISSION UNDER RTE
March 15, 2014
Our school has a stay on RTE admissions by virtue of considering our school a minority Institution. We have filled all the positions in Std 1 by minority students and as such no further admissions will be accepted from RTE students. Further BEOs have notified RTE admissions could be done up to 21st April 2014 in all the schools. Therefore the parents could approach other schools for admissions as there is enough time.
Note on website of National Public School
I simply could not figure out what “type of minority” this top school in Bangalore was. Why is it important?Read on.
Exception or rule ?
A remarkable fact of India’s education system is the existence of communal exemptions and separate processes based on religious and linguistic identity of individuals who operate schools. Only schools established and operated by Hindus are subject to the recently enacted Right to Education Act with a safety valve that some Hindus can claim what is called a “linguistic minority” exemption. Even outside the Right to Education Act there are a number of benefits bestowed only upon minorities and equally a number of burdens such as the RTE that are only imposed on Hindus. The net impact of this is that in any given state, the local majority population is severely discouraged to enter the education sector by arranging the incentives against them. How we ended up in this grotesque situation is a huge story for another day. In this article, lets assume that IF these exemptions and processes are justified what are the public obligations of schools that claim this exemption.
First take a step back the examine the special status as an exception.
- If you argue that minority privileges are exceptions to the rule of equality, then it follows that there are duties that come with the exemption. As per Art 29 of the constitution, these duties include preservation of their unique culture and religion specific to the group claiming the exemption. Stated simply – everyone can run schools but minorities get something special if and only if they do XYZ for their communities. If not, it doesnt mean they are oppressed and get to scream atrocity. It just means they get to operate schools like everyone else. This is how it works all over the world.
- If you argue that minority privilege is the rule, and the concessions to Hindus to operate schools are the exemption, then it follows that there are no obligations whatsoever . Simply – everyone can run schools but minorities are special because the ones running them belong to minority religions. In this model, minorities are simply privileged by law to be the preferred providers of education in this country. This is of course outlandish but still needs to be explicitly mentioned and discarded with due care. You will not believe how many think this to be the constitutional position.
Minority rights seen in a different light – public notice
Here is a simple question that will stump the best of the Idea of India intellectuals and lawyers. Go ahead and ask them this.
What rights can an individual from the minority community assert against minority educational institutions ?
Wait for their answer…..
There are all kinds of rights but lets look at what I consider to be the most basic of them all. The right to “public notice”. The right to simply know which institutions are minority ones so that you may approach those institutions and assert your rights to the extent that you have them. The notice has to be public rather than being private or secretly circulated. What we have today is a secret notice. This kills the rights of minority individuals right off the blocks. As a minority individual you would not even know that a particular school/college is claiming Art30 exemption on your behalf UNLESS you are a member of a club that has access to this secret info.
The real reason why schools deny public notice rights to their own minorities is that in reality these people just want to run NORMAL SCHOOLS not PAROCHIAL SCHOOLS. This is a battle for the soul of India, the youth and who gets to have them as a captive audience for the fist 21 years of their lives. To that end, on the outside they project a secular modern face but through the backdoor assert their sectarian Article 29/30 rights by stating they are working to preserve their ‘culture’.
Very few people, not even their alumni knew that a leading school in Bangalore National Public School School was a Malayalee Linguistic Minority school. Admission to this school is so limited that only kids of the super elite and connected make it through. So even if it is not about monetary profits, schools like this have acquired enormous influence in a scarcity. They are now seeking exemption from the Right to Education Act on behalf of Malayalam language rights in Bangalore.
What follows is not pretty. This means that over the past few decades, generations of Malayalam speaking kids in Bangalore were not able to assert their rights – because they had NO NOTICE that this was a school for them. Data shows that only 8% of the students are Malayalees.
Similarly, Vibgyor school which was in the news recently for the abuse of a child, is apparently a Parsi Minority. I remember on Twitter, folks were playing “Guess the minority game”. Just yesterday they won a massive victory in our court system.
Appearing for the aggrieved school, counsel T.R. Andhyarijuna told the court it was an old minority institution run by the Parsis and was covered by the constitution bench judgment that exempts aided and unaided minority institutions from the ambit of the RTE Act.
He said that merely because the petitioner school did not have a certificate of being a minority institution from the National Commission of Minorities or the state government or a competent authority, it would not erase its minority character.
There are other schools like Ryan who reserve a mere 5% of the seats for Christians, some do 10%. These are all formulae made up on the spot without any principle. The underlying desire is always to run a normal school for all including and especially the Hindus youth. All the while exempting themselves from burdens and including themselves in benefits.
Why be shy ?
Recently the world renowned newspaper The New York Times carried a lie (actually a half truth) in its print as well as online edition. The following was written by an Indian reporter Mr Manu Joseph on the RTE.
Her child was a beneficiary of the Right to Free and Compulsory Education Act, which took effect in 2010. The act requires that all private schools in India, except those run by and for minority communities, reserve 25 percent of their seats
Pay attention to the phrase in bold “by and for”. It is a half truth or a lie because even those run by minorities and for everyone or even by minorities and for others qualify for the exemption. You may think this is a minor issue but it is central and changes everything. If a minority runs a school FOR its own flock, it means that the flock in return have rights against the managements of these schools. This is not an innocent mistake. It is intended to mislead the western audience that our Education laws fit in with their conceptions of uniformity.
A practical solution. Will minorities accept ?
I propose to recast Art 29/30 into a new language of rights. Not of rights of managements but of the kids belonging to the minority community.
Here are practical notice requirements.
- A large yellow coloured board outside each minority school, clearly visible and legible from a distance of 50m stating that this is a minority school.
- A Public Notice of Rights – for each minority school under the above board stating what type of minority school this is. Whether Malayalee, Konkani, Parsi, Christian, Tamil.
- Enumerate Rights available: Under what circumstances can a Art 29/30 school select a Hindu student over a Minority student of the same affiliation as the school.
- All students of a minority have to be accommodated before opening up to Hindu and minorities of other groups students.
- If any minority wants to to be free of notice duties, they always have the option of getting in line and running the school like everyone else.
- If some minority like the Konkani minority in Bangalore High Court tries to say “But we only have 1 kid from our community” then simple pro-rata rules can be applied. This means that for very tiny minorities either you refuse to grant the status or you simply pro-rate the rules applicable to all. For example : If Vibgyor entry class of 100 has only 2 Parsis – then the 98% would be treated to the 25% quota (Sec 12 of RTE) as well as the compulsory lottery (Sec 13 of RTE).
It is time to really bring these issues onto the front burner.
It is abundantly clear that there is a Lutyens consensus between the old UPA regime, the Supreme Court brotherhood, the Idea of India intellectual movement and the current BJP government. The court has also clearly laid out a sectarian and communal vision rooted in scarcity as the education roadmap. So much so that even covenants and lease deeds entered into by Minority schools are exempted by elevating Art 30 over basic contractual obligations. The only challenge to this travesty is isolated voices like ours on social media.
To conclude ; everyone needs to be alert because.
Saffron robes rush in where black robes fear to tread.
I had a few interactions on Twitter today in response to this tweet. Some were quite angry with my position.
The Congress led UPA government introduced Sec 135 into the Companies Act. This mandated all eligible companies to set aside 2% of their pre-tax profit towards Corporate Social Responsibility programs. In between my campaigns against even more egregious laws like the Right to Education, I have tried to spread awareness of this ill conceived scheme. In this post, I collect all my thoughts on why CSR needs to be repealed forthwith. I hope our new dispensation gets wind of the real dangers of this scheme.
What is CSR?
Essentially all companies meeting certain arbitrary threshold criteria must spend atleast 2% of their pre tax profit on social work. The current thresholds are
The new law mandates that all companies, including foreign firms, with a minimum of Rs.500 crore, turnover of Rs.1,000 crore and net profit of at least Rs.5 crore, spend at least two percent of their profit on CSR.
It is estimated that anywhere from 6000 to 8000 companies fall into this criteria for a net yield of USD $ 2.5B to USD $8B. The beauty is as the economy grows more companies make more profits and more funds are released for social work. This should suffice for the purposes of this post, there is plenty of info on Google and Corp Affairs Website if you want more.
Key confusion – whose money?
A lot of folks on Twitter were angry with my tweet. They wondered “Why are you attacking a noble philanthropic gesture from Ms Murty?” They forget that the money donated by CSR activities is 2% of the pre tax profits of the companies and not their personal money. This distinction can be hard to get.
Let me explain this further : Say a company makes 2500Cr/Q in pre tax profits. They have to set aside 2% = Rs 200Cr/Yr for CSR activities. If there were no CSR – this 200Cr would normally be paid out as extra dividend to shareholders. The promoters and board of directors are also shareholders but they are spending the Rs 200Cr/Yr that belongs to all shareholders. In my view ; this is simple breach of trust and theft of shareholder money.
Good vs Bad CSR
What I am about to say is very counter intuitive. There are two types of CSR, with examples.
CSR activities that have a hidden motive of profit. Working with villagers whose lands were acquired for cheap, providing safe transport for women employees, training local unskilled labour for use in factory.
CSR that are done out of real heartfelt concern for social good. These activities have no hidden profit motive and are done to purely uplift the underprivileged, provide scholarships to needy students, provision hospital equipment in far off places. They are not designed to increase profits.
The upside down thing is this : The second type of CSR done out of pure concern for the underprivileged is breach of shareholder trust and theft of their money. The former type of CSR with hidden profit motive is understandable !!
Therefore my main problem with all CSR including those from Infosys Foundation, Reliance Foundation , Shiv Nadar, Bharti Foundation and all the rest is that they are indulging in philanthropic activities.
Why is CSR philanthropy bad ? Better than tax which is eaten by the corrupt
There are actually two issues here. First Ipso Facto, mandatory CSR is undesirable as a philanthropic pursuit as I will explain. Second, the counter argument assumes a scenario where a 2% additional corporate tax replaces the 2% CSR. The argument is that money spent by well intentioned and people of integrity like Mrs Murty Ms Mazumdar Shaw or Mr Tata is far better then cycling the money through the corrupt govt delivery system.
As a purely social pursuit CSR is abhorrent because it substitutes the preferences of thousands of shareholders with that of a couple of promoters. This is not to say that minority shareholders need to have a veto power on day to day business judgments. The assumption is that minority shareholders trust the board of directors and company executives to be able to best deliver profits being in possession of the right information and technology. However, after having made profits – the minority shareholders have no such expectation on CSR money. They expect either dividends of reinvestments that would work to increase future profits. This is basic market mechanism. This is also why NO OTHER COUNTRY in the world has mandatory CSR.
Primary effects – skewed recipients
Say you did not have the CSR and simply distributed the net yield of Rs 25,000 Cr/yr to shareholders as extra dividend. Now those shareholders have extra money they can allocate to their favourite philanthropic activity. Many will allocate it to Hindu temples , others to Churches. Some will allocate to RSS – some may write a check in favour of, shudder; a non Idea of India think tank. The point is the masses decide the allocation and some of it will be for unpopular causes in the eyes of the “in crowd”. If you look at the law as well as the mission statements of these “foundations” - they explicitly rule out donating to religious trusts and those that dont sign up to ‘equitable society’ as defined by them. Here is a F.A.Q.
We do not partner with religious institutions or political parties, or provide assistance to individuals. We support apolitical and non-religious non-government organizations (NGOs) that are committed to the cause of an equitable society. FAQ from Infosys Foundation (not picking on anyone – everyone has the same rules)
Words like Equitable Society are controversial because they never tell you what it means in concrete terms. All we know is that in their worldview an equitable society isnt one where the profits are returned to investors.
To sum up , the skew is that recipients such as temples, village rituals, Hindu schools who would otherwise be beneficiaries of normal everyday people are now cut out of the loop. Secular and posh NGOs who would never be the recipient of normal everyday donors are now rolling in crores. This is an abhorrent and unacceptable skew. I do not even want to get into the outright communal and vitriolic campaign by the likes of Ram Guha who doubt the Hindu Societies willingness to be philanthropic.
Secondary effects – social status
With CSR money, an entire galaxy of corporate angels are born. They are able to project their philanthropy far and wide, in slums and forests, from billboards where Ambanis and Tatas and Mittals beam down on you hugging poor kids. They are almost the new government. They are accumulating enormous social and dare I say, political capital. To the extent it comes out of the 2% mandatory CSR it is social heroes created out of stolen money. Sooner or later, these larger than life angels will back political parties or think tanks and their aura rubs off on them. Worse they can condemn certain other types of thoughts and guide the dissent that way.
A tax is better
Contrary to what you think a 2% extra corporate tax is better than Mandatory CSR. An extra tax can help rationalize bring down, overall corporate tax rates for big and small corporates. Once the money is in the govt kitty we atleast have democratic institutions that determine how they get spent in accordance with wishes of the people.
The corruption argument is not worth responding to, because it would mean all income tax is bad and we should be allowed to buy gravel and tar with our money if we want public roads.
There is no principle behind the 2% number either. Why not 1% or 5%? Clearly companies with large social and environmental impact such as Mining, Meat Packing, large consumers of water, need to spend way more than 2% to get the folks in their impact area on their side.
Anyway you look at it. This mandatory CSR disrupts market mechanisms, creates uncertainty, skews philanthropic allocations, introduces more regulation and compliance, endless nuisance of NGOs bickering and fighting with each other, extortion.
But there is one bright spot. It applies to all religions. C’est la vie.
There is a commotion right now on Indian Social Media following a story in the Open Magazine on Love Jihad. Some folks dismiss the whole thing as laughable and others consider it to be a criminal act. Here is my take on the matter.
First : What on Gods Green earth is “Love Jihad” ?
Any random Muslim – non-Muslim love affair or marriage is not called a Love Jihad.
One or more of following additional elements seem to be required for a Hindu Girl- Muslim Boy to be termed as Love Jihad 1) an element of deception 2) the girl is usually not one who is a highly educated or urban type 3) there is alleged conversion to Islam
In addition to the above three, there is sometimes, but not always an alleged conspiracy angle. The charge is that a group of religious leaders sponsor young men with leisure, money, accessories, and training to fall in “love” with unsuspecting Hindu or Christian girls and get them to convert.
Two parallel legal systems & the contract of marriage
India has a unique system of personal law. Muslims are allowed to “register” (in a sense) their union under the Shariah Law and Hindus under the Hindu Marriage Act. There is also a “Special Marriage Act” popularly known as register marriage which couples from any religion can use. For simplicity, I am omitting Christians/ Sikhs etc – even though Christians in Kerala have been complaining about Love Jihad.
Irrespective of the route used, the act of Marriage should be viewed as a legal contract to distinguish it from just cohabiting. Furthermore as with any contract, a marriage contract bestows both husband and wife with rights and duties.
In the Hindu and Special Marriage Act the rights and duties of the husband and wife are more or less equivalent. As per the Shariah Law they are not. The rights of the wife are dramatically lower in the latter. In a grand compromise our secular state has created two parallel systems. This was done to chicken out of a tough judicial and political situation like most of the Idea of India laws. But nothing is free.
Transiting legal systems
Given the two legal systems , one of which has dramatically reduced rights of the wife – the conflict moves to the interface between the two. You may notice that instances of Love Jihad always involves a non-Muslim girl crossing over. On paper, a Hindu Male marrying a Muslim Girl can convert and acquire enhanced rights vis-a-vis the girl. This appears to be not very common as the Muslim girl who is about to marry outside would seek parity and opt for the register marriage.
A lot of people are pointing out the “forced conversion” angle. That is not the main point in my view.
See, under Shariah Law both the man and woman have to be Muslims. So the real issue is that in all cases of Love Jihad - the man is forcing the girl to get married under the Shariah Law instead of the Special Marriage Act. The conversion is just a formal requirement - there just cant be a Nikah (i.e the Maulvi will refuse to conduct it) unless both the participants are Muslim.
So you may rightfully ask. Whats the big deal ? If the girl WILLINGLY marries – what difference does it make to anyone what law that is used to solemnize it ?
Here is the issue in my view:
When a Hindu girl gets married under Shariah Law, she waives her existing rights . So even if she consented – was it an informed consent in the sense that she voluntarily waived her rights ?
Matter of informed consent
The girls that usually show up in Love Jihad stories dont seem to be of the type that would know what rights they had to begin with. I don’t have any proof but I guess a lot of these young girls they would be just thinking that the marriage ceremony is done in Muslim style while they retain all their rights. They agree to go through the marriage routine then discover that the guy is already married or is getting ready to marry another girl. Pregnancy and childbirth complicates things further because simply walking out is easier said than done under these circumstances. This is a common thread to all these stories. Therefore, the “deception” part of Love Jihad seems to related to the loss of rights.
It would be ludicrous to ban cross religious marriages. I am not even remotely suggesting such a thing. But to work around this issue of rights, I propose the following.
- Hindu girls marrying under Shariah (after converting of course) must be either required to sign or atleast informed about exactly the rights they are losing. I prefer the waiver form to be direct so that these rural girls understand whats going on. Something of the kind : Do you agree to waive your right that your husband does not need your consent if he wants to marry again ? Do you agree to waive your right to divorce procedure ? etc
There are plenty of Hindu girls who marry Muslims and lead happy lives out of love and out of their own informed choice. This post isnt about them.
It is obvious that this is not a zero-sum game. An act of Love Jihad does result in a net loss of rights. Therefore we have to put up checks to ensure that information about the loss of rights are readily available to these women. Before they make the biggest decision of their lives.
Today on Aug 14 2014, the new Lok Sabha passed a historic constitutional amendment bill that would put an end to the controversial “Collegium” system of judicial appointments. It is expected to clear the Rajya Sabha too easily given that all parties including the Congress support it. Recent revelations by maverick Supreme Court Judge Markandey Katju seems to have lent a sense of urgency to this. The bill text is available at 121 Const Amendment Bill and NJAC Bill 2014
Here is my take on little discussed aspects of the bill.
Competing visions – why it is crucial
The biggest issue I have with the new commission is the presence of two “eminent” persons. But first let me explain the background situation.
Here are three axes you can plot a candidate on. For example : Incompetent and Corrupt with a Wrong vision would be the least desirable.
- Corrupt vs Honest
- Meritorious vs Incompetent
- Right Vision vs Wrong Vision
The first two are qualities we can all agree on ; although there is severe pressure to weight merit downwards using sectarian considerations. This leads to the explicit quota for SC/ST/OBC/Minority/Women for the one slot which would deny a more meritorious candidate not in these categories.
The third one regarding vision is extremely important and something that needs more elaboration. Perhaps I should call it “Idea of India Vision” vs “Rule of Law Vision” instead. You can have an extremely competent and honest candidate such as Gopal Subraminum but who are committed to an ideology that is ultimately hurtful. I think a lot of folks agree that over the decades the doctrinal development of our judiciary has led to the following situation.
- Court generally steps aside on fundamental rights issues by adopting a very low “baby rational basis” standard of scrutiny.
- A positivist legal system is encouraged. This means that whatever the state decrees is law and there can be no moral or immoral, logical or rational arguments. This is borne out by the fact that there has been no major confrontation between the court and the executive in the last three decades.
- The governance trend in the last decade is towards an expansive positive rights regime. Various Right to XYZ are pass scrutiny easily – even if they impinge on fundamental rights. But as with any regime of positive rights (like the USSR) the state can deny these to any class of citizens at will. This is evidenced by the unanimous constitution bench judgment in Pramati vs Union of India (the Right to Education case)
- Having waived its right to a stricter level of scrutiny, the courts job now is much more mundane. It counts on a system of PIL (Public Interest Litigation) to make the machine go. Through these PILs, they are now left to decide bone-on-bone interactions and anomalies brought to it by injured parties from these positive rights programmes. The best illustration is the flood of Delhi Nursery Admissions cases in both the Delhi HC and the Supreme Court. Striking down the original regulation by Jung would have been the alternate route.
- This status quo has extraordinarily weak support in the constitution. It is largely brought about by a culture of activism and requires a particular intellectual environment and media co-operation to thrive.
- This status quo in my view is undesirable. It doesn’t matter if the judges are selected via the collegium or by the new NJAC. You are likely to have the opposite view and that is okay.
- I would support a system that has a better chance of turning the tables on the status quo.
- A constant threat to the status quo even today is a couple of mutant “first principles” judges can upset the applecart. Even judges who are not necessarily articulate but who rule on simple principles can cause a lot of grief to this climate. See my post on Justice Altamas Kabir whose NEET judgment caused quite a rumble – although it was the correct one.
- It is within the realm of possibility that the two eminent people will K.O any such threat to the grand positive rights driven sectarian state by filtering mutants upfront. Just the presence of these two folks might act as a strong pull to junior judges and advocates who harbor career prospects to fall in line.
The two eminent people who together can veto any appointment is a loaded gun. As per the law passed yesterday they are not accountable to anyone. The 121st Constitution Amendment Bill does not prescribe any qualifications for these people either.
Right leaning people should realize that while it is true that you and I can contest any appointment to these eminent people slots. But the activist / NGO complex is far more organized, better resourced, politically connected, and more importantly media savvy than we will ever be. So their favourites are going to be hard to resist and ours hard to appoint. Suddenly you have no symmetry – what was 1:1 in the collegium (both us and activists locked out) is now 1:1000. A majority of appointments to these kind of NAC civil society bodies have been contested all the way to the Supreme Court. The SC even rejected the first batch of civil guys and girls to the NCPCR (NAC inspired Child Rights Watchdog). It was not due to any principled stand on transparency but due to Delhi NGOs and activists fighting among themselves through PILs.
I am also not shy to talk about the other issue. The new quota baked into the constitution that one eminent person belong to the SC/ST/OBC/Minorities/Women is poorly drafted and sure to cause endless strife. Here are my objections.
- There is no support for reservation for women and non-Hindus in the constitution. This is downright atrocious and bound to cascade into all other quotas as well.
- The text is not clear – the constitution says ONE eminent person must be from the selected communities/gender. But that is not very useful. Is it ATLEAST one eminent or EXACTLY one eminent from these groups ?
- This kind of precision is very important because you avoid months and crores in fees of litigation later.
- How it is to be distributed ? If it is by rotation – what is the order ? This resembles the roster point system.
- Say you select the most eminent legal mind Fali Nariman – does he fall into the minority category or due to his scholarship take the open slot. If he takes the open slot ; does it not lock out other Hindu Unreserved Males such as Gopal Subramanium unfairly ?
- Does the women slot just favour women or those women who explicitly fight for women ?
- Say an open category slot opens up after X years? Will everyone including women be considered for that slot ? We have learnt nothing from decades of hairy litigation on these kinds of issues in public appointments.
There are other issues such as vetos. One is not sure if the two eminent persons are appointed by consensus or by simple majority. Both have major issues
- If it is by consensus – then Mallikarjun Kharge can stonewall and force an average middle of the road candidate instead of a brilliant principled judge.
- If it is by simple majority – then opposition has no voice. Modi and Lodha can agree on eminent persons and push it through. This was seen in Lokpal, CVC appointments where BJP’s Sushma Swaraj was humiliated.
As I was typing this up – it seems like Fali Nariman is going to challenge the act and amendment. We shall see what happens in the days ahead.
The essay itself is a template activist manifesto, celebrating such wild things as PN Bhagwati’s breathing life into Article 21, “landmark decisions such as ” Unnikrishnan, maybe even Mohini Jain. Standard trajectory but what really stunned me was that the article seems to build up to the following punchline.
Wait! That cant be right. If Arun Jaitley indeed cut MHRD allocation by 76% – he would have been hauled over coals by now. I decided to cross check the numbers and sure enough it shows up as plain wrong. I think the Think Tank as well as The Hindu just ran the article in their activist excitement without basic fact checking. Let me break it down.
Lets check the facts (PDF).
Holy ravioli ! Modi slashed education by 44,200 Crore. !!
Let just look at the other allocation document and we have the answer.
This is why you need to read the footnote.
So lets do the maths again.
Modi actually INCREASED MHRD allocation by 50,694 Cr – 44,220Cr = 6,494 Cr. The whole piece from the Think Tank now lies deflated.
Hope The Hindu issues a clarification and pulls the piece because everything else in the piece leads up to this incorrect factual claim.
The Jallikattu judgment was the culmination of ignorant posh activism by PETA India , followed up by muddled often conflicting arguments from AWBI and Jairam Ramesh. Now, Hindu villagers in southern Tamilnadu and their beloved bulls are in for dark days while the state has prepared a review petition.
Today, we see the same pattern repeated with the Madras HC effectively banning Sevalkattu (Seval = Rooster in Tamil) – an ancient cock fighting game, prevalent in southern Tamilnadu, Karur, and Salem districts.
A petition filed by one S. Kanan on April 4th plead the holding of cock fighting in the Arulmigu Muniyandi Temple in Virattipathu.
The petitioner requested permission for the event in the local Muniyandi temple, which was denied by a Division bench of the Madras High Court. The logic is identical to that of the Jallikattu ban. Sample this:
Right to exist at par with human beings is conferred upon animals through legislation. When the rights of animals are infringed, it is only through human intervention that such rights could be extended to them. It was such a case where judiciary was fit to intervene for “poor animals which could not plead and initiate action by themselves.”
The court said, “After all, we human beings are also one of the creatures of God along with other living creatures in the world. Though man is considered to be the supreme form of God’s Creature, whether the supreme creature has got any right to injure intentionally, torture deliberately, cause pain and mental torture make the birds to fight unnecessarily? Certainly not”.
The basic argument is that a Speciesism standard be applied to interaction with animals. I have explained why this is approach is untenable in the Jallikattu blog. The reason this is unsustainable is worth repeating.
If animals have same rights as man, then the doctrine of necessity should also be the same as that for man. Today, one man can legally kill another man only in self defence. And that must be the same rule for animals.
In both the Jallikattu and the Cock Fighting cases, the Speciesism standard is mixed with an inconsistent reading of the Doctrine of Necessity that includes slaughter and pre-slaughter conduct – such as transportation and preparation for slaughter. It is bizarre because an exact analogy would disallow one human from chaining another, except if the final purpose of the chaining is murder ! You have to drop species-ism for this to make sense.
There is plenty of online material for you to research on Google. I just want to quickly state some key points here.
- The Sevalkattu rooster is an exotic type of fowl ; there are about 6-10 different varieties which have an immediate danger of extinction pursuant to this ban.
- Like the Jallikattu bull, the cock is a status symbol. The breeders house them in luxury typically in a large dog kennel. They are fed dry fruits, cashews, and other high nutrition products.
- They are trained for both strength and stamina. Swimming exercises are also given.
The actual event could be a bit hard , but I hope you are able to to zoom out and see the large picture.
- The actual game is usually a deathmatch. The winner takes both the cocks – generally the winning cock is treated medically and recovers. The losing cock ends up as biriyani.
- The well organized ones – restrict the fight to about 1 hour. So there is a possibility of a tie.
- A winning cock is treasured and used for breeding and usually lives out its natural life of about 10 years.
- The interaction between the trainers and the animals are typically Indian Hindu. Urbane recently westernized may not understand how one can be intimate with many of the cocks being assigned names and therefore having an individual personality. You may ask, C’mon now – Is this a “necessary” conduct ? Who are you and I to decide? Is burning wood and ghee and rice in smoky polluting Yagnas a necessary conduct ?
Granted that unlike Jallikattu , where the bulls are NOT EVEN INJURED, this event results in one of the cocks dying. Even so, it cannot be denied that the roosters live a life of inherent dignity and die a death worthy of a warrior.
Lets turn our attention to the life of the Sevalkattu roosters cousins.
The life of a broiler chicken
Have you wondered why the meat is called “chicken” in stores and not “hens and roosters” ?
That is because the broiler chicken you eat is actually an immature baby hen/cock. They are only six to eight weeks old. Compared to a Sevalkattu rooster who is probably a 3-4 year old young adult with a good chance of living out his natural life.
- Broilers parent stock introduced by US/UK companies to India
- Designed to be a genetic mutant and unviable bird. Rapid growth with accumulation in thigh and breast
- Debeaked and declawed at birth.
- Confined in tiny cages stacked on top of one another indoors in warehouse like settings for the entirety of their short lives.No room for any natural behaviour including simple pleasure of spreading their wings.
- Rapid growth of fat tissue without bone development – means they cant walk for more than 4-5 steps. Observe this at your local chicken shop this week.
- In India unlike the west, slaughter occurs close to consumer. So they are transported in the most horrendous and unhyeginc conditions. It is a common sight in India to see jam packed chicken lorries parked out in 42-deg sun with stacks of filthy cages. No food no water.
- The last mile is usually on a bicycle hanging upside down, legs broken, and tied up to front and rear. Getting their faces rubbed against the sidewall of tyres.
I am not a Indian Veggie Nazi. By all means, lets enjoy our Tandoori chicken, but when you PROHIBIT age old sports and a kind of pagan interaction with animals – you’ve crossed my line.
Since we are pretending that fowls are humans.
Ask if a broiler chicken if he’d like to be a Sevalkattu rooster ?
A great tragedy has befallen innocent Jallikattu bulls in India.
WARNING. NOT AN EASY READ.
Egged on by juvenile animal rights activists, their enthusiasm captured and curated by vested interests, and finally condemned by an incoherent judgment with strange reasoning. Innocent, magnificent, indigenous bulls who have been the most pampered beasts in India for the past 1000+ years now have no reason to live. Their raison-d-etre’ has been snatched away. This is a great example of legal activism gone spectacularly awry. This is my 471st post on this blog, and the most difficult one for me to write.
A backgrounder of Jallikattu
For those who have no idea what this event is. Stop right here and read my 2008 blog on it. “On Jallikattu” and some misconceptions in this comment. I had blogged about it again in 2009 following another SC ban. Have you read the post? If you’ve read it, all you need to take away for the rest of this article is the following : The bull isnt killed or injured at the end of the event. Set aside the “torment” during the event itself for now. We will get to it after we analyze the judgment.
May 07 2014, a black day for the bulls. Supreme Court bans the sport (Judgment)
A 2 judge panel of the 30 judge Supreme Court of India on May 7 essentially declared Jallikattu to be illegal. The actual “legalese” isn’t that important but for completeness lets see what that is.
- For the past few years, Jallikattu was allowed under the Tamilnadu Regulation of Jallikattu Act 2009 (TNRJ) which prescribed elaborate rules for conduct of the event. This included mandatory presence of veternarians, videographing, requirements for barricades,. involvement of NGOs, permission from the collector, registration of the bulls, etc.
- The other act set up as a conflict is the PCA (Prevention of Cruelty to Animals Act 1982). The operative pieces are Sec 11 (1) (a) which proscribes such catch all things as “kicking, beating, ..” and Sec 11 (1) (m) which proscribes fighting for entertainment.
- The judgment essentially says – the PCA when it comes to Jallikattu is of such an absolute nature that no amount of regulation (TNRJ) can possibly assuage it. Therefore the state legislation, TNRJ, has to be killed and the widest possible reading of PCA must be applied to this particular event.
The most frustrating part of the argument is the incoherence and multiple lines of attack each unable to stand on its own. The two winners are
- CHARGE: Jallikattu has no cultural or historical significance to Tamils at all (AWBI pp4) BUT LOOK even if you prove otherwise it doesnt matter because PCA is a welfare legislation by parliament and can squish culture and religious traditions of this community.
- CHARGE: Jallikattu bulls are subjected to great torture and physical injury BUT LOOK dont bother proving this to be false. Our objection is now on the basis of “Speciesism” – Bulls cannot be humiliated and mentally tortured in this manner.
So these charges are just distractions. You can spend all your effort demolishing these strawmen, it is of no use to the final outcome. One of the critical points is the following – the duration of the event. One would expect that a searching scrutiny would necessarily take into account these facts.
- Whatever you think about the biting, pushing, kicking, punching of the bull. No one contests that the actual event lasts only a few minutes.
- The pre Jallikattu confinement of the bull could last a couple of hours as each bull takes its turn exiting the opening (Vadivaasal) The post Jallikattu harassment lasts a few minutes until the owner/trainer is able to lasso the bull and secure it.
- No one disputes that the rest of the year 364 days, the bulls lead a kings life.
- Here is the courts response to this. Look at the standard here – it is no longer about physical injury or even temporary mental stress due to fight/flight responses.
Physical abuse is not the only kind of injury that is illegal and hurtful. Mental abuse is also amongst the worst kind of abuse as it leaves a lifelong mark on the mind. It is a known fact that victims of accident, crime or disasters recover from their physical injuries in certain time but mental injuries remain etched for decades, play havoc in day to day life. Animals, irrespective of the fact whether they can express it or not, in this particular case were seen going through the same shock and terror as a person goes into in a hostage situation.
If you unravel the judgment for the most plausible standalone reason for the ban, it is found in PP 59 – It is called “Speciesism” – this elevates animals rights to that of humans.
Speciesism is also described as the widespread discrimination that is practised by man against the other species, that is a prejudice or attitude of bias towards the interest of members of one’s own species and against those of members of other species. peciesism as a concept used to be compared with Racism and Sexism on the ground that all those refer to discrimination that tend to promote or encourage domination and exploitation of members of one group by another.
In short, species-ism is like racism. Would you allow whites to chase blacks, or upper castes to chase tribals, in this manner for even a few minutes ? It is quite astounding that this extreme standard, is sought to be applied to Jallikattu. Even if you grant this to be the new judicial standard for animals, this is sought to be subjugated by the “Doctrine of Necessity”. I’ve been researching on animals rights for a few months now – one of the cornerstones of speciesism is non-slaughter and its main proponents are vegan activists. The only exception for killing an animal under the doctrine of necessity is in self defence. Exactly the same as the doctrine of necessity as applied to humans. So somewhere there is a misunderstanding of the core concept of species-ism.
It is no ones case that taking a bull to Kerala in a packed truck and slitting its throat and eating beef fry is necessary to live . So if you can work through the arguments, you will find an incoherent position that is at odds with other laws and practices. An anomalous situation has emerged where you have a mixture of standards – extreme cruelty tolerated under the same body of laws that trumpets “species-ism” as the standard for other kinds of activities.
Facts – just for the record
As I have stated above, there is little use debating the facts of PETA and AWBI because they are strawmen. Even if we demolish the misinformation campaign, which is childs play, we still cant get over the speciesism standard. But for completeness and to help in a review petition – let me address the facts.
Cruelty to animals
Man and beast have intricate and diverse relationships especially in India. There is no one correct way to connect with an animal. Dont ever, ever, ever, pretend that you even understand to 1% the emotional bond between a Jallikattu bull and its owner. Dont ever, ever consider your urban westernized boundaries are superior to his rural Hindu Tamil ones. Dont ever, ever, think that your bond to your dogs Tommy, Julie, or Bobby are more “proper” than his bonds with his bulls Mayandi, Karuppu, or Thalai.
Urban, recently westernized Indians, may never understand what it is to rub your face against the head of a bull, while you can feel its power rippling through its muscles. I certainly dont, but the difference is I acknowledge that the other people do. Pinching, poking, pulling the tail can appear to be offensive, and yes can cause pain. But that isnt the whole picture now is it? You have to consider the whole life of how the bull, from when it was a cute little bully calf has been treated and prepared for this day. So what should a court do when two parties have dramatically divergent views of acceptable conduct. There has to be a way to minimize the subjectivity of the situation. I suggest that we should use a black box approach for a more logical way to resolve the dispute.
Bulls In —-> [[ BLACK BOX W CHARGES]] —–> Bulls Out
You take the sum total of all the charges , twisting, pulling, biting, punching, shouting, putting liquour, smearing lemon, etc and put in in a black box. Then you observe the bulls that come out. If they come out tattered, covered in blood , missing a horn, broken hooves – you have a case to look deeper. In this case, the bulls come out shining ! A fair number of bulls, the most aggressive ones, literally have no hands laid on them. So the logical conclusion of such an empirical analysis is obvious - there is no evidence of physical harm – mental agony is hard to measure in humans, let alone bovines. So you err on the side of freedom and let the event pass.
Now lets turn to the facts presented by AWBI.
Incidents of biting tail, twisting, poking with stick, irritants. These are used to incite the bull and get it out into the arena. What % of bulls were bitten ? Were bulls bitten as a custom or only when they refused to enter the arena? How deep were the bites ? As a result of the twisting how many bulls had their tails broken? These are critical facts that havent been presented. They have just documented existence of these practices.
Roping, making bulls stand, move sideways, denial of shade. Once again go back to my points in the last section. Is this the judicial standard ? In slaughter shandies bulls stand in the sun for hours before being selected by an agent. Every single cow and bull is roped in India. Bovines graze in the sun and rain naturally too. This is just silly.
Death and injury to bulls Should be the clincher, yet stunningly little has been offered here. Two, I repeat just two bulls. out of 500+ participants were said to be injured by falling into a agricultural well. They have only documented ONE incident of a bull getting killed . But the details reveal that post the event in Alaganallur, the bull ran through the town and collided with a bus. This is in no way connected to the event itself.
The point is none of the offenses are integral to the event itself and are therefore open to regulation.
We can go further into the facts - but it is a futile exercise.
Slaughter vs Speciesism - is coherence possible ?
The judgment is incoherent because the speciesism standard will fail spectacularly in almost all other judicial cases involving interactions with animals. But nowhere is it starker than the issue of slaughter. The activists are nowhere to be found when it turns out that post banning of Jallikattu some bulls are loaded onto trucks to the kill floors of Kerala.
This is May 2014 - the next Jallikattu is seven months away. Even if you plead guilty to all of the charges brought forth by the activists and upheld by the court. Here is the truth. If this ban wasnt in force, some of these bulls would have lived a kings life for a full seven months before the “fateful day where they will be pulled and punched it for a few minutes“. Slaughter is also a game. The outcome is pre-determined. Once a bull gets on that truck to KL there is no escape from the blade. These activists are squarely responsible for the murder of these animals.
Animal activists in India, probably due to ignorance, young age, or imitation are misguided. They do not recognize the completely different connection between the Hindu and the animal kingdom. This is not America. We have much to be proud of in the way we treat our animals. Our livestock may roam the streets, perhaps in squalor in solidarity with their human counterparts, but we do not do feedlots and veal crates. A majority of our cows are still impregnated by sex with real bulls not by a long steel tube like in the west. Our milk procurement still depends on milking by hand, not in giant rotary parlours.
No cow or calf or bull, and I do mean not a single bovine in the USA will ever be touched by a human nor know a single moment of human kindness in its entire (but brief) life. Tell me, is this the case with Jallikattu? Every one of these bulls have names – they respond to their owners like your kids do. The owners give them the best food, take them running, give them swimming training, teach them to dig in their heels and work the ground with their horns. This pop activism has unfortunately taken advantage of a weak jurisprudence and caused tremendous damage.
Why is slaughter regulated ? Should we not ban it applying the speciesism test?
In the spirit of the judgment, has anyone talked to a bull in one of the trucks that go to the slaughterhouses in Kerala? There is a giant corpus of photo and video evidence about the most inhuman practice of cattle transport in India. To anyone with a few brain cells, it is obvious that the PCA Slaughter and Transportation Regulation is completely ignored and is a total failure . We mostly rely on private enforcement – where folks like the Superstar BJP MLA from Hyderabad Mr T Raja Singh and Dawn Williams team in Chennai chase and trap these trucks under great personal danger.
How come the TN Regulation of Jallikattu is struck down but it is considered to okay the PCA Slaughter rules ? This is what the judgment has to say :
P 31 : Clause
(e) to Section 11(3) permits killing of animals as food for mankind, of
course, without inflicting unnecessary pain or suffering, which clause is
also incorporated ‘out of necessity’. Experimenting on animals and eating
their flesh are stated to be two major forms of speciesism in our society.
Over and above, the Legislature, by virtue of Section 28, has favoured
killing of animals in a manner required by the religion of any community
There is a feeling that this talk of speciesism just applies to one type of cultural tradition. Other communities are simply allowed to tie the four legs of an animal and slit its throat while it twitches to death. This is certainly not the doctrine of necessity.
Finally the judgment quotes Ms Temple Grandin – the famous American factory farm slaughterhouse designer.
“The single worst thing you can do to an animal emotionally is
to make it feel afraid. Fear is so bad for animals I think it is
worse than pain. I always get surprised looks when I say this. If
you gave most people a choice between intense pain and intense fear,
they’d probably pick fear.”
Scroll to the top and look at the picture on the left of buffaloes jam packed enroute to crude slaughter in Kerala - then look at the bull on the right. Which has fear ? Which has majesty and honour intact ?
What next ?
A review petition can be filed stating these facts. The PCA Act can be amended to either specifically elevate and exempt Hindu traditions to the same level as minorities or to bring parity by extending the doctrine of necessity to ban all slaughter. Unlike the UPA the new Modi govt is supposed to be receptive to Hindu interests. We cant blame others anymore.
The vexed issue of Delhi toddlers has apparently been resolved. The Supreme Court has allowed the petitions of 24 Inter State Transferees thereby ending the quarrel in front of it. A few sample media reports sharing the relief of the majority lottery winners.
With the Supreme Court clearing the decks for nursery admissions in the Capital (India Today)
Schools and parents heaved a sigh of relief on Wednesday (Times)
In a big relief to hassled parents, the Supreme Court today cleared the decks (PTI)
You wont read this anywhere, but let me explain why you, even if you are not impacted by Delhi admissions, should sit up like you’ve been jolted by a 440V line. The case may be about pre-school toddlers but it exposes like few others the grand weaknesses of our institutions.
For those new to the issue, this is what happened. The Delhi Govt announced that starting from 2014, all private non-minority schools were to have no autonomy with regards to admissions. They had to follow a system of quotas and lotteries to select their intake. Now, this isnt just a fair sweepstakes like you would expect from a slot machine, rather this is like giving everyone a pair of loaded dice and letting it roll. The govt would assign weights to your kids “worth” depending on whether the child is 1st born, had either parent go to the same school, was a girl child. One of the weights was Inter State Transfer (IST) for kids coming in to Delhi from other states. As crudely intrusive and cringe worthy as this scheme is, the rules were nevertheless notified and lotteries held. After the results came out – they found a large number of IST kids who had won seats due to them being weighted above the general (zero weight, euphemistically called 70-pointers) category. Citing fraud, the Delhi Govt abolished this category and that was upheld by the Delhi High Court. The whole process was stayed pending a decision on what to do with the IST kids who secured seats. Of the 2925 students who won under the category, 24 IST kids appealed to the Supreme Court. This is the background story. Now lets get to what happened yesterday.
The order from the Supreme Court came down yesterday. The Honorable Justices ruled in favour of the 24 children and granted them relief. But -
P21 .. However, it is made clear that this order would only enure to the benefit of those who had approached the Court. It would certainly not extend the benefit to those who had not approached the Court or might have gone in slumber
Page 12 CIVIL APPEAL NO.5379-5380/2014
The Honorable judges had given a hint of this over the last weekend. There were several reports that they were going to cap the relief to this group. Here was some coverage of their thought process.
“You can’t be a fence sitter and wait what medicine was being prescribed and seek to avail it.” Justice Dattu said “relief will be confined to only those who have approached the court till yesterday (Thursday)”.
Source : NIE
From the procedural side, the supporters argue that since this was a private writ and not a Public Interest Litigation write, the SC was correct in restricting the order to those who approached it. That is well and good, but the same process must be made available to all.
When a single person or a group approaches the court with a private writ, it would make enormous sense for the court to immediately discover the following. Does this involve a question that is going to affect the public at large and not just the bunch in front of us ? In this case, that was done, the honorable justices even scolded the Delhi Govt for arbitrarily changing rules of the game after the game was played.
issued in the midstream. In our considered opinion, it was not permissible for the Administration to alter the basis of admission after the admission process had started and further having participated in the selection process the criteria for selection could not have been questioned by unsuccessful participants
Having identified that the source of the injury was arbitrary rule changing and recognizing that there are a thousand others with the exact same injury, it is stupefying that the court would only provide relief to this group. And ban others.
A question of equity
The funny thing is there are a million NGOs in India who talk non stop about equity. The worst form of equity is access to justice. One cannot assume that those who did not approach the Supreme Court were “idle, fence sitting, twiddling their thumbs, lazy, or otherwise deadbeat parents”. A more likely explanation is that they just did not have the awareness, the lawyer circuit connections, or the MONEY. You have to remember that all these people are new to Delhi who are just learning how to get home from work.
Needless to say, the hundreds who are now stranded are aggrieved and are mulling legal options now. A truly tragic situation.
- On review, If the Supreme Court or the lower court grants relief to all, even those without the means to hire expensive lawyers, then we are back to square one.
- If not, a grave injustice of selective relief will take hold as a judicial precedent. Choose your poison? What if a future arbitrary law impacted a million people and a small subset group got a private relief, can we pull the ladder ?
Real minority rights
It is distressing to see the impatient behaviour of the parents who won the lotteries and the sense of entitlement of those with equally dubious “alumni” and “2nd child” points. The hapless IST children who cant claim either of these two gold/silver/bronze govt weights, are seen as villians who are out to delay their own kids school year. This trampling of minority rights happens only because we have been trained to only identify “minority” with Christians and Muslims and not as other kinds of groups.
So whats the real problem ? I have overran the limit for this blog, but the Delhi Nursery situation alarms me to no end. What they are talking about is replacing natural endowments including differential wealth, education, and autonomy with govt assigned rigid weights. Why must all 2nd children be admitted before the first only child is even considered ? Why must this be such rule that if a school violates it they go to jail ? Why alumni points if you are talking socialism ?
The unelected Delhi Administration is driving the school system into a position of immorality. The net result will be philanthropists vacating this space and a drying up of whats left.
Filed under: Lost causes.