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.
Indian historian Ram Guha has a new Op-Ed out today titled “Congress beyond dynasty” . It follows a trend in Indian intellectual circles to want to relegate Sonia and Rahul Gandhi to the sidelines after having delivered power into the hands of more “intellectual” leadership.
her son Rahul, has done little in his decade in politics. He has scarcely been visible in Parliament and shied away from ministerial responsibility. In his rare public speeches, he has not offered a single new idea on econo-mics, politics or governance, preferring instead to praise his father, mother, or grandmother.
Congress beyond Dynasty – Source TOI
That isn’t completely true of course, Rahul has been extensively touring the country and has clearly articulated his ‘positive rights’ based economic framework. What is being missed is – the first task of any political party is to win. PV Narasimha Rao almost ran the Congress into the ground. Look at them now under Sonia. They have now ruled in the Centre for 10 years, they rule alone in 15 states, and except TN have the whole of peninsular India under control. What does this tell you ? That only a family can control the Congress just like at the lower levels Stalin s/o Karunanidhi, Akhilesh s/o Mulayam down to the local MLA level. The larger question is why are we stuck with dynastic rule.
The reason why dynastic politics has taken hold lies elsewhere, much closer to Guha’s hero Jawaharlal Nehru. It lies with the so called “Idea of India”.
It is clear India hasnt evolved to a modern political order. It is still stuck in what Francis Fukuyama calls a society based on “kin selection and reciprocal atruism” rather than a meritocratic order. One in which strangers can enter into secure contracts with one another. An order where the security of the contract is guaranteed by Rule of Law rather than understanding and accommodation with a large number of factional leaders of groups. In India, the old rule that the ‘son shall honour the promises of his father’ is the glue that is holding things together at all levels.
What happens over time is a pyramid of kinship based trust emerges. Every families position and perks are guaranteed by another family at the next higher layer. And every large economic enterprise needs the blessing up and down this chain. Some jostling does happen due to marriage and family infighting but this is remarkably stable overall. If you inject an “intellectual” outsider to this pyramid at the very top, say Jairam Ramesh or a Tharoor. All the equations below have to be re-calibrated. This destroys the stability of the entire system and challengers start appearing.
What about BJP ?
Is the BJP sectarian ?
In an essay published on the eve of the 2009 general elections, i argued that India needed a BJP sans the RSS and a Congress without dynastic politics. A right-of-centre party devoid of religious prejudice and a left-of-centre party not beholden to a single clan are necessary for the further evolution of Indian democracy.
it remains the only all-India party and because they cannot abide the sectarianism of the BJP.
People are going to start wondering how is it that the BJP is sectarian or harbours prejudice against any religion ? It you look at the body of evidence Congress is the sectarian party as it is passing all kinds of sectarian law and religion based appropriations under the 15-point program.
Truth is the BJP, warts and all, is closer to a modern Rule of Law party than the Congress. The fewer the goodies that groups can corner for themselves, the more uniform and predictable the law, the lesser the pull of kinship based society.
On the other hand, if you had an ill defined Idea of India state where “pluralism” calls for a pro-rata distribution of goodies to groups in proportion to intensity of political participation – you will promote kinship as a stronger guarantee.
I vote for “India” without the “Idea of”. This is where the solution lies.
The new anti superstition bills in the Congress ruled states of Karnataka and Maharasthra constitute one of the most audacious attacks on personal liberty, freedom of speech and religious expression. Under the guise of scientific social reform, it will perpetuate some superstitious practices while outlawing others.
The Congress government in Karnataka is now mulling over a draft law called Karnataka Anti Superstition Bill 2013. It was prepared by the Centre for Social Exclusion and Inclusive Policy of the National Law School on invitation by the state government. This law follows close on the heels of a similar law passed in the neighboring Congress ruled state of Maharashtra.
The experts at NSLIU have produced a concept note and a draft bill. The draft bill details the structural aspects of the law and the concept note provides the ideological and legal foundations. These two documents form the basis for this post.
The law in a nutshell
The trajectory of the law follows the well trodden path of stretching Article 21 (Right to Life and Liberty) of the constitution to cover such things as “Right to a life with dignity”. An innocent directive principle in Article 51(a)(h) which calls for “scientific temper, humanism and the spirit of inquiry and reform”, which should ideally call for increased investment in science is now reconstructed to ban certain types of private conduct as being unscientific.
Until now, the cover of “Life with dignity” was only used to erect a regime of positive rights. This device along with the usual literary flourish has been used for an ever expanding list including “Right to Bonus/ Pension/ Leave allowance” , “Right to squat”, “Right to medical treatment abroad”, “Right to Information”, “Right to food”. Positive rights are a claim by citizens on the state – these typically don’t result in criminalizing other peoples behaviour. The anti-superstition laws make the following leap.
“It marks certain types of voluntary activities, broadly not narrowly, as being against the dignity of the participants, even though the participants themselves do not think so. The people who make the determination are supposed to be experts, who can regulate the acceptable level of dignity in each person, in every socio-economic setting, today as well as into the future, in every psychological state. Once the committee decides that your dignity has been compromised – criminal sanctions are imposed on participants, typically the facilitator of the activity.”
The issue of harms
This isn’t the whole story of course.
It is indisputable that some kinds of superstitious activity cause harms. The real test of a legal system of any society is whether it can accommodate all these into a modern body of law. If you need a law to punish human sacrifice, what does it tell you about the quality of your homicide laws ? The authors of anti-superstition bill make the following distinction.
Practices that cause harm : Murder , rape, physical injury all punishable under normal law. And others like the Thai Poosam rituals of piercing your body, divination and oracles (only if it is a bad prophecy !!), and a rather clever one to prevent “Godmen” from exploiting people.
Practices that dont cause harm (they call it benign superstition) : Quiet and decent worship, private superstition – like tying your right shoe lace first, breaking coconuts (can go either way).
The law grudgingly grants benign superstition, even though it is equally repugnant to their construction of Article 51(a)(h), but are categorical in outlawing the practices that they classify as causing harm or loss of dignity. The problem is the principle of harms is designed to prevent you from harming others. It does not allow experts to unilaterally determine that a harm has taken place while the parties involved vociferously deny it.
The enforcement of the law
It follows the usual recent trend in involving civil society members in various kinds of tribunals. There will be a new office called The Karnataka Anti Superstition Authority at Bangalore and Vigilance Committees on Superstitious Practices in each of the districts. The vigilance committee which will have some powers of a Civil Court will include the District Magistrate, three Govt officials, and five Civil Society members. The bill goes into a bit of detail on the salaries, allowances, powers, etc. The vigilance committees Para 16 (1) will undertake surveys to identify superstitious practices Para 16 (2) will suo moto cognizance of violations. Frankly, this arrangement leaves little to the imagination. The seek and destroy mandate to this committee means the normal constraints against witch hunting are not applicable to those who are err… witch hunting.
Disparate impact on religions
Hinduism is a remarkably diverse religion. There is no central sanction of any practice. Hindu practices include extensive worship of nature (earth, animals, trees, geographical features, planets) as well as ancestor worship. It is but natural for a variety of diviners and intermediaries to be involved in such a belief system. For any law to pass muster, it must not have a disparate impact on various groups of people.
The law (MH law but also cited and cited by the KA concept note) seeks to make the following illegal.
Astrology, Animal sacrifice, Ghosts, Bhanamati, Reincarnation, Black Magic, Spiritualismm Paranormal claims, Miracles, Godmen’s influence Vastushastra Witchcraft
Appendix 1 : KA Concept Note
Here is what the Catechism of the Catholic Church says (2116 and 2117 )
2116 All forms of divination are to be rejected: recourse to Satan or demons, conjuring up the dead or other practices falsely supposed to “unveil” the future.48 Consulting horoscopes, astrology, palm reading, interpretation of omens and lots, the phenomena of clairvoyance, and recourse to mediums all conceal a desire for power over time, history, and, in the last analysis, other human beings, as well as a wish to conciliate hidden powers. They contradict the honor, respect, and loving fear that we owe to God alone.
2117 All practices of magic or sorcery, by which one attempts to tame occult powers, so as to place them at one’s service and have a supernatural power over others – even if this were for the sake of restoring their health – are gravely contrary to the virtue of religion. These practices are even more to be condemned when accompanied by the intention of harming someone, or when they have recourse to the intervention of demons. Wearing charms is also reprehensible. Spiritism often implies divination or magical practices; the Church for her part warns the faithful against it. Recourse to so-called traditional cures does not justify either the invocation of evil powers or the exploitation of another’s credulity.
Source : Vatican Web Site
As you can see Christianity is already compliant with the law, or rather the law is resonant with the basic premises of the church. That the practice of faith, all of which is superstitious by definition to an atheist, can be cleanly divided into Godly practices and Demonic practices is outlandish to other faiths.
Needless to say, all of this is completely at odds with decentralized Hindu society. What is considered occult, pagan, repulsive to one could form the core of another religion. Due to the centrality of ancestor worship and re-incarnation, the oracles and diviners will always have a special place in Hinduism. Even within Hindu society the bill favours practices of the Brahminical upper castes, who engage in relatively orderly worship at specified temples or mutts while outlawing most of the physical practices of the masses. Under the harms logic, the widespread practices of Thai Poosam, the walking on coals, the pulling of chariots or various practices like Kavadi which call upon physical pain stand outlawed. Astrology, parrot fortune telling, shell fortune telling, are all purely voluntary activities involving mostly peasant Hindu communities. Even within the Christian faith, the practices of the Pentecosts and a lot of the new age churches will be hit hard while those of the Catholics a lot less.
Affront to freedom of contract and principles of self autonomy
The central legal issue – that of adult and competent consent is brushed aside in a nanny law. The masses, it is claimed, do not know how to conduct their affairs or to solve their psychological troubles correctly, hence expert guidance along with state sanction is needed to whip them into conformance. The impact on contracts that straddle the faith line is huge. For instance, I enter into a building contract and demand a water source on the north east in conformance with my belief in Vaasthu. The contract is not entered under duress, rather the builder or architect, has to now work this into his product or he loses my business. So what is a private contract between two parties is now proscribed even though there are no negative externalities. You may consider this to be an easy example, yet this is the nature of all activities banned. If I go to an exorcist, the contract is that he hits me with neem leaves after dousing me with ash.The deal is, I get a measure of psychological relief, we split the difference in cash. You and I can laugh it off, but who are we exactly to comment on matters of the mind. Depression and insomnia are still without answers in science – by outlawing otherwise legal conduct – you are denying people a vital supplement.
Contracts under duress or fraud, murder, rape, assault are all covered under existing law. There are strong social feedback mechanisms that weed out fake practitioners – if I go for an astrological consultation and the practitioner sticks a hook into me, he will have hell to pay. As the recent Asaram case, he has been held under current and correct law, the new law will seek to imprison him for claiming to be a kind of prophet or reincarnation of saints or gods (Appendix 1- Para 2 of concept note). Is this scientific ?
Rationalists are drawing an incorrect legal parallel to the ban on child marriage. They say it is also a voluntary activity, how come you accept a ban on it ? What is being missed here is that the parent doesn’t own their child in the same sense that they own their own bodies. It is understood that they are just guardians of their children until they attain majority. Forcing the child into a long term contract without the requisite mental and sexual development can hardly be called voluntary. It is so frustrating that we have to start every argument from the basics.
The physical activities banned by the bill such a putting a hook through your skin, pulling a chariot – constitute a slippery slope. If you were to ban voluntary activities that cause physical harm with no scientific basis, why not ban plastic surgery? Tattoos and piercings. Hair transplants, breast augmentation surgery. The ban on voluntary pagan rituals involving women in various stages of undress has the same problems, why allow fashion shows ? You throw a poor peasant practicing his ancestral form of worship in jail , while the same activity is allowed for other urban people. These contradictions are the reason why evolved democracies shy away from forbidding voluntary activity.
Anti witchcraft laws repealed across the world
All across liberal democracies, anti witchcraft and anti divination laws have been repealed. The USA has TV channels with plenty of psychic lines, tarot readings, crystal balls, palmistry. They have achieved a great balance by adding a tiny disclaimer “For Entertainment only” The new religion of Wicca ( a polytheist pagan nature worship ) religion is make some strides in the USA. The last remaining local statute against divination in the state of North Carolina was recently repealed. Britain had its last anti-divination law – the Fraudulent Mediums Act repealed a few years ago. To truly find a parallel to the Karnataka Act you have to go all the way back to The Witchcraft Act 1542 enacted by King Henry VIII – which had similar provisions to the Karnataka Act. The act called for sanctions against invoking spirits for a voluntary participant causing the same kinds of harms mentioned in the Karnataka Act.
use devise practise or exercise, or cause to be devysed practised or exercised, any Invovacons or cojuracons of Sprites witchecraftes enchauntementes or sorceries to thentent to fynde money or treasure or to waste consume or destroy any persone in his bodie membres, or to pvoke [provoke] any persone to unlawfull love, or for any other unlawfull intente or purpose … or for dispite of Cryste, or for lucre of money
Ironically in the west, due to the various Christian reformations, the upsurge of scientific discovery, it was thought ludicrous and highly illiberal to be so scared of spirits and the occult – that you needed to outlaw them.
Rationalists need to focus on the number one irrational institution in the country today. Social justice is unmonitored, no data is available about its beneficiaries, how each component community has progressed over time. Jats are agitating to get inside the circle. Muslims think they are being denied what Hindu OBCs take for granted. It is quite remarkable that rationalists are okay with this state of affairs. A scientific social justice platform is the only just platform.
In the case of Madde Snana, the rationalists and communists need to be less concerned about this voluntary activity as distasteful as it may be to them. Instead of worrying about people rolling in food superstitiously, they should be more outraged at the hordes who are eating left over food. The acid test for Indian rationalists is the doctrine of strict scrutiny of social justice to ensure it reaches everyone evenly. I am yet to encounter a rationalist who passes this test.
How to reduce overall levels of superstition in the country
I do not think superstition needs to be tackled legally per se. Rather the main body of law must take into account various alibis, witness issues, and factors arising out of the cover of superstitious activities. But to the extent it must be reduced here is how you do it.
Step 1 : Reduce the level of uncertainty in the economy. If people are allowed to plan their lives in an environment of stable policy – they are less likely to propitiate the spirits to swing the activities of politicians and regulators their way.
Step 2 : Strengthen the rule of law. Laws must be clearly framed and not be contradictory, clear notices and framework of legal and illegal conduct. A uniform stable clear law will result in fewer people praying for the dice to be loaded in their favour.
Step 3 : More prosperity, more production. A lot of superstition in India is aimed at negotiating the familiar traps of crushing poverty even after 70 years. Will I, wont I, fall into it? Will I get the job ? Will the tout who took money for a govt job honour his end ? As prosperity rises – a whole chunk of this will vanish.
This post has now run over the limit. Let me quickly summarize. This bill is bad.
Hand ? Are you crazy ? No.
Lotus ? No way.
Ok lets try 2nd tier , Hammer Sickle, Cycle, Chain, Elephant, Sun, ? No, no, no, no,
3rd Tier and newly minted parties : Broom, bottle, drums, mango, banana ? No no no no no no
Independents : Axe, hammer, tong, trash can, car, bus, cricket bat, dont say no there are some professors and social workers and youth here. No no no no no they’re all same. No.
Ok lets try this – Bulb, train, computer, screwdriver, nut, dunce cap, duck, crow – surely you can find someone here, look your caste/ religion member. No no no no no no no no – I done believe in identity politics. Dont like any of them.
Do you like democracy ? No no .. no – WAIT ! Yes YES. WTF you trapping me ?
Who do you like ? Civil society and activists
Finally ! Awesome, whats their symbol ? Are you an idiot ? If they had a symbol they wouldnt’be civil society, they would be a politician like everyone else. Now vamoose.
A quick post documenting the tinderbox like situation developing in UP due to a controversial multi-tier reservation policy that was rolled back by the SP government.
Govt and Pro-Quota protestors set for face off today
The Allhabad district administration is gearing up to prevent the proposed Arakshan Mahapanchayat in support of the demand for the benefit of reservation to the candidates of the Other Backward Classes (OBCs), Scheduled Castes and Scheduled Tribes (SC/ST) at all the three levels of competitive examinations.
However, pro-reservation activists and the politicians, who are supposed to address the rally, claimed that they were determined to hold the programme. Some of the politicians invited in the Mahapanchayat are Janata Dal (United) president Sharad Yadav, Apna Dal leader Anupriya Patel, former union minister Ram Vilas Paswan and Dalit leader Udit Raj, besides others.
Inspector General (Allahabad Range), L V Antony Dev Kumar, said, “There is no permission for the Mahapanchayat. At least eight companies of PAC, police forces from eight districts falling under Allahabad and Chitrakoot Dham zones have been deployed. Police in plainclothes, large number of videographers and anti-riot mechanism has already been put in place. Barricading of the proposed venue is also being done to prevent people reaching the spot.”
Today we learn that JD(U) president Sharad Yadav and a host of other leaders have been detained and prevented from attending the rally fearing a violent showdown.
How did we come to this ?
A quick recap of the issue
Details are a bit scarce, I’ve tried sourcing the exact rules on Social Media without much luck. Here is what I’ve gathered so far and I think it is pretty close. Leave a comment if you find something wrong.
Those aspiring for government jobs in the Uttar Pradesh services sit for PCS (Provincial Civil Services) exams. This exam is divided into 3 stages – PCS – Prelim, PCS – Mains, and PCS – Interviews. Each of these stages is a qualifier – so only those who qualified Prelims are eligible for Mains and only those qualified in Mains can get called for the final interview and selection.
There are two issues :
1. Now the number of quota seats are always computed on the final outcome. It doesnt matter how many stages you have in your exams, a minimum of 27% of total seats should be allocated to OBC candidates. This is what was in place for a number of years.
2. Open category means ‘open to all‘ including SC/ST/OBC/xBC. The way to look at it is this. Those not belonging to any reserved category do not have any guaranteed seats. It seems UPPSC used to exclude OBC/SC/ST candidates for vacancies that arose in the open category. The whole vacancy issue is incredibly complex as the communal roster system is used to select from groups against specific posts. But for this issue, the roster is not very relevant.
This year the UPPSC introduced quota at all 3-stages and also changed the rules so anyone could be called against unreserved seats. Both these changes severely shook the unreserved categories in UP and they approached the court in July 2013, the court stayed the rules and issued notice to the UPPSC. Subsequently, the UPPSC reverted all the rules and this caused much anger to the other side (notice how people are divided) while jubilation on one side. Forward to today, where paramilitary forces are concentrated to prevent an Aarakshan Mahapanchayat and a violent showdown.
On 3-Tier quota
The central issue in all these matters is this : There is no measurement of any community in the omnibus social justice category. This has been my theme with over 500 posts on this blog. Naturally, this gives rise to various anomalies that no one can address without tearing the whole system down. It gets worse each passing year.
With the 3-tier quota, a maximum of 50% of open category are allowed to clear PSC-Prelims, 27% of OBCs, and so forth. So at each stage the pool is concentrated more and more. At this point it is easy to miss the most crucial point. The 50% open category includes ALL groups. So at the next stage you have fewer open category even competing. This I suppose was at the heart of the issue. It is easy for us to exit here with impatience, but you miss how crucial these things are to the young folks trying to get a job and escape poverty for good. In effect, the quota at each stage concentrated the “input pool” in a particular way and not the output. My bet is on this being unconstitutional – akin to preventing 50% from even appearing for a particular exam. This is somewhat similar to concentrating the input pool in favour of women in various IIMs this year.
On open category
The real issue is “What to do with communities currently in the OBC lists who are able to compete well in the open category“. Not many in India are even brave to hear this question, because to answer this you need to undertake a principled analysis of the entire reservation system. In the absence of answers, young people on the ground respond to such invidious schemes by developing factions and falling back to violence as a way of taking their share.
Where is the fraternity ?
The arguments can be summarized thus.
1. Pro-Quota : Unreserved means open to all. How can you only call non-quota candidates against this post. This is a winning argument
2. Anti-Quota : We thought this was like an outright communal quota. Upper caste youth ask, “they have their share where’s ours?” Have my sympathy but will lose argument.
The real answer is of utmost gravity and calls into question the entire organization of the Indian state post independence.
1. Why arent inside groups who are clearly showing ability to wrest open competition seats reclassified ?
2. Is this distribution an “Idea of India” style consociate power sharing in disguise (dont ask, dont tell) ? If that’s the case, why dont we have an outright communal quota. Like the impugned G.O in Champakam Dorairajan vs State of Madras that led to the very first Amendment even before the maiden Lok Sabha,
1 = Rule of Law
2 = Idea of India
The Prime Minister today announced a special high power Group of Ministers to study the inclusion of Jats in the Central OBC List.
Prime minister Manmohan Singh has set up a Group of Ministers on the inclusion of Jats in the central list of OBCs, a move that is clearly aimed at wooing the influential community which holds sway in Haryana, Rajasthan and parts of Delhi and western Uttar Pradesh ahead of the general elections.
Finance Minister P Chidambaram will head the GoM with Home Minister Sushil Kumar Shinde, Social Justice and Empowerment Minister Kumari Selja and Minister of State in charge of Personnel V Narayansamy as members.The GoM will expedite the issue, according to a government note which underlines the need for early action.
Source : TOI
To understand the sheer magnitude of the issue – just look at the composition of the GoM. The PM, Chidambaram, Shinde, other top ranking cabinet ministers. This issue is going to draw the energy of the highest lawmakers of this country.
Because it is that important.
I have tracked the Jat issue quite a bit in the past on this blog such as in “Jat quota and social justice falsifiability“. It always astonishes me how difficult Jats are finding it to get the Centre to agree to their demands. As we speak the NCBC and ICSSR have been conducting surveys of the community in four states to ascertain their backwardness. But the issues are much larger than that.
The dominant political framework in India today is what I have been calling the “Idea of India” framework. I also equate it to a particularly egregious scheme called “adhoc consociationalism“. In this framework, intensity of political participation by groups determines ones level or access to public goods. Given this, you certainly cannot accuse the Jats of slacking. Why do Jats despite blockading roads and rail a mere 30 minutes away from the national capital are finding it so hard to get in.
The answer is : Inside Group resistance and a lack of a judicial standard of review.
When benefits are granted, not on falsifiable criteria, but as a reward for intense and predictable political participation, you neatly divide the population into inside and outside groups. Those political leaders who represent the inside groups and form the ruling coalition in India, will resist any uninvited guests to the table. If they do blink on this vital matter, they violate the most sacred covenant they have made with their voters, that of protecting their interests from scrutiny or dilution.
You might wonder about the following questions :
- Why arent inside groups not subject to the same level of scrutiny as those trying to get in ?
- Are the inside groups completely immune from scrutiny, even in light of contrary data ?
- Why are only Jats selected for the special study ? Is it the fault of dispersed groups that they arent able to mobilize ?
- Why not just measure and make public disaggregated data about the OBC groups to see how the inside groups are performing relative to each other ?
So much water has flown under the bridge that these questions are now feared. In this environment of rampant factionalism, an amorphous, pixellated, meaningless, and potentially seditious political order called the Idea of India is being actively promoted. Unopposed.
Its nemesis, the Rule of Law does not exclude the opportunity for social justice. In a Rule of Law both inside and outside groups are subject to the same amount of scrutiny and fair process. This is brought about by a simple measurement of how benefits are accessed by component communities within the omnibus categories to prevent problems of hoarding and blockades.
Next up : Is India today, a perfect model of the factional dystopia that James Madison warned about ?
The amount of flak Chief Justice Altamas Kabir is getting for the NEET judgment is quite astonishing. [ "Scrapping of NEET raises questions over Justice Altamas Kabir" : FirstPost / "CJI Final Judgement comes as boon to private colleges" : TOI ]
I think the critics of the judgment are off the mark. In his opinion, Justice Kabir has correctly recognized the impact of admissions regulation on autonomy. He has also not fallen for the high promises made by proponents of NEET such as eliminating capitation fee, reducing commercialization, and so forth. Finally, unlike the RTE Bench, he has correctly interpreted Art 30(1) rights enjoyed by the minority as an additional guarantee to Art 19-1(g) and not separate from it.
I was kind of lazy getting this post out as I had already said everything on Twitter and subsequently the issue ran cold. Now that the Central Government as well as the Medical Council of India (MCI) have filed a review petition in the Supreme Court interest in this crucial case has peaked again.
What is this issue about ?
The Congress-led UPA-II government tried to regulate admissions (undergrad + postgrad) in Medical education by introducing a common exam called NEET. NEET stands for National Eligibility and Entrance Test. Pay attention to the words “eligibility” – which means setting minimum standards, and “entrance” which means inter-se merit ranking. The exam was to be conducted on CBSE syllabus and the agency selected by the Medical Council of India to conduct the test was also CBSE. It was proposed to have a normalization scheme (I know, please keep a serious face) to account for differing standards among the 50+ boards in India.
The relevant new regulations (Sec 33 – Medical Council of India Act – Regulations)
IV. No candidate who has failed to obtain the minimum
eligibility marks as prescribed in Sub Clause(ii) above shall be
admitted to MBBS Course in the said academic year.
V. All admissions to MBBS course within the respective
categories shall be based solely on marks obtained in the
National Eligibility-cum-Entrance Test.
So it is clear that once the NEET is in force, private medical colleges would be required to use the inter-se merit list of each reservation category. They are allowed to filter out categories but they cant rearrange within the same category. Let me stress this further as it is important. Example: A Christian minority medical college can pick a Christian over a higher ranked Hindu but it cannot pick a lower ranked Christian over a higher ranked Christian. To me the NEET notification is crystal clear, the natural fallout of this is that you cannot have another exam in addition to NEET that would shuffle the inter-se merit list discovered in NEET and weight the two.
As you can see, this completely destroys the autonomy of private medical colleges to devise their own standards and instruments of admission. As I said on the RTE post, the ability to select the intake is one of the main attractions in starting this enterprise in the first place. Naturally, almost all private colleges and their associations as well as states of Tamilnadu and Andhra Pradesh went to the Supreme Court. On July 18, a 3 judge bench ruled 2-1 that NEET was unconstitutional. CJ Altamas Kabir wrote the opinion joined by J Vikramjit Sen with a strong dissent by J Anil Dave.
The very next day it was clear the judgment had really rubbed off various pro-government activists the wrong way. A curious side issue of the judgment being leaked was also dragged into the headlines and on to Karan Thapar’s show. The current status is the Union Govt isnt happy and has filed a review petition joined by an NGO called Sankalp.
Quick analysis of the judgment
The actual case is called “Christian Medical College & Ors vs Union of India“. It seems the trajectory of any higher education regulation is the same. You’ve got a socialist state which seeks to provide education as a right (Mohini Jain) confronted by the reality of being third world and cash strapped (Unnikrishnan & Ors). So it reluctantly allows private participation and constantly pushes regulation as a means of satisfying demands of society. In doing so it always runs up against a major bulwark – the constitutional guarantee to religious and linguistic minorities under Art 29 and Art 30.
To really appreciate this case, you have to do a bit of unlearning. Here is the counter intuitive. Colleges like CMC Vellore and St Johns which have 85% minority quota are actually the model minority institutes and colleges like St Stephens and Loyola are iffy. Are you with me ? This is crucial to understand how these cases play out. I blogged with great curiosity the pushback Rev Valson Thampu received from distinguished Hindu alumni when he (rightly) tried to assert the Christian values of the college. This is not to say they aren’t fine colleges, they are exceptional indeed, but they arent exceptional minority colleges.
Once you are comfortable with this you can follow Shri Harish Salve’s winning arguments quite easily. Take CMC Vellore, in addition to a science test there is also a Bible test followed by a searching interview where candidates are evaluated for abilities to serve Jesus Christ in line with the ideology of the college – heed the command of Jesus Christ exhorting His disciples and followers to heal the sick . You have to concede this is a valid ideology.
So here we have a model minority institution which is clearly a candidate for Art 30(1) protection. One can easily imagine a socialist or majoritarian state outlawing such mixing of religion and professional education. There is no question that NEET would impact CMC Vellore adversely as they can no longer weight down a higher ranked Christian candidate due to his lack of religious knowledge or commitment to Jesus Christ over a lower ranked one who demonstrates the above values. Other colleges like Vinayaka Missions , a Telugu minority college, made similar arguments or challenged the authority of the MCI to issue the NEET notification. But I think Salve’s was the clincher.
At this point it was clearly established that the NEET would impact the model minority institution. For arguments sake, if the court were to exempt NEET for “such model minority ” colleges, what about the others ? Here is where I think Justice Kabir demonstrated a great sense of balance and judgment.
- Other minority institutions may not be as committed as CMC and St Johns. Can we rationally distinguish between the two kinds ? There is an absence of an overall principled definition of what a minority institution and lack of a standard of judicial scrutiny to decide individual cases.
- What if non-minority institutions too had such character ? Do we then hold some religious endeavors at a higher pedestal over some other religious or say scientific endeavor? What is a college wanted to select super smart kids via a really tough exam?
- Practicality – How can a single exam based on CBSE syllabus ensure a level playing field ? Granted this is a secondary question but like the JEE-Main fiasco the court cannot ignore this matter altogether.
So instead of picking and choosing and washing it down with literary flourish – the majority simply threw the whole thing out. They rightfully sided with more autonomy.
161. In the light of our aforesaid discussions and the views expressed in the various decisions cited, we have no hesitation in holding that the “Regulations on Graduate Medical Education (Amendment) 2010 (Part II)” and the “Post Graduate Medical Education (Amendment) Regulation, 2010 (Part II)”, whereby the Medical Council of India introduced the single National Eligibility-cum-Entrance Test and the corresponding amendments in the Dentists Act, 1948, are ultra vires the provisions of Articles 19(1)(g), 25, 26(a), 29(1) and 30(1) of the Constitution, since they have the effect of denuding the States, State-run Universities and all medical colleges and institutions, including those enjoying the protection of the above provisions, from admitting students to their M.B.B.S., B.D.S. and Post- graduate courses, according to their own procedures, beliefs and dispensations,
Justice Dave’s admits in his dissent that he wrote it in a hurry. The dissent bestows upon NEET qualities and abilities it simply does not have.
NEET will stop commercialization
Here is the plain truth. NEET or no NEET – you have to be wealthy to afford a MBBS degree from a private college today. It is also a giant mistake to assume that those rich kids studying in private medical colleges like Manipal or Chettinad lack merit. Sure they may rank lower than general category students of lesser means, but that doesnt mean they cant clear minimum NEET qualifications. Most of them are good and rank well in their higher income category. NEET wont change a thing.
Easy to normalize
Justice Dave says ” here would not be any problem with regard to equalizing marks and merits of different students passing different examinations from different regions or states or universities or colleges.” It turns out this is a very hard problem as the CBSE who designed the JEE-Main are finding out. As more and more complex formulae are used the system loses respect and transparency among the student and parent community.
Have to appear for multiple exams and pay exam fees
This is a strong argument for NEET but there is no reason to believe a market solution cannot emerge here. In my view, this is not a big factor as the most motivated kids will find a way to select a subset of institutions within their budget. About the exam fees, lets not forget we are talking about private MBBS. If you are ready to pay lakhs per year for tuition, reducing exam fees is not a worthwhile policy pursuit.
Religious minority can use NEET as eligibility
NEET is clearly prescribed for eligibility as well as entrance. The hard fact is that medical seats are so few in number that those who aspire are certain to clear basic minimum qualifications. Also if all colleges use NEET as “eligibility only” they have to conduct their own evaluation in addition to NEET as the “entrance”. Now we are back to square one – as with the JEE fiasco. Kids not only have to appear for all the old exams – but also for a new one called NEET.
NEET is not the answer – real issue lies elsewhere
The real problem with medical education is not with NEET. This is a case where the Government must expand its capacities dramatically as private colleges are necessarily going to be out of bounds for most meritorious middle class and poor kids. On the private side, over regulation and the resultant political involvement has created de-facto monopolies. This allows the existing institutes to adopt dubious practices including capitation fees (which rearranges inter-se merit). The greatest example of how bizarre the situation has become can be seen in my pet peeve – the NRI quota.
Because the govt takes a share of the private capacity as well as fixes fees for another part, the colleges are allowed to take in upto 15% NRI students. The colleges like this because the admission norms for NRI students are a lot looser and they can charge them a much higher rate to compensate for govt takings in other categories. As you can see, over regulation on one side has side effects. Squeezed out capacity enables in unexpected ways headroom for arbitrariness and money making.
A lot of this capacity leaks out to the blackmarket.
In the meanwhile, a meritorious kid who does not have parents in a foreign country scratches his head and wonders why he is discriminated against for having dad work in India.
We have a long way to go. Lesser regulation and not more is the answer.