Here is a quick analysis of TN 2016-17 MBBS Admissions. With a few findings at the end.
How MBBS capacity is partitioned
|Total seats in Govt Medical Colleges||2172||100%|
|MOST BACKWARD (MBC)||434||20%|
Seats obtained by each group using Vertical Quota method
The quota device used in India is called Vertical Quota. Also known as the over and above scheme (thanks to Marc Galanter for this word)
|Community||Seats obtained||Percent 2016-17||Percent 2015-16|
|Total seats in Govt Medical Colleges||2172||100%|
|MOST BACKWARD (MBC)||557||25.6%||25.3%|
If there were no quota at all
Assuming there was no quota system at all in Tamilnadu. Here is how the seats would be allocated
(blue indicates a gain over the vertical quota system)
|Community||Seats obtained||Percent 2016-17||Percent 2015-16|
|Total seats in Govt Medical Colleges||2172||100%|
|MOST BACKWARD (MBC)||414||19.1%||15.2%|
If a hypothetical Horizontal quota method were used
As explained in “The real difference between horiontal and vertical quotas in India” Each group would be allowed to scale up to the ‘minimum guarantee mark’ after the 1st round of allocations is done pretending there is no quota at all. The following groups have shortfall ( MBC 20, SC 308, SC-A 60, BC-Muslim 3, ST 21 = Total = 412 ) after the first round. The OBC and the General category seats will be knocked from the end until the minimum numbers are met for each group. Based on rough calculations from the merit list – we estimate that Unreserved (OC or Upper Caste) loses about 20 seats and the OBC loses 392 seats.
(blue indicates a gain over the vertical quota system)
|Community||Seats obtained||Percent 2016-17||Gain % vs Vertical Quota*|
|Total seats in Govt Medical Colleges||2172||100%|
|MOST BACKWARD (MBC)||434||20%||-22%|
- % Gain over Vertical Quota calculated as : ( HQuotaSeats – VQuotaSeats)/HQuotaSeats %)
Source of data : MBBS Provisional Merit List published at tnhealth.org (click on the scrolling list of documents).
- It is a pure miracle in India that such a data source is available that throws light on the actual utilization of the various categories.
- The Central Govt using the cover of RTI go to great extent to hide, that is correct, hide from the people, these key statistics. You have no idea how the vertical quota system is working in AIIMS, IIT, IIMs etc.
- In Tamilnadu, the trends are remarkably stable since I started analyzing these statistics 5 years ago.
- The OBC group in Tamilnadu are showing absolutely no evidence of disability. In fact the quota system leads to a loss of about 400 seats for them.
- Of the top 20 Ranks : 16 are BC, 2 are BC-Muslim, and only 2 are from Unreserved.
- The open category in Tamilnadu is only about 4.5%. It is a matter of amazement that such an over inclusion does not generate any comment from the $400M thinktanks in India.
- Any analysis of the Jat, Kapu, Patidar protests from inclusion in the Central Govt OBC list must take into account these national imbalance in classification.
- The reason for such poor performance of Open Category in Tamilnadu could be a combination of participation disincentives or just lack of competence.
- Clearly the Vertical Quota system mechanics need a ground up debate. Do we have the intellectual ecosystem to enter into such a nuanced but ultimately decisive debate?
You can judge how mature a society is by looking at its education sector. The Indian state even after 70 years of Independence is certainly not looking good from that angle. So how exactly are doctors made in the worlds largest democracy? What is the NEET (National Eligibility and Entrance Test) ? Why is this the subject of so much misinformation ? Here is a shot at clearing the air.
First, this is not about the legal issues surrounding NEET. The legal issues are at a lower level and not very interesting.The two main legal issues are 1) does the MCI have statutory authority being merely an administrative agency using delegated powers to run roughshod over the states ? 2) can NEET be imposed on minority medical colleges? I have already covered these in an article written immediately after the NEET judgment “On Justice Kabir’s correct NEET judgment”
In this article will try to plug what I consider to be the main information gaps in the NEET debate. Lets try a Q&A format.
How many seats for MBBS in India?
The rough stats are as follows. India has about 50,000 medical seats at undergraduate level. Roughly 55% are in private colleges and 45% in govt colleges. Of the 55% in the private sector 50-60% are with minority private colleges and the rest with non-minority colleges. Of the 45% in govt colleges the vast majority are with state govt. The notable ones with the Central govt being AIIMS, AFMC.
Believe it or not getting this basic level of information is hard work. The collation and disclosures are not being done by any ministry after the ‘pull model of the Right to Information Act’ took hold.
Can private medical colleges admit purely based on money?
India hasnt been able to solve the central problem of education at school or college level. It has a love hate relationship with the private providers. The main issue is if you granted a free pass to the minorities (linguistic and religious) due to the way the constitution is interpreted you simply have to do so for the others. This dilemma has not been resolved to this day and is currently the site of the main strategic battle in India.
In the 90’s there were two landmark cases you need to know about that shaped the current situation. The first was Mohini Jain vs Govt of Karnataka. In that case, the court ruled that private colleges could charge no more than what govt medical colleges did. Obviously that kicked the private institutes hard and it was clear they were all going to go bust and the govt was in no shape to pick up the demand. So they retried it in another case called Unnikrishnan vs State of AP which established “cross subsidy” as a principle that exists to this day. The idea is you could split the seats into ‘free seats’ and charge a higher fee for some other students and use that to subsidize the former category.
Contrary to what people think private colleges cannot take all their seats and simply sell them to the highest bidder. Transparently or non-transparently. This is how it works, roughly with minor variations across states.
- About 40% of all seats are given to state govts – they are filled by merit list created by a state govt administered test. The fees are comparable to govt colleges.
- About 30-40% are filled by another test – usually as a result of a consensual agreement. This is COMED-K (in Karnataka) and MCET (Andhra) similar tests exists everywhere. The fees are fixed and are much higher than the govt seats.
- About 10-20% are with the managements to be allocated via a transparent process.
- 15% is the quota for Non Resident Indians !!! (believe it or not) The rationale for this quota is that foreign Indians are usually rich and can afford to cross subsidize the others!
So only the 3) and 4) intake can some hanky panky happen. Lets go a little deeper.
What is scope of NEET ?
NEET is an eligibility and entrance test. The test would create a single merit list nationwide. From that single list states and colleges can carve out their own lists based on categories. The rule is that within a category the inter-se ranking is preserved.
NEET would remove quota system for OBC
Absolutely not. NEET has nothing to do with the caste quotas. What will happen is they will take the NEET merit list remove all the non OBC students and voila you have a OBC Merit List. This will be used to fill the Vertical Quotas for OBCs in all state and central medical colleges. Similarly for SC/ST/OBC-1/OBC-2A/ what not. You take one list and derive many lists. I was surprised to see so many Delhi students think that NEET would do “merit wise” medical seats and not caste based !!
Are you saying “meritorious” students cant access thousands of new seats after NEET?
So tragic that this lie is being spread to gullible students by some vested interests in the establishment. This is the truth.
NEET will not add a single extra seat.
All the seat sharing arrangements I talked about earlier stay as it is. All the state govt domicile quotas stay in place. All the caste based quotas also stay as is. The NRI quota which is outside NEET also stays as is.
There are so many students in Twitter thinking that after NEET they would get to access a whole lot of new seats in other states, private universities,etc. Stop. Please.
The only thing NEET does is force all the existing seat sharing arrangments to draw from a single national merit list by categorizing it. For example : a TN State govt would take the national merit list and throw out all non-TN students and derive a state merit list. Not a single new seat will be added.
Will NEET break the Mafia Nexus and throw open seat to poor students?
First of all the “mafia nexus” as alleged by some activists in a letter to the President is an interesting beast. The real question is WHY there is a politician and “mafia” nexus in such a high echelon & knowledge based sector like medical colleges? The reason for this is the sectarianism and capture of this vital sector by malafide players. The sector is not seeing participation from eminent philanthropists rather by those with the political connections to get this, that ,or the other license approved. NEET does not address this at all. So lets take it easy o the Mafia , they are here to stay. NEET or no NEET.
Will NEET allow poorer students to access seats denied to them ?
Well, the jury is out on this one too.
See this from the angle of a poor or middle class student. If you rank high enough in the state entrance tests, even today you can afford an MBBS seat. If you dont kill it in the state govt exam but make it to the private exams (COMEDK etc) you can still become a doctor if you can scrape together about 6-10L/year. If you are poor and you fail to make the grade in either of these types of exams – essentially the door is closed.
Now if you are rich, things could be different. If you screw up the state exam as well as the private exam, you still have a shot using the ‘management quota’. There are very few seats totally at the discretion of the management that they can just give to anyone with the cash. Still you could play some games , such as dummy candidate vacated spots, lack of enforcement in politically powerful private colleges, and buy a seat for yourself. This is what they mean when they say ‘Donation seat”. This I would admit is rampant and despicable. The thing is NEET is not the way to kill this. Better laws that dont grant these guys any monopoly status and better police is the way to nail them.
NEET and transparent process and middle class
Be careful when you use the term ‘transparent process. A process could be fully transparent and still be of no use to you because you cant afford it. There is a very famous medical college on the west coast of India which has a transparent exam, fully clean fees (cheques only) and cost 25Lakhs/year. NEET will not change this. If you cant afford something pre-NEET , you will not be able to afford it post-NEET.
What are the arguments against NEET in principle vs the way Supreme Court is pushing it
The touch stone for me is the so called ‘doctrine of legitimate expectation’. Lakhs of kids across the country have prepared for the exams in a certain way, using a certain method, inside a certain syllabus. They are able to invest so much effort into the preparations only because they assume institutional stability. This is not just a peripheral issue to them, but the main focus of all their activities over 2-3 years. You cant just walk in and disrupt like that with a diktat from top. Especially when the new exam is designed to favour students of a particular board (CBSE). There are tiny nuanced differences even between boards of high standards like AP and Bengal and CBSE. Maybe Physics goes a bit further in one side in NCERT, maybe Biology is slightly different in one. These tiny matters may not rock the boat of these clueless activists but could mean the difference between doctor or not for these kids.
The next objection is imposition of one syllabus, NCERT. Before a single exam regime like NEET is imposed there needs to be concerted effort to bring up all the states to a single or atleast comparable academic standard.
NEET destroys institutions. For Andhra students, EAMCET is a way of life, a pivotal institution around which their entire high school life is planned. The exam itself is not just a piece of paper, there are actual people, rules, psychometrics, exam logistics, counselling. An entire ecosystem that has seen decades of real world use and absorbed and adapted to various local pulls and pushes. Think about it. Why would you lose this? Or if you wanted to lose this – why would you do it just because of some spite over how rich kids get in easy?
Will NEET lower fees?
Not really. NEET by itself has nothing to do with fee regulation. In fact, my bet is that NEET will increase fees. I predict the following rearrangement.
- Category 1 : NEET (low fee merit list)
- Category 2 : NEET (high fee merit list) for the current 30% under private exam
- Category 3: The mgmt quota will take from NEET but hike fees substantially for all. So will accept 40Lakhs/year and take in NEET order.
- Category 4: NRI quota (outside NEET anyway) – this monstrosity needs a separate post by itself
Therefore what will likely happen is due to the loss of selection autonomy, private colleges will simply hike the fees across the board. Remember they can do this because you admitted they also have political backing. As an illustration. Imagine that the mgmt quota hiked the fees to 30L/year and then used NEET to pick. Is that such a momentous improvement over the old method where the nominal fees was 10L/year but you could bribe your way in with 40-1Cr. This is the real benefit of NEET.
Next some poor analogies I saw on TV
IIT exam is based on NCERT. Why you no complain?
The difference is you can become an engineer without an IIT exam. You cant become a doctor without NEET. In other words, IIT (JEE Adv) is one of many exams and NEET is a single exam regime.
What loss of autonomy yaar? AIIMS did they lose autonomy?
This point was made by BJP Spokesperson Sambit Swaraj. Firstly AIIMS uses a higher standard exam, secondly they did lose autonomy. What he is really saying is AIIMS is not complaining about loss of autonomy so private colleges should not complain.
USA does MCAT – why are you jumping ?
MCAT Is not administered by the US Govt. It is a exam by a consortium of medical schools. The analogy is to COMED and other private exams. Second Medical schools use MCAT only as one marker. Almost all US medical schools have additional tests and interviews that can rearrange or disturb the MCAT merit order. This is not how NEET works. Colleges cant screen afterwards.
But surely a single test is better instead of dozens?
This is debatable. If a single test emerges out of a voluntary arrangement of various providers , such as in MCAT, that is desirable. The reason being it is Extremely expensive to create a test that conforms to certain statistical shapes. It is dead easy to create tests that simply result in thousands of candidates scoring 100% and the shape is generally flat and bunched at the top. This is what we are doing now. Given these costs, various colleges might decide on their own accord to come together and amortize the costs.
Given the diversity of boards, the availability and maturity levels of local access to coaching, and the knowledge gaps even within coaching centres — multiple exams like they exist today are the best. I frankly dont see the problem – multiple exams also gives you multiple chances. Not just to convert from fail to success but from success (low) to a high success (ace) – that gives you options. I know so many motivated kids who give so many exams even going to centres in bunches by train. I dont see the issue here.
So what about Vyapam?
Nothing. I dont understand how Vyapam can be a justification for NEET. Remember Vyapam involved govt administered exams at the core. In fact I’d use Vyapam as an argument against NEET.
- In 2015, AIPMT (now known as NEET-1) was leaked, in 2011 the AIIMS paper was leaked. Just because an exam is conducted by government doesnt mean it is foolproof.
If you had multiple exams and institutions had control, then the effects of a leak in a single exam is not catastrophic. If you put all your eggs in the NEET basket then a leak in that exam will be calamitous and ruin the lives of many.
Grade inflation and NEET
Say all the states threw away such good exams like EAMCET, and many private exams, and we were merrily doing NEET for 2-3 years. There is nothing that will prevent a future government from making NEET dead easy to achieve social balancing. Once that happens, it would be impossible to extricate yourself because the states will be helpless against a hostile central government. Also the looming 93rd Amendment which is still not repealed can step in and completely destroy private medical colleges. Imagine this argument : You never complained about loss of autonomy when you agreed to submit to govt assignment of student in admissions. Why are you jumping when we put 3 govt babus on your board and ask you to give 25% quota to EWS output from RTE regime?
Finally , the grand daddy of them all – Idea of India
IJustice Kabir pointed it out exactly. There is simply no way NEET can be forced on minorities without a dramatic and new reading down of Article 30. In true #IOI tradition right now they are passing an ostensibly secular order (NEET). But those like the #Core who know how the system works also know minority colleges are going to win out on a simple facial challenge. NEET goes against well established minority protections starting from St Xaviers vs Guj, St Stephens vs Delhi, the TMA Pai troika. People look for all kids of flowery words in judgments, rather than simple logic and reasoning. Kabir figured out where the tension was and bailed early. Now the country is once again being led down this disastrous path by those who cant even write a proper analysis of why Kabir was wrong.
Also in true Idea of India fashion , we might well end up with an evil lie (Tekiyyah in Hindi) compromise that adds layer upon layer of anomalies to what is a simple judgment of Justice Kabir. One way in which that might happen is an extra step granted to some groups.
Say your college had 100 medical seats you would be allowed to invite 400 in NEET order, then administer a second test and shuffle. This is what is happening in DU where minority colleges can do a an extra screen after the board results. Indians are generally impatient and dont tend to spot these kinds of cheap circumvention. Imagine you had a grade inflation scene and everyone of the 400 came in with a 99+% for your 100 seats. Then that whole exam CANCELS OUT completely and the real exam is what you administer on your own.
Unfortunately I could not make this post short. Because the media and opinion makers are assigning dozens of imaginary virtues to NEET. We have no choice but to play whack a mole.
Helps? leave a comment.
I had asked the following quiz on Twitter yesterday :
Thanks to all those who responded. The real answer is not what you would expect and I hope to explain it in this post. You will be shocked.
The normal answer
Lets see what the usual answer to the question is because you need to understand what it is not to appreciate what it actually is.
The primary socio political organization in India is along the axis of the various Quota systems based on immutable (birth based) group identity. If you had say 100 seats – those are distributed in fixed quotas on basis of group membership identity. The most common groups you know are SC/ST/OBC but there are even more fine grained ones at the states. For example Andhra Pradesh has SC/ST/OBC-1/OBC-2/3/4/5. Karnataka has OBC-A,OBC-B,OBC-2A, etc. The key things to keep in mind in all these is
- each of these groups have fixed quota
- you cant be a member of more than one group
- not all citizens have a group ; those not in any group are called unreserved candidates
- all members with groups can participate in the open seats
Now, introduce a new factor that allows you to be a member of more than one group. Say “Women” (purely as an example). If the announced womens quota was 30% ; each of these boxes get subdivided into 30%-70%. Thus within the SC 15% quota seats ; there is a sub quota of 30% for SC women. That is to say 5% of SC-Women and 10% for SC-Open.Similarly the OBC group is split up, the Unreserved seats are split up and so forth. Since this appears “visually” to be horizontal – they call this a horizontal quota.
This is where the fun starts.
This is not what the horizontal quota is.
Horizontal quota is not merely a sub-quota within each group. It is a completely new quota system that works very differently. Lets dig deeper.
As it is with all “Idea of India” schemes you need a terminology reset. Let me introduce two new terms that more precisely describe quota system design. These terms are borrowed from the eminent sociologist and political scientist Marc Galanter.
- Minimum Guarantee System : Example -> OBC are guaranteed say 30% minimum
- Over and Above System : Example -> OBC are guaranteed 30% over and above whatever they get
Vertical quota is an Over and Above system. Horizontal Quota is a Minimum Guarantee system.
They look similar only on the surface. Lets see what is really going on under the hood with an illustration.
Vertical quota selection
Say you had a total of 100 seats and a Vertical Quota (VQ) group assigned 30%. You must do two rounds of assignment. In Round 1 – you set aside 70 seats corresponding to the unreserved quota; then allocate from a common merit list including VQ . Then you do a separate Round 2 – this time for 30 seats for which you only consider VQ candidates. This completes the process.
Horizontal quota selection
Say you had the same 100 seats but a Horizontal Quota (HQ) group assigned 30%. You first do one round of assignment. In Round 1 – instead of setting aside 70 seats you consider ALL 100 seats. Then you allocate from common merit list including HQ. Finish this process. Now take a long coffee break. Come back and look at the allocations. If there is a minimum of 30% HQ candidates in the final allocation. STOP THE PROCESS there is no need for Round 2. If there is a short fall, say only 20% HQ candidates against their quota of 30%, then start a new Round 2. In this Round 2 : start by knocking out the last ranked non-HQ candidate and replacing by a HQ candidate until the 30% is met. The Round 2 process ends at exactly 30%.
Whats the big deal yaar ? You may ask. In both systems the group is allowed to overshoot their quota. Look closer, the difference between the two system is like night and day. Merely mentioning a transition from a Over-And-Above scheme to a Minimum-Guarantee scheme will cause massive political upheaval of the kind we may have never seen.
What if we moved the OBC quota to a horizontal reservation scheme ?
Time for a little war gaming. Say a hypothetical future #core government announced that henceforth all OBC quotas will move from a vertical reservation to a horizontal scheme.
In states where the classification of OBC are questionable – this has the effect of cancelling the entire OBC quota year after year. To go back to our illustration. In TN, it is well known that OBC group takes 70-80% of the seats in the Open Category. In this scheme, the guaranteed-minimum is always met in Round 1. Therefore there will be no special Round 2 allocation. In other words, there is no OBC quota at all.
In effect, the guaranteed-minimum scheme a.k.a “Horizontal Quota” has a built in circuit breaker that prevents encroachment of the list. The only way to get an exclusive OBC quota would be to eject advanced castes classified into the OBC lists that represent well in unreserved category. That would have the effect of bearing down pressure to benefit the really backward components in that list.
With the current vertical quota system, there is no such pressure. This is the heart of the matter. About 50-70% of all Indian political activity is organized around these anomalies.
I have a great, sometimes unhealthy, interest in these kind of system design failures that constitute the nuts and bolts of the legal regime called “Idea of India”. Almost no one among hundreds of responses on my Twitter timeline got the distinction between horizontal and vertical quotas right. This is expected because these things are kept out of mainline debate by a compromised intellectual class in India. The funny thing is even state governments get this wrong. In K.R Santhi vs Teacher Recruitment Board (2012) the Tamilnadu govt made the error. In Rajesh Kumar Daria vs Rajasthan Public Service (2007) the Rajasthan Govt could not figure it out either.
I bet you never imagined there was so much hidden behind such a simple Quiz.
C’mon admit it
Only a move towards Core Right can resurrect the Rule of Law in the Indian context. We are working on a detailed Core Right position but here is a sneak peek.
- Education : This is of the highest priority about ten times higher than item no 2 below. The Right to Education Act must be repealed, the 93rd Amendment overturned, and all the sectarian preferences in education prior to RTE must also be revisited. This is of utmost importance. Without this clarity and principle at the top, the lower cadre may not be able to grapple with the fallouts of such sectarianism.
- Sectarian Purse: No 2 on Core Right is to preserve the secular nature of the public purse if you are to function as a coherent whole. The issue oddly, is not that the state spends on minority only issues like Haj where only minorities have an interest but on public goods like scholarships, schools, public works (MSDP), loans, etc. Areas where everyone has aspirations and interest. This is not to take away minority scholarships but to absorb the part into the whole. The idea is to have common public goods and ensure equitable distribution within the program. Not to run separate programs.
- Quota : Idea of India always had the danger that at some arbitrary point, the inside group (with benefits) would collaborate and prevent outside groups (without benefits) from gatecrashing. This is the essence of the Jat, Patidar, and Kapu issues. In Idea of India framework each of these groups should demonstrate their violence potential as proof of their grievance. The way to exit this loop is to enter a regime of open data about utilization of benefits on a component basis. Also borderline cases like Tamilnadu have to be taken up by the court for final disposition one way or another.
- Temple : For Hindu society to have a shot at self correction (expel the beef brahmin and elevate the dalit) it must have in its control institutions. By appropriating all the temple wealth for secular purposes, this institutional capacity is taken away while Churches have a large capacity to present to their flock in terms of education and hospitals. That in essence is the matter of temple control. There are some issues around the kind of trust to which this will be handed over. But for starters – there can be a central law that mandates ‘labeling’ and ‘channeling’ of temple revenues. More on this later.
- Essential religious practice : A constitution amendment that would put cultural practices like Jallikattu, Nag Panchami, Dahi Handi and all others out of reach of simple PIL process in the courts. If US based NGOs like PETA want to ban Jallikattu they should be made to go to Parliament and use the statutory route. This makes it to the Core Right list because the security of such practices are essential to a pagan religion.
- Cow slaughter : Need to have a better law that openly says that cows get protection due to their special position in Hindu religion. The laws also have to be deeper and more well thought out. An example might be for outlaw and enforce in letter the killing of male calves. Today the laws are worded as if the target is the butcher, consumer, and not the seller and the calf-killer. Can also institute a permanent amnesty regime by micro-chipping the herds. Today, if Congress comes back in MH the herds who are immune from slaughter today can be picked up. The costs of maintaining cattle must also be borne as far as possible by Hindus via tax deductions and special assessments on temples.
One the Core Right process is started, the first ground rule: NO PRIVATE VIOLENCE should be tolerated. The reason the state has no majesty in front of Jats and Kapus is that we do not have any answers to their questions. “Why cant I get what you are giving him”. Once you have a Core Right agenda in place, the state will restore its majesty and able to assert itself and claw its way back out of Idea of India land.
EDIT ::: < the Core Right agenda that was here > has moved to a separate article here “A Core Right agenda for a Modern India” please comment on that one.
The country is drifting from one meaningless issue to another. As soon as the media stopped its din over the Wold Culture Festival they hopped on to the “Bharat Mata ki Jai” issue. I stumbled upon this article this morning by Asaduddin Owaisi.
No. This was not said in a deliberate way to create this so-called controversy. I said it on record because RSS chief Mohan Bhagwat has said that time has now come to teach people this particular slogan so that they could take pride in the country. I said I would not say. The Constitution doesn’t mandate it. It is my freedom of expression and religion. I have nothing against raising a slogan. I am very much aware of that. What is wrong if I say Jai Hind or Hindustan Zindabad.
Source : Firstpost
The central issue in this is the following. We all know that Freedom of Expression essentially places a negative constraint on the state. That is the state cannot prevent you from saying, writing, or expressing. The Bharat Mata ki Jai issue is different, can the state make you say, write, or express in other ways something you dont want to say?
The answer is Yes. In the case of Oaths and Affirmations, you may be forced to say things you may not want to say.
In 18th and 19th Century England, Catholics were cleverly excluded from public office for over 100 years by designing a special Oath of Allegiance. Among other things all those who wanted public office in England had to state that the “King of England has ultimate supremacy over the Church and not the Pope”. Obviously no Catholic would say that. So, they were ousted !! Even in the Protestant fold, the Quakers would not agree to swear to tell the truth by the King James Bible. They insisted their entire life is about telling the truth and there is no special need to take an Oath. Because of this, Quakers were not allowed to testify and a lot of criminals got away because you cant bear witness if you wont take the Oath !!
So India also has an Oaths and Affirmation (non religious) Act. All Muslim MP have to and they do say those words when they are sworn in. Curiously even the Indian Pledge “India is my country. All Indians are my brothers and sisters..” are recited without protest at school functions. You could ask if “All Indians are my brothers and sisters” does that make the country a mother? Maybe.
What Owaisi seeks is clear legal rules. I have to agree with him on this. Everyone cannot be asked to separately contract with everyone else on matters such as this. What people seek is a single clear interface with law. Someone cant just walk up to you and administer a private oath “Say XYZ or ..” and then have you evaluate his particular violence potential against your own and then decide if you want to say it or not. This is not how mature countries work.
Unfortunately even learned Right Wing are getting the dynamics wrong. Currently the discourse is with the foot soldier of Hindutva even though the BJP is in power. The centre must seize the discourse at the top level, announce that sectarian laws will be dismantled, and private thuggery and enforcement will not be tolerated. What is happening it the reverse. After having voted in a Core Right agenda, people find that nothing of that sort is happening, hence they want private enforcement. This leads to such stupid issues.
EDIT ::: < the Core Right agenda that was here > has moved to a separate article here https://realitycheck.wordpress.com/2016/03/26/a-core-right-agenda-for-a-modern-india/
Recently a former social media volunteer and now an office bearer in the BJP govt at the Centre made the following comment in response to my #RTE tweets.
Let us not blame the Congress, the Right to Education Act as passed by the UPA did not exempt minority institutions – the Supreme Court did. So this is the court’s fault and not the Congress partys.
(from Twitter – dont recall exact words)
Another variant of this I’ve seen with very senior BJP members is “Please do not attack RTE on sectarian grounds, the law is not the problem the Constitution of India is” . The same sentiment is also expressed sometimes as “.. that minority thing is a constitutional issue. Lets not go there – lets talk about teacher training instead“.
This mindset is disturbing on many levels and belies an understanding of the issues. Lets take a deeper look at the 93rd Amendment, history of Article 15, and the Right to Education Act.
OBC Quota in Central Institutes used to piggyback
Twin issues that appear to be related but arent. The 93rd Amendment and the OBC Quota. Let us see how the Congress government brilliantly intertwined the two.
I have already written an article titled “A Brief History of the 93rd Constitutional Amendment” where I’ve covered some of the landmark Supreme Court judgments that made Hindu educational institutions gain equal legal status as those run by minorities. I want to pick up where I left off. Lets cut to one of the major efforts of the UPA-1 government, one that took 4 years of extreme effort of Congress to accomplish. The 27% Quota for OBC (Other Backward Castes) in Central Educational Institutions like IIT/IIM/AIIMS/HCU etc.
First, as soon as UPA-1 stormed into power they realized that TMA Pai v State of Karnataka (2002) had to be overturned. The final push came in Aug 2005 when the Supreme Court in a 7-judge bench P.A Inamdar & Ors vs State of Maharashtra affirmed the essential parity in Education between Hindus and Minorities.
Secondly, the OBC quota issue was raked up and had the vociferous support of all the parties. Even within the BJP the OBC bloc seems to have supported the quota. Now here is how the two were mixed up. The UPA used the popular sentiment for OBC quota to piggyback the 93rd Amendment. It is not at all clear to me that you even needed an amendment to provide the OBC Quota. To explore this further you need a little bit of info about the Article 15 of our constitution.
History of Article 15.
Article 15 – the simplest of articles in all countries – had the most harrowing journey in India. The simple diktat was “thou shall not discriminate on basis of ..” The original article read like this
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
15 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
15(3) Nothing in this article shall prevent the State from making any special provision for women and children.
No sooner did the constituent assembly finish its job and the British has left our shores, than this article was subject to mutilation. Tamilnadu’s communal quota in college admissions was cancelled by a unanimous decision of the Madras High Court and then a Full 7 judges of the Supreme Court in State of Madras vs Champakam Dorairajan (1951) . Even before the First Lok Sabha had met – Jawaharlal Nehru and others who had participated in the Constitution making just a few months earlier overturned the Supreme Court’s decision and passed the First Amendment.
The First Amendment added a new clause (4) to Article 15 that read.
“15 (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”.
Most of the states have been providing quotas to OBCs happily under the cover of Article 15(4) even though it does not specifically mention education. There is no reason why the UPA cant provide the OBC quota in Central Educational Institutions under this same non-obstante clause. But this was presented as an imperative and with overwhelming support of the OBC bloc and JDU deserting the NDA at the last minute the 93rd Amendment was passed.
The 93rd Amendment (at that time known as the 104th Constitution Amendment Bill) added a new clause (5) to Article 15 that read.
“15 (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”
Pay attention to the emphasized text to deduce the real intention of the 93rd Amendment. It had nothing to do with the OBC quota at all but everything to do with restoring the minority advantage that TMA-Pai and finally P.A Inamdar had leveled out. Specifically :
- The new Art 15(5) was to abrogate Art 19(1)(g) : By this I mean – Art 19(1)(g) (‘right to carry out an occupation’) which was used by TMA Pai to provide parity to Hindus was rendered waste as far as education was concerned.
- Art 30(1) was to be a non-obstante for the new Art 15 (5) : In other words : nothing in Art 15(5) shall apply to minorities involved in education field.
- Art 15(5) singular purpose appears to be to drive a wedge and elevate Art 30(1) “the minority” and completely abrogate Art 19(1)(g) “the non minority”.
After so many years of observing Indian political economy, I now think that the non-Congress parties are simply not intellectually equipped to see through these things. In any event , the 93rd Amendment passes and becomes an “enabling amendment”. So you may ask “what is an enabling amendment ?”. What was it supposed to “enable” ?
It enabled the grand confiscation that was still to come as the Right of Children to Free and Compulsory Education Act 2009. Also known as RTE.
The Enabling Amendment
This is a curious creature I now know is uniquely Indian. Essentially the court strikes down something as ultra vires (outside powers) of the constitution ; then the politicians go and change the constitution itself to give it that elusive power. Now when the amendment itself is challenged the bar is suddenly very high. The court has to use the ill defined “Basic structure” test. ( Side Note : Justice Dalveer Bhandari thought that the 93rd Amendment was against the Basic structure even without the minority exemption. Luckily for UPA he wasnt around the court much longer)
Once again worth repeating what the Enabling Amendment contained and why the court had no role to harmonize :
- Explicitly exempted minorities in the amendment itself. Rather than depend on the court to harmonize with the protection already in Art 30. This ruled out some harmonizing with Art 30 – such as forcing minorities to admit own religion EWS or to force them to use lotteries.
- Explicitly abrogated Art 19(1)(g) protection to Hindus (non minority) in the amendment itself. Rather than depend on the court to harmonize (for example by severing provisions impinging on full refund & autonomy in selection etc).
Now you can say that this was all just a happy co-incidence.
I was also wondering if the Congress really lucked out and that the amendment was phrased by accident. Look at what Manish Tiwari of the Congress wrote recently about the Indira Sawhney judgment
On November 16, 1992, the Supreme Court by a majority of 6:3 upheld 27 per cent reservation for the socially and educationally backward classes (read Other Backward Castes) provided by the V.P. Singh government while striking down the 10 per cent reservation for economically backward sections of society provided by the successor Narasimha Rao government. ..
Why did 10 per cent reservation for the economically backward cutting across communities not covered by the existing quota architecture not find favour with the Supreme Court? For the simple reason that the Rao government was only paying lip service to the cause of economic reservation.
Kesri ensured that despite the amendment to the earlier Office Memorandum, no economic criterion was ever evolved and presented to the Supreme Court and no enabling constitutional amendment was carried out.
So there you go. The Congress lawyers have been through this. They knew very well from the ill fated econ quota in the Mandal saga that without an enabling amendment the laws were simply going to be struck down.
This was what they used in the Right to Education Act.
RTE Act as passed did not exempt minorities
As passed by the Parliament the Right to Education Act did not exempt minority institutions. But even I could smell the disaster from my little perch in nowhere land [ “RTE how well thought out is this – Dec 2009” ].
UPA-2 HRD Minister Mr Kapil Sibal met a lot of minority community leaders who were protesting the Right to Education Act. I dont know exactly what transpired. In any case, in no time the RTE was challenged in the Supreme Court and the unaided minority schools got exempted from the law in a 2-1 Decision in Society of Unaided Private Schools Rajasthan vs Union of India (Apr 2012) Why?
Because of two things :
- The enabling amendment did not just keep quiet on minorities but explicitly exempted them – it was a foregone conclusion that the court would strike it down for them. Leaving only the Hindus (non minority) wide open
- The court erred in not using the so called “Doctrine of Severability”. In short this doctrine means that if you chop off too much from a given statute – what is left does not make sense (i.e. is an absurd outcome). I guess only lawyers acquainted with the Lutyens and Supreme Court circuit at a very close level can explain why this happened. For an excellent analysis of this read “RTE Analysis : A question of severability“
Further down the road in May 2014 ; a 5-0 decision in Pramati Edu Society vs Union of India further pushed the RTE and exempted even the aided minority schools from the entire provisions of the act. ( See pp 26 of judgment that uses the exemption in enabling amendment to waive the law)
So to cut a long story short : The so called “Enabling Amendment” allowed the government to pass an ostensibly secular Act and the minorities can get out of it on a mere “facial challenge” – i.e. easy work.
If my friend got this far – I am sure he would realize what we are dealing with here. The 93rd Amendment cannot be divorced from RTE. The latter is built on the former.
About 10 railway stations are burnt, 60 trains stopped, schools, police stations burnt, a private armory looted, curfew in 6 towns in Haryana, 8 dead, police, paramilitary, and Army called in to douse the flames. This is a snapshot of what is happening in the immediate vicinity of the National Capital Territory of Delhi for the past 2 days.
Why is this happening ? A lot of simplistic comment is floating around the internet and in media op-eds. Almost all of them blaming the Jats for indulging in this kind of violence. Some of the commentators frown on the entire quota system and urge the Jats to be magnanimous and not seek the forbidden fruit. They dont realize that the quota system is a central part of the social and political system of organization known as the “Idea of India”. So its kind of odd that you’d call on a large group to sit outside the main political order. In reality, these commentators don’t want to be bothered with analysis of these issues and would wish the problem would go away.
In this post, I will try to go to the root of the problem in as simple a language I can attempt. From a completely different angle. Hopefully at the end of this you will see that the real culprits may not be the Jats at all
Here is a brief recap of the Jat quota issue just enough for you to follow the rest of this post. India provides explicit quotas to various groups of communities. The keyword is ‘group’ not ‘communities’. The largest such group is known as OBC – Other Backward Classes. Various discrete communities / castes are included in these groups, they are maintained as “Lists”. These Lists are maintained for each state – called State Lists, and a single list at the central level called a Central List. The idea is that for Central Govt slots (jobs, college seats, scholarships, central police forces, and a host of other opportunities) they would use the Central list and for State Govt slots they would use the State list. Now you may ask – ‘Well that is weird, how can a caste be in one list and not be in the other“. Hold that question for a moment, you will realize even such simple questions cant elicit an answer.
Jats are in the state lists in a number of states like Rajasthan, Haryana, Delhi, UP, Bihar, HP, Uttarakhand and Gujarat. But they were not in the Central list. This meant they could only access the open category central govt slots and not access the large chunk of slots reserved exclusively for those in the Central OBC List. Due to sustained pressure and rioting. The UPA Govt included them in the Central List in March 2014. Not surprisingly, the other castes already in the central list would not have a new competitor and decide to fight the inclusion of Jats. Keep in mind that within each group (SC/ ST/ OBC) there is open competition among all castes in that list. Welfare associations representing the castes already in the Central List took it to the Supreme Court in a case called Ram Singh and Ors vs Union of India. A two judge bench of the Supreme Court struck down the UPA Govts notification and thus denied entry of Jats into the Central List. As things stand now, the quest is to balance the Jat aspirations with the persuasive qualities of the judgment. That is the brief recap of the genesis and current position of the Jat quota. Notice that I have not paid much attention to various govt bodies like NCBC and ICSSR etc. I believe these institutions are supposed to provide a check but the core rationale behind these institutions are missing.
For that you have to go a bit deeper.
Ram Singh & Ors v Union of India (link)
First thing to notice is the name of the case. It is Ram Singh & Ors vs Union of India. This is a PIL case initiated by an umbrella group called the “OBC Reservation Raksha Samiti” presumably the gentleman Ram Singh was one of the petitioners.. The word “Raksha” in Hindi means protection. Protection against outsiders barging in to the group. This case is therefore the result of inside group resisting the outside group. This may not seem important but forms the core of the issue as we will see.
So how does a caste get into the OBC list ? To answer that you have to refine that question. To get into a state OBC list you can petition the state govt and based on various considerations they may or may not grant that status. This is in fact where the major part of political effort is spent behind the scenes. For the procedure to get on to the Central list you have to go back to the 90’s. When reservation in Central Govt jobs was introduced as part of adopting the Mandal Commission recommendations the act was challenged. In an epic case called “Indira Sawhney & Ors vs Union of India“. The court upheld the quota and directed the govt to set up a body to examine claims of inclusion and exclusion. This body came to be known as the NCBC – National Commission for Backward Classes. The idea is that there would be robust tribunal that would scrutinize the entire program and could examine such claims with great authority. That turned out to be a disaster. The NCBC has not excluded a single group from the list nor has published any break up of utilization of each component. The entire exercise has a fatal flaw. The absence of ground rules. The lack of a single process or tests or even principles. The inability to state the conditions for initial entry into the list and whether the same process would apply to new entrants.
On paper, the recommendation of NCBC is supposed to be binding on the govt. But the NCBC itself isnt doing its job because of lack of ground rules. See how everything is linked back to the original anomaly? The entire chain is based on an absurd premise that you can create these compact lists in a nation of thousands of claimants. Most of us can hold our nose at this and pretend that nothing is wrong. Until a dominant and organized group like the Jats decide to challenge this scheme of things. They demand answers, no answers, then they want in by force. If that is what it takes. The Gujjars, the Vanniars, have all shown the way. For those parroting the “Constitutional Method” let me give you the reality check. A constitutional method requires simple ground rules (first principles) that stand alone. It never works when a court seeks to resolve conflicts between two groups. For that you need a conflict. And that is what the Jats are giving you.
Back to the Jat issue. In 2013, the Congress govt asked the NCBC for an opinion they said ‘no way’ without any convincing data. The Govt decided to go ahead and announce the inclusion of Jats anyway. Now this is the state of affairs as the case lands in the lap of a 2-judge bench of Justice Rohinton Nariman and Justice Ranjan Gogoi.
The judgment examines a lot of issues – particularly the powers of NCBC, the method used by ICSSR (the social agency which conducted a study), and some available data. They ruled against inclusion of Jats in the list on the following reasoning.
The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.
pp 55. Ram Singh & Ors vs UOI
Put simply, what the bench is saying is. “The party is over folks, you cant get in merely because others have got in and they may be better positioned than you“. This is akin to pulling up the ladder after a certain number of groups have acquired the ‘inside’ status. Do we really think a large organized community like Jats (or Marathas or Kapus) will accept this line of reasoning ?
The judgment went on to say that it prefers discovery of new backward classes like the Transgenders who cut across castes. This part of the judgment was celebrated in the media. I fail to see why Transgenders should be given any quota. Accommodation yes, quota no.
Equal or separate processes
In my view, the judgment is fatally flawed on the following point “Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions” I would go a step further and state that the protests currently happening in Haryana turn on the moral unacceptability of this logic.
The judgment actually does a remarkable job summarizing the relative positions of Jats, Ahirs, Yadavs, and Kurmis. Reading the initial parts of the judgment you get the feeling like they are finally about to take the bull by the horns.. consider these factoids.
Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical education, Jats lag behind Ahirs/Yadav
26 (out of 90) MLAs belonging to the Jat community and 4 Members of Parliament (out of 15), (Is this a factor ?)
Kurmis have 11.2% in professional education. Share of Jats is only.0.3% that is way below the share of Ahir and Kurmi shares (UP)
Among the Jats, 7.5% households have at least one member who is graduate, which is lower than the Ahir and Charan (RJ)
Jats with composite score of 1.17 are behind Gujars (1.34) and Ahirs (1.22). On net social standing, the composite score of Jats is 17.24, which is significantly lower than the Gujars (27.14) and Ahirs (19.85). On composite economic score, score of Jats is 16.55, lower than Gujars (19.38) but higher than the Ahirs (14.86). (Delhi)
After collating all this relative information, the judgment completely disappoints.The honorable judges dismiss the comparative data completely as of no relevance.
The question framed should not have been whether the proper procedure was followed in declaring Jats backward. Whether the NCBC rejection was binding and surrounding issues.
The question in my view should have been framed as an Article 14 issue – as an ‘equal protection’ case.
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
The above sentence is the much mutilated Article 14 (equality) clause in the Indian constitution. Now I fully understand that the Indian constitution has juxtaposed “Idea of India” doctrine as an exception to “Rule of Law“. Remember that the central proposition in Rule of Law is uniform application and that the central feature of Idea of India is to create separate processes for groups.
Even if this is the case, the equal protection clause must guarantee that every community has the same process to get into the exception category. I repeat that – its not that you cant pick out groups for separate treatment but the process used to pick out groups for such treatment must be uniform.
Now turn to the facts of the OBC lists – the Idea of India jurisprudence has split the population into “Inside groups” (those already included in the list) and “Outside groups” those wanting to get into the list. The biggest problem is that those who are already inside did not go through the same process of measurement that the outsiders are being subject to. This is a gigantic anomaly that cant be brushed aside. This is especially important in a ‘game of spoils’ where there is no stigma to call your self anything as long as there are special and exclusive goods to be had.
Once you cast (no pun) the question as one of equal protection – it is clear that the Jats are being asked to come through a very highly fortified front door while there are others who are inside on much looser criteria through the back door. Also the revisions to the lists are not happening even in boundary conditions like Tamilnadu. This only means that inside group members seem to be permanently immune from scrutiny and even quantifiable relative data to outside groups now will not be accepted.
A relative test
My view is exactly 180-degrees from the judgment. The inclusion and exclusion issues must be purely relative. There cannot be any absolute measure of backwardness because remember that within the OBC group there is a pure meritocracy. The “List” ought to be the central subject of all litigation and the main job of the statutory body and the judicial review process is to preserve the integrity of the list. All it should take for Group-A to declare the entire list invalid is to show that there is atleast one Inside Group that is better off than atleast one Outside Group. At the state level, things are totally absurd. I have proved that in Tamilnadu the situation is out of control. There are no students from the open category getting through PG Medical Tamilnadu Seats in top colleges.
It is also important to not expand the domain where the quotas can be asserted. Especially dangerous is local body quota which distorts the entire democratic process itself. Another live wire is sectarian spending such as group wise scholarships, special schools and vocational training only for some groups, special financing, and such like.
Careful of that Pandora’s box
One of the dismaying phenom in India is the following : The establishment try some mad-scientist experiments with the Rule of Law (which evolved in the west as an outcome of centuries of bloodshed) , the experiment doesnt work, so they drop some assumptions and open an entirely new can of worms. In the previous regime, if there were 8 people who could wrap their heads around the issues, when you drop down a level and open a can of worms only 4 can handle it. This has been going on for too long. Now no one seems to have control of the situation. Some new can of worms ready to be opened are.
Can all states be like Tamilnadu ? Declare 90-95% as backward ?
Can all groups (castes/religions) be given a pro-rata allocation ? Remember this was the issue in Champakam Dorairajan vs Union of India that prompted the first amendment. Stunning we want to go back to the Communal G.O in Madras Presidency after 70 years of Independence.
In any invidious law ; the people always measure their impact with respect to other people. If a Jat aspirant loses a bank job, it is someone else who gets it. This is the source of the tension and only a relative test can soothe it.
Truly a crisis situation. Only next to the rot in our education laws.
Delhi schools run by non-minorities lose all admissions autonomy under media coverfire of lies and deceit
This is not a post in response to an individual or a media reporter or columnist. A monumental change as been effected in the domain of education in Delhi. The true facts are being hidden by the media and as a result people are misinformed.
Essentially this is what happened : The AAP Govt in Delhi led by Arvind Kejriwal cancelled the “management quota” in private schools run by Hindus (non -minority) in Delhi. There was a circular issued by the Delhi Govt that listed 62 “discriminatory criteria” and in hidden in that list was the ban on “management quota” http://www.scribd.com/doc/294792579/Delhi-Government-Quotas
To really understand what is going on you have to be informed of three things.
- What is a “management quota”
- How does the points system based lotteries work
- The applicability of this rule and the impact
What is a management quota ?
The 62 criteria ban almost everything along with a list of ridiculous or purely imaginative items. Along with “Points for kids with a Labrador Male Dog at home” being banned – they also snuck in a ban on Management Discretion. Gotcha !! This kind of combing operation is required in all laws created by Idea of India types. Now lets see how this works.
The points that arent banned speak more about the arbitrary ass backwards rule making.
Second child points are ALLOWED . But First Child Points are “discrimination against parents desirous of seeking admission for child that is not first born”. You know why ? Because this is the Sibling Quota.
Alumni points are ALLOWED. But Parents Education are “discrimination”
So there is no rhyme or reason behind this. Be that as it may, this is not the main issue here. Along with a random laundry list of 62 banned items ( and not 62 other equally egregious items) – they banned “Management Quota”. This is where the crux of the situation is. May also be illegal as the Delhi HC has allowed it and an appeal is pending in SC. But first you need to know the facts of the matter.
At the present, non-minority unaided schools have to run three streams of admissions. The management quota can be 10-20% not sure what the number is but it has been in effect for a long time in Delhi
- 25% RTE LOTTERY- EWS+DG (Caste based – including OBC non-creamy layer at 6Lakhs/pa) all in one lottery pool
- 60% TRANSPARENT POINT LOTTERY – using a pre-announced points system + lottery (this is the 62 good points list)
- 15% MGMT – this is purely at discretion of management. Can give to anyone at their wish.
This is the 25% quota introduced by UPA in non-minority schools. Dont want to spend much time discussing this except to state the rules here are not being clearly propagated to the people because of its inherent immorality. The media creates a din and smokescreen by using “EWS” and does not talk that this quota is not for the poor at all. The quota is for EWS & DG (Disadvantaged group) in a single lottery pool, The lottery pool is in total violation of all known norms of classification by including a 1Lakh EWS with a 6 Lakhs OBC. This classification ought to be declared ultra vires of the constitution.. but I digress. Lets just say this is a “political quota” and a moral and monetary tax levied on non-minority schools and move on to the real issue here today.
Points based lottery
When the points of all kids are computed they fall into buckets (say 4 buckets). What then happens is the following
- At bucket 1 (highest points) if more candidates than seats. Lottery! If not all admitted and move to next
- At bucket 2 (second highest) if more candidates than seats. Lottery !! If not all admitted and move to next
- .. and so on.
So we have a multi level lottery system that is imposed on schools. Remember that if at any bucket the total number of seats is less than candidates, the lottery ends and people with lower points get NOTHING. This is not a quota system.
Repeat again with an example : Say if a kid was not an alumni kid and not a sibling and there were more alumni and siblings than seats – the school is required by LAW to give ALL SEATS TO ALUMNI and SIBLINGS. It does NOT MATTER HOW VIRTUOUS AND DESERVING OR POOR THE LOSING KIDS are (This only applies to non-minority Hindu run schools only) So this is a morality code imposed on non-minority schools. But let us assume that is a further “tax” imposed and move to the main issue.
Imagine if you, a charitable trust, are running a school say Shree Shankara School in Delhi. It is your own philanthropic project and you have built the school as per your own motivations and preferences. The management quota of 10-20% is what allows you to GRANT a SEAT IN YOUR OWN SCHOOL to any kid who fits your description of your own philanthropic/educational impulses.
This is a complex issue below the surface so here is an example: You find a bright kid in your neighborhood who is poor or disadvantaged in ways that YOU think are valid. With a mgmt quota you can simply offer the kid a seat and derive that psychological satisfaction that drives all philanthropy. Without a mgmt quota you can enter him into a lottery system and hope she wins, in your own school. This defeats all impulses that drive Hindus to participate in a school sector and deflates their social stature. Remember that minorities can do whatever they want. In the same scenario : you can have a Catholic priest walk by and see the same kid and act as a benevolent saviour on the spot and therefore derive the psychological advantage that is denied to an equally placed Hindu.
On the institutional side : Removing management quota means that you have NOTHING to offer to anyone in exchange for anything in your own school. This means no one has the private incentive to contribute to the school. Remember that RTE quota does not offer a full refund for the EWS+DG group therefore the cross subsidy is borne by the other students anyway. One way for the school is to accommodate wealthier people and use that to build infrastructure that all other kids can then use , or to hire more expensive and better teachers that teach ALL other kids. Without this quota – there is nothing left in the tank.
Another area is a lot of schools use their discretion to tie up with Corporates and Multinationals who need to accommodate their executives who get frequently transferred. This is a win win situation as there is a corporate money that comes in and is used to elevate all the kids. Without mgmt quota, this cannot happen in Non-Minority schools.
The minority exemption
As I keep saying about the Right to Education Act,
A bad law that is bad for all is a bad law.
A bad law that applies only to your Group-A is not a law at all.
Minority schools can have any selection criteria and get pick and choose who they admit. Education in India may not be a commercial activity due to its non-profit constraint but it is still a competitive sector. It is competitive in a most basic strategic manner because it is widely recognized that schools are the only way a culture can replicate itself. All philanthropic benefits are denied to Hindus and are fully extended to Christians because they are allowed to be true saviours. Why? Because a true saviour must necessarily have discretion. They can also admit corporate kids, kids of important political figures, industrialists and extend their influence in other areas.
Minority schools are not on the fringe in Delhi. They form the creme of Delhi schools and all over India.
This is not to be interpreted as an intolerant attack on Christians. No country does this kind of law. Not even Italy. If the law hypothetically also imposed on Christian schools we can turn it into a political issue and seek allies across the religious Idea of India divide.
PB Mehta has a new article in the Indian Express “Upside Down State” that talks about the Indian state and public goods. He rightly notes the trend for the Indian state to vacate space that any state ought to dominate (education and health) and to occupy space that has little public utility (airlines and hotels being the stock examples).
Yet proportionately, so little political effort has been expended to improve public education. It is a pipe dream to think that we can build a good, equitable education system without a major revival of public universities and government schools. And a strong public system will automatically “regulate” the private system by reducing demand. But it is a sign of how warped our thinking on the public and private has become that we are happy to hollow out the public where we should not, and regulate the private in ways that are counterproductive. –
Instead of a tweet series, I thought I’d just put up a short post on it.
The increasing trend with any analysis of Indian issues is the unwillingness of policymakers, think tanks, and public at large to confront the most glaring underlying framework that gives rise to the anomalies on the surface. This is the strange legal doctrine called “Idea of India” and the apparatus that is built around it. If you ignore this – you get everything wrong. Instead of a proper analysis you get only hand wringing. Take the public education system.
- The division in Indian edu law is not private vs public at all. But Minority vs Non-Minority. Call me a bigot but hear me out first. In Indian edu, law private minority aided schools which ought to be identical to public schools operate as defacto private schools . Post the Right to Education Act : Public Minority operates as Private. Private Hindu operates as Public. When I say ‘operates as public’ I mean the loss of two things – 1) nomination power (which students to select) 2) quotas which represent state confiscation.
- The high barriers to participation of majority community in education is the reason why politicians enter the education sector. They control the NOC (a No Objection Certificate) process – hence are able to self deal. Is this undesirable? The group here typically is largely not interested in education per se but for the profits in the sector. They maybe brawny netas but are in reality unsettled due to transient nature of their power and lack of legal guarantees – so do not invest in long term initiatives. It is also pertinent to note that they usually only enter higher ed and not schooling which is a tougher problem.
- What about Govt Schools ? PB Mehta asks “so little political effort has been expended to improve public education”. What would a political effort in this space look like ? First of all it is very important to recognize the herd of elephants in the room. In “Idea of India” land the day to day realities are completely disconnected from these high level questions. Post the 77th Amendment and even before that – communal quotas in Teacher Recruitment and Promotion far from delivering social justice has changed the nature of the product itself. To explain : “More representation in Sector X (meritocratic teaching order) is not the same as Pro-Rata representation in a (communal group quota teacher order)”. In High court after High court – the cases of violation of recruitment in Teacher Recruitment Board, communal roster point anomalies, sub quotas are the routine cases. Keep in mind – govt teachers are extremely well paid, so there is no point in pouring more money into this. They also almost no accountability because the roster point system ensures their intra-se status relative to their peers. I suppose at this point I need to mention how the 200 point communal roster in teacher promotion works but that would blow up this post.
- Why is there no political effort to do XYZ..” is only a question if the political effort to do XYZ will result in the blokes getting re-elected. This is true in Rule of Law countries as it is in Idea of India. A political effort to improve govt schools would require you to open up the following issues 1) Minority Aided school issue where different service and recruitment rules apply 2) Opening up the entire issue of quotas in recruitment and promotion 3) Subjecting teachers to measurement not based on qualifications but on performance 4) giving the principal who may belong to an outside-group full power over teacher cadre from inside-groups 5) reopening the 77th amendment .. and on and on. see ? hardly a pleasant task.
- What is hardly a pleasant task for intellectuals is like kryptonite for politicians who have to work the Idea of India landscape. Any one who opens up the issue of quotas in teacher cadre risks not only drowning himself but taking his party along with him. The boat sinks.
So due to the unpleasantness of looking under the kimono of contemporary issues and always finding “Idea of India” type unapproachable issues it is better to just focus on the superficial. Therefore groups that occupy a higher status like minorities just want out the the whole situation and carve islands of exemption for themselves. This is not just the case in education but also in overall governance. Minorities who say “f_ this , just give us our share and we are gold” are encouraged by the UPA govt. This is how the sectarian scholarships, the MSDP public works in 25% minority districts and other schemes are headed. This is countered by others on the Sanghi side who want the kind-of-same-but-not-the-same thing but are not able to articulate that. This is a dangerous situation.
The whole system is neither private nor public, neither regulated nor laissez faire, neither here no there.
And it is not even 10AM in Idea of India Stan.
“You will not believe what the Congress party has gone and done ” – this is the reaction of many who first read about the National Herald Scam that is currently rocking the country. To assuage this initial shock , the Congress Party is tweeting frenetically various defences of real and imaginary charges that will in due course be heard in the court.
The transactions are extraordinary and unprecedented – as the Delhi High court judgment says. What makes the National Herald case hard to comment on is not that the transactions are one of a kind, but that the counter arguments put forth by the Congress Party challenge you to step down and question long settled assumptions. It is quite natural for most of us to exit at this point. Let me explain this further because this will be the target of this article. We just know by intuition that self-dealing is wrong. We just assume that it is so based on our own moral and ethical codes passed on by our cultures. Say you donate to Help Age India you assume that even though the money has left your hands the trustees wont simply take all the money for their private use – even if the private use is virtuous. We sort of just get it that ‘you cant splitz the stuffs and run yaar‘ without having any statute dictate that to us. This is what is known fancifully as the Non Distribution Constraint. Law meets morality and they agree. Now let us drop that assumption : What is wrong if trustees are given total freedom to self deal. The range of self dealing transactions consists of outright larceny which is taking actual money and putting it in your wallet to spinning off rival trusts and the ability to rearrange the concentration of interests at will. Why not let the fiduciary persons instead prove their business acumen and efficiency ? This is where the Congress Party has taken the debate. They deny outright larceny but that is not even the issue.
A 2 Min Recap of the Triple Play : Hop-Skip-Jump
There are three transactions in question. Lets call them Hop-Skip-Jump.
Hop : Associated Journals (AJL) is a dormant Public Limited Company with large real estate assets it appears that it is a mixture of freehold and leasehold. If leasehold the property value is pro-rata adjusted for the remainder of the lease. The National Herald Building in the heart of New Delhi appears to be the most valuable property and hence the scam is named after it. There are thousand plus shareholders and a board of directors whose chairman is Mr Motilal Vora. To wind up operations AJL needs to settle employee dues and that needed 90-odd crores and the Congress whose treasurer is also Mr Vora gives that money.
Skip : Now instead of owing 90Cr back to the Congress Party, a new company ( a Section 25 Private Limited Liability) called Young Indian is created. Starring in this new company are Sonia Gandhi, Rahul Gandhi, and Motilal Vora ! The Congress Party writes off the 90Cr loan without making any attempts to recover it and transfers this to this new company for a meager 50Lakhs.
Jump : The new company Young Indian strikes a deal with AJL where lakhs of new shares are issued to Young Indian essentially washing out the existing shareholders into minuscule minority (1%) . This is conducted by the Chairman of the Board who is also Motilal Vora !! But the beneficiaries are Mrs Sonia Gandhi and Mr Rahul Gandhi with 76%.
Post this 3 step deal here are the positions of the parties :
- Congress – poorer by 90Cr.
- AJL shareholders – washout.
- Young Indian – poorer by 5 Lakhs paid up capital but new trustee of AJLs estimated USD $1Billion property base
The self dealing transactions which the Congress does not deny and their defences in detail for each of them are the following.
- Hop : Mr Motilal Vora is Treasurer of the All India Congress , the name itself implies someone who guards the ‘treasure’. This person is in a clear position of a fiduciary. In this case the fiduciary lends 90Cr to a Public Limited Company where he is the Chairman and MD of the board. It seems it was argued by Congress lawyers that BJP invests in Canbank Mutual Funds too !! What is missing is that mere disinterested investment is something a treasurer ought to do to maximize the beneficiary interest. So they ask what if there is self dealing as long as it is beneficial in some abstract sense.
- Skip : Write off loan. This is Vora again who loaned himself – the CMD behind the veil of AJL – writing off the loan. This loan is due to the Congress Party coffers filled by thousands of members as a result of active solicitation. Here is a news story where Motilal Vora demands party members pay up. ( “Vora feels the pinch as Congress Partymen dont pay up” / “Rajasthan legislators default Vora demands payment” ) The Congress response to this is two fold : 1) Use the word “entrusted” in a clever way. This money apparently wasnt ‘entrusted’ to Congress to mean that Congress Treasurer does not have a Trustee, i.e. Fiduciary responsibility. 2) Question standing of outsiders. “You are an intolerant Sanghi hence who are you to ask, our tolerant Congress members dont care if their money is siphoned as you are incorrectly claiming.”
- Jump : The most audacious – the loan that was written off is assigned to a special purpose vehicle called Young India , a Private Limited Liability company with Section 25 (non profit/ charity) status. Once again Vora is a director with 12% where the 1-plus-3/4th majority (76%) is held by the Gandhis. Vora then using his position as Chairman of AJL turns over 99% of the company to this new company. I call Young Indian a special purpose vehicle because there is no evidence that it engaged in any other activity before or after the deal. To support the ‘jump’ transaction the Congress claims that not a single penny has been taken out and since this is non-profit company the Gandhis cannot financially benefit.
The Congress defence basically then consists of a) disowning fiduciary duty of the Congress Treasurer (no entrustment argument) b) questioning standing ( if Congress members dont care who are you to ask) c) since a non-profit company is now the owner of the properties there no wrongful gain (not a penny taken out)
The Fiduciary Test
By now it must be clear that the Congress is essentially not denying that the hop,skip, and jump transactions were instances of self dealing. What they are saying is that the deals are fair and that they wont take a penny. This should alarm everyone who deals with Trust issues because it breaks the entire model. In my view, this is the essence of this case so lets see what this is about.
Who is a Fiduciary ?
“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence”
A fiduciary “must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations.”
Even though this is from the UK, this makes sense even in Indian context we have for long known the role of the Dharma Kartha – the temple manager who was entrusted with accounting expenses. The common law rules in this domain are not far off from the Indian traditions.
Now the central question is : If a fiduciary self deals can we allow that and then test it ex post facto on the basis of a fair deal test ? If a treasurer acting as a fiduciary advances a loan to himself but paid 1% over market rate. Should that be allowed? Here is where things get interesting.
Most countries especially those derived from common law tradition disallow any self dealing NO MATTER HOW beneficial it is to the trust. To understand why they do this – think about what will happen if they did the opposite. Any trustee acting as the legal owner of funds could self deal in any manner – then it is the beneficiaries and donors to hit up the court seeking to void this or that transaction. The burden on the court is to examine EVERY such transaction to check if a fair deal was obtained. This is totally outside the domain of the courts expertise. So they just ban self dealing at the front end to prevent such painful ex post facto assessment. The rule is called the “No Further Inquiry Test” – here is Lexis Nexis explaining the rule.
Self-dealing is simply not tolerated in the relationship between a fiduciary and those whose interests he or she is to protect. In attempting to address the problem of self-dealing, a bright-line prohibition has evolved in trust law so that where self-dealing is found, the Court will make “no further inquiry.” It is immaterial whether the transaction was fair, or even if it garnered favorable results.
Source : Lexis on the self dealing fiduciary
With corporates we generally have mechanisms to check self dealing by requiring executives to get permission from the board for certain types of transactions, various disclosure requirements for family member of directors, and finally the business judgment rule to test if senior executives did pursue meaningfully the best considered option. But the standard is much higher for those holding trust property such as the Congress Party. Now you understand why they are seeking to present that ‘funds are not entrusted rather just donated” ? A piddly wordplay is not an innocent sentence but a giant leap.. To suggest that people just throw money at the party and do not expect the treasurer to act in fiduciary capacity. For a minute stop here and see how low the party of Nehru , Gandhi , and Patel has sunk to make these kinds of arguments that appeals to ethics of very few.
Non profit – cant take a penny
The argument goes : Even though the Young Indian company now owns the properties including National Herald House it is not a big deal because it is a Section 25 (Non Profit/ Charity) company so no profits/dividends/remuneration can be taken out. I dont think anyone really believes this argument. First of all , the non-profit constraint does not preclude using the real estate assets for commercial use. So AJL which is now 99% owned by YI can rent out those properties but the money can be used by YI only to further its charity objectives. The stated objectives are to ‘inculcate secularism in youth’. What they have really done is to create a massive endowment which can then pay for various activities like funding think tanks, lucrative op-ed consulting contracts, partronizing various kinds of people as awards, not to mention building a large team of salaried staff. Therefore an entire ecosystem can be built without the directors Mrs Gandhi and Mr Gandhi and others taking ‘a penny out’.
In my view the real interesting thing that arises out of this case is the future of Indian Trust Law. If we do not adopt the “No further inquiry rule” in Indian courts then we will open up a Pandoras box that can go on to destroy the entire fiduciary-beneficiary relationship.
One interesting angle in this is the “Idea of India”. If you think there should be extraordinary processes – then it is perfectly understandable why the Gandhis are putting up such an unsightly fight. It is important that they demonstrate to the regional satraps like Laloo that they have an inside track in the law. That in itself is a major attraction for these groups who hold key to political power. If you also concede that fiduciary self dealing be allowed if it is a fair-deal then you need to combine the two. I would then argue that is absolutely a great deal that properties vest with the people who have immunities from pesky laws that affect the others.
S. Gurmurthy’s article explaining the transaction details http://www.newindianexpress.com/columns/s_gurumurthy/National-Herald-affair-It%E2%80%99s-fraud-all-the-way/2012/11/08/article1332271.ece
In Tito v Waddell (No 2)  3 All ER 129, 241 Megarry V-C said: “The self dealing rule is (to put it very shortly) that if a trustee sells the trust property to himself the sale is voidable by any beneficiary ex debito justitiae, however fair the transaction.”
A really good Self Dealing guide prepared by Price Waterhouse funded by Ford Foundation (for US viewers). Explains prohibited transactions and disqualified persons and IRS (US Tax guy) strict rules for 501(c)(3) – their version of Section 25 – http://www.wvgrantmakers.org/data/sites/1/banners/pdfs/news/self.dealing.guide.pdf