Reality Check India

Links to Manipur and Rajasthan – anti mob violence bills

Posted in Uncategorized by realitycheck on July 31, 2019

Just sharing the copies of the two bills that define a new class of crime for ‘mob lynching’.

 

Hope citizens read and analyze these,  the governments are passing them fast without challenge or debate.

 

Manipur Protection from Mob Violence 2018  : mobviolence

 

Rajasthan Protection from Lynching Bill 2019 : Bill22-2019

 

Harsh Mander  (Karwan-e-Mohabbat) an activist working in this vertical of Communal Violence : Manipur shows the way on new Anti Lynching Law

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The EWS quota wrench in the Idea of India process

Posted in Uncategorized by realitycheck on July 7, 2019

In 2019, the Narendra Modi govt announced a 10% quota for “EWS – Economically weaker sections”  by passing the 103rd Constitution Amendment which introduced Art 15(6) education and Art 16(6) jobs into the Indian constitution.

‘15(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5);

gazette notification dated 12-jan-2019

In my view, this is the standout accomplishment of Narendra Modi’s  first term because it is addressing a core agenda item no 3.   Like all core items, these may not create noise but permanently disrupt the earlier idea of India equilibrium.  Several controversies  have arisen in the wake of this EWS quota.  Here I try to answer them in a Q&A format rather than a long winded essay.   I believe it is the right format because the questions are as important as the answers to them.

Q1. Why are people opposing quota for all poor , since this is poor from Open Category?

Lets get this common misconception out of the way. The 10% EWS quota announced is only for those NOT covered under reservation.  Only those castes who are disqualified from availing OBC, SC,or ST status would be eligible.

On the other hand, since there is no list of Forward castes ,  in theory anyone can reject their birth caste group and avail of this quota instead. In practice however, this may not make unless there is advantage of doing this.

Q2. It is unconstitutional to give EWS quota 

A common strategem of Idea of India groups against #core3 is Justice O Chinnappa Reddy’s famous observation during Indira Sawhney case –  ‘reservation is not a poverty elimination program‘ .   Dravidian ideologues like the erudite Prof Suba Veerapandian have latched on to this for years justifying the inclusion of the creamy layer in Tamilnadu.  This has denied  benefits to millions of poor OBCs while enriching the already advanced groups.  The correct response to this is  :

While it may be true that reservation is not a poverty reduction program, it certainly does not  mean ‘reservation is an unjust enrichment program‘.

The Supreme Court is about to start hearing petitions challenging the constitutional validity of the 103rd Constitution Amend starting July 16 2019.   But keep in mind ,  this is a not a review of a law against the existing provisions of the constitution.  They are not bound by the usual core3 cases like Thakur (2007),  Sawhney (1992), MR Balaji (1962).   The upcoming judicial review will be a basic structure test. Think about it,  if the Supreme Court were to strike down the 103rd Amend it would be in effect be saying  “Helping the poor of the general category  is against the basic structure of the constitution” !!  This is an extremely bizarre position and would require significant literal obfuscation by the ecosystem to make palatable.  The expansion of #core elements across India will make this task much more difficult.

Q3. Do you support EWS quota ?

No.  It is crazy. I have already stated during the RTE case , EWS quota gives a permanent benefit on what is a temporary disadvantage.  Peoples fortunes change all the time.  You cant put a checkpoint at a particular instant and then give a permanent benefit based on that.  This is especially true of high echelon goods like MBBS admissions.  It is unacceptable that a student has to give up his MBBS seat which determines his entire life trajectory just because his dad committed a crime of owning a flat, or succeeded in a job.

But .. but.. but.. there is a gotcha.. see next question.

Q4.   So you dont support EWS, so why are you jumping ?

Well core analysis always look at the entirety of the picture and not unbundle and then pick and choose.  There are two issues in the current reservation regime which makes EWS a necessary check.

  1. The startling delinquency of the judiciary in monitoring of the OBC group.  This is the fundamental issue.  Until now the idea of India jurisprudence adopts a ‘rational basis’  standard to examine classification of groups.  In simple words,  it defers to the political players to select their groups for special treatment.  The jurisprudence also invidiously discriminates between the INSIDE and the OUTSIDE groups.  For example – in the Jat 2015 case the honorable court  put a very high evidence bar on entry of outside groups into the inside. But those already on the inside are permanently immune from that same level of scrutiny.  I recall blogging the KGB court with  much bombast in  2007 Thakur case announced a full monitoring of the OBC group in 5 years or 10 years. Both the deadlines have come and gone.
  2. There are some mechanics issues with the system that demand a separate quota for unreserved. An example is  the Roster System followed in promotions.  It can be mathematically proven that the roster system and the consequential seniority issue  can wipe out the unreserved , with enough turns of the roster.  The effects will be apparent as time goes by and the senior tier retires.

Seen in isolation,  the EWS quota is absurd. The full picture demands you have to account for the  Idea of India jurisprudence that defers to the political forces to reward the very groups that sustain them.    I believe this has major effects – groups like Marathas , Kapus, Patels cannot wait forever  biding their time  for #IOI jurisprudence to develop a spine , i.e develop a first principles position.  The spine.

Q4. What a joke – how is the the 8 Lakhs limit economically weaker ?  

In a Dravidian Kazhakam meeting last month, Prof Suba Veerapandian drove home this point to a gullible Tamil  audience who cheered –  rather mindlessly.  He called out “Not only was the EWS quota anti-social justice but the limit of 8Lakhs was a joke.” (paraphrased) 

There is some truth to it, how can you call someone who earns 5 times the per-capita as EWS?  But the issue is not that simple when you apply a core type analysis. This is going to be really counter intuitive .  Follow me, you will get the A-Ha! moment.

Will a 3 lakhs limit be better?

I am going to directly use Tamil Brahmin as a stand-in example to expressly answer the Dravidians. Stay with me.

Say the EWS quota were to be restricted to poor tamil brahmins who earn less than 3Lakh instead of the 8Lakhs. Would the DK then support it?  The lower level cadre will say yes. But the upper levels will be quite alarmed. Why? because you have to see all quotas as a state allocation program.

Every state program has a “social-impact-index” independent of the ecosystems efforts to hide it.   The poor among the  BC , SC,   do not get any benefits because the targeting is at the elite layer. The dravidian argument is that targeting the elite benefits the poor via trickledown. A highly specious claim, but be that as it may.  To this scheme lets assign  a social-impact-index=50,   if you introduce a program for poor tamil brahmins at 3L, then you directly and highly efficiently target the poor rather than the elite trickledown, so that has a social-impact-index=100.

Therefore instituting a 3Lakhs cutoff for poor tamil brahmins and having no such program for poor among BC/SC/MBC means the state gives  a high-social-impact  product to the brahmins and a low-social-impact  to the non-brahmins.  On the ground this will manifest as a son of a tamizh brahmin dosa master cook getting the benefit directly  but the son of a non brahmin parota master getting nothing and waiting for trickle down from the hotel owner.

This kind of anomaly will  expose and decimate an  elite targeting movement like Dravidianism.  Clearly Prof Suba Veerapandian has not really thought it through.  A hypothetical smarter BJP would counter this by reducing the income cutoff to 3L and then see how they respond.

Even a 8L cutoff in TN suffers from the issue , because BC/SC/ST students whose parents make less than 8L get no special treatment.   But the effects will be more muted than a much lower cutoff.  I am willing to bet, while hearing the case  the Supreme Court will get caught up in this paradox and miss the nuance completely. They simply have not evolved the  bedrock principles to analyze these things beyond superficial.

See this video of Prof Suba Veerapandian delivered to a packed Tamil audience.

Watch the cunning deception here : on one hand they say  “Reservation is not a poverty reduction scheme” while justifying the targeting of the elite.  But when cornered on that , they switch to economic grounds.  In the above clip he says in   Tamil ( மாடு மேய்கிறவர்கள் , கூலி தொழிலாளிகள், தன முதுகில் மூட்டை சுமந்து வேர்வை சிந்துபவர்கள் , துப்புரவு தொழிலாளிகள் – இவர்கள் எல்லாம் ஏழை இல்லயாம் , அனால் மாதம் 64கே சம்பாதிக்கறவர்கள் ஏழையாம் )  in English – (those who herd cows,   daily wage coolies,  those who lift gunny bags on back for a living, those sanitation workers, they are not poor. But Modi govt has announced that 65K per month is EWS.)

The  gullible and low info Tamil crowd laps it up and no one on stage has a proper response. Dravidians should not use the gunny back lifter  to justify their stand, they should use  doctors, professors, and govt servants in  defence of their stand.

 

Q5. Why is this such a hot issue in Tamilnadu  alone ? all states notified 

If you are a non Tamil, you can skip this section.

Most states across the country , Assam, MP, UP, even Momata’s  WB, GJ, MH,  have notified the quota or are will notify it next year.  What is surprising is even the Dravidian states – Karnataka, Andhra Pradesh, Kerala , Telangana are implementing in various forms.  So the question for Prof Suba Vee is – how come your Racial dravidian brothers have no problem with this?

Upon deeper analysis you find the root of Dravidian exceptionalism lies in the numbers.  The annual  MBBS admission  numbers provide a rare peek into the statistics. I monitored the last 5 years and found that only between 4.5 to 7% of the candidate population is classified as Unreserved , i.e. Forward Caste.  The similar number for Andhra are roughly  42%, Telangana 47%,  Kerala 40%,  Karnataka 38 to 42%.

We can have many conversations about social justice and dravidians but the elephant in the room will always be the following. The  very real possibility that Dravidian movement at its core is not interested in social justice at all  but in outright discrimination against one group.  As one judge remarked , if a state scheme gives privileged treatment to 94% of the population then you have crossed the line into reverse discrimination. Unless of course you have data to show that the 6%  dominates to the extent that justifies it.

I used to wonder why Dravidian intellectuals Aasi K. Veeramani, Pera Suba Veerapandian,  and Dr Pazha Karuppiah never proposed an easy truce settlement.  You do not have to like the tamizhbrahmins – to say  ‘here take your share and fo’  this truce will leave the Suba Vees in peace  to build their glorious Dravidian society.  In one stroke you will silence all criticisms of the reservation.  After all,  Dravidians themselves gave 3.5% to Christians and Moslems.  If you do 69% , why not do 72% and in exchange buy complete peace and immunity?

One is helpless but to draw the correct inference from this strident stand.   If Dravidians concede the 3% , then they also concede their primary raison-d-etre , which is anti-tamil-brahminism.  Their top tier knows that if they give the share, then the thundering speeches of intellectuals like Pala Karuppiah will sound hollow and toothless.

A second , more dangerous issue, is if Tamil Brahmin get the 3%, then the focus will turn inwards into the vastly disparate  Dravidian group itself and demands from other castes to get a look into their share.  That is always the existential danger in TN politics.   Never look under the kimono.

Q5.  Is the 10% quota for EWS a ‘slow poison’ for social justice

Stalin thundered recently

Assailing the 10% quota for EWS, Mr. Stalin said it was not only against the Constitution but also detrimental to social justice. Pointing out a report in The Hindu that said that only 1% of the top teaching posts in Central universities were occupied by OBCs, he said while the AIADMK harped on former Chief Minister Jayalalithaa’s efforts in implementing the 69% reservation, the 10% quota would make her achievements go in vain. The present system of leaving 31% seats for open competition candidates was functioning well and there was no need for implementing 10% reservation for EWS, Mr. Stalin argued and charged that the Centre’s proposal was “slow poison” for social justice in Tamil Nadu.

Source : The Hindu

Is giving 10% quota for FC a slow poison for social justice?  Well, as per the Justice Party leaders including Mr EV Ramaswamy himself  – a complete communal quota is the correct model for social justice. Even Prof Suba Veerapandian announced recently that the ideal scheme is “Every community gets it share” .  Their own founders  notified the Madras Communal G.O and eventually lead to the Champakam Dorairajan case and the very 1st constitution amendment.

Regarding the statistic that 1% of teaching job in central universities is occupied by OBC,  it may  true or not.  It is not relevant at all. If  DMK wants this level of data, then it should constitute a proper  Backward Classes commission as instructed by the Supreme Court and demand a study the beneficiaries.  If there is backlog and scamming in Central Univ BC teaching spots, that must be fixed. No argument. there.

Q7. What do the results show in TN

The 2019 NEET results expose one of the foundation lies of the Dravidians. That non brahmin are somehow inferior in academics.  Year after year, I have proven that  brilliant students and toppers  come from the non-brahmin tamil community. EVen in 2009, 8 of the top 10 rankers are BC.  Merit is NOT the preserve of one group. You cannot allow  such a patently bogus and casteist stereotype as  the cornerstone of your ideology.

Q8. Any solutions for TN ?

This EWS is not an issue for rest of India or even the  Dravidian blood states KL/KA/AP. A solution can be a lower 4% and a lower limit of 3L, but see my previous point for the hazard in this.

 

In Tamilnadu, I feel this is an existential issue to the hardline anti-brahmin elements within the Dravidian group, while the social justice focused types might accede to it.  The hardline is always represented by the elite castes who do not have a social justice vision.  For these types – conceding  the quota has the effect of  immunizing against their  rhetorics. Of its  most vulgar, virulent,  and uncompromising elements like Dr Pala Karuppiah.  Their speeches will have no sting left.  Like rabid canines barking at passing vehicles as they get left behind in the march of civilization.

/jh

 

Initiating new members into a fold

Posted in Uncategorized by realitycheck on June 18, 2019

I ran into this Tweet today on my Twitter TL.

this was in response to reports of  a Spanish woman who converted into Hinduism in the Srirangam Temple.

I feel this is an important frontline question that is not being adequately addressed.  At least not to the satisfaction of those raising this question.

Let me first distill out the  real question here to make it simpler.

Say I convert to Hinduism can I click on Brahmin caste.

In such a foolproof manner that others in that tribe will seek matrimonial alliances with me or that I can serve in sanctum of  major temples.

It is important to search and discover the actual question because otherwise you end up answering a strawman.   The Hindu framework can absorb any number of castes and tribes as long as the basic commitments to Dharmic principles and non hostility to rituals and nature worship are in place.  So our new Spanish Vaishnavite  can just start a new caste of Spanish Iyengar or join an existing one based on kinship or geography or race or occupation.  Caste is a kinship identity as well as a function.  Can she convert into Brahmin is like asking can she convert into Chettiar?  It can happen but  entering a kinship group is based on matrimonial alliances.  A different issue from  asking if her new found status  can enable her to  perform certain functions.

The functions today are not hotly contested. Most Brahmins do other functions like work in factory, army, finance and there is no real bar against others doing Brahmin functions.    There is no punishment of crossovers.

The political hot button issue here is that Brahmin kinship group in some key instances also have privileges – the most important one is in temple functions particularly in ancient agamic temples.  This is the single motivating factor behind these innocent questions. 

Based on my analysis of the Dravidian arguments , there are two flavors here

  • Marriage:  Can I convert to Hindu Brahmin and then will you marry  your daughter to me ?   Obviously the answer to that is YES, thousands of outsiders get married to Brahmin by “love marriage” . The real  question here is ; Can I convert and then get married to a Brahmin by Arranged Marriage?   While this is as absurd as asking, can I convert to Hindu and get married to Chettiar, Mudaliar, Thever etc by arranged marriage. This still needs a clear non-emotional answer.
  • Temple :   Can I take a 1yr  course in archana mantra and then become priest like the Brahmin sivacharyas in Madurai  or the Bhattars of Srirangam.  This angle is an institution question and is far reaching.

The marriage question is a specious one because at the root of it is the assumption that  there is some privilege to getting married to a Brahmin women over others.  This indicates a hypergamy desire (marrying a richer higher status)  rather than any social goal.  Marrying into any kinship group needs proof of non-hostility to their customs, rituals , eating habits, lifestyle, and belief systems.  These commitments are demonstrated over multiple group interactions.  Otherwise you end up with importing outside strife into your homes.  There is no further institutional issue involved so we can stop here.

The second one involves an institutional (#core4) question.   Say I am able to perform the basic rituals after a 1 year course  – can I convert to a Siva temple priest class (Adi Sivacarya) ?   The answer to that is NO.

The element that is missing is : degree of commitment.

Unlike prayer houses of Abrahamic religions , temples  in  Hindu fold have incredible diversity of practice, history,  and rituals.  None of them have any central sanction or enforcement wing.  These rituals  survive to this day only because of a multi generational commitment by a tightly knit group.  These sivacharyas / bhattars are not like your secular variety Brahmins.  Over two three thousand years, they have withstood famines, floods, invasions, change of rules, imperial rule,  hostile politics – yet they have not skipped a single day of ritual. Never late, never absent, never less.   They have not succumbed to the IT or modern economy boom – even though they are of the same stock and could have  easily excelled  in these lucrative fields.   This is the level of commitment that has given the Tamil hindus continuity into the past.  Even when others  have lost their moorings and have drifted this group is unshaken and unwavering to their divine purpose.

Impostor threat

Like any tribe, this group too  is vulnerable to impostors infiltrating.   Think about how you enter the Freemasons. The initiation is not a trivial task.  You have to be introduced by a multiple senior  member of the Lodge.  This is an act of vetting  by someone high up in the system as being a non hostile. Then the rituals and the ceremonies which may look nutty to outsider but tie the community together to a high level of commitment. Those longer in the system, more involved,  move up the hierarchy.   I am not suggesting Temple priests are like this rather showing the importance of detecting impostors.

Detection of impostors is far easier  in  Islam and Christianity because a pledge on the book and the prophets itself is a test covering about 99% of the cases.  There  is also  a strict regime for initiation and enforcement of diktats.  Novices  are initially placed in subordinate positions and have to prove themselves  over long periods to a higher ranking clergy.   In Islam the fear of being outed as an imposter is an automatic check due to the death punishment for apostasy.

I have showed how the Sivacharyas have insane level of commitment test that secular brahmins do not possess.  Hence the secular brahmins are not allowed any of the temple privileges either for the same reasons.  They can be impostors too. Imagine Mt Road brahmins  getting into these clans.

Now back to the question. How does one just convert into this group?  In my view,  the 1 year courses to induct new entrants is insufficient commitment.  This sets up a great incentive for an impostor to invest 1 or 2yrs  and then gain  a great strategic foothold into these institutions.   Remember that I am focusing on impostor detection and not on friendlies. The system may select 10 really committed students but it is the 1 hostile that will take you down. Same logic as airport security.

If a hostile impostor gains access, what is the fear?  The following can happen :   Giving false evidence against the insiders,  reconstructing the nature of the deity,  disrupting  the existing rituals using modern arguments,  defamation of devotees,  splitting the erstwhile tightly knit group into political factions,  and so forth.  There is no limit.  Unlike Catholics who have a very strong clergy who can detect and expel these, the Hindu priest order which is based only on long term unquestioning commitment , will be totally exposed to this person.

So does this mean outsiders can never be allowed ?

My take is that there is  merit in the first level rhetoric of Dravidians that all castes should get a shot.  I fully understand those who choose to contest this first level argument itself and eject the debate.  But you have to understand the inherent appeal of this demand, it evokes images of ancient saivaite adiyars like  Nandanar and Kannapan –  very highly committed devotees denied access. Even though the historical  Nandanar was admitted after a  trial by fire — metaphor for a commitment check   If you eject at this first level itself, you cede that space.  What is the strategic value of that space ?  I think  the opponents will park all the guns in that space and shoot at you.

A better way is to respond to this by drawing them into a second level check. A commitment test that only the truly inspired will venture into. A start can be opening up the entry level  as children into vedic / agamic schools perhaps  with recommendations from higher commitment religious personalities from all castes.   Once initiated in this manner along with their families, they will in effect be indistinguishable from other Brahmins.  This would be a win-win.

The bad news is these  kinds of responses need a very strong institutional layer to stage these from. Hence the #core1 ( freedom of education institutions)  is a necessary agenda item.

 

Who can calm the turbulent waters of India’s edu law?

Posted in Uncategorized by realitycheck on April 6, 2019

So there is this bizarre case of Delhi Private Schools being forced to implement the 7th Pay Commission intended  for Govt employees in its institutions.  Then not being allowed to raise the tuition to match the increased wage bill.

This went up to the Delhi HIgh Court and was rightfully struck down.  What we call as #core1  is the most vexatious class of litigation in India because the entire body of India edu law is built on layers of anomalies. Many Judges appear to have resigned to the intractability of these.  What stood out is this brilliant postscript of the Single Judge of the Delhi High Court.

A Postscript

202. It is, probably, too much to expect that the omega to the controversy in this case will stand written with this pronouncement. If eleven Hon’ble Judges of the highest court of the land, the exercise of their collective wisdom, and the classic exposition of the law, as it emerged therefrom in the form of T. M. A. Pai (supra), could not still the waters, my humble effort is hardly likely to do so. I can only, therefore, close with the fond – perhaps too fond? – hope that, some day, calm would descend on the issue, and the educational edifice of our country would get down to doing what it was created, and intended, to do from the beginning – which is the dissemination of education, and the bringing forth, for the eons to come, of a generation enlightened and illumined with the light of knowledge and learning.

C. HARI SHANKAR, J MARCH 15, 2019/HJ

ref: last para  of  https://indiankanoon.org/doc/159433210/

 

Within a week this judgement was stayed by a two judge bench, flinging the whole issue back into the chaos.  Unable to settle any ground principle in this all important sector.

 

 

The Sabarimala judgment and its impact on Hindus

Posted in Uncategorized by realitycheck on October 2, 2018

Lets start with this. Imagine if the Sabarimala temple put up this notice in approaches to the temple.

Dear Sabarimala Devotees 

As you are aware, we the devotees of  Swamy Ayyappa ardently  believe that in Sabarimala he is manifest as a Naishtika Brahmachari. Furthermore, we believe  that when a male deity is worshipped as a naishtika brahmachari, the specific agamas of the temple — based on the injunction in Yajnavalkya Smriti — impose the condition that he not be subjected to the company of women aged 10 to 50 — in any way.

Recently the judges of the  Supreme Court of the secular state of India  have ruled that this Naistika Brahmachari  format  is  “unconstitutional”.  True women devotees of Swamy Ayyappa by very definition subscribe to the same faith that is shared by all of us and they would never act in a destructive manner for self, fellow believers, and for the deity. Lakhs of women devotees have taken to the streets in protests against this outside interference.

 Hinduism offers a marketplace of paths, there are other forms of Swamy Ayyappa or countless other deities.   Therefore, we kindly request women non-devotees to respect our faith that forms an integral part of this particular shrine. Thank you.

This is a direct statement of the deepest beliefs held by the body of devotees – whether some court calls this body a legal denomination or not. The net effect after reading this notice is –  only the truly hostile woman would venture into the shrine to show defiance or make a political statement.

How will the secular state deal with the situation caused by this notice?  The answer – I am afraid can be very alarming.  The notice discourages women by citing the shared faith.  The state can only respond to  this by  committing even bigger constitutional crimes of curtailing Freedom of Speech or even Forced speech.  For instance, a  court can rule that such a direct expression of your faith is itself against constitutional values and hence is unprotected.  You may even be asked to put a humiliating reverse notice repudiating your own previously held  faith and and creating a conducive messaging for women. Or the Communist government of Kerala can use tax money to do it for you.  They can issue a notice in papers discrediting the faith system, announcing the new faith and inviting women to visit. There are already reports of such notices planned.  In the USA, they have an explicit “Lemon Test” that exists to prevent exactly this type of bizarre and endless state entanglement with religion.  Just how far will the Idea of India judicial system go?

Such judicial adventure raids put the pagan polytheists at a distinct disadvantage compared to the Christians and Muslims. This is due to three things

  1. dramatically larger surface area of Hindu practices versus the tight and solemn Christian and Muslim.
  2. the courts have formulated an Essential Practices Test –  which demand evidence of particular faiths.   This fits is easily with the Abrahamic religions where revelation is the central category of knowledge. God has revealed himself and expressed his purpose and clear instructions. They have been recorded in a book. How can you argue with that?
  3. a political price – assaulting Christians or Muslims will invite retribution from international community. hence there is a practical political cost.  The counter needs to be mentioned. Taking down Hindu practices can also  have a political cost because in theory Pagans can also consolidate,  Governments can be voted out,  and the constitution changed. One wonders if is what we are expected to do?

This disadvantage can be trivially  weaponized by strategic players.  Can a “transformative document” view of the constitution  be used to “deconstruct” , “reform”,  or “transform” the heathens  and their the vibrant hindu practices into a easier to legally defend  monochrome  ?  These are not flights of fantasy, we already know strategic  PIL litigation is real due to the absence of standing requirements. Is it really believable that they could not find a single woman devotee of Sabarimala to bring this suit forward?  Particularly when apostasy and rebellion has zero cost for Hindus.

In her dissent Judge Indu Malhotra  rightfully concludes this PIL should never have been admitted.  Even in terms of examining religious practices,  this is an outside deconstruction rather than a court unwillingly dragged into a  schism between believers themselves.   An example of the latter would be the famously comical case of Vadakalai and Thenkalai  Tamizh Iyengar factions whose squabbles over anointing the Kanchipuram temple elephant reached the Privy Council !!  Even though that case had no business reaching the courts  , but at least it was a dispute created by the believers,hence can be analyzed as a civil dispute – i.e, say who has property rights.

Now lets unpack some of the reasoning in the judgment itself.

Religious versus secular aspect

First a little note about the honorable justices, I am leaving Judge Indu Malhotra alone because she has wisely dissented – recognizing the landmines that exist in the new territory the other four pioneers have cleared up.  The four male judges  are not from the catchment area of Sabarimala devotees and do not record any personal association with this or similar pilgrimages. The schooling background of the judges are also relevant because here they are not looking at the secular aspect but opening up the religious. What’s the difference ?

I illustrated this on twitter with an example : Imagine if  Hindus had #core1 (Edu Rights at par with minorities) and Sabarimala ran a chain of secular CBSE schools.  In that chain of schools, imagine if they did not allow girl students.  Then if a case came in front of the judges, you dont have to worry about the background of the judges because they are called upon to rule on a secular matter  – a general education exclusion.

Denial of Right to Practice Religion

Judges Misra and Kanwalikar base their opinion : that the Sabarimala rule is unconstitutional because if offends a womens right to practice religion under Art 25(1)

The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion.

J. Misra, J.Kanwalikar

There are quite obviously situations where  exclusion is valid  – for example I cannot barge into your house and demand to worship Shivan in your pooja room.  So quite obviously there are some overriding private exceptions to the unfettered right of worship.  A very real test is  “how substantially is the right to practice religion”  harmed by this exclusion.  The judgment completely skips that part because that is where the petitioners will lose badly.

The Hindu women right to practice of religion is only negligibly affected  due to the following reasons.

  1. Sabarimala is only one thread in the fabric of Hindu / Pagans.  Women who dont buy into the whole belief system can and DO thrive – they simply select another thread. The evidence of that is the PIL petitioners themselves who seem to be quite content and spirited.
  2. The Sabarimala thread is not sufficiently dominant  that there will be collateral damage to women due to the exclusion. They are not losing out on Sabarimala Trust medical college seats or otherwise suffer any real world disability, or economic or social boycott.
  3. The urge to worship “Ayyappa at Sabarimala” itself is a bogus construct and  Misra and Kanwalikar should not have papered over that.  There is no evidence that women devotees of that age group of Ayyappa want to worship exactly at Sabarimala in total defiance of the faith system.  As mentioned previously, such a scenario would have been a different case. That women group would have constituted an internal schismatic within the Sabarimala fold. Nothing of that sort here.

Biological exclusion and impurity

Judge RF Nariman says

Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

Again the conception of “worship” itself is being used here in a Abrahamic sense.   “Worship”  here  is not the same as Mass or Baptism or other sacraments in Christianity or Islam.  In our pagan Hindu system, we are not mindless people worshiping stones. We worship the “faith, the accumulated history, legacy, past, divinity,ancestors,heroes” that manifests itself through the stone. Over here , the faith is that this is  a Naistika Brahmachari we are dealing with.   Nariman shows little understanding of the disqualification  – it is not because of biological ground of menstruation but because of the unique nature of the deity.  Look at it in the reverse – are Hindu deities allowed to be even endowed with different ‘natures’ ?  In Tamizhnadu, there are deities that we believe are propitiated by walking on hot coals, sacrificing roosters, and rams,  catching a bull.  Other practices involve beliefs arising from taking a dip in Kumbhs and Pushkars in certain holy locations.  Should they just take a shower instead ?  Do we want the court to get entangled at this level and play referee?

This impurity angle can be indiscriminately used to drive stakes into pagan practices, particularly the elevated status of vegetarianism in most public temples. Is the Sabarimala rule of veggie an assault of right of meat eaters to worship Sabarimala at Ayyappa?

 

A form of untouchability – the Art 17 angle

(The Indian Constitution bans “untouchability in all forms” in Art 17)

Honorable Justice Chandrachud’s opinion should be immune from commentary.  His main yardsticks can be bracketed under the “constitutional morality and transformative project” .I feel they are so outlandish that is impossible for any practice to be protected from judicial takedown along any axis.   However , he does use one argument that needs comment. That the Sabarimala exclusion is a form of Untouchability – which is commonly understood to refer to a very specific caste practice.

This is from an article by Dr Tarun Khaitan from July who predicted to a dot in July !?

In the final analysis, what probably tips the balance in favour of the claimants seeking the right to entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in Article 25(2)(b), and the additional weight to their argument supplied by Article 17’s prohibition on Untouchability.

Source : http://abclive.in/analysis-of-essential-practices-test-in-sabrimala-entry-case/

 

First it is grotesque to compare a permanent inheritable social disprivilege affecting man,woman,child of particular castes versus a temporary, isolated, and totally unimpactful exclusion of women from a single shrine. This is also not a case of post-modern  “intersectionality” – where multiple oppression axis combine. Sabarimala is a uniform exclusion of women – brahmin women, nair women, nadar women, SC women.

I feel it is important to point out the bad faith in the Article 17 argument of Justice Chandrachud and his legion of “liberal fans”. He says

Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations of socially disempowered individuals and communities, and provides a moral framework for radical social transformation.

First of all the constitutional mandate of “transformation” is alarming – we are going to have to insist on the specifics. Does this mean transform pagans into believers? Or believers into atheists? or everyone into fools? What is point-A and what is point-B.  How can a country function if such a secretive and incomplete contract is going to be the basis of our relationship with the law?

The bad faith argument is not recognizing the caste-neutrality –  a central aspect of the pilgrimage.

If Article 17 (Untouchability) is your main concern , then the Sabarimala custom must be given the maximum freedom possible.  Judge Chandrachud did not even give it a passing mention.  The pilgrimage  is a glorious coming together of castes  unlike any other denomination.  I recall my own childhood experiences in city buses where all pilgrims irrespective of background used to be called “Saami”. The Sabarimala movement also has spurred a large Guruswami , a special elder priest cadre that is caste neutral. The Gurusamis are the men who initiate others.  There are several instances of so-called  upper castes getting the initiation of the 41-day penance period from so called backward castes.  This should be a matter of great amazement and pride  that such a denomination has developed.    In our #core vision, such a group should be the vector for social change and not some distant rootless judges pontificating on things they cannot comprehend.

Now the response to this will be ; “allowing women does not change any of this”. But it does.  First, It is much easier for men to bond across caste boundaries than if you add women to the mix it gets complicated.   Second, it inserts judges into the bonds  devotees have created among themselves for no “government purpose” whatsoever. Article 17 arguments are hence founded on ignorance and must be rejected.

Denomination and Essential Practices Test

Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account.

Judge Misra quoting Supreme Court In Aurobindo Society – denying them denomination status holding them to be Hindus!

The Quakers in the colony of Virginia said  they would not be able to take Oath of allegiance to the newly independent colony and in addition they wont send their men to the monthly arms training for the militia. They said they are a separate christian denomination and their faith does not permit Oaths and to Bear Arms.  They were allowed. The  Amish of Wisconsin a separate Christian denomination which descended from the Swiss Anabaptists claimed they wont send their kids to the mandatory public schooling.  They were allowed in Wisconsin v Yoder. In all these cases, it is trivial to establish they are a separate denomination because they trace their origin to a founder – George Fox for the Quakers and Jakob for the Amish. These founders established a specific set of principles and rules of conduct that formed the basis of the schism from the mainline Catholics.  How on earth are the Sabarimala devotees going to match this level of documentation ? Or the Dahi Handi ? or the Shani Singapur ? or Chidambaram ?   Perhaps a few founded denominations like Lingayath , perhaps some Iyengars can prove they are a denomination but only to a limited extent.

This is the so called denomination test

(1) It must be a collection of individuals who have a system of beliefs or doctrines which
they regard as conducive to their spiritual well-being, that is, a common faith;
(2) common organisation, and
(3) designation by a distinctive name.”

As mentioned above, pagan denomination cannot be modeled as  a total schism like the Abrahamics.  A denomination in those cases are a result from a mainline splitting  into separate collections.  In Hindus it can be about adopting a unique practice at one time but in other times merging with others.  A Brahmin sabarimala devotee and a vannier devotee for the purpose of the pilgrimage are identical – they follow the same penance, take the same paths, look identical, carry the same irumudi,  faith in the same thing, sing the same devotional songs, chant the same marching tune, etc.  But in other times, they go back to other forms of worship as per their preferences. This does not mean the Sabarimala cannot be a denomination because the followers do not practice the same things 100% of the time.

The test can quite reversed be passed by a different judge – look

  1. collection of invididuals ?  Check. The devotees
  2. common organization ?  Check, the sabarimala kosthis all over town. they are distinctive and easy to spot. the guruswamis are elder priests who initiate others. No other sect has these gurusamis. Isnt this enough?
  3. name ? Check – see these names. swamy sharanam,  sabarimalai , or simply malai, or saamy.  why is this important. should the name be registered ?

There are finer legal points on which the Denominational Test fails.  We will put them out in the coming days.

Essential Practices

As I have analysed in another #core5 case – the egregiously overreaching Jallikattu Judgement. The Essential Practices of a Hindu cannot be ascertained, what can be checked is the essential element of a particular practice.  The goal of that would be to detect a mischief hiding under an essential shield and nothing more. However, all four of the judges in the Sabarimala case try to extract essence of Hindu  “exclusion of women is an essential practice of HInduism”

See this by Misra/Kanwalikar

it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative. In no scenario, it can be said

Misra p78 emp added

What is happening here is the following. The most honourable judges might know that they are on thin ice on the  denominational aspect and Sabarimala probably is a denomination. Hence they say “listen even if you are a denomination – your practice isn’t essential”.  That is in line with precedents in the the Shiroor Mutt and Devaru cases.

The problem here is that they are making an inexcusable leap – from examining whether the practice is essential to the Sabarimala tradition, they have widened it to examining if the practice is essential to Hindu.  The set up a strawman in the form of  a hypothetical generalized “practice of exclusion of Hindu women” . The wide question of whether this exclusion is essential to Hindu  is not even part of the case.  This is where judicial indiscipline will hurt the pagans because our fate turns on such fine distinctions and switches.  Is Sabarimala itself an essential part of Hinduism? A judge tomorrow can ask ,after all  80% havent heard of it – they are pious Hindus. This is unlike the abrahamics, if you havent heard of Jesus or Mathew or Mohamed – you cant be a member.

To conclude,  this judgment represents a singling out of a thriving religious practice grounded in faith. No women devotees complained. An activist court should have taken care not to be seen as a hostile court. Particularly when it is striking down on a pilgrimiage that transcends caste and brings all Hindu together.  It must be immediately reviewed , an ordinance passed , or a constitutional amendment bill introduced.

In our #core vision no 5, we have long recommended a constitution amendment which insulates these varied practices from PIL process. We now foresee an endless stream of attacks exploiting this new found vulnerability, These attacks can be led by both stupid and strategic forces – may well result in death of our colorful and inclusive religion.

What can be done?

The ideal situation is a responsive legislature at centre. One which sees where this activism is headed and responds to these things before they get out of hand.  But even without legislative support, we can spread the message deep to the people and build a vanguard which can fight the future battles.

In the short term, this judgment will have no impact on believers faith other than to inconvenience them.  An already jam-packed temple will now have to make arrangements for separate women’s queues , the feminist irony!  and what not.  This will be used by both hostile men and women who are not believers but will be there just to show their defiance and hostility.

What can be done by the board to protect the interest of their believers : declare a special day where women are allowed, then do whatever ritual is needed to protect the deity in the background.  This makes sense for administrative convenience. Can the court get entangled if a repentance Mantra invocation is chanted ?

Another option, is to file court cases against exclusion in other religions. This is unfortunately required because the Idea of India jurisprudence does not focus on uniform application and principles. They take things apart on an ad-hoc basis. By challenging the exclusion of women from Christian and Moslem clergy. Remember  that the Indian state actually funds those sites of exclusion and have a real world secular impact. Unfortunately, such  belligerence maybe the only way we can hope to hammer out  a principle.  Contrast with core societies like USA , where Uniform application is the basis of these laws. In the Smith Standard in the USA, the test is that any rule that is enforced impacting Free Exercise of Religion must be uniform. We fumble the basics.

The ultimate and foundation protection is however – what we call as #core1. The very real legal disadvantages Hindus face in the Education Sector.  A ticking time bomb.  Without #core1 , whatever gains we make in Sabarimala will be ephemeral. Your date of execution has already been set.

/jh

 

Why scholarships based on sectarian considerations? Congress Party response

Posted in Uncategorized by realitycheck on March 25, 2018

During Congress President Rahul Gandhi’s campaign tour in Karnataka a student in Mysuru asks him a point blank question

Why is Govt discriminating students on the basis of religion and caste to extend benefits.

The student was referring  to the unique discriminatory manner  in which the Indian Government hands out scholarship and other economic schemes.  The minorities have their own scholarship schemes running into thousands of crores (Pre Matric 980 cr, Post Matric 692 cr etc for a total of 2,453Cr – per 2018-19 Budget Demand note). To contrast the  sum total of all scholarships under the Human Resources Development available to all Indians without identity basis is the National Merit-Cum-Means scholarship with 292 Cr. My favorite crazy scheme which I keep mentioning on Twitter is the National Merit-Cum-Means scholarship under HRD is 292Cr but the Minority Affairs Merit-cum-Means is 522Cr !!  ( Source : India Budget Demand Notes 2018-19 )

Back to the question, Mr Rahul Gandhi was taken aback by this question and passed the ball to Mr Siddharamiah the CM of Karnataka.  Here is his response :

he said there’s always someone, even within a family, who is weaker than the other kid in some respects. We give some extra support to that kid and that is what the govt does too.

They clearly expect this question , so they have a canned response.  But this falls apart on basic examination – let’s open this box.

If you listen carefully, Mr Siddaramiah is not answering the girls question at all.  He is answering a different question “Why have scholarships at all to anyone?” That is not what the girl was asking. Her question is “Why give scholarships on identity basis ?” 

Imagine this response instead :

“there is always someone even within a family who is weaker than the other kid in some respects. Hence we give extra support to the first born male child and that is what the govt does too”

It is very important to call out these obfuscations wherever you see them.  The issue with the sectarian scholarship regime (unique in the world) is a simple one.

  • The disability that scholarships seek to remedy in most cases is lack of money.
  • You may say – “but these sectarian scholarships are for desperately poor < 1Lakh per year income “.  My friends, this makes it egregious and immoral. It is one thing to discriminate among the rich or middle class who have other opportunities. But if you have a group of wretched and then you select among them on basis of religion for selective rescue – imagine that.
  • What about social disability? you can ask. There were many proposals to have scholarships and other help instead of outright quota.  This was shot down saying –   social disabilities cannot be cured by economic benefits like scholarships but need quota in education and jobs and promotions.
  • But once you have granted social remedy in the form of a quota system. You cannot overlay a second unrelated benefit.  Scholarships and stipends on identity basis is nothing but an  economic remedy for a social disability.  The central question is “Why discriminate for scholarships Group-A-Girl versus Group-B-Girl  when their economic circumstances are the same?”
  • The standard response to criticism of creamy layer criterion  from social justice protectors in India is “it is not a poverty alleviation program”  –  well scholarships and other economic schemes are  certainly poverty alleviation programs, you cant have it both ways.
  • You can say we have other similar schemes for Group-Z, Group-Y with different moving weights to each group.  That is how we balance. What can you say to this?  When you make a virtue of  unprincipled monkey balancing acts and various payoffs to stay in power?

The solution is to remove all discriminatory identity-based economic schemes.  Especially when targeted at the really poor.  This is our #core2 agenda.

Does a Dalit vanguard leadership in India exist ?

Posted in Uncategorized by realitycheck on January 7, 2018

Dr B.R.Ambedkar was a front line (vanguard) leader of the Scheduled Castes.  If you study his public life, you will notice in that in all his engagements his primary motivation was to ensure the interests of his community.  The benefits  he sought and secured were constitutional and not merely legal.   You have to understand the difference between the two.  If you are given constitutional benefits then you do not have to cobble together an alliance with other groups and secure a majority rule every 5 years in order to protect it. On the other hand, if  you only have legal protections – you need to constantly be on your toes because a rival winning coalition can be cobbled together that will strip you of exactly those benefits and grant it to themselves.

I can readily connect with Ambedkar’s thought process. It goes like this –  if SC communities  had constitutionally guaranteed benefits they would be freed up from this painstaking and expensive “alliance building” that the rest of the groups in “Idea of India” political economy have to engage in.  What would make it worse for Dalits is unlike the other castes , say the BCs the SCs would have to forge alliances with more powerful groups who have institutional controls with them.  Freed up from this hectic activity, the SCs would then be able to grab the incredible opportunities reserved for them and focus on uplifting themselves.  Even before Dr Ambedkar  other SC leaders of the day like MC Rajah (see article on Rajah-Moonje pact)  and  before him Rettamalai Srinivasan were also had this kind of community first mindset.

None of these leaders believed in Dalits reformulating themselves as minorities and then playing the ‘Idea of India’ group alliance building games with much larger minorities who have powerful institutional controls i.e Education, clergy co-ordination, international base,  and legacy capital with them.

All of this changed in the past 15-20 years.  Prominent Dalit leaders today have turned into caricatures of the giants that lived earlier.  In just 70 years, they are now reduced to expending effort on alliance building, Kashmir issues, anti-brahmin and anti-Hindu activities that only weaken their own people.

The end goal of all of this appears to be to guide this group into a subservient parking spot under the two large minority blocks.   The current Dalit leadership is knowingly or unknowingly diluting their own strong and probably the only legitimate claim for social justice with this alliance building. They forgot the whole idea that drove Ambedkar – the Dalits dont have to waste time in any of this hectic alliance building activities.  This does not mean that Dalits turn into robots and not engage with social issues. Far from it – since they are freed up from alliance building they do not have to play the same faultline-deconstruction-hostility  games the others do. They get to work for harmonious relations with the larger community and at the same time use the constitutional benefit framework to uplift their society. Many SCs are now awakening to what other successful communities like Nadars have known for long   “Harmony with larger society leads to more trust , and more trust leads to faster contracts, and that leads to wealth, and wealth leads to institutions”.

How did we land up here ? 

To  separate the real Dalit leadership who are in the intellectual bucket as Ambedkar and  MC Rajah from those who are front-ended by the “Idea of India” ecosystem, let us test against a concrete example.  Let us examine how each group reacted to events in the wake of the 93rd Constitutional Amendment,  a keystone #core1 issue.

Have you heard of the Prof I Ilangovan v State of Tamilnadu  case ?

As I have explained in “A brief history of the 93rd Constitutional Amendment” ; on Dec 22 2005 the Congress led UPA government passed a constitutional amendment that fundamentally and perhaps permanently altered the texture of institutions in India. This amendment enabled the state to take any amount  from aided or unaided educational institutions for purported “social justice” but explicitly exempted the minority institutions.  Now in the Indian scenario, the exempt institutions are not some insular minority establishments but includes the thriving and outward looking top capacity of colleges and schools.  I am going to set aside for now how the minorities who are now projected as saviors never contested that or that neither Congress not its closest ally the DMK or the TN Dalit parties bothered to even comment on this.

No sooner had the Constitution of India been  amended by the Congress, than its closest ally, the staunchly rationalist and atheist DMK introduced a law in Tamilnadu on June 5 2006. This law is called “The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Private Educational Institutions) Act, 2006”  also known as  Tamilnadu Act 12 of 2006.

The law made the following provisions :

Sec 3 (1) :  All private colleges had to follow a 69% quota for both faculty and students 

Sec 2 : Private colleges were defined as non Minority only.  Minority colleges whether aided or unaided had complete autonomy in selection of students and faculty.   In other words only Tamil Hindu run colleges had to follow this law passed by the self professed “Rationalists”.

Copy of Tamilnadu Act 12 – 2006 (PDF) Tamilnadu-Act-12-2006 (PDF) 

Not a single prominent Dalit  protested this instant cutoff of thousands of jobs and seats from the most elite and sought after colleges.  All of these posts are funded by the state government. 

In any case, this passed unnoticed and became law.  But not all Dalits were inert to this.  A  Professor I Ilangovan who is quite popular in some Dalit circles  was Head of English  Dept at Voorhees College Vellore. He  filed a writ of mandamus in the Madras High Court to quash the aforementioned Sec (2) denying SC/ST reservation in aided minority colleges. This which was decided on Apr 2015, about 9 years after the 93rd Amendment.

The case is Prof I Ilangovan vs State of Tamilnadu and 62 Minority aided colleges. These include the creme of TN colleges and includes religious minority colleges like Loyola, Madras Christian College, St Xaviers Palayamkottai, St Josephs Trichy, Stella Maris  Madras, American college Madurai, and 60 others. It also includes some linguistic minority like Tirumalai Nayakar, Saurashtra and others.

The sum total of the case

The petitioner, being the Head of the Department in the Subject of English at Voorhees College, Vellore, has filed this public interest litigation seeking to declare Rule 11(1-A) of the Tamilnadu Private Colleges (Regulation) At, 1976 insofar as exempting minority aided colleges from the Rule of reservation in appointments to SCs and STs is illegal and ultra vires of Art.16(4) and 46 of the Constitution, and consequently direct the respondent colleges R3 to R62 to appoint 19% of SC/ST Teachers and non-teaching staff against the total number of sanctioned posts.

2. The sum and substance of the petitioner’s case is that the Minority Colleges, which are receiving aid, cannot be given any exemption from Rule 11(1-A) of the Tamilnadu Private Colleges (Regulation) Act, 1976. Thus, the exemption granted to the Minority Aided Colleges qua communal reservation to Scheduled Castes and Scheduled Tribes is put into challenge in this writ petition.

 

Even if you grant the extreme contention of some ideologues  that Dalit affirmative action is a Hindu burden and hence Christians and Muslims run institutions cannot be forced to pay for that – these posts are paid for the by government. Hence this appears to be a very reasonable challenge.

However it was shot down in a very short opinion.  A division bench of Madras High Court ruled  that in light of the earlier 2014 Pramati case the SC/ST cannot be granted faculty reservation in minority run aided colleges. This was in line with an earlier case “Federation of Catholic Faithful vs Tamilnadu 2014) which exempted minority aided from all reservation.  In that case the Federation of Faithfuls lost to their own co-religionists who had institutional control.

Prof Ilangovans case was decided with :

8. In the light of the aforesaid decisions, we do not find any unconstitutionality involved in the impugned Rule qua exemption granted to the private minority aided colleges from the Rule of reservation in appointments to Scheduled Castes and Scheduled Tribes.

9. Accordingly, the writ petition is dismissed. However, there is no order as to costs. Consequently the connected miscellaneous petition is also dismissed.

I recall very well what that judgment came out –  The Hindu did not even report this judgment. The Deccan Chronicle Chennai Edition did.  It goes without saying that the others like Indian Express, TOI, Wire, Scroll, NDTV wont tell you this either.

There were other similar cases like this all over India in all areas of insitution control such as teacher selection. Till date not a single Dalit-Minority alliance building activist has spoken against this. One wonder what kind of “alliance” is this ?  I would be tempted to chalk this up to ignorance, but if you recall in that same timeframe 2014-15 Dalits-Periyarits were rocking the IIT and HCU campuses for some minor gaps in faculty quota and promotions.

I think Dr Ambedkar if alive would have had a thing or two say about this state of affairs.

 

/jh

ps: Notice how I am completely side stepping the new narrative of Peshwa Dalit 18th century battle etc.  Every group has right to invent its own stories. If you can conjure up Lemuria as “a wronged continental plate” ..

Spot the principles while negotiating a climbdown on Pramati case

Posted in Uncategorized by realitycheck on November 26, 2017

November 26th is designated in India as Samdvidhaan Divas or Constitution Day.  In keeping with the times, this day has been turned into yet another opportunity for a Public Relations blitz as governments take out full page ads. These typically feature a smiling face leader framed against a background image of the the first page of the original constitution with a pledge to uphold it. Not once do people ask “what version of the constitution?”.  The real debates are kept out of the public square as smaller and smaller groups of chosen people  create and orchestrate these matters which guide the destiny of the entire country. No amount of bellyaching about cultural or historical injustice will affect either the trajectory or the end game that the Idea of India group has created for you. Unless you engage now!

Palming needs practice to perfect 

I have previously written about the earth shaking constitutional legacy of 10 years of Congress led UPA rule – the insertion of Article 15(5) via the 93rd Constitutional Amendment. This audacious move blew up in just 2 weeks a painstakingly constructed judicial consensus that took over 6 years and 21 Supreme Court judges and 50+ lawyers and hundreds of hearings to achieve in the TMA Pai troika. The Idea of India ecosystem had set the framework within which primary,secondary, and tertiary education would evolve in India.  Just a week prior to losing power to Narendra Modi led BJP government they managed to get a favorable verdict upholding the constitutional validity of the 93rd Amendment in a landmark case Pramati Edu Society.

A recent article in Economic and Political Weekly titled “Primary Education and Minority Rights”   by Sushant Chandra of Jindal Law school addresses the unacceptable fallout of the Pramati case. The article calls for a softening of the Pramati judgment which exempts in-toto the minority schools both aided and unaided from the Right to Education Act.

It could be safely said that the minorities’ right to administer their educational institutions warrants maximum autonomy in running unaided schools, and lesser in running aided schools. The percentage of reservation and degree of education are both fused in different degrees that define the identity of minority rights under Article 30(1).

We on #TeamCore  (a fledgling Core Right vanguard movement) have to be extremely vigilant about these “compromise” matters.  What is happening here is that the ecosystem has realized it has gone too far and is trying to pull back suo-moto to a more defensible position.

Let me try to untangle this as best I can.

Prefer hard edge to soft

The current education laws in India which we classify under  #core1 are hard edge. At the national level, the Right to Education Act, Art 15(5) and their scaffoldings like NCMEI are all hard edge sectarian. The exemptions are categorical and the definition of minorities are red-line sectarian. This is in fact a boon for Core because it makes the issue self describing.  I dont need to explain anything beyond telling you what the law is and what the rules are.  However for the select few people at the highest levels of Idea of India, these kind of hard lines create discomfort.

At one level , they are probably astonished at how meekly the larger Hindu society and their so-called nationalistic political avatar is accepting these laws that directly impact their future generations. They will be taken aback by the absence of curiosity and spirit of discovery. The inability of Hindu intellectuals to spot the issues even when explained to them.  Still they are careful not to prematurely declare victory.  Because at another level, they are well aware that a Core like vanguard group who can match them step-for-step can easily  exploit these hard lines and woke the masses.  Pramati and the notorious Right to Education Act is the best example of this.

As an illustration let me propose this amendment.  Instead of a hard edge exemption from the Right to Education Act, the minorities both aided and unaided will be forced to do the following.

  • All need to do the 25% quota, but minorities in order to protect their rights will be allowed to select the beneficiaries.
  • The minorities will be allowed to charge a nominal fee to make up for reimbursement deficit

With this new rule, you can no longer proclaim  “Minorities are exempt from the Right to Education Act”. You have to qualify and nuance and climb up to another level to engage. In a country like India you will lose about 99% of the audience who wont engage intellectually beyond what it immediately in front of them.

With this new amendment, think about how difficult the task is for me to explain this soft edge. Even though the soft edge is worse than the hard edge.  In this lies the genius of the new age Marxists.

 

Seek the principle

The right approach is to skip the individual provisions of some law and seek out the principle involved.  The EPW article incorrectly identifies the principle as “Does this trample minority rights under Art 30(1)”. That is not a principle at all !!  Of course any restrictions trample the rights to be free of restrictions.   You have to look deeper and identify the non-sectarian FIRST principles and THEN see if you can place them or reject them.  No civilized society can afford to pass laws with laundry list of clauses and then open negotiations with sectarian groups for exemption on ad-hoc basis – clause by clause.

The #core principles involved here are two-fold.

  • Principle of Nomination : Who gets to select the students ?
  • Principle of Cross Subsidy :  Who pays for this ?

If you drop the ‘nomination’ principle you have created a completely new regime, it just looks like the previous regime.  If minority schools are allowed to select students, they will select only those who fit their institutional goals. This strengthens them institutionally because they can select the best and THEN have the govt pay for them. Therefore the issue drops to one of ‘selective schools (minorities)’ vs ‘non-selective schools (hindu)’.   So any climbdown along this line in the upcoming(?) Independent School Federation case is unacceptable.

If you drop the ‘cross subsidy’ principle and allow the minorities to recoup the margin from the students themselves you have again created a different regime. This is the voucher system where Govt pay a part scholarship and the student makes up the difference. So any climbdown in this line too is rejected.

As you can see, it is impossible to have a principled interpretation of a sectarian law. At the lowest level the problem is that you have a unified market but you impose restrictions and concessions on different vendors based on religion.  The only solution to this is to segment the market itself.  Schools with minority status should only address the market for minority students of their own kind.

The correct option is for the political leadership to assert itself and repeal the 93rd Amendment and its cousins and restore the status of TMA Pai circa 2004.  We may have lost 13 batches of kids to this regime but it is the bare minimum expected of this government.

 

 

 

On the hearings in the NCMEI Court

Posted in Uncategorized by realitycheck on October 26, 2017

As soon as sweeping into power in 2004, the Congress party created the NCMEI through the National Commission for Minority Educational Institutions Act 2004.  Still amazes me to this date, that this little blog is the only place where you can find information  about this all important judicial body that commands the central domain of education. This impacts all of India’s children and through them the destiny of this nation.  If you dont know what NCMEI is – please go on to “Bulwarks erected against redefining minorities in India’s edu system – the genesis of NCMEI”  and also read “A Brief History of the 93rd Constitution Amendment”

To recap,  the NCMEI is a  judicial body (with powers of a civil court) with the following unique features

  • that by LAW excludes Hindus from being judges in this court (Sec 4 of NCMEI Act)
  • that not only adjudicates on issues where all the parties are minorities but also adjudicates when the affected parties are Hindus.  Even though the institutional control matter may be minority owned – the majority of students and staff in these institutions are not minorities but Hindus. A rough example of a purely inward looking body would be  AIMPLB that works in the domain of Muslim person law or the Canon Law Society of India for Christians..
  • that by virtue of its power to grant the Minority Certificate , takes out entire institutions and chains of institutions out of the purview of  the notorious central education law – the RTE.
  • that obtaining the minority certificate also insulates the institutions from the Art 15(5) inserted by the 93rd Constitutional Amendment. This is a so called “enabling amendment” that allows any type of statute against a non-minority institution. In other words an open ended confiscation

I expected the Narendra Modi govt in 2014 itself to repeal the NCMEI Act.  Even  by May 2014  had issued some 12,000  minority certificates. Till date this body  continues to function and even thrive. The NCMEI has been busy of late issuing Minority Status Certificates and also hearing other types of cases.

Here I want to show how a typical case is decided based on the Daily Orders found on the NCMEI Website. Then I will identify the alarming deficiency in India’s judicial thinking process by citing a “Tequiyyah” that is just not pursued and examined.

What is the matter to be considered before issuance of Minority Certificate

We are used to judicial delays in the normal court system. In the case of NCMEI the cases which were scheduled for hearing in Jan 16 2018 have  been advanced to Oct 17 2017 in the “interest of justice”!  But lets see a typical Minority Certificate order and what is being tested. This is just an example – all the orders I read seem to be copy-paste with just the names changed.

In the following typical case a school run by St Thomas Education society in Kodagu Dist Karnataka has not received a Minority Certificate from KA Govt  even after 1 year of applying and they have come to NCMEI to get it.

The order is only 2 pages. What is tested are

  1. All members of the society are Christians
  2. The school is setup for the benefit of the Christian community.

Now you would think that Item 2 implies some kind of “indicia or purpose”.  It is nothing of that sort.  All orders cite a 2010 case also decided by the NCMEI Court  called the “Buckley Primary School – Orissa” case.

MInority Status Certificate Order Issued Oct 17 2017 to Thomas Edu Society

 

 

The demographic test as an indicia

The Buckley Primary School is located in Cuttack Orissa.  The NCMEI in July 2010 ruled in favour of granting a minority status to the school even though only 31% of the students were Christian.  In fact the numbers dont matter at all, even if the Christian student population were only 10% the same logic would apply.

The judgment is here  :  Buckley Primary School (Orissa) case – Jul 2010 You can ignore the filler material in the judgment citing Stephens, TMA Pai, etc  and locate the meaty part.  I reproduce it below.

It needs to be highlighted that according to the Census Report 2001, Christian population in the State of Orissa was 8,97,861 and the total population of the State of Orissa was 36,804,660. Petitioner institution is situated in Cuttack and the total population of the District of Cuttack was 23,41,094 out of which, population of the Christian community was 10,657. It is stated in the affidavit of Mrs. Smruti Rekha Panda, Head Mistress of the petitioner school that the percentage of the Christian community in Cuttack District is 0.46%. The petitioner school is a primary school. One can make a reasonable guess that the students seeking admission in educational institutions established by the Christian community in the Cuttack District would normally be commensurable to its population. In this view of the matter, the Christian community of the District, Cuttack may not be able to secure more than 0.46% admission from its own community. Similarly, if in a particular State there may be very scanty population of a particular community and number of students seeking admission may be only handful. Would such religious or linguistic minority lose its right to establish and administer educational institution of its choice? Would religious minorities like Sikhs, Buddhists and Jains have no right of establishing and administering educational institutions of their 10choice as guaranteed under Article 30(1) of the Constitution? Thus, the fundamental right guaranteed under Article 30(1) would be a teasing illusion or a promise of unreality for them. It is a matter of common
knowledge that although the Parsi community is a notified minority community but it is also a dwindling community of our country. That being so, a microscopic minority like Parsi community cannot exercise the rights enshrined in Article 30(1) of the Constitution.

Page 8-9 : Buckley Primary School vs State of Odisha Jul 2010 – NCMEI Court

 

The Argument : If you insist on a demographic indicia, then  minorities who are not in significant numbers in a particular territory cannot exercise Article 30 rights. 

To explain further with an example (this is crucial to understand)  : Say you had a rule that if you wanted  a Minority status than 75% of your student body must be from the same minority community.  The argument is that ” if in X Sq Km the population is only 1%  kids then we cant meet the 75% quota in a 500 student school.”

At this point the body of men and women split into two groups.

Group 1: Just accept the argument and move on. Because digging deeper and deriving a general principle from this is too tiring and potentially unpleasant.  We do this in India.  All of the thinktanks, NitiAayoog, RSS, seem to not be bothered by this.

Group 2: The other option is to – recognize that there is something iffy about this. And get curious. Then try to examine the issue, test the boundary conditions, see if there is a general principle that will come of this rule. This is the #core group.

Here is a rough way to derive a principle.

  1. The question is not whether Minority can run a school in order to project into a Sq Km where they have minimal presence, but whether they MUST ONLY run it as a Minority institution.  After all these schools have been running without MSC for a while.
  2. We get fooled easily by the “narrow-wide” data fallacy.  You can have 0.1% population of a group in a particular state or district but more than enough in a particular locality to fill a school many times over.   So the right place to start the minority school is IN THAT colony.
  3. Consider a boundary test : say there are no Momons in Odisha and a Momon educationist wants to setup a school there. Should he be given a minority status? He is going into a land where there is no presence and hence IN THAT territory there is no culture or religion to preserve. He can run the school under the General Law that is applicable to all.
  4. The general education law in India is called the RTE and its daddy the 93rd Amendment. These are confiscatory laws that make it nearly impossible to run a school.  Hence exemption from this law is a *really really big deal*. Those who are allowed to use the Minority status and project into territories where they have a sparse presence can rapidly knock out the schools that are forced to follow the General Law.
  5. The other simpler explanation is still on the table. That the minority status here is sought to be used as a “sword” and not as a “shield” to take advantage of the religion and project influence into hitherto unreached areas.

One wonders if  the NCMEI has taken over the interpretation of Article 30. This demographic principle to the best of my knowledge is not coming from the Supreme Court.  Let me remind people again. #CORE1 will decide if you survive as a civilization. Article 30, Article 15(5) are matters of national interest not just to those of minorities.

Here is hoping,  we see some legislative action on NCMEI by the Narendra Modi Govt before the term draws to a close.

/jh

 

Lingayat protests are about the perverse legal regime in Indian Edu Laws

Posted in Uncategorized by realitycheck on October 2, 2017

For the past one month or so the media establishment in India have been running a campaign of deception, outright lies, and obfuscation around the issue of the Lingayat community in Karnataka all the while drumming up a crisis situation. This orchestrated campaign is a lead-in to a flashpoint demonstration planned on Nov 5 2017.

In short : The Lingayat community through their leaders have expressed a demand to be classified as a Minority religion separate from the Hindus. To an uninformed person, that demand in itself is  kind of super wacky.  Why on earth would they want a Govt certification of their status?   Normally in a vibrant democracy you would expect the hordes of mainstream media outlets, eminent jurists, thinktanks,  and social intellectuals to tear into the “whys and whats” of this inexplicable absurd demand.  Nothing of that sort will happen in the Indian intellectual circuit. That is because they might be accomplices in hiding a “Pumpkin under the rice” (Tamil proverb).

The media have focused on the doctrinal issues especially around how Lingayat is different, even better, than the other Hinduism.  Notably,  The Economist has joined the chorus with its supportive piece “Medieval poet bedevils India’s most powerful political party”.

Luckily the nascent #Core movement is forever alert to these shenanigans.

The Lingayat protest is not driven by doctrinal differences but merely as a response to the most ludicrous legal regime currently in force in any part of the world.

To start off – we have two excellent commentaries that looks under the hood.  The first is by the prolific Hariprasad N @pranasutra  “Why are Lingayats in Karnataka demanding a minority religion status”   the second piece is by Medium writer @IOI who wonders “Why American political parties are not caught up with establishing Adventists as Christians or not”

I am not going to repeat the points made in those posts, but open up the following Five questions

1 Separate religious identity marker test

Lets first examine this claim. The Lingayat movement is about a  nuanced religious doctrinal conflict  of  Basawesharas rebellion against Agamas, Vedic, Sanatanic strictures and pro social justice etc. (See this explanatory piece “Explained: The Lingayat claim for separate religion” by The Hindu)

If that were all there is to it, Lingayatism doesnt need a gazette notification but can cleave from Hinduism by a natural process. There is no Hindu pope who is going to prevent them from separating, nor will there be any institutional retaliation.  All they need is to develop an inside / outside view with Hindus and build higher walls and deeper moats. They can use unique types of food, perfumes,  practices that appear strange to Hindus, mutilations, naming babies in certain way, controlling intercourse with Hindus, and so on.  Most importantly they can use their institutions for labeling and access control.  They can start by installing notice boards in their mutts, or movies and booklets and films emphasizing  the schism, and to censure and expel those who interact or adopt Hindu symbols.  This is the natural process.  They do not do any of these things, but insist ONLY on Central Govt notification (a mere piece of paper) that amends the National Commission of Minorities Act 1992 and adds them as the 7th religious minority in India.

This means the doctrinal distance is not central to the debate at all, but it is a gazette notification is what is being sought. So the practical minded person need not engage with  Basavanna or Sanatana at all.  That brings us to the next four questions.

2 Is Art 30 a sword or a shield

Article 30 happens to be the primary distortion in India because it uses state force to shape which groups are allowed how much institutional control. This has dramatic and permanent impact on generations. Only those groups with institutional control get to propagate and reproduce their culture.  To qualify this further, why I say “institution control” I mean to the extent every group has it.

There are two ways to look at Art 30, a shield : essentially a guarantee to minorities over and above Art 14 and 19 that specifically protects their educational institutions.  The other way is, a sword where these minority guarantees are denied to Hindus and the minorities use this advantage to turn  outward based or implement outreach agenda. The objective is then changed  to educate outsiders rather than their own communities. The critical question  “Are there any indicia or purpose for this minority status”  is never asked.

Lingayats today run hundreds of education institutions. Ironically, this is the best argument for abolition of Art 30 (the sword interpretation).  If you argue that Lingayat have been unfairly denied minority status for 40 years, then it follows that they have managed to roll out such large education network without minority status. So the only reason they want the minority status today is to protect from the “sword” interpretation.

Core1 is a  strong and fundamental distortion. If you do not remove it, it can give rise to  spin-off strategic games that will be hard to decipher. One strategy could be to select groups to be groomed for eventual split by allowing them to roll out big institutions and then once they are leveraged in that manner,  they will need the “sword protection” and themselves cry to be called minority.

3 The 93rd Constitution amendment is open ended hence the urgency of Lingayat

If you are a Lingayat leader , the 93rd Constitutional Amendment is a terrifying reality. You will never hear the mainstream media or eminent jurists talk about this. Here is the problem.  Art 15(5) introduced by the 93rd Amendment is an Open Ended confiscation of institutional control with baked in exemption for minority.

By “open ended”  I mean : Any Hindu run institution can be taken over to any percent along any social justice axes in any aspect of management. The 93rd Amendment today is an enabling amendment for the notorious Right to Education Act but there is nothing in Art 15(5) that restricts it to RTE, school edu, or 25%, or for SC/ST, for teachers or students, or any other group.

The Lingayat community is philanthropically minded and is therefore  highly leveraged in Edu sector. If no one will repeal these laws, or even talk about them, or even engage those like #core movement who do talk about them, then the path for them is clear. The only way to save yourself is to break off and gain immunity from this tyrannical law. The reward is a safe harbor with total and permanent autonomy guaranteed constitutionally. The ungainly sight of begging for minority status will be forgotten once this group too like the Jains before them,  are protected from the Art 30 “Sword”.

4 Different or better

A very amusing aspect of this minority status should be noted. When groups like Jains, Brahmo have  tried to get Minority status they not only have to declare them as different from the Hindus but better-different.  No community has said “Give us minority status because we have this unique XYZ feature which is hardcore and worse as per your yardstick compared to what the remaining Hindus have.

This leads to the following conclusion.  To claim institutional control rights, a group ready to be claim as schismatic have to assert that they are different and better than Hindus as per the rules of Idea of India.  It then follows that Hindus will never be given institutional control rights only because they are Hindus and for no other reason. This is the exact definition of multi nationalism  as the Supreme Court noted in the Bal Patil (Jain) case.  One wonder why the Sangh which calls itself nationalist lets this multi-national basic jurisprudence go unchallenged.

Finally, the claim that Lingayat or Jain or Brahmo or anyone else do not recognize caste is meaningless. Because if you stage caste as a separate unit , then within the unit, by definition there can be no caste.  For example, the Iyer or Gounder religion also reject caste since they just marry and conduct affairs within their own religion.

5 How to pull the rug and completely change the landscape

As shown in this article, this entire movement turns on the primary anomaly in India. The denial of institutional control mechanisms to Hindu at par with non Hindus.  It is not correct to blame Lingayats for doing whatever is necessary to save themselves from the sword.  The correct approach , if we are truly sovereign, is to surgically remove the primary anomaly as below

Repeal the 93rd Constitutional Amendment and announce that henceforth Article 30 will only be interpreted as a shield. If necessary amend Article 30 to bake that in as well.  You just have to announce that you plan to do these things.

 

Do #core1. Pull Rug.

The Economist mocks the government as “medieval poet bedevils BJP” – this is both true and false.  If you do not remove the primary anomaly, the issue impacting 17% of Karnataka can overwhelm you. The question will be eventually framed as a Rule of Law 101 (Uniform Applicability) “If Jains can have it , why cant we” ?

Everyone knows  you cant answer Rule of Law questions in Idea of India system.

/jaihind