Reality Check India

Introducing : Communal regulatory bodies

Posted in Uncategorized by realitycheck on August 30, 2012

The Prime Minister chaired a cabinet meeting yesterday and approved a bill which should stun all students of political science.  This bill threatens to subjugate all institutions to the same set of people who are now ruling the country.

NARA – National Accreditation Regulatory Authority

The bill paves the way for mandatory accreditation of all higher educational institutes (except Agriculture !).  The idea is there will be a number of government accreditation agencies – both at the state and central level. Every college and university must obtain a certificate from the relevant agency within a particular timeframe or face a slew of penalties including closure. The full text of the original draft bill is here. The apex regulator NARA would be responsible for registering and monitoring the functioning of the various bodies. It is also the place for dispute resolution,  setting fee structures for the agencies,  imposing various penalties and so forth.

Until this point there is hardly any room for quarrel against this bill. The only major point on which one might be opposed to this bill is that in one stroke the Central govt subjects all state level educational agencies.   Other than that, this seems to be an attempt at driving some uniformity to the accreditation process.

What is stunning is : Yesterday 29th August 2012, the Prime Minister Manmohan Singh chaired a cabinet meeting. In this meeting, the 9 members in the regulator were brought under a quota system for SC/ST/OBC/Minority and Women.

The National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010 paved way for representation of OBCs, SC, STs, women and minority as members in the authority. While tabling the Bill in the Lok Sabha on August 9, Sibal had said the amendment would also include a member of the minority community in the regulatory authority. The Bill seeks to set up the authority to register and monitor accreditation agencies.

Pioneer/ Deccan Herald

Now the members of the NARA are selected much like the ridiculed Jan Lok Pal :

Sec 7 (3)  of NARA Act – which only had 4 persons + chair, presumably the amended bill simply increases the membership to 8.

  • 1 Professor from Medical field
  • 1 Professor from Science & Tech
  • 1 Professor from Humanities
  • 1 Legal scholar

(One of the above must be a woman)

Now there is absolutely no national interest served by having a communal quota in this regulatory body.   This isnt even harmless, what such a communal quota implies is that even in normal economic activity – persons of one community cannot be relied upon to adjudicate issues involving others.  Actually not even adjudicate,  persons of one community cant even apply well written regulations no matter how accomplished that person is while being selected for the regulatory position.

The practical absurdity of this will come out soon enough.

  1. 5 / 9 seats (SC ST OBC Minority Women) does not mean the remaining 4 seats are reserved for upper caste Hindu males. The other seats are fair game. This means the only way to resolve this is by a roster system.  We are entering a bizarre world where appointees are selected not from the best available but from the best available within the community that has a roster opening.
  2. The professors have to reveal their community for selection.  Even if they revealed it, a woman professor can be counted against women quota, against OBC , or against the open category. The whole scheme is a pile of anomalies waiting to hit the Supreme Court.
  3. If you accept this quota, you have nothing when other regulators and constitutional bodies are brought under the quota too. Why not have the TRAI and SEBI have quotas ?

This is a first, but not the last.

I have been saying this on Twitter. There is little parallel to this arbitrary communal quota in democracy.  Such adhoc quotas in institutions are especially devious because they will be brought under the spell of the same political-benefit-protector from whom such regulators are supposed to act.   Thank you. Jai Hind !

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Is your religion “approved” for running a training institute ?

Posted in Uncategorized by realitycheck on August 28, 2012

Art 30 confers no extra rights

First, lets look at a news item I have been wanting to blog about for a while.  I had to put it off due to the Indian government’s crackdown on online opinion critical of it under the guise of a national emergency.  My ISP, presumably scared of the state apparatus blocked the entire wordpress.com domain (verified by over 20 people across India) when the government only wanted them to ban a couple of posts.

71 institutes in Kerala granted minority status in one sitting

NEW DELHI: The grant of minority status to 71 educational institutions of Kerala by the National Commission for Minority Educational Institutions (NCMEI) in a single sitting has raised hackles within the panel as well as the HRD ministry for doling out of minority certificates without due diligence.

In January, when NCMEI granted minority status to 71 institutions, two of its members — Mohinder Singh and Cyriac Thomas — wrote to chairperson M S A Siddiqui pointing out that the files of many institutions were not in order. In fact, in few cases the vakalatnama by the advocate did not bear his signature. Even required affidavits were not in the files. The two members asked Siddqui as to how the secretary of NCMEI cleared 71 applications and told members that these cases were in order. The duo requested Siddiqui to review minority status to the 71 institutions by the full bench of the commission.

Source : TOI

The fundamental question is not whether the minority applicants – non Hindu for the most part,  had their applications in order. The question is whether a modern democracy can feature

  • a statutory body like NCMEI whose composition is based on religion (Sep 2004 Notification Sec 5. “All members should be chosen as far as possible from minority communities”)
  • exclusive benefits available to members of one religion even in non religious fields
  • such a body can scrutinize and grant their own communities these benefits

Teacher shortage

There is a large demand for teachers in India today, as per some estimates about 20 Lakh new teachers are to be hired in next two years. This is also one of the few areas where the government is still hiring in significant numbers. Naturally, quite a few private teachers training institutes mushroomed to cater to this demand.  In order to regulate this,  a statutory government body called NCTE (National Council for Teacher Education) stepped in. In July 2011, it announced that since there is oversupply of teacher training – no new colleges (for B.Ed etc) shall be allowed to be opened in 15 states.  Also no extra seats will be allowed even in existing colleges.  I located the official public notification from the NCTE and have uploaded it here.

The NCTE, with a view to achieve planned and coordinated development of teacher education system and in order to regulate the growth of teacher education at all levels, has decided, on the basis of state-wise study conducted on ‘Demand and Supply’ of teachers and also in consultation with the State Govts. / UTs, not to accept applications for recognition of teacher training courses including additional intake / increase in seats to the existing recognized courses for the academic session 2012-13 in the following states / UT(s) for the course(s) specified against each :

(lists disallowed 15 states and courses like B.Ed, D.Ed. B.Ped, Shiskha Shastri etc )

What comes next is most invidious.

The above restrictions will not apply in case of Minority Educational Institutions established under Article 30 of the Constitution

But to people on the ground what this meant was :

  • If you are a Hindu you cant start a new teacher training college nor can you increase seats in a college you already run. In all the 15 states listed in the notification Hindus are synonymous with majority community. It is not clear if linguistic minority (non native speakers) are exempt,  in any case the overwhelming majority of approved institutes on the NCMEI website are religious. So Hindu is a precise term. Kerala for example has 3009 minority institutes almost all religious.
  • If you are from other religions – you get to completely ignore this order. You can not only apply for new colleges but that your application will be scrutinized and granted by the NCMEI (Minority body).

The upshot of this order by the NCTE  is simply this :

  • Non minorities are prevented by the state from even participating in the MARKET of spiraling demand for teacher training.

All interpretations of Art 29/30 agree that the provisions do not confer rights to  minorities that  the majority community does not have.  This case is a clear transgression of that doctrine. Now, look at the sorry spectacle educationists present to work around this.

He cited the instance of an institute that had sought minority status on the ground that the promoter was a Sikh by birth, who had removed his hair and turban. When complaints and counter-complaints came about the institute, he said, all records were verified. “Even UP government’s minority affairs department said promoters were minority,” he said. However, NCMEI sources point out that ever since National Council for Teacher Education banned opening of new institutions imparting B.Ed courses except by minorities, many promoters are claiming they belong to minority community and have even produced certificate to back their claims. In some cases from Uttar Pradesh it was noticed that the promoters said they have converted to Christianity and in few other cases even to Buddhism. ”

Source: TOI

The so called secular state has used its coercive powers to make people of one religion fall over each other pretending to be of another religion and groveling before a statutory body drawn from selected religions.

Every phrase in the above sentence has no place in a modern liberal democracy.

Jai Hind !!

Will the minority quota in the Supreme Court pass scrutiny ?

Posted in Uncategorized by realitycheck on August 4, 2012

You may have been following the journey of the 4.5% minority quota in Central Educational Institutions (IIT/AIIMS/etc)  announced by the UPA Government.  To quickly recap, the quota was scrapped by the AP High Court and on appeal the apex court refused to stay the judgment. The matter has now been posted before a constitution bench of the Supreme Court.  Lets take a look at the substantial issues involved in the case.

Why was the quota denied by the AP High Court

The government appears to have been hasty in implementation of this quota. The quota was struck down on three major grounds.

  • No legislative authorization. The quota was announced by an executive order (an office memo) instead of by law.
  • No homogeneity except on religious basis. The quota clubbed together widely disparate communities like Muslims and Christians. Which was a clear indicator to the judges that the quota was implemented on religious grounds only.
  • No data.  Before tinkering with the quota, the government did not consult the NCBC (National Comm for Backward Classes). This procedural flaw seems to have sealed the fate of the case.

For further reading, I recommend this excellent interview with K. Vivek Reddy who represented the petitioners in the case.  Make sure you also listen to the podcast.

Where are we now ?

First of all, it is important to note that this is a sub-quota.  This means that minority communities already in the list of backward classes are sought to be plucked out and allocated an exclusive quota. This happens by reducing the quota for those groups remaining by 4.5% so the overall quota does not exceed the 50%  ceiling.  Once again the point to keep in mind is these minority communities already have access to a quota.  The whole issue is about rearrangement.

Sadhanand Dhume had an article in the Wall Street Journal, which was a bit light in my opinion.  I want to highlight this piece because  it demonstrates a common fallacy.

On all these occasions, the political class blundered by viewing the community through the prism of faith rather than nationality. Muslims are Indians and the best way for India to integrate them is to strive to treat them as individuals, not members of a group. Indians disregard this commonsense notion at their own peril. This means stressing equality of opportunity rather than equality of outcomes. Better schools in Muslim-majority districts, along with privately endowed fellowships for bright students from Muslim-dominated schools (but open to all), are a start.

Source : WSJ

Well this is against Justice 101.  The reality is that the quota system exists and the stakes are huge. Talk to any government employee about the roster system.  So  turning a blind eye to dominant communities in the OBC list while exhorting the muslims to settle for scholarships is unjust.   In fact, in Krishnaiah Vs Govt of India (2012)   the National Commission of Minorities argues that the entire quota system is anomalous and assuming the reality of such a system, their group interests need to be safeguarded. This is a pretty strong argument as we shall see, one that cannot be quenched easily.

…………..The Commission was of the view that ideally the criteria for reservation should be socio-economic backwardness and not religion or caste. Further, Article 16(4) should be the basis for providing reservation benefits to minority groups who are socially and economically backward.  Reservation should be provided only as a short term, time-bound measure for enabling greater participation, both in education and employment. As we have mentioned earlier, the lists of SC/ST and OBC have not been scientifically prepared  ither on the basis of a proper survey or reliable data on socio-economic status of a particular caste or class. Therefore, the entire system of reservation, including that for SCs/STs and OBCs needs to be overhauled.  Reservation as available to SCs and STs is open-ended as it is available to all belonging to the category irrespective of income, educational and economic status. OBCs enjoy 27 percent reservation in employment, though creamy layer is excluded.  The norms and methodology adopted, as pointed out in Chapter-VIII is full of anomalies and hence amenable to large-scale abuse. For this reason, the better off among the groups take advantage of reservation at the cost of socially and economically backward and deprived.  It is, therefore, necessary to limit benefits of reservation to the socially and economically backward only.

It is important to note that the NCBC has not revised its list nor is any public data available regarding the progress made by various communities in the OBC list. This leads people like Owaisi to make impenetrable arguments.

Owaisi’s challenge

Soon after the AP High Court judgment, an enraged Asaduddin Owaisi asked Muslims to challenge the basis of the entire OBC quota.

“The Centre provided reservation to minority community on the basis of empirical data prepared by a panel headed by ex-Chief Justice of India Ranganath Misra, which was constituted by the government to look into the issues of linguistic and religious minorities. But, basing on which empirical data did the OBCs get the 27 per cent reservation? Is it fair?” Owaisi asked.

..

Describing the High Court judgment as erroneous, he said the court said there was no homogeneity between any two minority groups. “In such case, what homogeneity could one find between any two castes among the 93 castes included in the OBC list like say, Yadav and Kurma or Gouda and Munnuru Kapu?” he asked. There was discrimination on the part of the court while questioning the homogeneity between two minority groups.

Source : IBN

From a legal perspective I find Owaisi’s arguments very persuasive.  If they are weak, I havent heard a substantial rebuttal of what he is saying.   Look at this way : If the undivided quota which contains Muslims and Christian groups can be homogeneous, it is difficult to sustain an argument that these groups lose their homogeneity out of the group.  In other words, the undivided list does not confer homogeneity to its constituents.

The most critical case

I strongly believe this quota issue is one of the most critical cases to hit our country.  The court has the unenvious task of adjudicating this claim within the walls of a  broken system made permanent by habit. In any case, the UPA government seems to be better prepared this time. Here is the data they seem to have collected.

  • Former CJI Ranganath Mishra’s report (interalia recommended 8.4% sub quota)
  • Former Delhi HC CJ Rajindher Sachar’s report (concluded Muslims are worse off)
  • representation data for Sikhs, Christians, Muslims in recent admissions 2009,10,11 from IIT/AIIMS/JNU/DU etc

 

Here is the crux of the matter. All these surveys fall afoul of equal protection guaranteed under Article 14 of the constitution. This alone should be sufficient to throw out the minority quota.

Equal protection

Think about what these surveys (Mishra, Sachar, Representation) measure.  They take a target group (Muslims/ Christians) and measure them against the rest of the population. For the moment assume that the measurement is robust and it isnt.  Based on this comparison they draw certain conclusions and recommend exclusive reservation as an antidote for whatever ill they find.

The problem is that there are 2159 classes in the central OBC list. Out of this, 52 (Muslim) + 22 (Christian)  + 2 (Sikh) are singled out for measurement with a view to providing them relief.  There is no reason for this singling out other than the fact that they are distinguished by their religion.  Theoretically you could pull out an alternate group of 55 (Gounders,Dhivar,Kahar,Bhoi,..) + 22 (Keer,Mallah,..) + 2 (Mehra,..) and you could arrive at the same conclusions and make a similarly strong case for a special 4.5% quota for this group.  So the very act of measuring a select group while denying the same measurement to other groups is ultra vires to the constitution because it denies equal protection of law to all these groups that are left out. If the Supreme Court glosses over this; then floodgates are open for any random combination of communities to form alliances and demand measurement only for their group on their terms.

See the irony here.  Owaisi is now the reasonable man because he seeks accommodation for his community within a platform widely acknowledged to be broken.  To allow that would compromise the constitution and cause injustice to those who were not similarly measured, to deny him would be unjust because he atleast has some data, the others have none.

What can be done ?  Essentially we have arrived at a fork in the road. The only way out is to comprehensively measure every community, not on the basis of census surveys but on representation in services and education.  Because imbalance in  representation is the purported aim of this whole social justice exercise.  Once all communities in the OBC List are tabulated, the group can be split into two or three. Minorities would automatically get into the group which makes it easier for them to access the benefits. But others would have the chance too.

Will the court stand up and deliver ?