The Congress led UPA government’s flagship inclusive platform is called the “Prime Ministers 15 point Minority Program”. This program provides for a specific (15%) set-asides of all schemes and exclusive benefits. Here is the official release from Press Information Bureau
The new programme envisages location of a certain proportion of development projects in minority concentration areas. It also provides that, wherever possible, 15% of targets and outlays under various schemes should be earmarked for the minorities. The schemes of Ministry of Minority Affairs covered under this Programme are meant exclusively for minorities.
Source : pib.nic.in (emphasis mine)
Now there are several programs in the 15 point agenda that are of interest only to minorities. They include advances to Wakf management, improvement of Urdu teaching, Madrassa modernization and so forth. One could make a case for investment into these goods. They might serve a national interest such as streamlining administration or pulling back radicalization of Madrassas by injecting a public component into their revenue sources. Non minorities have no interest in these goods.
What should stun everyone is that 12 of the 15 schemes are simply public goods that every citizen of India is interested in. Schools, roads, houses, scholarships, and employment loans. It is a fundamental departure from any concept of a modern state to alienate such goods on the basis of religion. The state cannot create such goods and not make it available to everyone.
Modi is the only Indian leader to stand up to it
One of the many schemes under the banner of the PMs 15-Point Minority Program is a pre-matric and post-matric scholarship program. This is a vast program benefiting 50 Lakh minorities at a cost of Rs 650 Cr per year. All states have implemented this scholarship that excludes the majority community without a whimper. All except one. Modi’s government has refused to implement this even if that meant giving up the crores of money from the centre. This is the bone of contention in a case currently under consideration in the Gujarat High Court. Kartikeya Tanna has an excellent analysis of the case on Firstpost. The conditions for availing of these scholarships, which we should not forget are created out of general tax payer money, was that the child had to belong to Sikh, Christian, Buddhist, or Parsi. The Gujarat HC struck down the 15-point scholarship program on the ground that other things being equal a Hindu student cannot access this good. The case is now in front of a 5 judge bench of the Gujarat High Court pending a ruling.
A common technical defence is that after an allocation has been made to a certain ministry it should be allowed to spend for welfare of whomsoever it chooses fit. If you alienate a public good, irrespective of the mechanism you used, such as slotting it under a Minority Affairs Ministry head, that should not be allowed. You only have to walk a few steps ahead. Assume that this ministry decides that the best way is aid their community members is to refund their income tax. This would result in a differential tax rate for different religions. That would instantly be recognizable as an undesirable thing. Yet these religious appropriations have those properties. Another example is the creation of Tipu Sultan Minority University and three others. Rahman Khan who runs minority schools and is also the Minority Affairs Minister arrogantly claims “..no point in opposing the move“.
In the rest of this post, we will throw some light on one of these schemes called IDMI.
IDMI – Infrastructure Development for Minority Institutions
IDMI is a scheme under the Human Resources Development created with 125 Crores in the 11th 5 year plan and poised to increase further in the 12th 5 year plan. Here is that this scheme does :
The scheme will fund infrastructure development of private aided or unaided minority institutions to the extent of 75% and subject to a maximum of Rs. 50 lakhs per institution for strengthening of educational infrastructure and physical facilities in the existing school including (i) additional classrooms, (ii) science / computer lab rooms, (iii) library rooms, (iv) toilets, (v) drinking water facilities and (vi) hostel buildings.. etc
Source : India.gov.in
In short, minority schools even unaided can apply for upto Rs 50Lakhs from the central government. These applications will be scrutinized and approved by a body called GAIC to which the HRD will appoint two members belonging to the minority community.
Last week, the Times of India carried this report about how this scheme works on the ground in Kerala.
Though the scheme will fund infrastructure development of private-aided or unaided minority institutions to the extent of 75% and subject to a maximum of Rs 50 lakh per institution, the state has even recommended for funds even thrice the maximum limit prescribed under the scheme.
While the state received Rs 5.59 crore in the first year under the scheme, the amount has increased to Rs 25.9 crore last year, which, according to the figures with the ministry of human resource development, is the highest amount disbursed under the scheme for any state under the scheme.
In 2011-12, 154 minority schools in Kerala both aided and unaided received Rs 54.18 Crores to fund improvements. The data including the names of schools and amounts is available online on the HRD website.
Burdens and benefits
As a believer in secular liberal democracy, these adhoc waivers and tilts in the distribution of burdens shocks me. A Hindu run school right across the street is not only burdened with the vague and draconian Right to Education Act but is also deprived of even participating in these liberal grants created with public money. Ask any school principal how difficult is it to raise even 5 Lakhs,say for 10 new computers. It is hard. The flood of minority school applicants from Kerala for these grants attests to this fact. Remember that under RTE, non minority schools are not even allowed to charge a development fee in order to execute these works. Recently DPS Pune was fined an astronomical Rs 22 Crore.
If this is your secularism, I want none of it.
Neither should you, as the gains from such partitioning will be short lived.
Q: Why did not hear about this scheme ? Not from the media, not from think tanks, not from intellectuals who live and breathe distributive justice.
India is witnessing a collective outrage over the brutal rape and attempted murder of a 23-year old girl. I want to take a crack at three fundamental issues at play here.
1. Can we hang this perpetrator ?
If you notice the senior Congress ministers arent committing to extending the death penalty to rarest of rare rape cases at all. They are issuing some slimy statements. Lets assume for a moment they are serious about it based on this report.
Essentially, the Home Minister has promised:
» A strong law to deal with rapists that wil provide for capital punishment in certain cases; and,
» A commission of inquiry to review police responses to last Sunday’s rape.
Source : Niticentral
Say you amended the penal code to introduce the death penalty for the rarest of rare rape cases, would it apply to the accused in this case ? I dont think so. Such an application would be an example of retroactive or ex-post-facto law. This is generally regarded as evil for good reason. Zoom out from this case and think about if such laws can be passed as a general case. You cannot regulate your conduct with respect to any set of laws if
- they go back and redefine what is illegal in order to catch you
- having caught you for a violation, they redefine the penal code to punish you harder or softer
- having caught and punished you, they can roll back the new laws and codes
It is for this reason retroactive laws are banned in most countries. In India, Article 20(1) specifically bans such laws.
Article 20(1) in The Constitution Of India 1949
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
It appears the Congress government, and to a lesser extent, the BJP are playing us when they announce such measures. Most of them are in the legal profession and they know they are holding out false hope. You could probably amend the constitution to add a escape clause to 20(1) , but think about it : Do you want to sacrifice the entire basis of law for one case ?
2. Is death penalty for rape a good deterrent ?
If you are against death penalty in principle, obviously death penalty for rape is not on the table and the argument ends there. If you are for the death penalty in homicide cases, then you have a think a bit harder. You have to start separating the various types of such violations. The clearest separation is sexual violence against a minor vs an adult. On one hand if you believe the death penalty is a deterrent to murder then why cant it be a deterrent to rape ? I suspect the answer is that is murder has a property of an “end of the road” finality which rape doesnt have. Its really is all over in one case and there is no further legal interpretation required. This is not to diminish the life long psychological scars left on the rape victim, it just means it is a lot harder to have clarity while sentencing.
We are already facing an onslaught by far left marxist intellectuals, activists, and media outlets over abolishing all death penalty. Those of us who support it for its deterrence qualities stand to lose everything by extending it to rape. The finer points have already been discussed thread bare in Kennedy v Louisiana (child) and Coker v Georgia (adult) My own position is I dont support death penalty for adult rape and I am torn about child violence. Indian activists will yell “India is not America” but please read the briefs in those two cases to build up your own positions one way or another. Sidestep what you read in the Indian media.
3. What effect did the UPA pardons have ?
The Congress led UPA government in June 2012 pardoned 23 people on death row. Some of them had committed crimes worse than this on children and all of them had been sentenced to die by the Supreme Court after the ‘rarest of the rare’ doctrine came into effect.
Take the case of Molai Ram v MP. Here was a rape and murder committed by two convicts serving term on other charges. They brutally raped and killed a 16 year old girl inside the jail premises and dumped her body in a septic tank. Take the case of Shobit vs Bihar where a dacoity killed a family of six including two young boys who were snatched from the mothers lap and shot. The killers didnt want a Hindi film style revenge when the boys grew up because they had seen their father getting murdered. There is an example of a Sushil Murmu v Jharkhand where a killer kidnapped someones 9 year old son and beheaded him in a ritual sacrifice even though he had a 9 year old of his own. Then there was a 5 year old girl. Then there was a 10 year old boy. The list goes on and on and on. Notice what the Supreme Court observed in Murmu
This in our view is an illustrative and most exemplary case to be treated as the ‘rarest of rare cases’ in which death sentence is and should be the rule, with no exception whatsoever. Appeal fails and is dismissed.
Finally there is the case of Mulla vs UP, where poverty was stated as a mitigating factor in overturning the death penalty. What this means in effect is that certain citizens can have an “inside” track when it comes to sentencing. This should shock us because it flies against basic principles of rule of law that calls for a general application. The only mitigating factors ought to be related to psychological state.
In effect, the marxists have not only succeeded in abolishing the death penalty through the backdoor but have undermined the uniform application of law. Would I support hanging the perpetrator in this case when the killers of the jailors daughter are alive ? No way.
On the big canvas I firmly believe the death penalty is a required deterrent in India. The life outside jail is one of filth, uncertainty, poverty, and violence. For many on the margins, life inside jail isn’t that big a deal. What works in Norway and France, life on the riviera, benevolent state stipends wont work in India. A real cost benefit analysis would compare the uniform application of the death penalty in homicide vs a holistic reform system.
- Holistic reform : Assign social workers to those accused of gruesome crimes in order to make them better people. How much would it cost to run this ? Now that the deterrent factor is gone, how much would it cost to admit the flood of people that enter this system ?
We, the citizens of this third world country, should first get out of filth and squalor in a hurry. This is not to say that the rule of law must be treated as an inconvenience. We should revert to the simplest formulations of the rule of law. All available deterrents should be used to the optimum levels and no extraordinary processes to anyone.
A constitutional amendment bill was passed yesterday in the Rajya Sabha. This is the 117th Amendment bill which I had discussed in depth in May 2012 in “Constitutional amendment around the corner”
The sheer misinformation, under coverage, and smokescreens in the media on this crucial issue is mind numbing. Here is todays editorial in The Indian Express.
Have parties considered that a quota in promotions may not be the best way to address the problem?
later in the evening, the Rajya Sabha passed the Constitution (117th Amendment) Bill, 2012, to extend the benefits of quota in promotions to all Scheduled Castes and Scheduled Tribes, and to override Article 335, which requires their claims to be balanced by concern for the efficiency of government.
Source : Indian Express
But here is the thing.
The promotion quota already exists. It has for decades. The question of whether or not there is a better alternative isn’t even in front of us. It is completely irrelevant to the events of the day and this editorial is clearly a distraction from the main issues. I anticipated exactly this media misinformation campaign, which is why I preemptively wrote the May 2012 post. Can they miss it ? I think not, it is on the top of Google for this topic. This amendment is about removal of the last remaining constraints on preferential treatment of a class of citizens. Lets jump in.
The thorn : Nagaraj vs Union of India (2006)
I wont repeat all points made in the previous blog on the topic, but a quick recap is in order. M Nagaraj vs India (2006) was a case challenging the whole burst of constitutional amendments related to promotion quota which themselves were passed to obliterate earlier SC judgments in Ajit Singh 1 & 2, Sabharwal, and a slew of other cases. Nagaraj upheld ALL the challenged amendments (77,81,82,85th) with the following rider.
- It was going to uphold all of them because it believed it would not result in excesses due to the data requirements.
- The state had to collect data for a) backwardness of the class and b) inadequacy of representation.
This stands till today. The UP Promotion Quota was struck down because of the failure of the government to provide such data.
The communal roster
I bet if you watched the media or read the papers you would’nt know that all recruitment and promotions in government jobs are controlled by device called a communal roster. This device is at the root cause of the problem. A quick summary again of how this works.
- Say you have 100 positions at Level A
- The individual positions are marked like so SC, ST, OBC, GC, GC, GC, SC, ST. . etc. (like DNA sequences)
- The sequence is called the roster points notified by central and state govts. They are called 100-Pt/200-Pt rosters.
- Similarly you have roster points for the 50 positions at Level B
- There is something called a replacement rule – if you are a roster point reserved officer vacating your position due to a promotion, exit, or retirement – your position can only be taken by another officer of the same category (SC/ST).
- If you are a general category vacating your roster point, your position can be taken by anyone including an SC/ST/General.
This roster system works very well if all you wanted to do was a pure communal quota. IE – if x% of seats are also reserved for general category only. But this isnt allowed by the courts. There is one more part, an important part, of the puzzle. Its called consequential seniority. This is the source of endless litigation and the main reason behind the 82,83,85th amendments and the 117th bill (this one). As you have seen , the roster system accelerates those with a quota and slows down those who dont have one. How does it work along with consequential seniority.
Imagine your job promotions are controlled by a turnstile that alternates between green and blue positions. Green allows anyone to pass through and blue only allows some class of people. Now imagine another turnstile to the next level where those who passed the previous turnstile in the express route are now deemed ahead of you for passing through the next green. Imagine 6 levels of such turnstiles at every step of your career. This is the state of government employment today. This is why those on the outside are protesting to such an extent.
Lets borrow this phrase from the US rulings on affirmative action to illustrate what is happening as a result of this roster system. Here is a story
For example in Bihar, all 19 posts of chief engineer in irrigation department are occupied by officers of the SC category. Likewise, all 14 chief engineers in PWD are from the SC/ST category. Similarly, in Karnataka, all 31 posts of chief engineers in Karnataka Power Corporation are occupied by the officers of the SC/ST category. “Why the issue was not taken up in Parliament before the general elections of 2009 or the UP assembly elections? It is nothing but a conspiracy by Congress and the BJP,” Dubey said
So what the roster system has done is concentrate reserved candidates at higher levels. Recall that anyone can go through the ‘green’ turnstile. But zooming out to overall levels, due to the late impact of consequential seniority and other factors like direct recruitment the numbers are on the low side 11% against 18% for SC. The key point is that given enough time the roster + consequential seniority will concentrate almost exclusively the reserved candidate at the top.
How does Nagaraj help here ?
If you were an general category Asst Engineer in Bihar Irrigation Department you would find it extremely cruel that your career has effectively ended because even though at the next level 90% of seats are occupied by SC officers, you are shut out citing an overall deficiency across the department, state, even country. Thus the policy isnt narrowly tailored, rather adhoc with respect to the width of its application. The Nagaraj judgment sort of puts a spanner in the works here. Once such anomalies are brought to light by parties with some standing the court can intervene and halt the roster. That is the last and only check available. The 117th amendment removes that check.
Will this pass muster
Looks like the Winter session ends in a couple of days, so the Lok Sabha might only take it up in the next session. This amendment is almost certain to be challenged immediately. What will the court do ? I think it would be a monumental task for any bench to square this amendment with any conception of equality however wild it is. In Nagaraj, the bench heavily relied on the adequacy requirement to set aside fears of the 4 amendments violating the basic structure. Even in the UP Power Corp case the court hinted that an amendment to remove all checks will be a violation of basic structure. Ultimately, the court which quotes Amartya Sen in its opinions (see Nagaraj) will be confronted with the strict scrutiny doctrine. The more you deviate from well understood equality to fuzzy concepts like proportional equality or substantive equality the tougher it will be to escape the hard work of strict scrutiny.
I just read a news article in DNA about the Zee News executives in judicial custody.
Here is a short post about why this disturbs me.
Quick Facts :
- Zee News executives allegedly offered to cut back on Coalgate coverage if Jindal would pay 100 Cr in the form of advertising revenue.
- Jindal representatives pretended to bargain while secretly taping these meetings.
- They took all the tapes to the police.
There are two aspects to this. First as something that must be addressed by the media fraternity in their own self interest. Second as a legal matter which calls for punishment or cancellation of license. The legal case particularly about the extortion charge isnt clear to me at all.
It is crucial to distinguish between extortion and blackmail. There is a vast volume of literature on this topic, but here is a really good article on the matter by US Federal Judge Richard Posner (PDF).
- Extortion : Demand money – otherwise I commit an illegal action like hit you over the head, criminally intimidate you, defame you, and so forth.
- Blackmail : Demand money – otherwise I exercise my right to free speech. In effect, this is an offer to waive my right to free speech in a particular instance in exchange for money.
Everyone seems to agree Zee News were not forcing Jindal in any way. At any time, Jindal could have simply walked away. Their fear that subsequent to the failure of the deal, Zee News would commence broadcasting lies is unfounded because there is enough protection in existing laws against criminal defamation. Prima facie this isnt extortion at all. This is blackmail – an offer by Zee News to cut back on its right to free speech and arguably professional duty. Extortion also has a dimension of power, a goonda is able to extort from a push cart vendor because when the latter toys with the idea of resistance, he factors in his costs.
The media better sort this one out amongst themselves.