Hartosh Singh Bal has a new article up on the Global New York Times site titled “Classes Warfare“. In that he narrates a personal account of his inability to wrangle a nursery seat for his three year old son.
New Delhi’s top private nursery schools are perhaps as competitive as an Ivy League college, but that’s not saying much about the means required to get in. I should know: I spent the last month filling in application forms to 10 private schools for my three-year-old son, and he wasn’t admitted to any.
Source : NYT Global Site
I dont want to make light of a serious situation. I dont know of a single family for which this would not be a nightmare scenario. But Mr Bal misses the point entirely about why the situation is so. He says that the RTE Judgment in the Delhi High Court failed to provide “some remedy” to the throngs of parents. If only the petitioners had been successful in court. In this post, I argue that is not the case. If people really want a remedy they must call out the RTE Act itself for the damage it is about to wreck and hopefully make the next year better.
Recap of RTE situation in Delhi
The RTE judgment in the Delhi HC has not been reported on very well in the press. The RTE Act is known for the 25% quota but there is another clause in there. Sec 13(1) which bars schools from screening any parent or student. From what I understand, RTE “Enabled” Private Schools in Delhi were following this formula give or take : 25% RTE Quota + 20% Management Quota + 55% Lottery with weights. The weights had to do with assignment of points for siblings, alumni, location etc. All of which seem reasonable to me. The matter in front of the court was the 75% quota as it applied to nursery ( < 1st std) admissions. The petitioners would not give any discretion to the school managements for the 75% and would only accept a lottery. The Court denied their position, but nudged the HRD Ministry to amend the law itself. The case is also going up the Supreme Court.
As it turned out, Mr Hartosh Bal ended with a less than 1:10 odds of landing a seat. If the court had sided with the petitioners all 75% would be thrown open to lottery. In that scenario, the new odds according to his own statistics are 1:30 (1500 seats and 50000) applicants. An even lesser chance. Folks are unwilling to confront the most obvious question.
Why arent new schools opening up to pick up this wild demand ?
It is fashionable to slam school managements as the evil who actively look for ways to discriminate. The media is hammering into us that it isnt capacity mismatch that left us out rather active bias on basis of power, economic status, and whatnot. Being able to select students for admission is a vital facet of the right to run an educational institution and indeed a great incentive for starting one. After all, if the private schools had lesser applicants than the number of seats there would be zero screening. They screen because of the demand and they screen based on what their conception of an ideal private unaided school is. If they want a power politician school, they’ll pick neta kids, some pick army men, some purely pick moneybags – perhaps to fund the new block, some pick English speakers. Remember the demand is not just for seats, but for seats with certain other group characteristics.
Without autonomy in admissions, and that includes screening, the entire range of incentives to start schools vanish suddenly. To that add an amorphous and discriminatory RTE act any adventure into starting a school is foolish. There is very little due process protection against any NGO armed with a Xerox copy of the RTE act. The fundamental anti-trespass nature of private property goes for a toss. The RTE Act’s biggest fallout is going to be evaporation of capacity. No one will come forward to establish a school unless protections such as those for religious minorities are offered (which deserves 10 posts in itself). As some great man said “You will never sow if you arent sure you will be allowed to reap“.
Despite my strident opposition to the RTE, I am not an extremist. Screening is evil if schools work themselves into a monopoly situation by virtue of having been there first. The main reason for monopolies to arise is this. The impossibility of any newcomer to fulfil regulatory requirements the incumbents are exempted from. In such cases, the well recognized legal doctrine of ‘reasonable non discriminatory conditions’ can be enforced like it is for telecom and electric providers. But that doesn’t have to be the case here where there is no resource crunch. Clear rules, lets start with repeal of RTE, will encourage new players to enter. I can already see people drooling over the 50,000 kids of middle class parents, some of whom are ready to pay $10,000 for a seat. It may be unpalatable for socialists that new schools will cater to rich, but think harder. It will improve the odds from 1,500/50,000 to 1,500/20,000 because the other 30,000 are knocked off due to their willingness to pay. There are no losers in this scenario.
What can a common man do. For starters, educate yourself about what laws like RTE entail. It is hard because the media does not carry substantial analysis of any statute rather focusing on consequences. Once the facts are out there you will recognize. Laws like RTE will shrink capacity, undermine property rights, equal protection, and freedom of occupation.
It doesn’t matter if we lose in a lottery or in a beauty pageant. We still have to break the news to our kids. The beauty pageant will increase total capacity and the lottery will shrink it.
The CON-led UPA government is all set to table the “Equal Opportunity Commission Bill (for Minorities only for now)” in the Budget Session of Parliament 2013. I would call this the “Unequal protection under the Equal Opportunity Commission Bill 2013“. Yeah, its crazy like that.
I will collate a list of materials here.
Hopefully we can kick up a storm at least in the social media teacup.
On Feb-15 2013, a 5 Judge bench of the Gujarat High Court found that the UPA governments pre-matric scholarship program exclusively for minority communities was constitutional. Details of this vast scheme which has benefited more than a crore students at taxpayer cost of Rs 810 Crore (Union Budget 2012-13) can be found on the Minority Affairs e-Scholarship website.
Kartikeya Tanna has analyzed the judgment in a two part series over at Niti Central Part 1: All Muslims are not backward and Part 2: Religion cant decide welfare. Head on over there for a detailed analysis of the majority and minority opinions. I am not going to rehash the points made there, but will focus on a particular issue. One which lies at the root of most of these cases involving the state classification for providing private goods. The issue is this : Do we have a standard of judicial review when the govt decides to classify the common body of citizens ? If we do have a standard, what is it ?
Role of scrutiny in the two positions
The majority position can be summarized as follows : The scholarship programs are not in violation of the equality guarantees in Art 15(1) of the constitution ( ..”(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them ). The honorable judges in the majority opined that this is a valid classification because it is not just for minorities but for minorities who have been shown as lagging by the Sachar report. There is no need to look beyond that because according to the opinions in Dr Saurabh Choudhary vs Union of India (residence based classification) (2004) and Ashok Kumar Thakur vs Union of India (OBC quota) (2007) – the US style “strict scrutiny” was not applicable to India. So objections based on the actual findings of the report arent going to carry much weight.
The minority position can be summarized as follows : The programs violate Art 15(1) because similarly situated candidates of Hindu (non-minority) will be excluded from this program only on the basis of religion. This is a strong position because for OBC benefits, atleast on paper, similarly situated upper caste students are not eliminated. The reason is if a community could show social and educational backwardness they too stood a chance of being identified as OBCs by statutory bodies such as the NCBC and various state commissions. However in this case, the only difference is religion which cannot be transcended. The 2 judges in the minority also break open the actual content of the Sachar report. They need to review the findings because they assert that if one had to test for valid classification a “strict scrutiny” is a must (P98). Once they adopted an enhanced scrutiny vs the majority judges, the rest of their judgment falls into place naturally. Sachar never studied Christians or Sikhs so such a piggybacking would result in a heterogeneous group. Even among Muslims Sachar found that they were ahead in 10 major states including Gujarat. See my 2006 post on “Sachar Literacy Rate puzzle“.
The two positions are rooted in different standards of review. On one side you have a “conceivable / rational basis” which is a very low standard of review and on the other “enhanced / strict / substantial review” which would actually test the basis of the classification being litigated.
Scrutiny in other classification
Social justice is the primary ground for deviating from the equality provisions. The two platforms of social justice are 1) SC/ST and 2) OBC. Members of the former are enumerated in the constitution so evidence takes a back seat there. The OBC category is however based on social and educational backwardness which by its nature must be measured. Much of the current confusion is due to the fallout of a low standard of review of the OBC category. If there is one thing Sachar found, it was that in many parts of the country Muslim communities were not being given their pro-rata share in the OBC platform. The right approach must be to subject the OBC platform itself to a rigorous scrutiny so that such grievances have a valid and secular redressal. To illustrate the tight spot – consider the notice given by the Supreme Court to the Tamilnadu government to collect data about backwardness. Sure enough the commission came out with a report which inter-alia questioned the court’s domain itself.
These chapters clearly show that the report has hardly any bearing on the Commission’s mandate. Among other things, it questions the judiciary for its Mandal rulings, portrays it as an interloper in state policy, and overturns its mandate to the Commission.
Source : The Hindu – P. Radhakrishan Perpetuating the scourge of casteism
So here we are. Sachar showed that the primary platform simply wasnt delivering pro-rata share to some vocal groups. It is also immune to a substantial review under the prevailing “rational basis” test. So the only option is to partition public goods along yet another dimension of minority. The right fix in my opinion is to move in the direction of Nagaraj and subject all classifications involving groups listed in Art 15(1) to a substantial review.
Why is this case important
The Congress government has a slew of ambitious minority-only programs under the Prime Ministers 15-point program. We have seen how in education minority schools are not only exempt from the deeply flawed Right to Education Act but they are also given public money under the IDMI scheme run by the HRD. The 12th 5 year plan also envisages 15% of all expenditure be channeled to minorities, there are minority universities like the controversial Tipu Sultan University being setup, KV style schools are being planned in minority areas, fund allocation to territory is sought to be linked to the religious composition of that territory under the MSDP scheme. The direction is clear. All these invidious schemes will meet challenge. Even though the immediate scheme of pre-matric scholarship may only cost a few hundred crores the magnitude isnt important. The same principles will be used for programs which involve no 800 Crores but 8000 Crores. With a conceivable basis test as the standard all these can sail through which in my humble opinion would be an abdication of judicial duty of review.
I’d also like to single out the most important factor in my humble view. The deference given to the creation of an omnibus category called the “Minority” which includes not only Muslims but politically and numerically significant groups like Christians, Sikhs. If you dont have a “Narrow Tailoring” test – which is part of the strict scrutiny doctrine, you will end up with such anomalous situations where a Syrian Christian in Kerala can be classified along with Muslims based on a study that only pointed out targeted pockets of backwardness. Lower standards of scrutiny tend to look the other way when faced with these situations. The political class, particularly the Congress party would of course like this freedom to create adhoc factional coalitions that are setup in confrontation with the majority coalitions on the other side. This cannot be good for any democracy as people will be ever locked up in fights and never be able to vote on big ticket issues like corruption.
In conclusion, Reality Check India, the valiant fighter for lost causes, would like to toss the topic of judicial standard of review into the arena of public debate.
Here is a copy of the judgment for those interested.