Reality Check India

A Brief History of the 93rd Constitution Amendment

Posted in Uncategorized by realitycheck on March 22, 2015

Early 2005 was a time of joyous celebration in the Congress Party. They had just upset the BJP led National Democratic Alliance at the polls. Their allies DMK and the Communists had pulled off spectacular wins in their states.  Sonia Gandhi was in firm control of the Congress party and none of the smaller allies had any big ticket ambitions. They could be placated by a few sectarian concessions, relaxed prosecution, or providing them corruption opportunities. It seemed like the dark days of the Hindutva agenda under Vajyapee were truly over.

However, under the covers, one critical problem loomed that needed urgent fixing. Strategic thinkers of the establishment realized that the principal canon of the “Idea of India” was damaged beyond recognition under BJPs rule.  That of the state to run outright communal preferences in the domain of education.

Judicial blows to the Idea of India

The Indian state has grappled unsuccessfully with the issue of education ever since its inception.  The question that most concerned everyone during the 90’s was how to regulate the rapidly proliferating private education space.  After a series of over eager judgments in Mohini Jain and Unnikrishnan it became abundantly clear that the government alone was not in a position to fulfil the education needs of the people and running the private sector into the ground (such as in Mohini Jain) would backfire.  Faced with this reality various state governments resorted to biting off a part of the private capacity and using that to advance its social objectives. Almost immediately this ran into the minority issue as well as issues related to fees and cross subsidies. A number of these questions  accumulated and the need to settle this once and for all was felt by everyone. The opportunity presented itself in a case called TMA Pai Society vs Union of India.

Eleven judges of the  Supreme Court, the second largest bench after the 1973 Kesavanada Bharati’ thirteen judges would hear the education and minority issues and settle the issues once and for all.  The hope was this large bench would not be encumbered by the earlier nine judge bench in St Xaviers v Gujarat.  I wont go into the details of TMA Pai but the 11-judge bench delivered its verdict in 2002.  The split was roughly 7-4 on a number of questions; but even the 4 dissenting judges agreed on a number of the framed questions. The most shocking part of the judgment was the following.

Private education institutes established by minorities and non-minorities were held to be on equal footing.  Hindus could enjoy the exact same rights under Sec 19-1(g) that the minorities did under Art 29/30.

This may seem like a no-brainer decision to us or to a western liberal observer but this kind of parity is anathema to the Idea of India. The best evidence for this came recently when Fali Nariman spoke at the National Minorities Convention. Sample this :

The decision in TMA Pai was a un-mitigated disaster for the minorities. Let me tell you why. Article 30 (the right of minorities,religious and linguistic to establish and maintain education institutions of their choice) has now been placed by Court decision on a much lower pedestal than it was – or was intended to be. It has been equated only with a fundamental right guaranteed under Article 19(1)(g)– i.e. a mere right to an occupation (running an educational institution the Judges said is an “occupation” like any other)

Fali Nariman speech at the National Commission of Minorities

Of course, It is not a question of lower or higher pedestal but that of parity with everyone else. Why would you not interpret that everyone is now elevated to Art 30 level protection ?

Post TMA Pai, there were a number of issues related to entrance exams, capitation, and such like that caused major confusion. Another constitution bench of 5 judges was setup under Islamic Academy vs Karnataka to clarify. They still left some vagueness in the questions related to admissions. Then a final bench of 7 judges was constituted for PA Inamdar v Maharashtra to further seal the issue.  A lot of questions got answered – a lot did not. But here is what happened.

The essential parity the court accorded to minorities and Hindus in the field of education persisted.  The concept of parity between Hindus and Minorities run educational institutions emerged unscathed after examination of large benches. First a 11 judge, then 5 judge, then 7 judge.  The final word :

In the opinion of S.B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the Constitution is “certain additional protection” with the object of bringing the minorities on the same platform as that of non-minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language.

It is clear that as between minority and non-minority educational institutions, the distinction made by Article 30(1) in the fundamental rights conferred by Article 19(1)(g) has been termed by the majority as “special right” while in the opinion of S.B.Sinha, J, it is not a right but an “additional protection”. What difference it makes, we shall see a little later.

PA Inamdar v State of Maharashtra  Aug 2005

http://indiankanoon.org/doc/1390531/

The final word in PA Inamdar came in August 2005.  It was now clear beyond doubt that the principle of parity to Hindus in education had just emerged unscathed from three big constitution benches.  It was settled. It was final. It was going to be the way forward for India.  I realize now that the ecosystem must have been inconsolable at this. How was the Sonia led Congress govt going to restore the minority preference over these epic judgments ?

The Congress govt just decided to, ahem.. simply change the Constitution of the great Republic of India. 

Invidious agenda set in 2004 lives to this day. Repeal needed.

Invidious agenda set in 2004 lives to this day. Repeal!

The 104 Constitutional Amendment bill is born

After PA Inamdar came down in Aug 2005, minority preferences in unaided education had reached a judicial cul-de-sac. It really was game over. The Congress govt worked with great urgency to move a constitutional amendment bill that would obliterate the court judgments  The idea was to

  • allow the state to take (to an unspecified extent) from unaided educational institutions
  • explicity exempt institutions run by minorities from it
  • explicitly encode the exemption in Art 15(5) itself

The person selected by the party high command  to pilot such an outrageously divisive bill was none other than Arjun Singh – the Congress HRD Minister. They quickly added a new section in the Constitution of India called Article 15(5) which read.

“(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”.

Article 15(5) inserted by the 93rd amendment

The minority exemption was immediately opposed by the BJP.  Unfortunately they did not make an intellectually honest case as to why this bill was wrong. Instead they sought to include backward among minorities in their institutions. Also remember this was 2005, there was no social media. The mainstream media had absolute control of the discourse and they might have simply decided to suppress all dissent and continued with their propaganda. Regardless, it does seem that BJP put up a fight – however nominal. This is what happened.

  • Since 2005 was a massive victory for the Idea of India in total contrast to 2014 – the Congress could work the caste blocs within the NDA with targeted benefits
  • The JDU  backstabbed the NDA at the last minute leaving it stranded
  • The BJP opposition was not very  sustained or principled.  In the end, the BJP voted for the bill and moved a separate amendment which extended Art 15(5) to minorities. That was predictably defeated
  • You can see that pattern evolve in much of BJP’s support to invidious UPA legislation such as RTE

Impact on SC/ST

Since a large chunk of the top educational institutions are run in India by minorities – the bill predictably hurts the Dalits by shutting them off elite professional colleges. For example in Kerala minorities run 14 of 18 medical colleges. This is the clearest proof that the Congress party which claims to fight for Dalits will only do so when it does not come into conflict with Christians and to a lesser extent the Muslims. (Only because among minorities Christians run a much larger chunk of education than Muslims do).  A forum of SC/ST parliamentarians raised this issue and a delegation appears to have met the Prime Minister. They finally seemed to have been assured by the Prime Minster Manmohan Singh that their concerns will be taken care of. Of course , we know now that he really wasnt in control of anything. This fizzled out and Dalits still dont have quotas in aided or unaided minority institutions. Hope the BJP leaders involved in those days speak up now in detail. Details are scant in the media.

In the end, on Dec 22 2005  the 93rd Amendment was passed. The Constitution of India was changed. Years of effort of huge benches, dozens of lawyers, thousands of hours of arguments were obliterated.  Minorities were once again restored to a preferred status when it came to the issue to education.

Validity of the bill

One of the reasons I wrote this article was to highlight the need to understand the 93rd amendment.  A good summary of details can be found on this blog as well. Quite naturally this 93rd Amendment was challenged.  While hearing the OBC quota case Ashok Kumar Thakur v Union of India. the court noted that they would not hear challenge to the 93rd amendment until the Centre passed a law that depended on it.

That opportunity to test the 93rd amendment against the “Basic Structure” came n 2010 in the form of the Right to Education Act. This was a law that exercised the 93rd amendment by imposing on private educational effort while exempting those schools run by people born as minorities. Remember that the quanta 25% is arbitrary – there is absolutely no protection upto 49.5%. Even that is crumbling.  An earlier bench hearing a challenge to the RTE Act  involving Rajasthan Private Schools did not go into the constitutional question. I can only guess because that was only a 3-judge bench. Eventually they did constitute a 5-judge bench to hear the RTE Case in 2014 involving a large number of petitioners under Pramati Educational and Cultural Society.

On May 9th 2014, a week before Narendra Modi led BJP swept into power on a massive mandate – the 93rd Amendment was held to be constitutional by a 5 – Judge bench in Pramati Educational & Cultural … vs Union Of India & Ors 6 May 2014  http://indiankanoon.org/doc/32468867/

While departing, the Idea of India ecosystem had managed to secure its crown jewel.

This is where we stand now.

——

Fallouts of the 93rd amendment.

Post the 93rd amendment, sectarianism in education has taken deep root. Minority colleges have flourished. Even aided minority colleges are exempt from quotas that are applicable to fully unaided Hindu run colleges.  The trajectory of the education scene can be best illustrated by a Jan 2014 judgment in Madras High Court  Federation of Catholic Faithful vs State of Tamilnadu Jan 2014

In the light of the above said judgment, even in respect of aided courses run by minority colleges, there cannot be any direction to follow the rule of communal reservation.

Next week we shall talk about another crucial case.

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In support of the cow slaughter and beef ban in Maharashtra

Posted in Uncategorized by realitycheck on March 14, 2015

Indian social media is on fire with a large majority of people denouncing the #BeefBan in Maharashtra. Unfortunately the BJP seems to have gone incommunicado after the law was passed.  I have been waiting for the actual text of the Maharashtra Animal Preservation Act 1976 Amendments before writing about it. I still cant find the text online, so here is my take on the issue based on piecing together news reports.

Happy calves at shelter (Credit Source : homa1.com )

Happy calves at shelter (Credit Source : homa1.com )

The Beef Ban law

The State of Maharashtra has always had prohibitions and restrictions on certain types of bovine meats. The law that was in effect from 1977 until now is called the Maharashtra Animal Preservation Act 1976 [ apa1976 PDF ]. This act had the following provisions.

  • Total ban on slaughter of cows
  • Regulated slaughter of so called scheduled (a list of) animals.
  • Allowed slaughter of adult bulls and bullocks as along as each individual animal had a certificate from a govt official (competent authority)
  • Allowed slaughter of adult female buffalo with certificate as above.
  • Allowed slaughter of calves and adult male buffalo.
  • It is important to remember that buffalo and cow are different species. They will not mate and produce offspring.

In 1995, the BJP Shiv Sena government amended the above schedule in the following way.

  • Total ban on all cows, bulls, bullocks. In other words, entire cattle family.
  • Total ban on buffalo calves male or female.
  • Status quo on female adult buffalo (slaughter with individual certificate)
  • Status quo on male adult buffalo (free slaughter)
  • The definition of a ‘calf’ is not clear, but likely to be 3-4 years old inline with other states.

This bill was sent to the then president and subsequently got stuck. Before long the Congress  swept into power for 15 years in Maharashtra and did not pursue this.  In late 2014, the BJP defeated the 15 year old Congress government and came back to power. It had promised to take this up during its campaign. True to its word, the new BJP government under Chief Minister Devendra Fadnavis made the following modifications to the bill and sent it back to President Pranab Mukherjee for his stamp of approval.

  • Increase the penalty from 6 months + Rs 1,000 fine to 5 years + Rs 10,000 fine.
  • Made possession of slaughtered meat products a crime. This provision has created a lot of issues  and we need to see the exact text to comment further. I would concede for now that this is problematic IF the penalties for simple possession are identical to those offences dealing with slaughter or wholesale trade.

So this is where we stand today.  I had to explain this because you need to understand what exactly the new government did that is the subject of the media furore.

 The legal position

Can a total ban on cow slaughter (females or males) withstand legal scrutiny?  Short answer is yes, kind of sort of. The latest judgment that holds the field is called  State Of Gujarat vs Mirzapur Moti Kureshi Kassab and Others 2005.  This was a 7-judge bench constituted to settle the cow slaughter ban issue unconstrained by cow slaughter rulings earlier 5-judge benches. Mirzapur Moti was decided 6-1 with the majority opinion written by CJI RC Lahoti with a readable dissent by Justice A.K. Mathur. An outstanding summary of the legal position is written by Dr Ashok Dhamija on his blog (Tilakmarg).

Let me state at the outset that I am not a fan of the judicial principles underlying these cases starting from the so-called Qureshi-I (1958)  to the latest Mirzapur Moti Kureshi Kassab (2005). The arguments have always been in the nature of  couching Hindu reverence for the cow progeny in modern acceptable utilitarian terms.  The best example of this is how in Mirzapur Moti the relentless crusader against cow slaughter, the late Rajiv Dixit impressed upon the Lahoti bench with all kinds of arguments from value of cowdung, bio methane fuels,  how an old bullock still has 0.83 HP traction left compared to a young bullock who clocks in with 0.93 HP.  An amusing anecdote is apparently they retrofitted one of the judicial officers car with  a bio-methane rig to prove its effectiveness.  These arguments swayed the court one way but it could have easily gone the other way too. Who is to say that the owner of the bullock should trade long term benefits of a Rs 1,00,000 over a spot payment of Rs 10,000 ? The arguments are more fundamental relating to the status of the cow. I suspect in the Nehruvian  “Idea of India” framework Hindus should not directly state their reasons but approach the matter in a roundabout way by using modern but extremely tenuous “scientific” arguments.  Therefore I am not going to spend any time on the legal position as it exists, but rather how it ought to be.

The mandate and the disconnect

Most opponents of the cow slaughter ban are beef traders, minorities, urban liberal Hindu, those on the economic right, centre right,  and those who believe in libertarian values such as food choice.  They insist Modi was voted in for “governance” and should abstain from these “sanghi inspired bans” which are a distraction. Here is the bad news for them – Modi’s massive win in 2014 was on the backs of his core supporters who are the Yogi Adityanaths and Sadhvis. A sizeable incremental vote came from ‘modern’ Hindus cutting across social boundaries who were perhaps aghast at the corruption of the previous regime.  The large contingent of the economic right may be Modis allies in other areas but they are also a fickle minded group who have very few deeply held principles above their interests. For example, despite their high education and international exposure they are unable to even come up with a proper dissent to discriminatory laws like RTE, the various communal appropriations like minority only scholarships. However the Yogi’s and Sadhvis’ are clear and grounded in principles that rise above economic considerations. They want the cow slaughter ban which Modi himself promised a number of times during his campaign.

balikasaraswathi

Now the disconnect in arguments can be best described by this real exchange between Rajeev Dixit and Sharad Pawar ( I paraphrase this from a Youtube video I watched a while back). You can easily imagine this to be a conversation between any Yogi or Sadhvi and a modernist Hindu. 

Dixit : I heard you said – cows slaughter is okay because old cows arent useful ?

Pawar: Yes.  If a cows stops giving milk, it is unproductive why not use it for meat.

Dixit : Gai hamara Maa hai. If your mother stops giving milk will you kill your mom ?

Pawar: ROFLSANGHI! What the hell. There is no use talking to you.

Dixit : Thanks – there is no use talking to you too.

End of short conversation.

The Yogis including the younger ones of this generation like Sadhvi Balika Saraswathi pictured above never talk in utilitarian language when it comes to cows. They say “Cow protection is our culture, connecting thread between all Hindus, Cow is our mother, etc etc”. Now they may give examples of benefits of keeping a cow and its progeny alive but that is only an icing on top of their core Hindu arguments. Even if a particular cow could be proven to be worthless they would still not agree to kill it because of the above reasons.  The disconnect is that the liberal ecosystem expects to rephrase this sentiment indirectly in modern terms.

It is worth restating the position that is really driving the debate :  We are against killing a cow because it is a cow and that is special for us.

They do have support for expressing this sentiment in law thanks to Article 48 in the constitution. The directive principles can guide law making – it has a wide language when it says.

48. Organisation of agriculture and animal husbandry.—The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

On one hand ‘modern and scientific’ ways can be interpreted as encouraging intensive factory farming, on the other ‘prohibition of slaughter’ rules it out.

Food choice, property rights clash against status of cow

The food choice argument is particularly strong. If I want to eat beef and I have a willing supply chain traceable all the way back to the dairy farmer – why should the state intervene? Does the owner of the cattle not have property rights over his cattle? In my view, the issue is different. It is not about what humans consume but about granting an elevated legal status to the cow family.  Understandably this does not fit in with our understanding of western liberal democratic values. How can a majority community nominate one species, its favourite species,  for special protection ? Does this not interfere with the minority communities freedom to not pay any such respect to that species – especially when they are accustomed to eating it? The counter question is ; In a democracy does the majority have the right to preserve its culture?

This is a hard problem and I would leave to to the likes of Pratap Bhanu Mehta to address it.  I would say that eating an animal of your choice has never been a fundamental right anywhere.  There are multiple types of protections offered to various endangered species, companion animals, young and immature animals, animals not raised for food purposes, and so forth.  Granted that cows are not an endangered species, but that only means you have just agreed to the principle of restricting your food choice.  As Salman Khan would argue with great effect. Why have a prohibition on eating an older Black Buck incapable of reproducing ? Arguably eliminating the older black buck stock, you make more scarce forest grazing land available to the younger more fertile herd.  The elevated status of the cow is along similar but not identical arguments. One is elevated for conservation purposes another for cultural purposes.

 

It is but natural for Hinduism to come into conflict with Western tradition especially Christianity in the realm of animal issues. From the earliest days of Aristotle to the medieval times of Thomas Aquinas to the present day factory farming situation – the church both Protestant and Catholic – have traditionally denied any rights to animals. The trajectory has seen a minor shift post the enlightenment period. First by Bentham and recently by modern philosophers like Peter Singer. But the essential movement in the west is not abolition but about humane treatment with slaughter at the end. This is the origin of the “doctrine of necessity”. In this doctrine, the only necessary interactions between humans and animals have to be utilitarian like food or psychological benefits to humans such as companionship of dogs, cats, and horses. Unfortunately our Supreme Court and intelligentsia adopted this doctrine in banning the sport of Jallikattu and outlawed Cock Fighting. This is not to say one culture is superior to the other. One can easily imagine the amusement of a westerner when he sees a bunch of Hindu ladies whispering something into a Nandi bull statue that faces another statue of Shiva. Even assuming buy in to Hinduism, isn’t it absurd that Nandi a mere bull can be regarded the number one disciple of Shiva over these devout humans?  The issue of animals is therefore a central conflict site between tribal Hindus and western religions. There may be other issues like Dharmic “concepts”  but  animal issues have practical implications.

This is the source of the current tension. I do not think this will stop at cows. Monkeys, elephants, buffalo, snakes are all waiting for special legal status of their own. I’ve documented the issues with activism surrounding elephant participation in Thrichoor Pooram, the ban on snakes in Nag Panchami and so on.

Property rights and voluntary sale

The ban on slaughter of cattle gives rise to several secondary issues. How unwanted animals are handled is one of them. Post ban the owner of cattle is not allowed to sell it to slaughter but is technically free to just release the cattle and add to the general public nuisance of stray cattle. In reality however, the strays just tend to hang around with the still productive herd but will probably be denied the food and water made available to the productive herd or heifers which they hope will turn productive.  Does this mean that the state has some responsibility towards these ? Is it a part-owner of these cattle now? The problem with bulls is especially acute.  The state can establish shelters or use tax money to subsidize bullock usage. This is tricky beyond a certain point because it is one thing to elevate cows to a higher legal status but quite another to force Christians and Muslims to pay for it.  There needs to be some kind of sustainable plan with a large voluntary effort on this front.

As far as voluntary sale is concerned, the Hindu owners of these cattle do know in the back of their mind what fate lies ahead for the cattle they sell. But they would rather not think about it. The agents who purchase these cattle usually give them some comfort words. This behaviour is quite natural. If the highly educated liberals who eat beef in star hotels have no idea about the origin of their food or the transport conditions or the slaughter methods, can you expect an uneducated poor farmer to tune in to these questions? The alternate to legislating a ban on cow slaughter is to educate the sellers. Think about how that particular campaign would work. Videos of slaughter houses, trucks overloaded with cattle, films building on this narrative – these can inspire violence.  Voluntary sale also cannot solve the basic problem I outlined above, even if a truck jam packed with bulls sold voluntarily is stopped. The very sight evokes strong emotions that will push for a ban again. In fact, the current debate is skipping over all inconvenient aspects of the beef trade such as lack of enforcement, outrageous transportation to slaughter, no use of stunning before cutting the throats.

Intensive dairy, pink revolution

In India, there is no beef industry. There is a single herd – the dairy herd. This produces both milk as well as beef.  This is lost on PETA and others who advocate boycotting dairy products in India copying from the west. Granted that the principle of milking is inherently cruel, the fact is in India milk is sourced largely from rural areas where the herd grazes freely on grass and shrubs.  The vast majority of cows are impregnated by bulls and they get to hang around with their calves for long after their birth. This is an extremely inefficient way to produce dairy.  The most efficient way is intensive dairy where cows stay indoors and are milked only for the most productive first two lactations.  The milk yield and quality drops after the first two calvings. The efficient and scientific way has been perfected in the west. The dairy cows after about 4-5 years are turned into hamburgers and young heifers replace them even though technically they are good for another 10 years of milking. In India, dairy cows are inefficiently milked for 6-8 lactations by the first owner and perhaps 2-5 by subsequent owners with inferior quality milk.  This means cows are milked almost for their entire life.  Therefore animal welfare in India have trumped efficiency and there is movement by the west to change this. This has already happened to a large extent in the poultry industry where just one or two products like the Vencobb-400 command 80% of the market.

 

After the slaughter ban the next stop for Yogis and Sadhvis is intensive dairy.  The Sadhvis may be rustic but they are fully aware that while meat and milk can be made dramatically cheaper but only at the cost of decreased animal welfare.

 

Vedic stuff and poor mans protein

One of the arguments Indian intellectuals use is to turn the tables on Hindus by forwarding the argument that Hindus have eaten beef during Vedic period. This argument is like water off a buffalo’s back.  For it does not matter what obscure vedic texts say. As practiced the culture has evolved to this point and there is no ‘book’ that can guide Hindu conduct.

Another argument is to seek alliances. The beef ban is denounced as anti poor because the poor, dalits, muslims and christians depend on beef for cheap protein. This is a form of alliance seeking without much basis. After all if this group which can represent 60-70% of the population is offended by the ban then the BJP will pay a heavy price in 2019.  The reality is the issue is far less contested by the poor and the Dalits than the others. This is however a valid electoral strategy.

What about..ery

This is the final point. Now that we’ve elevated the animal, the cow, nominated by Hindus  to protected status over the objections of the minorities – how can we oppose Idea of India style laws in other domains?

Can Hindus swap the ban on cow slaughter for legislated sanctions in education like RTE ? This is an astounding stretch  but a tempting one to make considering the mindset that the “Idea of India” has imposed on us. This is a false equivalence.

The equivalence to education is if the BJP had selectively burdened Muslim owned slaughterhouses  by onerous taxation, approvals, inspections and cross subsidy that Hindu owned slaughterhouses were exempt from. The correct equivalence is – the other sizable communities should be allowed to nominate a beast of their choice for protection.

From this angle the issue does not seem that intractable.

 

—–

 

Some additional reading:

http://www.hindustantimes.com/mumbai/no-clarity-on-punishment-for-consuming-beef/article1-1323188.aspx

http://tilakmarg.com/opinion/constitution-validity-of-cow-slaughter-ban-in-maharashtra-a-detailed-analysis/

http://dahd.nic.in/dahd/reports/report-of-the-national-commission-on-cattle/chapter-ii-executive-summary/annex-ii-12.aspx

 

Transport to slaughter conditions ( Credit Source vspca.com)

Transport to slaughter conditions ( Credit Source vspca.com)