Just want to document two huge cases in India’s education sector that slipped by un-noticed. Will get around to commenting on this in the next few days.
Case 1 : May 16 2015 Bombay HC says no TET required for minority schools ( but non-minority need to insist on TET clearance for new teacher posts )
The teachers eligibility test (TET) is no longer mandatory for minority schools. The Bombay High Court’s Aurangabad bench has decried that minority schools in Maharashtra are now free to follow their own selection processes for teachers’ appointment.
While hearing the case of a local minority school teacher’s appointment being challenged by the state authorities for not having a TET score, the court ruled that the government cannot interfere with the minority institutions and their admission process. “The TET for teachers’ appointment is a methodology accepted by the government, but it’s not a qualification. It’s rather a selection process from the given lot, which is why minority institutions aren’t expected to follow the mandate,” the court stated.
Source : Pune Mirror
Case 2 : May 16 2015 Karnataka High Court rules minority-run schools can detain poor students
BENGALURU: In an interesting case, the Karnataka high court dismissed the petition filed by a school boy who invoked Right To Education (RTE) Act to get promotion to next class.
Dismissing the petition filed by Master Shashikanth (name changed), Justice H G Ramesh noted that the school in question – The Frank Anthony Public School, Halasuru – is a private, unaided, minority educational institution and as such the provisions of RTE are not applicable.
Earlier, the government advocate brought to the notice of the court the judgement rendered by the Apex court ..
Source : Times of India
To be continued..
In both cases the issues are involving the nature of the minority-run schools. They are participating in general education and freely admit Hindus as both teachers and students.
Request : If anyone else is tracking issues such as this, please leave a note in the comments section. We need to connect.
Today the Chairman of Board of Directors of IIT Bombay Mr Anik Kakodkar was in the news denouncing the MHRD Smirti Irani for running a casual selection processor for key posts. I guess this is as good as time as any to blog about something I’ve been tweeting. The most curious JEE-Main and JEE-Advanced examination setup.
Short story : The two exams are unconstitutional. Scheme was not just meekly accepted but designed on demand by our topmost academics without a whimper of protest.
Recap of JEE-Advanced
The Congress led UPA government cancelled the old method of selecting students for admissions into IIT via an open exam called the IITJEE. Instead they broke it off into two stages called JEE-Main and JEE-Advanced. JEE-Main uses a magic formula that combines scores obtained in an competitive exam normalized across various boards. JEE main itself is problematic (I have documented it here and I believe a case is still pending in the Supreme Court). The JEE-Main is however not the point of this post. The unconstitutional culprit is the second exam – JEE-Advanced.
To sit for the JEE-Advanced a student had to be in the top 150,000 ranks in JEE-Main. This also seems okay until you look at how the all important issue of reservation is handled. This is where the JEE-Advanced steps into ultra vires land…
The two-stage quota system
The prestigious IITs, like all central colleges in India have the following quota system – 50.5% Open ; 27% OBC (Non creamy) ; 15% SC; 7.5% ST. Even prior to the JEE-Main/Advanced scheme this was the ratio but as a result of a single stage exam called the IIT-JEE. In the JEE-Advanced we have the same quota ratio but it is a two stage process. So you might wonder why is a single stage process okay and why is @realitycheckind hitting the unconstitutional roof over a two stage process? In this small nuance lies the key – allow me explain the monumental difference between the two processes.
Lets back up a bit. The 2015 JEE-Main results were announced recently and the top 150,000 kids were selected to be eligible to appear for the JEE-Advanced.
CATEGORY Number of “Top” candidates
There is an internal 3% quota for disabled (why on gods green earth? but that is another post altogether)
Source : IITB JEE-Advanced website
Therefore the qualifying POOL itself for the JEE-Advanced which is the actual selection tool has been SHAPED as per the quota percentage. In other words the 150,000 qualifiers themselves are in the ratio of Gen 50.5%, OBC 27%, SC 15%, ST 7.5%. Based on this the cut offs are Gen 105, OBC 70, SC 50, ST 44. They then sit for the JEE-Advanced and fight a 15:1 race, which will again use the quota ratio for the end allocation.
There are two ways of participation.
- the natural participation principle – the entire population participates in an exam in the natural ratio as exists in the wild but the final resource is split by quota in an inter-se merit order
- the shaped participation – a preliminary selection stage SHAPES participation itself into a communal quota ratio and the final resource is split by quota in inter-se merit order
This might confound you but let me explain it a little more. You need to ‘get’ the following point.
The main feature in India communal quota system is that the “Open Category” is something that anyone can claim including those communities that are in the OBC, SC, or ST lists.
If you look at the eligibility lists for JEE-Advanced there are 75,000 General participants and 40,000 OBC participants – but what this does not capture is that the 75,000 General participants also includes a healthy ratio of OBCs who were in the common merit list in addition to the 40,000 in the OBC merit list. The unconstitutionality of the JEE-Advanced is rooted in this staged quota.
- In a single stage quota the participation happens first before the communal rules.
- In a multi stage quota the communal rules kick in and THEN the participation happens.
This is the right way to look at it because the JEE-Advanced Exam is the real deal and the earlier JEE-Main is just a selection tool to cap participation along communal ratio. It is like being prevented to even apply for a post because there are already X applicants from your category leave aside whether you may actually qualify!!
The scheme is not just constitutionally suspect but also academically atrocious. If the JEE-Advanced is the real selection tool – why prevent a General category kid who scored 69 marks from EVEN WRITING the dang exam while others can write with scores as low as (-18). This does not compromise the quota system in any way, so its not like social justice is being killed. Is this the kind of academic excellence that Mr Kakodakar and Mr Sibal and Mr Tharoor presided over?
Those who follow me on twitter on @realitycheckind will recall the parallel of two tier JEE-Advanced to the Three Tier Exams used by UPPSC which got into trouble at the Allahabad High Court.
Seen in this light, the attacks on Smriti Irani over her method of selecting some posts seem a tad .. staged. Two staged.
Prev posts on the behaviour of IIT Adademics under UPA :
1. Congress HRD and IIT Council invent a horrendous new exam https://realitycheck.wordpress.com/2012/06/27/hrd-and-iit-council-invent-a-horrendous-new-exam/
2. Crazy normalization formula invented by experts baffles students https://realitycheck.wordpress.com/2013/07/09/crazy-normalization-formula-invented-by-experts-baffles-students/
A PIL has been filed in the Allahabad High Court seeking to declare the NCMEI Act 2004 unconstitutional.
This promises to go all the way to the Supreme Court and turn into a landmark case and I hope it does. I have documented the origins and activities of the NCMEI in my previous post (Bulwarks against redefining minorities in Indias education sector]. Please go through it. It is the duty of social media to ensure public debate of this case, because these laws are key components of the Idea of India and will be suppressed.
I would frame the following questions:
- NCMEI Act 2004 sets up a body with powers of a civil court – but Hindus are explicitly barred from becoming either the chairperson or members of this court.
Sec 4 (1) (a)
4. Qualifications for appointment as Chairperson or other Member.—(1) A person shall not be qualified for appointment as the Chairperson unless he,—(a) is a member of a minority community; and(b) has been a Judge of a High Court
- NCMEI deals not with issues of personal and religious trusts that concern only the internal affairs of Christians and Muslims and other 4 notified minorities. The educational institutes are of a public nature because the minorities run secular schools that freely admit Hindu students and recruit Hindu teachers.
- Even for purely religious matters like Madrassas the NCMEI falls afoul of invidious discrimination against Hindus because it treats the minorities as a undifferentiated group. A Christian chairperson for example is allowed to examine minority status of a Muslim institution but the assumption is that a Hindu cannot.
- This is an exclusive tribunal that prevents one class of education providers to approach it. For instance, schools run by Hindus cannot approach the NCMEI if their NOC certificate is delayed or denied. This is even if you grant that the Hindu schools are willing to be heard by a non-Hindu panel of judges.
Once again, I appeal to social media to educate yourself and write about this case. Whatever side you are on !!
Here is a simple proposal. Read this and tell me if you think this is reasonable.
Any person born in any community can run schools under the same set of laws. If a minority person or trust wants to run schools or colleges under a separate law which allows full autonomy – then the minority should fulfill the following criteria :
- The religion must be less than 50% of the total population of the state
- Pro-Rata Rule #1 : The number of schools and colleges run by the minority religion (say Christian) must be proportionally lesser than those run by Hindus
- Pro-Rata Rule #2 : The number of graduates from the minority religion must be proportionally lesser than graduates of Hindus.
- Important : IF a minority religion does not fulfil the above three criteria – it does not mean there is an atrocity committed and they are prevented from operating educational institutions. It just means they can run schools and colleges under the uniform law that applies to Hindus.
- Illustration 1 : Say there are 100 colleges in Kerala. If Christians control 65 of them and they are 25% of the population and Hindus control 15 of them and they are 55% – then the ratios are +40 and -40 ; so the difference is +80. Therefore new colleges established by Christians would no longer qualify as minorities as +80 is the gap. Once again, it does not mean they are prohibited from the sector, they can run under same rules as new Hindu colleges.
- Illustration 2 : Say the Hindus controlled 65 (55%) and Christians controlled 35 (25%) – then the ratios are +10 and +10. There is no difference between the two hence the rule that states proportionally lesser shall apply and perhaps one new college can be allowed under the minority law.
- The basic idea is to inject a modicum of rationality into these special “Idea of India” groups that openly assert higher rights. This kind of demographic equivalence formula is absolutely critical to avoid outright discrimination and privilege for such an important activity as education.
So. What do you think of this formula ?
Say a state in India were to propose this formula for determination of minority status, what do you think will happen ?
Read on for an account of what happened in the 2000’s completely away from media and thinktank attention.
Saga of the Kerala Professional Colleges Act 2006
This story is about the journey of a piece of legislation in Kerala juxtaposed against key judicial developments of the last fifteen years. I hope to cover circumstances of its noble birth to its execution at the altar of Idea of India.
Kerala which has always had a strong private provisioning of schools had lagged behind in capacity of professional colleges. This was due to the emphasis on government colleges as a policy. During the late 90’s Tamilnadu and Karnataka witnessed a spurt in new private engineering and medical colleges. Students from Kerala who had very little options at home flooded these newly created TN and KA professional colleges.
The E.K Nayanar led CPI-M which was in power from 1996 to 2001 was predictably suspicious of private colleges. This was due to (legitimate) concerns of profiteering but the state also did not have capacity to either build new colleges. While this was going on, the Congress govt swept into power in 2001 and A.K Antony became the Chief Minister. AK Antony during the campaign promised to solve the higher education crisis. The Congress’ plan was very simple – they would allow private colleges on a simple 50:50 share. Any one could setup any college if they would surrender 50 percent to the government which would be filled with students from a common merit list at the same tuition at govt colleges. Famously AK Antony said that under this scheme “2 private colleges will be equal to 1 new govt college”. He claimed to have had an unwritten understanding with the promoters regarding this deal. Our story is born here. An earnest effort to address capacity shortage while providing enough capacity for merit students.
Come 2001, the Congress was swept into power in Kerala and promptly a number of colleges opened up to everyones delight. Many applied for opening a medical college but only four were eventually granted by the Medical Council of India namely Pushpagiri Medical College, Thiruvalla; Malankara Syrian Orthodox Medical College, Kolenchery; Amrita Medical College, Kochi; and Somerwell Memorial CSI Medical College, Karakkonam. The capacity in engineering shot up too.
No sooner had these been set up than the Supreme Court handed down a judgment in TMA Pai Society (2002) case (see previous post [History of the 93rd Constitution Amendment) that prohibited imposition of quotas or erosion of autonomy in admissions in private colleges. The Kerala colleges who established under the Antony formula immediately grabbed the opportunity and obtained a stay order from the Kerala High Court. The outcome of this was that the fees shot up through the roof – what was 14K per/year would be 4-8 Lakhs/year. Over the next three years there were tension and protests in Kerala. Meanwhile the TMA Pai Foundation case meandered through the Supreme Court until some questions attained finality in 2005 in the PA Inamdar case (see previous blog). If you recall, PA Inamdar affirmed two things (1) autonomy of unaided colleges (2) parity of minority and non-minority in establishment of colleges. As expected all the colleges setup under the Antony govt just walked out of the ‘verbal understanding’.
NDA to UPA at the Centre
While all this was going on, the Congress under the leadership of Sonia Gandhi pulled off an upset victory in 2004. As I explained in the previous post, away from the media glare, the challenges before the Congress were two fold. The urgency was to :
- Overturn TMA Pai and 2 related judgments and restore govt ability to impose quotas in private colleges.
- Overturn TMA Pai and restore the preferential rights to minorities
So the Congress under Sonia Gandhi changed the constitution of India and inserted a new Article 15(5) which achieved both goals. There was still a small matter that needed to be taken care of.
Granted that the 93rd Amendment , which would eventually be used 5 years later in the Right to Education Act to subject Hindu run schools to loss of autonomy and onerous cross subsidies, added an explicit exemption to minorities in Article 15(5). But states could still “redefine” who a minority was. One way to address this was for the Congress to pass a central statute that would pre-empt all state laws related to minority identification and all other issues related to running an institution. The NCMEI Act was thus born in these circumstances.
The NCMEI – a quasi judicial body
The Congress government wasted no time to setup a new statutory body called the National Commission for Minority Educational Institutions (NCMEI). They swept into power in May 2004, by November 2004 they had already passed an ordinance establishing this new body. You can read more about the NCMEI here. The key points for the purposes of this article are :
- The NCMEI has wide ranging powers including power to grant minority status to any institution (Sec 12B) ; and to grant affiliation to any central university; and to issue No Objection Certificates and other difficulties faced by minorities.
- The commission was to have 1 Chairperson and 2 Members – who cannot be Hindus. (I suppose I could use the euphemism non-minorities ) Sec 4-1 and 4-2
- This body has the power of a civil court and can summon and investigate on petition or suo-moto any issue.
A sectarian judicial tribunal ?
Now it is important to stop here and ponder the implications of what the UPA has done. They have setup a judicial tribunal which by law can only have non-Hindu judges. This may just pass the smell test IF the institutions are only functioning purely in the minority domain. However, minority schools and colleges freely admit Hindu students as well as other category minorities. They also recruit Hindu faculty and support staff – in many cases with government funds from the public purse !!
These institutions which operate in public domain and are thus directly affected with the public interest are able to access an EXCLUSIVE judicial tribunal consisting only of minority judges. A Hindu run school which is also denied a No-Objection-Certificate or University affiliation cannot approach this “court” let alone get heard by a non sectarian tribunal. On Twitter, there are a lot of folks who have a wrong understanding of the issues. They get riled up with Madrassas – but we have to remember that Madrassas and Wakf deal with specific Muslim interests. A New Life School Chain deals with the public interest. This may seem counter intuitive but needs to be reiterated.
At the Central level the Congress thus secured two major victories. They passed the 93rd Amendment and also setup the statutory body (NCMEI) that would check against any ‘redefinition’ of a minority. These two bulwarks remain to this day.
2006 – CON to CPI-M in Kerala
Cut to 2006 – the CPI-M came to power in Kerala and Achutanandan was sworn in as the Chief Minister. One of the first things they did was to pass a law in the Kerala Assembly called “Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee,Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006″.
Recall that by now TMA Pai was killed by the 93rd Amendment. So in order to deal with the explicit exemption for minorities in Art 15(5) , the Achuthnandan government laid down the rules for who would be treated a minority institution. The rules are what I mentioned at the beginning of this post.
I spent some time reading the rules and I was surprised at how well drafted the rule was. Essentially it stipulates a demographic equivalence formula. You could only claim minority benefits – if you were pro-rate behind the majority community in education representation. There is a definite “zing” and appeal to this definition. Recall once again : it is not just the majority that benefits but also the poorer segment of minorities can benefit from this capacity. It appears that even in Kerala a significant chunk of poorer Christians supported this move.
This move by CPI(M) would effectively cut off the minority route for all Christian and Muslim (less sure) colleges due to their existing domination in that space. At this time 6 of 9 Medical colleges and 36 of 48 engineering colleges were under the control of minorities. After this move by CPI(M) , the clergy were livid and warned of massive protests, some even recalled the days of the first EMS Namboodiripad Govt which was dismissed by Mr Nehru. Naturally there were counter protests.
The Act was challenged in the Kerala High Court by two medical colleges. The case was decided in Jan 2007 in a little known but important case called “Pushpagiri Medical Society vs State of Kerala”
- The reasoning is similar to most other cases of its genre. There are no first principles or rock solid judicial tests. Just wandering in various directions.
- The formula for determining minorities (Sec 10(8) of the Act) – which in my view was a very reasonable one – was struck down on debatable grounds. The reasoning was arithmetic 1) if next year the proportion changes what will happen to minorities ? But the same reasoning could also be applied to outright definition of numerical minorities. If tomorrow Hindus become 49% in KL then does it mean all their institutes are now minority ? What if the following year they become 51% again?
- In any case, they recognized that NCMEI Act now controls the field and if they declare a specific insitute as minority – that was the final word.
- As far as Hindus were concerned the Act applied but some parts were struck down related to fees and exams.
The judgment was never appealed.
This is how the Kerala Act died. No one, not even the Delhi based communists, who were UPA allies attended its funeral.
— THE END —
In short time, the NCMEI granted Pushapgiri colleges (Christian management) minority status and chided the government for delaying it.
“We have no hesitation in coming to the conclusion that the pendency of the petitioner’s application for grant of minority status certificate for such a disproportionately long period clearly indicates the Government’s disinclination to grant minority status certificate to the petitioner.”
Over much of UPA-1 and UPA-2 the NCMEI went on to grant thousands of minority certificates. Simultaneously the Congress government aided by civil society and international think tanks pushed for more and more onerous rules for non-minority participation in education. (UPA’s free for all distribution of minority institutions)
Lately I have been hearing proposals for similar equivalence based tweaking of minority definitions. Hope this post highlights the twin bulwarks of 93rd Amendment and the NCMEI that can foil such attempts at rationalizing the outright communal regime.