The bulwarks erected against redefining minorities in India’s education system

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

Lack of restraint in edu policy making

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  :

1. Overturn TMA Pai and 2 related judgments and restore govt ability to impose quotas in private colleges.
2. 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 —

Epilogue:

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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.”

Minority Status for Colleges : Source

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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)

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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.

Jaihind