Reality Check India

Explaining the 93rd Amendment to the BJP

Posted in Uncategorized by realitycheck on February 28, 2016

Recently a former social media volunteer and now an office bearer in the BJP govt at the Centre made the following comment in response to my #RTE tweets.

Let us not blame the Congress, the Right to Education Act as passed by the UPA did not exempt minority institutions – the Supreme Court did. So this is the court’s fault and not the Congress partys.

(from Twitter – dont recall exact words)

 

Another variant of this I’ve seen with very senior BJP members is “Please do not attack RTE on sectarian grounds, the law is not the problem the Constitution of India is” . The same sentiment is also expressed sometimes as “.. that minority thing  is a constitutional issue. Lets not go there – lets talk about teacher training instead“.

This mindset is disturbing on many levels and belies an understanding of the issues. Lets take a deeper look at the 93rd Amendment, history of Article 15, and the Right to Education Act.

 REUTERS/B Mathur VM/mk

REUTERS/B Mathur VM/mk

 

OBC Quota in Central Institutes used to piggyback

Twin issues that appear to be related but arent. The 93rd Amendment and the OBC Quota. Let us see how the Congress government brilliantly intertwined the two.

I have already written an article titled “A Brief History of the 93rd Constitutional Amendment” where I’ve covered some of the landmark Supreme Court judgments that made Hindu educational institutions gain  equal legal status as those run by minorities.  I want to pick up where I left off. Lets cut to one of the major efforts of the UPA-1 government, one  that took 4 years of extreme effort of Congress to accomplish. The 27% Quota for OBC (Other Backward Castes) in Central Educational Institutions like IIT/IIM/AIIMS/HCU etc.

First, as soon as UPA-1 stormed into power they realized that TMA Pai v State of Karnataka (2002)  had to be overturned. The final push came in Aug 2005 when the Supreme Court in a 7-judge bench P.A Inamdar & Ors vs State of Maharashtra affirmed the essential parity in Education between Hindus and Minorities.

Secondly, the OBC quota issue was raked up and had the vociferous support of all the parties. Even within the BJP the OBC bloc seems to have supported the quota.  Now here is how the two were mixed up. The UPA used the popular sentiment for OBC quota  to piggyback the 93rd Amendment. It is not at all clear to me that you even needed an amendment to provide the OBC Quota.   To explore this further you need a little bit of info about the Article 15 of our constitution.

 

History of Article 15.

Article 15 – the simplest of articles in all countries – had the most harrowing journey in India. The simple diktat was “thou shall not discriminate on basis of ..”   The original article read like this

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-

15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
15 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

15(3) Nothing in this article shall prevent the State from making any special provision for women and children.

 

No sooner did the constituent assembly finish its job and the British has left our shores,  than this article was subject to mutilation.  Tamilnadu’s communal quota in college admissions was cancelled by a unanimous decision of the Madras High Court and then a Full 7 judges of the Supreme Court in State of Madras vs Champakam Dorairajan (1951) .  Even before the First Lok Sabha had met – Jawaharlal Nehru and others who had participated in the Constitution making just a few months earlier overturned the Supreme Court’s decision and passed the First Amendment.

The First Amendment added a new clause (4)  to Article 15 that read.

“15 (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”.

Most of the states have been providing quotas to OBCs happily under the cover of  Article 15(4) even though it does not specifically mention education. There is no reason why the UPA cant provide the OBC quota in Central Educational Institutions under this same non-obstante  clause.  But this was presented as an imperative and with overwhelming support of the OBC bloc and JDU deserting the NDA at the last minute the 93rd Amendment was passed.

The 93rd Amendment (at that time known as the 104th Constitution Amendment Bill) added a new clause (5) to Article 15 that read.

“15 (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.”

Pay attention to the emphasized text to deduce the real intention of the 93rd Amendment.  It had nothing to do with the OBC quota at all but everything to do with restoring the minority advantage that TMA-Pai and finally P.A Inamdar had leveled out.  Specifically :

  • The new Art 15(5) was to abrogate Art 19(1)(g)  :  By this I mean  –  Art 19(1)(g) (‘right to carry out an occupation’)  which was used by TMA Pai to provide parity to Hindus was rendered waste as far as education was concerned.
  • Art 30(1) was to be a non-obstante for the new Art 15 (5) :  In other words :  nothing in Art 15(5) shall apply to minorities involved in education field.
  • Art 15(5) singular purpose appears to be  to drive a wedge and elevate Art 30(1) “the minority” and completely abrogate Art 19(1)(g) “the non minority”.

 

After so many years of observing Indian political economy, I now think that the non-Congress parties are simply not intellectually equipped to see through these things. In any event , the 93rd Amendment passes  and becomes an “enabling amendment”.  So you may ask “what is an enabling amendment ?”. What was it supposed to “enable” ?

It enabled the grand confiscation that was still to come as the  Right of Children to Free and Compulsory Education Act 2009. Also known as RTE.

The Enabling Amendment

This is a curious creature I now know is uniquely Indian. Essentially the court strikes down something as ultra vires (outside powers) of the constitution ; then the politicians go and change the constitution itself to give it that elusive power.  Now when the amendment itself is challenged the bar is suddenly very high.  The court has to use the ill defined “Basic structure” test. ( Side Note :   Justice Dalveer Bhandari thought that the 93rd Amendment was against the Basic structure even without the minority exemption. Luckily for UPA he wasnt around the court much longer)

Once again worth repeating what the Enabling Amendment contained and why the court had no role to harmonize  :

  • Explicitly exempted minorities in the amendment itself. Rather than depend on the court to harmonize with the protection already in Art 30. This ruled out some harmonizing with Art 30 – such as forcing minorities to admit own religion EWS or to force them to use lotteries.
  • Explicitly abrogated Art 19(1)(g) protection to Hindus (non minority) in the amendment itself. Rather than depend on the court to harmonize (for example by severing provisions impinging on full refund & autonomy in selection etc).

Now you can say that this was all just a happy co-incidence.

I was also wondering if the Congress really lucked out and that the amendment was phrased by accident.   Look at what Manish Tiwari of the Congress wrote recently about the Indira Sawhney judgment

On November 16, 1992, the Supreme Court by a majority of 6:3 upheld 27 per cent reservation for the socially and educationally backward classes (read Other Backward Castes) provided by the V.P. Singh government while striking down the 10 per cent reservation for economically backward sections of society provided by the successor Narasimha Rao government. ..

Why did 10 per cent reservation for the economically backward cutting across communities not covered by the existing quota architecture not find favour with the Supreme Court? For the simple reason that the Rao government was only paying lip service to the cause of economic reservation.

Kesri ensured that despite the amendment to the earlier Office Memorandum, no economic criterion was ever evolved and presented to the Supreme Court and no enabling constitutional amendment was carried out.

Source  DC : State of the Union : Regression for Progression by Manish Tiwari

 

So there you go. The Congress lawyers have been through this.  They knew very well from the ill fated econ quota in the Mandal saga that without an enabling amendment the laws were simply going to be struck down.

This was what they used in the Right to Education Act.

RTE Act as passed did not exempt minorities

As passed by the Parliament the Right to Education Act did not exempt minority institutions. But even I could smell the disaster from my little perch in nowhere land [ “RTE how well thought out is this – Dec 2009” ].

UPA-2 HRD Minister Mr Kapil Sibal met a lot of minority community leaders who were protesting the Right to Education Act.  I dont know exactly what transpired.  In any case, in no time the RTE was challenged in the Supreme Court and the unaided minority schools got exempted from the law  in a 2-1 Decision in Society of Unaided Private Schools Rajasthan vs Union of India (Apr 2012)  Why?

Because of two things :

  1. The enabling amendment  did not just keep quiet on minorities but explicitly exempted them   – it was a foregone conclusion that the court would strike it down for them. Leaving only the Hindus (non minority) wide open
  2. The court erred in not using the so called “Doctrine of Severability”. In short this doctrine means that if you chop off  too much from a given statute – what is left does not make sense (i.e. is an absurd outcome).  I guess only lawyers acquainted with the Lutyens and Supreme Court circuit  at a very close level can explain why this happened. For an excellent analysis of this read “RTE Analysis : A question of severability

Further down the road in May 2014 ; a 5-0 decision in Pramati Edu Society vs Union of India further pushed the RTE and exempted even the aided minority schools from the entire provisions of the act.  ( See pp 26 of judgment that uses the exemption in enabling amendment to waive the law)

 

So to cut a long story short :   The so called “Enabling Amendment”  allowed the government to  pass an ostensibly secular Act and the minorities can get out of it on a mere “facial challenge” – i.e. easy work.

If my friend got this far – I am sure he would realize what we are dealing with here.  The 93rd Amendment cannot be divorced from RTE. The latter is built on the former.

 

 

/ jh

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Jat quota issue and the relative backwardness test

Posted in Uncategorized by realitycheck on February 21, 2016

About 10 railway stations are burnt, 60 trains stopped, schools, police stations burnt, a private armory looted, curfew in 6 towns in Haryana, 8 dead, police, paramilitary, and Army called in to douse the flames. This is a snapshot of what is happening in the immediate vicinity of the National Capital Territory of Delhi for the past 2 days.

Violence exploded in Rohtak as Jat protesters demanding reservation in jobs and education. Also set fire to a minister's home, damaged property and burnt police vehicles. Mobs blocked highways and rail tracks. EXPRESS PHOTO BY GAJENDRA YADAV 19 02 2016.

EXPRESS PHOTO BY GAJENDRA YADAV 19 02 2016.

Why is this happening ? A lot of simplistic comment is floating around the internet and in media op-eds. Almost all of them blaming the Jats for indulging in this kind of violence. Some of the commentators frown on the entire quota system and urge the Jats to be magnanimous and not seek the forbidden fruit.  They dont realize that the quota system is a central part of the social and political system of organization known as the “Idea of India”. So its kind of odd that you’d call on a large group to sit outside the main political order.  In reality, these commentators don’t want to be bothered with analysis of these issues and would wish the problem would go away.

In this post, I will try to go to the root of the problem in as simple a language I can attempt. From a completely different angle. Hopefully at the end of this you will see that the real culprits may not be the Jats at all

Brief history

Here is a brief recap of the Jat quota issue just enough for you to follow the rest of this post.  India provides explicit quotas to various groups of communities. The keyword is ‘group’ not ‘communities’.  The largest such group is known as OBC – Other Backward Classes.  Various discrete communities / castes are included in these groups, they are maintained as “Lists”. These Lists are maintained for each state – called  State Lists, and a single list at the central level called a Central List. The idea is that for Central Govt slots (jobs, college seats, scholarships,  central police forces, and a host of other opportunities) they would use the Central list and for State Govt slots they would use the State list.  Now you may ask – ‘Well that is weird, how can a caste be in one list and not be in the other“.   Hold that question for a moment, you will realize even such simple questions cant elicit an answer.

Jats are in the state lists in a number of states like Rajasthan, Haryana, Delhi, UP, Bihar, HP, Uttarakhand and Gujarat. But they were not in the Central list. This meant they could only access the open category central govt slots and not access the large chunk of slots reserved exclusively for those in the Central OBC List. Due to sustained pressure and rioting.  The UPA Govt included them in the Central List in  March 2014.  Not surprisingly, the other castes already in the central list would not have a new competitor and decide to fight the inclusion of Jats. Keep in mind  that within each group (SC/ ST/ OBC) there is open competition among all castes in that list. Welfare associations representing the castes already in the Central List  took it to the Supreme Court in a case called Ram Singh and Ors vs Union of India. A two judge bench of the Supreme Court struck down the UPA Govts notification and thus denied entry of Jats into the Central List.  As things stand now, the quest  is to balance the Jat aspirations with the persuasive qualities of the judgment. That is the brief recap of the genesis and current position of the Jat quota.   Notice that I have not paid much attention to various govt bodies like NCBC and ICSSR etc. I believe these institutions are supposed to provide a check but the core rationale behind these institutions are missing.

For that you have to go a bit deeper.

Ram Singh & Ors v Union of India (link)

First thing to notice is the name of the case. It is Ram Singh & Ors vs Union of India. This is a PIL case initiated by an umbrella group called the “OBC Reservation Raksha Samiti”  presumably the gentleman Ram Singh was one of the petitioners.. The word “Raksha” in Hindi means protection. Protection against outsiders barging in to the group. This case is therefore the result of inside group resisting the outside group.  This may not seem important but forms the core of the issue as we will see.

So how does a caste get into the OBC list ? To answer that you have to refine that question. To get into a state OBC list you can petition the state govt and based on various considerations they may or may not grant that status. This is in fact where the major part of political effort is spent behind the scenes. For the procedure to get on to the Central list you have to go back to the 90’s.  When reservation in Central Govt jobs was introduced as part of adopting the Mandal Commission recommendations the act was challenged.  In an epic case called “Indira Sawhney & Ors vs Union of India“. The court upheld the quota and directed the govt to set up a body to examine claims of inclusion and exclusion. This body came to be known as the NCBC – National Commission for Backward Classes.  The idea is that there would be robust tribunal that would scrutinize the entire program and could examine such claims with great authority.  That turned out to be a disaster. The NCBC has not excluded a single group from the list nor has published any break up of utilization of each component. The entire exercise has a fatal flaw. The absence of ground rules. The lack of a single process or tests or even principles.  The inability to state the conditions for initial entry into the list and whether the same process would apply to new entrants.

On paper, the recommendation of NCBC is supposed to be binding on the govt. But the NCBC itself isnt doing its job because of lack of ground rules.  See how everything is linked back to the original anomaly?  The entire chain is based on an absurd premise that you can create these compact lists in a nation of thousands of claimants.  Most of us can hold our nose at this and pretend that nothing is wrong. Until a dominant and organized group like the Jats decide to challenge this scheme of things. They demand answers, no answers, then they want in by force. If that is what it takes. The Gujjars, the Vanniars, have all shown the way. For those parroting the “Constitutional Method” let me give you the reality check. A constitutional method requires simple ground rules (first principles) that stand alone. It never works when a court seeks to resolve conflicts between two groups. For that you need a conflict. And that is what the Jats are giving you.

Back to the Jat issue. In 2013, the Congress govt asked the NCBC for an opinion they said ‘no way’ without any convincing data. The Govt decided to go ahead and announce the inclusion of Jats anyway. Now this is the state of affairs as the case lands in the lap of a 2-judge bench of Justice Rohinton Nariman and Justice Ranjan Gogoi.

The judgment examines a lot of issues – particularly the powers of NCBC, the method used by ICSSR (the social agency which conducted a study), and some available data. They ruled against inclusion of Jats in the list on the following reasoning.

The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.

pp 55. Ram Singh & Ors vs UOI

Put simply, what the bench is saying is. “The party is over folks, you cant get in merely because others have got in and they may be better positioned than you“.  This is akin to pulling up the ladder after a certain number of groups have acquired the ‘inside’ status. Do we really think a large organized community like Jats (or Marathas or Kapus) will accept this line of reasoning ?

The judgment went on to say that it prefers discovery of new backward classes like the Transgenders who cut across castes. This part of the judgment was celebrated in the media. I fail to see why Transgenders should be given any quota. Accommodation yes, quota no.

Equal or separate processes

In my view, the judgment is fatally flawed on the following point “Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions”  I would go a step further and state that the protests currently happening in Haryana turn on the moral unacceptability of this logic.

The judgment actually does  a remarkable job summarizing the relative positions of Jats, Ahirs, Yadavs, and Kurmis.  Reading the initial parts of the judgment you get the feeling like they are finally about to take the bull by the horns.. consider these factoids.

Uttar Pradesh and Uttarakhand, in the enrolment in higher and technical education, Jats lag behind Ahirs/Yadav

26 (out of 90) MLAs belonging to the Jat community and 4 Members of Parliament (out of 15), (Is this a factor ?)

Kurmis have 11.2% in professional education. Share of Jats is only.0.3% that is way below the share of Ahir and Kurmi shares (UP)

Among the Jats, 7.5% households have at least one member who is graduate, which is lower than the Ahir and Charan (RJ)

Jats with composite score of 1.17 are behind Gujars (1.34) and Ahirs (1.22). On net social standing, the composite score of Jats is 17.24, which is significantly lower than the Gujars (27.14) and Ahirs (19.85). On composite economic score, score of Jats is 16.55, lower than Gujars (19.38) but higher than the Ahirs (14.86). (Delhi)

 

After collating all this relative information, the judgment completely disappoints.The honorable judges dismiss the comparative data completely as of no relevance.

The question framed should not have been whether the proper procedure was followed in declaring Jats backward. Whether the NCBC rejection was binding and surrounding issues.

The question in my view  should have been framed as an Article 14 issue – as an ‘equal protection’ case. 

14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

The above sentence is the much mutilated Article 14 (equality) clause in the Indian constitution. Now I fully understand that the Indian constitution has juxtaposed “Idea of India” doctrine as an exception to “Rule of Law“.  Remember that the central proposition in Rule of Law is uniform application and that the central feature of Idea of India is to create separate processes for groups.

Even if this is the case, the equal protection clause must guarantee that every community has the same process to get into the exception category. I repeat that – its not that you cant pick out groups for separate treatment but the process used to pick out groups for such treatment must be uniform.

Now turn to the facts of the OBC lists – the Idea of India jurisprudence has split the population into “Inside groups” (those already included in the list) and “Outside groups” those wanting to get into the list.  The biggest problem is that those who are already inside did not go through the same process of measurement that the outsiders are being subject to. This is a gigantic anomaly that cant be brushed aside. This is especially important in a ‘game of spoils’ where there is no stigma to call your self anything as long as there are special and exclusive goods to be had.

Once you cast (no pun) the question as one of equal protection – it is clear that the Jats are being asked to come through a very highly fortified front door while there are others who are inside on much looser criteria through the back door.   Also the revisions to the lists are not happening even in boundary conditions like Tamilnadu. This only means that inside group members seem to be permanently immune from scrutiny and even quantifiable relative data to outside groups now will not be accepted.

A relative test

My view is exactly 180-degrees from the judgment. The inclusion and exclusion issues must be purely relative. There cannot be any absolute measure of backwardness because remember that within the OBC group there is a pure meritocracy. The “List” ought to be the central subject of all litigation and the main job of the statutory body and the judicial review process is to preserve the integrity of the list. All it should take for Group-A to declare the entire list invalid is to show that there is atleast one Inside Group that is better off than atleast one Outside Group.  At the state level, things are totally absurd. I have proved that in Tamilnadu the situation is out of control. There are no students from the open category getting through PG Medical Tamilnadu Seats in top colleges.

It is also important to not expand the domain where the quotas can be asserted. Especially dangerous is local body quota which distorts the entire democratic process itself. Another live wire is sectarian spending such as group wise scholarships, special schools and vocational training only for some groups, special financing, and such like.

Careful of that Pandora’s box

One of the dismaying phenom in India is the following : The establishment try some mad-scientist experiments with the Rule of Law (which evolved in the west as an outcome of centuries of bloodshed) , the experiment doesnt work, so they drop some assumptions and open an entirely new can of worms.  In the previous regime, if there were 8 people who could wrap their heads around the issues, when you drop down a level and open a can of worms only 4 can handle it. This has been going on for too long. Now no one seems to have control of the situation. Some new can of worms ready to be opened are.

Can all states be like Tamilnadu ? Declare 90-95% as backward ?

Can all groups (castes/religions) be given a pro-rata allocation ? Remember this was the issue in  Champakam Dorairajan vs Union of India that prompted the first amendment. Stunning we want to go back to the Communal G.O in Madras Presidency after 70 years of Independence.

In any invidious law ; the people always measure their impact with respect to other people. If a Jat aspirant loses a bank job, it is someone else who gets it. This is the source of the tension and only a relative test can soothe it.

Truly a crisis situation. Only next to the rot in our education laws.