Reality Check India

On the hearings in the NCMEI Court

Posted in Uncategorized by realitycheck on October 26, 2017

As soon as sweeping into power in 2004, the Congress party created the NCMEI through the National Commission for Minority Educational Institutions Act 2004.  Still amazes me to this date, that this little blog is the only place where you can find information  about this all important judicial body that commands the central domain of education. This impacts all of India’s children and through them the destiny of this nation.  If you dont know what NCMEI is – please go on to “Bulwarks erected against redefining minorities in India’s edu system – the genesis of NCMEI”  and also read “A Brief History of the 93rd Constitution Amendment”

To recap,  the NCMEI is a  judicial body (with powers of a civil court) with the following unique features

  • that by LAW excludes Hindus from being judges in this court (Sec 4 of NCMEI Act)
  • that not only adjudicates on issues where all the parties are minorities but also adjudicates when the affected parties are Hindus.  Even though the institutional control matter may be minority owned – the majority of students and staff in these institutions are not minorities but Hindus. A rough example of a purely inward looking body would be  AIMPLB that works in the domain of Muslim person law or the Canon Law Society of India for Christians..
  • that by virtue of its power to grant the Minority Certificate , takes out entire institutions and chains of institutions out of the purview of  the notorious central education law – the RTE.
  • that obtaining the minority certificate also insulates the institutions from the Art 15(5) inserted by the 93rd Constitutional Amendment. This is a so called “enabling amendment” that allows any type of statute against a non-minority institution. In other words an open ended confiscation

I expected the Narendra Modi govt in 2014 itself to repeal the NCMEI Act.  Even  by May 2014  had issued some 12,000  minority certificates. Till date this body  continues to function and even thrive. The NCMEI has been busy of late issuing Minority Status Certificates and also hearing other types of cases.

Here I want to show how a typical case is decided based on the Daily Orders found on the NCMEI Website. Then I will identify the alarming deficiency in India’s judicial thinking process by citing a “Tequiyyah” that is just not pursued and examined.

What is the matter to be considered before issuance of Minority Certificate

We are used to judicial delays in the normal court system. In the case of NCMEI the cases which were scheduled for hearing in Jan 16 2018 have  been advanced to Oct 17 2017 in the “interest of justice”!  But lets see a typical Minority Certificate order and what is being tested. This is just an example – all the orders I read seem to be copy-paste with just the names changed.

In the following typical case a school run by St Thomas Education society in Kodagu Dist Karnataka has not received a Minority Certificate from KA Govt  even after 1 year of applying and they have come to NCMEI to get it.

The order is only 2 pages. What is tested are

  1. All members of the society are Christians
  2. The school is setup for the benefit of the Christian community.

Now you would think that Item 2 implies some kind of “indicia or purpose”.  It is nothing of that sort.  All orders cite a 2010 case also decided by the NCMEI Court  called the “Buckley Primary School – Orissa” case.

MInority Status Certificate Order Issued Oct 17 2017 to Thomas Edu Society



The demographic test as an indicia

The Buckley Primary School is located in Cuttack Orissa.  The NCMEI in July 2010 ruled in favour of granting a minority status to the school even though only 31% of the students were Christian.  In fact the numbers dont matter at all, even if the Christian student population were only 10% the same logic would apply.

The judgment is here  :  Buckley Primary School (Orissa) case – Jul 2010 You can ignore the filler material in the judgment citing Stephens, TMA Pai, etc  and locate the meaty part.  I reproduce it below.

It needs to be highlighted that according to the Census Report 2001, Christian population in the State of Orissa was 8,97,861 and the total population of the State of Orissa was 36,804,660. Petitioner institution is situated in Cuttack and the total population of the District of Cuttack was 23,41,094 out of which, population of the Christian community was 10,657. It is stated in the affidavit of Mrs. Smruti Rekha Panda, Head Mistress of the petitioner school that the percentage of the Christian community in Cuttack District is 0.46%. The petitioner school is a primary school. One can make a reasonable guess that the students seeking admission in educational institutions established by the Christian community in the Cuttack District would normally be commensurable to its population. In this view of the matter, the Christian community of the District, Cuttack may not be able to secure more than 0.46% admission from its own community. Similarly, if in a particular State there may be very scanty population of a particular community and number of students seeking admission may be only handful. Would such religious or linguistic minority lose its right to establish and administer educational institution of its choice? Would religious minorities like Sikhs, Buddhists and Jains have no right of establishing and administering educational institutions of their 10choice as guaranteed under Article 30(1) of the Constitution? Thus, the fundamental right guaranteed under Article 30(1) would be a teasing illusion or a promise of unreality for them. It is a matter of common
knowledge that although the Parsi community is a notified minority community but it is also a dwindling community of our country. That being so, a microscopic minority like Parsi community cannot exercise the rights enshrined in Article 30(1) of the Constitution.

Page 8-9 : Buckley Primary School vs State of Odisha Jul 2010 – NCMEI Court


The Argument : If you insist on a demographic indicia, then  minorities who are not in significant numbers in a particular territory cannot exercise Article 30 rights. 

To explain further with an example (this is crucial to understand)  : Say you had a rule that if you wanted  a Minority status than 75% of your student body must be from the same minority community.  The argument is that ” if in X Sq Km the population is only 1%  kids then we cant meet the 75% quota in a 500 student school.”

At this point the body of men and women split into two groups.

Group 1: Just accept the argument and move on. Because digging deeper and deriving a general principle from this is too tiring and potentially unpleasant.  We do this in India.  All of the thinktanks, NitiAayoog, RSS, seem to not be bothered by this.

Group 2: The other option is to – recognize that there is something iffy about this. And get curious. Then try to examine the issue, test the boundary conditions, see if there is a general principle that will come of this rule. This is the #core group.

Here is a rough way to derive a principle.

  1. The question is not whether Minority can run a school in order to project into a Sq Km where they have minimal presence, but whether they MUST ONLY run it as a Minority institution.  After all these schools have been running without MSC for a while.
  2. We get fooled easily by the “narrow-wide” data fallacy.  You can have 0.1% population of a group in a particular state or district but more than enough in a particular locality to fill a school many times over.   So the right place to start the minority school is IN THAT colony.
  3. Consider a boundary test : say there are no Momons in Odisha and a Momon educationist wants to setup a school there. Should he be given a minority status? He is going into a land where there is no presence and hence IN THAT territory there is no culture or religion to preserve. He can run the school under the General Law that is applicable to all.
  4. The general education law in India is called the RTE and its daddy the 93rd Amendment. These are confiscatory laws that make it nearly impossible to run a school.  Hence exemption from this law is a *really really big deal*. Those who are allowed to use the Minority status and project into territories where they have a sparse presence can rapidly knock out the schools that are forced to follow the General Law.
  5. The other simpler explanation is still on the table. That the minority status here is sought to be used as a “sword” and not as a “shield” to take advantage of the religion and project influence into hitherto unreached areas.

One wonders if  the NCMEI has taken over the interpretation of Article 30. This demographic principle to the best of my knowledge is not coming from the Supreme Court.  Let me remind people again. #CORE1 will decide if you survive as a civilization. Article 30, Article 15(5) are matters of national interest not just to those of minorities.

Here is hoping,  we see some legislative action on NCMEI by the Narendra Modi Govt before the term draws to a close.




Lingayat protests are about the perverse legal regime in Indian Edu Laws

Posted in Uncategorized by realitycheck on October 2, 2017

For the past one month or so the media establishment in India have been running a campaign of deception, outright lies, and obfuscation around the issue of the Lingayat community in Karnataka all the while drumming up a crisis situation. This orchestrated campaign is a lead-in to a flashpoint demonstration planned on Nov 5 2017.

In short : The Lingayat community through their leaders have expressed a demand to be classified as a Minority religion separate from the Hindus. To an uninformed person, that demand in itself is  kind of super wacky.  Why on earth would they want a Govt certification of their status?   Normally in a vibrant democracy you would expect the hordes of mainstream media outlets, eminent jurists, thinktanks,  and social intellectuals to tear into the “whys and whats” of this inexplicable absurd demand.  Nothing of that sort will happen in the Indian intellectual circuit. That is because they might be accomplices in hiding a “Pumpkin under the rice” (Tamil proverb).

The media have focused on the doctrinal issues especially around how Lingayat is different, even better, than the other Hinduism.  Notably,  The Economist has joined the chorus with its supportive piece “Medieval poet bedevils India’s most powerful political party”.

Luckily the nascent #Core movement is forever alert to these shenanigans.

The Lingayat protest is not driven by doctrinal differences but merely as a response to the most ludicrous legal regime currently in force in any part of the world.

To start off – we have two excellent commentaries that looks under the hood.  The first is by the prolific Hariprasad N @pranasutra  “Why are Lingayats in Karnataka demanding a minority religion status”   the second piece is by Medium writer @IOI who wonders “Why American political parties are not caught up with establishing Adventists as Christians or not”

I am not going to repeat the points made in those posts, but open up the following Five questions

1 Separate religious identity marker test

Lets first examine this claim. The Lingayat movement is about a  nuanced religious doctrinal conflict  of  Basawesharas rebellion against Agamas, Vedic, Sanatanic strictures and pro social justice etc. (See this explanatory piece “Explained: The Lingayat claim for separate religion” by The Hindu)

If that were all there is to it, Lingayatism doesnt need a gazette notification but can cleave from Hinduism by a natural process. There is no Hindu pope who is going to prevent them from separating, nor will there be any institutional retaliation.  All they need is to develop an inside / outside view with Hindus and build higher walls and deeper moats. They can use unique types of food, perfumes,  practices that appear strange to Hindus, mutilations, naming babies in certain way, controlling intercourse with Hindus, and so on.  Most importantly they can use their institutions for labeling and access control.  They can start by installing notice boards in their mutts, or movies and booklets and films emphasizing  the schism, and to censure and expel those who interact or adopt Hindu symbols.  This is the natural process.  They do not do any of these things, but insist ONLY on Central Govt notification (a mere piece of paper) that amends the National Commission of Minorities Act 1992 and adds them as the 7th religious minority in India.

This means the doctrinal distance is not central to the debate at all, but it is a gazette notification is what is being sought. So the practical minded person need not engage with  Basavanna or Sanatana at all.  That brings us to the next four questions.

2 Is Art 30 a sword or a shield

Article 30 happens to be the primary distortion in India because it uses state force to shape which groups are allowed how much institutional control. This has dramatic and permanent impact on generations. Only those groups with institutional control get to propagate and reproduce their culture.  To qualify this further, why I say “institution control” I mean to the extent every group has it.

There are two ways to look at Art 30, a shield : essentially a guarantee to minorities over and above Art 14 and 19 that specifically protects their educational institutions.  The other way is, a sword where these minority guarantees are denied to Hindus and the minorities use this advantage to turn  outward based or implement outreach agenda. The objective is then changed  to educate outsiders rather than their own communities. The critical question  “Are there any indicia or purpose for this minority status”  is never asked.

Lingayats today run hundreds of education institutions. Ironically, this is the best argument for abolition of Art 30 (the sword interpretation).  If you argue that Lingayat have been unfairly denied minority status for 40 years, then it follows that they have managed to roll out such large education network without minority status. So the only reason they want the minority status today is to protect from the “sword” interpretation.

Core1 is a  strong and fundamental distortion. If you do not remove it, it can give rise to  spin-off strategic games that will be hard to decipher. One strategy could be to select groups to be groomed for eventual split by allowing them to roll out big institutions and then once they are leveraged in that manner,  they will need the “sword protection” and themselves cry to be called minority.

3 The 93rd Constitution amendment is open ended hence the urgency of Lingayat

If you are a Lingayat leader , the 93rd Constitutional Amendment is a terrifying reality. You will never hear the mainstream media or eminent jurists talk about this. Here is the problem.  Art 15(5) introduced by the 93rd Amendment is an Open Ended confiscation of institutional control with baked in exemption for minority.

By “open ended”  I mean : Any Hindu run institution can be taken over to any percent along any social justice axes in any aspect of management. The 93rd Amendment today is an enabling amendment for the notorious Right to Education Act but there is nothing in Art 15(5) that restricts it to RTE, school edu, or 25%, or for SC/ST, for teachers or students, or any other group.

The Lingayat community is philanthropically minded and is therefore  highly leveraged in Edu sector. If no one will repeal these laws, or even talk about them, or even engage those like #core movement who do talk about them, then the path for them is clear. The only way to save yourself is to break off and gain immunity from this tyrannical law. The reward is a safe harbor with total and permanent autonomy guaranteed constitutionally. The ungainly sight of begging for minority status will be forgotten once this group too like the Jains before them,  are protected from the Art 30 “Sword”.

4 Different or better

A very amusing aspect of this minority status should be noted. When groups like Jains, Brahmo have  tried to get Minority status they not only have to declare them as different from the Hindus but better-different.  No community has said “Give us minority status because we have this unique XYZ feature which is hardcore and worse as per your yardstick compared to what the remaining Hindus have.

This leads to the following conclusion.  To claim institutional control rights, a group ready to be claim as schismatic have to assert that they are different and better than Hindus as per the rules of Idea of India.  It then follows that Hindus will never be given institutional control rights only because they are Hindus and for no other reason. This is the exact definition of multi nationalism  as the Supreme Court noted in the Bal Patil (Jain) case.  One wonder why the Sangh which calls itself nationalist lets this multi-national basic jurisprudence go unchallenged.

Finally, the claim that Lingayat or Jain or Brahmo or anyone else do not recognize caste is meaningless. Because if you stage caste as a separate unit , then within the unit, by definition there can be no caste.  For example, the Iyer or Gounder religion also reject caste since they just marry and conduct affairs within their own religion.

5 How to pull the rug and completely change the landscape

As shown in this article, this entire movement turns on the primary anomaly in India. The denial of institutional control mechanisms to Hindu at par with non Hindus.  It is not correct to blame Lingayats for doing whatever is necessary to save themselves from the sword.  The correct approach , if we are truly sovereign, is to surgically remove the primary anomaly as below

Repeal the 93rd Constitutional Amendment and announce that henceforth Article 30 will only be interpreted as a shield. If necessary amend Article 30 to bake that in as well.  You just have to announce that you plan to do these things.


Do #core1. Pull Rug.

The Economist mocks the government as “medieval poet bedevils BJP” – this is both true and false.  If you do not remove the primary anomaly, the issue impacting 17% of Karnataka can overwhelm you. The question will be eventually framed as a Rule of Law 101 (Uniform Applicability) “If Jains can have it , why cant we” ?

Everyone knows  you cant answer Rule of Law questions in Idea of India system.