Spot the principles while negotiating a climbdown on Pramati case

November 26th is designated in India as Samdvidhaan Divas or Constitution Day.  In keeping with the times, this day has been turned into yet another opportunity for a Public Relations blitz as governments take out full page ads. These typically feature a smiling face leader framed against a background image of the the first page of the original constitution with a pledge to uphold it. Not once do people ask “what version of the constitution?”.  The real debates are kept out of the public square as smaller and smaller groups of chosen people  create and orchestrate these matters which guide the destiny of the entire country. No amount of bellyaching about cultural or historical injustice will affect either the trajectory or the end game that the Idea of India group has created for you. Unless you engage now!

Palming needs practice to perfect 

I have previously written about the earth shaking constitutional legacy of 10 years of Congress led UPA rule – the insertion of Article 15(5) via the 93rd Constitutional Amendment. This audacious move blew up in just 2 weeks a painstakingly constructed judicial consensus that took over 6 years and 21 Supreme Court judges and 50+ lawyers and hundreds of hearings to achieve in the TMA Pai troika. The Idea of India ecosystem had set the framework within which primary,secondary, and tertiary education would evolve in India.  Just a week prior to losing power to Narendra Modi led BJP government they managed to get a favorable verdict upholding the constitutional validity of the 93rd Amendment in a landmark case Pramati Edu Society.

A recent article in Economic and Political Weekly titled “Primary Education and Minority Rights”   by Sushant Chandra of Jindal Law school addresses the unacceptable fallout of the Pramati case. The article calls for a softening of the Pramati judgment which exempts in-toto the minority schools both aided and unaided from the Right to Education Act.

It could be safely said that the minorities’ right to administer their educational institutions warrants maximum autonomy in running unaided schools, and lesser in running aided schools. The percentage of reservation and degree of education are both fused in different degrees that define the identity of minority rights under Article 30(1).

We on #TeamCore  (a fledgling Core Right vanguard movement) have to be extremely vigilant about these “compromise” matters.  What is happening here is that the ecosystem has realized it has gone too far and is trying to pull back suo-moto to a more defensible position.

Let me try to untangle this as best I can.

Prefer hard edge to soft

The current education laws in India which we classify under  #core1 are hard edge. At the national level, the Right to Education Act, Art 15(5) and their scaffoldings like NCMEI are all hard edge sectarian. The exemptions are categorical and the definition of minorities are red-line sectarian. This is in fact a boon for Core because it makes the issue self describing.  I dont need to explain anything beyond telling you what the law is and what the rules are.  However for the select few people at the highest levels of Idea of India, these kind of hard lines create discomfort.

At one level , they are probably astonished at how meekly the larger Hindu society and their so-called nationalistic political avatar is accepting these laws that directly impact their future generations. They will be taken aback by the absence of curiosity and spirit of discovery. The inability of Hindu intellectuals to spot the issues even when explained to them.  Still they are careful not to prematurely declare victory.  Because at another level, they are well aware that a Core like vanguard group who can match them step-for-step can easily  exploit these hard lines and woke the masses.  Pramati and the notorious Right to Education Act is the best example of this.

As an illustration let me propose this amendment.  Instead of a hard edge exemption from the Right to Education Act, the minorities both aided and unaided will be forced to do the following.

• All need to do the 25% quota, but minorities in order to protect their rights will be allowed to select the beneficiaries.
• The minorities will be allowed to charge a nominal fee to make up for reimbursement deficit

With this new rule, you can no longer proclaim  “Minorities are exempt from the Right to Education Act”. You have to qualify and nuance and climb up to another level to engage. In a country like India you will lose about 99% of the audience who wont engage intellectually beyond what it immediately in front of them.

With this new amendment, think about how difficult the task is for me to explain this soft edge. Even though the soft edge is worse than the hard edge.  In this lies the genius of the new age Marxists.

 

Seek the principle

The right approach is to skip the individual provisions of some law and seek out the principle involved.  The EPW article incorrectly identifies the principle as “Does this trample minority rights under Art 30(1)”. That is not a principle at all !!  Of course any restrictions trample the rights to be free of restrictions.   You have to look deeper and identify the non-sectarian FIRST principles and THEN see if you can place them or reject them.  No civilized society can afford to pass laws with laundry list of clauses and then open negotiations with sectarian groups for exemption on ad-hoc basis – clause by clause.

The #core principles involved here are two-fold.

• Principle of Nomination : Who gets to select the students ?
• Principle of Cross Subsidy :  Who pays for this ?

If you drop the ‘nomination’ principle you have created a completely new regime, it just looks like the previous regime.  If minority schools are allowed to select students, they will select only those who fit their institutional goals. This strengthens them institutionally because they can select the best and THEN have the govt pay for them. Therefore the issue drops to one of ‘selective schools (minorities)’ vs ‘non-selective schools (hindu)’.   So any climbdown along this line in the upcoming(?) Independent School Federation case is unacceptable.

If you drop the ‘cross subsidy’ principle and allow the minorities to recoup the margin from the students themselves you have again created a different regime. This is the voucher system where Govt pay a part scholarship and the student makes up the difference. So any climbdown in this line too is rejected.

As you can see, it is impossible to have a principled interpretation of a sectarian law. At the lowest level the problem is that you have a unified market but you impose restrictions and concessions on different vendors based on religion.  The only solution to this is to segment the market itself.  Schools with minority status should only address the market for minority students of their own kind.

The correct option is for the political leadership to assert itself and repeal the 93rd Amendment and its cousins and restore the status of TMA Pai circa 2004.  We may have lost 13 batches of kids to this regime but it is the bare minimum expected of this government.