Allahabad HC RTE govt schools judgment
When dyc has CJ of Allahabad HC , a UP Govt G.O restricting RTE admissions under 12(1)(C) to publicly funded schools was struck down.
Petition and presentation about dangers of India’s RTE (Right to Education)
Sharing PDFs of my presentation to Honble HRD Minister on May 6 2015
I am grateful to the fmr HRD minister for the opportunity and patience in hearing me out despite a very busy schedule.
- mhrd-petition-c A petition letter
- a PPT 17 slides A PPT 17 slides explaining the edu law landscape and hidden traps in India
I tried very hard to make these as simple as possible, accessible to the common man, yet capturing all of the anomalous features of India’s edu laws, of which #RTE is but the latest and grandest venture.
Hope people find these useful.
LOLWATCH: Intro, Caste census, Haryana EWS RTE, Jat quota..
LOLWATCH is a new experiment I am starting today. Since my highly intellectual political and social punditry refuses to be confined to 140 characters most of my tweets turn into ‘tweet series’. Everyone knows tweet series are like goat droppings, a poor substitute for bovine dump. With LOLWATCH my reactions to various news items will be on one page with a single tweet pointing to the blog link where the treasure can be found.
Socio Economic Caste Census released
Provisional findings of the Socio Economic Caste Census (SECC), first reported by The Indian Express last week, recognise “multidimensional” aspects of poverty and will form the basis for determination of beneficiaries of government schemes in rural areas. Conducted between 2011 and 2013, it will facilitate identification of the poor and deprived in rural areas.
Source : IE
If you see what they’ve released it does not include any caste information at all. So this is like Vada-Paav without the Vada.
The caste census itself was commissioned in a highly reckless manner by the Congress Party and supported by BJP. Why is the Indian state so nervous about releasing the data which it spent thousands of crores collecting? The social order promoted by Idea of India depends on ad-hoc power and benefit sharing. The system is stable only if groups do not know exactly how much others have been getting. This media piece reflects the nervousness : “Caste data held back due to social upheaval fears” the analysis gets it completely wrong. The real issue is not finding out what the actual OBC percentage is in the population but whether a particular caste can be classified as OBC.
Cant pay for EWS kids : Haryana Govt
GURGAON: The Haryana government has conceded that the admission of thousands of EWS (economically weaker section) students in grades I to VIII in private unaided schools was put on hold as it entailed “hundreds of crores of rupees”.
The state government’s admission was contained in an affidavit submitted recently to the Punjab and Haryana high court. The admissions were put on hold by the state on May 1 in clear violation of a high court order issued on April 1 this year.
Source : TOI
Imprecise terminology is the hallmark of all RTE stories. Schools have no defence against non-payment because the matter is related to cross subsidy and Idea of India style judicial thinking.
The story goes like this. You are running a mid level school and your fees for paying students are 40,000 per year/student. The state only gives you Rs 11,000 because that is what they spend in govt schools. A westerner would stop right here and say – ‘are you crazy?’ This is nothing but confiscation. Our free market think tanks are comfortable with this. But lets carry on.
Therefore the balance Rs 29,000 is spread out to the other students in the form of cross subsidy. The Idea of India jurisprudence is marked by the absence of principles as court seeks to strike a balance and reconcile by playing around with amplitudes and percentages. One of the reasoning tools they use is induction. It goes like this. “You’ve already agreed to X, the matter in front of us is X+1. On what basis are you opposing that”. This is an extremely tricky situation to get out of. You have agreed to bear a 29,000 burden – why not bear 11,000 more?
The answer is we need honesty and clarity in our think tanks. When laws like this come out they must be rebuked for what they are in no uncertain terms. Too much to ask?
Jat bodies to cut off supplies to Delhi on Sep 28. Threaten immolation or conversion
Jat bodies on Friday threatened to seal Haryana border along Delhi and cut off all supplies to the national capital if the Union government fails to implement reservation for the community before September 28.
A meeting has been called at Jat Dharamshala in Kurukshetra on July 12 to intensify their movement for inclusion in Other Backward Classes (OBC) quota, said Nafe Singh Nain, chief of Sarv Jat Khap Panchayat, at Narvana area here.
Source : Statesman
A debatable judgment excluding Jats from quota. Also telling how in Idea of India framework outside groups find it increasingly hard to get in as the inside group acquire power.
Will blog later, but the Jat Quota judgment got it opposite. Not only is relativity the correct yardstick to evaluate claims of backwardness – but it is the only possible yardstick. During the deliberations to study backwardness of Jats it was discovered that Kurmis and Ahirs were ahead of Jats on many parameters that involved state benefits. In my view that is all that is required. All a group has to do to gain inclusion is to show that there is atleast a single group that is ahead of them in representation and is included. This also tells you about the dangers of Idea of India style ‘accommodation of groups’. Initially the accommodation is easy. You go from 0(inside):100(outside) to 30:70; then 40:60. Since these accommodations directly reflect political power – as inside groups gain in numbers they will make it harder for outsiders to come in. So at 51:49 – they can effectively shut out anyone trying to gain OBC status. To me it is remarkable that Jats are having such a harrowing time availing quota while 73% of Tamilnadu have been casually classified as OBC without a murmur.
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Delhi nursery admissions meets the RTE
Its the capacity stupid. (Image Courtesy: IE)
Hartosh Singh Bal has a new article up on the Global New York Times site titled “Classes Warfare“. In that he narrates a personal account of his inability to wrangle a nursery seat for his three year old son.
New Delhi’s top private nursery schools are perhaps as competitive as an Ivy League college, but that’s not saying much about the means required to get in. I should know: I spent the last month filling in application forms to 10 private schools for my three-year-old son, and he wasn’t admitted to any.
Source : NYT Global Site
I dont want to make light of a serious situation. I dont know of a single family for which this would not be a nightmare scenario. But Mr Bal misses the point entirely about why the situation is so. He says that the RTE Judgment in the Delhi High Court failed to provide “some remedy” to the throngs of parents. If only the petitioners had been successful in court. In this post, I argue that is not the case. If people really want a remedy they must call out the RTE Act itself for the damage it is about to wreck and hopefully make the next year better.
Recap of RTE situation in Delhi
The RTE judgment in the Delhi HC has not been reported on very well in the press. The RTE Act is known for the 25% quota but there is another clause in there. Sec 13(1) which bars schools from screening any parent or student. From what I understand, RTE “Enabled” Private Schools in Delhi were following this formula give or take : 25% RTE Quota + 20% Management Quota + 55% Lottery with weights. The weights had to do with assignment of points for siblings, alumni, location etc. All of which seem reasonable to me. The matter in front of the court was the 75% quota as it applied to nursery ( < 1st std) admissions. The petitioners would not give any discretion to the school managements for the 75% and would only accept a lottery. The Court denied their position, but nudged the HRD Ministry to amend the law itself. The case is also going up the Supreme Court.
As it turned out, Mr Hartosh Bal ended with a less than 1:10 odds of landing a seat. If the court had sided with the petitioners all 75% would be thrown open to lottery. In that scenario, the new odds according to his own statistics are 1:30 (1500 seats and 50000) applicants. An even lesser chance. Folks are unwilling to confront the most obvious question.
Why arent new schools opening up to pick up this wild demand ?
It is fashionable to slam school managements as the evil who actively look for ways to discriminate. The media is hammering into us that it isnt capacity mismatch that left us out rather active bias on basis of power, economic status, and whatnot. Being able to select students for admission is a vital facet of the right to run an educational institution and indeed a great incentive for starting one. After all, if the private schools had lesser applicants than the number of seats there would be zero screening. They screen because of the demand and they screen based on what their conception of an ideal private unaided school is. If they want a power politician school, they’ll pick neta kids, some pick army men, some purely pick moneybags – perhaps to fund the new block, some pick English speakers. Remember the demand is not just for seats, but for seats with certain other group characteristics.
Without autonomy in admissions, and that includes screening, the entire range of incentives to start schools vanish suddenly. To that add an amorphous and discriminatory RTE act any adventure into starting a school is foolish. There is very little due process protection against any NGO armed with a Xerox copy of the RTE act. The fundamental anti-trespass nature of private property goes for a toss. The RTE Act’s biggest fallout is going to be evaporation of capacity. No one will come forward to establish a school unless protections such as those for religious minorities are offered (which deserves 10 posts in itself). As some great man said “You will never sow if you arent sure you will be allowed to reap“.
Despite my strident opposition to the RTE, I am not an extremist. Screening is evil if schools work themselves into a monopoly situation by virtue of having been there first. The main reason for monopolies to arise is this. The impossibility of any newcomer to fulfil regulatory requirements the incumbents are exempted from. In such cases, the well recognized legal doctrine of ‘reasonable non discriminatory conditions’ can be enforced like it is for telecom and electric providers. But that doesn’t have to be the case here where there is no resource crunch. Clear rules, lets start with repeal of RTE, will encourage new players to enter. I can already see people drooling over the 50,000 kids of middle class parents, some of whom are ready to pay $10,000 for a seat. It may be unpalatable for socialists that new schools will cater to rich, but think harder. It will improve the odds from 1,500/50,000 to 1,500/20,000 because the other 30,000 are knocked off due to their willingness to pay. There are no losers in this scenario.
What can a common man do. For starters, educate yourself about what laws like RTE entail. It is hard because the media does not carry substantial analysis of any statute rather focusing on consequences. Once the facts are out there you will recognize. Laws like RTE will shrink capacity, undermine property rights, equal protection, and freedom of occupation.
It doesn’t matter if we lose in a lottery or in a beauty pageant. We still have to break the news to our kids. The beauty pageant will increase total capacity and the lottery will shrink it.
Delhi HC judgment on applicability of RTE for nursery
For those interested here is a link to the Delhi HC judgment which says some provisions of RTE does not apply to nursery and pre-schools.
Delhi HC Judgment on RTE for nursery schools – PDF (about 584K) DMU19022013CW85332010
RTE meets creamy layer in TN
An interesting judgment was delivered last week in the Madras High Court by Justice K Chandru in Priyanka Rajkumar vs Rajaji Vidyashram. While disposing of this particular case, the judgment brings into focus glaring anomalies with the quota system.
The brief
A professional couple earning about Rupees 30Lakhs per year approached Bharatiya Vidya Bhavan’s Rajaji Vidyashram located in Kilpauk Chennai. They were seeking admission for their 5 year old son in LKG class. They had applied under the “disadvantaged” group stating that they were members of a Mudaliar community which is currently classified as SEBC (OBC) in the state of Tamilnadu. They were claiming benefits against Sec 12 (1) (c) of the RTE Act. The school conducted a lottery in the presence of two members of the School Management Committee and AIADMK MLA Mr P Vetrivel. The couples child did not win the lottery, so they approached the court questioning the basis of selection. The court did not allow their petition and also made a crucial comment on Tamilnadu’s notification of RTE. You can read the entire judgment here. Times of India story here.
The fact that weaker section was defined by the State as the annual income of parents or guardians is less than Rs.2 lakhs, in the absence of the State prescribing any creamy layer under the list of social economical backward classes, the same income ceiling should also apply to SEBC categories. Of course, such an income limit cannot be prescribed for SC and ST as noted already by the judgment of the Supreme Court. It is left to the State to specify the creamy layer under which certain members belonging to SEBC categories will be excluded from getting the benefit provided for the said class.
Judgment: Pp 26
What about the poor ?
As I have blogged in the past, critical clauses in the RTE Act were papered over by the media and almost the entire pool of columnists. It was portrayed as a program only on economic grounds.
But as we watched the quota policy get horrendously trapped in competitive politics, didn’t we say we would rather have an economic criterion for reservations than it being caste-driven? Well here, for the first time there is such a basis.
NDTV Journo writing in HT “Writes of passage”
Now the facts tumble out of cases like this :
The number of vacancies for LKG was only 216 for the academic year 2012-2013. Out of 216 seats, 54 seats were assigned for admission under 25% category under Section 12(1)(c). There were 91 applications under the RCE Act category, of which 5 belonged to Scheduled caste, 2 from the economically weaker section and 84 applications were received under the backward class and most backward class category. They have allotted two seats for economically weaker section and 5 seats for SC and ST. In respect of 47 seats meant for BC and MBC, there were 84 applications and that lots were held
So out of 54 reserved seats a grand total of TWO were allotted on the basis of poverty. 52 seats were allotted purely on the basis of caste.
Fallout of case
One should keep in mind that the couple approached the court only because they failed to secure an admission under RTE. If they had won the lottery, we would never had heard about this case. So it can be surmised that there must be others of similar wealth who did win the lottery and are enjoying free tuition.
While analyzing this case it is important to keep a calm head. The reality is that Tamilnadu does not exclude the creamy layer from seeking benefits under its various reservation programs. So the couple can be said to have nursed a legitimate expectation with respect to RTE. The text of the central government act as well as Tamilnadu’s notification did not exclude the creamy layer.
The judge has now said that both the “disadvantaged group” (vertical quota) as well as “weaker section” (horizontal quota) now have the same income limit of 2L/yr. If you look a bit closer this isnt a very robust position. In the absence of a sub quota, it just means all communities earning below 2L /yr qualify. It just merges the two categories together with the exception of SC.
It is also a moral hazard to provide free tuition for wealthy SC and ST students. The cross subsidy will be borne by students of far lesser means from other communities. This give them an economic boost which isnt even the original basis for readdress. A simple quota without free tuition is a better option for SCs.
Conclusion
This case brings out the grand anomalies which fall out of poorly thought out or deliberately divisive laws like RTE. It is easy to outrage over the couple but since we are going back to the era of controls and socialist shortages they did what was in the best interests of their child. Once the child is in, will we not forget and forgive this little maneuver ? Arent children and grandchildren of doctors taking advantage of medical college admissions ? Does the fact they pushed over a more meritorious child get in their way once they start their practice ? Do you ask your doctor how much they paid as donation ? Winners of socialist policies, in this case literally sweepstakes wink at these trifles but will not even acknowledge the presence of heartbroken losers.
We cant have anything other than a low grade democracy pulling us deeper into third world squalor. Unless the whole of social justice is placed under a doctrine of strict scrutiny.
Madras HC – P. Rajkumar vs Rajaji Vidyashram (2012 RTE case)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.07.2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.13330 of 2012
and
M.P.No.1 of 2012
Priyanka Rajkumar .. Petitioner
Vs.
1.Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
(affiliated to CBSE)
2.The Senior Principal,
Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
3.Vaidyanathan,
Director,
Bharatiya Vidya Bhavan,
No.18,20 and 22, East Mada Street,
Mylapore, Chennai-600 004. .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 2 and 3 herein to consider and admit Sujay, R. for L.K.G. Class in the first respondent’s school on the basis of his application to L.K.G. Class, as it is the legal duty of the respondents to give effect to the provisions of the Right of Children to Free and Compulsory Education Act 2009 (Act 35 of 2009) and under Article 21 and 21A of the Constitution.
For Petitioner : Mr.S.Vadivelu
For Respondents : Mr.K.Viswanath for RR1 and 2
– – – –
ORDER
On behalf of the minor son Sujay, his mother has filed the present writ petition seeking for a direction to respondents 2 and 3 to consider and admit her son in the L.K.G. class in the first respondent school on the basis of her application as the legal duty was cast upon the respondents under the provisions of the Right of Children for Free and Compulsory Education Act, 2009 (for short RCE Act) as well as under Articles 21 and 21A of the Constitution.
2.This writ petition when it came up for admission on 09.05.2012, private notice was directed to be served on the respondents. On notice, a counter affidavit, dated 21.6.2012 has been filed by the second respondent. The third respondent has also filed a counter affidavit on the same day together with supporting documents. The petitioner filed a rejoinder after orders were reserved in this writ petition on 02.07.2012, thereby denying the chance of the counsel for the respondents to controvert some of the additional facts brought in the rejoinder. Hence with the objection of the counsel for the respondents, the rejoinder has been received by the court.
3.It is seen from the records that the petitioner is the mother of the minor child Sujay and was employed as an Implementation Manager in a Software Company with an annual income of Rs.12 lakhs. Her husband, the childs father, was employed as a Chief Technology Officer with an annual income of Rs.18 lakhs. According to them, they belonged to Mudaliar community which is a backward class community listed under the category of socially and economically backward class (SEBC) in the State of Tamil Nadu. They sent an application for admission of their child to the respondent school in the LKG section on 09.01.2012. The school was affiliated to the Central Board of Secondary Education (CBSE), New Delhi. Their right is claimed under Section 12(1)(c) of the RCE Act and its constitutionality was upheld by the Supreme Court vide its judgment in Society for Unaided Private Schools of Rajasthan Vs. Union of India and another reported in 2012 (4) Scale 272.
4.The petitioner after handing over the application, contacted respondents for an admission to her son. It was stated that her sons name may be included in the waiting list. But after several attempts to contact by the junior Advocate, they were assured of one seat in the LKG class. On 22.03.2012, the grandfather of the child had contacted the third respondent Director for getting a seat. But he was informed that the petitioners sons name was kept in the waiting list for admission in the LKG. On 10.04.2012 when he went to meet the Principal, the second respondent, he asked him to come at the end of the month saying that a lot was held in which his son was not lucky enough to be picked up. But he had no notice for the lot. Further the petitioner did not know whose names were placed in the lot and what was the distance of residences of such persons from the school and who decided the name of the person to pick up the lots. Whether all children were living within the 1 Km radius from the school so as to come within the neighbourhood school as set out under Section 6 of the RCE Act. It was also stated by the petitioner that the proviso to Section 12(1) of the RCE Act will apply to LKG admission also. Hence a direction was sought for.
5.In the counter affidavit filed by the third respondent, it was contended that the third respondent informed the grandfather of the child that if there was vacancy in the LKG, then the petitioners son will be considered for inclusion subject to fulfillment of all requirements as prescribed under law. It was stated that her son was denied admission as he was not selected in the random selection process held for backward and most backward classes category.
6.In the counter affidavit filed by the second respondent, it was contended that the petitioners sons application was received along with 2000 similar applications. The number of vacancies for LKG was only 216 for the academic year 2012-2013. Out of 216 seats, 54 seats were assigned for admission under 25% category under Section 12(1)(c). There were 91 applications under the RCE Act category, of which 5 belonged to Scheduled caste, 2 from the economically weaker section and 84 applications were received under the backward class and most backward class category. They have allotted two seats for economically weaker section and 5 seats for SC and ST. In respect of 47 seats meant for BC and MBC, there were 84 applications and that lots were held in the presence of two members of the School Managing Committee and Mr.Vetrivel, a MLA from Radhakrishna Nagar constituency. Pursuant to the lot and random selection made, seats have been filled up. As on 11.04.2012 there was no seat left. The school management had filled up seats more than the requirement of 25% reservation for disadvantaged group and weaker sections. The academic year had already commenced from 11.04.2012. As on 11.04.2012, the petitioner was fully aware of not granting of seat, but they have chosen to approach the court only on 06.05.2012 long after admissions were over.
7.In the rejoinder filed, it was contended that the petitioner had applied for admission both under the general category as well as reserved category. Nothing has been mentioned about the general category as their admission was not made only under the reserved category alone. The screening procedure under Section 2(o) means the method of selection for admission of a child in preference over another other than a random method. Random means not drawing of lots. It is not open to them to substitute the word random. The fact that inspite of waiting in front of the Principal room, they were not informed about drawing of lot. Drawing of lots without notice to the petitioner was not permissible. The right to education is a fundamental right.
8.This stand taken in the rejoinder goes diametrically opposite to the stand taken in the original affidavit. In paragraph 13 of the affidavit, it was averred as follows :
“13.I submit that I belong to Backward class. Consequently I am entitled for a seat in the 25% Reservation for the children belonging to disadvantaged group in the neighborhood under Clause-c of the above Section 12(1)………… So far as Tamilnadu is concerned for backward class applicant, there is no financial limit. As I belong to social and educational backward class, I am entitled to be considered for 25% seat reserved under section 12(1)(c) of the Act.”
9.Therefore, it is not open for the petitioner to turn back and contend that her child should be considered against the general category in the remaining 75% of seats to be filled up by the respondents. Whether she is coming under 25% quota or otherwise, it is the stand of the management that they have filled up all seats. Even in respect of 25% reserved category, lots have been conducted in the presence of two members of the School Managing Committee and the local M.L.A. There is no rule by which the petitioner should be given notice of lots to be conducted. The procedure adopted by the respondents school cannot be said to be contrary to the rules and notification issued by the State Government. The random method can also mean drawal of lots as no other procedure has been contemplated. Even otherwise, since the concept of neighborhood rule has been pressed into service, the Act has not been made it clear what is the neighborhood except stating the locating of the school under Section 6 by the local authority. If there are more than one school in the neighborhood, as to which school the child should be admitted is also not clear. But all these questions are academic and hence they are not gone into detail in this writ petition. It is suffice to state that the respondents school had adopted a transparent procedure in admitting the children more than 25% quota under Section 12(1)(c). Since the school has done something even beyond the Act, they are to be appreciated for the gesture shown. But the petitioner will have no case to question the admission procedure.
10.With reference to the admission for general category, it has never been the contention in the main writ petition. The present contention raised in the rejoinder is only an afterthought. As rightly contended by the respondents, long after the admission procedures were over, i.e., on 11.04.2012, the writ petition came to be filed only on 08.05.2012 after a month. At this stage, such an issue cannot be reopened at the instance of the petitioner. The other crucial contention raised by the petitioner’s counsel Mr.S.Vadivelu and as set out in paragraph 13 will have to be answered as the same question is likely to be come up for consideration in future.
11.The second contention of the petitioner was that the petitioner belonged to weaker section and is entitled to have the right of admission to the quota prescribed for the children belonged to weaker section and disadvantaged group in the neighborhood school in terms of Section 12(1)(c) of the RCE Act, 2009. According to her, the term “disadvantaged group” is defined under Section 2(d) and “weaker section” is defined under Section 2(e) , which reads as follows :
“(d)”child belonging to disadvantaged group” means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;
(e)”child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;” (Emphasis added)
12.Since the petitioner belonged to socially and economically backward class, notwithstanding the parents of the child having more than Rs.30 lakhs as their annual income, they cannot be denied admission under the category of disadvantaged group. It was further stated that insofar as the State of Tamil Nadu is concerned, there is no concept of creamy layer among the communities identified as social and economically backward classes. Hence the fact that they are earning more than Rs.30 lakhs cannot be used for denial of admission. The petitioner placed reliance upon an order passed by the State Government in G.O.Ms.No.9, School Education Department, dated 18.01.2011, wherein in respect of the method by which 25% quota can be filled up by the neighborhood school, it was stated that the children belonging to disadvantaged group and weaker section have to be admitted in any school wherein admission process started from Kinder Garden section. While doing so, they should not conduct either any test or oral interview. After receiving applications, in random selection method, 25% of students belonging to those group will have to be filled up.
13.By G.O.Ms.No.174, School Education Department, dated 08.11.2011, in respect of Section 2(d) and 2(e), it was specified as follows :
“Under clause (d) of section 2 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009), the Governor of Tamil Nadu hereby specifies that “Child belonging to disadvantaged group” means a child who is an Orphan, or affected with Human Immuno Deficiency Virus or a transgender or a child of a scavenger in addition to the definition given in the Right of Children to Free and Compulsory education Act 2009.
Under clause (e) of section 2 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009), the Governor of Tamil Nadu hereby specifies that “Child belonging to weaker section” means a child belonging to such parents or guardians whose annual income is lower than Rs.2,00,000/- (Rupees Two lakh only).” (Emphasis added)
14.Subsequently, the State Government had issued a further order in G.O.Ms.No.180, School Education Department, dated 15.11.2011, wherein it was ordered as follows :
“3.In the Government Order read above, Orders have been issued to notify “a child belonging to Disadvantaged Group” and “a child belonging to weaker section” as follows:
(i)”Child belonging to disadvantaged group” means a child who is an Orphan, or affected with Human Immuno Deficiency Virus or a transgender or a child of a scavenger in addition to the definition given in the Right of Children to Free and Compulsory education Act 2009 and (ii) “Child belonging to weaker section” means a child belonging to such parents or guardians whose annual income is lower than Rs.2,00,000/- (Rupees Two lakh only).
4.The Government after careful examination and have decided to reimburse expenditure to the unaided schools with respect to the 25% of children belonging to the disadvantaged group and weaker section categories at the rate of the expenditure incurred by the State Government in Government Schools for a child OR the fee fixed by the Committee constituted under the Tamil Nadu Schools (Regulation of Collection of Fee) Act, 2009 (Tamil Nadu Act 22 of 2009) WHICHEVER is LESS” and accordingly issued orders.”
It was contended that even in the absence of identifying the creamy layer for the socially and economically backwards classes, the petitioner will be entitled to get admission under the said category without regard to the economic ceiling.
15.It must be noted that the Supreme Court while upholding the right to fix the quota in respect of unaided non minority schools for children belonging to disadvantaged group and weaker sections, in Society for Unaided Private Schools of Rajasthan Vs. Union of India and another reported in 2012 (4) Scale 272 had upheld the right of the Parliament to prescribe the criteria only in terms of Article 19(6) of the Constitution and not in terms of Article 15 of the Constitution. In paragraph 10, the Supreme Court had observed as follows :
10…… Thus, after the commencement of the 2009 Act, by virtue of Section 12(1)(c) read with Section 2(n)(iv), the State, while granting recognition to the private unaided non-minority school, may specify permissible percentage of the seats to be earmarked for children who may not be in a position to pay their fees or charges. In T.M.A. Pai Foundation, this Court vide para 53 has observed that the State while prescribing qualifications for admission in a private unaided institution may provide for condition of giving admission to small percentage of students belonging to weaker sections of the society by giving them freeships, if not granted by the government. Applying the said law, such a condition in Section 12(1)(c) imposed while granting recognition to the private unaided non-minority school cannot be termed as unreasonable. Such a condition would come within the principle of reasonableness in Article 19(6). Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), private unaided school would be entitled to be reimbursed with the expenditure incurred by it in providing free and compulsory education to children belonging to the above category to the extent of per child expenditure incurred by the State in a school specified in Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a restriction is in the interest of the general public. It is also a reasonable restriction. Such measures address two aspects, viz., upholding the fundamental right of the private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools. We also do not see any merit in the contention that Section 12(1)(c) violates Article 14. As stated, Section 12(1)(c) inter alia provides for admission to class I, to the extent of 25% of the strength of the class, of the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education to them till its completion. The emphasis is on free and compulsory education. Earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. Further, Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. As stated above, education is an activity in which we have several participants. There are number of stakeholders including those who want to establish and administer educational institutions as these supplement the primary obligation of the State to provide for free and compulsory education to the specified category of children. Hence, Section 12(1)(c) also satisfies the test of reasonableness, apart from the test of classification in Article 14.”
(Emphasis added)
16.It must be noted that the law relating to reservation of seats in educational institutions is covered by Article 15(4) only as against the State within the meaning of Article 12 of the Constitution until the constitution was amended by the 93rd Amendment Act, 2005 with effect from 20.1.2006 introducing Article 15(5), which reads as follows :
“(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.”
17.The said Article came to be interpreted by the Supreme Court in Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi, reported in (2010) 8 SCC 49 and in paragraph 83, it was observed as follows:
“83.Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially or educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the article……”
18.Very recently, the Supreme Court in Indian Medical Association v. Union of India reported in (2011) 7 SCC 179 held that reservation excluding the creamy layer can be brought within the meaning of Article 15(5) as Article 15(5) does not offend the basic structure of the constitutional policy. In paragraphs 86 and 87, the Supreme Court had observed as follows :
“86.With respect to minority educational institutions, the imposition of reservations or the imposition of the duty to select non-minorities beyond a sprinkling would be an encroachment of freedom guaranteed by clause (1) of Article 30. With respect to non-minority unaided institutions, imposition of reservations was deemed to be an unreasonable restriction on the freedom to engage in the occupation of education pursuant to sub-clause (g) of clause (1) of Article 19. Inasmuch as clause (5) of Article 15 is now part of the Constitution, reservations by the State for Socially and Educationally Backward Classes without the creamy layer, and for the Scheduled Castes and the Scheduled Tribes are now constitutionally permissible categories of State imposition on non-minority educational institutions.
87.The status of constitutional permissibility removes the basis for finding reservations to be an unreasonable restriction in the freedom to select students only on the basis of merit with respect to all the seats in a non-minority unaided educational institution. Consequently, the unaided non-minority educational institutions would have to comply with the State mandated reservations, selecting students within the specified reservation categories on the basis of inter se merit.” (Emphasis added)
19.Before the introduction of the said provision, the law on the field was held by the decision of the Supreme Court in P.A. Inamdar v. State of Maharashtra reported in (2005) 6 SCC 537 and in paragraph 132, the Supreme Court had observed as follows :
“132.Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution……”
20.In the State of Tamil Nadu, the only law providing for reservation for backward classes, scheduled caste and scheduled tribes in educational institutions and appointments were governed by the Tamil Nadu Act 45 of 1994. Under the said Act, Section 4 provides for reservation of seats in educational institutions both for backward classes, MBC, SC and STs. The term “educational institution” is defined under Section 3(b), which reads as follows ;
(b)”educational institution” means,-
(i)any college or other educational institution, maintained by the State, or receiving aid out of the State funds, or affiliated to any university, established by law including an university, college and a constitutent college; or
(ii)any institute or training centre recognised or approved by the Government, with the object of preparing, training or guiding its students for any certificate, degree or diploma or other academic distinctions granted or conferred by any university, or authority established or approved in this behalf by the Government;”
(Emphasis added)
21.Even after the Tamil Nadu Act 45 of 1994, which reserved seats only in educational institutions maintained by the State or institutions receiving aid out of State funds, there is no reservation provided for the unaided educational institutions, whether minority or non minority. Subsequent to the introduction of Article 15(5) also, no special provision of law has been made by the State in respect of aided or unaided institutions.
22.The Supreme Court in the Society for Unaided Private Schools of Rajasthan’s case did not uphold the reservation under Section 12(1)(c) based upon Article 15(5) since reservation not only included the children belonging to disadvantaged group, but also belonging to weaker sections. The weaker section was defined as the child whose parents, or guardians, annual income is less than Rs.2 lakhs. If that was the intention of the State that the child whose parent’s or guardian’s annual income is less than Rs.2 lakhs, than it is unthinkable for the petitioner, whose family income is more than Rs.30 lakhs, to contend that without any ceiling limit, they should be admitted under the category of disadvantaged group.
23.The concept of creamy layer was evolved by the Supreme Court vide judgment in Indra Sawhney v. Union of India reported in 1992 Supp (3) SCC 217. The Supreme Court while answering question No.3(d) regarding creamy layer held in paragraphs 790 to 793 as follows :
(d) Means-test and creamy layer:
790. Means-test in this discussion signifies imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as the creamy layer argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class as forward as any other forward class member and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by no means backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree17 almost every decision has accepted the validity of this submission.
791.On the other hand, the learned counsel for the States of Bihar, Tamil Nadu, Kerala and other counsel for respondents strongly oppose any such distinction. It is submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is not permissible to apply the economic criteria once again and sub-divide a backward class into two sub-categories. Counsel for the State of Tamil Nadu submitted further that at one stage (in July 1979) the State of Tamil Nadu did indeed prescribe such an income limit but had to delete it in view of the practical difficulties encountered and also in view of the representations received. In this behalf, the learned counsel invited our attention to Chapter 7-H (pages 60 to 62) of the Ambashankar Commission (Tamil Nadu Second Backward Classes Commission) Report. According to the respondents the argument of creamy layer is but a mere ruse, a trick, to deprive the backward classes of the benefit of reservations. It is submitted that no member of backward class has come forward with this plea and that it ill becomes the members of forward classes to raise this point. Strong reliance is placed upon the observations of Chinnappa Reddy, J in Vasanth Kumar9 to the following effect: (SCC p. 763, para 72)
.. .. One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunate among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layer of society itself? Seats reserved for the backward classes are taken away by the top layers amongst them on the same principle of merit on which the unreserved seats are taken away by the top layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?
792.In our opinion, it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from the others. In a backward class under clause (4) of Article 16, if the connecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially (which in the context, necessarily means economically and, may also mean educationally) the connecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a compact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line how and where to draw the line? For, while drawing the line, it should be ensured that it does not result in taking away with one hand what is given by the other. The basis of exclusion should not merely be economic, unless, of course, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16(4)? Situation may, however, be different, if he rises so high economically as to become say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs 36,000 may not count for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire country or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society (social status) rises; he is no longer socially disadvantaged. His children get full opportunity to realise their potential. They are in no way handicapped in the race of life. His salary is also such that he is above want. It is but logical that in such a situation, his children are not given the benefit of reservation. For by giving them the benefit of reservation, other disadvantaged members of that backward class may be deprived of that benefit. It is then argued for the respondents that one swallow doesn’t make the summer, and that merely because a few members of a caste or class become socially advanced, the class/caste as such does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group backwardness and not individual backwardness. While we agree that clause (4) aims at group backwardness, we feel that exclusion of such socially advanced members will make the class a truly backward class and would more appropriately serve the purpose and object of clause (4). (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).
793.Keeping in mind all these considerations, we direct the Government of India to specify the basis of exclusion whether on the basis of income, extent of holding or otherwise of creamy layer. This shall be done as early as possible, but not exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes (covered by the expression backward class of citizens) for the purpose of Article 16(4). The impugned Office Memorandums dated August 13, 1990 and September 25, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the creamy layer in accordance with the criteria to be specified by the Government of India and not otherwise.” (Emphasis added)
24.But, when the Parliament by law had reserved 27% of seats for other backward communities by the Central Educational Institutions (Reservation in Admission) Act, 2006, it same came to be challenged before the Supreme Court. The Supreme Court in series of orders known as Ashoka Kumar Thakur case upheld the validity of the said provision. In Ashoka Kumar Thakur (8) v. Union of India reported in (2007) 4 SCC 361, the Supreme Court after referring to Article 15(5) held that the concept of creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It was a part of constitutional scheme. It held that even for reservation under Article 15(5), the creamy layer rule will have to be applied. In paragraphs 39 and 40, the Supreme Court had observed as follows :
“39.In Nair Service Society case3 it was noted as follows: (SCC pp. 27-28, paras 51-54)
51. Recently, a Constitution Bench of this Court in M. Nagaraj v. Union of India2 has reaffirmed the importance of the creamy layer principle in the scheme of equality under the Constitution. This Court held that the creamy layer principle was one of the important limits on State power under the equality clause enshrined under Articles 14 and 16 and any violation or dilution of the same would render the State action invalid. More precisely this Court held: (SCC p. 272, para 110)
110. As stated above, the boundaries of the width of the power, namely, the ceiling limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.
52. This Court reiterated the limit on State power imposed by the creamy layer rule and the invalidity of any State action in violation of the same by concluding as follows: (M. Nagaraj case2, SCC p. 278, paras 122-23)
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the extent of reservation. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
53. This Court rationalised the creamy layer rule as a necessary bargain between the competing ends of caste based reservations and the principle of secularism. The Court opined: (M. Nagaraj case2, SCC pp. 277-78, para 120)
In Indra Sawhney1 this Court has, therefore, accepted caste as a determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer.
54. This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the constitutional scheme.
(emphasis supplied)
40.It, therefore, needs no reiteration that the creamy layer rule is a necessary bargain between the competing ends of caste based reservations and the principle of secularism. It is a part of constitutional scheme. Therefore these cases have to be examined in detail as to whether the stand of the Union of India that creamy layer rule is applicable to only Article 16(4) and not Article 15(5) is based on any sound foundation. That is more so because the lists relatable to Article 16(4) form the foundational base for Article 15(5).”
25.The Supreme Court subsequently in Avinash Singh Bagri v. Registrar, IIT Delhi reported in (2009) 8 SCC 220 held that the concept of creamy layer will not apply to reservation meant for scheduled castes and schedule tribes as they are separate classes by themselves. In paragraph 43, it was observed as follows :
“43.It is not in dispute that SCs and STs are a separate class by themselves and the creamy layer principle is not applicable to them. Article 46 of the Constitution of India enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice and all forms of exploitation…….”
26.The fact that the State of Tamil Nadu had not identified the creamy layer within the social economical backward classes is not a consolation for the petitioner to contend that notwithstanding the identification, they should be considered without any ceiling limit cannot be countenanced by this court. As the intention of the Act was delineated and the provisions of Section 12(1)(c) being upheld within the touchstone of Article 19(6), the contention raised by the petitioner to the contrary cannot be accepted. If it is accepted, it will do violence to the object of the RCE Act and the quota meant for the children belonging to the disadvantaged group and weaker sections will be cornered by persons claiming relief under the category of social and economical backward classes without the exclusion of creamy layers. The fact that weaker section was defined by the State as the annual income of parents or guardians is less than Rs.2 lakhs, in the absence of the State prescribing any creamy layer under the list of social economical backward classes, the same income ceiling should also apply to SEBC categories. Of course, such an income limit cannot be prescribed for SC and ST as noted already by the judgment of the Supreme Court. It is left to the State to specify the creamy layer under which certain members belonging to SEBC categories will be excluded from getting the benefit provided for the said class. Therefore, this court is not willing to accept the stand of the petitioner that even without any income ceiling, his child should be considered as the class belonging to disadvantaged group and should get the right of admission under 25% quota reserved for disadvantaged group and weaker sections. Hence the second contention must also fail.
27.In view of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
11.07.2012
Index : Yes
Internet : Yes
vvk
To
1.Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
(affiliated to CBSE)
2.The Senior Principal,
Bharatiya Vidya Bhavan’s
Rajaji Vidyashram,
Bhavani Campus,
6,Kilpauk Garden Road,
Kilpauk, Chennai-600 010.
K.CHANDRU, J.
vvk
ORDER IN
W.P.No.13330 of 2012
11.07.2012
RTE is constitutional says Supreme Court – big win for adhoc discrimination
UPDATE: Added links and a clarification
The Supreme Court in a 2-1 judgment today held that the Right to Education Act specifically the parts pertaining to govt mandated quotas in private unaided schools were valid. It also exempted minority institutions from this act citing Article 30(1). I will review the judgments in the next post as I think there are several flaws in it.
In a nutshell, the RTE consists of
- A long set of rules for schools to adhere to ; from land to building rules, to student records – all under inspector raj
- A 25% quota in private schools – the most contentious clause. This basically takes away 25% of school capacity and hands it over to the adhoc platforms of social justice. Read on.
- This 25% quota is only for class 1 intake. So if you see a poor kid who is older – RTE has nothing for him in private schools. This is another adhocism that can be easily extended to all classes. I noticed this was heavily argued by the govt in court as a ‘reasonable restriction’ under 19(6).
The focus of this post is to explain what the RTE is really about – the media isnt telling you the truth. Sample this ill informed FAQ from NDTV
What does this mean for schools across the country?
Right to Education Act, 2009, mandates 25 per cent free seats to the poor in government aided and private unaided schools uniformly across the country. However this will not be applicable to private minority institutions that get no aid from the government. Government schools will have no quota. These schools have to admit all.
Schools will have to implement the 25% reservation at the entry level of the school. States will have to bear the cost of this.How will the poor students be selected?
Poor students from neighbourhood areas have to be admitted, based on a lottery system.Source : NDTV
Before I break it down, I’d like to introduce two new terms.
Disadvantaged vs Weak
These are critical for you to understand how this system is going to work.
- Disadvantaged section and
- Weak section.
Cut to the RTE bill which specifically describes these terms (emp mine)
(d) “child belonging to disadvantaged group” means a child belonging tothe scheduled caste, the scheduled tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;
(e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;
..
So suddenly its not just about the poor. Its a bit more than that, isnt it?. At the very least, the image painted by the media isnt the full picture. They are just showing you one section the ‘weaker’ and trying to sell the entire bill as a Right to Education for Poor. Sample these headlines :
SC upholds seats for poor under Right to Education – Yahoo! News …
Give disabled children a choice, amend RTE: NAC
SC upholds seats for poor under Right to Education Daily Pioneer
Poor school students’ quota: Supreme Court to deliver verdict on … Times of India
Schools taught to leave no poor child behind
Even on TV shows such as Times Now and NDTV, the anchors took care to present the package as a case of allowing a poor kid to enter the bastion of the rich. If you protest you are instantly slapped with an elitist tag in the spirit of reasoned debate. Reading the bill carefully we find that the disadvantaged category is nothing but the omnipresent standard caste based grouping.
You havent seen anything yet – see what the next clause one of the states Karnataka says in its draft rules (page 10).
(6) While causing admission under the 25% quota, preference shall be given to children from disadvantaged groups.
Thats right ! Not only is this bill not about the “economic” poor as the media portrays it to be but it actually states that can mean that preference can be given during implementation to the caste based grouping over the poverty stricken grouping.
Reason for strikethrough: Thanks to Easwar (see comments) from pointing out that the RTE Act as notified does not contain this clause. I had mentioned on Twitter to some folks that it did. The original blog post did not have any links and implied that the notified bill itself had that clause. The overall point is there exist two distinct categories and it isnt just about the poor. But that is no excuse for sloppiness.
I actually went and read the rules formulated by various states – here is what Kerala is planning to do. 15% caste based 10% economic based.
(4) For the purpose of filling up the requisite 25% of seats in Class I, provided in clause (c) of sub section (1) of section 12, 15% of seats shall be reserved for children from disadvantaged groups and 10 % for children from weaker sections from the neighbourhood. For the selection of such students, the school shall publish the list of applicants and selection shall be by drawing of lots for each category. The list of selected students shall be displayed
I also read Karnataka, Mah, TN – each state is planning to follow similar paths.
Adhoc Benefits
I have been writing about this for years now. The impugned RTE act is a grand example of the Supreme Court vacating its constitutional space and allowing adhocism to creep into lawmaking. Even when fundamental rights are threatened as in this case. Here are the main touchpoints of arbitrariness.
- The 25% limit – why not 35% ?
- Class 1 intake – why not class 1 to 5
- Boarding school exemption – why not ? Isnt it better if poor lived with the rich for a while ?
- What is criteria for weaker section ? Is a quota envisaged ? Why not ?
- Obviously economic status changes for families – anomalies abound.
- No provision in constitution allowing quota on economic status (case pending in SC)
- All arguments are equally valid for caste quotas in private higher education.
- Brushes aside real problems arising due to wildly disparate classroom as being elitist.
The economic criteria is even more bizarre as folks on the edge frequently drop in and out of poverty. It is a massive moral hazard that a kid who gets free education for life from class 1 is preferred over a kid whose family entered debt and poverty in class 2 thus condemning him. The court should have applied strict scrutiny to these clauses, but that is in the next post.
When you get adhoc and arbitrary rules – you put great power into the hands of District Education Officer and a dozen other petty and mid level bureaucrats. The Act also envisages creating a NAC (thats right) and SAC (S = State). The pressure of keeping each one of the authorities in good humour and constantly fending off NGO and activists will place a tremendous administrative burden on schools. This is not to mention the dual burden of fee caps + loss due to RTE reimbursements.
Minority Exemption
This is a whole another post. Exemptions specifically to Christian unaided institutions puts most of your big name schools out of the RTE ambit totally. This benefit includes the clauses related to recognition as well as the quota. Linguistic minority institutes are a grotesque byproduct of social overengineering and are a whole another story. Both these groups arent scrutinized enough to see if they fit the description of “preservation of distinct language, script, and culture”. As of now, it is only Hindu schools that are burdened with this wide ranging law. This is an unacceptable state of affairs in a secular country.
UPDATE
Added links.
Losing Australia courtesy the media
Watching TV yesterday.
Mr Arnab as usual was leaned forward 28.6 degrees – his head perilously close to banging the camera. They were running tapes of Mr Ranjodh Singhs body coming back home in a coffin after being stabbed and set alight in Australia. For days the media had been gone to town on the Australians over this racist incident. (“Aus couple arrested for murder“, “Indians should not go to study in Australia“, “Aus rule out race again“, “Ku Klux Klan ad in India”, “Indian stabbed in Lung“, “No to Australia, “India warns against Australia trips” and on and on).
The Rs 65,000 Crore Rupee bag on the table – that Indians have been arrested for killing Mr Ranjodh Singh was completely brushed aside.
Here is PTI News Wire.
The body of 25-year-old Ranjodh Singh, a victim of racial violence against Indians in Australia, was cremated at his village in the district today.
This came down the wire on Jan 29, so the media was fully aware by then that this was an Indian-on-Indian job. The media does not even have the fig leaf of hysteria.
Minister accompanies family members to receive body
It is also startling that Ms Kaur (the Minister of State for External Affairs) accompanied the family members of Mr Ranjodh Singh to the airport to receive the body. Do they do this for all Indian nationals killed ?
Ms. Kaur, who accompanied family members of Ranjodh Singh to the airport here to receive the body, termed the attacks on Indians unfortunate. “The Indian government will do whatever is required,” she told journalists. But after it emerged that all the accused in the Ranjodh Singh case were Indians, the External Affairs Ministry put out a release in which Ms. Kaur was quoted as advising all prospective students to Australia to “carefully apprise themselves of the ground realities including suitability of the institution in question, costs involved and consular procedures.”
Source : Hindu
A question of context
On this occasion, the Union Minister of State for External Affairs Preneet Kaur on Friday reiterated the government’s advice to students going abroad to exercise due diligence. In fact, that is The Hindu’s sandpaper smoothing out her statement. She actually said this :
“In a manner of speaking this has been addressed as the advisory which we have put out to the Indians is to be careful and not to go for the moment to Australia for further studies,” said Kaur.
Source : Times Now
Why maam ? Because other Indians will kill you !
It is all about the occasion. An official statement placing Australia and its people in a bad light while receiving the body of an Indian killed by other Indians is beyond just stupid.
Answer Mr Peter Verghese –
“The Indian media have all but ignored a murder allegedly committed by three of the country’s own citizens, in marked contrast to the hysterical coverage of allegedly racist attacks on Indian nationals in Australia.” And in New Delhi, Australia’s high commissioner Peter Varghese
Source : India Today
India Today instead of apologizing has a brazen headline “Australia plays up killings by Indians“. Damn right – they are going to play it up. You should apologize for calling them racist over this Indian-on-Indian crime.
The media owes an exceptional apology to the Australians on this incident. Instead they should focus on the attempted rape of a 9-year old Russian girl in Goa.
——
Tailpiece :
Here is what the social elite think of Australia.
As Rohinton Mistry would say …’Such a long journey’! Even if the two cities, Sydney and Melbourne, are divided by just an hour and a half of flying time, they are worlds apart! Melbourne is more celebral and snob. Sydney, sexy and frisky. Take your pick. I enjoy both, so I refuse to take sides. But to quote a die -hard Melbourne lover, who shall go nameless, “Sydney is like a beautiful woman, a seductress, who cannot possibly hold anybody’s interest once her looks fade!” Oh dear, oh dear. Cutting edge comparison? Or just cutting?
I have been in and around Melbourne for the past three days. The reason you didn’t find me here was because of a techno hiccup – no internet access! I’ll be leaving Amazing Australia and Marvellous Melbourne a few hours from now. But somehow, I know in my heart it is a temporary goodbye. Please note, nobody pays me to say any of this! Put simply, Australia remains one of my top destinations. I have never had anything but the best time here. I find the people disarmingly casual and appealingly unfussy about everything they enjoy in such abundance.
Source : Blog
Maybe my cynicism is getting to me, but I think there is an elite* conspiracy to prevent Indian cabbies and waiters from crowding their vacation spots.
* Elite = defined as winners of the socialist sweepstakes
RTE Bill links
Here are some links about the RTE (Right to Education Bill)
http://www.schoolchoice.in/scnc2009/
I read some of the PPT slides on the site. Quick impressions :
1. There is widespread acceptance that proper utilization of the 25% quota is the key
2. The slides by Sam Carlson focused on the implementation and monitoring the utlization of the 25% quota
3. One slide says that the 25% quota can be be scaled up so “entire disadvantaged” communities benefit
4. Everyone skimmed over the all important fact that Christian run schools cannot be brought under this regime
There is some good material on those two sites.
We will watch this bill closely as the rules are worked out.
Reality Check India 
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