Just want to document two huge cases in India’s education sector that slipped by un-noticed. Will get around to commenting on this in the next few days.
Case 1 : May 16 2015 Bombay HC says no TET required for minority schools ( but non-minority need to insist on TET clearance for new teacher posts )
The teachers eligibility test (TET) is no longer mandatory for minority schools. The Bombay High Court’s Aurangabad bench has decried that minority schools in Maharashtra are now free to follow their own selection processes for teachers’ appointment.
While hearing the case of a local minority school teacher’s appointment being challenged by the state authorities for not having a TET score, the court ruled that the government cannot interfere with the minority institutions and their admission process. “The TET for teachers’ appointment is a methodology accepted by the government, but it’s not a qualification. It’s rather a selection process from the given lot, which is why minority institutions aren’t expected to follow the mandate,” the court stated.
Source : Pune Mirror
Case 2 : May 16 2015 Karnataka High Court rules minority-run schools can detain poor students
BENGALURU: In an interesting case, the Karnataka high court dismissed the petition filed by a school boy who invoked Right To Education (RTE) Act to get promotion to next class.
Dismissing the petition filed by Master Shashikanth (name changed), Justice H G Ramesh noted that the school in question – The Frank Anthony Public School, Halasuru – is a private, unaided, minority educational institution and as such the provisions of RTE are not applicable.
Earlier, the government advocate brought to the notice of the court the judgement rendered by the Apex court ..
Source : Times of India
To be continued..
In both cases the issues are involving the nature of the minority-run schools. They are participating in general education and freely admit Hindus as both teachers and students.
Request : If anyone else is tracking issues such as this, please leave a note in the comments section. We need to connect.
Today the Chairman of Board of Directors of IIT Bombay Mr Anik Kakodkar was in the news denouncing the MHRD Smirti Irani for running a casual selection processor for key posts. I guess this is as good as time as any to blog about something I’ve been tweeting. The most curious JEE-Main and JEE-Advanced examination setup.
Short story : The two exams are unconstitutional. Scheme was not just meekly accepted but designed on demand by our topmost academics without a whimper of protest.
Recap of JEE-Advanced
The Congress led UPA government cancelled the old method of selecting students for admissions into IIT via an open exam called the IITJEE. Instead they broke it off into two stages called JEE-Main and JEE-Advanced. JEE-Main uses a magic formula that combines scores obtained in an competitive exam normalized across various boards. JEE main itself is problematic (I have documented it here and I believe a case is still pending in the Supreme Court). The JEE-Main is however not the point of this post. The unconstitutional culprit is the second exam – JEE-Advanced.
To sit for the JEE-Advanced a student had to be in the top 150,000 ranks in JEE-Main. This also seems okay until you look at how the all important issue of reservation is handled. This is where the JEE-Advanced steps into ultra vires land…
The two-stage quota system
The prestigious IITs, like all central colleges in India have the following quota system – 50.5% Open ; 27% OBC (Non creamy) ; 15% SC; 7.5% ST. Even prior to the JEE-Main/Advanced scheme this was the ratio but as a result of a single stage exam called the IIT-JEE. In the JEE-Advanced we have the same quota ratio but it is a two stage process. So you might wonder why is a single stage process okay and why is @realitycheckind hitting the unconstitutional roof over a two stage process? In this small nuance lies the key – allow me explain the monumental difference between the two processes.
Lets back up a bit. The 2015 JEE-Main results were announced recently and the top 150,000 kids were selected to be eligible to appear for the JEE-Advanced.
CATEGORY Number of “Top” candidates
There is an internal 3% quota for disabled (why on gods green earth? but that is another post altogether)
Source : IITB JEE-Advanced website
Therefore the qualifying POOL itself for the JEE-Advanced which is the actual selection tool has been SHAPED as per the quota percentage. In other words the 150,000 qualifiers themselves are in the ratio of Gen 50.5%, OBC 27%, SC 15%, ST 7.5%. Based on this the cut offs are Gen 105, OBC 70, SC 50, ST 44. They then sit for the JEE-Advanced and fight a 15:1 race, which will again use the quota ratio for the end allocation.
There are two ways of participation.
- the natural participation principle – the entire population participates in an exam in the natural ratio as exists in the wild but the final resource is split by quota in an inter-se merit order
- the shaped participation – a preliminary selection stage SHAPES participation itself into a communal quota ratio and the final resource is split by quota in inter-se merit order
This might confound you but let me explain it a little more. You need to ‘get’ the following point.
The main feature in India communal quota system is that the “Open Category” is something that anyone can claim including those communities that are in the OBC, SC, or ST lists.
If you look at the eligibility lists for JEE-Advanced there are 75,000 General participants and 40,000 OBC participants – but what this does not capture is that the 75,000 General participants also includes a healthy ratio of OBCs who were in the common merit list in addition to the 40,000 in the OBC merit list. The unconstitutionality of the JEE-Advanced is rooted in this staged quota.
- In a single stage quota the participation happens first before the communal rules.
- In a multi stage quota the communal rules kick in and THEN the participation happens.
This is the right way to look at it because the JEE-Advanced Exam is the real deal and the earlier JEE-Main is just a selection tool to cap participation along communal ratio. It is like being prevented to even apply for a post because there are already X applicants from your category leave aside whether you may actually qualify!!
The scheme is not just constitutionally suspect but also academically atrocious. If the JEE-Advanced is the real selection tool – why prevent a General category kid who scored 69 marks from EVEN WRITING the dang exam while others can write with scores as low as (-18). This does not compromise the quota system in any way, so its not like social justice is being killed. Is this the kind of academic excellence that Mr Kakodakar and Mr Sibal and Mr Tharoor presided over?
Those who follow me on twitter on @realitycheckind will recall the parallel of two tier JEE-Advanced to the Three Tier Exams used by UPPSC which got into trouble at the Allahabad High Court.
Seen in this light, the attacks on Smriti Irani over her method of selecting some posts seem a tad .. staged. Two staged.
Prev posts on the behaviour of IIT Adademics under UPA :
1. Congress HRD and IIT Council invent a horrendous new exam https://realitycheck.wordpress.com/2012/06/27/hrd-and-iit-council-invent-a-horrendous-new-exam/
2. Crazy normalization formula invented by experts baffles students https://realitycheck.wordpress.com/2013/07/09/crazy-normalization-formula-invented-by-experts-baffles-students/
A PIL has been filed in the Allahabad High Court seeking to declare the NCMEI Act 2004 unconstitutional.
This promises to go all the way to the Supreme Court and turn into a landmark case and I hope it does. I have documented the origins and activities of the NCMEI in my previous post (Bulwarks against redefining minorities in Indias education sector]. Please go through it. It is the duty of social media to ensure public debate of this case, because these laws are key components of the Idea of India and will be suppressed.
I would frame the following questions:
- NCMEI Act 2004 sets up a body with powers of a civil court – but Hindus are explicitly barred from becoming either the chairperson or members of this court.
Sec 4 (1) (a)
4. Qualifications for appointment as Chairperson or other Member.—(1) A person shall not be qualified for appointment as the Chairperson unless he,—(a) is a member of a minority community; and(b) has been a Judge of a High Court
- NCMEI deals not with issues of personal and religious trusts that concern only the internal affairs of Christians and Muslims and other 4 notified minorities. The educational institutes are of a public nature because the minorities run secular schools that freely admit Hindu students and recruit Hindu teachers.
- Even for purely religious matters like Madrassas the NCMEI falls afoul of invidious discrimination against Hindus because it treats the minorities as a undifferentiated group. A Christian chairperson for example is allowed to examine minority status of a Muslim institution but the assumption is that a Hindu cannot.
- This is an exclusive tribunal that prevents one class of education providers to approach it. For instance, schools run by Hindus cannot approach the NCMEI if their NOC certificate is delayed or denied. This is even if you grant that the Hindu schools are willing to be heard by a non-Hindu panel of judges.
Once again, I appeal to social media to educate yourself and write about this case. Whatever side you are on !!
Here is a simple proposal. Read this and tell me if you think this is reasonable.
Any person born in any community can run schools under the same set of laws. If a minority person or trust wants to run schools or colleges under a separate law which allows full autonomy – then the minority should fulfill the following criteria :
- The religion must be less than 50% of the total population of the state
- Pro-Rata Rule #1 : The number of schools and colleges run by the minority religion (say Christian) must be proportionally lesser than those run by Hindus
- Pro-Rata Rule #2 : The number of graduates from the minority religion must be proportionally lesser than graduates of Hindus.
- Important : IF a minority religion does not fulfil the above three criteria – it does not mean there is an atrocity committed and they are prevented from operating educational institutions. It just means they can run schools and colleges under the uniform law that applies to Hindus.
- Illustration 1 : Say there are 100 colleges in Kerala. If Christians control 65 of them and they are 25% of the population and Hindus control 15 of them and they are 55% – then the ratios are +40 and -40 ; so the difference is +80. Therefore new colleges established by Christians would no longer qualify as minorities as +80 is the gap. Once again, it does not mean they are prohibited from the sector, they can run under same rules as new Hindu colleges.
- Illustration 2 : Say the Hindus controlled 65 (55%) and Christians controlled 35 (25%) – then the ratios are +10 and +10. There is no difference between the two hence the rule that states proportionally lesser shall apply and perhaps one new college can be allowed under the minority law.
- The basic idea is to inject a modicum of rationality into these special “Idea of India” groups that openly assert higher rights. This kind of demographic equivalence formula is absolutely critical to avoid outright discrimination and privilege for such an important activity as education.
So. What do you think of this formula ?
Say a state in India were to propose this formula for determination of minority status, what do you think will happen ?
Read on for an account of what happened in the 2000’s completely away from media and thinktank attention.
Saga of the Kerala Professional Colleges Act 2006
This story is about the journey of a piece of legislation in Kerala juxtaposed against key judicial developments of the last fifteen years. I hope to cover circumstances of its noble birth to its execution at the altar of Idea of India.
Kerala which has always had a strong private provisioning of schools had lagged behind in capacity of professional colleges. This was due to the emphasis on government colleges as a policy. During the late 90’s Tamilnadu and Karnataka witnessed a spurt in new private engineering and medical colleges. Students from Kerala who had very little options at home flooded these newly created TN and KA professional colleges.
The E.K Nayanar led CPI-M which was in power from 1996 to 2001 was predictably suspicious of private colleges. This was due to (legitimate) concerns of profiteering but the state also did not have capacity to either build new colleges. While this was going on, the Congress govt swept into power in 2001 and A.K Antony became the Chief Minister. AK Antony during the campaign promised to solve the higher education crisis. The Congress’ plan was very simple – they would allow private colleges on a simple 50:50 share. Any one could setup any college if they would surrender 50 percent to the government which would be filled with students from a common merit list at the same tuition at govt colleges. Famously AK Antony said that under this scheme “2 private colleges will be equal to 1 new govt college”. He claimed to have had an unwritten understanding with the promoters regarding this deal. Our story is born here. An earnest effort to address capacity shortage while providing enough capacity for merit students.
Come 2001, the Congress was swept into power in Kerala and promptly a number of colleges opened up to everyones delight. Many applied for opening a medical college but only four were eventually granted by the Medical Council of India namely Pushpagiri Medical College, Thiruvalla; Malankara Syrian Orthodox Medical College, Kolenchery; Amrita Medical College, Kochi; and Somerwell Memorial CSI Medical College, Karakkonam. The capacity in engineering shot up too.
No sooner had these been set up than the Supreme Court handed down a judgment in TMA Pai Society (2002) case (see previous post [History of the 93rd Constitution Amendment) that prohibited imposition of quotas or erosion of autonomy in admissions in private colleges. The Kerala colleges who established under the Antony formula immediately grabbed the opportunity and obtained a stay order from the Kerala High Court. The outcome of this was that the fees shot up through the roof – what was 14K per/year would be 4-8 Lakhs/year. Over the next three years there were tension and protests in Kerala. Meanwhile the TMA Pai Foundation case meandered through the Supreme Court until some questions attained finality in 2005 in the PA Inamdar case (see previous blog). If you recall, PA Inamdar affirmed two things (1) autonomy of unaided colleges (2) parity of minority and non-minority in establishment of colleges. As expected all the colleges setup under the Antony govt just walked out of the ‘verbal understanding’.
NDA to UPA at the Centre
While all this was going on, the Congress under the leadership of Sonia Gandhi pulled off an upset victory in 2004. As I explained in the previous post, away from the media glare, the challenges before the Congress were two fold. The urgency was to :
- Overturn TMA Pai and 2 related judgments and restore govt ability to impose quotas in private colleges.
- Overturn TMA Pai and restore the preferential rights to minorities
So the Congress under Sonia Gandhi changed the constitution of India and inserted a new Article 15(5) which achieved both goals. There was still a small matter that needed to be taken care of.
Granted that the 93rd Amendment , which would eventually be used 5 years later in the Right to Education Act to subject Hindu run schools to loss of autonomy and onerous cross subsidies, added an explicit exemption to minorities in Article 15(5). But states could still “redefine” who a minority was. One way to address this was for the Congress to pass a central statute that would pre-empt all state laws related to minority identification and all other issues related to running an institution. The NCMEI Act was thus born in these circumstances.
The NCMEI – a quasi judicial body
The Congress government wasted no time to setup a new statutory body called the National Commission for Minority Educational Institutions (NCMEI). They swept into power in May 2004, by November 2004 they had already passed an ordinance establishing this new body. You can read more about the NCMEI here. The key points for the purposes of this article are :
- The NCMEI has wide ranging powers including power to grant minority status to any institution (Sec 12B) ; and to grant affiliation to any central university; and to issue No Objection Certificates and other difficulties faced by minorities.
- The commission was to have 1 Chairperson and 2 Members – who cannot be Hindus. (I suppose I could use the euphemism non-minorities ) Sec 4-1 and 4-2
- This body has the power of a civil court and can summon and investigate on petition or suo-moto any issue.
A sectarian judicial tribunal ?
Now it is important to stop here and ponder the implications of what the UPA has done. They have setup a judicial tribunal which by law can only have non-Hindu judges. This may just pass the smell test IF the institutions are only functioning purely in the minority domain. However, minority schools and colleges freely admit Hindu students as well as other category minorities. They also recruit Hindu faculty and support staff – in many cases with government funds from the public purse !!
These institutions which operate in public domain and are thus directly affected with the public interest are able to access an EXCLUSIVE judicial tribunal consisting only of minority judges. A Hindu run school which is also denied a No-Objection-Certificate or University affiliation cannot approach this “court” let alone get heard by a non sectarian tribunal. On Twitter, there are a lot of folks who have a wrong understanding of the issues. They get riled up with Madrassas – but we have to remember that Madrassas and Wakf deal with specific Muslim interests. A New Life School Chain deals with the public interest. This may seem counter intuitive but needs to be reiterated.
At the Central level the Congress thus secured two major victories. They passed the 93rd Amendment and also setup the statutory body (NCMEI) that would check against any ‘redefinition’ of a minority. These two bulwarks remain to this day.
2006 – CON to CPI-M in Kerala
Cut to 2006 – the CPI-M came to power in Kerala and Achutanandan was sworn in as the Chief Minister. One of the first things they did was to pass a law in the Kerala Assembly called “Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee,Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006″.
Recall that by now TMA Pai was killed by the 93rd Amendment. So in order to deal with the explicit exemption for minorities in Art 15(5) , the Achuthnandan government laid down the rules for who would be treated a minority institution. The rules are what I mentioned at the beginning of this post.
I spent some time reading the rules and I was surprised at how well drafted the rule was. Essentially it stipulates a demographic equivalence formula. You could only claim minority benefits – if you were pro-rate behind the majority community in education representation. There is a definite “zing” and appeal to this definition. Recall once again : it is not just the majority that benefits but also the poorer segment of minorities can benefit from this capacity. It appears that even in Kerala a significant chunk of poorer Christians supported this move.
This move by CPI(M) would effectively cut off the minority route for all Christian and Muslim (less sure) colleges due to their existing domination in that space. At this time 6 of 9 Medical colleges and 36 of 48 engineering colleges were under the control of minorities. After this move by CPI(M) , the clergy were livid and warned of massive protests, some even recalled the days of the first EMS Namboodiripad Govt which was dismissed by Mr Nehru. Naturally there were counter protests.
The Act was challenged in the Kerala High Court by two medical colleges. The case was decided in Jan 2007 in a little known but important case called “Pushpagiri Medical Society vs State of Kerala”
- The reasoning is similar to most other cases of its genre. There are no first principles or rock solid judicial tests. Just wandering in various directions.
- The formula for determining minorities (Sec 10(8) of the Act) – which in my view was a very reasonable one – was struck down on debatable grounds. The reasoning was arithmetic 1) if next year the proportion changes what will happen to minorities ? But the same reasoning could also be applied to outright definition of numerical minorities. If tomorrow Hindus become 49% in KL then does it mean all their institutes are now minority ? What if the following year they become 51% again?
- In any case, they recognized that NCMEI Act now controls the field and if they declare a specific insitute as minority – that was the final word.
- As far as Hindus were concerned the Act applied but some parts were struck down related to fees and exams.
The judgment was never appealed.
This is how the Kerala Act died. No one, not even the Delhi based communists, who were UPA allies attended its funeral.
— THE END —
In short time, the NCMEI granted Pushapgiri colleges (Christian management) minority status and chided the government for delaying it.
“We have no hesitation in coming to the conclusion that the pendency of the petitioner’s application for grant of minority status certificate for such a disproportionately long period clearly indicates the Government’s disinclination to grant minority status certificate to the petitioner.”
Over much of UPA-1 and UPA-2 the NCMEI went on to grant thousands of minority certificates. Simultaneously the Congress government aided by civil society and international think tanks pushed for more and more onerous rules for non-minority participation in education. (UPA’s free for all distribution of minority institutions)
Lately I have been hearing proposals for similar equivalence based tweaking of minority definitions. Hope this post highlights the twin bulwarks of 93rd Amendment and the NCMEI that can foil such attempts at rationalizing the outright communal regime.
Early 2005 was a time of joyous celebration in the Congress Party. They had just upset the BJP led National Democratic Alliance at the polls. Their allies DMK and the Communists had pulled off spectacular wins in their states. Sonia Gandhi was in firm control of the Congress party and none of the smaller allies had any big ticket ambitions. They could be placated by a few sectarian concessions, relaxed prosecution, or providing them corruption opportunities. It seemed like the dark days of the Hindutva agenda under Vajyapee were truly over.
However, under the covers, one critical problem loomed that needed urgent fixing. Strategic thinkers of the establishment realized that the principal canon of the “Idea of India” was damaged beyond recognition under BJPs rule. That of the state to run outright communal preferences in the domain of education.
Judicial blows to the Idea of India
The Indian state has grappled unsuccessfully with the issue of education ever since its inception. The question that most concerned everyone during the 90’s was how to regulate the rapidly proliferating private education space. After a series of over eager judgments in Mohini Jain and Unnikrishnan it became abundantly clear that the government alone was not in a position to fulfil the education needs of the people and running the private sector into the ground (such as in Mohini Jain) would backfire. Faced with this reality various state governments resorted to biting off a part of the private capacity and using that to advance its social objectives. Almost immediately this ran into the minority issue as well as issues related to fees and cross subsidies. A number of these questions accumulated and the need to settle this once and for all was felt by everyone. The opportunity presented itself in a case called TMA Pai Society vs Union of India.
Eleven judges of the Supreme Court, the second largest bench after the 1973 Kesavanada Bharati’ thirteen judges would hear the education and minority issues and settle the issues once and for all. The hope was this large bench would not be encumbered by the earlier nine judge bench in St Xaviers v Gujarat. I wont go into the details of TMA Pai but the 11-judge bench delivered its verdict in 2002. The split was roughly 7-4 on a number of questions; but even the 4 dissenting judges agreed on a number of the framed questions. The most shocking part of the judgment was the following.
Private education institutes established by minorities and non-minorities were held to be on equal footing. Hindus could enjoy the exact same rights under Sec 19-1(g) that the minorities did under Art 29/30.
This may seem like a no-brainer decision to us or to a western liberal observer but this kind of parity is anathema to the Idea of India. The best evidence for this came recently when Fali Nariman spoke at the National Minorities Convention. Sample this :
The decision in TMA Pai was a un-mitigated disaster for the minorities. Let me tell you why. Article 30 (the right of minorities,religious and linguistic to establish and maintain education institutions of their choice) has now been placed by Court decision on a much lower pedestal than it was – or was intended to be. It has been equated only with a fundamental right guaranteed under Article 19(1)(g)– i.e. a mere right to an occupation (running an educational institution the Judges said is an “occupation” like any other)
Of course, It is not a question of lower or higher pedestal but that of parity with everyone else. Why would you not interpret that everyone is now elevated to Art 30 level protection ?
Post TMA Pai, there were a number of issues related to entrance exams, capitation, and such like that caused major confusion. Another constitution bench of 5 judges was setup under Islamic Academy vs Karnataka to clarify. They still left some vagueness in the questions related to admissions. Then a final bench of 7 judges was constituted for PA Inamdar v Maharashtra to further seal the issue. A lot of questions got answered – a lot did not. But here is what happened.
The essential parity the court accorded to minorities and Hindus in the field of education persisted. The concept of parity between Hindus and Minorities run educational institutions emerged unscathed after examination of large benches. First a 11 judge, then 5 judge, then 7 judge. The final word :
In the opinion of S.B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the Constitution is “certain additional protection” with the object of bringing the minorities on the same platform as that of non-minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language.
It is clear that as between minority and non-minority educational institutions, the distinction made by Article 30(1) in the fundamental rights conferred by Article 19(1)(g) has been termed by the majority as “special right” while in the opinion of S.B.Sinha, J, it is not a right but an “additional protection”. What difference it makes, we shall see a little later.
PA Inamdar v State of Maharashtra Aug 2005
The final word in PA Inamdar came in August 2005. It was now clear beyond doubt that the principle of parity to Hindus in education had just emerged unscathed from three big constitution benches. It was settled. It was final. It was going to be the way forward for India. I realize now that the ecosystem must have been inconsolable at this. How was the Sonia led Congress govt going to restore the minority preference over these epic judgments ?
The Congress govt just decided to, ahem.. simply change the Constitution of the great Republic of India.
The 104 Constitutional Amendment bill is born
After PA Inamdar came down in Aug 2005, minority preferences in unaided education had reached a judicial cul-de-sac. It really was game over. The Congress govt worked with great urgency to move a constitutional amendment bill that would obliterate the court judgments The idea was to
- allow the state to take (to an unspecified extent) from unaided educational institutions
- explicity exempt institutions run by minorities from it
- explicitly encode the exemption in Art 15(5) itself
The person selected by the party high command to pilot such an outrageously divisive bill was none other than Arjun Singh – the Congress HRD Minister. They quickly added a new section in the Constitution of India called Article 15(5) which read.
“(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.”.
The minority exemption was immediately opposed by the BJP. Unfortunately they did not make an intellectually honest case as to why this bill was wrong. Instead they sought to include backward among minorities in their institutions. Also remember this was 2005, there was no social media. The mainstream media had absolute control of the discourse and they might have simply decided to suppress all dissent and continued with their propaganda. Regardless, it does seem that BJP put up a fight – however nominal. This is what happened.
- Since 2005 was a massive victory for the Idea of India in total contrast to 2014 – the Congress could work the caste blocs within the NDA with targeted benefits
- The JDU backstabbed the NDA at the last minute leaving it stranded
- The BJP opposition was not very sustained or principled. In the end, the BJP voted for the bill and moved a separate amendment which extended Art 15(5) to minorities. That was predictably defeated
- You can see that pattern evolve in much of BJP’s support to invidious UPA legislation such as RTE
Impact on SC/ST
Since a large chunk of the top educational institutions are run in India by minorities – the bill predictably hurts the Dalits by shutting them off elite professional colleges. For example in Kerala minorities run 14 of 18 medical colleges. This is the clearest proof that the Congress party which claims to fight for Dalits will only do so when it does not come into conflict with Christians and to a lesser extent the Muslims. (Only because among minorities Christians run a much larger chunk of education than Muslims do). A forum of SC/ST parliamentarians raised this issue and a delegation appears to have met the Prime Minister. They finally seemed to have been assured by the Prime Minster Manmohan Singh that their concerns will be taken care of. Of course , we know now that he really wasnt in control of anything. This fizzled out and Dalits still dont have quotas in aided or unaided minority institutions. Hope the BJP leaders involved in those days speak up now in detail. Details are scant in the media.
In the end, on Dec 22 2005 the 93rd Amendment was passed. The Constitution of India was changed. Years of effort of huge benches, dozens of lawyers, thousands of hours of arguments were obliterated. Minorities were once again restored to a preferred status when it came to the issue to education.
Validity of the bill
One of the reasons I wrote this article was to highlight the need to understand the 93rd amendment. A good summary of details can be found on this blog as well. Quite naturally this 93rd Amendment was challenged. While hearing the OBC quota case Ashok Kumar Thakur v Union of India. the court noted that they would not hear challenge to the 93rd amendment until the Centre passed a law that depended on it.
That opportunity to test the 93rd amendment against the “Basic Structure” came n 2010 in the form of the Right to Education Act. This was a law that exercised the 93rd amendment by imposing on private educational effort while exempting those schools run by people born as minorities. Remember that the quanta 25% is arbitrary – there is absolutely no protection upto 49.5%. Even that is crumbling. An earlier bench hearing a challenge to the RTE Act involving Rajasthan Private Schools did not go into the constitutional question. I can only guess because that was only a 3-judge bench. Eventually they did constitute a 5-judge bench to hear the RTE Case in 2014 involving a large number of petitioners under Pramati Educational and Cultural Society.
On May 9th 2014, a week before Narendra Modi led BJP swept into power on a massive mandate – the 93rd Amendment was held to be constitutional by a 5 – Judge bench in Pramati Educational & Cultural … vs Union Of India & Ors 6 May 2014 http://indiankanoon.org/doc/32468867/
While departing, the Idea of India ecosystem had managed to secure its crown jewel.
This is where we stand now.
Fallouts of the 93rd amendment.
Post the 93rd amendment, sectarianism in education has taken deep root. Minority colleges have flourished. Even aided minority colleges are exempt from quotas that are applicable to fully unaided Hindu run colleges. The trajectory of the education scene can be best illustrated by a Jan 2014 judgment in Madras High Court Federation of Catholic Faithful vs State of Tamilnadu Jan 2014
In the light of the above said judgment, even in respect of aided courses run by minority colleges, there cannot be any direction to follow the rule of communal reservation.
Next week we shall talk about another crucial case.
Indian social media is on fire with a large majority of people denouncing the #BeefBan in Maharashtra. Unfortunately the BJP seems to have gone incommunicado after the law was passed. I have been waiting for the actual text of the Maharashtra Animal Preservation Act 1976 Amendments before writing about it. I still cant find the text online, so here is my take on the issue based on piecing together news reports.
The Beef Ban law
The State of Maharashtra has always had prohibitions and restrictions on certain types of bovine meats. The law that was in effect from 1977 until now is called the Maharashtra Animal Preservation Act 1976 [ apa1976 PDF ]. This act had the following provisions.
- Total ban on slaughter of cows
- Regulated slaughter of so called scheduled (a list of) animals.
- Allowed slaughter of adult bulls and bullocks as along as each individual animal had a certificate from a govt official (competent authority)
- Allowed slaughter of adult female buffalo with certificate as above.
- Allowed slaughter of calves and adult male buffalo.
- It is important to remember that buffalo and cow are different species. They will not mate and produce offspring.
In 1995, the BJP Shiv Sena government amended the above schedule in the following way.
- Total ban on all cows, bulls, bullocks. In other words, entire cattle family.
- Total ban on buffalo calves male or female.
- Status quo on female adult buffalo (slaughter with individual certificate)
- Status quo on male adult buffalo (free slaughter)
- The definition of a ‘calf’ is not clear, but likely to be 3-4 years old inline with other states.
This bill was sent to the then president and subsequently got stuck. Before long the Congress swept into power for 15 years in Maharashtra and did not pursue this. In late 2014, the BJP defeated the 15 year old Congress government and came back to power. It had promised to take this up during its campaign. True to its word, the new BJP government under Chief Minister Devendra Fadnavis made the following modifications to the bill and sent it back to President Pranab Mukherjee for his stamp of approval.
- Increase the penalty from 6 months + Rs 1,000 fine to 5 years + Rs 10,000 fine.
- Made possession of slaughtered meat products a crime. This provision has created a lot of issues and we need to see the exact text to comment further. I would concede for now that this is problematic IF the penalties for simple possession are identical to those offences dealing with slaughter or wholesale trade.
So this is where we stand today. I had to explain this because you need to understand what exactly the new government did that is the subject of the media furore.
The legal position
Can a total ban on cow slaughter (females or males) withstand legal scrutiny? Short answer is yes, kind of sort of. The latest judgment that holds the field is called State Of Gujarat vs Mirzapur Moti Kureshi Kassab and Others 2005. This was a 7-judge bench constituted to settle the cow slaughter ban issue unconstrained by cow slaughter rulings earlier 5-judge benches. Mirzapur Moti was decided 6-1 with the majority opinion written by CJI RC Lahoti with a readable dissent by Justice A.K. Mathur. An outstanding summary of the legal position is written by Dr Ashok Dhamija on his blog (Tilakmarg).
Let me state at the outset that I am not a fan of the judicial principles underlying these cases starting from the so-called Qureshi-I (1958) to the latest Mirzapur Moti Kureshi Kassab (2005). The arguments have always been in the nature of couching Hindu reverence for the cow progeny in modern acceptable utilitarian terms. The best example of this is how in Mirzapur Moti the relentless crusader against cow slaughter, the late Rajiv Dixit impressed upon the Lahoti bench with all kinds of arguments from value of cowdung, bio methane fuels, how an old bullock still has 0.83 HP traction left compared to a young bullock who clocks in with 0.93 HP. An amusing anecdote is apparently they retrofitted one of the judicial officers car with a bio-methane rig to prove its effectiveness. These arguments swayed the court one way but it could have easily gone the other way too. Who is to say that the owner of the bullock should trade long term benefits of a Rs 1,00,000 over a spot payment of Rs 10,000 ? The arguments are more fundamental relating to the status of the cow. I suspect in the Nehruvian “Idea of India” framework Hindus should not directly state their reasons but approach the matter in a roundabout way by using modern but extremely tenuous “scientific” arguments. Therefore I am not going to spend any time on the legal position as it exists, but rather how it ought to be.
The mandate and the disconnect
Most opponents of the cow slaughter ban are beef traders, minorities, urban liberal Hindu, those on the economic right, centre right, and those who believe in libertarian values such as food choice. They insist Modi was voted in for “governance” and should abstain from these “sanghi inspired bans” which are a distraction. Here is the bad news for them – Modi’s massive win in 2014 was on the backs of his core supporters who are the Yogi Adityanaths and Sadhvis. A sizeable incremental vote came from ‘modern’ Hindus cutting across social boundaries who were perhaps aghast at the corruption of the previous regime. The large contingent of the economic right may be Modis allies in other areas but they are also a fickle minded group who have very few deeply held principles above their interests. For example, despite their high education and international exposure they are unable to even come up with a proper dissent to discriminatory laws like RTE, the various communal appropriations like minority only scholarships. However the Yogi’s and Sadhvis’ are clear and grounded in principles that rise above economic considerations. They want the cow slaughter ban which Modi himself promised a number of times during his campaign.
Now the disconnect in arguments can be best described by this real exchange between Rajeev Dixit and Sharad Pawar ( I paraphrase this from a Youtube video I watched a while back). You can easily imagine this to be a conversation between any Yogi or Sadhvi and a modernist Hindu.
Dixit : I heard you said – cows slaughter is okay because old cows arent useful ?
Pawar: Yes. If a cows stops giving milk, it is unproductive why not use it for meat.
Dixit : Gai hamara Maa hai. If your mother stops giving milk will you kill your mom ?
Pawar: ROFLSANGHI! What the hell. There is no use talking to you.
Dixit : Thanks – there is no use talking to you too.
End of short conversation.
The Yogis including the younger ones of this generation like Sadhvi Balika Saraswathi pictured above never talk in utilitarian language when it comes to cows. They say “Cow protection is our culture, connecting thread between all Hindus, Cow is our mother, etc etc”. Now they may give examples of benefits of keeping a cow and its progeny alive but that is only an icing on top of their core Hindu arguments. Even if a particular cow could be proven to be worthless they would still not agree to kill it because of the above reasons. The disconnect is that the liberal ecosystem expects to rephrase this sentiment indirectly in modern terms.
It is worth restating the position that is really driving the debate : We are against killing a cow because it is a cow and that is special for us.
They do have support for expressing this sentiment in law thanks to Article 48 in the constitution. The directive principles can guide law making – it has a wide language when it says.
48. Organisation of agriculture and animal husbandry.—The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
On one hand ‘modern and scientific’ ways can be interpreted as encouraging intensive factory farming, on the other ‘prohibition of slaughter’ rules it out.
Food choice, property rights clash against status of cow
The food choice argument is particularly strong. If I want to eat beef and I have a willing supply chain traceable all the way back to the dairy farmer – why should the state intervene? Does the owner of the cattle not have property rights over his cattle? In my view, the issue is different. It is not about what humans consume but about granting an elevated legal status to the cow family. Understandably this does not fit in with our understanding of western liberal democratic values. How can a majority community nominate one species, its favourite species, for special protection ? Does this not interfere with the minority communities freedom to not pay any such respect to that species – especially when they are accustomed to eating it? The counter question is ; In a democracy does the majority have the right to preserve its culture?
This is a hard problem and I would leave to to the likes of Pratap Bhanu Mehta to address it. I would say that eating an animal of your choice has never been a fundamental right anywhere. There are multiple types of protections offered to various endangered species, companion animals, young and immature animals, animals not raised for food purposes, and so forth. Granted that cows are not an endangered species, but that only means you have just agreed to the principle of restricting your food choice. As Salman Khan would argue with great effect. Why have a prohibition on eating an older Black Buck incapable of reproducing ? Arguably eliminating the older black buck stock, you make more scarce forest grazing land available to the younger more fertile herd. The elevated status of the cow is along similar but not identical arguments. One is elevated for conservation purposes another for cultural purposes.
It is but natural for Hinduism to come into conflict with Western tradition especially Christianity in the realm of animal issues. From the earliest days of Aristotle to the medieval times of Thomas Aquinas to the present day factory farming situation – the church both Protestant and Catholic – have traditionally denied any rights to animals. The trajectory has seen a minor shift post the enlightenment period. First by Bentham and recently by modern philosophers like Peter Singer. But the essential movement in the west is not abolition but about humane treatment with slaughter at the end. This is the origin of the “doctrine of necessity”. In this doctrine, the only necessary interactions between humans and animals have to be utilitarian like food or psychological benefits to humans such as companionship of dogs, cats, and horses. Unfortunately our Supreme Court and intelligentsia adopted this doctrine in banning the sport of Jallikattu and outlawed Cock Fighting. This is not to say one culture is superior to the other. One can easily imagine the amusement of a westerner when he sees a bunch of Hindu ladies whispering something into a Nandi bull statue that faces another statue of Shiva. Even assuming buy in to Hinduism, isn’t it absurd that Nandi a mere bull can be regarded the number one disciple of Shiva over these devout humans? The issue of animals is therefore a central conflict site between tribal Hindus and western religions. There may be other issues like Dharmic “concepts” but animal issues have practical implications.
This is the source of the current tension. I do not think this will stop at cows. Monkeys, elephants, buffalo, snakes are all waiting for special legal status of their own. I’ve documented the issues with activism surrounding elephant participation in Thrichoor Pooram, the ban on snakes in Nag Panchami and so on.
Property rights and voluntary sale
The ban on slaughter of cattle gives rise to several secondary issues. How unwanted animals are handled is one of them. Post ban the owner of cattle is not allowed to sell it to slaughter but is technically free to just release the cattle and add to the general public nuisance of stray cattle. In reality however, the strays just tend to hang around with the still productive herd but will probably be denied the food and water made available to the productive herd or heifers which they hope will turn productive. Does this mean that the state has some responsibility towards these ? Is it a part-owner of these cattle now? The problem with bulls is especially acute. The state can establish shelters or use tax money to subsidize bullock usage. This is tricky beyond a certain point because it is one thing to elevate cows to a higher legal status but quite another to force Christians and Muslims to pay for it. There needs to be some kind of sustainable plan with a large voluntary effort on this front.
As far as voluntary sale is concerned, the Hindu owners of these cattle do know in the back of their mind what fate lies ahead for the cattle they sell. But they would rather not think about it. The agents who purchase these cattle usually give them some comfort words. This behaviour is quite natural. If the highly educated liberals who eat beef in star hotels have no idea about the origin of their food or the transport conditions or the slaughter methods, can you expect an uneducated poor farmer to tune in to these questions? The alternate to legislating a ban on cow slaughter is to educate the sellers. Think about how that particular campaign would work. Videos of slaughter houses, trucks overloaded with cattle, films building on this narrative – these can inspire violence. Voluntary sale also cannot solve the basic problem I outlined above, even if a truck jam packed with bulls sold voluntarily is stopped. The very sight evokes strong emotions that will push for a ban again. In fact, the current debate is skipping over all inconvenient aspects of the beef trade such as lack of enforcement, outrageous transportation to slaughter, no use of stunning before cutting the throats.
Intensive dairy, pink revolution
In India, there is no beef industry. There is a single herd – the dairy herd. This produces both milk as well as beef. This is lost on PETA and others who advocate boycotting dairy products in India copying from the west. Granted that the principle of milking is inherently cruel, the fact is in India milk is sourced largely from rural areas where the herd grazes freely on grass and shrubs. The vast majority of cows are impregnated by bulls and they get to hang around with their calves for long after their birth. This is an extremely inefficient way to produce dairy. The most efficient way is intensive dairy where cows stay indoors and are milked only for the most productive first two lactations. The milk yield and quality drops after the first two calvings. The efficient and scientific way has been perfected in the west. The dairy cows after about 4-5 years are turned into hamburgers and young heifers replace them even though technically they are good for another 10 years of milking. In India, dairy cows are inefficiently milked for 6-8 lactations by the first owner and perhaps 2-5 by subsequent owners with inferior quality milk. This means cows are milked almost for their entire life. Therefore animal welfare in India have trumped efficiency and there is movement by the west to change this. This has already happened to a large extent in the poultry industry where just one or two products like the Vencobb-400 command 80% of the market.
After the slaughter ban the next stop for Yogis and Sadhvis is intensive dairy. The Sadhvis may be rustic but they are fully aware that while meat and milk can be made dramatically cheaper but only at the cost of decreased animal welfare.
Vedic stuff and poor mans protein
One of the arguments Indian intellectuals use is to turn the tables on Hindus by forwarding the argument that Hindus have eaten beef during Vedic period. This argument is like water off a buffalo’s back. For it does not matter what obscure vedic texts say. As practiced the culture has evolved to this point and there is no ‘book’ that can guide Hindu conduct.
Another argument is to seek alliances. The beef ban is denounced as anti poor because the poor, dalits, muslims and christians depend on beef for cheap protein. This is a form of alliance seeking without much basis. After all if this group which can represent 60-70% of the population is offended by the ban then the BJP will pay a heavy price in 2019. The reality is the issue is far less contested by the poor and the Dalits than the others. This is however a valid electoral strategy.
This is the final point. Now that we’ve elevated the animal, the cow, nominated by Hindus to protected status over the objections of the minorities – how can we oppose Idea of India style laws in other domains?
Can Hindus swap the ban on cow slaughter for legislated sanctions in education like RTE ? This is an astounding stretch but a tempting one to make considering the mindset that the “Idea of India” has imposed on us. This is a false equivalence.
The equivalence to education is if the BJP had selectively burdened Muslim owned slaughterhouses by onerous taxation, approvals, inspections and cross subsidy that Hindu owned slaughterhouses were exempt from. The correct equivalence is – the other sizable communities should be allowed to nominate a beast of their choice for protection.
From this angle the issue does not seem that intractable.
Some additional reading:
There is currently a firestorm raging in Tamil progressive circles over Perumal Murugan’s book Mathorubaagan. Every activist worth his or her salt has tweeted in support of Mr Murugan while heaping scorn and contempt on the Hindutva Caste groups who hounded him over the book. Mindless activism of this nature will only hurt true supporters of free speech as I argue in this article.
Here is a quick summary of the events for those unfamiliar with the issue. Perumal Murugan is a Tamil writer whose novel Mathorubaagan was published in 2010 by Kalachuvadu. An English translation One Part Woman followed in 2014 published by Penguin. The storyline is about a childless couple set in 1940’s Tiruchengode, a small town in central Tamilnadu. The plot builds up to a ritual in the Maathorubaagan temple where the protagonist joins other childless women engaging in free sex in an attempt to get impregnated. About three weeks ago, a few caste outfits along with Hindu Munnani began a series of protests alleging that the novel portrayed the temple as well as the women of their community in bad light. They starting distributing what in their view was objectionable material to the townfolk. The Tiruchengode Arthanareeswarar Girivala Nala Sangam (Society of Tiruchengode Sacred Hill Circumambulation) representing participants, the temple and other well wishers took the legal course by approaching the police. The district administration and the police attempted to broker a truce and initially Mr Murugan agreed to pull unsold copies and excise the objectionable parts from the book. That should have settled it. Until the left progressives decided to make it their fight.
Things got rapidly out of control as pressure on Murugan not to succumb to Hindutva Sanghi Casto-Fascism mounted. News outlets like Caravan and The Hindu known for progressive views built up a campaign eventually railroading Mr Murugan into an unenviable position. The latest news is that Mr Murugan announced that he has quit writing altogether.
This sordid affair is certainly about freedom of speech but there are two sides to every coin. I have read the book and I think that the objections of the Tiruchengode Girivala Nala Changam and the various Hindu outfits are exceptionally strong.
Where fiction turns libel
The central question is this : “Are there any limits to how much you can fictionalize real people, events, institutions?” Do all the activists really believe that there should be no such thing as unprotected speech?
Just imagine a world where the only defence against defamation was retort. To take an example : I take out an ad in the newspaper saying that there is proof that Colgate toothpaste causes oral cancer. Assuming The Hindu newspaper in a valiant hurrah to my right of expression publishes the ad. I will end up with a lawsuit by evening. Why should Colgate sue me for this and not publish a book explaining in detail why my claim is wrong? Pardon me for dwelling on this a little longer because this is the central issue. If you believe all speech including misrepresentation, fraud, defamation should be permitted – then you also have to believe that all force including knocking me over with a club should be. After all, if I am only allowed to respond to a defamation by publishing a retort. Then I am only allowed to respond to an assault by a counter assault. If I happen to be a weak person, I should make up for the deficit by paying a henchman to carry out the assault. You can quickly see the kind of society that will result from these rules. So if you are still reading this article ; you probably agree with the idea that not all speech can be protected. Now lets turn to Maathorubaagan.
I just finished reading the original Tamil version Maathorubaagan today I assume the English version is a direct translation. As mentioned earlier, the book is about a couple, Kali and Ponna who are childless even after a decade of marriage. In an era where assisted reproduction techniques were non existent but the societal prejudice against childlessness were just as strong; nothing was ruled out. The authors proposition is interesting because in these matters the male can be equally at fault. This is narrated in a breezy way. Essentially the story leads to a “ritual” (the subject of the tension) where womenfolk are allowed by societal norms to mate with anyone on the last day of the chariot festival. Where I think the author went too far is blending in an unsavory promiscuity against a real temple, real festival, and a real caste that exists to this day. Mr Murugan probably recognized the importance of blurring out the details belatedly and rightfully offered to do so. But that was before the activist drones descended.
There is no ambiguity in the book. The Vaigasi Visagam festivities, the chariot being pulled around town, the little details like the four streets, the various deities, descriptions of the fair, and on and on. The last day of the function he writes was “full of women over 30″ and on that day “all women are prostitutes”. The caste names also leave no room for ambiguity – it is about the womenfolk of Kongu Vellala Gounders.
The Vaigasi Visagam festivities happen to this day where the same communities participate in roughly the same manner. Those protesting have a right to demand an explanation. It is worthwhile to remember that they did not damage any property or resort to violence. Burning books is a well accepted mode of protest. Look at the matter from the vantage point of community leaders. If left uncontested it means their temple going womenfolk would be fair game for lewd comments and unwanted advances.
Was this ritual a figment of the imagination ? Was it oral tradition or hearsay ? Is there a difference between the two. This is what it boils down to.
But what about Niyoga ?
Noted progressive intellectual AR Venkatachalapathy in an article feverishly defends the author against Sanghis. He says this kind of copulation is not outside the realm of possibility and cites the Niyoga Dharma– the Hindu tradition of sex. But what he does not understand is that there is a huge gap between the realm of the possible and imputing a ritual in a real event. This is just a remarkably ignorant take that needs no further discussion.
Evidence of ritual
The only evidence Mr Murugan offers is that he ran into many people named “Sami Pillai” or “Ardhanari” in that area. Upon further enquiry he ran into an oral account of this tradition. I do not doubt that he might have heard this. Unfortunately this standard ; of hearsay is insufficient. While it is an interesting proposition or a plausible explanation for the Saami Pillais such a lack of evidence should have automatically meant blurring out the details. I am therefore with the Tiruchengode people in thinking this ritual is just a figment of the authors imagination and their community and their beloved temple cannot be the site for such fictionalizing. An imagination that the author is no doubt entitled to but only after adding in ambiguity.
Penance for childlessness is an extremely common phenomenon in Tamilnadu to this day. From lighting lamps, circling hills, rolling over, to cutting roosters – every community has its version of Saami Pillai or Pichais. I dont think willingness to do extreme penance means women would agree to have sex with other men. Such an outlandish ritual can hardly be kept under wraps the way Kali’s mother and mother-in-law do in the story. The males who feast on these women can also be hardly expected to keep their end of the bargain – of disappearing immediately after sex. Legally I am afraid Mr Murugan is not on as strong a ground as the Tiruchengode Girivala Nala Changam. I am also with the townfolk who rightfully recognize that while begetting a child is important; honor is even more so.
Should activists and poets decide what constitutes protected speech on a case by case basis? Let us assume we browbeat the Tiruchengode townfolk and let Mr Murugan have his way. What if the next author comes by and writes a similar story and THE ACTIVISTS FAIL TO SHOW UP.
The Right to Education Act 2009 is the single most devastating and sectarian piece of legislation in recent times. I can sense from my interactions that there is a general and growing negative feeling about this law. Post Pramati vs Union of India, the situation on the ground is that all minority schools – aided or unaided – are completely exempt from the law. This has the effect of instantly immunizing the top and most sought after schools from RTE.
Given this judicial position grounded in an Idea of India positive rights cocktail jurisprudence – the only solution is to repeal the act. This is well within the mandate won by the Narendra Modi led govt. It is time to go back and honor the most fundamental maxim of the Rule of Law — uniform application. It it cant apply to all, it cant apply to any.
I feel there is an ongoing effort to temporize by civil society activists and think tanks. By conceding some minor provisions they hope to salvage and retain the core of the law. This will probably get a lot of play in the media too. They will simply not pay any attention to the sectarian exemption that looms large – which gives rise to serious doubts about their agenda. If you ignore the exemptions, what you have left is a mirage or an academic exercise at best. We must all pretend and use terminology like “private schools” which have no real life meaning.
RTE 2.0 amendments by Centre for Civil Society
In this light, the New Delhi based Think Tank Centre for Civil Society has proposed a set of amendments. If accepted, these will lead to what they call RTE 2.0.
Link to RTE 2.0 Amendments Summary http://ccs.in/sites/default/files/research-rte20-summary.pdf
In consultation with : Absolute Return for Kids, Accountability Initiative, Bharti Foundation, Central Square Foundation, IPE Global, J-PAL South Asia, NUEPA, Pratham, Teach for India, The World Bank, University of Chicago Center in New Delhi, Vidhi Centre for Legal Policy and Yuva Foundation
Its a high power 5-star activist lobby. It is kind of distressing to note that a govt body (NUEPA) is involved in this. Needless to say these recommendations would carry a lot of weight in the HRD Ministry. However, this should not deter us from critiquing it. Here is a point by point assessment of these amendments.
Fixing RTE – the real way
The real issue with RTE is that schools are split into “RTE Enabled” and “RTE Exempt” in an environment already fraught with dreadful regulation and arbitrariness. In other words, the common parts are arbitrarily regulated and the RTE doesn’t do anything about that, but only lays on special burdens on top of the common part on the non minorities. This is what makes the law so unique – you cannot make a secular critique of a sectarian law. The problem with the civil society folks is that they simply will not engage with this aberration at all.
The way to fix RTE is to frame policies such that post enactment of the statute the Enabled Schools are not left worse off vis-a-vis the Exempt schools. This simple rule should be the touchstone of any policy. So how to do this ?
One way is to treat the 25% quota as a taking in the sense of eminent domain and fully compensate without questions what the schools charge for other students. This includes all fees in vogue such as extra curriculars, uniforms, swimming, etc. This is clearly a nutty scheme – just for activist feel good kicks – you will send up sponsoring a kid to Vasant Valley while you could educate 10 kids for the same amount in govt schools.
The real intractable issue is with Section 13 – which bans ANY screening procedure even for the 75% that is not reserved for caste or income quota. I have painfully documented the multi layer lotteries conducted in Delhi last year for nursery admissions. The hectic litigation followed by sheer fatigue resulted in an questionable judgment. Essentially the RTE Act results in all admissions to private “Enabled” schools being nominated by the state.
I conclude that the burdens imposed by #RTE on Enabled schools are so onerous and of a such a nature that you cannot compensate in a way that they end up at the same level as Exempt schools.
This is why repeal of the #RTE act is the only way out.
Critique of RTE 2.0 proposal
Now lets turn to a point by point critique of the proposed amendments. For your reference here is a link to RTE 2.0 Amendments Summary http://ccs.in/sites/default/files/research-rte20-summary.pdf
Sec 3 : Extends RTE to lower and upper kindergarten by extending RTE from 6-14 to 4-14. Makes it worse because total number of subsidy years is now extended to 10 instead of 8 earlier.
Sec 4 : Introduce standardized testing to measure. No need for a statute like RTE for this. It is better to leave it to boards like CBSE. I have some strong opinions on inter-board standards so that there is a uniformity at least in English, Science and Maths between states.
Sec 12 : EWS/DG Quota
Removes the distance criteria, so that some schools will be absolutely flooded. Given the lottery situation and amendment to Sec 12 (1) below it will lead to the absurd outcomes. Kid A from locality A will chug across town to attend School Z which is not his preference. While Kid Z will criss cross him from other side. This is how the lottery works. These dynamics are completely lost on Civil Society Centre.
Transfers all nominations to the government. On one hand this removes headache from school but on the other hand schools are now forced to accept dubious candidates. This is a deal breaker because there are cross subsidies involved. NO ONE wants to enter into a philanthropic venture and being forced to indulge in immoral activity. The immoral activity in this case is being forced to ask one of your poorer students to subsidized a richer student.
Payment. Any delay of more than 3 months attracts interest and penalty. This is a wash. If schools arent able to recover refunds today, they wont recover refund + interest tomorrow. Today non-payment from govt results in schools holding back teachers salaries, cutting back on safety and accessories. This will only result in a flight of qualified teachers and bright students from RTE Enabled schools to RTE Exempt schools. I am following a case in Pune where this is happening as we speak.
The entire idea that tier 2 and 3 schools can sufficiently contrast privilege and grant 10 years of freeship based on a temporary economic status is preposterous. The amendments also offer nothing on cross subsidy. Charging the hapless 75% fee paying students while their parents already pay Education Cess and Service Tax is the very definition of a capitation fee !!
Verdict : Eyewash #FAIL
Sec 13 : Completely missing
No amendments are proposed to the most oppressive provision of the RTE – the right of school managements to select students.
Sec 13 outlaws any kind of screening for all intake including the 75%. Sec 13 also includes jungle raj childish fines such as “If caught schools have to pay 10 times the amount of capitation charged from student”. Sec 13 of the #RTE is easily the most dangerous part and is directly responsible for the 7 month lottery ordeal in the national capital last year. Its about to start this week for the next year. Once again remember the balance – the RTE Exempt schools can select however they want.
Verdict : Intention not clear why this was omitted
Sec 16 : No kid failed
This has been modified to “kid can be failed with written consent from parents”. Really ? Piling on more and more paperwork while commonsense indicates no parent would agree to fail their kid is not very smart.
Adding language to legal drafting like “Every effort shall be made to provide child special training..” is just screaming for litigation.
Verdict : Fail without permission
Sec 18 : Recognition Certificate
Modified to include govt schools in recognition. Adds in a new rule that says no private school shall be derecognized until all govt schools are recognized. Not sure how top civil society types and one Vidhi Legal can draft laws like this. One wonders how we can have a relative law ; you are all okay until there is ONE govt school in the red in your area. This sort of belies the inability of these guys to understand how a complex society works. If the legality of your conduct is relative and is pinned to an outlier – then that will be focus of activism and litigation. The govt will decree all schools to be compliant and the civil society activists will try to pull down one. The most likely scenario is absent clear rules and only relative rules, NGOs will pick which ones to go after in court.
Verdict : Not workable
Sec 19 : Budget schools
Learning outcomes to be included for budget schools. That is welcome. However the points system being assigned a maximum of 30% is arbitrary because we dont know what 100% is. Nor do we know what a passing percentage is.
Verdict : +ve needs cleanup
The rest of the recommendation applies to school management committees of aided Hindu schools. There is no point going into these given they are under a mountain of other onerous and outright discriminatory laws. A complete surrender to local political and NGO types in SMCs is like humane slaughter. Welcome.
Why not amend ?
It is tempting to think that we can introduce and pass baby amendments and slowly blunt the edges of the RTE Act. In reality, it does not work that way. Parliament time is precious. If you pass these amendments in this winter session – you will not be able to debate the real substantial parts of the RTE Act. Before you know it, your five years are up and its time to go back to the people. This time with more chaos,shortage, sectarianism, and loss of quality in the education sector.
This is not a personal attack. Hope all the five star outfits mentioned take it in the right spirit.
Jaideep Prabhu set the proverbial cat amongst the pigeons with his provocative article in Firstpost titled “Is religious conversion a fundamental right” . He makes a forceful argument that a blanket ban on proselytization and conversion cannot be considered an assault on fundamental rights. Goes on to say.
By privileging the Semitic moral world order, the Indian state sowed the seeds of violent conflict. The perceived protection of the state via preferential treatment in terms of personal laws, religious institutions, educational establishments, and the outright legal bias (think Shah Bano or the Prevention of Communal and Targeted Violence Bill) instigates communities against each other and against the Nehruvian state. As Roover eloquently states, “the seeds of religious violence are sown by the liberal state; however, it is the communities that harvest them.” Source: Firstpost
Abhinandan Sekhri of News Laundry made a sincere attempt to debunk it. Then Sandeep chimed in with a fine rebuttal on India Facts. Which was then rebutted again. Meanwhile, Scroll.In carried a piece by Shoiab Daniyal summarizing the states that have regulated conversions and explaining Rev Stanislaus vs State of Madhya Pradesh. Sekrhi, Daniyal, and dare I say the majority of our educated middle class share the following view. A proselytization ban is the paranoid and insecure Hindu using his numbers to weasel out of competing in the free marketplace of religions. Some nuggests from their articles.
Sekhri: I am an absolutist when it comes to freedom of speech and expression. This is a concept alien to many who live their lives in fear of extinction, in insecurity and paranoia. Daniyal : Finally, the fact that individuals can be legally tied down to their religion of birth and do not have the full freedom to make their own decisions is one in a long line of measures taken by the Indian state that treats the country as a conglomeration of communities and not of individuals. This is an extremely slippery slope to be on, one that the country must look to get out of.
The soul market
Lets recast the argument into simple terms.
Hindus claim to have a great religion with a very rich tapestry of rituals, practices. They talk about the Dharmic faith’s superior notions of absolute truth vs “The word”, its inclusiveness and lack of violence towards Heathens. There is also no top down layer of clergy that intrude into your way of life, no punishment for heresy or apostasy, no excommunication. If these are such great virtues as you claim, then why not let Christian missionaries do their gig – then you go in and present Hinduism. Let the people decide.
Now this is too simplistic. Almost no one converts because they are attracted by these high doctrinal differences. They convert for more mundane reasons such as temporal benefits. Then the argument continues.
Fine, lets say the Christian missionary from Alabama is teaming up with a local Diocese and building a school and offering a seat in exchange for hopping on board. Why cant Hindus build a school and match him? If he can fly 40,000 miles into a strange land why cant Hindus do this in their own land?
I believe this is a very important, widespread, and valid expectation that needs to be addressed head on.
Economic costs of conversion
I believe Rev Stanislaus as well as the Freedom of Religion laws in a few Indian states are the wrong place to start. Defining “Force and Fraud” is tough and worse it equates the “act of conversion” to a discrete contract. Conversion is not a single contract but a life time of smaller contracts. While the specific act of conversion; say dunking in a pond maybe free of duress, the subsequent obligations on a newly converted individual may not be. Which is why legal bans on the act of conversion alone are so problematic.
Let us examine what the costs are for a new convert.
The first cost of a convert out of Hinduism is that he loses his right of free religious syncretism. For those who may not know – religious syncretism is a way of improvising a religion by selecting desirable elements from various sources. Syncretism is a heresy.
I warn everyone who hears the words of the prophecy of this scroll: If anyone adds anything to them, God will add to that person the plagues described in this scroll. And if anyone takes words away from this scroll of prophecy, God will take away from that person any share in the tree of life and in the Holy City, which are described in this scroll.
The second cost is he subjects his freedom of everyday living to a layer of clergy. The key to remember is Christianity is not ONE religion but many branches. If a family converts into say a Pentecost – they lose their right to wear jewelery, flashy clothing, compulsory congregations etc etc. Converts into Adventists or LDS or other protestant denominations have to make quite a few changes to diet and social practice. Your typical elite Christian friend usually can get away with a lot of things, but new converts are typically monitored and required to have a certain level of participation. The extent to which these rules are enforced depends on the local congregation or parish, but there is always some enforcement.
So the costs for a new convert are giving up syncretic i.e, his pagan practices and subjecting themselves to monitoring from a layer of clergy.
On the benefits side; there are those who genuinely find the regimentation and the singular truth to be attractive. But outside of that circle the benefits are more temporal. One might expect to erase caste identity by smothering it with a larger and more visible one, but even that has to be mixed with something tangible. More aggressive missionaries simply give cash or loans.The single most important benefit however is always access to educational services from lowest to the highest levels.
So, the urban liberal wonders All this is fine, but why cant Hindus do the above too instead of clamoring for a ban on proselytization ?
Until this point. I am solidly with Sekhri, Dhaniyal and the secularists.
After all, if it turns out that all the purported benefits of Dharmic religions like its ability to syncretize and offer religious autonomy have a net economic cost of being lesser than a school seat – we Hindus have a bigger problem. Hindus should focus on providing that school seat or medical services etc instead of preventing others from doing so.
But this ignores the elephant herd in the room. The so called market is neither free nor fair. The law is used to first burden and then checkmate the Hindu response and to encourage conversions in an insidious way. But it isnt Shah Bano or Uniform Civil Code or Ayodhya temple or Haj Subsidy that is the culprit. These are red herrings – I have chased them too and discovered that they have limited effect due to their lack of impact on public law.
The real distortion is in the educational landscape. Most recently the UPA’s outright communal programs like minorities-only scholarships, explicit govt cash to minority schools only, and MSDP have started to contribute to the distortion.
How Idea of India arranges incentives
A band of Nehruvian Indians might have pulled off the biggest mass hypnosis in history. It is to make Indians inert and exhibit zombie-like behaviour when interacting with the institution of law. It took me a few years to snap out of it, so I wish to help others too. People assume that the laws in force must have a some moral basis. Because? Well, various eminent folks are deeply and visibly engaged in law and so many of our politicians are also lawyers. We occasionally see streams of groups and individuals obtaining relief from the courts. We also trust the argumentative legal community to have enough vitality and a culture of dissent. If the eminences hold forth bizarre positions – their sparring partners will rush in and demolish them.
Say this doesn’t happen, all you see in the media is happy silence or mutual admiration. You are trained to assume that this consensus indicates that the laws must be fine, completely in alignment with modernity and Rule of Law, and our own constitution. Our inner unease with its morality and unfairness must be explained in other ways. Is it due to our inherent belief systems, maybe it is our Hindu faith that must be questioned ? This confusion exists only in the groups have been burdened by law, as I explain later.
Sorry for the detour, but this is essential to understand how the Hindu is unable to, rather prevented by law from, responding effectively to proselytizing religions.
Two key problems
Lets now turn our attention to the specifics. In terms of political economy, Dharmic society should be treated as a conglomeration of ‘discrete and insular minorities‘ (to borrow a term from a US Judge Harlan Stone in his famous footnote in Carolene Products). Therefore the very idea that there is a permanent political minority in India is wrong. That such a permanent political minority is exactly the same as Christians and Muslims is even more suspect. They are able to freely make alliances with Hindu groups like Yadavs, Kurmis, Kurubas, the various Tamil groups, etc and we just got off a decade of rule of the Congress party which brought together this alliance. So the real discrete minorities in India are small Dharmic groups, jatis, and tribes practising a bewildering array of rituals.
Problem 1 : Rights of Dharmic discrete and insular minorities are ravaged by an extremely low standard of judicial scrutiny.
This is exactly the opposite of the US position. Followers of my Twitter account are frequently annoyed at my focus on “minor” matters like the Jallikattu ban, the continuous harassment of Dahi Handi activities, the recent animal sacrifice ban in Himachal temples, the superstion bills etc. Let me explain why this is of such paramount importance. If Dharmics have to respond to Proselytizers they have to bank on their strength of diversity and inclusiveness. Now for many of the Dharmic groups, their primary interface with the larger fold is in through their practices. If the law adopts a very low standard of “baby scrutiny” and bans age old Hindu customs like animal sacrifices in HP just by looking at some gory pictures; that group stands humiliated. Its members are confused.
For example : Jallikattu organizers (Tamil Hindus) are unable to understand why packing cattle in trucks and slitting their throats by the thousands every single day is not only legal but subsidized by govt but they get to go to jail for playing with their pet bulls? Similarly Himachali Hindus are aghast that their Jatka sacrifice on one day to their Devi-Devta is illegal but year round Halal slaughter in pink revolution is not. They then turn to liberal intellectuals in India for an answer and are met with silence. In stark contrast, the US when confronted by a ban by the State of Florida on animal sacrifice by the Santeria religion – threw it out in Church of Lukumi Babalu vs State of Florida.
In India, the establishment has arranged the legal system in such a way that the practices of ‘discrete minorities’ which comprise the Dharmic faith are easy pickings for any activist. On the other hand, practices of Semetic minorities are completely immune. This preference might then be duly conveyed by the proselytizers to the masses as the Indian state establishing their religion as a ‘preferred’ one .
Problem 2 : Gratuitous rights not available to Dharmics
In Problem 1, we saw that when the state injures a Dharmic minority group the court usually lets it pass with “baby” scrutiny. On the positive rights side, Dharmic groups are denied gratuitious rights available to Semetic religions. The biggest and most important conflict site is in the realm of education.
I do believe this is the biggest Indian story since independence. What started off as a negative right ; ie dont touch our schools, has now turned into a monster. I have documented extensively how far the minorities have come in appropriating the domain of education. This is aided and abetted by lawyers, media, and intellectuals.
Furthermore, the wealth of Hindu Dharmic Jatis and Tribes are captured in Temples that are under secular administration. The funds of the dioceses and Islamic trusts are in their own control.
Despite all this – Hindus have managed to squeak through and enter the education sector. But the Right to Education Act has the effect of stripping them of even this and turn the clock backwards. By thrusting a intrusive inspection and compliance regime, under constant pressure from various High Courts over PILs from NGOs, forced into immoral cross subsidy, endless lotteries, media defamation, and nomination issues – Hindus are forced to beat the retreat. The minorities, even the publicly funded ones, however are entirely immune from this.
We have to understand the paradigmatic importance of control of access to education when it comes to free market of ideas. It is not just about schools raking in money. Most in fact dont rake in money directly. Those who run schools and colleges wield tremendous influence. High court judges and former chief ministers routinely approach and beseech top school management to accommodate their kin. The issue with aided minority schools and colleges are even worse. For example: We are trained to believe St Stephens Delhi is a model college worthy of replication. But if you told an American jurist that the Indian govt not only provides full aid to parochial colleges with explicit discrimination but also imposes more burdens on completely private Hindu colleges – he would be aghast. The US goes to extraordinary lengths to ensure public money doesnt touch private or parochail schools. See my posts on St Stephens here and here.
Do any of these recommendations sound weird ?
1. Re-open all cases of imposing burdens on discrete minorities and subject it to enhanced scrutiny. This will lead to overturning bans on Jallikattu, HP Animal Sacrifice Ban and others like Nag Panchami.
2. Nudge a doctrine of strict scrutiny for any future case of banning or even regulating any minority cultural practice.
3. There is no way around repealing the Right to Education Act. There is precedence in Very Rev Mother Provincial vs Kerala a 1970 Supreme Court case – where the KL govt tried to impose on private educational institutions, minorities got exemption, then they said – “lets toss the whole thing, there is not enough left on the plate here”
4. If you cant turn over Hindu temples to Hindus – atleast stipulate that 60-70% of temple funds appropriated by HRCE & lying as unused bullion in State Banks must be routed to Hindu Trusts to run schools.
5. Roll back the concept of aided minority schools and colleges, or actually any “aided” school where management of govt money is in private hands. Either the govt runs the school or not.
6. Open up wide debate on moral and legal basis of the 93rd Amendment where only Hindu run colleges are subjected to a yet-to-be-declared quota system.
7. Immediately discontinue UPA’s over the top egregious programs like IDMI and MSDP. It stuns me we still have them, but that is a topic for another day.
To ask for ‘let Hindus duke it out in market of ideas’ with proselytizers is a clear sign of ignorance. A complete disconnect with the strategic landscape in India. You have to roll back all that I have mentioned for a level playing field to emerge.
First Idea of India style laws need to undone, their arguments deflated, and a new confident regime of uniformity rolled out. Its not an easy task.
Why do minority schools not publicize their “status” ? Not a single person I interacted with knew that Vibgyor was a Parsi Minority school nor had information about exactly what “minority” any of the major schools were. Be it DPS Schools in Bangalore or Ryan International or any of the hundreds of schools. Why is secrecy the norm? I walk through this extremely important issue in this article.
ADMISSION UNDER RTE
March 15, 2014
Our school has a stay on RTE admissions by virtue of considering our school a minority Institution. We have filled all the positions in Std 1 by minority students and as such no further admissions will be accepted from RTE students. Further BEOs have notified RTE admissions could be done up to 21st April 2014 in all the schools. Therefore the parents could approach other schools for admissions as there is enough time.
Note on website of National Public School
I simply could not figure out what “type of minority” this top school in Bangalore was. Why is it important?Read on.
Exception or rule ?
A remarkable fact of India’s education system is the existence of communal exemptions and separate processes based on religious and linguistic identity of individuals who operate schools. Only schools established and operated by Hindus are subject to the recently enacted Right to Education Act with a safety valve that some Hindus can claim what is called a “linguistic minority” exemption. Even outside the Right to Education Act there are a number of benefits bestowed only upon minorities and equally a number of burdens such as the RTE that are only imposed on Hindus. The net impact of this is that in any given state, the local majority population is severely discouraged to enter the education sector by arranging the incentives against them. How we ended up in this grotesque situation is a huge story for another day. In this article, lets assume that IF these exemptions and processes are justified what are the public obligations of schools that claim this exemption.
First take a step back the examine the special status as an exception.
- If you argue that minority privileges are exceptions to the rule of equality, then it follows that there are duties that come with the exemption. As per Art 29 of the constitution, these duties include preservation of their unique culture and religion specific to the group claiming the exemption. Stated simply – everyone can run schools but minorities get something special if and only if they do XYZ for their communities. If not, it doesnt mean they are oppressed and get to scream atrocity. It just means they get to operate schools like everyone else. This is how it works all over the world.
- If you argue that minority privilege is the rule, and the concessions to Hindus to operate schools are the exemption, then it follows that there are no obligations whatsoever . Simply – everyone can run schools but minorities are special because the ones running them belong to minority religions. In this model, minorities are simply privileged by law to be the preferred providers of education in this country. This is of course outlandish but still needs to be explicitly mentioned and discarded with due care. You will not believe how many think this to be the constitutional position.
Minority rights seen in a different light – public notice
Here is a simple question that will stump the best of the Idea of India intellectuals and lawyers. Go ahead and ask them this.
What rights can an individual from the minority community assert against minority educational institutions ?
Wait for their answer…..
There are all kinds of rights but lets look at what I consider to be the most basic of them all. The right to “public notice”. The right to simply know which institutions are minority ones so that you may approach those institutions and assert your rights to the extent that you have them. The notice has to be public rather than being private or secretly circulated. What we have today is a secret notice. This kills the rights of minority individuals right off the blocks. As a minority individual you would not even know that a particular school/college is claiming Art30 exemption on your behalf UNLESS you are a member of a club that has access to this secret info.
The real reason why schools deny public notice rights to their own minorities is that in reality these people just want to run NORMAL SCHOOLS not PAROCHIAL SCHOOLS. This is a battle for the soul of India, the youth and who gets to have them as a captive audience for the fist 21 years of their lives. To that end, on the outside they project a secular modern face but through the backdoor assert their sectarian Article 29/30 rights by stating they are working to preserve their ‘culture’.
Very few people, not even their alumni knew that a leading school in Bangalore National Public School School was a Malayalee Linguistic Minority school. Admission to this school is so limited that only kids of the super elite and connected make it through. So even if it is not about monetary profits, schools like this have acquired enormous influence in a scarcity. They are now seeking exemption from the Right to Education Act on behalf of Malayalam language rights in Bangalore.
What follows is not pretty. This means that over the past few decades, generations of Malayalam speaking kids in Bangalore were not able to assert their rights – because they had NO NOTICE that this was a school for them. Data shows that only 8% of the students are Malayalees.
Similarly, Vibgyor school which was in the news recently for the abuse of a child, is apparently a Parsi Minority. I remember on Twitter, folks were playing “Guess the minority game”. Just yesterday they won a massive victory in our court system.
Appearing for the aggrieved school, counsel T.R. Andhyarijuna told the court it was an old minority institution run by the Parsis and was covered by the constitution bench judgment that exempts aided and unaided minority institutions from the ambit of the RTE Act.
He said that merely because the petitioner school did not have a certificate of being a minority institution from the National Commission of Minorities or the state government or a competent authority, it would not erase its minority character.
There are other schools like Ryan who reserve a mere 5% of the seats for Christians, some do 10%. These are all formulae made up on the spot without any principle. The underlying desire is always to run a normal school for all including and especially the Hindus youth. All the while exempting themselves from burdens and including themselves in benefits.
Why be shy ?
Recently the world renowned newspaper The New York Times carried a lie (actually a half truth) in its print as well as online edition. The following was written by an Indian reporter Mr Manu Joseph on the RTE.
Her child was a beneficiary of the Right to Free and Compulsory Education Act, which took effect in 2010. The act requires that all private schools in India, except those run by and for minority communities, reserve 25 percent of their seats
Pay attention to the phrase in bold “by and for”. It is a half truth or a lie because even those run by minorities and for everyone or even by minorities and for others qualify for the exemption. You may think this is a minor issue but it is central and changes everything. If a minority runs a school FOR its own flock, it means that the flock in return have rights against the managements of these schools. This is not an innocent mistake. It is intended to mislead the western audience that our Education laws fit in with their conceptions of uniformity.
A practical solution. Will minorities accept ?
I propose to recast Art 29/30 into a new language of rights. Not of rights of managements but of the kids belonging to the minority community.
Here are practical notice requirements.
- A large yellow coloured board outside each minority school, clearly visible and legible from a distance of 50m stating that this is a minority school.
- A Public Notice of Rights – for each minority school under the above board stating what type of minority school this is. Whether Malayalee, Konkani, Parsi, Christian, Tamil.
- Enumerate Rights available: Under what circumstances can a Art 29/30 school select a Hindu student over a Minority student of the same affiliation as the school.
- All students of a minority have to be accommodated before opening up to Hindu and minorities of other groups students.
- If any minority wants to to be free of notice duties, they always have the option of getting in line and running the school like everyone else.
- If some minority like the Konkani minority in Bangalore High Court tries to say “But we only have 1 kid from our community” then simple pro-rata rules can be applied. This means that for very tiny minorities either you refuse to grant the status or you simply pro-rate the rules applicable to all. For example : If Vibgyor entry class of 100 has only 2 Parsis – then the 98% would be treated to the 25% quota (Sec 12 of RTE) as well as the compulsory lottery (Sec 13 of RTE).
It is time to really bring these issues onto the front burner.
It is abundantly clear that there is a Lutyens consensus between the old UPA regime, the Supreme Court brotherhood, the Idea of India intellectual movement and the current BJP government. The court has also clearly laid out a sectarian and communal vision rooted in scarcity as the education roadmap. So much so that even covenants and lease deeds entered into by Minority schools are exempted by elevating Art 30 over basic contractual obligations. The only challenge to this travesty is isolated voices like ours on social media.
To conclude ; everyone needs to be alert because.