Delhi schools run by non-minorities lose all admissions autonomy under media coverfire of lies and deceit
This is not a post in response to an individual or a media reporter or columnist. A monumental change as been effected in the domain of education in Delhi. The true facts are being hidden by the media and as a result people are misinformed.
Essentially this is what happened : The AAP Govt in Delhi led by Arvind Kejriwal cancelled the “management quota” in private schools run by Hindus (non -minority) in Delhi. There was a circular issued by the Delhi Govt that listed 62 “discriminatory criteria” and in hidden in that list was the ban on “management quota” http://www.scribd.com/doc/294792579/Delhi-Government-Quotas
To really understand what is going on you have to be informed of three things.
- What is a “management quota”
- How does the points system based lotteries work
- The applicability of this rule and the impact
What is a management quota ?
The 62 criteria ban almost everything along with a list of ridiculous or purely imaginative items. Along with “Points for kids with a Labrador Male Dog at home” being banned – they also snuck in a ban on Management Discretion. Gotcha !! This kind of combing operation is required in all laws created by Idea of India types. Now lets see how this works.
The points that arent banned speak more about the arbitrary ass backwards rule making.
Second child points are ALLOWED . But First Child Points are “discrimination against parents desirous of seeking admission for child that is not first born”. You know why ? Because this is the Sibling Quota.
Alumni points are ALLOWED. But Parents Education are “discrimination”
So there is no rhyme or reason behind this. Be that as it may, this is not the main issue here. Along with a random laundry list of 62 banned items ( and not 62 other equally egregious items) – they banned “Management Quota”. This is where the crux of the situation is. May also be illegal as the Delhi HC has allowed it and an appeal is pending in SC. But first you need to know the facts of the matter.
At the present, non-minority unaided schools have to run three streams of admissions. The management quota can be 10-20% not sure what the number is but it has been in effect for a long time in Delhi
- 25% RTE LOTTERY- EWS+DG (Caste based – including OBC non-creamy layer at 6Lakhs/pa) all in one lottery pool
- 60% TRANSPARENT POINT LOTTERY – using a pre-announced points system + lottery (this is the 62 good points list)
- 15% MGMT – this is purely at discretion of management. Can give to anyone at their wish.
This is the 25% quota introduced by UPA in non-minority schools. Dont want to spend much time discussing this except to state the rules here are not being clearly propagated to the people because of its inherent immorality. The media creates a din and smokescreen by using “EWS” and does not talk that this quota is not for the poor at all. The quota is for EWS & DG (Disadvantaged group) in a single lottery pool, The lottery pool is in total violation of all known norms of classification by including a 1Lakh EWS with a 6 Lakhs OBC. This classification ought to be declared ultra vires of the constitution.. but I digress. Lets just say this is a “political quota” and a moral and monetary tax levied on non-minority schools and move on to the real issue here today.
Points based lottery
When the points of all kids are computed they fall into buckets (say 4 buckets). What then happens is the following
- At bucket 1 (highest points) if more candidates than seats. Lottery! If not all admitted and move to next
- At bucket 2 (second highest) if more candidates than seats. Lottery !! If not all admitted and move to next
- .. and so on.
So we have a multi level lottery system that is imposed on schools. Remember that if at any bucket the total number of seats is less than candidates, the lottery ends and people with lower points get NOTHING. This is not a quota system.
Repeat again with an example : Say if a kid was not an alumni kid and not a sibling and there were more alumni and siblings than seats – the school is required by LAW to give ALL SEATS TO ALUMNI and SIBLINGS. It does NOT MATTER HOW VIRTUOUS AND DESERVING OR POOR THE LOSING KIDS are (This only applies to non-minority Hindu run schools only) So this is a morality code imposed on non-minority schools. But let us assume that is a further “tax” imposed and move to the main issue.
Imagine if you, a charitable trust, are running a school say Shree Shankara School in Delhi. It is your own philanthropic project and you have built the school as per your own motivations and preferences. The management quota of 10-20% is what allows you to GRANT a SEAT IN YOUR OWN SCHOOL to any kid who fits your description of your own philanthropic/educational impulses.
This is a complex issue below the surface so here is an example: You find a bright kid in your neighborhood who is poor or disadvantaged in ways that YOU think are valid. With a mgmt quota you can simply offer the kid a seat and derive that psychological satisfaction that drives all philanthropy. Without a mgmt quota you can enter him into a lottery system and hope she wins, in your own school. This defeats all impulses that drive Hindus to participate in a school sector and deflates their social stature. Remember that minorities can do whatever they want. In the same scenario : you can have a Catholic priest walk by and see the same kid and act as a benevolent saviour on the spot and therefore derive the psychological advantage that is denied to an equally placed Hindu.
On the institutional side : Removing management quota means that you have NOTHING to offer to anyone in exchange for anything in your own school. This means no one has the private incentive to contribute to the school. Remember that RTE quota does not offer a full refund for the EWS+DG group therefore the cross subsidy is borne by the other students anyway. One way for the school is to accommodate wealthier people and use that to build infrastructure that all other kids can then use , or to hire more expensive and better teachers that teach ALL other kids. Without this quota – there is nothing left in the tank.
Another area is a lot of schools use their discretion to tie up with Corporates and Multinationals who need to accommodate their executives who get frequently transferred. This is a win win situation as there is a corporate money that comes in and is used to elevate all the kids. Without mgmt quota, this cannot happen in Non-Minority schools.
The minority exemption
As I keep saying about the Right to Education Act,
A bad law that is bad for all is a bad law.
A bad law that applies only to your Group-A is not a law at all.
Minority schools can have any selection criteria and get pick and choose who they admit. Education in India may not be a commercial activity due to its non-profit constraint but it is still a competitive sector. It is competitive in a most basic strategic manner because it is widely recognized that schools are the only way a culture can replicate itself. All philanthropic benefits are denied to Hindus and are fully extended to Christians because they are allowed to be true saviours. Why? Because a true saviour must necessarily have discretion. They can also admit corporate kids, kids of important political figures, industrialists and extend their influence in other areas.
Minority schools are not on the fringe in Delhi. They form the creme of Delhi schools and all over India.
This is not to be interpreted as an intolerant attack on Christians. No country does this kind of law. Not even Italy. If the law hypothetically also imposed on Christian schools we can turn it into a political issue and seek allies across the religious Idea of India divide.
PB Mehta has a new article in the Indian Express “Upside Down State” that talks about the Indian state and public goods. He rightly notes the trend for the Indian state to vacate space that any state ought to dominate (education and health) and to occupy space that has little public utility (airlines and hotels being the stock examples).
Yet proportionately, so little political effort has been expended to improve public education. It is a pipe dream to think that we can build a good, equitable education system without a major revival of public universities and government schools. And a strong public system will automatically “regulate” the private system by reducing demand. But it is a sign of how warped our thinking on the public and private has become that we are happy to hollow out the public where we should not, and regulate the private in ways that are counterproductive. –
Instead of a tweet series, I thought I’d just put up a short post on it.
The increasing trend with any analysis of Indian issues is the unwillingness of policymakers, think tanks, and public at large to confront the most glaring underlying framework that gives rise to the anomalies on the surface. This is the strange legal doctrine called “Idea of India” and the apparatus that is built around it. If you ignore this – you get everything wrong. Instead of a proper analysis you get only hand wringing. Take the public education system.
- The division in Indian edu law is not private vs public at all. But Minority vs Non-Minority. Call me a bigot but hear me out first. In Indian edu, law private minority aided schools which ought to be identical to public schools operate as defacto private schools . Post the Right to Education Act : Public Minority operates as Private. Private Hindu operates as Public. When I say ‘operates as public’ I mean the loss of two things – 1) nomination power (which students to select) 2) quotas which represent state confiscation.
- The high barriers to participation of majority community in education is the reason why politicians enter the education sector. They control the NOC (a No Objection Certificate) process – hence are able to self deal. Is this undesirable? The group here typically is largely not interested in education per se but for the profits in the sector. They maybe brawny netas but are in reality unsettled due to transient nature of their power and lack of legal guarantees – so do not invest in long term initiatives. It is also pertinent to note that they usually only enter higher ed and not schooling which is a tougher problem.
- What about Govt Schools ? PB Mehta asks “so little political effort has been expended to improve public education”. What would a political effort in this space look like ? First of all it is very important to recognize the herd of elephants in the room. In “Idea of India” land the day to day realities are completely disconnected from these high level questions. Post the 77th Amendment and even before that – communal quotas in Teacher Recruitment and Promotion far from delivering social justice has changed the nature of the product itself. To explain : “More representation in Sector X (meritocratic teaching order) is not the same as Pro-Rata representation in a (communal group quota teacher order)”. In High court after High court – the cases of violation of recruitment in Teacher Recruitment Board, communal roster point anomalies, sub quotas are the routine cases. Keep in mind – govt teachers are extremely well paid, so there is no point in pouring more money into this. They also almost no accountability because the roster point system ensures their intra-se status relative to their peers. I suppose at this point I need to mention how the 200 point communal roster in teacher promotion works but that would blow up this post.
- Why is there no political effort to do XYZ..” is only a question if the political effort to do XYZ will result in the blokes getting re-elected. This is true in Rule of Law countries as it is in Idea of India. A political effort to improve govt schools would require you to open up the following issues 1) Minority Aided school issue where different service and recruitment rules apply 2) Opening up the entire issue of quotas in recruitment and promotion 3) Subjecting teachers to measurement not based on qualifications but on performance 4) giving the principal who may belong to an outside-group full power over teacher cadre from inside-groups 5) reopening the 77th amendment .. and on and on. see ? hardly a pleasant task.
- What is hardly a pleasant task for intellectuals is like kryptonite for politicians who have to work the Idea of India landscape. Any one who opens up the issue of quotas in teacher cadre risks not only drowning himself but taking his party along with him. The boat sinks.
So due to the unpleasantness of looking under the kimono of contemporary issues and always finding “Idea of India” type unapproachable issues it is better to just focus on the superficial. Therefore groups that occupy a higher status like minorities just want out the the whole situation and carve islands of exemption for themselves. This is not just the case in education but also in overall governance. Minorities who say “f_ this , just give us our share and we are gold” are encouraged by the UPA govt. This is how the sectarian scholarships, the MSDP public works in 25% minority districts and other schemes are headed. This is countered by others on the Sanghi side who want the kind-of-same-but-not-the-same thing but are not able to articulate that. This is a dangerous situation.
The whole system is neither private nor public, neither regulated nor laissez faire, neither here no there.
And it is not even 10AM in Idea of India Stan.
“You will not believe what the Congress party has gone and done ” – this is the reaction of many who first read about the National Herald Scam that is currently rocking the country. To assuage this initial shock , the Congress Party is tweeting frenetically various defences of real and imaginary charges that will in due course be heard in the court.
The transactions are extraordinary and unprecedented – as the Delhi High court judgment says. What makes the National Herald case hard to comment on is not that the transactions are one of a kind, but that the counter arguments put forth by the Congress Party challenge you to step down and question long settled assumptions. It is quite natural for most of us to exit at this point. Let me explain this further because this will be the target of this article. We just know by intuition that self-dealing is wrong. We just assume that it is so based on our own moral and ethical codes passed on by our cultures. Say you donate to Help Age India you assume that even though the money has left your hands the trustees wont simply take all the money for their private use – even if the private use is virtuous. We sort of just get it that ‘you cant splitz the stuffs and run yaar‘ without having any statute dictate that to us. This is what is known fancifully as the Non Distribution Constraint. Law meets morality and they agree. Now let us drop that assumption : What is wrong if trustees are given total freedom to self deal. The range of self dealing transactions consists of outright larceny which is taking actual money and putting it in your wallet to spinning off rival trusts and the ability to rearrange the concentration of interests at will. Why not let the fiduciary persons instead prove their business acumen and efficiency ? This is where the Congress Party has taken the debate. They deny outright larceny but that is not even the issue.
A 2 Min Recap of the Triple Play : Hop-Skip-Jump
There are three transactions in question. Lets call them Hop-Skip-Jump.
Hop : Associated Journals (AJL) is a dormant Public Limited Company with large real estate assets it appears that it is a mixture of freehold and leasehold. If leasehold the property value is pro-rata adjusted for the remainder of the lease. The National Herald Building in the heart of New Delhi appears to be the most valuable property and hence the scam is named after it. There are thousand plus shareholders and a board of directors whose chairman is Mr Motilal Vora. To wind up operations AJL needs to settle employee dues and that needed 90-odd crores and the Congress whose treasurer is also Mr Vora gives that money.
Skip : Now instead of owing 90Cr back to the Congress Party, a new company ( a Section 25 Private Limited Liability) called Young Indian is created. Starring in this new company are Sonia Gandhi, Rahul Gandhi, and Motilal Vora ! The Congress Party writes off the 90Cr loan without making any attempts to recover it and transfers this to this new company for a meager 50Lakhs.
Jump : The new company Young Indian strikes a deal with AJL where lakhs of new shares are issued to Young Indian essentially washing out the existing shareholders into minuscule minority (1%) . This is conducted by the Chairman of the Board who is also Motilal Vora !! But the beneficiaries are Mrs Sonia Gandhi and Mr Rahul Gandhi with 76%.
Post this 3 step deal here are the positions of the parties :
- Congress – poorer by 90Cr.
- AJL shareholders – washout.
- Young Indian – poorer by 5 Lakhs paid up capital but new trustee of AJLs estimated USD $1Billion property base
The self dealing transactions which the Congress does not deny and their defences in detail for each of them are the following.
- Hop : Mr Motilal Vora is Treasurer of the All India Congress , the name itself implies someone who guards the ‘treasure’. This person is in a clear position of a fiduciary. In this case the fiduciary lends 90Cr to a Public Limited Company where he is the Chairman and MD of the board. It seems it was argued by Congress lawyers that BJP invests in Canbank Mutual Funds too !! What is missing is that mere disinterested investment is something a treasurer ought to do to maximize the beneficiary interest. So they ask what if there is self dealing as long as it is beneficial in some abstract sense.
- Skip : Write off loan. This is Vora again who loaned himself – the CMD behind the veil of AJL – writing off the loan. This loan is due to the Congress Party coffers filled by thousands of members as a result of active solicitation. Here is a news story where Motilal Vora demands party members pay up. ( “Vora feels the pinch as Congress Partymen dont pay up” / “Rajasthan legislators default Vora demands payment” ) The Congress response to this is two fold : 1) Use the word “entrusted” in a clever way. This money apparently wasnt ‘entrusted’ to Congress to mean that Congress Treasurer does not have a Trustee, i.e. Fiduciary responsibility. 2) Question standing of outsiders. “You are an intolerant Sanghi hence who are you to ask, our tolerant Congress members dont care if their money is siphoned as you are incorrectly claiming.”
- Jump : The most audacious – the loan that was written off is assigned to a special purpose vehicle called Young India , a Private Limited Liability company with Section 25 (non profit/ charity) status. Once again Vora is a director with 12% where the 1-plus-3/4th majority (76%) is held by the Gandhis. Vora then using his position as Chairman of AJL turns over 99% of the company to this new company. I call Young Indian a special purpose vehicle because there is no evidence that it engaged in any other activity before or after the deal. To support the ‘jump’ transaction the Congress claims that not a single penny has been taken out and since this is non-profit company the Gandhis cannot financially benefit.
The Congress defence basically then consists of a) disowning fiduciary duty of the Congress Treasurer (no entrustment argument) b) questioning standing ( if Congress members dont care who are you to ask) c) since a non-profit company is now the owner of the properties there no wrongful gain (not a penny taken out)
The Fiduciary Test
By now it must be clear that the Congress is essentially not denying that the hop,skip, and jump transactions were instances of self dealing. What they are saying is that the deals are fair and that they wont take a penny. This should alarm everyone who deals with Trust issues because it breaks the entire model. In my view, this is the essence of this case so lets see what this is about.
Who is a Fiduciary ?
“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence”
A fiduciary “must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations.”
Even though this is from the UK, this makes sense even in Indian context we have for long known the role of the Dharma Kartha – the temple manager who was entrusted with accounting expenses. The common law rules in this domain are not far off from the Indian traditions.
Now the central question is : If a fiduciary self deals can we allow that and then test it ex post facto on the basis of a fair deal test ? If a treasurer acting as a fiduciary advances a loan to himself but paid 1% over market rate. Should that be allowed? Here is where things get interesting.
Most countries especially those derived from common law tradition disallow any self dealing NO MATTER HOW beneficial it is to the trust. To understand why they do this – think about what will happen if they did the opposite. Any trustee acting as the legal owner of funds could self deal in any manner – then it is the beneficiaries and donors to hit up the court seeking to void this or that transaction. The burden on the court is to examine EVERY such transaction to check if a fair deal was obtained. This is totally outside the domain of the courts expertise. So they just ban self dealing at the front end to prevent such painful ex post facto assessment. The rule is called the “No Further Inquiry Test” – here is Lexis Nexis explaining the rule.
Self-dealing is simply not tolerated in the relationship between a fiduciary and those whose interests he or she is to protect. In attempting to address the problem of self-dealing, a bright-line prohibition has evolved in trust law so that where self-dealing is found, the Court will make “no further inquiry.” It is immaterial whether the transaction was fair, or even if it garnered favorable results.
Source : Lexis on the self dealing fiduciary
With corporates we generally have mechanisms to check self dealing by requiring executives to get permission from the board for certain types of transactions, various disclosure requirements for family member of directors, and finally the business judgment rule to test if senior executives did pursue meaningfully the best considered option. But the standard is much higher for those holding trust property such as the Congress Party. Now you understand why they are seeking to present that ‘funds are not entrusted rather just donated” ? A piddly wordplay is not an innocent sentence but a giant leap.. To suggest that people just throw money at the party and do not expect the treasurer to act in fiduciary capacity. For a minute stop here and see how low the party of Nehru , Gandhi , and Patel has sunk to make these kinds of arguments that appeals to ethics of very few.
Non profit – cant take a penny
The argument goes : Even though the Young Indian company now owns the properties including National Herald House it is not a big deal because it is a Section 25 (Non Profit/ Charity) company so no profits/dividends/remuneration can be taken out. I dont think anyone really believes this argument. First of all , the non-profit constraint does not preclude using the real estate assets for commercial use. So AJL which is now 99% owned by YI can rent out those properties but the money can be used by YI only to further its charity objectives. The stated objectives are to ‘inculcate secularism in youth’. What they have really done is to create a massive endowment which can then pay for various activities like funding think tanks, lucrative op-ed consulting contracts, partronizing various kinds of people as awards, not to mention building a large team of salaried staff. Therefore an entire ecosystem can be built without the directors Mrs Gandhi and Mr Gandhi and others taking ‘a penny out’.
In my view the real interesting thing that arises out of this case is the future of Indian Trust Law. If we do not adopt the “No further inquiry rule” in Indian courts then we will open up a Pandoras box that can go on to destroy the entire fiduciary-beneficiary relationship.
One interesting angle in this is the “Idea of India”. If you think there should be extraordinary processes – then it is perfectly understandable why the Gandhis are putting up such an unsightly fight. It is important that they demonstrate to the regional satraps like Laloo that they have an inside track in the law. That in itself is a major attraction for these groups who hold key to political power. If you also concede that fiduciary self dealing be allowed if it is a fair-deal then you need to combine the two. I would then argue that is absolutely a great deal that properties vest with the people who have immunities from pesky laws that affect the others.
S. Gurmurthy’s article explaining the transaction details http://www.newindianexpress.com/columns/s_gurumurthy/National-Herald-affair-It%E2%80%99s-fraud-all-the-way/2012/11/08/article1332271.ece
In Tito v Waddell (No 2)  3 All ER 129, 241 Megarry V-C said: “The self dealing rule is (to put it very shortly) that if a trustee sells the trust property to himself the sale is voidable by any beneficiary ex debito justitiae, however fair the transaction.”
A really good Self Dealing guide prepared by Price Waterhouse funded by Ford Foundation (for US viewers). Explains prohibited transactions and disqualified persons and IRS (US Tax guy) strict rules for 501(c)(3) – their version of Section 25 – http://www.wvgrantmakers.org/data/sites/1/banners/pdfs/news/self.dealing.guide.pdf
The picture above is a receipt of a Rs 500 fine imposed on a student for coming to Doveton School with a Mehandi – a temporary Hindu tattoo. The school is run by Doveton Protestant Schools Association one of the oldest schools in Chennai. The details of the incident can be found in this news story. These incidents are becoming commonplace around the country just recently Hindu girls in Kanpur were severely punished by St Marys Convent for wearing a pagan string called Rakhee. Hindus tie this string to symbolize a brother sister bond on only one day every year. Similar restrictions are in place in most schools and by and large the Hindu student body abide by these rules.
When the father of the 7 year old protested, this is what the Christian management had to say.
“I told them it was a tradition in a Hindu function, and they told me that if that was the case then I should not admit my child in a Christian school,”
Prima facie this counter argument made by the school sounds impeccable. The exact equivalent would be “Why are you buying our product if you don’t like it” argument made by free market supporters. I try to analyze whether this argument has merit in this article in light of India’s unique sectarian laws governing education.
The sentiments on both sides
It is important to see this issue from the Christian school management point of view first.
Ye shall not make any cuttings in your flesh for the dead, nor print any marks upon you: I am the LORD.Leveticus 19:28
Bindi – a dot on forehead of Hindu girls, Vibhuti – a sacred ash mark, Sandal paste, Mehandi – the temporary tattoo for which the boy was fined – are all markings on the body. There may be many Christians willing to accommodate this but there may be many others for whom these are satanic symbols. If you are concerned about coercion of students into abandoning pagan symbols it is also fair to worry about coercing the school management into accepting satanic symbols.
This conflict is not limited to display of symbols but also to the prayers and surrounding culture of the school. Consider this example : According to Wiki, “Onward Christian Soldiers” is the founders Hymn . The hymn has lines like “At the sign of triumph Satan’s host doth flee; on then, Christian soldiers, on to victory!” – Onward Christian Soldiers [ hymn ]
Now I am not sure if in this particular case students are forced to sing this hymn, but this would be a useful example to analyze the issue in the general case. Suppose that such a hymn were to be sung as prayer – would that be acceptable ? Even though there may be no coercion to sing along it is still jarring because the song clearly talks about destruction of non-believers. On the other hand – does the school NOT have the liberty to sing whatever hymn they want ?
Nature of the school – public or private
We need to first sort out not if the school is Christian or Hindu but to determine if the school in question is public or private. This determination is not as simple as you would think because it is not just about the ownership but about whether a given school is ‘affected with the public interest’ and therefore is expected to pull back and behave in certain ways.
First let us see how this rights dilemma would be resolved in a “Rule of Law” country like the United States or any of the advanced countries. Next we will consider the skew introduced by the “Idea of India” legal regime due to its sectarian processes. Finally we will try to model the current education situation in India in terms of contract.
Symbols and Prayers
The secular test for symbols is whether there is any functional impact on other children that somehow distract the teaching/learning experience. For example you may not allow a kid to wear a sombrero or a distracting Jedi costume to school. This could block the view of teachers and obstruct other students. Similarly loose and skimpy dresses could be unsafe or lead to unwanted problems. The local customs prevalent in the territory where a school is located dictates a lot of what is acceptable even in these cases. In India, Hindu symbols like Mehandi, Bindi, do not have any functional impact at all. The only argument against them can be religious.
Prayers can be as sectarian, warlike, or denominational if the school is private. Advanced countries take great care to clearly demarcate the public from the private. USA for example goes to great length not to fund private schools – even to the extent of questioning grant of library books and school bus routes ! When the institution is public the rules for prayer are simple. Apart from a prohibition on proselytization, prayers that ..” denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” would not be permissible .
So in advanced countries the question reduces to : What are the rules to determine if a school is public or private“. Is it Private? Do whatever you want (subject to general rules for public order, sedition, and the other good stuff). Public ? Play by non-sectarian rules.
As mentioned earlier, the Christian school management is essentially making a business analogy when he says “Why come here if you dont like our rules?” One can argue that unlike a grocery store, a school by nature of its activity is automatically ‘affected with the public interest’ and therefore must be subjected to fair and non-discriminatory regulations. However, let us concede that point and treat the school as a business.
The test for whether a business is public or private is largely rooted in an ancient 1676 judgment by an English judge called Sir Matthew Hale  – who when writing about commercial activities of ports and customs houses coined the term ‘affected with the public interest’. The tests in simple terms –
- If you take government money you are public – end of story. (this part is wrecked by Idea of India as we shall see)
- If you operate under a franchise or license from the crown or govt – your activities are affected with the public interest because you have secured a virtual monopoly
- Natural monopolies such as public utilities, those requiring public right of way are all considered to be affected
Now if a business (like our school here) is affected with the public interest it does not mean the government owns and runs it. It usually means that the rates charged must be fair, non-discriminatory, and reasonable. Each of these terms are precisely selected by western judicial scholars. ‘Non discriminatory’ means you cannot select your customers for special treatment. To give you an example :Airtel holds a license from the govt which controls a natural monopoly of airwave spectrum – hence they cannot offer special rates to Punjabi Males and then say “If you dont like this policy go to Idea”. On the other hand a private wholesaler can offer special rates and finance packages to groups because due to absence of licensing or a monopoly situation he is free to use his best business judgment and discriminate.
The above is just obvious and most people just ‘get ‘ this at an instinctive level. Unfortunately, in India I do not know where the planes of agreement are anymore. This may be obvious but are people willing to scream if these principles of private-public separation are violated?
The school situation in USA and the west are clean – if you take money from the government you usually frame that as a contract. This is called a Charter Contract. Once a company signs a charter they no longer can discriminate or proselytize on the same lines of public schools. The rules are so bright lined that even hosting a prayer meeting for a sick student in a California charter school was frowned upon recently. The liberal and civil rights circuit in the west even forced charter schools to amend its contract when teachers were caught asking children to pray – even innocently 
The obsession in the west to separate the private from public domain especially in education is due to the recognition that separating the Church from the State must involve the domain of public education first. It is through education in schools that a culture can replicate itself, the school promoters gain stature in society, can use the school assets funded by the taxpayer for structured bargaining in other economic areas and so forth.
Barring the few sparks of tension this has worked beautifully for the west.
Now lets turn to India.
The Idea of India as a judicial doctrine
If you believe that school education is the chief method of cultural reproduction is follows naturally that controlling this activity will be a target for those who think strategically.
The 10 Billion dollar secret of India’s education law is that it is sectarian and rooted in religious discrimination. This is how it works for those learning about these things for the first time. India’s constitution has a ‘protective’ shield for minorities in two clauses called Article 29/30. The reasonable reading of these articles is that religious minorities shall be allowed to run their schools and colleges which are essential to preserve their culture. Over 60 years this simple clause has been the subject of such vexatious litigation as huge benches of supreme court judges tied themselves in knots over the issue. Since there are no principles being discussed the whole issue tilted to progressively favour minorities and subject Hindus to ever tightening regulation. This is due to two pulls. First the failure of the socialist state to provision education led to the state taking from private effort. Next this was challenged at each step as minority runs schools repelled each of these efforts that Hindu run schools could not. In early 2000’s a total of 21 judges of the Supreme Court in marathon deliberations over 3 years in TMA Pai series finally ruled that minorities have same protections as Hindus and are not on a higher pedestal . With this everyone thought the matter would rest. The Congress government however immediately upon getting elected in 2004 struck back with a vengeance and passed the 93rd Constitutional Amendment which obliterated the judicial consensus and restored the anti-Hindu tilt. The 93rd Amendment then enabled the innocuously named “Right to Education Act” which imposes toxic burdens and loss of autonomy for Hindu-run schools while exempting in-toto Christian and other minority run schools. I have written about this extensively in this article.
The current situation in India is split along minority/Hindu and aided/private axis as follows.
- If you are a private unaided Hindu-run school – you need to follow RTE rules and need NOC (a No Objection Certificate – a uniquely Indian license) and other establishment rules
- If you are an aided Hindu-run school – you need all of the above and you need to cede management control to school management committee. Essentially a shell.
- If you are minority unaided school – you have full autonomy and the RTE does not apply to you. The NOC process is extraordinary because you can approach NCMEI that Hindus cannot.
- If you are a minority aided school – you still have full autonomy except some very basic service conditions for teachers.
You can see how the Idea of India completely destroys the carefully constructed common law principles of ‘affectation with public interest’. If you are a minority – even if you run on public money you are treated like a private enterprise. If you are Hindu running the school without any government help – you are considered a public establishment.
Post Pramati Educational Trust vs India  the 93rd amendment was held to be valid and the minority both aided and unaided were exempted from the RTE Law, we can try to model the situation as contracts.
One of the key formalities if you want to operate a school is the requirement of NOC (a No Objection Certificate – a license kind of). The NOC alongside an array of mind numbing procedures also stipulates a exclusivity question “Is there an existing school nearby“. Does this sound familiar ? Yes due to the geographical exclusivity these schools are operating under a franchise from the state. I am ignoring another license called the “Essentiality Certificate” that have similar terms in some states are not required of Christians, Muslims, and other minorities. In Delhi only Hindus need the EC as shown in the official rules below.
Any individual, association of individuals, society or trust, desiring to establish a new school, not being a minority school, shall before establishing such new school, give an intimation in writing to the administrator of his or their intention to establish such school. (Rule 44 of the Delhi School Education Rules, 1973)
Here is an attempt at formulating a contract model. You can think that the Govt of India hands out private schools by four different franchise models. You can also use the term Charters if you’d like. The franchises available are :
Maximum Autonomy Franchise (Platinum) : Run the school however you want subject only to public order. Full autonomy in teacher hiring , selection of students, and fees – subject to basic controls only. State will ensure franchise exclusivity by distance criterion for NOC from competitor. You are allowed to perform any kind of prayer and force any kind of dress code and symbols on student body. Can fine and expel.
Medium Autonomy Franchise (Gold) : Run the school with major autonomy subject to basic service conditions for teachers. Some fee control, autonomy of selection of students for at least 50%. State ensures franchise exclusivity. You are allowed to select teachers, force any dress code and invoke any prayer.
Low autonomy (Copper) : Run the school under very specific rules under the Right to Education Act. Lose autonomy for selecting students, force cross subsidy to make up for deficit induced by state. Still retain autonomy in some management matters. Strict non discrimination rules under watch of hostile civil society jury means you cannot enforce uniformity or fee payment.
No autonomy (Clay) Franchise : This type of school is private in name only. All rules of Right to Education must be followed. Fees are fixed, teachers are appointed by caste quota and external govt agencies, teachers cannot be terminated. Management is illusory as real control of these schools are with the School Management Committees.
The mere fact that you have four types are franchises does not make them wrong or suspect. You could imagine that based on geographical and backwardness issues you can allocate more or less autonomy in exchange for government money or in line with social objectives. Once you lay out these types of franchises the question is what are the qualifications for obtaining one of these franchises.
Now if I told you that these are the qualifications :
- If you are Hindu you cannot get Platinum and Gold franchises – even if you offer to foot the entire bill. The maximum you can get is a Copper Franchise.
- If you are a Christian , Muslim or other minorities the minimum you can get is a Gold Franchise.
- If you are a “linguistic minority” you are taking advantage of an escape vent so that the scheme cannot be called ONLY religious. You could, if you have the political clout, get a linguistic waiver and aspire for Platinum or Gold. (But you cannot have the NCMEI bat for you in the NOC stage)
Would you recoil at such an atrocious rule ? This is exactly the situation in India. This is not perpetrated by Sadhvi or Yogi but by modernists, liberals and think tanks support.
Once you model the situation as above you can see where the Christian management draws its arguments from. Despite taking advantage of the virtual monopoly granted by the NOC, the exemption from uniform law, and preferential treatment in allocation of franchise, they do not consider themselves to be ‘affected with the public interest’ and are therefore bound by only by private rules of business.
I have been an observer of various laws and institutions in India on this blog for the past 10 years. India’s education law is spectacularly isolated in the world – there is no country where the majority community faces special burdens by law in this sector. The education law is also remarkable for the complete absence of comment in Indian intellectual, think tank, and liberal circles. For example the Pramati judgment which is of such a monumental nature overruling 50 years of evolution of jurisprudence and stamping finality to sectarian consideration in education – spurred no debate at all !! Even on social media if a handful of us stop talking no one will even know that such laws exist. In a way this is the best example of the liberal bigotry , a close mind without any curiosity. Free speech in its full definition allows the uninhibited discussion of *ALL* aspects, events, and laws.
I call this the business end of Idea of India.
As of today about 44 Indian “intellectuals” have returned their Sahitya Akademi awards. The media which had just got off an outrage cycle on the Dadri murder found a great follow in when Former BJP thinker Sudheendhra Kulkarni was splashed with ink during a book release function in Mumbai.
What followed was a massive media campaign to amplify the attack as an attack on ‘Free Speech’ , ‘No space for intellectuals’, ‘Rising intolerance’. One Sahitya Akademi Returner the Gujarati literary doyen Anil Joshi while returning the award said ”
Joshi said that Monday’s attack on Sudheendra Kulkarni was regretful. “The ink that we use for writing books is being used to attack writers.
This is a very short post that contrasts this ink splash attack with another one during Sonia Gandhi’s heyday.
On Feb 20 2009, Subramanian Swamy was subjected to the following attack I have documented on my blog at that time
- Attack inside the high court premises
- Punches land on Swamy’s back
- Eggs hurled at him – one struck him on the back of the head
- One egg was directly smashed on his forehead
- Another rotten egg found its target and broke on his face splashing contents
- IN FULL VIEW OF 2 JUDGES
- Bad words and casteist slogans were hurled ( ___ dog oliga ) see the linked blog post
- << later the gang burnt a police station etc>> we wont go there
Now this was a 60 year old man, who had come to court to fight Chidambaram Natarajar case. This is what a real attack looks like. What did he do ? He wiped the eggs off his face – then eventually went on to win the case.
NONE of the current intellectuals raised their voice at that time. Shashi Tharoor was very much a rising star of the ruling Congress party then as he is now. There was no call for Sonia to say something. All those who are returning the Sakitya Academy awards today had the award then too. It never moved from their mantles in their drawing rooms. Our media probably even found the whole thing, an egg dripping Swamy hilarious.
In contrast, Sudheendhra baited trouble by conducting the show in Mumbai a victim of terror attacks like no other city. From all accounts it seems like there was no assault involved. He just got down from his car and calmly got his face painted with ink.
What about murder of rationalists ? We will get to that later. Just let the contrasting attacks on Swamy and Kulkarni and the deluge of hypocrisy sink in !
Section 16 of the Right To Education Act is pretty short :
No child admitted in a school shall be held back in any class or expelled from school until the completion of elementary education
This is called the no-detention policy currently in the crosshairs of the Union HRD. Most states want this repealed, the policy experts who designed this during UPA rule are predictably crying murder. In this article, I will remove some of the misleading jargon and clear the smoke from this debate. Hopefully at the end you will see the sheer scale of horrors that have been inflicted on the education sector.
It is extremely important to state in clear terms what one is up against, even more than the position favorable to ones own. In case of the no-detention policy we need to actually get a hold of what it is they are proposing in a more direct vocabulary without falling into the trap of terminology. The task starts with the following observation.
The opposite of hot is not no-hot. It is cold.
The opposite of detention is not no-detention. It is social promotion.
What on earth is ‘social promotion’ ?
Thanks for asking that. See, we are already on the path to freedom by starting to use precise terms instead of a negative. What is no-detention will just be met with “You know what is detention? It is the opposite of that”. And that opposite of detention is the law imposed on 400 Million kids in the country of India.
Social promotion is the practice of promoting a student to the next grade at the end of the current school year, regardless of when or whether they learned the necessary material, in order to keep them with their peers by age, that being the intended social grouping. [Wiki]
The opposite of this is called Grade Retention or Detention. This is the practice of making a student repeat a particular grade if they have not attained the basic learning level for that grade. A variant of this is the so called double-promotion where gifted kids can accelerate to join older students.
The pros and cons of both policies are easy searchable on Google. Let me just state them here and put them in the context of the countries and cultures they are sought to be implemented in. Before we dive into “policy wonkery” mode we need large strategic vision points rooted in reality. I list a few below.
- India is not like Norway, we are a developing country with real constraints in teaching, measurement, and infra.
- India needs a very strong layer of high achieving human capital that can pull the wagons if we want to get out of third world
- India cannot afford mediocrity as the normative vision because a culture of excellence pulls up the median and a culture of mediocrity pulls it even further down.
- India has real issues with equitable access – I have seen many experts who design policy teach their own kids at home using the latest tools on iPads but for the bulk of population the school is the only place where learning happens
- India has a sectarian legal regime in education unlike any other country. Any “policy think tank” that ignores the legal landscape is just plain dishonest and probably corrupt. I will come to this at the end of this post.
Social Promotion : The main argument is that making a student repeat a grade adds to mental stress, lowers their self esteem, and could cause them to drop out altogether. The UPA govt supported by every think tank justified it as – “because examinations are often used for eliminating children who obtain poor marks.. Compelling a child to repeat a class is demotivating and discouraging”. To replace tests, a system called CCE (Comprehensive and Continuous Evaluation) was introduced. ( See “Jiten gulped his tiffin” ) One might wonder what does CCE have to do with no detention. If CCE is just another form of testing, maybe holistic- what if a student shows deficiency in that too? CCE is just a way of assigning high enough weights to non learning factors such as social, personality, attitudes and values displayed. It would then be impossible to separate the wheat from the chaff and measure to any degree of robustness the actual learning that took place vs the other parameters.
The biggest lie peddled by the experts is that social promotion is the ‘settled’ position all across the world. In USA this is still a burning debate. With all its money, high quality of teachers, and heated swimming pools in public schools – school districts from Chicago to Florida to NY, retention and exhaustive testing is the norm. Not social promotion. The testing happens for science, math, english not on extraneous secondary effects like attitudes and values.
Here is Bill Clinton in 1997 calling for a total end to social promotion
“I challenge every school district to adopt high standards, to abolish social promotion, to move aggressively to help students make the grade through tutoring and summer schools and to hold schools accountable for results.” Bill Clinton in LA Times
Indians should not be misled into believing that USA partisan politics is at the same level as that in India. Democrats and Republicans are not very far off when it comes to the issue of testing. Florida improved its reading scores dramatically after grade retention and now outperforms every state on fourth grade reading test. Canada, Germany all wealthy countries do not have a mandated social promotion policy. The single most notable feature in Indian Edu law (ignoring the sectarian nature) is that these burning debates which are happening in the academic circles and in state legislatures are presented as if they are settled issues when the experts return to Delhi. There is no evidence I can find online that our experts in UPA – to be fair the BJP opposition to – have considered any of the global trends and placed them in a third world context.
Social promotion works in developed countries and in upmarket schools that are equipped to deliver what is known as ‘tracking’. Tracking is the process where a teacher is able to handle a class with a wide spread of abilities in kids. The learning levels of each kid is tracked and the appropriate lessons are tailormade. For example a high achiever in Class 5 is encouraged and kept engaged by giving her a tougher homework than a boy who is tailing. As you can see this requires a very high level of teacher training. The stakes are very high because remember what I mentioned earlier, you simply cannot afford to drop the high achiever. These are your future ‘load pullers’ of your country in various sectors from sports to social science to inventors. You also need extremely proficient principals who can monitor these teachers. It is easy to slip up and teach to a low-average level. The high achievers are pulled down but they clear the tests of course but could display attitudinal behaviours due to the ennui that turn into low marks on the CCE value part. Now think if this is possible in India? Teachers are barely trained, only 4% clear the Teacher Eligibility Tests. Experts and thinktanks are now blaming it on “implementation”, in my view this is an irresponsible behavior. Did they now know what works in Finland cant be transported here ?
You may be trained by the Idea of India ecosystem to denounce my mention of achievers as “Brahminism”- you may use words like “Elitism” to couch that even. Beyond name calling, we should learn to recognize the key assets if you want to turn a third world country by leveraging human capital. Behind every success story such as Apple, Google, or now Huawei, there will be a tiny core of very high talent. Others build around that core and supply diversity. No nation has been built pursuing mediocrity or excellence in “values”. The USA even has “magnet schools” where gifted kids are simply brought together and challenged. Other countries have variants of this too. The selection to these schools are highly competitive. The Right to Education Act on the other hand bans all screening. I have documented the case of Jnana Prabodhini schools for talented children in Pune which have been suffocated. The UPA’s focus on abolishing exams even at Std X level, grading instead of marks at all levels, CCE, the continuous denouncing of “coaching” and portraying standardized exams as anti student have had a traumatic effect.
Social Promotions, see I am no longer a prisoner to their terminology ‘no-detention’ , have an even more adverse effect on the equity aspect. The same folks who scream equity from every corner have perpetrated a criminal act of crushing those who do not have access. A mere 25% quota in a tiny subset of Hindu run schools selected by lottery is a sick joke that needs condemnation. What about the losers of the lottery ? These simple questions are not asked by their think tank friends who are supposed to supply a level of intellectual checks.
Things being the way they are – the answer should seek to play to the current situation in teaching. Teachers today can be expected to teach to a compact cohort and teach towards a test. A compact cohort means the students in a class are not completely off in abilities. The testing part is still evolving but can be sufficiently well designed that it can pick out at the top as well as at the bottom. Social Promotion blows both these things out of the water. Today a teacher, not in Lutyens but in Sullurpeta, at Class 6 is expected to teach a class with some students with Class 2 level learning. Some experts on Twitter have the nerve to say “Fail the teacher, not the student”. How about “fail the activists” for thrusting this policy down this nations throat ? In most cases, the teacher either fails or simply drops down to the level of the kid with the lowest ability. This is where the next crime happens.
When the class standard is lowered, the talented kids get bored and display erratic behaviour. Now watch what happens. The kids whose parents are educated themselves will be challenged at home. I’ve seen so many kids at airports working out various Japanese maths worksheets (Kumon). The kid without this background is basically lost. The talent could be gone forever. I have received comments from bright school kids who bemoan the lack of differentiation in CBSE Std X post abolition of exams. This is the worst form of propagating privilege. The hapless teacher however has no choice – she is already trapped by the CCE which has to take into account extraneous factors.
Detention does not mean every kid is detained. There are no numbers – which is another area the experts are now pretending to be anguished after supporting the RTE. My guess is that only 3-5% kids will be detained. With social promotion, kids and their parents are guaranteed a ride till Class 8 so while the upper class can keep tabs on things, the lower class masses tend to take the eye off the ball. They have no idea what is happening in school. Before you teach me about PTA feedback meetings – this is not how it works in the mass schools. A kid who fails in mid terms is usually shaken up and tends to work harder to avoid staying back. Even more importantly the teacher can identify kids at risk of staying back and feed that info back to the parents in addition to tuning her own attention. The ‘experts’ are dreaming if this kind of seriousness will still be around if the Law makes it Illegal to keep any kid back. The teachers, the kids, and their parents will simply slack it out. Currently the RTE stops at Std 8. I am telling you right now that this is a bogus stopping point. The Congress Govt just kicked the can a little further down the road. But if this were to be the end of RTE, then it follows that a mass of students will flop out over the cliff. By that time – it is too late. The only solution is either to extend the RTE to Std 12 which Sibal has hinted at or to employ extremely easy testing or to add in extraneous ‘value’ factors to get the mass of kids over the ropes.
Social promotion is simply a bizarre idea in the context of a third world country of India’s size and aspiration. It is simply stunning that such a wide impact law that strikes at the very heart of our future has been passed with so little comment. Five batches of kids have passed.
Are you an expert ? Have you done field work?
In an article called “Merits of No Detention” Anurag Behar, CEO of Azim Premji Foundation cries foul. That IT-Waity Types like myself are intruding into expert territory. His line is – leave it to experts to design the Air Traffic Control system and amateurs should keep out. This is shockingly ignorant. It confuses separation of labour type of expertise with its more general cousin. I may not know how to design a radar but I will cry murder if someone suggests a traffic signal on the runway for airplanes and forces me to accept that just because he is an expert soi-disant.
PS : Minorities are exempt from social promotion provision. Because the RTE Act lock stock and barrel is not applicable. (Ref : Master Srikanth v Principal Frank Anthony Public School Bangalore KA High Court Judgment) I am not even going into the ramifications of this in this post. It just means teachers in RTE exempt schools will be more effective by law.
The probability that a criminal is caught depends on how much money the state is able to allocate to catch him.
From this flows the basic problem with imitating western arguments in criminology into a poor or developing country like India. Indian liberals are tossing around “certainty” of catching a criminal nonchalantly as if this comes for free. If you see the anti capital punishment literature in the United States they almost always compare themselves with other advanced, developed, OECD, countries. It is not even clear that the following three components of criminology – catching a criminal, a fair judicial process, a mature system of incarceration – are all that accessible to a poor third world country. Especially one like India where the rule of law is vitiated by extraneous considerations and identities.
Beneath the visible layer of law and police there exists strong societal currents with their own instincts and expectations. The grand project has always been to collect these instincts, see if any common threads can be teased out into a code or rules, and invest the state with enforcing the replacement code. The replacement provided by the state is visible to us as a system of law and punishments represented by Khakis and Blacks that merely substitutes these instincts. There are compromises to be made by all groups while accepting this code. Biological instincts are among the most important.
A physically weak person whose child was murdered would want nothing more than death for his child’s killer. But without allies. he on his own steam may not be able to apprehend a murderer. The weaker person is therefore likely to consider attractive the certainty of the state catching and jailing the perpetrator for one year. His basic instinct flowing from the Amygdala (the part of the brain that guides emotion) is all the time screaming “..revenge you wimp!”. Invariably after the initial flood the Amydgala’s screaming is overwhelmed by chemicals flowing from the Cerebral Cortex (the calculating part). The Cerebral Cortex probably goes “Look man, I know my friend the walnut sized Amydgala is the honorable response that befits a dad, a man, but look at you – you have no weapons, your limbs are weak, your allies are unreliable. Why not take the state’s deal – let them catch him and jail him for a year”. The stronger guy may never encounter this biological tete-a-tete – because he fancies with good reason that he has the resources to catch the killer himself and exact retaliation. However, even the strongest guy is aware that entering into a feud is a very costly affair. These pulls and pushes guide and balance the law of retaliation just below the surface of formal legal processes.
This long digression was needed to show that behind violent crimes there exists real victims and families who deal with these raging chemical reactions in their heads on a daily basis. Neither you nor I can understand what it feels like to be Rimpa Halder’s dad – nor the parents or children of modestly dressed folks whose naked limbs and torsos were stuck to buildings in the aftermath of bomb blasts. The real evaluation of the Indian state is happening as we speak. Not just in CAG reports or by politicians but by millions of common folk. People watching how other folks experience interacting with police and law. The arguments these common people seek are not what international think tanks offer about ‘uncivilized Indians‘ but what folks who have the ability to put themselves in someone else s shoes are able to see.
Jaideep has an excellent article on Retribution , so I wont repeat his points here. Suffice to say that India is no different from anywhere else. Every kid in Tamilnadu learns in school about Kannagi who took revenge on the entire city of Madurai for an incorrect judgment from the Pandiyan king. This does not automatically lead to an eye-for-eye doctrine of course, but the deep rooted instinct has to be recognized.
To wrap up – here are more practical questions that Indian activists and think tanks are evading. They interest me less than the meta issues involved, but just stating them here.
- Mr Tharoor “proved” on a NDTV blog that capital punishment had no deterrent effect , quite a remarkable achievement considering scholars from across the world have struggled with it for ages. The argument goes : In 1990-2000 there were 10 executions but murder increased – but between 2000-2010 there was only one and murders decreased. Quite a stunning conclusion. These are complex multi variable issues that cant be naively analyzed like this. What if the deterrent effect kicks in only after a certain threshold? Say 500. What about the fact that encounter killings increased in that same period (2000-2010) that replaced the deterrent effect of formal execution? What if fewer prosecutors push for capital punishment because of the costs involved?
- The rarest-of-rare doctrine is actually a serviceable or workable sentencing guideline. It is clear that murders of passion, routine cases of which there are numerous of, even cold blooded murders arising out of feud etc fall on the other side. If you cant even service this guideline it is not sure what else can be done. Any guidelines has to have enough headroom so as to accommodate enough individual cases into categories. Tharoor says, criminals who commit crimes in heat of moment rarely pay attention to punishment schedules. On the other hand, cold calculating conspirators that carry out terrorist activity surely pay attention to the prevailing penal landscape. After all, they have to go out and recruit willing folks who carry out attacks on the ground. So it is not a true statement that criminals are never aware of these things. One can even argue that taking capital punishment off the table makes it easier for terrorists to recruit minions to carry out their diabolical plans.
- Tharoor (CON) and Varun Gandhi (BJP) castigate the judicial process itself for being biased. I fail to see how this is a fair argument. Is it okay if a broken judicial process docks an innocent guy for 45 years in jail? These are tangential and shallow arguments. The clinching point they fail to mention is that capital punishment convicts receive a FAR more thorough hearing through the appellate process than life convicts ever will.
- Lawyer activists never actually help out at the trial stage. Only when it comes to their neighborhood in the Supreme Court they go all out and denounce and cast aspersions on the trial court proceedings. They gain publicity for their rants through a willing media which these days are ready to take up anything anti-national. Why dont they put their money where their mouth is? Go to the district magistrate courts – pick a criminal case – stay in a hotel and help fight the trial for free?
- Copying western arguments on deterrence. In western countries with a high standard of living, there is a huge disincentive not to be in jail. Outside you have wine, bars, beaches, the Rivera, jobs, a $50,000 per capita, clean air, public services – inside you have an stainless steel mug. In poor countries, the deterrence effect of jail is highly debatable. Can anyone say that the squalor of a slum on the edges of a sewage river with uncertainty of income, food, petty rivalry, oppression is desirable compared to jail ? You are guaranteed food, safety, clean clothes, some work, exercise which so many can only dream of outside.
The thing that bothers me most about think tanks and liberals in India is that they completely skip inconvenient material. They decry the sentencing issues but keep quiet on the mercy process. The real moral hazard is the following.
A and B are both sentenced to die after the culmination of a long judical process.
A is pardoned by politicians.
B is not.
This is a sure fire way to take the winds out of the pro-DP crowd sails. I am speechless personally and am force to concede all points. Upon closer inspection, this argument is alarming. What they are really saying is : We, the politicians, using the mercy process will hold the system hostage until you concede.
In effect they are using the arbitrary political process to vitiate the legal process and then use that very subterfuge to attack the judicial process itself as arbitrary !!! A lot of everyday folk are busy with their own lives and are unable to see bogus justifications. For example : a lot of young right wingers repeat that Rajiv killers case was different because they had a 11 year delay on mercy petition. The question you should be asking is “Okay, why didnt Yakub also get a 11 year delay.”
I cried hoarse when Pratibha Patil and P. Chidambaram of the Congress Party commuted death sentences of most gruesome criminals. This is a kind of sneaky behaviour that must be caught early on and politicians who ran these programs made to account for it.
The education wing of the RSS – Bharatiya Shikshan Mandal (BSM) recently announced that it would launch a judicial as well as legislative campaign to relook at the minority-majority sectarian split that lies at the root of the Indian education system both at the school and college level. As per a very short media report :
“So, the definition of minority status should be reviewed for which there should either be a Supreme Court intervention or a constitutional amendment. We want to explore both the possibilities,” Kantikar added –Source : IE
Hasan Suroor is wrong in Firstpost
This is a high impact development that has received the expected burial in the main stream media – except two pieces. In Firstpost and another one in DNA. Both of these pieces denounced the RSS moves – let us see if their arguments carry any merit. Hasan Suroor says :
Why the RSS is wrong on minority educational institutions ? Some of India’s most famous islands of academic excellence are minority institutions. St Stephen’s, Delhi; St Xavier’s Mumbai and Kolkata; Loyola College, and Madras Christian College, Chennai; St Joseph’s, Bengalaru; Christ College, Pune; St Francis College for Women, Hyderabad — just to name a few — are secretly sought after even by those who oppose them publicly for political reasons. But, the RSS, of course, can’t stand anything with a minority tag; Source Firstpost (emphasis mine)
Well, lets dimiss this style of argumentation for a second. There is no reason for anyone to ‘stand’ anything with any tag. The RSS can easily counter this by saying – “But, the Idea of India ecosystem led by Sonia Gandhi’s Congress Party, can’t stand anything with a Hindu tag”. In fact, they would be more correct than Mr Suroor because the RSS are specifically calling out a discriminatory law while you are just waving hands. So, let cull out all these wild ad-hominems and see if Mr Suroor is making any sense otherwise. Mr Suroor goes on to claim :
The trouble is that Mr Kantikar has got his facts all wrong. Either, he is genuinely ignorant and, if so, it doesn’t exactly reflect well on RSS credibility; or he is deliberately twisting well-established facts in other to mislead.
Well Mr Suroor isnt right on the facts either. The contentious piece is this :
“The low percentage of minority students in minority institutions is handiwork of judiciary and government. On top of the Supreme Court ruling in St Stephen’s College case that no minority institution can admit more than 50 per cent of minority students, the government insists on imposing its SC/ST reservation policy (22.5 per cent) on minority institutions too. Added up, this means 72.5 per cent of the seats are automatically beyond the reach of minority students. So where is the scope for a higher minority intake in minority institutions?” asks Dr Tahir Mahmood, ex-chairman of the National Minorities Commission, and member Law Commission of India.
There is a basic maths error here – even if 22.5% (of the total) is imposed on top of the 50% minority quota – only 50% would be out of reach of minorities and not 72.5%. Even in institutions with an SC/ST quota it is imposed pro-rated on the 50% – therefore quota is 12.125%. We will come around to the real facts later in this article but lets turn our attention to the DNA Editorial opinion.
#realitycheckEdit The RSS Bogey – the DNA Edit is incoherent
But rather than being influenced by ideologically motivated entities like the BSM, it is for the State to ensure that the minority status is not being misused. For example, it can stipulate that all minority aided institutions must follow the official reservation and recruitment policies. .. . An important question to be raised is the BSM’s motivations. In a country with shockingly poor learning outcomes, the BSM appears to be unhappy that more non-minority students are choosing to study in minority institutions. The BSM would have done better to campaign against schools denying admissions to EWS students under the RTI Act and the poor teaching standards in government schools. By choosing to rail against minority institutions, the Shiksha Mandal is missing the woods for the trees Source : DNA Editorial “The Minority Bogey”
I think the DNA Editorial team means to say RTE and not RTI. Aside from the general sloppiness the edit is also incoherent. The whole piece is essentially a call to ignore the RSS and BSM because they are “Ideologically motivated entities”. The editorial also calls for stipulation that minority institutions to follow reservation policy and recruitment. Ahem! This is exactly what the BJM is calling for! This can only happen if the body of laws and regulations are reopened as RSS/BSM wants. There is no way to arbitrarily stipulate these new rules. The current legal position is not only a product of 50 years of communal activism in education but also of the policies of the UPA government over a decade. That regime under the leadership of Sonia Gandhi enacted the 93rd Amendment , established the NCMEI, and passed the Right to Education Act. All of them explicitly discriminate against Hindus. The closing of the edit is meaningless – you cant tell RSS what to do. They may also push for higher maths and science standards in govt school in addition to taking on this challenge.
Why the RSS and Bharatiya Shiksa Mandal (BSM) initiative must be welcomed
Now let me explain why the BSM initiative must be welcomed. The rest of this article lays out the spread of education laws and the sectarianism that has been baked in. Those who are just education consumers may be less than impressed but remember these are life-death issues for those who are trying to be suppliers.
The real facts about Minority quotas
For aided minority institutions
The rule established by St Stephens judgment is 50% must be from the minority community. Unfortunately the expected precision is lacking from most judgments in this area. The rule was that the state can regulate intake in minority-aided institutions no more than 50%. This has come to mean in practice a 50-50 split with the minorities granted their own admission rules in the open category 50%. They are exempt from the OBC quota and it isnt entirely clear if they can be exempt from SC/ST quota too. See the cases in Sindhi Educational Society v NCT Delhi (2010) SC and Federation of Catholic Faithful vs Tamilnadu (2014) Madras HC. We will get to this in a moment. It is also important to note the distinction between aided schools vs aided colleges. Post #RTE the aided minority schools are exempt from the law in toto.
For unaided minority institutions –
There was no set rule. After the cases in the TMA Pai troika the minority and Hindu run unaided institutions were on the same level (give or take a few). Post enactment of the 93rd Amendment and the RTE Act the ground has completely shifted from under the Hindu unaided schools. This is why the RSS/BSM move is of an urgent nature. The entire gamut of top schools across the country from St Columbas to Bishops to Campion to La Martiniere fall under the unaided minority category. The essence of the argument is – schools that have low minority student ratio are exempt from all burdens imposed only because the management happens to be clergymen or individual minority born persons. This leads to the following absurd situation for example :
where Christian run School with 5% Christians is exempt but Hindu school with 5% Christians is met with full force of the burdens imposed by the law.
There have been efforts in Karnataka and Maharashtra to peg the minority student content anywhere from 25% to 75% – but they have not been fructified because the folks are unable to think with clarity and establish new principles or even to defend existing one. If I may speak for a moment on behalf of RSS/BSM – this is the hub of the issue. Parity.
Benefits of minority status in Indias education sector
First folks have to understand the astounding benefits that ‘minority’ status bestows on an educational institution. Here is a quick summary.
Note that this list varies in minor ways from state to state. Some go over and some under. The general benefits remain the same across all states.
1. Aided minority institutions are usually aided upto 95% of the salary of the staff. This comes out of all taxpayer money. This is where St Stephens case (1991) got it wrong. The state is essentially subsidizing 50% christian quota by tax money which all Indians including Hindus, Christians, and Muslims pay.
2. Minority Aided schools or colleges do not have to follow the TEACHERS quota for SC/ST. They can promote a pure meritocracy (whatever that means) or innovate in this matter. ( See Sindhi Society Case )
3. Minority Aided schools or colleges can hire Hindu faculty without any limit. Only the top management is permanently with the clergy. For example : St Stephens has a large Hindu teaching body.
4. Minority Aided can apply own selection criteria for students. This was actually the real issue with St Stephens case (1991). They wanted to add a written test + interview on top of DU rules. The court allowed them that autonomy. Today Stephens is able to break the grade inflation induced tie-breakers by conducting a written test and interview. Hindu colleges have to follow DU rules strictly.
5. Minority Unaided and Hindu Unaided pretty much has the same freedom after TMA Pai. But as soon as CON swept into power in 2004 the first thing they did was demolish TMA Pai by passing the 93rd Amendment. As it stands the wording of Article 15(5) – introduced by the 93rd Amendment – is very wide and practically transfers the entire (unspecified) social burden only on Hindu run schools and colleges. The language also redundantly and explicitly excludes minorities.
6. Minority aided can innovate promotion of their teaching cadre. They need not follow seniority rules, or go to the govt employment exchanges for new vacancy. They can advertise and recruit on their own. Denied to Hindus
7. Minority aided college need not have a University nominee on board. Even one. In many cases, including St Stephens the Church of North India clergymen have total control of the affairs of the institute. Similarly minority schools need not have a Govt Education Officer on board. The ratio in State of Kerala v Very Rev Mother Provincial (1970) still holds the field. In that case, the impugned provisions were like this. Minority colleges were to have a governing board of 11 members – 6 from the college itself (thus a simple majority) and among the balance of 5 the principal and manager of the college. Thereby making up a majority of 8-3. The remaining three were to be University Nominee+ Teachers nominee + Govt appointee. Even this hopeless minority oversight of these taxpayer aided colleges were rejected by the court.
8. Minority colleges (Aided by govt) are completely exempt from OBC quota. They are also exempt from the SC/ST quota post a 2014 judgment that interpreted the 93rd Amendment to be so. News report “Minority colleges out of quota purview” and judgement in Federation of Catholic Faithful vs TN
9. Minority colleges in Mumbai also have a 15% management quota on top of the 51% set aside for minorities. They are free to fill this with anyone.
10. There is no need for Minority to be run by a religious trust – a single minority person can run a school and get all the exemptions. Deccan Education Society vs Karnataka.
11. The minority institutions can impart a totally secular education identical to that imparted by the HIndu school across the street. This is actually the crux of the issue in a epic 9 Judge Bench in Ahmedabad St Xaviers vs State of Gujarat (1974) a 44 year old case. Among other things like exempting St Xaviers from University interference in selection the case delinked ‘preservation of culture’ (Art 29) from ‘right to establish and run’ (Art 30). At this point, it isn’t exactly clear how the below absurdity does not follow.
Do institutions established by minorities that are engaged not in preservation of culture, but destruction of culture also avail of legal exemptions? Conversely Can a Hindu establish a school that has a clergyman come in and conduct regular Catechism and then avail of minority benefits because obviously he is promoting preservation of culture that even Stephens and Xaviers do not insist on?
These are simple absurdities that would never get past the “Golden Rule of interpretation” that western societies have evolved over time from the period of Modernity. Is this alien to Indians ?
12. Takeover of minority institutions. Tamilnadu and other states have excluded minority institutions from takeover provisions, at best, they can appoint a minority member beloning to the same religion. [ Refer to News Report “State cannot takeover minority school management“] Most folks may not have heard of the All Bihar Christian Schools vs State of Bihar, a landmark case where the state took over non -minority schools. The rule today is : only if a minority school itself makes a representation to takeover that is possible.
13. Permission to expand class size and hiring. A minority aided school in many states like TN can first expand to cater to demand and then apply for aid to pay for the new teaching/non-teaching staff capacity.
14. Selection of teachers. No university, govt, civil society, or teachers union (body) representative can be imposed on the selection panel when hiring teachers in minority aided colleges. In Hindu colleges in addition to faculty reservation and other rules regarding seniority based hiring, there is presence of govt,university,and teachers.
15. Private goods. The Congress government with such scholars like Shashi Tharoor in the Humam Resources Department ministry introduced schemes like IDMI which were grants given to private minority institutions and denied to a similarly situated (and bearing all of the above legal burdens) Hindu school across the street. This may be an aberration and may not be repeated in the current MHRD, but lets not forget 2019 is not far off.
16. Establishment. A minority and Hindu have different processes – while a number of formalities may appear to be the same, minorities who face difficulty in obtaining a NOC (No Objection Certificate) in the states can approach the NCMEI and get that case heard by a minority only panel. The NCMEI also has the power to issue a minority certificate. This is not a minor issue (no pun) as the NCMEI has issued thousands of such certificates post the 93rd Amendment. See my article “Bulkwarks erected against redefining minorities in India’s education system”
Post #RTE the situation has dramatically changed.
Prior to the 93rd amendment ; even though the aided minorities were getting all of the above benefits denied to Hindus, the unaided institutions were on parity more or less. However, the Congress Govt aided by the Sonia Gandhi NAC, disrupted the status quo. Even though the public face of Congress is goofy the inner core appears to work strategically. The Congress first passed the 93rd Amendment to the Constitution and then instituted the NCMEI. I have blogged about these TWIN initiatives of Congress extensively in “A Brief History of the 93rd Constitutional Amendment“. Post RTE the Hindu institutions are under an open-ended liability under a statute capable of very wide interpretation. There is no rationale to either the 25% quota nor to the stopping of quotas at Class 8. The NGO activists who spun off from the Congress party’s NAC and founded the Aam Aadmi Party are now taking this further. They are now slotting various conducts of Hindu run schools into a criminal code. For instance, a screening procedure – which is an essential component of autonomy – would result in MINIMUM 5 year jailterm and a MAXIMUM 10 year. A school principal who decides who to admit is being punished like a rapist murderer.
To give you an idea of how skewed the 93rd Amendment is – I present this passage from the Sindhi Education Trust v NCT Delhi (2010) case
1. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any social or backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This Article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the Article. But, the framers of the Constitution have specifically excluded minority educational institutions from operation of this clause
Framers of the Constitution? Really?
Article 15(5) was introduced, not by Ambedkar or Patel – but by Congress stalwart Arjun Singh aided by Sonia and likes of Kejriwal in the NAC. Are these the framers of the constitution? This is the real problem with an unchecked culture of amendments that mutilate the original document. We confuse the ‘framers’ with the ‘mutilators’. In the end there is no spirit – the amendments are several times more voluminous than the original.
This sectarianism in education only in India ?
There is no country in the world with this skew. There is Ireland – but Catholics are a majority there and there is already a movement afoot to start a debate on that. One can raise the issue of state funding Catholic schools in province of Ontario in Canada. Catholics are a minority in Ontario but majority in Quebec. This is a rich country with quality public schools and this special protection was negotiated by a 150 year old treaty. There is already a debate in Canada to end this. United States has the cleanest separation – the state will not touch by way of taxpayer money any religiously controlled school or college. France has issue too but once again France is majority Catholic (nominally). Iran ironically, the country of Fali Narimans forefathers outlaws minorities from running schools. UK faith based schools can be funded but they must be faith based not normal schools merely controlled by practitioners of a certain faith. Face it ; this is a unique Indian invention. I fully understand that India does not need to copy the western societies and can blaze its own path, so I wont dwell on this further. It is however important to keep in mind that equality is the norm everywhere and India is the outlier.
Should minority body be the yardstick?
This may not be desirable but is better than the current definition. Insisting on a minority student body at , say 80% places a natural check on the ability of these institutions to proliferate. Once again, I remind readers that no one is against CHRISTIANS or MUSLIMS or JAINS operating schools under the SAME rules as Hindus. They are free to proliferate under a secular law. I had to sneak in this obvious sentence to avoid being accused of various atrocities. The reason this rule wont work in the short run is the quantity of minorities must be high enough such that Hindus do not misuse this route and turn it into an absurdity.
For example if the minority quota is only 10%; and the rule was minority body is the yardstick; then a Hindu should also be able to start a school with 10% minority quota and gain the exemption.
Suroor castigates the RSS for not railing against the linguistic minorities. I think he is wrong on that, from media reports it is clear the RSS wants to introduce a non-sectarian regime in education. That would automatically submit the linguistic minority to the same regime. On a side note, while linguistic minorities are equally abhorrent to equality in edu. If you believe in the logic that there are forbidden grounds for discrimination then linguistic minority is a lesser evil than religious or racial minorities.
The way forward.
I hope I have explained how despite the crass name calling from the Liberal and Idea of India camp – it is the Chaddiwallahs, that have modernity on their side in this particular case.
Now, what is the way forward.
To find a way forward there needs to be practical compromises keeping in mind principles of harm. Why should this be discussed at this time? First everyone must admit that the RSS and aspiring Hindu education providers have clinching arguments from their side. The current situation is also not a tenable one because due to social media it is no longer possible to divert peoples attention or to prevent the debate from taking place entirely. Some intellectuals lament the absence of ‘constitutional method’ – here is RSS using a constitutional method and is being ignored completely or being attacked for wearing Chaddis. For constitutional methods to work India needs folks with genuine curiosity and honesty, those who can spot valid arguments and engage with them irrespective of who is making them.
The tourist town of Mahabalipuram (Mamallapuram) in Tamilnadu about 60 odd Kms south of Chennai has the following rule.
- All Cars/Vans entering the town pay 40 Rupees
- All bikes pay 10 Rupees
- This is not linked to any actual tourist visit – even transiting the town attracts this toll
There was a news item in todays Deccan Chronicle print edition that one Advocate Sudhan has approached the Madras High Court against this practice. Apparently he was approached by some youth who stopped his vehicle and demanded Rs 40 – he protested and approached the Police station in Mahabalipuram. They dissuaded him and warned him some big shots were behind this and asked him to be careful. He then took the case to Madras High Court. I personally have faced this and have managed to control my rage. I am so happy that someone has tried to bell the cat. This issue may appear to be a trifling one but I think this case involves some very fundamental issues.
The basic question is this
Can residents of a town, which is in endowed with some tourist attraction impose a toll on all outsiders ?
Yes. Why Yes?
No. Why No?
Is this question worth examining in detail ? Is it simpler just to fork out the 40 bucks and not exert brain cells over this ? This is exactly what millions of people have been doing for years now. This issue is now before Chief Justice Kaul – let us see if we can examine this issue and extract any ground rules/principles. Before that the toll imposed must possess the following three characteristics.
First : The town is endowed with a tourist attraction that is immovable by nature. For example – the town has a geographical feature, an archaeological or historical structure. If the town has a less permanent attraction ; like Bars, Hotels, a Fair – then those are mobile. If the tolls are high those attractions can move.
Second: The tolls are collected by a local body. This is not just a bunch of thugs. They are youth hired by the local government to collect the tolls.
Third : The tolls are not specific to any specific goods or services. In Mahabalipuram – you have to pay a separate fee for parking, fees for each tourist monument. You may not visit any monument but you still have to pay the toll. It is basically an entry tax. There is a by-pass road nearby but that does not in any way mean you are prevented from transiting Mahabalipuram via the town.
Given the above three properties of the toll. The following arguments will certainly be advanced by its supporters.
Look punk we are local body govt who represent the town of Mahabalipuram. We are lucky to be endowed with archaeological structures and we have every right to monetize the tourist flood. This toll money will be used for various goods.
The argument sounds good but is actually hollow. The fault in this argument is not if they can monetize but how they monetize. The tourist flood spends tons of money in various shops selling trinket and food. This is how the majority of townfolk get the money. Also each service such as the parking lot charges separately. Those are legitimate income streams. Imposing a tax on all Indians entering the town is not because it impinges on freedom of movement (Art 19(4). The fact that there are a) zero services in exchange for this money and b) that only paying the toll buys you the freedom of movement only proves there isnt any grounds for restricting this.
So my rules would be as follows.
- No entry tax for any town
- Tolls allowed only for roads that are specifically designated
- No local body has power to impose entry tax on anyone unless there is a law passed by the state legislature to that effect
- If there are other kinds of tolls they must be in exchange for a very specific service such as parking, paid toilets, etc
Another variant of this abhorrent practice seen in almost all temple towns in Tamilnadu goes like this. You go in a car and park anywhere near the temple – say 2-3 streets away – some kid will run up to you and stick a token in your hand for 20-50 bucks. There is no explicitly marked parking lot. Therefore this is just an tax on anyone who comes to the temple in a car. The politics behind this are very simple. Local dominant groups trying to extract a tax from outsiders in the absence of weak legal framework.
Ask yourself – you agreed for 40 bucks. Will you agree for 100 bucks? What if you had a car load of kids eager to visit ? What if you were poorer ?
Hope this petition succeeds and all tolls levied by local bodies that are in the nature of entry toll are declared illegal.