India's secularism- part 1

Indian 'Secularism' as I came to know it


Indians are generally ignorant about their Constitution because the government has no initiative to educate them about it. I never have seen a copy of it, only an e-version after the advent of inter-net. But I do have a free copy of the constitution of my domicile country- South Africa . The majority of Indians who do not have access to the inter-net have no chance to see even the e-version of it.

However, referring to constitutional clauses without knowing what they really entail has become second nature to us. For example a discussion about religion and related matters does not end without defining secularism and often these definitions are misleading and confusing.

It is in this context that I wanted to study secularism in the context of Indian constitution as well as how it was practiced in traditional India?

Secularism since independence

Indian Constitution "did not contain the word 'secular' except incidentally in Article 25 (2)(b)". It was in 1976, twenty six years after India became a constitutional democracy in 1950 that secularism was added to it by the 42nd amendment, that too by the autocrat of the Nehru dynasty Mrs I. Gandhi.

The amendment clause is as follows:

"Proposed to amend the Constitution to spell out expressly the high ideals of socialism, secularism and the integrity of the directive principles more comprehensive and give them precedence over those fundamental rights, which have been allowed to be relied upon to frustrate socioeconomic reforms for implementing the directive principles. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities,whether by individuals or associations."

The amendment does not define what secularism is. Given the parliamentary terrorism introduced by Mrs. Gandhi into Indian democracy under National Emergency she declared the year before and the suppression of civil liberty and press freedom followed thereafter, I really wonder what was her intension behind the amendment.

Secularism means separation between State and religion, that is total non-interference of one from the other.

From the wording, it appears the Amendment did not mean to spell out anything new about secularism but only to 'spell out expressly its high ideals' already contained in our Constitution.

What were the high ideals contained in our Constitution?

In 1947, when India became independent, Sardar Patel the Deputy Prime Minister of India ' pledged that the Government of India would reconstruct the Somanath temple destroyed in 1025 AD by the Muslim invader Mohammad Gazri and the Cabinet presided over by Jawaharlal Nehru agreed that the government would bear the full cost of it. Gandhiji opposed the plan suggesting the money for Somanath reconstruction be collected from the people for it was a Hindu religious issue and his wish was respected.

K.M.Munshi was the chairman of the committee for reconstructing the temple. After the installation of the temple on May 11, 1951, according to Munshi J. Nehru chided him for his involvement in the temple construction, 'I don't like you(r) trying to restore Somanath. It is Hindu revivalism'.

The change in Nehru could be attributed to the 'secular' ideals included in the Indian Constitution passed in 1950. Means Indian secularism stood for the separation of State from the religions. But it was not expressed openly. And WHY?

Has India got a secular legacy?

There is an argument going that secularism is a western idea and that it has no relevance to India. So it entails to look at whether secularism has any relevance to India.

Secularism means separation of State from religion. Religion here means institutionalized religion not personal religion.

In traditional India, as far as I know, there was no trace of institutionalized religions.  Remnants of Indus valley civilization show no trace of religion as a social institution. The moral life of the period was based on a cause and effect spirituality or a search into one's own existence or to the Self. Whether god (no deities) was central to it or not the search was intuitive and rational. Individuals enjoyed their freedom to pursue any philosophy in search of his or spirituality which had nothing to do with the State and its governing. So in traditional India, spirituality was an individual experience and hence State was separated from religion.

So my point is that secularism is not a foreign or a western idea to  India.

Contrary to the past, when we come to the contemporary religions like Hinduism, Christianity and Islam they are institutionalized religions; their canons and practices are centrally controlled by gods or similar powers in the heavens in whose desire are sent down messiahs or prophets who designed the dogmas and traditions the believers are supposed to follow. Ultimate purpose of those religions is to attain salvation -heaven- through conformity with the dogmas and the fear of hell, in the after life and not through a cause and effect spirituality, intuition or rationality which enables individuals  to take control of his or her own life choosing proven values.

Such religion institutions while posing to be seats of god and spirituality ironically enjoy power and prowess through numbers-followers. Politics is another institution that enjoys power through numbers. So the making and the function of these two institutions itself warrant an unholy affiliation between the two. Religion being a crowd puller on its potential to create a sense of collective identity or consciousness among individuals and politics an institution preying on collective identity makes this unholy affiliation a lethal threat to nation building.

Hence for India to sustain nation-building democracy it has to be secular. Religion institutions have to be steered clear of politics and vice versa.

Now coming to the post 42nd amendment era.

I had already mentioned how Mrs. Gandhi had unleashed her political terrorism under the cover of National Emergency. Given the way she and her party conducted the business of Indian democracy there after, one can say, nothing had seemingly forthcome out of her 42nd amendment tantamount to spell out secularism 'expressly'.

  To the erstwhile dynastic and colonial elements that waited on the wings to piece India into minority and savarna cantonments, Mrs. Gandhi's autocracy, disregard to law and order, mastery in rigging parliamentary elections etc gave the best chance. To the majority who still kept the flame of old secular and humanistic ways of life at heart and passionately and passively followed the rulers, Mrs. Gandhi was a bad example. Her scant regard to modesty, morality and humanity diminished their hopes and trust in a national leader. Her selective promotion of varna Hindus and the minorities to key civilian and parliamentary positions over the majority and the intellectuals were open calls to comunalism which went against India's secular traditions. In short, instead of spelling out 'expressly' the secular ideals, Mrs. Gandhi's post 42nd amendment promoted nonsecular elements in Indian politics which would cast a permanent shadow on the sky of Indian secularism.

After Mrs. Gandhi, came other leaders from Congress and other parties. Their decision not to tamper with the nonsecular constructs of Mrs. Gandhi was unanimous because they benefited out of them. The term 'vote bank' was coined in the Indian context to mean Indian constituencies chose leaders not following their statesmanship or leadership qualities but caste, religion or varna/racial affiliation.

The post-Mrs. Gandhi chapter of India saw the worst form of vote-bank politics. The two non-congress political parties, the BJP and the Janatha Dal, entered the fray through wooing the OBCS- the indigenous people of India battered and discriminated for generations by the so called savarnas- and the premature implementation of Mandal Commission Report, Ram janmabhumi sensational drive all pieced India into further communal cantonments and finally destroyed all chance of India to be a Nation.

In conclusion

Secularism as separation between politics and institutionalized religion was enshrined in the Indian constitution. And there were Indian leaders who maintained that provision. But those ideals were not spelled out expressly in the Indian Constitution. Secularism is an Indian legacy. Modern religions are non-secular. Their communal interests are in conflict with the parliamentary democracy off the State. Indira Gandhi's 42nd amendment of the Constitution was intended to spell 'them out expressly', but her political action only plunged India into communalism and fundamentalism.

ref.

http://www.iheu.org/node/298

http://indiacode.nic.in/coiweb/welcome.html

Relevance of the Kerala OBC Act 1995.

Relevance of the Kerala OBC Act 1995.


The Kerala State Backward Class’s Act was passed in 1995. It was declared unconstitutional by the Supreme Court of India in 1999, the judgment of which is Known as Indira Sawhney vs. Union of India and Others (ISII). For more details click here

In this post I am looking at:
(i) The relevance of the Act and (ii) whether the judgement was constructive and positive in terms of the development of the OBC castes as deemed by the Constitution of India.
My concerns emanates not out of my legal expertise. Though the laws are made by the legal experts, it is in the responsibility of the ordinary people to try to understand them being the law’s targets. Mine is an attempt in that direction.

I have highlighted in my previous post that the Kerala government did not do a great job when it did not act promptly on the instructions of the ISI. It neither investigated to find whether there really existed a ‘creamy layer’ among the OBC and what was their socio-economic conditions as well as competency level with the forward castes.

Instead it passed the Kerala OBC Act. Yet the intent of the government to continue providing for the development of the Other Backward Castes of Kerala given expression in the Act was relevant.

The following were the key to the Act in the context of the above relevance.

Article (3) Declaration: - It is hereby declared, having regard to known facts in existence in the State—
(a) That there is no socially advanced sections in any Backward Classes who have acquired capacity to compete with forward Classes who have acquired capacity to compete with forward classes; and
(b) That the Backward Classes in the State still not adequately represented in the service under the State and they continue to be entitled to reservation under clause (4) of Article 16 of the Constitution”.

The ‘known facts’ on which Article 3 was based, in my understanding were the facts to support the non-existence of any socially advanced sections among the OBC that had acquired capacity to compete with the forward classes.

But from the ISII deliberations, I understand that it did not pay any attention to this non-equality concern between the OBC ‘creamy layer’ and the forward Castes instead it misinterpreted the ‘known facts’ as the facts that were hidden to deny the existence of a ‘creamy layer’ among the OBC.

See the following from the ISII judgement: “sub-clause (a) of section 3 states that according to ‘known facts’ the backward classes in the State were not having the capacity to compete with the forward classes i.e. in effect, there was no creamy layer in the Kerala State”.

This interpretation is wrong. Article 3(a) that OBC had no capacity to compete with the forward castes did not mean that there was no creamy layer, but that the ‘creamy layer’ was not equal to forward castes.

That mentioning was made about the ‘advanced sections’ of the OBC in Article 3 further proves my point; ‘advanced sections’ meant ‘creamy layer’.

That the state did not identify a ‘creamy layer’ was no reason to scrap the Act. Even if it had identified a ‘creamy layer’ among the OBC, it could have still made that legislation on the basis of the above facts.

The following statements from the ISII further proves my point.

“Did the Kerala Legislature have any facts before it to say that there was no creamy layer?

“We shall, therefore, have to examine whether the legislative declaration in section 3 of the Act that there is, in effect, no creamy layer in the State of Kerala is one made by ignoring facts which do exist”


Since argument against 3(a) was based on false premise as explained above, its verdict also lead to faulty conclusion.

Verdict on Article 3

“In view of the facts and circumstances, referred to above, we hold that the declaration in sub-clause (a) of section 3 made by the legislation has no factual basis in spite of the use of the words ‘known facts’. (ISII did not touch the real facts). The facts and circumstances, on the other hand, indicate to the contrary. (What facts)
In our opinion, the declaration is a mere cloak and is unrelated to the facts in existence. The declaration in section 3(a) is, in addition, contrary to the principles laid down by this Court in Indira Sawhney and in Asok Kumar Thakur. (Article 3 did not deny the existence of ‘creamy layer). It is therefore, in violation of Articles 14 and 16(1) of the Constitution of India. Sub-clause (a) of section 3 is therefore, declared unconstitutional”. (My stress on bold)

Articles 14 and 16(1) of the Constitution states as follows.

14. Equality before law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

16. Equality of opportunity in matters of public employment. —(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Since the ISII did not look into what were the ‘know facts’ on which Article 3 (a) had referred to, that is, the social inequality between the creamy layer and the forward classes, its verdict is in clear violation of Article 14. The same conclusion can be made in the case of Article 16(1) as well. Both Articles are guarding against inequalities between people.

It is in the legal responsibility of the SC of India, when a new legislation is made by a State to study it in the context and the circumstances that it entails. Suppressing the new with the old judicial jargon does not befit a progressive judiciary.

Article 3(b)

Article 3(b) was about the inadequate representation of the OBC in the State employment. Article 16 (4) of the Indian Constitution gives power to State to make such legislation on reservation if deemed necessary for the development of the OBC.

"Article 16(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

But ISII intertwined this constitutional provision also with the ‘creamy layer’ concept.

“Lack of adequate representation of a particular backward class may be a factor for consideration by the State for providing reservation. But, the said factor cannot be the sole ground for continuance of the creamy layer in that backward class. The first step no doubt is the identification of the backward class, which is inadequately represented. But there is a second step also and that is the elimination of the creamy layer from the Backward Class. The second step cannot be mixed with the first step nor can it be forgotten.

Since Article 3(b) of the Kerala OBC Act was about the inadequacy of the OBC in the State service the ISII should have challenged it on the basis of statistical evidence, which was never looked into or demanded by the ISII.

In the absence of such vital evidence the ISII simply played with the OBC ‘creamy layer’ concept making its verdict on 3(b) too look unintelligent and biased.


Verdict on Article 3 (a) and (b)

“This assuming that, when creamy layer is excluded, there will be inadequate representation of certain Backward class, after Indira Sawhney. For all the aforesaid reasons, sub-clause (b) of section 3 does not provide any valid answer for not eliminating the creamy layer and must also be held to be unconstitutional and violative of Articles 14, 16(1) and 16(4) of the Constitution. Thus, sub-clause (a) and (b) of sections 3 are both declared unconstitutional”

In summary the only principle the ISII considered to declare the Kerala OBC Act unconstitutional in my opinion was the ‘creamy layer’ among the OBC to exclue them from reservation in employment on the false assumption that they had acquired capacity to compete with the forward castes.

Please give your suggestions as comments


references:
Indira Sawhney II judgement : http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=16589

Constitution of India; http://indiacode.nic.in/coiweb/welcome.html

The OBC Creamy Layer Concept and Kerala

The OBC creamy layer concept in Kerala has been seemingly a cause for communal conflicts and political lethargy.

Supreme Court’s April 10 lifting of its last year’s stay on 27 percent quota for other Backward Castes (OBCs) in India’s higher educational institutions, the IITs, IIMSs, and AIIMSs excluding its creamy layer that has been applauded by many as revolutionary is deliberately keeping the majority away from reaping the benefit of India’s much applauded economic growth.

At this juncture I would like to look into the history of the creamy layer concept in Kerala to know what really happened there.

History of the creamy layer concept in Kerala.

Ever since the Indira Shawney I ruled to identify and exclude the OBC creamy layer from the government employments in 1992, the governments of Kerala had only maintained a denial attitude to the issues it entailed. Outcome: a section of the OBC in Kerala are still lurking under poverty and underdevelopment and the rest are at limbo about their competence with the developed.

The denial continued until the Supreme Court condemned the Chief Secretary to the State of Kerala as guilty of contempt of court on 10.7.1995

The State then appointed a commission to identify the creamy layer among the OBC. But in three weeks’ time it apparently wounded up the commission and passed the Kerala State Backward Classes Act on 2.9.1995 with retrospective effect from 1992. Subsequently it reported to the Supreme Court that it failed to identify the OBC 'creamy layer' without conducting any study on the matter.

The NSS a ‘forward’ caste group in Kerala wasted no time to implicate the act. It filed before the SC that the Act was in violation of the constitution: article 14 and 16.

Then on 4.11.2005, the SC constituted a high level Committee chaired by K.J Joseph, a retired Judge from the Kerala High Court, to collect information about the OBC creamy layer in Kerala.

The Committee was directed by the SC to follow the 1993 criteria laid down by the Central Government to identify the creamy layer among the OBC.

The Committee identified a ‘creamy layer’ among the OBCs and submitted its finding on 4-8-1997.

Many objections were filed against the Committee’s findings and the SC scrutinized the situation and passed judgment on them (Indira Swahney II).

As part of the judgment the SC scrapped the Kerala OBC Act 1995 and ordered the State to implement the findings of the committee: that is to exclude its OBC creamy layer from the State and central government employment with immediate effect. That was in 1999.

Now the April reservation law that granted 27% quota for India’s OBC students excluding its creamy layer is only an attempt to extend the judgment of Indira Swahney (1992) to admissions to educational institutions as well.

Some doubts and concerns


Now what is the whole essence of granting 27% reservation to OBC excluding its creamy layer?

IITs and IIMs are not ordinary institutions. How many among the OBCs if the creamy layer is excluded stand a chance to enter those institutions?

A contemporary genuine concern of India’s leadership, both legislative and judiciary should be: (1) are all Indians benefiting from its current economic growth (2) is India celebrating a balanced economic development in which all its citizens are given a justifiable share in education and employment? If these are not happening, then can India be seen as a progressive and humanistic nation?

Certainly, if India has still a backward class to which development has not trickled down, it means that its government has not fulfilled its constitutional commitment to them. The 1992 Judgment of Indira Swahney and the subsequent judgments based on it are making the presumption that the OBC creamy layer is at par with the ‘forward’ castes. Here the terms ‘backward’ and ‘forward’ are very subjective. When the judgment states that the OBC creamy layer is equal to the ‘forward’, then it has to define what is forward.

Instead the SC instructed the higher institutions to follow the 1993 criteria that were used to identify the creamy layer to be excluded from employment. Children of parents who have an annual income of 2,5 lakhs, including other property income, are therefore included in the creamy layer. What is the logic in this while the annual fees at the higher institutions are to the tune of 3,5 lakhs?

This shows that the criteria that are used to exclude the OBC from employment cannot be used for educational admissions.

Under the nose of independent India’s legislature and judiciary, the majority of its backward people remained locked up in their traditional ghettos as discriminated, condemned and violated by its so called upper castes. Constitution guaranteed them reservation in employment a programme that was to last for 10 years. Yet there was no five-year plan or fast track plans to accomplish that programme within the stipulated period.

And when you talk about India’s OBCs, you are talking about its skilled people that held its glories high until the atrocious Brahmanic Hinduism defeated their status and elegance. But the free India did not acknowledge the OBCs as a defeated but a failed group, stupid and unintelligent and reservation was not taken as their right but as handout. And at heart India’s ‘forward’ found a threat in it’s ‘backward’.

In the absence of any strategic plan to develop the OBCs as a collective or a caste group, its responsibility fell straight on its individuals. It was no wonder that the highly segregated brahmanic Hinduism that entered their psyche both as a tool of social division and a myopic religious consciousness to deplete their humanity, love, care and solidarity made them think only in terms of themselves and not collectively. Yet OBC as a whole should have offered helping hands to each other as their humanistic obligation.

In the midst of everything, the poor OBC remained poor and those who managed to make use of reservation in education managed to develop better than the rest. But to claim that they all attained level of competency with the forward is false and those who make that claim should establish that in concrete terms.

As a whole, the OBC creamy layer is in need of initiatives to assist them for they are a potential and upcoming section of the Indian constituency that has to come a long way to be equal with the ‘forward’.

It is true that a slim minority among the OBC have acquired competency with the ‘forward’; those who have representations in Parliament and Legislative Assemblies, high earning executives and who own businesses.

Yet why did the SC made such a judgment far removed from the realities at hand?

Following is an extract from the SC’s judgment on last year’s stay on parliament’s 27% reservation for the Other Backward Classes (in short the 'OBCs') contained in the Educational Institutions (Reservation in Admission) Act, 2006.

“The primary ground of challenge is that the Union of India has failed in performing the constitutional and legal duties toward the citizenry and its resultant effect. Consequentially the Act shall have the effect and wide ramifications and ultimately it shall have the result in dividing the country on caste basis. It would lead to chaos, confusion, and anarchy, which would have destructive impact on the peaceful atmosphere in the educational and other institutions and would seriously affect social and communal harmony. The constitutional guarantee of equality and equal opportunity shall be seriously prejudiced. It has been contended that a time has come to replace the "vote bank" scenario with "talent bank". The statute in question, it is contended, has lost sight of the social catastrophe it is likely to unleash. Not only would the products be intellectual pigmies as compared to normal intellectual sound students presently passing out. It has been highlighted that on the basis of unfounded and unsupportable data about the number of OBCs in the country the Act has been enacted.”

The judgment is mindful that the Indian government failed in fulfilling its constitutional and legal obligations to its people. But its consequence should be suffered by the poor OBCs for admitting them to India's higher institutions would lead to 'chaos, confusion and anarchy... '.

Is this judgement based on any observation or evidence or is it simply an excuse?

Or is the judgment referring to the chaos and atrocities India’s ‘white lilies’ staged on the streets of Delhi and Bombay against the 93rd amendment to fulfil the government’s legislative obligation to India’s backward spearheaded by Arjun Singh?


And more explanations are needed as to how “The constitutional guarantee of equality and equal opportunity shall be seriously prejudiced” if the OBCs are admitted into India’s higher institutions?

So where is India’s humanity? Even the esteemed legal institution of India does not see the need for the developed assisting the less developed as the means for achieving equality. Instead they claim that there is a constitutional guarantee in India that only equals should be guaranteed equal opportunities. (That is how I understand it)

The judgement went to predict that the Act would only guarantee ‘intellectual pigmies as compared to the normal intellectuals’. Who are these normal intellectuals of India? Somebody please help me to understand.

If so, does the judgement imply that the people who qualify through affirmative action programmes that are currently run through various institutions of the world are intellectual pigmies? Certainly such views would be met with disgust by the countries that have effective affirmative programmes.

In my understanding, education has the paramount potential to transform the unequals to equals and its admission processes all over the world are structured on such principles.

However the SC ruled that 27% of the OBC could be admitted to higher institutions excluding its creamy layer. So those institutions might have taken measures to deal with the chaos and anarchy of those 27%. The fact of the matter is that if the creamy layer is excluded, there is hardly any one from the OBC who is going to those institutions.

Currently the OBC percentage in India’s esteemed institutions is 9, that is from the nearly 60% of its population.

Indira Swahney judged in 1992 that the OBC reservation in employment is restricted to 27%. But studies in Kerala and elsewhere claim that after its implementation, OBC representation in employment plummeted to a mere 5%. Whereas 20% of India’s creamy layer from the general population grab most of the executive jobs in the country’s private sector that dominates 85% of India’s job market.

Only those who have a humanistic consciousness can understand what I say. India’s economic growth is going to be a disaster unless it takes care of its human divide along caste and religion in constructive and creative ways. Our esteemed legal institutions are loosing sight in this when they say that the development of the OBC is coming at a huge price of chaos and conflict in the higher institutions.


Next. The relevance of the Kerala OBC Act 1995 and 'vote bank'

References:
Indira Sawhney II judgement : http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=16589



2007 Judgment, stay on OBC Act: http://www.esamskriti.com/html/readcont/sc_2007.doc

മലയാളം റ്റെസ്റ്റിങ്

Kerala Minorities and their 'Minority Status'

(Religion as an opinion or an intellectual vision as we knew it is changing, taking new forms of power, politics and material. We are upset about changes. But do we fear that breaking our silence on changes will dent on our decency and good nature. For those who think that a discussion on change is eminent to forge a healthy religious unity among the Kerala people, here is an opportunity)

The National Commission for Minority Educational Institutions (NCMEI) on Wednesday granted minority status to five educational institutions under the Pushpagiri Medical Society; ending an eight-year-old wait that began in February 1999. With this, the number of professional colleges having minority status in Kerala has gone up to 11. reference

Currently the number of minority institutions that got ‘minority status’ stands at 27 and the upward trend continues.

The Commission’s verdict, apparently kept under wraps by Kerala’s Media from reaching its majority, is riddled with controversy, lack of common sense and is another example for India’s judicial bungling.

That an Indian constitutional clause (article 30) intended to guarantee a minority, rights to run own educational institutions to attain equal development with the majority is used to enhance the minority’s domination over the majority, is the controversy.

The verdict is a cover for the rich owners of Kerals’s Professional Colleges to renege on their social responsibility. For the socially and economically backward, still reeling under India’s old apartheid and the poor it deflects professional education into an unreachable trajectory.

No doubt, it hacks through the socialist model of development that Kerala has been envisaging for decades. I wonder how many current flag bearers of the ‘minority status’ would have been there if Kerala had not embarked on that model.

Currently the two minorities in Kerala, the Christians and the Muslims, are far more advanced than the rest of its population.

One cannot forget how these minorities have turned Kerala’s old apartheid situations to their favour: a Kerala that reeled under the lordship of a lazy, unskilled feudal land-lords, and an equally inefficient royal princes.

Colonialism with its missionary outfit and the oil in Arabian lands rushed more opportunities into the minorities’ hands.

When feudalism crumbled, its bankrupt managers had no choice but to pawn away Kerala’s land properties to the rich minorities.

In the rush of the foreign money even when the minority wholesaled the landed property of Kerala, the poor patiently retreated to the outskirts blaming their own destiny, appreciating and respecting the achievement of the minorities.

They never interfered with the minority’s rights to language and religion and never discriminated against them.

Yet, why are my minority friends cutting out a sorry state of them invoking article 30? To gain development at par with the majority, or to renege on their social responsibility towards the disadvantaged and the poor

Who is a Kerala Minority?

Amidst all these perhaps the most interesting questions are (i) Who is a Minority in Kerala (ii) In the context of Article 30 of the I.C, are the rights for minority educational institutions the same as ‘minority status’?

Even the UN that stands to protect the rights of the minorities the world over does not give a definition on, ‘Who is a Minority?’

In some context, minority is taken to be people that are undergoing serious discrimination and ill treatment from the rest of the population, which has never been the case in India.

Likewise, the Indian constitution never defined who is a minority in its national or state contexts. The following article highlights that even article 30 of the Indian constitution are silent on “Who is a minority?” reference

John Dayal, President of All India Catholic Union Secretary general, All India Christian Council defines in his article, “The Indian Government, the Supreme Court and the Religious Minorities of India”, that article 30 as one that gives “ Minorities, both religious and linguistic, the right to administer their own institutions as the means to preserving, encouraging and propagating that distinctive culture which makes them what they are, members of India’s rich tapestry of a plural culture”. reference


Do Christians in Kerala have a ‘distinctive culture’ different from that of the rest? If so, is it European, Roman or American? The same question applies to the Muslims?

According to a 2004 statistics in Kerala, there were 258 professional colleges run by minorities against 89 Hindu-owned. Were they for ‘preserving, encouraging and propagating minorities’ distinctive cultures? (Somebody please help me)

In the same article Dayal talks about Soli Sorabjee, India’s esteemed former Attorney General that he recently presented before the Supreme Court of India that “the right of the minority communities to establish and administer an educational institution was absolute and this right should not be "tinkered" with.”

But see what is reported as written by the very honourable attorney general under “What is a minority?” on April 11, 2007.

In the Kerala context, he observes that “In its advisory opinion in 1958 on the Kerala Education Bill, the Court opined that as the legislation in question applied to the whole of the State of Kerala, the existence of a minority “must be determined by reference to the entire population of that State” and that by “this test, Christians, Muslims and Anglo-Indians will certainly be minorities in the State of Kerala” ”(this opinion was based on numbers).

In the next page he expresses his own view that the practice of deciding a minority based on mere numbers is ‘not conclusive’. Instead he says, “ The criterion should be empowerment. The relevant questions to ask are, what is the strength of the community in decision-making, formulating policies and their execution” reference

Based on these criterions, who is a minority in Kerela?

If anybody is having any doubt read the following article. reference

A little bit of history

The current ‘minority status’ has a history starting with the Self Financing Institutions established in Kerala in 2000 during the time of A.K. Antony (UDF) as the Chief minister. Initiated apparently to attract rich learners who threw huge capitation fees in colleges outside the state, it evolved into a private-public partnership in higher education with the slogan ‘one aided college equals two government colleges’ that contained a reservation programme for the backward (socially, economically and physically).

That the disadvantaged Hindu communities and the poor were unable to take advantage of this government partnership offer is a crucial point here.

Instead, the economically, politically and educationally dominant minorities lapped it up.

This resulted in an enormous rise in the number of seats created in the private colleges. According to the Education Minister E.T. Mohamed (2005), the number of seats in engineering, medical, agriculture and B.Pharm courses rose to 29,511 in 2005-06 from 9,369 in 2000-2001. During the same period, the number of candidates admitted under the reservation quota for Scheduled castes, Tribes and Socially and Educationally Backward Classes also shot up to 7,004 from 2,666. reference

However the management of the unaided institutions was never in favour of a reservation intended to help the poor.

Without mentioning a few ‘important’ Supreme Court verdicts made in the case of unaided institutions in the era of the Capital, the story of Self-Financing Institutions will not be complete.

The first was the Unnikrishnan case (1993), in the verdict of which Justice Jeevan Reddy evolved a scheme to help the poor, which was apparently the base for Antony’s education plan.

The second was Justice B.N. Kirpal’s majority judgement in the 11-judge TMA Pai case (2002). In the zeal to remedy the pitfalls in the Unnikrishan case, TMA Pai ruling went in favour of the managements. It gave autonomy to un-aided institutions in certain aspects and State control in other aspects which created more confusion than clearing some. It let the aided colleges to interpret autonomy as it pleased to charge tuitions fee and capitation collection at their whims and fancy.

It also made some slip-ups here and there which prescribed reservation ‘locally’.

After the TMA Pai case verdict, the fees both in the aided and government colleges soared beyond the reach of ordinary people about which the Supreme Court could do nothing. reference
Then there came a Supreme Court Verdict in 2005, which abolished the government quotas in unaided professional colleges in the case of Kerala.

The Kerala Professional College Bill passed in the legislative Assembly (2006) was apparently the state’s way of dealing with the issue that too is nullified by the Supreme Court.

As MA.Baby, the current minister of Education (LDF) explains the Bill was dealing with Minority Educational Institution and not about Minority Status. And according to him hardly any of the Kerala minority institutions had opted for minority status because they never fulfilled the conditions it entailed. That means minority institutions and ‘minority status’ are two different things. reference

Amidst all these constitutional and legal confusions, then all of a sudden we see the tinkering up of the Commission for Minority Educational Institution with extra judicial powers and the appointment of three members from the minority communities as its commissioners and it conferring ‘minority status’ on Kerala’s minority institutions.

This legally redeems them from the social responsibility of reservation.

Some Suggestions as Way forward

(1) The government of Kerala instead of wasting time on discussing the matter with private management who had already lost their credential on trustworthiness should embark on making new laws to assist the disadvantaged and the poor


(2) In case it fails, it should withdraw with immediate effect, the aid it provides to the minority educational institutions and assists the disadvantaged communities and the poor to establish their own institutions until a proportional balance is reached in development between them and the so-called minorities.


(3) This issue having the self-financing managements and its supporters on one side and the government, the disadvantaged, the poor and their supporters on the other, many think, has the potential to divide the Kerala people along religious-social and personal lines. What can be done to avert this impending crisis seems to me an important question.



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Stay on OBC Reservation Bill- Gross Human Right Violation?

Cheat us once. Shame on you.
Cheat us twice. Shame on us.

{A Chinese proverb}

My concern is based on two recent legal decisions made by the esteemed Supreme Court of India, the final authority on legal matters in the nation. First, the March 29, 2007 stay on Central Educational Institutions (Reservation in Admission) Bill that was intended to provide 27% reservation in admission to Other Backward Castes. Second, it granted protective minority rights to Christians and Muslims in Kerala, two most economically, socially and educationally advanced religious groups in the state in terms of their ownership in capital, landed property and institutions.

If the first decision put a plug on many young Indians’ dream to enter India’s elite institutions in the 2007 academic year, the second has not even trickled into Kerala’s ordinary people. Because they haven’t even heard of it; the media in Kerala, owned by Christian and Hindu managements apparently muted the news.

According to my knowledge no TV channel, state run or otherwise, a radio station or any means of public or private communication uttered a word about the crisis that has the most devastating effect on the majority Keralites who belong to Hinduism, the most traditional religion of the land.

Neither Deshabhimani, a media apparently under the ownership of the state’s ruling Communist Marxist party did find it apt to inform the public.

The only media in my understanding that disclosed the judgment was Madhyamam, apparently run by a Muslim management and not read all over Kerala. My hats off to its editorial integrity.

A few websites that disclosed the matter are of little use to the affected Kerala population for Internet and English are beyond their reach.

More on the OBC Reservation Bill

According to N.S. Sajith in the ‘The Judiciary’s Excesses’ that appeared in Deshabhimani Weekly, 22 April 2007, Supreme Court’s March 29 stay on the Reservation Bill was its second quash on Parliaments’ initiative to reserve seats for the backward castes. In 2006 it had ruled against admitting India’s socially and educationally backward learners into professional Institutions. The parliament then unanimously passed the Reservation Bill as part of its 93rd constitutional amendment, on April 7, 2007 as an alternative to that ruling.

The protest staged by the student bodies of the elite institution of All India Institute of Medical Sciences in Delhi and the euphoria it unleashed in the major metropolis of India after the SC’s stay is an indication of how they view the government’s act to bring the disadvantaged in the society up to their level.

Those ‘meritocrats’ of the current globalised material world of India see themselves as an advanced group replete with inborn potential as opposed to the majority with hardly any potential begging for an undeserving statusquo.

It is not by accident that the majority of ‘meritocrats’ are in those institutions. In racial and religious terms they represent India’s oppressor castes. Out of anger they called Arjun Singh the minister of India’s Human Resource Development who presented the Bill in the parliament as one of the ‘cynical old man acting on cold political arithmetic’.

They ridiculed Ram Jethmalani for saying in the Parliament that “the present generation, the people of so-called merit must learn that the present society will have to pay for the sins of our ancestors’.

But how do they know about their ancestors if the truth about their ancestry and anthropology is shrouded in the fabricated history of India?

They believe that they “belong to the Rang De Basanti generation who believe in har desh mahan nahi hota, use mahan banana padta hain (A country can achieve greatness only if its citizens strive to make it great”.

And this should be read in conjunction with the Supreme Court’s judgment,
“Nowhere in the world do castes queue up to be branded as backward. Nowhere in the world is there a competition to become backward” (Sunday Times; South Africa).

The government had made it clear that the additional 27% OBC admission would never affect the non-reserved in any way. It has plans “to increase the total number of seats in central educational institutions by 54 per cent within a year, at an estimated expense of Rs. 80 billion (Rs. 8,000 crores)”, if the plan goes ahead.

However the central government is still determined to maintain the Bill.

On 23rd April, it appealed before the Supreme Court to ‘vacate the stay on the Reservation Bill’. But the court declined.

The failure of Indian democracy.

Ironically the Court’s judicial rationale on staying the Bill has nothing to do with the backwardness of the OBC. But it has everything to do with the backwardness, lack of merit and morality within the democratic components; executive, legislative and judiciary of India controlled so far by its ‘great’ groups.

While the court heavily criticised Mandal commission’s (1991) recommendations to provide 27% reservation for OBC as inaccurate and flawed being based on false fundamentals it does not know how the correct information could be gathered. That was how the SC judges answered the minister from Kerala on his question about it last week. The legal authority of India is questioning after sixteen years the Commission’s findings that OBC constitute 52% of the population of India.

What more, India has no valid information on the demography of its backward castes. The only information of that kind available from a 1931 national census is not valid now. The commission’s statistics were the basis for the reservation Bill.

There is not even a proper definition for India’s disadvantaged people in the normal historical and anthropological contexts. Scheduled caste, tribes, backward and other backward are political categories tinkered up in the post- independent India.

The classic cases of India’s judicial, executive and legislative bungling are surfacing now only to punish the majority population who are already variously disadvantaged. Alienated from traditional skills, they lost their historical and social relevance and are now a political football between the executive and the judiciary.

Some may concur with NS Sajith that the stay on the reservation Bill is the case of India’s judicial excesses on the executive.

The ‘meritocrats’ may proclaim that time has come for India’ s judicial awakening to clear up its political mess such as ‘vote bank’ a sleazy trade of reservation for political power between India’s ‘great’ leaders and small people.

But when one reads the following statement from the SC verdict on the Bill, belief in the court will take a different turn

“(OBC Reservation) would lead to chaos, confusion, and anarchy which would have destructive impact on the peaceful atmosphere in the educational and other institutions and would seriously affect social and communal harmony. The constitutional guarantee of equality and equal opportunity shall be seriously prejudiced” (http://www.esamskriti.com/html/readcont/sc_2007.doc).

Kerala has been a reservation state. And any communal and racial harmony it can boast of has come from its reservation approaches nullifies the above argument.

Prabhul Biwai in his essay,’Anti-quota Stir Misguided’ argues that the anti-reservation move was not spontaneous and natural but organised by three parties ‘one upper caste-dominated professional guilds like the Indian Medical Association; captains of industry and owners of private colleges, who stridently oppose any extension of Dalit-Adivasi (Scheduled Castes-Scheduled Tribes) reservations; and Bhartiya Janata Party politicians’
(http://in.rediff.com/news/2006/may/30bidwai.htm)

If this is true, it puts the judicial integrity of India’s Supreme Court in serious jeopardy making its monumental stay on OBC reservation a deliberate attempt at further stagnate the socially and educationally backward castes of India who have been the subject of a political ride since independence, the responsibility of which rests on its so called leaders who belong to the ‘meritocrats’ camp.

In this regard the issue of the Bill’s stay is the violation of the fundamental human rights of its disadvantaged population. It implies that India’s apartheid still continues under its democratic skin.

And the ‘meritocrats’ ’ presumption that only one section of the population is eligible for super speciality education and the majority does not qualify for that is gross insensitivity to India’s skewed socio-economic and educational development and is therefore a further proof for its hidden apartheid.

The court did not argue that ‘a backward minority’ is a myth, but it opposed the arithmetic used in projecting their statistics. Is it the problem of the backward castes?

The court has agreed to hear the appeal on the Bill in a few months’ time seemingly in September. And how are the politicians going to formulate a comprehensive caste statistics about a major chunk of India’s population in an honest and sincere manner within such a short time?

And what will be the outcome of that appeal?

An important question now, is what is the role of India’s disadvantaged castes to help each other to escape from this politico-judicial quagmire?

As I wrote at the top, they have cheated India’s disadvantaged not once but many times. So now the fault is theirs if they do not stand up to get counted.

And how do they do it?

Next Kerala’s controversial ‘minority rights‘

Vishu- Keralite's New Year

vishukonna(cassia fistula)

Keralites celebrate this year, April 15 as their New Year day. Pampered at its western coast by the Arabian Sea, Kerala is the smallest state in India.

Its population of 30 million speak Malayalam, a language formed out of Tamil under Sanskrit influence. Nearly one third of its population live overseas in Africa, Europe, America, Canada, Australia, the Middle East and Asia.

Keralites celebrates their New Year as Vishu. It is the day on which the sun enters the Mesha zodiac according to astronomical and astrological calculations popular in the state. On the celestial map it comes after the autumnal equinox. Zodiac is a band of 12 constellations around the sky with the ecliptic passing through its centre.

Setting of the Kani

The celebrations kick off in the early auspicious hours of the day (between 4 am and 6am) with the watching of the Vishukkani (kani). Kani as shown in the picture is an arrangement of few natural articles easily available in any Kerala home during the season. It is set out by the lady of the home. She does it the previous night after the household went to sleep so that nobody else sees it before the right time.

Vegetables and fruits golden in colour, rice or paddy, konna (cassia fistula) flowers, a clean folded linen, a coconut half, beetle leaf, a book, coins, rounded metallic mirror and gold are the items needed to set the kani.

It is set in a bell-metal pot (any round pot will do). To start with, spread the paddy into its centre. Oil is poured into the coconut half to which a cotton wick (cloth folded and tied to form a bulb at the bottom) is lowered. This coconut lamp is placed over the paddy at the centre of the pot. Everything else is arranged around it in an orderly fashion with the mirror behind to reflect its light when lighted. Prayer room is an ideal place to set the Kani.

When the lamp is lighted at the auspicious time, the kani is ready to be seen by the household. Normally the lady of the house leads everybody in the family one by one to the kani blindfolded so that it is his or her first sight of the day.
The golden colour of the fruits and the flowers resemble the colour of the Sun. The light from the coconut lamp reflected from the round mirror when shines through the yellow article creates a spectacular miniature sunrise.

After the turn of the people the kani is taken to the outside to be seen by the cattle, the birds and all living animals and plants.

However the arrangement of the kani may vary from places to places.

Vishukaineetam or giving Vishu gifts is the second item of the celebration. It is the responsibility of the man of the house. He presents coins to everybody in the household and receives them from the most beloved one in the family.

Seeing spectacular sight and getting presents on the first day of the New Year takes care of the entire year is the belief behind Vishukani and Vishukaineetam.

As the day unfolds youngsters get serious with firecrackers and females with cooking a sumptuous lunch. It is prepared in the Kerala culinary style to include the four prominent rasas (tastes): bitter, sour, sweet and hot.

Meals are served on plantain leaves. All members of the family sit together for the meals. After the meal people visit friends and relatives and indulge in entertainments.

While Vishu embodies prosperity, beauty, wellness, knowledge, communal life, family organisation and friendship at a mundane level it unfolds ‘an elementary oneness’ of the universe at a spiritual level.

The time the sun enters the Mesha zodiac has implications for life on earth that are affected by seasons and other aspects of nature.

Every year, in Kerala, learned Jyothisis predict such effects based on the astrological calendar called Panchangam. This is an ancient Indian practise.

Vishu a secular event

Vishu observations are secular. Nothing about religion is mentioned in its original texts in spite of the contemporary Kerala temple practices to attach it with the deities.

Vishu is not the only New Year celebrations in India. It is commemorated in various parts of India under various names during March-April. In Tamil Nadu it is celebrated as Puthu Varsham. In parts of Tamil Nadu closer to Kerala, people celebrate Vishu as New Year. In Andhra Predesh it is known as Ugadi. The Bengalis celebrates it as Polia Baishak and the Assamese call it Bihu festival. Baishakhi is the Punjabi New Year.

Nepalese celebrate it by the third week of March while the Kashmeeris observe it on the second week of March. Many olden traditions in the world observe New Year on the days of vernal or autumnal equinoxes which falls during March.

Indians in general and Keralites in particular are people who wish to carry on with their traditions wherever they happen to live. It is important to pass on their ancient wisdom to their younger generations. Even if you live away from home it is not difficult to organise a Vishukkani for the auspicious time of the day.

One can replace many original things in the kani with the locally available products. For example, in South Africa a yellow pumpkin and a yellow ripe mango can replace the jackfruit and golden coloured cucumber. Any yellow flower of the season can replace the konna flowers. Coconuts are available all over South Africa and a cotton cloth wick can be made out of pure cotton (or any small lamp will do).

I wish all Keralites and all who celebrate new year now, a very Happy Vishu and a prosperous New Year.