The appeal of AAP’s anarchy

Although leading us to anarchy, why is Kejriwal still getting so much public support for his actions?

Arvind Kejriwal has outsmarted many of the political analysts, not just once but on many occasions. From winning significant number of seats in Delhi assembly elections to the manner in which he held referendums to take the support of Congress to form government, he has found ways which are resonating with the people.  Critics (including myself) thought that Arvind Kejriwal will quickly realise that governance is a complex process and that the formation of government will be the beginning of disillusionment for the public. But so far, he is not only maintaining the same level of association and trust with the public at large, he is actually strengthening it by day.

However, what is good for the political prospects of Aam Admi Party (AAP) may not necessarily be good for the future of our country. There is no doubt in anyone’s mind that Aam Admi Party (AAP) members are experts in activism and they have already shown us their capacity to destabilise the status quo. AAP is however living in disillusionment that disorder can be the new public order.  The party should realise that hatred for other political parties, coupled with your own good intentions, is not enough to fix all the issues; unless these good intentions are backed by institution building. While I agree that AAP should be given sometime to settle in their new avatar, their decisions so far portray as if governance is all about unrestrained populism and collecting problems through many call centers.  Now they can add vigilantism to the list.

The methods employed by Kejriwal are fraught with great risks. Today he may succeed in his dharna and get some police personnel suspended but what if he comes with another demand tomorrow? Should the union government given in to all his blackmail? Instead of following constitutional means, he is actually incentivising dissent. It may be a good show of public strength as long as dissent and disruption works in his favour but what if teacher unions, doctors, police go on a strike against Delhi government until their demands are met? With what moral authority can the AAP government handle these future problems which every government is likely to face at some point of time.

There are many people who quote Ambedkar’s Grammar of Anarchy speech to explain why Kejriwal’s methods might lead to anarchy:

If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.

But why is Kejriwal still getting so much support for his actions? I think many people who quote from Ambedkar’s speech on constitutional methods conveniently ignore the rest of his warnings and reflections, which I think are equally important. For instance, in the same speech he says:

These are my reflections about the tasks that lie ahead of us. They may not be very pleasant to some. But there can be no gainsaying that political power in this country has too long been the monopoly of a few and the many are only beasts of burden, but also beasts of prey. This monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life. These down-trodden classes are tired of being governed. They are impatient to govern themselves. This urge for self-realisation in the down-trodden classes must not be allowed to devolve into a class struggle or class war. It would lead to a division of the House. That would indeed be a day of disaster. For, as has been well said by Abraham Lincoln, a House divided against itself cannot stand very long. Therefore the sooner room is made for the realisation of their aspiration, the better for the few, the better for the country, the better for the maintenance for its independence and the better for the continuance of its democratic structure. This can only be done by the establishment of equality and fraternity in all spheres of life. That is why I have laid so much stresses on them.[emphasis mine]

I think we have failed to reflect on the reflections of Ambedkar for too long. Instead of cursing the people for being impatient, perhaps we should be thankful that they have tolerated the burden of “being governed” for 60 years. In India, we have some of the most non-responsive public systems, whether it be public education, public health, public-transport, police or other government offices. For too long democracy has indeed been about once-in-a-five-year voting contest with power shifting from one non-responsive government to the other.

While I completely disagree and protest against the methods employed by Kejriwal to bring change, I think it is equally important to realise that people are impatient for new kind of institutional arrangement: an arrangement which is responsive and ensures that the presence of a government can make a difference to their daily lives. We must recognise these demands for new order and as Ambedkar had said in the same speech:

let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better.

To incentivse the use of constitutional means, we should remove the evils Ambedkar warned us about. Otherwise, this disorder is likely to continue. And we will continue to inch towards anarchy. The AAP way.

 

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The Private versus Public schools debate

Both public and private participation is essential for reforming our education ecosystem. Both need a root-and-branch restructuring.

While responding to an audience question on Public Vs Private schools, Prof Karthik Muralidharan explained the phenomenon with a joke. It is worth reproducing here in full :

Two men are walking through a forest.  Suddenly, they see a tiger in the distance, running towards them.  They turn and start running away.  But then one of them stops, takes some running shoes from his bag, and starts putting them on.

“What are you doing?” says the other man.  “Do you think you will run fast than the tiger with those?”

“I don’t have to run faster than the tiger,” he says.  “I just have to run faster than you.”

While studies repeatedly indicate that the learning outcomes (in absolute terms) in both public and private schools are shockingly low, most of our discussions on education policy are about which system is less awful than the other. Instead of focusing on designing a good school system which benefits the children, we are more interested in winning ideological battles.

The champions of private school theory first declared that the private schools were doing exceedingly well and then went on to explain that accountability, competition, consumer choice and other market based factors were the secret mantra behind their success. They argued that private schools are cost effective and government should fund them through vouchers instead of running a broken public education system. This theory was uncontested will 2005. Pratham revolutionised the education policy space with their Annual Status of Education Reports (ASER) and Prof Karthik Muralidharan of University of California enriched the policy space with much needed evidence based analysis on various interventions like vouchers and performance based pay for teachers. These reports for the first time revealed that most of the children in both public and private schools are unable to read simple text and perform basic arithmetic.

Prof Muralidharan recently came out with a comprehensive study which involved more than four years of planning and execution to implement vouchers among a target group and then continuously monitoring their performance with respect to a control group. The findings of this study can be read here. It concludes that, after adjusting for socio-economic conditions, the performance of private schools is only marginally better than public schools. To quote:

However, in spite of the superior performance of the private schools on most measures of school processes, we find at the end of two and four years of the school choice program that lottery winners do no better than lottery losers on tests of Telugu (native language of AP) and Math. Our data from school time tables suggest that a likely explanation for these results is that private schools spend significantly less instructional time on Telugu and Math, and instead spend more time on English, Science, Social Studies, and Hindi. We conduct tests in these subjects at the end of four years of the program and find positive (but insignificant) effects of winning the voucher on test scores in English, Science, and Social Studies (of around 0.1σ each), and positive (and highly significant) effects on test scores in Hindi (of 0.5σ).

It is indeed true that private schools are cost effective and are producing the same learning outcomes at much lesser cost ( the cost of a voucher is 40% of the cost incurred per student in public school according to this study). If private schools spend as much as public schools, will they be able to significantly outperform public schools? As Prof Muralidharan explains, the relationship may not be linear and more research needs to be done to ascertain this. However, If teacher absenteeism, lack of accountability (teachers cannot be fired easily in public schools), lack of school choice are the reasons for the failure of public schools, the advocates of private schools fail to explain why private schools did not perform significantly better than public schools since they do not face any of these drawbacks. Ironically, that did not stop some columnists to invent evidence from this study to establish a “conclusive case for school choice

Abhijeet Singh did a similar study on the lines of what Prof Muralidharan’s research, and the results are the same. According to his study too, there is no significant private school effect in urban areas. This finding is in line with what Pratham observed in Mumbai.

This conclusion is not drawn from just one or two studies. Organization for Economic Co-operation and Development (OECD) did a comprehensive review of school choice programs among OECD countries and concluded that:

Overall, only a few studies find a link between increased choice and enhanced student outcomes, and when they do exist, the effects are quite small and not always statistically significant, partly due to methodological difficulties. However, cross-country correlations of PISA do not show a relationship between the degree of competition and student performance. Among schools systems in the OECD countries, the proportion of schools that compete with other schools for student enrolment seems unrelated to the school system’s overall student performance, with or without accounting for socio-economic background (OECD, 2010a; OECD, 2011).The majority of the evidence suggests that different schemes of school choice (open enrolment, charter schools) do not, through the competition they create for local schools, induce them to improve, nor does it improve the student achievement of those who take advantage of more school choice and opt out of their local school as the evidence reviewed shows.

Andreas Schleicher, Division Head and coordinator of the OECD Programme for International Student Assessment (PISA) recently echoed the same views:

My organisation [the OECD] is very strong on choice, enabling citizens to make choices, and you would expect that systems with greater choice would come out better. You expect competition to raise performance of the high performers and with low performers put them out of the market. But in fact you don’t see that correlation… Competition alone is not a predictor for better outcomes. The UK is a good example – it has a highly competitive school system but it is still only an average performer.

If competition and accountability is sufficient to run educational institutions, then how does one explain India’s TET results? In India, 85% of the B.Ed colleges are private but only 1% teachers qualify the Teachers Eligilibility Test (TET) every year. Similarly, most of the Engineering and Management colleges in South India are run by private management but not even a single institute can claim to compete with NITs/ IITs or IIMs. Why are market-forces not bringing the best out of these institutes?

This is not to say that public education system is the better alternative. As research suggests, both the systems are completely broken and need root-and-branch restructuring. The point that needs to be underlined is that both public and private participation is essential for reforming our education ecosystem. Given the resource constraints (both financial and human), private schools can play an important role in primary education space, but not in their present form. There is very little evidence that school choice or performance based pay or accountability or standardised testing has transformed school education. We should try to understand how countries like Finland reformed their primary schools to achieve equity and excellence. If we are just interested in ideological positioning, we can carry out even more experiments to drum on the same issue, but then, as Einstein famously said, doing the same thing over and over again and expecting different results is insanity.

PS – In the next blogpost, I will list our some of the reasons why school choice did not increase the learning outcomes as much as its votaries had hoped for. I will also try and look at some of the features of the best performing school systems.

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The Debate on Consent

While describing the elite public discourse in India Dr Pratap Bhanu Mehta recently quoted Robert Harris  “It is beyond even hypocrisy, it is beyond even lying : it has become a psychosis”. Dr Mehta explained further:

“The psychosis of our elites is more elusive. It does not confine itself to a single object but expresses itself in a constellation of elements. It is primarily a ruling class losing its grip on reality, with little capacity to distinguish the important from the trivial, with little capacity for making fine moral distinctions, and now locked in a self-confirming cycle of suspicion, recrimination and self-loathing. It is a form of malaise where we are so out of sorts that it is becoming harder to assess the reality we face. The bombastic dogmatism of public argument can barely disguise the sense of vertigo that lies beneath.”

This sentiment can be best captured by the debate around sexual assault in India by the so-called feminists. If the enthusiam to obscure discourse with irrelavant details and throw labels at people with different views can be converted to openness of thought and reason, a lot of this vertigo can be avoided.

While I personally disliked the article written by Mr Mehrotra, he did flag some important points for discussion. It is not uncommon to defend a friend who is accused of crime but it is not clear as to how pointing out some apparent infirmities of law or praising the literary work of an accused automatically makes someone a misogynist. But Ms. Deepanjana Pal thought otherwise and only she can explain how Mr Mehrotra’s idea of love life or man’s performance, blurry vision and hand-eye coordination during sexual intercourse is of any relevance to this debate.

Similarly, Mr Saurav Datta has written about the “complexities of consent”. While not missing the chance to throw some “-isms” to imaginary “-ists”, he is eventually making a straw man argument. Is consent for sex such a complex topic to understand? Let us consider the following options :

  1. No means  No.
  2.  Not saying No does not mean Yes. (no need to assume or read the mind)
  3.  Consent is not eternal and previous consent is not a reason to assume consent exists now
  4. Consent for some intimacy, for instance like kissing, is not a reason to assume there is consent for everything.

In other words, consent must be explicit and clear. Do we really need to do a PhD in behavioral science to understand this basic stuff? Even if someone is unaware of this, ignorance is not a defense of the law and the person is still a rapist.

However, apart from the the points listed in (1), (2), (3) and (4) above, there is a 5th category which is the main contention.

5. Contrary to the assumtion that “Yes is Yes”, the reality is that  “Yes is Yes only if you can prove that it is Yes in a court of law”.

Section 114A of the Evidence act reads,

where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been sexually assaulted and such other person states in his/her evidence before the court that he/she did not consent, the court shall presume that he/she did not consent.

This means that even if there was a full consent at the time of sexual intercourse, the victim can deny it and the court will presume that she is correct.  Though it is common to presume innocense, there is an exception here because the accused will have a way of proving the consent if it really existed (like showing a trail of SMS/emails/call details nature of the relationship etc) but the victim has no other defense except her own word. It is important to have this protection for the victim but at the same time it is important to understand the reasons for such protection to exist and remember that the probability of an innocent person getting convicted is much higher now.

It must be noted that in a court of law the debate around consent is always his word Vs her word and never “explicit”.  At the risk of being grossly insensitive and politically incorrect, let me say that explict consent legally means that we should go to Tehsildar office and  register consent every time we want to have sex or the statement of consent should be recorded by a Judicial magistrate everytime. How else will there be a proof of “explicit consent”?

Coming to the possibility of misusing the law, this is argument is very relavant in India. The extent of the misuse of anti-dowry laws is best captured when Supreme Court called it (the misuse) a “legal terrorism” and “bloodhunt and further stated that “many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive. In such cases, acquittal of the accused does not wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery”.  A study conducted by The Center for Social Research found out that 98% of the cases filed under anti-dowry law are false.

In an article published in The Wall Street Journal, authors Tripti Lahiri and Preethika Rana argued that Indian rape law offers the victims a desperate last resort”. They mean to say that even if the sexual intercourse was completely consensual and if the man chooses not to marry the girl later then she can (mis)use this law as a “last resort” and now claim that the accused never had her consent and coerce him back into the relationship. According to the authors of this article “police and women’s advocates say they are dealing with a flood of rape complaints like Ms. Gautam’s [this].”  While the Supreme Court held that consensual sex with the intention to marry is not rape even if the marriage did not happen, there are many cases where this is used as a tool to blackmail. More recently, a MBA student was convicted for raping a live-in partner because he backed out of the marriage promise.

Reneging on the promise of marriage is cheating but can the victim after giving full consent back out of it or can there be consent which is conditional to marriage? Should the accused be tried under cheating or under rape?

If we carefully examine the legal provisions, the principles of natural justice are turned on its head when it comes to sexual assualt cases. Do we still believe in a) presumtion of innocent till proven guilty b) Blackstone ratio for caution during presumption c) proof beyond reasonable doubt and d) a fair trial?

If presumption of “no-consent” is assumed then the accused will have no option but to counter the victim during cross examination with questions like “why did it take so much time to file a complaint” or to show some evidence that “there was no obvious change in behavior after the incident”. How else can an accused defend himself? But everytime this happens there will be an uproar from media and activists about character assasination. It is important to protect the victim from character assasination but that should be seen in the context of the probability of an innocent man being convicted, which is equally important.

It is because of these legal reasons the debate around  consent is complicated and not because we forgot to purchase an Oxford dictionary.

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SC Verdict on Constitutionality of Section 377

The Suresh Kumar Koushal Vs NAZ Foundation and Ors. judgment is now in the public domain. You can read the full verdict here.  There verdict may not have serious legal infirmities but the court could have given the same legal reasoning without making some of the insensitive comments.

Consider Para 43 :

43. While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

This is a preposterous argument but coming from the highest court of this country it is even more dangerous. Fundamental Rights, especially those under consideration operate at an individual level and the constitutional validity of any law has got nothing to with a headcount of the number of people getting affected by it. If homosexuality is recognized as a fundamental right, then even if one person out of a billion is a homosexual, then the court must take necessary steps to protect his right. It could actually be argued that smaller the affected group, greater is the burden on judiciary to protect their rights from the State and also from the majority.

As rightly pointed out by Apar Gupta, Justice Singhvi recently stayed his own order in Campa Cola demolition case because he was distressed and could not sleep well. If a Judge could be so moved by property loss of 102 illegal flat owners, it is not clear as to why he is ignoring the plight of “less than 200” persons on a far more crucial right.

Consider Para 52:

52. In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

As mentioned in my previous blog, it is true that the Delhi High Court based its verdict on many other jurisdictions which in my opinion is not appropriate,  however  the same argument can be made with a bit of sensitivity and the words “so-called rights” , “in its anxiety”  could have been avoided.

It should also be noted that the same Judge who cancelled 122 2G licenses because the allocation was based on a first-come-first-serve basis, which is arbitrary and ultra vires the provisions of Article 14 (constitutionality of the auction policy was later clarified through a presidential reference) gave the reasons of judicial restraint, respect for the parliament and will of the people for not expanding the definition of “sex” in Article 14 to include “sexual orientation”.

Notwithstanding the above objections, I still believe judicial restraint is a good thing and the court is correct in leaving this issue to the parliament. A quick reading of constituent assembly debates around Article 14 indicates that apart from discrimination on the grounds of religion, race, caste, sex or place of birth various other things like “dress worn by any nationality”, “political creed”, “color” were debated but there is no mention of “sexual orientation” anywhere. To recognize homosexuality is important but desirability is not the basis on which constitutionality of any legislation should be decided. It is true that the Judiciary expanded Fundamental Rights  very aggressively in India–  Right to life includes Right to live with dignity, Right to clean air, Right to sleep etc but we have already reached a peak where almost every policy decision is questioned for some constitutionality. The judiciary should stick to the text of the law (there is no such animal as spirit of the constitution) and leave the legislative work to parliament. On this principle the verdict looks correct.

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The Debate on Constitutional Validity of Section 377

Going by the reaction to Aarushi verdict and the recent Supreme Court Judgment, it seems like we are approaching the courts not for legal relief but to test the legal knowledge of Judges. The expert journalists on social media and TV studios any way know all the answers and they don’t even need to wait for the judgment to come out before criticizing the verdict.

Consider the debate around constitutional validity of Section 377 of IPC. It is indeed a matter of great shame that the state is regulating sexual preferences of consenting individuals. We must legally and formally recognize the notion of equal rights for LGBT community. But should the legislature bring this change or should we leave this job to the courts? It is argued that Right to Equality is already a fundamental right and no person can be discriminated on the basis of religion, race, caste and sex. The Delhi High court reasoned that the word “sex” in this article includes not just gender but also sexual orientation. Using this argument the High Court felt that Section 377 is discriminatory so far as consensual adult sex is concerned. It is a very progressive judgment and the honorable Judges have brought out a fine legal reasoning. However, there is no explicit judicial precedent on this and the court had to rely on Judgments from other countries, law commission reports, Prime Minister Speeches etc. The Judgment is not without any issues, because it is not just striking down a law (or a portion of it) but it also gave a new meaning by introducing the word “consent”.  It is precisely where I object to this creativity. The courts should either strike down the law or uphold its constitutionality but they should leave additions and subtractions to the legislature.

The Supreme Court today overturned the Delhi High Court verdict and said that it is for the parliament to do necessary amendments recognizing these rights. Let us look at the options which Supreme Court has:

  1. Uphold the constitutionality but request the parliament to change the law recognizing these rights.
  2. Recognize Article 14 argument for LGBT community and declare Section 377 in its entirety as ultra vires of the constitution.
  3. Add a different meaning to Section 377 to mean that consensual sex is fine but “non-consensual”  sex is “against the order of nature” (The Delhi High Court way).

The Judgment of the Supreme Court is not in the public domain yet, but it seems like the court opted for the first solution.

As much as it is desirable to bring sexual orientation under Article 14, we should first fix some of our laws before that. For instance, Section 375 recognises rape as an act forced by a man on a woman.  It does not recognize the forced sex between a woman and another woman or between a man and another man as rape.  By the same logic of Delhi High Court, even this law is then discriminatory according to Article 14 of the constitution. It is absurd to suggest that forced sex by a man on a woman is rape but the same if done by a woman to another woman is “unnatural sex”. The law commission did recognize these infirmities and suggested that Section 375, 376 should be amended to cover the same sex rape and then Section 377 should be deleted completely. This would have been an ideal solution but then this involves substantial legislative work and only parliament can do this.

While recognizing the rights of LGBT community is very important and we have to act on this issue with a sense of urgency, this is not about the constitutional validity of one section of the penal code.  That the judiciary is anyway venturing into the domain of legislature on some issues is not an argument for asking it to interfere in one more issue. By giving a new interpretation to Section 377 the Delhi High Court has created the same confusion which we have with the Sedition law. The text of the law says something, the court interprets it in a different way and the policeman on the ground has no clue about all this.

For problems like this the ideal solution rests with the parliament and we should push for a comprehensive legal framework recognizing the rights of LGBT community.

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Tehelka of another kind

The Tehelka editors and their ridiculous ways of dealing with sexual assault.

Whenever the Managing Editor of Tehelka comes on television, I get the feeling that she comes out with a sole objective of provoking me. The kind of the statements that she has been giving to the media related to the incident of sexual assault should make all human beings collectively cringe. She has no understanding of justice and no clue about the rule of law.

Going by the contents of the email from the victim, there was a serious sexual assault (and many suggest that according to the new amendment, it amounts to a rape). But Ms Choudhury thinks that this is completely an “Internal Matter” of Tehalka and the victim was “Satisfied” with the response. On any further questions, her quick retort is “Are you the aggrieved person”?

The incident clearly is a cognizable offense and the judicial process in this country is neither based on a khap panchayat model nor can it be settled through “blood money”.  There is no provision in the statute where a victim and the perpetrator, brokered by a powerful media house, can do private treaties to settle this kind of offence. It seems Ms Chaudhury was (ill) advised by certain feminists that the victim has “complete autonomy”, her privacy is more important than justice and the choice of remedies that the victim chooses is completely up to her discretion.  While many feminists tend to think they are even above the constitution to settle things at will, this kind of understanding of the legal process from a serious journalist like Ms Chaudhury is shocking.

A crime is committed against the society (or state), and not just an individual. There is thus every reason for the society to be aggrieved by it. To say that the victim is not interested in vengeance is preposterous. There is no room for vengeance in a society which does not believe in retribution. All that we are asking for is justice.

A couple of weeks back, Supreme Court in Lalita Kumari vs Govt.Of U.P.& Ors said that it is mandatory for police to register an FIR for all cognizable offences, once a crime has been reported. The court also dismissed the arguments of various state governments that a preliminary inquiry is required before registering an FIR. So it is absolutely clear that Goa police can register an FIR even if the victim is not interested in the probe. It may be harsh, but all these cases will be State Vs defendant and not Victim Vs defendant. The victim is a source of information who can aid justice but she herself cannot administer justice.

If Ms Chaudhury thinks that she can escape police investigation into this case, she is living in denial. She would be better advised to start consulting her lawyers and not feminists. There are only two ways in which charges against the alleged perpetrator can be dropped now:

  1. The victim backtracks from her complaint given to the Tehelka and gives a statement that no such incident took place. (Ideally, even if victim backtracks, police can still question Ms Chaudhuri and other journalists involved in the case because there is so much circumstantial evidence in this case)
  2. During the course of investigation/trial, it comes out that the charges were falsely levelled.

However, both of these are very remote possibilities because the alleged perpetrator has indeed recognized the crime as a “misreading of the situation” and “lapse of judgment”.

In any case examination of charges and convictions should be decided in a court of law and not by the victim or the perpetrator or the institution. If the victim chooses to backtrack, then we all can keep our mouths shut and settle down. But justice must be done according to the law and not according to the whims and fancies of any person (even if that means the victim concerned). Justice is not something that can be settled as a private deal between perpetrator and the victim. Let’s hope the Goa government goes ahead with its investigation and in the process if any person or institute obstructs the administration of justice or destroys evidence, they must also be charged accordingly.

And to all the feminists advising on the autonomy, my only comment — I am not sure if you are comfortable living in the midst of alleged rapists but we certainly are not!

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Reading History with the eye of sympathy

How should we read Indian history and Nehru’s contribution to India?

It is fashionable these days to criticise Nehru or to invent an imaginary rift between Nehru and Patel, of course, for obvious reasons. Without having to experience the burden of past and with all the benefits of hindsight, it is easy to find faults in any person. Nehru is also a human being and was bound to have had some strengths and weaknesses. But some of the criticism regarding dynastic politics and economic policies that is now attributed to Nehru, I think, is grossly unfair. But unlike political analysts and commentators, Nehru had to deal with enormous challenges like the effects of partition in which, according to some accounts a million people were slaughtered, the millions of refugees reminding him every day what ‘freedom’ really had done to them, the Hyderabad problem and more importantly the Kashmir problem, the burden of the past, the expectations of a new and free country, the highly charged communal environment and many more. Nehru had to deal with all of these problems simultaneously and it is difficult to imagine any other leader in his place handling these issues with similar equanimity.

Even if we criticise Nehru for everything, we should forever be grateful to him for one thing: that he did not let India become another Hindu-Pakistan.  Despite strong provocations from West Pakistan, East Pakistan and even from our own nationalist leaders, his unwavering commitment to protect and reassure minorities and the manner in which he agonised over any communal incidents shows his extraordinary secularist character. Not to forget how he used every single opportunity to get global recognition for India or how he contributed to the Indian higher educational sector.

So how should we read Indian history and Nehru’s contribution to India? Well, in his book Glimpses of World History, Nehru himself wrote about how we should be reading history. We should display similar standards while reading about him now. To quote Nehru:

I have given you the barest outline; this is not history; they are just fleeting glimpses of our long past. If history interests you, if you feel some of the fascination of history, you will find your way to many books which will help you unravel the threads of past ages. But reading books alone will not help. If you would know the past you must look upon it with sympathy and with understanding. To understand a person who lived long ago, you will have to understand his environment, the conditions under which he lived long ago, the ideas that filled his mind. It is absurd for us to judge of past people as if they lived now and thought as we do. There is no one to defend slavery today, and yet the great Plato held that slavery was essential. Within recent times scores of thousands of lives were given in an effort to retain slavery in the United States. We cannot judge the past from the standards of the present. Everyone will willingly admit this. But everyone will not admit the equally absurd habit of judging the present by the standards of the past. The various religions have especially helped in petrifying old beliefs and faiths and customs, which may have had some use in the age and the country of their birth, but which are singularly unsuitable in our present age.

If, then, you look upon past history with the eye of sympathy, the dry bones will fill up with flesh and blood, and you will see a mighty procession of living men and women and children in every age and every client, different from us and yet very like us, with much the same human virtues and human failings. History is not a magic show, but there is plenty of magic in it for those who have eyes to see.

On Nehru, the final word must go to his one-time colleague and later, his staunch political opponent, C Rajagopalchari. When Nehru passed away, Rajaji wrote the following obituary in Swarajya:

Eleven Years younger than me, eleven times more important for the nation, and eleven hundred times more beloved of the nation, Sri Nehru has suddenly departed from our midst and I remain alive to hear the sad news from Delhi – and bear the shock. Sri Nehru was ill and we knew it was a serious form of illness, but we did not imagine he would be snatched away so unceremoniously and so swiftly.

The old guard-room is completely empty now.

I am unable yet to gather my wits. I have been fighting Sri Nehru all these ten years over what I consider faults in public policies. But I knew all along that he alone could get them corrected. No one else would dare do it, and he is gone, the most civilized person among us all. Not many among us are civilized yet.

God save our people.

Not many among us are civilized yet. God save our people. Those words were said in 1964. But they sound so true even today.

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The Campa Cola demolition issue

The  timeline of the Campa Cola demolition issue and the how the recent intervention by Supreme Court has serious negative consequences.

The Supreme Court (Justice G.S. Singhvi) took suo moto cognisance of the Campa Cola demolition and stayed its own order. There are many talking points about this order but before that a brief timeline of the events as noted by the Supreme Court in its Judgment on 27-Feb-2013 (Esha Ekta Apartments Co-operative Housing Society Limited and Ors Vs Municipal Corporation of Mumbai and Ors):

1. The Municipal Corporation of Mumbai leased out the plot in question under ‘General Industrial’ category to M/s. Pure Drinks in January 1962.

2. The lessee after using the land for manufacturing cold drinks under brand name ‘Campa Cola’ for 16 years made an application to convert the plot for construction of residential buildings, the request was rejected in 1980.

3. The lessee made an application to change the land use from ‘General Industrial’ to ‘Residential’ and obtained approval for construction of 6 buildings comprising of basement, ground and 5 upper floors (in 1981).

4. In 1983 the lessee secured permission from Chief Minister to raise the height of the building and modify the construction but the revised plans were rejected by the Planning Authority in 1984.

5. The builders continued the construction even when the revised plan was rejected and Executive Engineer of the Corporation issued ‘Stop Work’ notice to the builder also indicating that if construction is not stopped then it will be forcibly removed.

6. While the buildings were sold, it was clearly mentioned in the agreement that revised plans have been submitted for approval and sanction (which means there is no approval at the time of purchase and buyers are aware of it).

7. The Housing Society formed by the residents approached Bombay High court (writ petitions) to give direction to Corporation and its functionaries to supply water to the building occupied by its members. (Note : Had they not asked for Corporation water, this issue would not have even surfaced!!!)

8. Bombay High Court during the hearing of this case observes that even when the construction is in violation of the sanctioned plan, the corporation had not taken action and asks Additional Commissioner of the Corporation to appear in court.

9. The Commissioner of the corporation appeared before High Court and gave an assurance that action will be taken in the next two months and issued notices in Nov/Dec-2005, giving illegal structures proposed to be demolished.

10. The replies submitted by the housing societies were rejected by the corporation and they approached the court for relief.

11. The trial court initially stayed the demolition but eventually dismissed the petition and noted that the architect repeatedly told the builders that the sanctioned plan was illegal and the members of housing societies were very much aware of this.

12. The appeals were dismissed by Bombay High Court also.

13. The housing societies challenged the order in SLP and Supreme Court felt that the petition can be dismissed but as the demolition would adversely affect the buyers, the writ petition pending before High Court to regularize the disputed construction was transferred to Supreme Court on 29-Dec-2012

14. The lessee and builder informed the court that purchasers of the flats were very much aware of these issues and they cannot claim ignorance now.

15. The Supreme Court after hearing the counsels (Dr. Abhishek Manu Singhvi and Ravi Shankar Prasad included) observed that the trail court and High Court were correct in not granting any relief to the petitioners and directed the corporation to go ahead with the corrective action.  The Court also explicitly directed the State Government not to put any hurdles in the process. To quote :

The Courts are also expected to refrain from exercising equitable jurisdiction for regularization of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.

46. In the result, the appeals and the transferred case are dismissed and it is declared that there is no impediment in the implementation of notices issued by the Corporation under Section 351 of the 1888 Act and order dated 3/8.12.2005 passed by the competent authority. The Corporation is expected to take action in the matter at the earliest.

47. We also direct that the State Government and its functionaries/officers as also the officers/employees of the Corporation shall not put any hurdle or obstacle in the implementation of notices issued under Section 351 of the 1888 Act.

16. Another petition was filed in the Supreme Court for relief bringing in new facts but the court did not allow it at this stage and dismissed the SLP.

17. The petitioners informed the court that 75% of the occupants of the illegal construction vacated the buildings and requested the court to give another four weeks time for the remaining occupants to vacate (upto 11-Nov-2013).

The Supreme Court while granting four weeks time made the following observation :

This would be subject to the condition that they shall not  file any litigation in any Court  in  the  State  of  Maharashtra  including  the Bombay High Court except for recovery of the amount paid to  the  developers / builders. At the same time, it is clarified that this liberty shall not entitle the petitioners or anyone else to file any case and seek injunction against demolition of the illegally constructed portions of the building.

18. On 13-Nov-2013, just before the demolition started the Supreme Court issued a stay of 6 months and asks for all demolition to be stopped based on media reports and out of compassion!!
Now the real questions:

What kind of jurisprudence is this when a Judge takes Suo moto cognizance of an issue out of compassion, based on media reports and stays his own earlier order? It is one thing to reconsider the order if there are any new petitions or facts before the court but is it appropriate for Judges of the Supreme Court to arbitrarily change their own orders, not based on legal principles but on the basis of emotions?

Relying on this verdict, Bombay High Court in Shubh Apartments CHS Ltd. Vs Greater Mumbai Corporation and Ors issued similar orders. What will happen to this verdict? Should it also be stayed on compassion grounds?

Will all illegal demolition residents not approach the court for similar relief and what is the rationality of these orders and from which provisions of the constitution does court derive this authority and legitimacy?

There are some reports that the Supreme Court agreed to consider the proposal for constructing a separate building in Campa Cola premises for the affected people.  In this particular case the court itself repeatedly mentioned that the buyers were aware of the irregularities before the purchase and if such extraordinary relief is extended to them, why not similar relief to slum dwellers or to those whose land has been disposed by the state for industrial use?

When 75% of the occupants of this illegal construction obeyed the court orders and vacated the buildings, instead of initiating contempt proceedings against the other 25% for disrupting the demolition process,  what signal is the court sending by granting special and exceptional relief? Does this mean that we can chose to disobey the orders of the court and ultimately court itself will modify them if we can generate enough media hype?

Whatever the final outcome is (if ever there is one), I think it is fair to say these kind of arbitrary orders from Supreme Court are disturbing.

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Supreme Court verdict on fixed tenure and other reforms for civil servants

…but this much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

                                                                                                –Learned Hand

 

There is more to the Supreme Court verdict on fixed tenure for civil servants than meets the eye.  The courts are increasingly venturing into the domain of legislature and this can have undesirable consequences.

The recent verdict by the Supreme Court prescribing fixed tenure for the civil servants and also directing the center and states to constitute a Civil Services Board(CSB) for handling transfers, postings and promotions has been hailed as a major administrative reform in some quarters. Though this order might come as a relief to the honest bureaucrats who are transferred frequently, there are serious issues with this Judgment that challenge the very democratic principles and legislative authority of the Parliament.

First, it is not clear as to how a Public Interest Litigation (PIL) of this nature is maintainable under Article 32, which is a judicial safeguard for enforcement of rights. As much as they are desirable, administrative reforms are not “statutory rights” of a citizen. The petitioners are few individuals who claimed to know what “public interest” is and asked the court to issue binding orders to the legislature. In a democracy public interest is represented by the elected legislators and it is befuddling as to how few individuals, no matter how good their intentions are, can typecast their interests or views as larger public interest.

Second, the legal reasoning behind the Judgment is not very clear. The court seems to have relied heavily on various Administrative Commission reports. There is a passing reference to Prakash Singh and Others v. Union of India  (2006) and according that Judgment the Supreme Court is empowered to issue orders of this nature according to Article 32 read with Article 142. As explained brilliantly by Dr. R Prakash, Article 142 can be invoked for procedural purposes only and it does not confer on the Supreme Court any powers to make laws or to order the legislature to make new laws.

Third, with due respect to the Supreme Court, by directing the parliament to make laws it is clearly undermining the legislative authority of the parliament.  If we examine closely, it appears as if the primary legislative power in this case is with Supreme Court and in the form of a delegated legislation it has asked the parliament to make a new law. Though the intention may not be this, but clearly, by directing the parliament to make new laws, the court is assuming the primary legislative power for itself and it has serious consequences. That the court is using this power very rarely is not a valid argument for using it even once.

Fourth, the Supreme Court gave similar orders in Prakash Singh(Supra) regarding police reforms, directing the state governments to implement their order in six months but none of the states have actually implemented these orders even after seven years. Assuming that power comes with responsibility and accountability, is it appropriate for the honorable court to issue orders which are not enforceable and shouldn’t the court take responsibility for not being able to enforce their own orders?

Fifth, while none can deny that frequent transfers of honest officers is a serious issue, this fix seems to make the matters even worse when we look at it in the spirit of democratic principles. It is strange to assume that a Minister should not be allowed to even have a secretary or bureaucrats of his choice. There can be procedural safeguards to protect the bureaucrats from arbitrary transfers but having a rigid fixed tenure may also prevent ministers from selecting the best officials they are comfortable to work with.

Finally, any administrative reforms should come through a proper legislative process. Some of the states may not be in favor of these reforms and the process of consulting and consensus can be painfully slow. But that is the only option that we have and if Judiciary assumes the role of legislature then as Justice V. Ramaswam had said in Union of India and Another Vs Deoki Nandan Aggarwal, it may lead to “naked usurpation of legislative power”. To quote:

The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.

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Good Teachers and Dunning–Kruger Effect

Many research studies confirm the importance of quality teachers to the overall child development and it is important to have professionally qualified and trained teachers instead of adhoc-fixes to address the problem of quality in Indian education system.

According Section 23(1) of the Right to Education (RTE) Act, the central government can authorize an academic authority (National Council for Teacher Education (NCTE) in this case), to notify minimum eligible qualification for the appointment as a teacher. The minimum qualifications (Diploma/Bachelors in Education) as prescribed by the NCTE can be read here.

However, the RTE Act recognized that there would be two practical difficulties with this criteria and addressed them adequately.

  1. Not all the states have enough institutions to meet the minimum qualifications as prescribed by the NCTE, and in such cases on the request of respective state government, the minimum criteria can be relaxed by upto five years
  2. The teachers who are already appointed and do not have minimum qualifications are given five years to acquire them.

The normal course duration for a B.Ed program is 1-2 years depending on the state and giving five years time to comply with seems to be a fair deal. It may sound a bit odd for teacher education but distance learning degrees are also recognized by NCTE. However, not many private schools took these criteria seriously and as the deadline approaches there is a clamor for further extension or relaxing the minimum eligibility criteria.  It is argued in some quarters that a “teacher education degree” is not even required to be a good teacher and as an example they show some “lost cost private schools” which are doing well without having qualified teachers.

A couple of weeks back someone tweeted to check if working professionals would be interesting in teaching primary school children in public schools on weekends. Some institutions came up with a magical 5-week teacher training program — a two-minute Maggi noodle version. Some of these interventions may be with good intentions but as they say, the road to hell is paved with good intentions. As Finnish Educator Dr. Pasi Sahlberg asks, do we trust a civil engineer with a 5-week adhoc training program on dentistry to fix our teeth? If anything, teaching primary school children is even more complex. Subject knowledge alone is not enough. Teachers should have a good understanding of cognitive theory, pedagogical methods and language acquisition.

How it is then some people claim that they can be good teachers even without a proper teacher training?

This phenomenon is explained by Dunning–Kruger effect, which in effect says that unskilled individuals suffer from illusory superiority. (From Wikipedia) Dunning and Kruger proposed that, for a given skill, incompetent people will:

  1. tend to overestimate their own level of skill;
  2. fail to recognize genuine skill in others;
  3. fail to recognize the extremity of their inadequacy;
  4. recognize and acknowledge their own previous lack of skill, if they are exposed to training for that skill.

Dunning and Kruger published some fascinating research papers on this inflated self-assessment phenomenon. Unskilled and Unaware of it : How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments (1999), Why People Fail to Recognize Their Own Incompetence (2003). For a complete list click here.

Primary school teaching is one of the most difficult jobs. In Finland (which has the best primary school system in the world), primary school teachers have to go through a rigorous Masters program and multiple selection interviews and they enjoy the professional status as doctors or lawyers.

The social cost of not having properly trained teachers is really massive. If our B. Ed program is inadequate we should reform it, if our public education system is broken then we should fix it but to come up with adhoc fixes, even with noble intentions can have terrible consequences. Slow progress is better than travelling too far in the wrong direction. We must find the right way.

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