The picture above is a receipt of a Rs 500 fine imposed on a student for coming to Doveton School with a Mehandi – a temporary Hindu tattoo. The school is run by Doveton Protestant Schools Association one of the oldest schools in Chennai. The details of the incident can be found in this news story. These incidents are becoming commonplace around the country just recently Hindu girls in Kanpur were severely punished by St Marys Convent for wearing a pagan string called Rakhee. Hindus tie this string to symbolize a brother sister bond on only one day every year. Similar restrictions are in place in most schools and by and large the Hindu student body abide by these rules.

When the father of the 7 year old protested, this is what the Christian management had to say.

“I told them it was a tradition in a Hindu function, and they told me that if that was the case then I should not admit my child in a Christian school,”

Prima facie this counter argument made by the school sounds impeccable. The exact equivalent would be “Why are you buying our product if you don’t like it” argument made by free market supporters. I try to analyze whether this argument has merit in this article in light of India’s unique sectarian laws governing education.

The sentiments on both sides

It is important to see this issue from the Christian school management point of view first.

Ye shall not make any cuttings in your flesh for the dead, nor print any marks upon you: I am the LORD. Leveticus 19:28

Bindi – a dot on forehead of Hindu girls, Vibhuti – a sacred ash mark, Sandal paste, Mehandi – the temporary tattoo for which the boy was fined – are all markings on the body. There may be many Christians willing to accommodate this but there may be many others for whom these are satanic symbols. If you are concerned about coercion of students into abandoning pagan symbols it is also fair to worry about coercing the school management into accepting satanic symbols.

This conflict is not limited to display of symbols but also to the prayers and surrounding culture of the school. Consider this example : According to Wiki, “Onward Christian Soldiers” is the founders Hymn [1]. The hymn has lines like “At the sign of triumph Satan’s host doth flee; on then, Christian soldiers, on to victory!” – Onward Christian Soldiers [ hymn ]

Now I am not sure if in this particular case students are forced to sing this hymn, but this would be a useful example to analyze the issue in the general case. Suppose that such a hymn were to be sung as prayer – would that be acceptable ? Even though there may be no coercion to sing along it is still jarring because the song clearly talks about destruction of non-believers. On the other hand – does the school NOT have the liberty to sing whatever hymn they want ?

Nature of the school – public or private

We need to first sort out not if the school is Christian or Hindu but to determine if the school in question is public or private. This determination is not as simple as you would think because it is not just about the ownership but about whether a given school is ‘affected with the public interest’ and therefore is expected to pull back and behave in certain ways.

First let us see how this rights dilemma would be resolved in a “Rule of Law” country like the United States or any of the advanced countries. Next we will consider the skew introduced by the “Idea of India” legal regime due to its sectarian processes. Finally we will try to model the current education situation in India in terms of contract.

Symbols and Prayers

The secular test for symbols is whether there is any functional impact on other children that somehow distract the teaching/learning experience. For example you may not allow a kid to wear a sombrero or a distracting Jedi costume to school. This could block the view of teachers and obstruct other students. Similarly loose and skimpy dresses could be unsafe or lead to unwanted problems. The local customs prevalent in the territory where a school is located dictates a lot of what is acceptable even in these cases. In India, Hindu symbols like Mehandi, Bindi, do not have any functional impact at all. The only argument against them can be religious.

Prayers can be as sectarian, warlike, or denominational if the school is private. Advanced countries take great care to clearly demarcate the public from the private. USA for example goes to great length not to fund private schools – even to the extent of questioning grant of library books and school bus routes [1]! When the institution is public the rules for prayer are simple. Apart from a prohibition on proselytization, prayers that ..” denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” would not be permissible [1].

So in advanced countries the question reduces to : What are the rules to determine if a school is public or private“. Is it Private? Do whatever you want (subject to general rules for public order, sedition, and the other good stuff). Public ? Play by non-sectarian rules.

Public interest

As mentioned earlier, the Christian school management is essentially making a business analogy when he says “Why come here if you dont like our rules?” One can argue that unlike a grocery store, a school by nature of its activity is automatically ‘affected with the public interest’ and therefore must be subjected to fair and non-discriminatory regulations. However, let us concede that point and treat the school as a business.

The test for whether a business is public or private is largely rooted in an ancient 1676 judgment by an English judge called Sir Matthew Hale [1] – who when writing about commercial activities of ports and customs houses coined the term ‘affected with the public interest’. The tests in simple terms –

If you take government money you are public – end of story. (this part is wrecked by Idea of India as we shall see)

If you operate under a franchise or license from the crown or govt – your activities are affected with the public interest because you have secured a virtual monopoly

Natural monopolies such as public utilities, those requiring public right of way are all considered to be affected

Now if a business (like our school here) is affected with the public interest it does not mean the government owns and runs it. It usually means that the rates charged must be fair, non-discriminatory, and reasonable. Each of these terms are precisely selected by western judicial scholars. ‘Non discriminatory’ means you cannot select your customers for special treatment. To give you an example :Airtel holds a license from the govt which controls a natural monopoly of airwave spectrum – hence they cannot offer special rates to Punjabi Males and then say “If you dont like this policy go to Idea”. On the other hand a private wholesaler can offer special rates and finance packages to groups because due to absence of licensing or a monopoly situation he is free to use his best business judgment and discriminate.

The above is just obvious and most people just ‘get ‘ this at an instinctive level. Unfortunately, in India I do not know where the planes of agreement are anymore. This may be obvious but are people willing to scream if these principles of private-public separation are violated?

The school situation in USA and the west are clean – if you take money from the government you usually frame that as a contract. This is called a Charter Contract. Once a company signs a charter they no longer can discriminate or proselytize on the same lines of public schools. The rules are so bright lined that even hosting a prayer meeting for a sick student in a California charter school was frowned upon recently. The liberal and civil rights circuit in the west even forced charter schools to amend its contract when teachers were caught asking children to pray – even innocently [2]

The obsession in the west to separate the private from public domain especially in education is due to the recognition that separating the Church from the State must involve the domain of public education first. It is through education in schools that a culture can replicate itself, the school promoters gain stature in society, can use the school assets funded by the taxpayer for structured bargaining in other economic areas and so forth.

Barring the few sparks of tension this has worked beautifully for the west.

Now lets turn to India.

The Idea of India as a judicial doctrine

If you believe that school education is the chief method of cultural reproduction is follows naturally that controlling this activity will be a target for those who think strategically.

The 10 Billion dollar secret of India’s education law is that it is sectarian and rooted in religious discrimination. This is how it works for those learning about these things for the first time. India’s constitution has a ‘protective’ shield for minorities in two clauses called Article 29/30. The reasonable reading of these articles is that religious minorities shall be allowed to run their schools and colleges which are essential to preserve their culture. Over 60 years this simple clause has been the subject of such vexatious litigation as huge benches of supreme court judges tied themselves in knots over the issue. Since there are no principles being discussed the whole issue tilted to progressively favour minorities and subject Hindus to ever tightening regulation. This is due to two pulls. First the failure of the socialist state to provision education led to the state taking from private effort. Next this was challenged at each step as minority runs schools repelled each of these efforts that Hindu run schools could not. In early 2000’s a total of 21 judges of the Supreme Court in marathon deliberations over 3 years in TMA Pai series finally ruled that minorities have same protections as Hindus and are not on a higher pedestal . With this everyone thought the matter would rest. The Congress government however immediately upon getting elected in 2004 struck back with a vengeance and passed the 93rd Constitutional Amendment which obliterated the judicial consensus and restored the anti-Hindu tilt. The 93rd Amendment then enabled the innocuously named “Right to Education Act” which imposes toxic burdens and loss of autonomy for Hindu-run schools while exempting in-toto Christian and other minority run schools. I have written about this extensively in this article.

The current situation in India is split along minority/Hindu and aided/private axis as follows.

If you are a private unaided Hindu-run school – you need to follow RTE rules and need NOC (a No Objection Certificate – a uniquely Indian license) and other establishment rules

If you are an aided Hindu-run school – you need all of the above and you need to cede management control to school management committee. Essentially a shell.

If you are minority unaided school – you have full autonomy and the RTE does not apply to you. The NOC process is extraordinary because you can approach NCMEI that Hindus cannot.

If you are a minority aided school – you still have full autonomy except some very basic service conditions for teachers.

You can see how the Idea of India completely destroys the carefully constructed common law principles of ‘affectation with public interest’. If you are a minority – even if you run on public money you are treated like a private enterprise. If you are Hindu running the school without any government help – you are considered a public establishment.

Franchise models

Post Pramati Educational Trust vs India [1] the 93rd amendment was held to be valid and the minority both aided and unaided were exempted from the RTE Law, we can try to model the situation as contracts.

One of the key formalities if you want to operate a school is the requirement of NOC (a No Objection Certificate – a license kind of). The NOC alongside an array of mind numbing procedures also stipulates a exclusivity question “Is there an existing school nearby“. Does this sound familiar ? Yes due to the geographical exclusivity these schools are operating under a franchise from the state. I am ignoring another license called the “Essentiality Certificate” that have similar terms in some states are not required of Christians, Muslims, and other minorities. In Delhi only Hindus need the EC as shown in the official rules below.

Any individual, association of individuals, society or trust, desiring to establish a new school, not being a minority school, shall before establishing such new school, give an intimation in writing to the administrator of his or their intention to establish such school. (Rule 44 of the Delhi School Education Rules, 1973) Source : Official Delhi Govt Rules for Essentiality Certificate

Here is an attempt at formulating a contract model. You can think that the Govt of India hands out private schools by four different franchise models. You can also use the term Charters if you’d like. The franchises available are :

Maximum Autonomy Franchise (Platinum) : Run the school however you want subject only to public order. Full autonomy in teacher hiring , selection of students, and fees – subject to basic controls only. State will ensure franchise exclusivity by distance criterion for NOC from competitor. You are allowed to perform any kind of prayer and force any kind of dress code and symbols on student body. Can fine and expel.

Medium Autonomy Franchise (Gold) : Run the school with major autonomy subject to basic service conditions for teachers. Some fee control, autonomy of selection of students for at least 50%. State ensures franchise exclusivity. You are allowed to select teachers, force any dress code and invoke any prayer.

Low autonomy (Copper) : Run the school under very specific rules under the Right to Education Act. Lose autonomy for selecting students, force cross subsidy to make up for deficit induced by state. Still retain autonomy in some management matters. Strict non discrimination rules under watch of hostile civil society jury means you cannot enforce uniformity or fee payment.

No autonomy (Clay) Franchise : This type of school is private in name only. All rules of Right to Education must be followed. Fees are fixed, teachers are appointed by caste quota and external govt agencies, teachers cannot be terminated. Management is illusory as real control of these schools are with the School Management Committees.

The mere fact that you have four types are franchises does not make them wrong or suspect. You could imagine that based on geographical and backwardness issues you can allocate more or less autonomy in exchange for government money or in line with social objectives. Once you lay out these types of franchises the question is what are the qualifications for obtaining one of these franchises.

Now if I told you that these are the qualifications :

If you are Hindu you cannot get Platinum and Gold franchises – even if you offer to foot the entire bill. The maximum you can get is a Copper Franchise.

If you are a Christian , Muslim or other minorities the minimum you can get is a Gold Franchise.

If you are a “linguistic minority” you are taking advantage of an escape vent so that the scheme cannot be called ONLY religious. You could, if you have the political clout, get a linguistic waiver and aspire for Platinum or Gold. (But you cannot have the NCMEI bat for you in the NOC stage)

Would you recoil at such an atrocious rule ? This is exactly the situation in India. This is not perpetrated by Sadhvi or Yogi but by modernists, liberals and think tanks support.

Once you model the situation as above you can see where the Christian management draws its arguments from. Despite taking advantage of the virtual monopoly granted by the NOC, the exemption from uniform law, and preferential treatment in allocation of franchise, they do not consider themselves to be ‘affected with the public interest’ and are therefore bound by only by private rules of business.

I have been an observer of various laws and institutions in India on this blog for the past 10 years. India’s education law is spectacularly isolated in the world – there is no country where the majority community faces special burdens by law in this sector. The education law is also remarkable for the complete absence of comment in Indian intellectual, think tank, and liberal circles. For example the Pramati judgment which is of such a monumental nature overruling 50 years of evolution of jurisprudence and stamping finality to sectarian consideration in education – spurred no debate at all !! Even on social media if a handful of us stop talking no one will even know that such laws exist. In a way this is the best example of the liberal bigotry , a close mind without any curiosity. Free speech in its full definition allows the uninhibited discussion of *ALL* aspects, events, and laws.

I call this the business end of Idea of India.

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