The idea of justice - retribution and restitution - a governance issue

The rape of a 23 year old girl in a Delhi (public) bus has outraged the whole nation. People are seen to be clamouring for capital punishment of those convicted of rape.  Actually this incident should have been seen right away as much more than a mere rape case. Belatedly, the police realised their mistake and charged the "gang" with IPC sections applicable to "attempt to murder". The girl was inhumanly brutalised and thrown out of the moving bus along with her companion who was also badly beaten. The girl with a lot of grit is on maximum life support systems and battling for survival at a Singapore hospital where she was shifted from Delhi's Safdar Jung Hospital after 12 days. In this case of rape and abject violence, any punishment would seem to be too little. 

As the whole country protests and due to 24 x 7 spot light across dozens of TV channels, the girl and her family will receive no-costs-barred support from the government which is only fair. This blog is about retribution (subject of criminal law) and restitution (subject of civil law). i am no student of law, however, i think our laws are in need of urgent reforms and sadly the legislators need to be far more sensitive to the situation than they are. In this particular case, the popular sentiments also need to be understood and managed (guided?).

Laws need to be designed with a more evolved sense of justice than seems to be conveyed by the agitators and protesters - to the extent it is possible to gauge from the placards displayed and the interviews seen in TV and Press.

Rape, like any other offense, must be understood in terms of its consequences - the impact has to be assessed over all possible dimensions, including psychological injury, physical injury, monetary loss and injury to victim's reputation (at least rape should not be viewed as an episode that dents victim's reputation and robs her ability to live her life with respect and self-esteem)*. Impact may be temporary or permanent, i.e. irreversible. The severity of the impact must also be distinguished by the cost and time required to recover from the injury, if at all. Rape is a very coloured term - one should not design a law which ignores differing severity of impact along different dimensions and pronounces a fixed punishment for any act which qualifies to be called a "rape". Punishment of the perpetrator takes care of retribution envisaged in the sense of justice. But this is not sufficient. More important in the idea of justice is restitution of the victim - and whether the society, i.e. the State should accept responsibility in many such cases. 
 

While applying the above logic we will find many pointers to improving ourselves and our laws.

1) Bhopal gas case - victims were short-changed by defective justice delivery - a) compensation claimed from plant owners was inadequate and b) State was not held accountable  and it was not obligated to contribute to restitution of victims - first was the mistake of the judge and second was faulty design of the law itself.

2) Nuclear power suppliers' liability law - suffers from defective design. It puts zero liability on state and it puts huge liability on supplier and tries to create an impression that this will be necessary and sufficient for restitution of victims of a nuclear power plant disaster.

3) Delhi Public Bus gang rape case - here we have a set of perpetrators who committed heinous sexual and physical violence. Restitution of victims (the girl and the boy too) is needed by the State as commuters' "physical safety" in public buses is avowedly a State responsibility, to the extent that the bus driver and the conductor are not supposed to be "lunatics or deranged rapists" - and in the incidence of the Delhi Public bus, the driver and conductor can only be described as such - the state patently failed in this guarantee - State must accept responsibility for not failing such bus crew. Therefore, merely asking for capital punishment of perpetrators is NOT sufficient justice meted out to victims.

CONCLUSION - a more evolved and civilised sense of justice would value restitution higher over retribution in dealing with the victims and perpetrators. So laws must speak of punitive action as well as restitution of the victim - compensation by the perpetrator AND the community or society at large. Maximum punishment of perpetrators is not the most import thing to ask for. More important things to ask for are a) reforms in our systems and laws so that the State becomes liable to compensate the victim or the family if the victim does not survive - in those cases where the State's employees or State licensed persons are involved and b) changing societal norms to reduce the psychological trauma suffered by victims, particularly female victims in rape cases and c) Speedy delivery of justice - with better trained and equipped police and judiciary. 

In the aftermath of case nos.1 and 3, i didn't notice any placard or hear any protester demanding compensation from the State that failed in its guarantee to provide a safe factory in the neighborhood or a safe public transport in the country's capital. In both these cases people who were licensed by the State behaved in a way that caused huge injuries to victims. As a civilised society, should we not expect the State to accept responsibility in such cases and help in the restitution of the innocent victims? The State should have recourse to recover damages from the owners or employers who are indirectly held liable (vicarious liability) - this should be an independent action and not linked to the restitution of the victim by the Sate.

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* Examples of people who believe rape renders the victim's life useless and by their behaviour reinforce a mindset that drives female rape victims to commit suicide (never does the male victim in "reverse" rape cases get driven to suicide):


1) Shushma Swaraj, leader of opposition in Lok Sabha, cited the Delhi bus gang rape case in a session of the Parliament and said that even if the girl survives she will live rest of her life as a living corpse.

2) Today Times of India reported that Gujarat High Court has ruled on an appeal filed by the convicted persons in the Bijal Joshi’s gang rape case. Bijal Joshi had suffered a gang rape in a New Year party in 2003. "The incident destroyed dignity of life of the victim," the bench said.

The judges also observed that the injury sustained by the victim was a result of "barbarous act" and the mental agony led the victim to commit suicide.

3) Bijal Joshi - the gang rape victim committed suicide after few days of the incident though she had not suffered any grievous physical injury - she was driven to suicide due to psychological trauma and an unjustified sense of shame and worries of what others may think about her.

Interesting reference for those who are die-hard followers of traditions (e.g. patriarchical mindset):

http://www.psychologytoday.com/blog/games-primates-play/201203/what-monkeys-can-teach-us-about-human-behavior-facts-fiction

Caste & Religious discrimination - easily solvable

There is hardly any educated person who in his or her conscious mind endorses discrimination in work place on account of caste or religion - this is where the writ of law of the land runs. But when it comes to social interactions, and most certainly when it is the question of inter-caste or inter-religion marriages, the same people change their stance. Some "herds" (anthropologically speaking) resort to extreme violence when they catch a renegade who has transgressed the traditional fences of caste or religion, for e.g. "Khap Panchayat" is one such herd in the states of Haryana/U.P./Rajasthan which is known to not just ostracise the "offender" but publicly hang him or her. This is where the writ of the law does not seem to run. 

Agitation, self-immolation, caste politics, religious fundamentalism, stalling of parliament because of fight between a group for reservation (Bahujan Samaj Party of Mayawati batting for quota for Dalits) and another group for even more reservation (Samajwadi party of Mulayamsingh batting for sub-quota for Muslims within the quota for SC/ST/OBC) have not helped one bit in abating the practice of discrimination. If at all, the effect of these antics has been to increase discrimination in our society. Discrimination continues despite attempts at reservations and many affirmative action plans of the government over the 65 years since India gained independence. 

There is no known political group which stands for "no reservation". i propose a solution which is so perfect that when it is implemented, there will be no need for reservation. [In a way it is like DCT - Direct Cash Transfer - after DCT is effected, there will be no need for administered prices - there will be just market price for all goods and services].

SOLUTION: We can bring a quick closure to Caste & Religion based discrimination by the simple legislation of banishing use of surname which gives away the caste or religion. The official name of a person will be first name, second name or third name but no surname. For e.g. Anil Srivastava will be known as Anil Kumar. Very soon, certainly within one generation, Indians will forget the concept of caste.  The curse of the caste will be behind us.

The rule of caste-less and religion-less name will do immense good to the society divided by caste and religions. The rule should apply not just to the new born but to every citizen of India. 

Will you oppose this move? If you are not a casteist in both your conscious and sub-conscious mind, i think you should approve of this idea. It may surprise you how many people suffer from sub-conscious prejudices. Almost everyone who takes a IAT (Implicit Association Test) is mortified at his or her own mindset - please visit https://implicit.harvard.edu/implicit/demo/ and try this test yourself.

Direct Cash Transfer using Aadhaar

Direct Cash Transfer (DCT), now called Direct Benefits Transfer, is how direct? And why enable it with Aadhaar?
1. There are multiple layers traversed (agents) and transformations (cash to kind) between the cash originator (central or state or local government) and the final beneficiary, a BPL (Below the Poverty Line) recipient or a Special Category person (pensioner, war widow, veteran, scholar, unemployed person etc.) as defined and determined by appropriate authorities. Some subsidies have few intermediaries (government intermediaries or private parties) and in some subsidies there is no transformation (i.e. cash is delivered as cash and not in kind, viz. rationed wheat, kerosene, fertilizer etc.).
2. The best DCT is transmittal of cash from the point of first origin to final recipient without transformation, i.e. cash is delivered as cash and with little or no commission.
3. The less than the best DCT is one in which intermediate layers are reduced and transformations are reduced.
4. If what the UPA-II is implementing the best DCT, it is truly revolutionary. It is something that i thought will take ten years to do AFTER putting the DCT technology pipe in place. It is revolutionary because Govt has decided to do away with transformation of cash into kind. This means the recipient gets choices which can result in his or her going away from the point or product envisaged to another better product or supplier.

5. The DCT technology has been around for long, some countries have already made national level deployments, years ago. India will have no problems with the technology as the people in charge are knowledgeable, starting with Nandan Nilekani. The DCT pipe will, therefore, do its job without any loss or issue. Problems may occur due to the pipe connecting the wrong ends!

6. Aadhaar is useful because it ensures the recipient is the one who gets the benefits and not someone else. The result of this is that duplicates and fakes get eliminated. Thus total subsidy outflow will reduce and simultaneously, the total amount delivered to beneficiaries will increase. There is win-win at both ends of the DCT pipe enabled by Aadhaar.

The idea of tolerance of corruption or defining a standard of corruption and - A Fortuitous Telecom revolution? How hypocritical do we want to get?

Fact #1                  Idea of nuanced ethics

The published annual accounts of major political parties, as Gurucharan Das writing in TOI recently explained, reveal that official receipts of funds were less than 10% of the estimated funds required for only fighting the central government and state government elections by the number of candidates the respective parties typically field. By his calculations, Congress (biggest party) declared less than Rs.500 crores annual receipts leaving Rs.4500 crores to be raised by other means. BJP’s respective figures are about 25% lower, not because they are cleverer or more honest but because they field fewer candidates.

Everyone knows that better part of political party’s fund requirements must be met from quid pro quos or cuts built into large deals – based either on patronage (benign form in which the beneficiary is complicit) or arm twisting (malevolent form in which victim must cough up cash under threat of prosecution for violation of laws which are designed to be difficult or impossible to comply or denial of a contract or permission which in normal course ought to be granted).

That there may be spill overs from collections meant for party’s account into the personal accounts of fund raisers is obvious from the rate of growth of declared assets of many politicians during the period they wield power. It is hard to follow or define an ethics framework which permits beating the rules for the party but not for self-enrichment. Therefore, if there are indeed such people who when put in a position to raise funds for the political party have proved to be successful in discharging their responsibility without enriching themselves, then these people should be rated as having ethical standards far higher than those who just benefit from party’s or other people’s efforts and do not themselves contribute any sums for running of the party or an enterprise that needs to survive in a “corrupt eco system”  – this should include majority of the population which does nothing about supporting political processes except wailing that all politicians and all businessmen are corrupt.

Therefore, when a politician is caught in the act of taking money under the table, it becomes doubly important to ascertain if the funds were meant to go into his/her party’s coffers or the recipient’s personal account? Intent is not all that difficult to establish in such transactions – one has to dig into prior transactions, if any, and check known sources of income to reliably settle the question of illicit gains. Until evidence of intent is at hand one should desist from  running down the person caught in the act because that person may be one having far higher ethical standards than those of the accusers :)

FACT #2                Benchmarking execution efficiency or “Standards” of corruption

Government processes and machinery may be rated as excellent for the purpose the British designed them for, decades and centuries ago. After independence, politicians and bureaucrats have knowingly or unknowingly taken the place of colonialist rulers and vastly reinforced the methods of exploitation of the masses. Various government schemes of distributing subsidies or largesse are like ATM machines for the politicians and government staff who siphon off a large proportion (according to late Rajiv Gandhi, "administrative" costs sometimes equalled 85% when you consider government’s money collection costs and spending costs). There is no reason to believe the trend of "administrative cum leakage" costs would have reversed, chances are these costs have climbed up over the years.

Reality check - The question of Justice and Standards – case of A Raja, ex-Telecom Minister

If we have a minister who works a miracle of a scheme in which hundreds of millions at the base of the pyramid benefit through affordable mobile phone connectivity because of multiple Telcos competing with each other in introducing low-cost phones in urban as well as rural areas, and in the bargain, makes an alleged quid pro quo of a mere Rs. 200 crores, should we reward him or jail him?

The telecom companies in India now generate billings of lacs of crores of rupees p.a. (Rs.1.67 lac last year) so Rs.200 crores is a fraction of one percent when compared with the value of benefit delivered to masses of India. With this high standard of performance, the telecom regime should be cited as a shining example of successful policy that served the needs of the masses and moved India’s GDP forward faster¹ and not a “scam”.

The judiciary, auditors, members of the public and opposition leaders who are shouting “scam” will find it hard to compare their own standards of honesty with that of UPA-II, while assessing its telecom policy execution, that has delivered such fantastic results at near zero cost – government recovered the stipulated fee consistent with the FCFS policy. Following table is taken from TRAI's annual report of 2010-11.

CAG’s (Comptroller & Auditor General) contention is that the policy should have been modified in a way that Telco would have paid lacs of crores (up to ~ Rs.1.76 lac crores) to the Government for license and spectrum usage – Did the CAG say that this is a call that was of the government of the day to take? [This call had to be made on an assessment of several factors. According to an Economic Times editorial of 23rd Sep 2011 cited below, CAG did not estimate the taxes and share of revenue that accrued to the government from Telcos' billings nor did it estimate the impact on GDP and quality of life improvements due to affordable and higher levels of mobile penetration and connectivity provisions to the people of India. It is also necessary to calculate the price elasticity of demand, income segment wise - at the base of the pyramid the sensitivity is bound to be highest and when the telecom prices rise, it is the segment of the poorest who need the mobile connectivity most (because they don't have land lines and they don't work in offices having phone lines), that will shrink first. Did CAG do this calculation also? It is doubtful that auditors are trained to do this sort of anlaysis.] As Kapil Sibal tried to explain – government’s policy was NOT revenue maximization from licenses or spectrum but to encourage investment in making a key infrastructure more accessible – so as per the existing rules, A Raja caused zero loss to the government – if at all there is an offense committed, Raja could be prosecuted for subverting the FCFS policy (First Come First Served policy was a formulation of NDA govt.).  So far there is no evidence of anyone in the government making any money apart from A. Raja’s alleged quid pro quo of Rs.200 crore that Unitech advanced to DMK’s TV channel (which DMK Boss’s daughter Kanimozhi, a co-accused, has returned).  

Assuming that Rs.200 crore advance to DMK's TV channel was the result of A Raja favouring Unitech which was not a qualified Telco, the aggrieved party is not the people of India but some qualified Telco which was not granted the license and which had to fork out a larger sum of money to buy equity offered by Unitech (alleged to be few thousand crore rupees).

Assuming that A Raja would personally have benefitted to the extent of Rs. 200 crores for which there is no evidence at all, it would still make him a super “economical” functionary when we calculate the leakage incidence [compare Rs.200 crores quid pro quo with Rs.1,66,752 crore which is one year billings of all Telcos – in a non-corrupt situation the annual billing would have been less by Rs.200 crore (or less by a few thousand crores if we load the additional costs incurred by a qualified Telco which could have been awarded license with proper administration of FCFS policy) as this benefit would have gone to the consumer or the bottom line of the Telco].

To summarise the situation -

Our governments (central, state and local) have given us a set of rules that are many times impossible to follow or extremely difficult to comply with. One of them is about election funding and expenditure: "no MLA may spend more than Rs.16 lacs and no MP may spend more than Rs.25 lacs." Because of this rule, every political party without exception is forced to raise and spend funds illegally - since the actual requirement is ten times higher than the allowed limits, 90 % of funds the parties handle has to stay unaccounted. A Raja was DMK's man in the government and he was doing his job.  He also had the guts to continue FCFS policy and get on with the task of spreading the benefits of Telecom to the masses without falling for the temptation of making money from selling the spectrum through an auction. Therefore, DMK should declare A Raja a hero and build a statue to commemorate his actions of tightening leakages and setting a new bench-mark – he took it to less than 0.1% of revenues arising from a government contract. Mayawati built statues of elephants costing hundreds of crores and we may have many more expensive statues being sanctioned by CMs.So what is the big deal in building one 5'6" statue?

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1 Revenue maximization of telecom licenses or spectrum auction is a bad idea

A recent World Bank study (graphic in citations below) reveals that developing countries benefit more than developed countries with the penetration and accessibility of telecom services, particularly mobile phone, internet and broadband services. Countries that auctioned spectrum failed to achieve the penetration and accessibility that India has achieved. In fact India is the champion in this regard. Few states have exceeded 100% penetration and accessibility is there for everyone to see – fishermen, farmers, street vendors and hawkers have all benefited by realizing better revenues and margins – consumers have benefited with lowered costs and less idle time in calling for required manpower and getting work done quickly. All of these benefits would not have accrued to the extent they did, had India opted for revenue maximising of telecom licenses and spectrum.

Ironically, now the courts and the government bureaucracy are all set to change the telecom regime that will set the country back, particularly the people at the base of the pyramid for whom the marginal utility of mobile phone connectivity is the highest. I remember in the 70s Dr Homi Bhabha and Dr. Vikram Sarabhai’s forecast of growth of electronics was subverted by protectionist zealots who had a free reign after these two enlightened scientists died. The government (Department of Electronics) imposed 500% import duty on electronic items, including computers and put onerous export obligations on those who wanted to import. This ridiculous policy was reversed by Rajiv Gandhi but by that time India was left far behind, its electronics output was less than that of Taiwan – we missed the forecast of Bhabha and Sarabhai by 95%. 

Telecom spectrum revenue maximization policy, advocated by the courts (and unthinkingly adopted by over enthusiastic TRAI bureaucrats) will be somewhat like a repeat of the DOE’s policies of 80s. It seems the stellar results we achieved in the last decade in Telecom were fortuitous or a sheer accident and not as a result of a consciously reasoned policy. Sometimes we do good things unknowingly or may be if we have achieved something good, it must necessarily have been by fluke  :)

More info about:

Election funds, candidate’s declaration after election of expenses incurred and party accounts:

http://sabhlokcity.com/2011/04/accounting-of-political-party-funds-and-election-expenditure/

Less than 2% of funds of political parties are accounted by donations of corporates: 

http://articles.economictimes.indiatimes.com/2012-01-10/news/30611967_1_parties-anil-bairwal-aditya-birla-group 

http://www.somethingaboutthelaw.com/2012/01/12/electoral-reforms-and-corruption-in-india/

http://realityviews.blogspot.in/2011/09/indian-political-parties-collect-crores.html

How to or how not to manage spectrum:

http://blogs.timesofindia.indiatimes.com/men-and-ideas/entry/think-of-the-spectrum-like-the-village-commons

Impact of telecom on economy:

http://www.itu.int/ITU-D/ict/wtim11/documents/inf/006INF-E.pdf [9th World Telecommunications /
ICT Indicators Meeting (WTIM-11)] 

What sort of connectivity other countries are providing to its citizens:

http://www.telegraph.co.uk/technology/broadband/6337698/Finland-makes-fast-broadband-a-legal-right.html
 

Charges against A Raja:

http://articles.economictimes.indiatimes.com/2011-10-23/news/30310760_1_realty-md-vinod-goenka-swan-telecom-siddarth-behura

http://articles.economictimes.indiatimes.com/2011-09-23/news/30194140_1_auction-2g-spectrum-telecom-policy-telecom-ministry