Thursday, December 27, 2012

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.

Saturday, December 8, 2012

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.