Friday, 27 December 2013

Aam Aadmi Arvind Kejriwal

In a decade or two from now, if he does not make a serious mistake, and given a fair wind of good luck, Arvind Kejriwal may well come to be seen as the man who put India on the path to greatness.

A year after formally launching his Aam Aadmi Party he has won an unprecedented victory in the Delhi State Elections. With 28 out of 70 seats he may not have a majority but the upset caused to India’s usual vote-bank based electoral calculations is justification enough to kindle genuine expectations ( rather than mere hope) of sustainable change in the decrepit state of governance in India’s body politic.

Is it a flash in the pan? Is it just a protest vote? Time will tell but for now a lot will depend on delivery of electoral promises. No doubt the mainstream parties will do their best and their worst to discredit an AAP led Government in Delhi.If hope is not to be snuffed out even before it has begun then AAP will have to learn a few simple lessons in the art of survival while delivering policies based on the simple but intractable idea of good clean honest and open governance.

1. Running a government is very different from mounting a campaign. In a campaign you speak to people who want you to win and as long as you can attract supporters your job is done. In government you have to deliver, and if that involves changing the existing system then you’be better take heed of what Machiaveli said:

there is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage than a new system. For the initiator has the enmity of all who would profit by the preservation of the old institution and merely lukewarm defenders in those who gain by the new ones.

Delivering policy objectives when in power means making choices, and there will always be someone who feels hard done by. Doing the right thing and then explaining to the disgruntled why they can’t see the benefits is the best you can do.

2.  It is better to under-promise and over deliver. Two or 3  years from now it may well  be the case that you’ve delivered 7 out of 10 campaign promises. But if your detractors can argue that the 3 you’ve failed to deliver are the ones that matter most, then your term in office can come to be seen as a failure. In the new system of transparency of information that AAP is promoting there will be no hiding place. So its as well to manage expectations, even as you prepare to deliver promises.

3.There is nothing Aam or common about being in power. It’s a privilege and the office is both high and important.  So I don’t understand Arvind’s Kejriwal’s apparent refusal of an official residence, car and security. Think ahead, what will happen when the Mayor of Shanghai, say, comes calling on an official visit. Besides, an emphasis on being a humble commoner can come to be seen as mere posturing. The office is more than the individual occupying it and so long as you can keep the two separate its not only okay but even essential that the symbols of power are wielded to good effect. 

4.  Use the power of the market to deliver your policy promises.  This is always better than trying to employ and directly control the staff you need to deliver services. And spend the time to develop intelligent solutions that achieve more than one policy objective. A case in point is electricity tariffs. AAP’s promise to cut the electricity tariff by 50% is flawed because it tries to do what markets do best. It would have been much better to have promised a policy goal of ‘affordability’ by the bottom 25% of the population. To achieve this AAP would not have needed to either blame the distribution companies or do an expensive audit of their accounts. Simply  make it a condition that the first few  essential units of power must be charged at a price that the bottom 5 or 10% can afford. After that let the market decide the price. By having a graded tariff that allows companies to charge more from more prolific consumers, AAP could have at once placated the environment lobby, met its real objective of making power affordable, and achieved the progressive goal of the rich subsidising the poor.

5. Resist the superficial attractions of political vendetta. It may be appropriate to try and right past wrongs by the erstwhile regime, but investigating leaders of the last regime sets the wrong precedent.  Commissions of enquiries and probes by judges or the CBI have never delivered  justice. If anything they lead to litigation, acrimony and counter accusation and counter probes. The previous regime has been judged by the electorate and kicked out. That is verdict enough.

Start as you mean to go on and make a clean break with the past and announce a set of measures to ensure all future spending decisions are free of the taint of corruption. Publish details of expenditures incurred and of contracts awarded. Better still insist on all cabinet members and senior officials declaring their assets to an independent body in advance of the new government taking charge. It is better to prepare for the next election battle than to refight the last one.

6. Finally, coalition is not a dirty word. Politics is the art of the possible, and sometimes nothing is possible without allies. The key is openness and transparency even when deals are struck that you would rather have done without. It is important for Arvind Kejriwal to keep in mind that the real change he has wrought thus far lies in the hope he has kindled that a better cleaner, more responsive form of politics is possible. To set that hope firmly on the path to realisation he doesn't have to do everything at once. How he governs and the value systems he embeds is every bit as important as the results he achieves on the ground.

Saturday, 14 December 2013

The criminalisation of homosexuality

The decision by the Indian Supreme Court on 11 Dec 2013 to uphold the constitutional validity of Sec 377 of the Indian Penal Code – and thus once again criminalise consensual homosexual acts -  has reopened the debate in India and elsewhere.

The judgement overturned a 2009 decision of the Delhi High Court that Sec. 377 of the Indian Penal Code was discriminatory against the gay community. It was for Parliament to decide, the country's highest court said, not for judges to make the law. Surprisingly for a Court that has taken an activist position on many other issues, on this question it decided to go conservative. 

Sec 377 of the IPC violates an important liberal principle of law making and for that reason alone it needs urgently to be repealed.

Law making
We need laws in order to regulate society and the economy. These laws are broadly of two sorts, they are either restrictive in some way, i.e they proscribe certain acts and activities that we might want to do; or they place a duty on us to act in a certain way under a given set of circumstances. All restrictive laws – don’t drink and drive, don’t assault someone and so on – inherently interfere with our personal liberties - our freedom to go about our lives as we see fit. Two essential criteria for a restrictive law therefore are: 1) We must be satisfied that any personal liberty that it constrains is justified by the protection it affords to someone else’s rights. As a corollary, no individual liberty should be infringed by a law unless the exercise of that liberty hurts or harms someone else or infringes another's legitimate right.  2) that by making the law and by the process of implementing it there is not likely to be more harm than good. Personal prejudice has no place in deciding which laws to enact.  

Does Sec 377 measure up?
Sec 377 fails on both counts. It infringes the rights of homosexuals in a dramatic manner by  making  it a criminal act to have consensual sex. But does it meet the first criterion? Does it protect someone else’s rights? Clearly so long as same sex relationships are both consensual and confined to the privacy of the bedroom, it is hard to see how anyone’s rights are infringed. Right wing religious groups that appealed to the Supreme Court would argue that they are offended by what they regard as unnatural sex.

This is a fundamentally flawed argument: there is no such thing as the right not to be offended.  So long as the act that offends takes place in the privacy of someone’s bedroom then any offence taken is entirely in the mind of those outside it. There is good reason why it would be dangerous to accept a right not to be offended by someone else’s private behaviour as a basis of state enforced legislative or executive action. Each of us has his or her own set of prejudices and while we are free to hold those views we have no right to impose them on others.  If this principle was held firmly then we wouldn’t have to give in to illiberal demands to ban books or films just because some group or other decided to take offence when they had both the choice and the right to ignore whatever it was that so offended them.

The second criterion is more nuanced. If there were public benefit or some societal good to emerge from a law that restricts individual rights and freedoms then there is an argument to be made for such a law. Legislation aimed at curbing smoking for example, or a tax that discourages alcohol or fatty food consumption fall into this category.

But in the case of Sec 377, the overwhelming evidence is that a law that criminalises consensual homosexual acts actually causes a great deal of harm to society as a whole. Across India some 50 million people will be denied the opportunity to live their lives as they wish. Their sexual lives will be driven underground. They will have to pretend to be something they are not, subject to arbitrary persecution and exploitation by the police, marry against their will an innocent person of the opposite gender simply to keep up the pretense, and lead a life a fear, denial and despair. 

And there is a further twist that is peculiar to the Indian context. The fact that our police and criminal justice system are both inept and corrupt, the law is often used to threaten, harass, persecute and exploit the people. Such malafide action is helped by the fact that an allegation of engaging in 'unnatural sexual acts'  is difficult to disprove.    

Simply put Sec. 377 infringes personal liberties and causes harm to wider society. The activity that Sec 377 proscribes - consensual homosexual acts in no way harms or hurts any third party, not does it impinge upon any right of any other person. Any offense taken by unconnected people is based on a personal prejudice that they should deal with without recourse to the law.  Denying freedom to some people because of a baseless prejudice held by a vocal segment of society is a step nearer to the state pandering to bigotry.

India’s Parliament should act to free its people from a law that has been overturned in the country that introduced it 152 years ago when it ruled India as its colony. 

Sunday, 2 June 2013

Growing skills

No close friend or casual acquaintance of mine would describe me as a gardener, never mind a keen one. I like to have a nice tidy garden and am perfectly capable of admiring a beautiful well-stocked garden. But I would rather work extra at what I know I can do reasonably well to earn the money to pay the gardener to do the work.   But this year I decided to do something in the line of growing things.  Beans, tomatoes, and a few flowers should be within any thinking man's reach, I reckoned.

Its taught me a few things. Not that I had any illusions, but you feel it more when you've had the personal experience. Its hard work even when the scale of the operation is limited. I can understand the worry farmers must feel when the weather turns. Too cold, too dry, too hot, its all a worry. Nature seldom provides circumstances Goldilocks favoured for her porridge - neither too hot nor too cold. And when it does appear balmy there's usually a catch somewhere.  

I worried about the slugs eating the bean plants (WD40 - a lubricant - works well I was told; I sprayed it liberally; not on the plants, even I know better than that - but on the outside of the containers. I am concerned at the small white spots that have appeared on the young leaves of  my two tomato plants. I know nothing about fungal or viral diseases of plants and how to fight them. I'm letting nature take its course. I can afford to since there isn't a lot riding on my success at growing things. I am thankful that I don't have to depend on my farming skills to feed myself. I have renewed respect for farmers and growers everywhere especially in poorer countries with scarce resources, neck deep in debt, everything invested in the crop, no insurance to cover unforeseen events, and all too exposed to the vagaries of nature. They may not know it but they must be naturally gifted risk managers.

But these plants have come up nicely. 

I'd like to think I can take some credit for them.. at the very least I didn't do them any harm when they were merely bedding plants that I bought in the local market. 

Its like having children - hard work, worry, concern, disappointment when things go wrong but joy when they turn out okay.

Saturday, 27 April 2013

Quotas and reservations - again

One of my earliest blogs was on the subject of reservations and quotas for groups defined in some arbitrary way - colour race or in India's case by caste or the lack of it. 

I argued then that any such policy of preferential treatment of people from special interest groups lead to a corrupt regime where establishing entitlement takes precedence over striving for excellence. 

In this week's Economist the harm done by 'affirmative action' as it is called in America is reviewed once again. Much better put than my own blog post but essentially the same argument. I feel vindicated. 

But I also know that the political imperative to continue with a system that provides so much opportunity for patronage is not likely to diminish. That India's corrupt and debased system of caste-based reservations does nothing to help those whom it is intended to benefit is not a strong enough argument, so long as there are enough voices to convince the majority of the downtrodden that their turn will come if only they fight for an even bigger quota. The desperate will buy any promise however debased, and the charlatan politician will make any promise howsoever false.

But that should be no reason for India's reformers and thinkers not to lead a quiet revolution in thinking that accepts the manifest  impossibility of guaranteeing jobs and prosperity not by better education, infrastructure, respect for law, and protection of property, but by offering access to a percentage quota  of the same grossly inadequate opportunity

To paraphrase the Economist editorial's concluding paragraph:

Selection on the basis of caste is neither a fair nor an efficient way of identifying and helping people who suffer social and economic disadvantage. Caste-based reservations replace old injustices with new ones: it divides society rather than unites it; it creates an incentive to establish entitlement rather than to work hard and excel; it blunts enterprise and dulls effort while encouraging complacency. Governments should tackle disadvantage directly, without reference to caste. If a school is bad, fix it. If there are barriers to opportunity, knock them down. And if the sons and daughters of people like the late ex-President KR Narayanan and  Lok Sabha Speaker Meira Kumar apply to a university or for a job, judge them on their academic prowess, not their caste.

Tuesday, 12 March 2013

Be careful what you wish for

In the days following the Delhi gangrape in December last year, a justifiably outraged public rightly demanded swift action by the police. When 5 men were arrested and charged with the crime there were calls for a swift trial followed by the death penalty. Some commentators even called for summary execution.

Yesterday the news broke that Ram Singh, one of the 5 accused, was found hanging in his Tihar cell. Job done and justice delivered? Or was it another example of the failings of India's crumbling, corrupt and decrepit system for administering criminal justice?

No one, least of all those who had called for the death penalty, should rejoice at this turn of events. Ram Singh's death in custody is as much a tragedy for India's justice system as the original crime was a brutally grim reminder of how we as a society treat our women. Before we condemn him with loose comments to the effect that he got what was deservedly coming to him anyway, lets not forget that he was accused of a major and horrific crime, not yet convicted by a proper court of law after due process.

This matters to each and every citizen of India. When the police investigate a crime they often arrest a suspect. Just as any of us could become the victim of crime so too can any one of us be picked up as a suspect. A suspect - potentially one of us, remember – has a right to his day in court, to answer to the charge and to test the prosecution's case that he is guilty. During the time that the suspect is in custody his - or her - safety and welfare is the responsibility of the police, the courts and the rest of the state apparatus that make up the criminal justice system.

And when the suspect dies under suspicious circumstances in jail before his trial has concluded it is not summary justice. It is a tragedy for everyone involved: for the original victim’s family because they have been denied knowing for certain that the right man has been convicted and punished; for the justice system because it has failed to deliver justice in an open and transparent  way; and it is a tragedy for all of us because our trust and faith in the ability of the police to do their job properly is eroded.  

How Ram Singh came to meet his end is now the subject of another investigation. But the fact of his death under suspicious circumstances when in custody, in theory at least the safest place possible, is unacceptable and shocking. Any number of possibilities come to mind but it is difficult to believe that the system that allowed this to happen will be capable of getting to the truth of what happened in that jail cell.  

Saturday, 9 February 2013

Mr Modi's speech - misleading or harmless embellishment?

I saw and heard Mr Narendra Modi’s 6 Feb speech to students in New Delhi – it was carried live on all the major news channels and I caught it in Nagpur. It was widely billed as Mr Modi’s bid to be the BJP’s candidate for Prime Minister should they win the next general election.

It was an impressive performance: using no notes he held the attention of his young audience by focusing on his priorities and what he would offer as a future prime minister. Development and good governance: he had achieved that in Gujarat, he argued, and could repeat the performance for the country. Development to him meant progress on 3 fronts, farm productivity and growth, industrial sector reforms and service sector expansion.  Conscious of his audience he argued persuasively his belief that the future belonged to the young people of India. (Note 1)

He did not once mention Hindutva or the Ram Mandir issue – clever move. Nor of course did he mention Godhra – again good move. Whatever the rights and wrongs of that sorry episode, it is well behind us and some would argue time to move on (I disagree but many in India have moved on).

I was getting increasingly convinced that India needed someone like Mr Modi to provide strong leadership and push hard on development.  Until that is, he narrated, towards the end of his speech,  a story that sounded so positive and so heartening that I decided to look further into it.

Some years ago, Mr Modi said, a young man, diffident, a Canadian of Gujaratai origin, not a gifted communicator, saw him in his office with a somewhat rambling story of his plans for building a busisness. Mr Modi soon felt that he was a bit of a time waster and so brought the meeting to a close by referring him to the District Collector of some part of Gujarat.

Some 40 months later ( later on in the story this became a year later) this young man once again sought an audience with me, said Mr  Modi. He almost tried to wriggle out of another potentially pointless meeting when his PA told him that the young man wished to invite Mr Modi to an inauguration of a new factory.  The young entrepreneur also asked Mr Modi to reserve a date in his diary for 6 months later when there would be a product launch – the first output from this factory.

By now of course everyone in the audience was agog to know more about this young man and his impressive business acumen. Mr Modi never revealed the name of the entrepreneur but told his audience with  all the flourish of a stage performer that the product of this factory in Gujarat was well known to his student audience – they were the coaches of the Delhi Metro!

Wow! That was some story. It captured at once the industrial enterprise of Gujarat and the role of young people in economic development.  But could it be too good to be true? I decided to dig around a bit.

A Google search tells you a great deal of the design and procurement processes of the Delhi Metro. By and large it is a success story having delivered the Metro ahead of the planned time table and within budget. The main factor responsible for this remarkable achievement – esp given that it was delivered in that cesspit of corruption known as New Delhi – witness the mess that was the Commonwealth Games of 2010 – was Mr Sreedharan, the boss of Delhi Metro Rail Corporation. He insisted on and won absolute freedom from political interference  and meddling in the procurement process.  

The trains were sourced from more than one company. Those that are manufactured in Gujarat are the MOVIA cars that the Canandian company Bombardier Transportation was contracted to supply for 3 of the Metro’s Phase II lines. Bombardier set up a dedicated manufacturing facility in Savli, Vadodara (Note 2)  for this purpose. Bombardier Transportation is of course not new to the rail transportation industry In India. They have long had a presence in the manufacture of components for India’s state owned railways.  Other companies involved in the Delhi Metro are Hyundai and Mistubishi for Phase I. The first 60 0f Hyundai’s trains were made in their Korean plants but all the others are manufactured in BEML’s plant in Bangalore.  

This is quite a different narrative from Mr Modi’s version of a sole entrepreneur achieving something big. When a big international firm wins a contract to set up a manufacturing unit for an infrastructure project of the national profile of a brand new metro system in the nation’s capital, it is unilkely the charismatic and business friendly chief minister of the state lucky enough to host the factory will first hear of it through a young,  wet-behind-the- ears, entrepreneur.

So why the needless  embellishment of what would have been a success story even if more simply presented. The narrative that "Gujarat was chosen as the site for a brand new manufacturing facility to make trains for the Delhi metro – because we have the skilled manpower and the infrastructure" - that in itself would have been some story to boast about 

His speech was not scripted, of course – most Indian politicians tend to speak extempore without notes, especially  when making speeches at mass gatherings. It could be he got carried away by his own rhetoric – he was after all emphasizing the role of young entrepreneurs and wanted to use the example of Bombardier’s investment in Gujarat.

I have no doubt  that Mr Modi did not intend to deceive, but in emebellishing a story that needed no spicing up, he may have fallen prey to a temptation politicians find hard to resist - to say whatever will please the crowd.    


2.  See Projects Monitor Press notice on Nov 17 2008.
Bombardier Transportation India, the domestic outfit of US-based Bombardier Inc, inaugurated its new railway coach manufacturing plant on November 12. Located at Savli in Gujarat's Vadodara district, the plant will be India's first fully foreign-owned railway coach manufacturing unit.
Initially, the unit will manufacture 340 Movia metro cars for the Delhi Metro Rail Corporation. The cars, valued at Rs 2,360 crore ($590 million), were order by DMRC in July last year. The cars will be delivered ahead of the Commonwealth Games to be held at New Delhi in October 2010. Bombardier also won a follow-up order in March this year for supplying 84 Movia cars, valued at Rs 548 crore.
Bombardier already has a production site at Vadodara, Gujarat, which has been in operation since 1996 for the manufacture of a range of converters, electronic controls for trains, communications for three-phase propulsion technology, as well as circuit breakers and tap-changers. Bombardier's signalling office and software development centre are also located at Vadodara, where it develops software for signalling and traction applications, catering to the software requirements of Bombardier Transportation worldwide.’

For  information on Savli, Vadodara see

Saturday, 19 January 2013

The wrong question

Public anger following the December 2012 rape, assault and murder of a young New Delhi woman focused attention on the scale and horror of violence against women in India. The incident seemed to have awakened a new struggle for the right of girls and women to be free from the fear of sexual harassment and violence. The anger, while understandable and perhaps even desirable, must not however lead to mistaken policies that might do harm without doing anything for the cause of women’s safety.

The Government set up a 3 member committee chaired by retired Supreme Court Chief Justice JS Verma to consider ‘amendments to the criminal law so as to provide for quicker trial and enhanced punishment for criminals, accused of committing sexual assault of extreme nature against women’.

That is a pretty narrow remit, and even if a) the committe comes up with sensible and practicable proposals to change the law; b) the Goverment agrees and Parliament enacts the necessary legislation, and c) the new law is implemented, it is unlikely that women will feel safer knowing that should they be attacked there will be swift punishment for their attacker.

I think this venture is destined to fail whatever suggestions Justice Verma comes up with. 

The Committee’s seeks to suggest ‘changes to the criminal law’ and its target is 'crimes of extreme nature against women’.  

The trouble is not with the law as such but with how the police deal with and investigate criminal complaints, including allegations of rape and sexual assault. There’s no point changing the penalty for a crime if the victim can be dissuaded from making a complaint or withdrawing an allegation. Criminals are not deterred by the severity of the sentence that awaits them should they be convicted. If at all they are deterred by the justice system it is the likelihood of being caught and brought to trial (1).

It is hard to see how the police response to crimes against women can change without a general change in the attitude of the police towards citizens. There is still a widespread and justified distrust of the police. They are generally poorly educated, badly trained, inadequately resourced, hardly if at all accountable to the citizenry, in hock to politicians who in turn regard them as mere extensions of the party in government, and widely regarded (and with justification) as corrupt. And worse they seem to have a hangover from colonial days of being in some way not the guardians of citizens’ rights and liberties, but their masters (2).

The judiciary – with respect to Justice Verma and his Committee - is little better. A judiciary that  presides over a criminal justice system that has tolerated - and indeed allowed - delays of the kind that makes India unique,  measured as it is in decades rather than years, deserves no respect for its professionals standards and ethics.  The legal profession is equally complicit in what Bernard Shaw described as a ‘conspiracy against the laity’.  The system appears to exist not to dispense justice to aggrieved citizens but to exploit people’s ignorance while pretending to serve them.

Justice Verma and his committee would be better employed looking at the following questions.

A) How can the police service be reformed to make it responsive to the needs of citizens, independent of political interference, and accountable to the public?  

B) How can the justice system and the courts (at all levels and both criminal and civil)  be reformed to make it efficient, fair, responsive and timely?

C) Is it right for us to continue with an adversarial system of justice inherited from colonial times, with 2 sets of lawyers slugging it out in front of a judge, sitting without a jury? Is there a case for moving to an inquisitorial system with an independent and well resourced Magistrate Service that receives, records and registers complaints from the public and where an investigating magistrate directs the police investigation into (at least to start with, major) crimes? (3)   

If India aspires to make this an Indian Century then we can hardly carry on with the present decrepit system collapsing under its own inefficiencies and corrupt practices. A fast track court for the trial of the 5 accused in the Delhi rape and murder case might well assuage public anger but what about the other 24,206 rapes in 2011 alone (page 83, Crime in India 2011, NCRB)? Or the other 256,329 violent crimes (page 50) reported in the same year?  

Here’s my prediction. The Justice Verma Committee will achieve little of substance. Let's look back at this in 5 years time and if I am proved wrong I’ll happily donate INR 20,000  to charity.

1. There’s the additional factor of the balance between what the criminal has to lose by being caught and punished versus what he stands to gain from the crime should he escape detection. But that’s a subject for another essay.

2. A check of the complaints register at any police station usually reveals hundreds of unregistered cases. Nobody is punished for such lapses. Law and order gets priority over crime and corruption thrives. Graft is so endemic to the force and the opportunities for retail corruption so many, that bribes are paid for recruitment. Three months ago, the Andhra Pradesh CID arrested five police sub inspectors for using impersonators to clear their recruitment test. In 2008, nearly 40 sub-inspectors morphed photographs of post-graduate students onto their hall tickets and paid each student Rs.4 lakh to write their test.’

Read more at:

3. ‘The main feature of the inquisitorial system in criminal justice in France and other countries functioning along the same lines is the function of the examining or investigating judge (juge d'instruction). The examining judge conducts investigations into serious crimes or complex enquiries. As members of the judiciary, s/he is independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions which is supervised by the Minister of Justice.

Wednesday, 9 January 2013

The silent bystander – why did no one help?

Among the many question being asked after the horrific and fatal rape and attack on a young woman and her survivor friend is this – why did no one help?

Many people have commented on the apparent lack of basic humanity in urban India. The badly injured and barely clothed victims were not dumped on some remote isolated spot. They were left on a flyover. Many people passed by that road and yet, despite pleas for help from the man who survived, no one stopped.  

What has become of us? is the question many have asked as in this blog post.

Rupa Subramanya, co-author of Indianomics – making sense of modern India, provides an interesting take on the question, one that most of us will intuitively recognise as, at least in part, true.

Essentially the argument goes something like this. To step in and help someone in distress – a Good Samaritan act – is an act of altruism. Benefits in kind accrue to the Good Samaritan; the gratitude of the person helped, the innate sense of well-being that comes with having done a good deed. But that has to be balanced against the costs of intervening. Time, expense may be and the uncertainty of when the Good Samaritan act can be regarded as finished, allowing the helper to move on with his own life.

In most cases the costs are minimal and most of us would likely help someone in trouble. In the specific case of the New Delhi incident there was the added complication of the criminal nature of the attack that led directly to the need for help. Whoever stepped in to help would have had to contend with the police. And the police in India are known not for their humanity, kindness and intelligence. On the contrary, they have a justified reputation for venality. (In the movie No one killed Jessica, the investigating poilce officer admits receiving a bribe of 1.5 lakhs just for not beating the suspect during interrogation.)   

So if you buy this argument, we don’t need to beat ourselves up over our apparent insensitivity to a fellow human being in distress. People who do not intervene to help a victim of crime may be acting under the compulsion that to do anything else would be irrational.

Despite that we need a huge change of attitude among ordinary people so that more of them act out their innate altruism. But more importantly we need an even bigger change in the mindset of petty officialdom and especially the police – a change that that would lower or hopefully even eliminate the costs associated with being a good Samaritan. 

Saturday, 5 January 2013

Unintended consequences

I have a serious issue with how public anger at recent events in India is being channelled.

Take for instance the demands for a quick and speedy trial of the 5 men accused of the rape and murder of the 23 year old student whose tragic case has become the focal point for understandable anger and widespread protests at women’s lack of security and of freedom from violence and fear.  

Calls for a quick trial are understandable but the cause of natural justice is far more important. Unless we are prepared to live under a system of rough justice at the hands of a baying mob, we need to tarry a bit and do it right. If justice for ‘Amanat’ is what we wish to see then we have to ensure the system is robust enough to deliver it. A quick trial and a speedy execution may satisfy the immediate demand that ‘something must be done’, but it will not solve the wider issue of the decrepit state of the criminal justice system in India. Indeed it would be in the interest of the politicians in charge to appear to give in to the public demand for quick justice in the hope that the protests die down and they can get back to ‘business as usual’.

The lawyers association in New Delhi has said that none of their members will represent the 5 accused. Their spokesman told NDTV that this was their way of showing support for the public anger at what happened.

But this is unprofessional and unacceptable behaviour. Justice must not only be done but must also be seen to be done.  How do we know that the 5 men currently in custody are indeed the men who carried out the rape and assault? How can we be sure that the real culprits have not got away? The police have lots of forensic evidence we are told but the evidence chain has to be established clearly before an open court and must stand up to scrutiny and challenge by the defence team. We are told that the accused men have confessed. That maybe so, but convicting on the basis of uncorroborated confession is dangerous. How do we know that in response to public anger, the police picked up 5 men and coerced or beat them into a confession?  A proper trial may take time but it will be better than a trial that leaves doubt as to the safety of a conviction.

The public are angry at the inordinate delays in rape and other criminal cases, especially where politically powerful men are in the dock. They may well look upon a lawyer acting for the accused as contributing to these delays. But consider this: the extraordinary delays that so bedevil criminal cases in India’s courts have nothing to do with the defence team doing a proper job, and everything to do with corruption, inadequate training, lack of resources and poor case management by judges.  

In any case the potential for delay must not be an excuse to compromise the quality of justice. If speed is all important then why not dispense with a trial altogether and take the police at their word. They say they’ve got the men who did it, they have the evidence of guilt, and what’s more they have a confession. Hang them now and be done with it!

But that is precisely a system that corrupt and powerful people can exploit; they can commit whatever crime they like – and many powerful people have been accused of rape, let’s not forget -  and then fix the system so that some poor hapless guy takes the rap for it. The perfect crime is not when the criminal avoids detection but when someone else is convicted.

And that is precisely why we need a robust system that allows the defence team to examine and probe the evidence so that there is a much better chance of not convicting in error.

We talk of the accused ‘being on trial’ but in reality it is the prosecution case that is being tried. Does it stand up to scrutiny? Does the evidence consistently and beyond reasonable doubt persuade us that the person accused is indeed guilty?   

To do anything less would be to place too heavy a reliance on the integrity and intelligence of the police and the criminal justice system. 

If we could afford  to do that then we might not be where we are and Amanat might have remained an anonymous student safely and securely using New Delhi’s buses however late the hour.