Category Archives: Law

That in which I contemplate the effects of punching or getting punched in an Uber!

Uber provides a service by which people who need a ride can just log into the Uber application on their phones, and request a ride. This application pairs them with drivers who happen to be in the area, and are available to give them a ride. Uber receives a credit card payment from the customer, most of which is given to the driver.  This has been described as technology that has revolutionized how we see the taxi service.[1] Someone with a mobile phone and the right app, can call a cab. And anyone with a car, the app, and driving skills/ licence, can be a driver (at least that is how it started out). They can use their phone to pay the driver, as well as rate them. This has given Uber great success, and it has even become the face of peer to peer economy (along with Air BnB). Uber has encouraged this narrative of peer-to-peer economy

Peer to peer economy (or a sharing economy) is one in which an owner is not using something, they rent the thing out, with the help of a technology that gets the buyer and seller (or a renter and leaser) together. This company charges a fee for this. The company (Uber in this case) says that it is not an employer, but a facilitator of micro-entrepreneurs. It does not pay for overheads like fuel, insurance, vehicle maintenance, and neither does it cover liability for any accident on the job. Why would it? It is not an employer. According to Lyft (a company that has a similar modus operandi), the drivers are really doing a service for the passenger, and ‘Lyft is a by-stander of sorts, analogous to e-bay’[2].

But there is just one problem in this narrative. This practice of companies that are employers claiming that they are not employers is age-old. It is done to get over the hurdles of paying benefits to their workers, and covering on-the-job accidents. Consider this case reported in the Forbes magazine. Omar, an Uber driver in Los Angeles took his passengers to their apartments at 2:30 AM at night. Two of the passengers beat this driver up, and he ended up being admitted to the hospital.  [3] This, however, is not an isolated incident. This same newspaper reports multiple incidents of cars being stolen and drivers being assaulted. The problem is, given the narrative of the company being a ‘facilitator’ and not an employer, these workers cannot get any assistance from Uber.  While we shall be dealing with the legal issue in subsequent paragraph just think of what this means. It is the idea that a man working at the behest of a Corporation (valued at billions of dollars), and getting hurt on the job, is not paid a dime of assistance. Does this not militate against the idea of fairness?

However, Uber’s problems don’t end here. Uber has been publicizing the idea that it can be an avenue for creating jobs for women. In fact it aims to create 1 million jobs for women. (It is difficult to understand how one can create jobs without being an employer, but okay, I guess they plan to facilitate a million entrepreneurs). Despite their admirable goals, the fact remains that if there is a case of sexual assault on any of their drivers in the course of work, Uber claims no responsibility to compensate the victim. UN Women, which had earlier decided to partner with Uber in this project, has now dissociated itself, citing concerns with sexual assault on women. [4] Interestingly, Uber got a lot of bad press in India, when, after a rape case involving an Uber driver and a passenger (who was the victim), it was shown that Uber did not even conduct background checks on its drivers. [5] In fairness to Uber, they have now started to put more stringent checks in place in India. Also here is a detailed description of the background check procedure that Uber follows. But there is also a very real loophole in the legal framework. What happens to a female driver who gets sexually assaulted? Does Uber take responsibility to provide compensation? If they say they are not employers, then NO. Similarly, there is no clarity on Uber’s liability to pay compensation to passengers who get assaulted in the vehicle.  I am not suggesting that an Uber ride is less safe than other taxis. That may not be the case, but certainly the legal position on compensation in case of injury in the cab is not clear.

As far as the employer-or-not issue is concerned, now there are Uber and Lyft employees that have decided that they are not buying the by-standers positions, and the two companies face a class action lawsuit that could possibly change the topography of the peer-to-peer economy. These employees in the USA claim that though they are classified as independent contractors, they are actually employees and the companies owe them reimbursement for overheads, and compensation for injuries on the job. This is something that concerns employment lawyers everywhere, so really this case is worth following.

The legal defense of Uber, and a seemingly solid one, can be summed up in the words of an attorney with the Employment Law Group, “They don’t have to show up to work on Monday at 9 a.m. if they don’t want to…What they’re not understanding is that this lack of control — where they can have a two-hour lunch if they want, or no lunch at all — that freedom comes at the price of if they’re in an accident, the company doesn’t have to pay.”  [6]

At the moment, things seem to be going in favor of the complainants. Uber’s request for summary judgment, and a declaration that its drivers were independent contractors was rejected by the District Court. The matter is now going to Trial before a jury. One strong argument in favor of the drivers is the economic realities test.This test does not only focus on the level of supervision involved in a job, but also the extent to which employees depend on the existence of the business in question. Some of the factors that are considered to determine ‘economic realities’ are mentioned under the Fair Labor Standards Act. [7]   These are as follows:

  • The extent to which the work performed is an integral part of the employer’s business: This is a factor that goes in favor of the drivers, because Uber or Lyft would not have any utility without the service provided by the drivers.
  • Whether worker’s managerial skills affect his opportunity for profit or loss. Given that Uber assigns the passenger to the driver, whose job is to take said passenger to the pre-determined destination, it can hardly be said that this job requires managerial skills.
  • The relative investment in the equipment and facilities by the worker and the employer. In this case the drivers made a pretty significant investment of their car and fuel money. However, I would argue that it is not at all comparable to the investment made by Uber in running and developing the application.
  • The worker’s skill and initiative. To show that a person is an independent contractor, it must be shown that he or she exercises independent business judgment. That does not seem to be the case here.
  • The permanency of the relationship between the worker and the employer. Permanency suggests that a worker is an employee, and this is one factor that strongly goes against the drivers. They do have the independence to stop working for Uber anytime they desire, or not work whenever they feel like it.
  • The nature and degree of control by the employer. Like the preceding factor, this one also goes against the drivers, given that there is a very limited degree of control exercised over the drivers by Uber.

Given that none of these factors are dispositive, there is a chance that the drivers may win the lawsuit against Uber. But one must stop and ask the question, are mis-characterization lawsuits (i.e the one’s where you claim that the workers have been characterized wrongly) really the way to go here? If the employees do win this lawsuit, and end up owing huge sums of money to the workers, what impact will it have on the long term health of the peer to peer economy?  And is it really a good idea to try and fit a revolutionary new concept into old tired methods of classification of labor? This does not mean that Uber and Lyft should continue with their unfettered business model. There is a very strong need for regulation, but there is also a need to understand that shared economies are sui generis, and old methods may not work on them. Perhaps new laws can be enacted that place a burden on these companies to take liability for injuries or accidents at the workplace, but not reimburse for overheads? The drivers could be given some sort of quasi-employee status, so that the regulation does not ultimately kill this new method. There must also be some framework of compensation for people who get hurt or sexually assaulted during their cab rides.

I would also like to ask whether there is a possibility for the unionization of Uber and Lyft drivers. What would this relationship be like? What kind of bargaining power would the union have, given that there crowd-sourcing makes the supply of drivers willing to do the job on the terms of Uber inelastic. Further, can unions play a significant role in the dynamic, changing relationships that the drivers and Uber have at the moment? Only time will tell.

[1] http://www.bloombergview.com/articles/2014-06-12/don-t-stop-the-uber-revolution

[2] http://uberlawsuit.com/Time.pdf

[3] http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-drivers-sharing-economy/

[4] http://www.theguardian.com/technology/2015/mar/23/united-nations-uber-womens-safety

[5] http://www.reuters.com/article/2014/12/11/us-uber-india-courts-idUSKBN0JP18T20141211

[6] http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-drivers-sharing-economy/

[7] http://www.dol.gov/whd/regs/compliance/whdfs13.htm

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Trade Promotion Authority and Labor Rights

(I have been working on these small articles for a class I have been taking in the law school. Since the topics were so interesting, I thought it would be good to publish some of them on the blog. I have of course taken the Professor’s permission for this. I would love some input and information on these issues, from those of you more in the know. To Indian readers, the perspective here is very American, which is unusual in my posts. But I hope you enjoy reading it anyway.)

Free trade agreements (FTAs) or Regional Trade Agreements have become increasingly popular since the 1990s. [1] These are agreements where the parties (which can be states or customs unions) agree to greater integration through lower tariffs and liberalized trade regimes between each other.

These agreements, in some cases, can cause job losses in industrialized countries, like the United States of America. This is because jobs could move from the more industrialized nations, where wage rates are higher, to less industrialized nations with lower wage rates (and a weaker framework of labor rights). An example of this is the North American Free Trade Agreement (NAFTA). On its website the AFL-CIO claims that nearly 700,000 American jobs have been lost since the NAFTA took effect in 1994. [2] This website also states that 20 years after NAFTA was passed, all fifty American states have had jobs lost or displaced to Mexico. [3]

Now it must be remembered that there is an economic logic to these free trade agreements, and they have played a role in maximizing consumer choice. In the developing countries they have created jobs, albeit with scanty worker protections. However, in the USA these F.T.As have come under attack from labor groups, due to the job displacements which have had a significant social impact. An illustration of the grave impact of job-losses/ displacement can be seen in the rust belt of the USA, with high rates of poverty and crime. Particularly moving is the story of Gary, Indiana, which turned from a steel-city to a crime hub (at the risk of oversimplifying things.) [4]

The Trade Promotion Authority (or Fast Track) as it is known, has been in the public eye of late. President Obama is seeking the Fast Track authority in order to negotiate the Trans-Pacific Partnership (T.P.P).  Fast Track is meant to facilitate negotiating trade deals. It works by providing for a framework of close collaboration between the members of the Congress and the President of the United States. This means that members of the Congress (through the Congressional Oversight Group) get a seat at the table during trade negotiations. In exchange for this, the Congress has to vote for trade-agreement implementing legislation without amendments (i.e. it is a Yes-No vote), and within a specific time frame. [5]

The advantage of Fast Track is that it strengthens the USA’s hand during trade negotiations.[6]  Other countries have a greater faith in the USA negotiators because they know that the USA speaks with one voice at the negotiating table. [7] The fast track authority also assures the trading partners of the USA that the completed trade agreements will be decided quickly and without any amendments. [8] But this efficiency comes at a cost.

The Public Citizen’s Global Trade watch has described the Fast Track Authority as an ‘undemocratic path to unfair trade’. [9] This is because Fast Track limits the kind of debate that would otherwise take place in Congress, and restricts special interests groups (like labor unions) from opposing trade agreements that could cause job losses. This is what, according to AFL-CIO and Public Citizen’s Trade Watch happened with NAFTA.  This is exacerbated by the fact that Trade agreements today are far wider than the simple tariff arrangements of the past. Which brings us to Obama and the TPP.

Leo Gerard, the President of the United Steelworkers, has spoken out against Obama’s request for Fast Track, noting the 400 million tons of over-capacity in steel manufacturing in China, which will continue to eat into the US markets. In fairness, China is not a part of the TPP yet (though it has been showing a lot of interest in it of late).  It is also important to note that U.S. wage rates have not increased in ‘real terms’ since 1973, since Fast Track was passed.[10] The ‘right to work’ is enshrined under Article 23 of the Universal Declaration of Human Rights (which has attained the status of customary international law),  and Article 6 of the International Covenant on Economic Social and Cultural Rights (which the USA has not ratified). The ILO Convention 122 on Employment policy (to which the USA is not a party) also lays down that , ‘each Member shall declare and pursue, as major goal, an active policy designed to promote full, productive and freely chosen employment.’[11] However, it is difficult to make out a case for a hard international law obligation on part of the USA to avoid large-scale job losses. But the USA is a member of the ILO and is bound by the principles in the Declaration of Philadelphia, which includes the goal of ‘full employment and raising the standards of living’.[12] Further, the large scale job losses do severely diminish the capabilities of communities and people affected by them.

In conclusion, it seems that the chances of the T.P.P going through without the Fast Track authority are slim. Further, there is a large body of economic literature that swears by the economic logic of comparative advantage. Taken at face value this would make the signing of the T.P.P is pivotal for US interests. Further it may not be entirely fair to describe the Fast Track process as undemocratic, given that the President of the USA (who signs off on these deals, is democratically elected).  However, social impact of the job displacement is real, and the fears of trade unions and labor groups cannot be wished away. Before canvassing for Fast Track authority, the President should provide a clear and coherent vision of how he plans to tackle the issue of job losses.  It is possible that through vocational training and rehabilitation (programs dealing with which which already exist to a certain extent), the impact of job losses can be minimized, but such policies must be developed by taking the views of all stakeholders into account. Holding back the trade agenda, however, seems difficult.

[1] http://www.wto.org/english/tratop_e/region_e/region_e.htm

[2] http://www.aflcio.org/Issues/Trade/NAFTA

[3] Ibid

[4] http://prospect.org/article/where-work-disappears-and-dreams-die

[5] Report to the Congress on the Extension of the Trade Promotion Authority, United States Trade Representative, https://ustr.gov/archive/assets/Document_Library/Reports_Publications/2005/2005_TPA_Report/asset_upload_file834_7514.pdf

[6] Ibid

[7] Ibid

[8] Ibid

[9] http://www.citizen.org/fast-track

[10] http://www.citizen.org/Page.aspx?pid=2124

[11] http://www.ble.dole.gov.ph/issuances/ILO_122.pdf

[12] http://www.un-documents.net/dec-phil.htm

Our ‘beef’ with secularism

The Indian state of Maharashtra has, in a new law, banned the possession and sale of beef. This has been made punishable with up to 5 years imprisonment and a fine. I think this development merits some discussion. It also requires a reflection on what secularism is, and why we need it.

But before I go on, it will be important to define what I mean by secularism. This phrase has a lot of meanings and confusion is easy. So for the purposes of this blog, secularism is a view or a framework which requires the state to treat all religions equally, and to promote religious tolerance in public life. Be aware that I have chosen this definition because the kind of strict Church state separation that is often associated with secularism, is very hard to maintain in India. Religion, all religions, are so important to the Indian people that they bleed into public life. Sometimes, religion is culture. And lest the Hinduta-vadis (i.e Hindu fundamentalists) get too smug at this, I think in India there is a tendency for all religions to expand and take cultural significance. We have seen this with Christmas, which the young in India celebrate with gusto. We see it with Eid, which though not as culturally mainstream as Christmas, is seen often as an occasion to  celebrate some wonderful cuisine. I know that when I was in school, irrespective of what religion we belonged to, we would hug and say Eid Mubarak, just like we said happy Holi. That was not a sanitized secular environment, but it was a secular environment.

These days, when I speak to some people on the Hindu right wing, they say that secularism is the pet of the upper class liberals, with no resonance for the common man. Of course the people making this statement often happen to be N.R.Is or those working in high paying jobs in Indian metropolis. I lack their perspicacity, but I have never been able to figure out how they get the right to speak for the ‘real India’ (whatever that means). But I don’t buy this argument that secularism, as I have defined, is something only the elites believe in. Yes, India is peopled with those who are deeply religious. But the same people often live in harmony with each other. Despite the importance of religion to Indians, it took a long time for a Hindu right wing party to form a Government in India, and even longer for them to get a decisive majority. And while instances riots and intolerance get publicity, instances of Hindu and Muslim girls getting together to celebrate Durga Puja (and Eid and Christmas) are not publicized. This lets people get away with the lie that secularism is the pet of the liberal elite. Sure, some versions are. But to say that Indian masses have been tricked into accepting the idea of secularism which they don’t believe in, is to say that the people are idiots. And no, that is just not true. Further, to think that the ‘masses’ represent one entity, with no difference of opinions, that thinks with one mind, is the height of condescension.

My mind goes back to a time, when religion really interested me. Not just my religion, all religions. I had heard of the incredible sense of peace that comes from praying in a Mosque, and I decided to try and enter one. So one day, while I was walking around in a small town in Orissa, that I shall not name, I chanced upon a small mosque, really a room against a wall. I wanted to go in. However, I felt that I should (in all fairness) tell the caretaker of the mosque that I was Hindu. When I mentioned it to him, his reaction was to laugh. We don’t discriminate between people, he said, and let me in to the mosque. This man may not have traveled much, but he showed a wisdom so many of our political leaders lacked. He was not a part of the liberal media nexus, just a man who was incredibly secure in his faith. So that makes me ask, isn’t his Islam and my Hinduism, versions that seek harmony with each other, as real as the chest beating of the fundamentalists?

We have a richness few countries are endowed with. We have diverse languages and religions that co-exist without crushing ethnic strife. This is a gift for a country to cherish. And if we are to cherish this gift, doesn’t the idea that the State should not play favorites, make a lot of sense?

Now, speaking of playing favorites, I want to deal with the issue of cow slaughter. Legally speaking, I don’t think a ban on cow slaughter is necessarily bad. Given the fact that even the Constitution, in the Directive Principles of State Policy, mentions the prohibition of cow slaughter. My problem is, however, with the provisions of this particular Act. Up to Five years imprisonment for cow slaughter, is disproportionate punishment. This, combined with the fact that the people caught under the ambit of this law are going to be poor, given that beef is often a meat eaten by the poor. I don’t even want to talk about the fact that making beef akin to contraband is going to make it out of reach for the poor, diminishing their nutritional status. There is a more fundamental problem. If you begin prosecutions under this law, the poor (you know, those guys that can’t afford good lawyers), are going to be caught in its net. Given the deplorable state of our prisons, do we want people to spend 2, 3, 4 or even 5 years in jail for possessing and selling beef?

But that does not begin to address the problems with this ‘cow slaughter is criminal’ political discourse. Imagine if passions are whipped up about this, and someone floats a rumor that there is cow meat being sold in ‘so and so’ locality. Does that not seem to be a fertile ground for a riot to spring up. If you need evidence on what the politics of polarization does, just have a look at what his going on in Uttar Pradesh.

So here is a small request to our policy makers. If cows mean a lot to you, then work on building shelters for them. Take them off the roads, where they imperil themselves and people. Improve their nutritional status. Crack down on the leather industry. Convince people that cow slaughter is not a good idea. If you must ban it, then have fines. But whatever you do, don’t impose disproportionate punishments for things that are really, well, religious crimes. This is not too different from bans on apostasy or blasphemy (and those who will make the argument that it is about helping all animals, well… note the fate of the water buffalo). We do not want to be a nation where state power backs one religion over all others. Because the people who lose are not just the minorities. We all lose a bit of ourselves.

Did your law education teach you to challenge the status quo?

Disclaimer: Today’s blog post is going to be anecdotal and subjective. Constraints of the subject I am writing on.

Let me start by telling you why I decided to study law. From a very young age I saw law as a tool for social change. Growing up as I did in the states of Odisha and West Bengal, it was hard not to feel that way.

West Bengal of course had that glorious (but quite dark in parts) period in its history where the landless and the underprivileged stood up to demand their rights.The need for an equitable distribution of land was thrown into the lime-light and took up a big part of the discourse.

Odisha, while I was there was in the middle of an interesting churning. Mining companies were increasingly trying to make inroads into the land of the tribals. There was a genuine push back from the tribal communities, as the land that was sought to be taken away was often a source of livelihood, cultural identity, and in one case (namely that of the Niyamgiri hills) it had religious significance.

Incidents such as the protests and Nandigram and Singur took place in West Bengal, before I finished my twelfth grade and both these incidents (though largely ignored by the national media) shook the Bengali imagination,

The law seemed like a source of comfort, and the legal system a safe space where one could agitate against the excesses of the executive. The judiciary had inspired, and to a large extent still inspires the trust of Indian citizens. It felt natural then, that law could, and was supposed to be used as a tool by which existing power structures could be challenged, and sometimes lasting change could be brought about.  

Later I learnt  that law was not always a tool for social change. In a large number of cases it was a tool for maintaining the status quo, promoting vested interests and reinforcing power equations. If you look around to see the ‘chattelization’ of women under Indian adultery law, or the treatment given to persons with mental disabilities, the criminalization of certain sexual acts between consenting adults, you begin to realize that like our society, law is a conflicting site of various points of view. There is a tug of war between vested interests, and we can only hope that the march is towards progress and not regression.

I joined ILS Law college in 2007, and studied there for five years. In the course of this I met some brilliant professors, and some genuinely interesting people. These people, like me, joined the law school right after 12th grade, at the age of 18. They studied with me for five years. During my studies, and after graduation, I met people from various other law schools, some of whom  I got to  know well. So I feel that I can write about law education in India with a bit of authority, if not with the same ease and confidence that a pedagogue displays.

Of late I have been thinking of what legal education in India has achieved, and more over what it has failed to do. This got me thinking about one very specific aspect of legal education. Did it in fact teach people to challenge the status quo? And more fundamentally should it teach people to challenge the status quo?

My experience is that there was nothing substantial in the education most law students were given, that really taught us to analyze why power structures exist, and whether we should challenge them. The initiative was largely of individual teachers.For example I must mention Professor Jaya Sagade who completely changed the way I read and understood the law. She taught us at ILS not only to read a statute but also ask ourselves why it exists, who it benefits and whether we agree with it or not. If I had not had the honor of studying under her, I don’t know if I would be here asking these questions.

I asked a few other people people I know this very question question. On asking a classmate whether her law education taught her to question the status quo, she said, and I quote her: 

“no it did not instill in me the spirit to challenge the status quo. my law education except the subject women and law taught by Prof Sagade, was entirely based on the rote approach. I could not appreciate the peculiarities or circumstances that involved the legislature to draft the legislation.
also our system is not dynamic enough we either are under the tutelage of professors who want you to get marks or seniors or partners who want to make money.”
Another person I asked the same question felt that it was not really the job of legal education to teach you to challenge the status quo, but it was their job to give you the skills needed to survive. 
Another person had this take:
“personally dont think any education (law or otherwise) will help you challenge the status quo unless you feel for the cause so much so you decide to challenge it..nope i dont think law education helped with that..its a personal response, i dont think law edu did that for me .. for some maybe the need to challenge comes through law education, but it didn’t for me..”

Of all the people I spoke to, only one person felt that her law education had helped her challenge the status quo, because it helped her understand the rights of people, and if the status quo went against those rights, it had to be challenged.

I have included these anecdotal excerpts because I wanted to paint a slightly more representative picture than simply talk about my experiences. But having considered everything, I must mention certain systematic problems in the way our curriculum is built, financed, and the way we perceive law education.  I will try to list some of them:

The issue of attitudes.

I remember seniors, lawyers, colleagues, and teachers all telling me, in a very well meaning manner, that I should not call myself a ‘human rights’ lawyer because human rights lawyers are not taken seriously. I have heard lawyers representing an NGO just being brushed off in Court (irrespective of the merit of their argument) on because NGOs are ‘publicity hungry’. Whenever people articulate the idea that a law expresses  a male point of view or the point of view of the rich, their objectivity is questioned as they are ‘channeling a feminist agenda’ or a ‘socialist agenda’. However the blatant channeling of patriarchy or capitalism is considered ‘neutrality’.

Products of law school are much more comfortable with ‘doing whatever it takes to win a case’ but uncomfortable with taking an ideological stance, because while the former is what lawyers are supposed to do, the latter is a sign of weakness. Human rights and their allied concerns are packed off and kept in a separate enclosure away from the main body of law, as if most law is not the articulation of the rights of human beings. 

In India people have quite forgotten the link between criminal defense and human rights, and the two are mostly seen in water tight compartments. 

Until issues like human rights and human entitlements take their place in the mainstream of law, I feel our legal education will be stunted, producing people who can accomplish given tasks, but not think critically.

The issue of finances.

Law education in India is not a cheap affair, if you are joining a National Law school. The fees are to the tune of Rs 7 lakhs for five years. (My friends from National Law Schools can correct me if I am wrong). It seems to me that a student from a economically underprivileged background can join these schools if she takes a loan (or is given a scholarship). Scholarship students do not really form a large chunk of the student body, so I am presuming that a lot of underprivileged students who join these colleges take loans. This makes it very difficult for them to take subjects/ jobs that do not make them employable for high paying jobs. So we see a situation where students who would have a rich perspective on  challenging the status quo, themselves being from an under-privileged background, are actually prevented from doing so due to the  financial framework of a legal education.

Litigation is notorious for not paying well in the initial years, which means that we do not really want to give ease of access to those who are not economically well off. There is little wonder then, at the fact that litigation essentially becomes a place for the sons (sometimes daughters) of established lawyers, with little room for a new comer.

The lack of an interdisciplinary approach.

Social sciences are still thought of as ‘matters of opinion’ by a large body of law students. A very small number of law students or young law professional read about politics, sociology, economics, except to pass exams).

This does not leave much room for them to apply an inter-disciplinary approach into making their arguments. At the Supreme Court and some High Courts one does get to see this kind of innovative litigation now and then, but it hardly permeates into all levels. 

This is because while being taught about a law, we are rarely ever asked to think about questions of justice, and politics. 

It is quite like that cave of Plato’s we learnt about. Most people see that dance of shadows, spend five years or entire lifetimes believing that to the reality.

But perhaps I am wrong. Maybe the legal education in India is churning out masses of sensitive critically thinking people, who may not want to devote their lives to public service, but do spend a lot of time thinking of and debating ethics and morality. Maybe they regularly question social organization, or existing power structures.

Perhaps I am wrong at a more basic level. Maybe no education is meant to teach you to challenge the status quo. Maybe the job of an education is to just make you competent at research and well spoken.

Maybe you just need to be taught how to hold a fork and spoon, and never ask why some people go hungry.

If so, the correct my impression with a comment below. If not, let us help everyone (including ourselves) get out of the cave.   

The death penalty. Or ahem. how I learnt to love dispassionate debates.

Yes that was a badly executed Kubrick reference.

There is something that often happens whenever the death penalty comes to be discussed. Those against the death penalty will talk about the value of human life, and why we can not play God. Those in favor of it will mention that there was a person X who brutally murdered Y (usually a child). They will then go on into the gruesome details of the murder. Those listening will get extremely worked up. The person against the death penalty will shake their head dolefully, ashamed and chastised.

The implicit argument here is: how dare you suggest that THAT man/woman live!!

Now what this sort of a debate ignores is that the issue of the death penalty does not have much to do with THAT man. It is a bigger issue, involving nuanced ethical questions. The problem with introducing ‘THAT’ man into the equation, is that it clouds your judgment, as well as that of your listeners. 

The truth, that debates have to be dispassionate, dawned on me before I was a ‘grown-up’. I had decided, very early in life, that Saurav Ganguly (the Indian cricket player) shall never be criticized. I went on to enforce this by attacking those who criticized him, with all my might (verbally of course). What soon happened was that people stopped discussing the man with me. It is not that I had changed their mind. I had just cowed them into not bringing it up anymore. 

This is how we talk about most pressing issues of the day, whether it be the merits of a leader or the relevance of an ideology, and especially something like the death penalty. We take a stand, backed up by one shocking example and then fit the facts to match that stand. We do not leave any room for the possibility that we may be wrong.

But given that the death penalty is literally a life and death matter (yes, an example of where literally CAN be used), there needs to be a dispassionate discussion on it.

I am using this post to highlight certain issues that seem to be pertinent to me. I am not going to stick to strict legality, but am going to go into the ethics of the issue as well. I have tried to make this a post that both lawyers and non-lawyers can read, and I have also tried to build a sort of consensus with this post. Also this post is India centered. I have tried to make it easy for people from outside to follow by giving related links (usually wikipedia).

The most important issue with the death penalty is the possibility that innocent people may be hanged (or whatever form of punishment it is that your country practices, in India it is hanging).

In America we have the phenomenon of DNA exoneration (something that has shown that a small but significant number of innocent people were given the death penalty). 

Here is a video of Jon Oliver discussing the perspective from USA.

I highly recommend the video as it was one of the seeds for this post.

But! Some of you will exclaim. How relevant is that in India? We hang far fewer people here, and the threshold is the rarest of the rare case. Is it possible then, that an innocent man will get the punishment?

Let us examine the case of Mr Devinderpal Singh Bhullar, a man who is in most quarters believed to be a terrorist. He was sentenced to death due to his involvement in a bomb blast case.

So far so good?   No.

Interestingly the only evidence against Bhullar was a confession he ‘voluntarily’ made to police about his involvement in the bomb-blast, while he was being questioned on passport forgery. The dissenting judge, Justice M.B Shah, acquitted Bhullar on the ground that his conviction in the lower courts was based on one uncorroborated confession to the police (www.huffingtonpost.com/marcia-g-yerman/bhullar-case-india-human-rights_b_4582716.html)

Under Indian law, confessions to the police are not admissible as evidence. Of course the law Bhullar was convicted under was the Terrorist And Disruptive Activities Prevention Act which allowed placing reliance on such confessions.(http://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_%28Prevention%29_Act).

Mr Bhullar’s death sentence was finally commuted by the Supreme Court on the ground that there was an inordinate delay in executing it.(http://timesofindia.indiatimes.com/india/SC-commutes-Devinderpal-Singh-Bhullars-death-sentence-to-life-imprisonment/articleshow/33006245.cms).

But this leaves us with the question that ethically do we think that a guilty man was sentenced to death given the nature of the evidence against him?

Since newer questions are being raised on the veracity of eye-witness testimony and the wisdom of sentencing people to death based on circumstantial evidence, we need to put a system in place that allows for things like DNA exoneration, so that we know how many innocent people we sentence to death. Additionally given that poorer people often do not get good legal representation, whether one is sentenced to death or not, does have an economic angle to it.

The second issue is the issue of the arbitrariness inherent in the death penalty.

There are some judges who are more likely to give the death penalty and some who never do. This is an open secret of our judicial system. In fact it is not even a secret. There are instances of people getting different verdicts for similar crimes, depending on the bench they came in front of.

Given that it is human beings who hand out these sentences, it is very possible for subjectivity to enter the equation. But the problem is, this subjectivity decides who gets to live and who gets to die.

Even if one admits that, in principle, it is okay to sentence people to death, can any reasonable person be okay with it turning into a lottery based on the subjective sensibilities of a judge?

There are rigorous guidelines in India regarding when the death penalty can be given, something that was done in the Bachan Singh Case { for those who want to read it http://www.indiankanoon.org/doc/1235094/}  but these guidelines are not always followed.  In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down ‘per incuriam’, i.e. not in accordance with the procedural safeguards laid down in the earlier cases.

It requires a bit of reflection, and perhaps impartial studies into how arbitrary the process of sentencing someone to death, in India, actually is.

The lynch-pin of the argument for the death penalty is deterrence. The jury is still out on that, though more studies seem to suggest that there is no deterrent value in keeping the death penalty out of the statute books http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence). Though intuitively people will be inclined to reason that the possibility of death would deter a criminal, the most heinous of crimes (rarest of the rare) are often committed by psychopaths or hardened criminals. Neither are very likely to be deterred by the prospect of the death penalty (given the complex factors that go into the commission of a crime by them). 

The average person is much more likely to be deterred by a swift trial and the very real likely-hood of serving jail time. In fact crimes like rape-followed-by murder, acid attacks that cause death, khap panchayat killings or dowry deaths (where a woman is killed because she can not pay a certain sum of money to her husband’s family) often happen due to the culture of impunity in our society, where people believe that they can ‘get away’ with committing a crime. These people are certainly not deterred by the academic possibility that they might be sentenced to death someday. Till we address this culture of impunity and fix the delays in our criminal justice system. the death penalty will just be a placebo we take to feel better.

Phew, so at the end of all this we come to the thorniest subject.

Retribution.

Are the crimes committed by some people so terrible that they deserve to die?

I feel that while people cite different reasons for supporting the death penalty, it often boils down to some sort of idea of retribution. Why should THAT man live? Why should we spend on THAT man’s food and lodging? Have you no consideration for what the victim’s family goes through.

Of all these questions it is the last one that deserves the most serious thought. Honestly I have no answer to that particular question. I can not preach to the family about the need to forgive, or the need to let go of what is termed as ‘blood lust‘. Losing a near one to a violent crime must be a traumatic incident that I can not even pretend to comprehend. How one copes with the grief, is an entirely personal matter.

But should this consideration dictate policy? In my opinion,no. Policy should be dictated by the larger ethical issues of the arbitrariness of the death penalty and issue of innocent people being convicted.

So what I want you to do dear reader, is to ask your self whether living or dying, under the criminal justice system should be a matter that depends on who your lawyer was, who the deciding judge was, and various other subjective factors.

I also want you to think about the fairness of an irreversible punishment like the death-penalty, when there is a real chance that the person concerned may be innocent, as the innocence project in the United States of America has shown. (http://en.wikipedia.org/wiki/Innocence_Project).

And leave your comments below.

Cheers!

Marital Rape: A contentious site

It was a few years ago that a friend of mine was asked the following question by a colleague:

‘Suppose you were to be raped, would you not prefer to be raped by your husband or a friend, rather than a complete stranger?’

Now while this statement is callous and inappropriate on several levels, to me it was an illustration of the huge gulf between the way people with and without empathy view rape. This gulf is hardly noticeable when people are talking about a brutal gang-rape, which inflicts grievous injuries on the victim. In such a situation it is very easy for most people to agree that what happened was terrible, and that the perpetrators should be given swift punishment. The gulf, however, becomes increasingly visible when some of the ‘typical’ features of a rape are missing. A few common examples are when the victim happened to be out late, or when she was drunk or had been in a prior relationship with the accused.

Our collective consciousness, fed on decades of television and cinema portraying rape as, ‘izzat lootna’ (robbing of honor) with a ‘hapless’ ‘chaste’ victim, just cannot process the idea that rape is something that can happen to a woman who wears dresses, has a boyfriend, or goes to bars.

One such contentious issue, which is a product of our inability to process what we consider ‘atypical’ rapes, is the idea of marital rape. To be absolutely clear, under Indian law, forced intercourse between a man and his wife is not rape, unless she is less than 15 years of age, or unless the wife is living separately. Hence, marital rape is not really recognized under Indian law, except in these two circumstances.

Whenever I have articulated the idea that marital rape should be a punishable offence, I have made even the most well-meaning men uncomfortable.

Some reasons for this discomfort are genuinely products of flawed logic. Try and tell them that marital rapes happen, and that they should be punished just like any other rape and you will have people bring in the issue of the misuse of Section 498A of the Indian Penal Code into the equation. When you try to tell them that statistically it has not really been established that Section 498 A is abused more than any other law, they will tell you about an uncle who had to go to jail because his daughter-in-law filed a false complaint. By this time the conversation would have shifted away from rape, to how educated women misuse laws, and the women laws are really supposed to help (i.e. hapless chaste women) are not really getting the benefit of the law.

What people who engage in this form of a ‘Straw Man’ debate completely forget is that not recognizing marital rape is an invidious discrimination against women who are married, and perpetuates the idea that it is acceptable for husbands to violate the bodies of their wives. Given this situation the law must provide a remedy, and it is lamentable that the Criminal Law Amendment Act of 2013 did not take the opportunity to do this.

We must, however, examine one fear regarding the recognition of marital rape that has some merit. I feel that while the ‘preservation of the family’ argument is generally believed to be the reason marital rape has not been recognized as a crime, another reason is the nature of the of proof under Indian Law for rape cases. Under Section 114 A of the Indian Evidence Act where sexual intercourse by the accused is proved, and the woman states in her evidence that she did not consent, the court shall presume that she did not consent.

This shifts the burden of proof on the accused to prove that he is innocent and that the intercourse was consensual. The reason for this reversed burden of proof, of course, lies in the social and political contexts in which rapes take place, and is meant as a shield for a survivor who is already faced with the difficult prospect of a trial. Our law makers have attempted to save a victim from the arduous process of having to prove that she did not in fact consent, in a criminal justice system that is already extremely hostile to the victim. Even though this is a departure from the traditional burden of proof, most reasonable persons can see the rationale behind this.

However, where this provision becomes problematic is while looking at the issue of marital rape. Traditionally, in the Indian legal system, the fact of marriage is adequate to prove what is termed as ‘sexual access’ i.e. proving that sexual intercourse took place becomes extremely easy. If you combine this with the fact that there is a reversed burden of proof regarding consent, we arrive at a very tricky situation.

In the event that the accused is in fact innocent, it will be nearly impossible for him to prove his innocence due to this double presumption. It is this possibility that adds fire to the ‘the man will be damned’ fears of certain groups of people. Irrespective of whether these fears will come true, there is a reasonable possibility of an innocent man getting trapped due to the reversed burden of proof.

Of course this argument does not mean that marital rape should not be recognized as a crime, or should be given a lighter punishment, but that we need certain procedural safeguards in case of marital rape.

I understand that this suggestion will be incendiary since there will be a section of people who will see this as an attempt to draw an artificial distinction between marital rape and other kinds of rape (something that I criticized at the beginning of this article). There will also be people who will think I am buying into the idea that women actively misuse laws. I am trying to do neither. I do not think there is any evidence to prove that women misuse laws any more than men, or that marital rape is in any way a ‘lesser’ offence. But as a person who values liberty, I approach all reversals of the burden of proof with some skepticism. Due to developments in our rape jurisprudence, and the hostile nature of our criminal justice system, we had to make changes in the burden of proof. In the case of marital rape, I feel that it is this reversed burden of proof (combined with the presumption on access) crossed a line and becomes draconian. This burden of proof is, in my opinion, one of the things preventing the law-makers from bringing marital rape into the statute book, and till we bring procedural safeguards on the table, marital rape will not be recognized as a crime.

I understand that these procedural safeguards will shift the burden back to the victim (merely because she is the wife of the accused), and this situation is far from satisfactory. But marital rape is a complex issue, and I do not anticipate that there will be a clean solution that will satisfy everyone. This article was an attempt by me to call for a certain amount of pragmatism, and maybe highlight the need to reflect on the anomalies that reversed burdens of proof throw-up. There is nothing I would love more than those with better ideas, coming up with a solution to this problem. But given the time of outrage we live in, what we need to most is to start a dispassionate dialogue.