Death Penalty, Justice and Ethics

Is death penalty just?

It is a difficult question. The answer would be unambiguous if we are clear and unanimous in our notion of justice.  Alas, that is not to be so! Justice can be subjective.

You and I, as lay individuals, will have our own notions of justice that need not always match with each other. In fact, the need for a just and fair outcome arises because there are differences to begin with. It is this that forces the two warring cats to seek the help from the 'unbiased' monkey.  

One should note that formal systems of adjudication through legal channels are not based on individual notions. They are based on existing laws of the land. In such a situation, the justness of a death penalty or for that matter any other matter would depend on two things. The relevant laws and their interpretations are unambiguous, and unbiased.

The legal laws and their judicial interpretations, unfortunately, are not about the physical world. They are about people and their social and economic context. Like life, they are not straightforward.  Thus, for the time being, the question of whether death penalty is just or not remains unanswered. Instead, we dwell into one powerful argument in support and another against.

Blood-for-blood

A powerful justification for the death penalty is the blood-for-blood argument. This is best explained by many a individual's instinctive reaction to a mosquito. Swash and clasp! Many a mosquitoes are killed by human beings in response to an internalized fear against mosquito-inflicted diseases.

Many a communities or individuals follow a more nuanced blood-for-blood system of adjudication while dealing with human beings. At an individual level this has led to feud between families that goes on for generations. Such conflicts are also witnessed between communities. In subtle forms, it is also observed between countries; for instance, the cold war (between the United States and its allies and the erstwhile Soviet bloc), the West Asia (Middle East) imbroglio, or the India-Pakistan 'bonhomie'.

A way out of this blood-for-blood, at least in situations when the killing of an individual was unintentional, is to reconcile the revengeful provision with a compensatory money-for-blood situation. Once introduced, this compensatory system can be extended to intentional but momentary actions that one later regrets and is remorseful of. As regret and remorse is difficult to evaluate, this could get extended to all situations and it is easy to see that people with money can get away with murder.

Just because some people are getting away with murder does not mean that the system should allow everybody to get away with murder. Instead, it should improve the rules and procedures that reduces the possibility of people getting away with murder.

Opponent of death penalty are not against punishing the guilty. They take an ethical position against the death penalty.

The ethical imperative

The ethical imperative is that human beings do not have the right to take another individual's life. Thus, they argue against death penalty in general. Besides, it is also argued that death penalty is not a deterrent against crime, and it is possible that there could have been errors in judgement. It is for this that more and more countries are taking away death penalty from their statute books. According to Amnesty International, there are 140 countries that have banned death penalty. Some countries have restricted it to few crimes, and in India it is reserved for 'rarest of rare' cases.

"An eye for an eye will make the whole world blind," said Mahatma Gandhi. Instead of blood-for-blood, his suggestion for reconciliation to perpetrators of crime during communal riots was to atone for their sins by adopting an orphaned child from the other community and bringing up the child in the culture and tradition of the other community. This not only ensures atonement of regret/remorse for an entire life, but also does away with a situation where money can buy justice.

The preaching's of the Buddha and the Jain Tirthankara's among many others restrain us from killing a mosquito. Live, and let live! A tall order!

[Update: 31 July 2015]
A recent case
Yesterday, one of the convicts in the 1993 Mumbai serial bomb blasts where more than 250 people died and thousands were injured, was sent to the gallows in India after a protracted legal battle. Proponents are of the view that this falls under the 'rarest of rare' cases while opponents against death penalty are of the view that some benefit of doubt could have been shown in the case because the major perpetrator of the crime are some others.

I applaud the opponents in trying all possible available legal channels to this specific case. Nevertheless, the argument is weak from the larger perspective because it agrees that the major perpetrators of the crime should be sent to the gallows and it is only a matter of interpretation of who is one of the major perpetrators.

The legal system in India also needs to be applauded for the fact that many perpetrators of the 1993 Mumbai serial blasts including some who were involved in planting the bombs have not been given the death sentence because they were not identified as the major perpetrators. It has shown restraint in ordering the death sentence.

As indicated earlier, interpretation of law can differ from situation to situation and from individual positions. This, however, does not mean that opponents of death penalty are taking a position in support of a perpetrator of crime. They are arguing from an ethical prism in support of life when opposing death penalty.

Final points
Laws and their interpretations can have some grey area. Agreement is not possible between the proponents and opponents of death penalty. But, in the comity of nations, from a rights perspective, the balance of arguments are in favour of the ethical imperative.

Right to Privacy, Aadhaar and Democracy

Introduction
There is much talk today (last week of July 2015) in India on the Right to Privacy after the Attorney General Mukul Rohatgi argued in the Supreme Court that it is not sanctioned by the Constitution. In arguing so, he referred to an eight-bench decision of 1954 by the court while defending the roll out of Aadhaar (a biometric unique identity card with other information) to facilitate provisioning of public services and also to root out possible leakages in the delivery of these services.

The case against Aadhaar combines a number of civil writ petitions; the foremost among them being the one filed by Justice KS Puttaswamy in 2012. The ruling on privacy will have important implications on the relationship between the individual and the State that can go beyond the current case.

Individual versus State

Imagine a situation without a State. Each and every individual will have the right to do what they want. There will be no restrictions. But the free-for-all regime could lead to chaos. To bring order that makes life simpler for all concerned, the individuals agree to regulate themselves (a form of social contract) to enhance their own self-interest. Such regulated structures take different hues and forms that in some sense is based on the space provided for individual freedom and rights, the control that the State has in regulating these, and who constitutes the State.

In a democracy, as in India, the State is "by the people, for the people, and of the people." Of course, all individuals cannot run the State. Thus, some are selected to different positions to facilitate legislation, execution, and adjudication. In this, the Constitution has an important role in having an appropriate balance between individual rights and the State's regulations controlling those rights. Or, as the important adage goes: "The right to swing my fist ends where the other man's nose begins." The State has to ensure individual rights to swing their fists, but with appropriate restrictions so that others are not hurt. This has important implications for the current arguments on Right to Privacy.

Right to Privacy
Aadhaar is supposed to provide a unique digital record of each and every resident (not citizen) of India. It has socio-economic and biometric (iris scan of the eye and finger prints) information of the individual. The information is collected by third-party entities who have been contracted or sub-contracted to do this. There is no law mandating its collection. There are also no legal provisions mandating data protection and putting in place appropriate checks and balances against misuse.

Thus, one could contend that if there is a law mandating its collection and also provisioning for checks and balances  against misuse even when third-party entities are involved then there should not be a major problem from the privacy perspective. But, a law should not be passed because the State is already collecting this information, it should be passed because there is a need for it.

A look at the case with regard to the eight-bench judgement of 1954 by the Supreme Court cited by the Attorney General indicates that the court upheld the State's right to search and seize information and documents to unravel possible misappropriation and embezzlement of funds. In other words, the judgement empowered the State to act against someones inappropriate and improper swinging of fist. Citing this as a right of the State to conduct search and seizure or collect information because individuals do not have a right to privacy is like an argument that the State has the right to intrude into individual's lives. This implies that the State has the right to swing its fist in whatever direction it pleases. But, this is contrary to ones understanding that the role of the State is to regulate and control inappropriate swinging of fists by others. In addition, the various branches of the State should guard against the wrongful swinging of the fist by any of the branches of the State.

What is generally argued in favour of Aadhaar, as indicated earlier, is that it would curb the inefficiencies in the provisioning of public services and do away with rent seeking (an euphemism for corruption). These two powerful economic justifications reinforces the rightful role of the State to prevent wrongful swinging of the fist. Therefore, it is necessary to dwell into this economic merit.

Economic Merit   
It is argued that the Aadhaar digital record will have biometric information of each and every individual and thus the benefits to a particular individual will be transferred to that individual's bank account that is also linked to the unique biometric card. This will do away with middlemen, cut delays, and there would be no leakages.

One concedes that there is a merit in this digital linkage of monetary transactions. Mobile monetary transactions have become common place in many parts of the world and some telecom operators also provide it in India. The world is also moving in a direction of paperless monetary transactions. However, there is no need to link the collection of biometric information to take this advantage of digital and paperless monetary transaction. In fact, the State has also been using such transactions even without they being linked to Aadhaar.

In suggesting an alternative mode of transaction that does away with certain inefficiencies, it is not proper to assume that the transition to the new medium will be seamless and without errors and that there are no inefficiencies there. This means that there ought to have been pilot interventions, with due legal diligence and  their pros and cons discussed with an open mind and shared with the larger public before it is made into a law.

Another important economic concern that misses the eye is that the whole exercise of provisioning an Aadhaar has costs. It has budgetary implications that draws on taxpayer's money. Besides, there is a duplication of effort of some of the information collected. For instance, all those who are issued a passport also provide their biometric information. This is also partially the case for obtaining a driving licence. We also have the voter identity card and then there is the permanent account number for income tax purpose. Can we not do away with these multiple entities. Proponents of Aadhaar may state that it eventually will. If that is the case, then there is in fact greater merit that this was properly piloted, debated, and only when convinced then put into law with appropriate checks and balances. This takes us to the non-economic domain.

The Non-economic Domain
Technology has advantages and it should be used to enhance those. But, we should not lose sight that technology is only a means to an end. In a democratic polity, the end cannot be devoid from peoples life and liberty with dignity, an aspect enshrined in Article 21 of the Constitution.

The argument in favour of Aadhaar are linked to provisioning of public services. But then why insist on an Aadhaar card even on those who do not want to take benefit from public services. Extending it to all should be considered as an unnecessary exercise. For instance, this travesty is amplified by insisting on linking Aadhaar to LPG beneficiaries (not participants or customers) and then asking these individuals to relinquish their subsidies. So, why link it to their Aadhaar card, which in any case is still not mandatory for provisioning of public services.

The most important anomaly one finds is to link public provisioning in terms of cash transfers to Aadhaar linked bank account. One understands that the NITI Aayog is now trying to look at poverty in multiple dimensions, but if interventions will only be in monetary terms, irrespective of the dimensions of deprivation, then it is back to square one. Deficiencies in the real world cannot just be left to cash transfers. Aside: It seems that this could be the beginning of a move to do away with public provisioning.

It is also argued that in this digitally connected world, the personal information of the individuals are there in the public domain. Data theft is now in the click of a button. A scaring, but unfortunate truism. But, then this is no argument for the State to facilitate this process. Rather, to the contrary, the State should be looking into ways and means to prevent this. This would be commensurate with the thinking that the State's role is to prevent individuals from being punched in their nose.

Conclusion
To sum up, the arguments in favour and against Aadhaar are linked with the Right to Privacy. Its outcome in the court will have implications beyond the current case. The State has to walk a tight rope balancing individual rights with appropriate restrictions. One also should not lose sight that the State, as also money and technology are all means to an end. In the end, for a democracy, it is people that matter.

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Other Related Links

Rajya Sabha TV: The Big Picture - Right to Privacy: Where Does it Begin and End

Kalpana Kannabiran: No Constitutional Ground to Deny Right to Privacy

My Earlier Blogs on Aadhaar

Aadhaar, Radiagate and Cablegate

If a lie is told three times...

Profession wise Suicide Reporting in India for 2014 opens Pandora's Box

The National Crime Records Bureau (NCRB) of India has now come up with its annual publication for 2014 on Accidental Deaths and Suicides in India (ADSI). There have been 1,31,666 suicidal deaths in 2014 that is less than that of 2013 when there were 1,34,799 suicidal deaths. It needs to be mentioned that these deaths are as per police records and, as indicated by the Global Burden of Disease following a study on Suicide Mortality in India in the Lancet by Vikram Patel et al, would be underestimates.

There have been some important changes in profession wise suicide reportage for 2014 and some of the professions are not comparable. For instance, in the earlier profession wise classification, the self-employed were indicated under four sub-categories (business, professionals, agriculture/farming, and others). In 2013, more than 21 per cent of the total suicidal deaths were self-employed [others] and any exercise to improve clarity would be welcome. 

In 2014, we have self-employed indicated under three broad sub-categories (business, agriculture, and others). Further, the first two sub-categories were further bifurcated such that for agriculture we have a category called self-employed [agriculture (agricultural labour)] and self-employed [agriculture (farmers)] with the latter being further sub-divided to those who own land and those who are on contract/lease. Instead of increasing the clarity, the new categorisation has added to the confusion. 

At the outset, one should feel that the category of self-employed [agriculture] of 2014 is comparable. to self-employed [agriculture/farming] of 2013 and earlier. But, a closer look indicates that they are not. This is so because the former also includes a category called self-employed [agriculture (agricultural labour)]. To an outsider it would give the impression that this category was included in the earlier reporting, but this should not be the case for the simple reason that agricultural labourers are not self-employed. This also means that this category should not be there in the 2014 classification under self-employed. Thus, raising the question about who they are.

In revenue terms, in some places, a person is not considered a farmer if the land is not in his/her name and this problem holds even if some other member of the household owns land. In some other places where land leasing is illegal, any reporting by the police could exclude tenancy. In places where tenancy was made legal (like West Bengal) this would not include sub-tenants. Thus, it is quite likely that a large proportion of the self-employed [agriculture (agricultural labourers)] are likely to be farmers who may not be considered as such in the police records. Thus, indicating that this exercise of new classification was done without a proper understanding.

One gets the impression that the purpose of the new classification was to provide a relatively lower number of farmers' suicides (5,650 in 2014 compared to 11,772 in 2013). However, if one takes the entire category under self-employed [agriculture] then the total number of suicides turn out to be 12,360. Even if one goes by the classification and interpretation taken by the Bureau then they should be worried about a relatively higher suicides among agricultural labourers (with 6,710 suicidal deaths).

One observes that the profession wise suicides have not been given for cities in 2014. This would have been important from the perspective of understanding the categories with relatively higher suicides and whether there has been a rural-urban divide for some of the non-agricultural professions.

The report gives additional information on farmers' suicides by causes and by their land holding status, which is also welcome. But, one fails to get the merit of providing causes as mutually exclusive when the various factors are interrelated, as discussed with regard to Farmers' Suicides in Maharashtra and elsewhere. To illustrate, an immediate cause because of family problems is likely to be inherently linked to livelihood failure. One also fails to understand its relevance because one of the disclaimers of the report is that "(t)he causative factors ... are not being captured by the Bureau." In addition, the rare event that suicides are, a classification by land size has to be carefully interpreted from a statistical perspective.

[Added on 24 July 2015: Today the Minister of Agriculture in a reply in the Rajya Sabha to a question on farmers' suicides indicated that impotency and love affairs are some of the causes. This ignores the disclaimer by NCRB. This also made me add a sentence from Suicide of Farmers in Maharashtra (footnote 24, page 37) quoting AA Leenaars that causative factors are complex because of the following example: “A 16-year-old was found dead in a car, having died of carbon monoxide poisoning. People were perplexed: “Why did this young person from an upper-middle-class family kill himself?” The parents found out that his girlfriend had rejected him the day of his suicide. That was the reason: … A few friends and his teachers knew that he had been having problems in school. That was the reason. A few others knew that his father was an alcoholic and abusive. That was the reason. His physician knew that he had been adopted and had been recently upset about that. She knew the real reason. And others knew…”]

Outside agriculture, some professions with relatively higher incidence of suicides are students (8,068 suicidal deaths and largely around the time when results are declared in the final examinations), unemployed (9,918),  or that among daily wage earners (a new category with 15,735 suicidal deaths). Of course, it would help if one could noramlise with appropriate population numbers before comparing.

Another welcome addition in the new report for 2014 is a discussion on suicides among Central Armed Police Forces (CAPF). An obvious question on this is why was this restricted to the central forces alone and not extended to the state forces as also the army or was that collected and deliberately being withheld. The suspicion arises because suicides by those in the state police forces would be the easiest to collect by the Bureau and obtaining such data from the armed forces should also not be difficult.

   

The gender wise classification provides data for transgenders for the first time and the Bureau needs to be appreciated for this. However, it would also help in the larger understanding if the Bureau could consider providing unit level data. Of course, they should take care to not reveal the identity of the individuals, but this should not prevent putting in place cross-checks by independent organisations and scholars to improve data validity.

What is more, despite the new classification, there are 41,216 suicidal deaths (that is, more than 31 per cent of suicidal deaths) that are categorised under the profession 'Others'.  This needs to be improved. In any further exercise to improve classification, the Bureau could benefit from an earlier note on Suicide Mortality Rates across States in India or the more recent exercise on appropriate reporting and measurement of Farmers' Suicides in India.

To sum up, the latest reportage of suicides in ADSI 2014 by the Bureau is an underestimate. In addition,  the new profession wise reporting reduces comparability and lacks clarity.