Good laws make good societies: Unfortunately, we now have a spate of excessive legislation that criminalises ordinary citizens

The Union Cabinet recently cleared amendments to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The amendments, according to reports, expand the list of those responsible for looking after aged family members. Now not just biological children, but also sons-in-law, daughters-in-law, adoptive and stepchildren will be liable. Official caregivers who fail to comply can face a jail term of up to six months, against the current maximum of three months, if these amendments become law.

As ordinary citizens, we don’t spend much time reading about and thinking through the creation of new laws or amendments of old ones. We forget that the main constitutional responsibility of the MLAs and MPs that we vote for is law making, and oversight of the executive to implement those laws. During my husband’s 2014 election campaign, I did not hear a single voter mention this aspect of the legislator’s role. Most were concerned with local issues, which they felt helpless to address, and expected the MLA and MP to personally deliver on.

Yet, it is good laws that make for the good, functional society that most voters crave. Good laws are fair, do not discriminate against any group and are reasonably implementable. These create the very bedrock, on which samaaj, sarkaar and bazaar can maintain co-operation and peace; be more productive and reach for higher goals.
Bad laws, on the other hand, can harass and persecute innocent people; put the burden of proof on the citizen instead of on the accuser or the state; give excessive punishment; and create an atmosphere of fear. They also create opportunities for rent seeking and corruption by putting excessive discriminatory power into the hands of enforcing authorities.

Once in a while, as in the Nirbhaya case, the broader middle classes get agitated and rightfully express rage and helplessness. This creates the environment for passing newer, harsher laws or amendments for terrible crimes.
Unfortunately, there is little evidence that more severe punishment in the law acts as enough deterrence for future similar crimes. Recent events in Unnao and Hyderabad require us to pause and think, even as we grieve.
Societies have debated the severity of punishment for vile acts over millennia, with complex moral arguments on both sides of the question.

But citizens and society should pay more attention to the trend of over-criminalisation of common human failings and frailties. Some laws have moved issues from the civil to the criminal domain with severe penalties and jail sentences for non-compliance. This is by no means new. But recent Parliament sessions have been more productive than ever in terms of both attendance and legislation, though there has been very little substantive discussion on the Bills. And this has led to even more policies, bills and laws that fall into this category.
Let’s take a few examples, in addition to the proposed amendment on parent welfare.

The Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019 proposes up to 10 years in jail for possession and trading in cryptocurrency. Recent amendments to the Motor Vehicles Act include prison terms for certain violations, such as driving an uninsured vehicle. The Muslim Women (Protection of Rights on Marriage) Act, 2019, declares triple talaq a criminal offence, punishable with 3 years’ imprisonment. The Union government recently banned e-cigarettes and now, even just the storage of them can merit a jail term of up to six months for the very first offence. Offences on a private member’s bill to prohibit Paan and Gutka similarly proposed a criminal liability of 10 years’ imprisonment. The Central Goods and Services Tax Act, 2017, introduces greater scope for GST officers to arrest tax evaders and offences are non-bailable if the amount involved exceeds Rs 5 crore.

A similar attempt at criminalisation was made for non-compliance of the obligations for Corporate Social Responsibility. Every officer of the company in default could face imprisonment for up to 3 years. That received such a reaction from powerful corporate lobbies that it was withdrawn in a hurry. But not every policy or law has an affected constituency with such a direct line to the government as business does.

These are just some examples of a creeping trend that should worry us all. Criminal law may be quite unsuited to address many societal issues. Some of them are about inter-personal obligations and duties, such as the very basic duty to look after your own parents who gave you life. Others affect individuals and create private wrongs and may not require a public law remedy, or may have already a civil law remedy.

Equally importantly, if ‘justice delayed is justice denied’, we have to think of the implication of more and more offences that lead to more and more imprisonment. It takes up tremendous resources of the state. Our prison system is already over crowded, with absolutely inhuman conditions. A majority of prisoners are under-trials, which means that their guilt has not yet been proven. None of us would like to be imprisoned without a just verdict.

Maybe it is time to reflect and reimagine what issues belong to samaaj to address, however slowly and painfully, and which must fall to the state or sarkaar to uphold. Meanwhile, let’s communicate strongly to our legislators. Let’s hold lawmakers accountable to draft, to pass and to uphold good laws that work for citizens and not against them.

Times of India


How Samaaj Impacts the way in Which Sarkaar and Bazaar Work

This is an edited version of a talk Rohini Nilekani gave at the offices of the eGovernments Foundation on how samaaj impacts the way in which sarkaar and bazaar work, and the role of samaaj in eGov’s mission.

The Continuum of Samaaj, Sarkaar, and Bazaar

Since the past 25 years, I’ve been deeply involved in the civil society sector of India, which is very thriving and diverse. From listening to people, especially at the grassroots level, reading a lot, talking to people, and observing what’s happening around us from the lens of Indian society, I have tried to create a certain philosophy for myself through which I can do my work and see the world. 

So, the theory is fairly simple – that there is a continuum of Samaaj, Bazaar, and Sarkaar. But we must understand that Samaaj is the foundation, Samaaj is the pillar, Samaaj is the first sector, not the third sector, as people sometimes call it. And over centuries, Sarkaar and Bazaar developed in the service of the Samaaj. The Bazaar and Sarkaar evolved as responses to the needs of diverse societies.

We are citizens first, not consumers or subjects of states and kingdoms. The Bazaar and the Sarkaar are set up and are expected to be accountable to the larger needs of Samaaj. So this is the starting point of all my philanthropic work which embeds itself in Samaaj and actors of Samaaj. eGovernments Foundation (eGov) is a Samaaj actor that is working with the Sarkaar and the Bazaar. 

Over time, this dynamic between Samaaj, Bazaar, and Sarkaar obviously keeps evolving and shifting, and there have been many tugs. At the heart of everything is always power and power structures. So depending on how power structures are playing out, the fluidity, roles, responsibilities, and strength of these three sectors can keep changing. For example, my lessons from the last century is that both Bazaar and Sarkaar became very powerful and extremely oppressive in many parts of the world. With examples like Mao and Stalin, we have seen how the state began to get very powerful and took over people’s lives, oppressing the Samaaj they should be serving. Post-World War II, as reconstruction was taking place all over the world, capitalism began to advance and make substantial inroads, to the point of even dismantling the Soviet Empire. The markets began to gain an increasing amount of power, which we can see even today. Back then, they called it the military-industrial complex, but the fact is that the market had acquired a lot of power even on the consumer side, affecting the Samaaj. Today we know what is being discussed –  how a clutch of transnational corporations, tech companies who represent the market, have pretty much decided how we should think.

An Age of Extremes

The pendulum has swung too far that in many cases during the last century, we have observed the market and the state colluding. When that happens, Samaaj must remain happy with crumbs. So this is really dangerous for Samaaj. And remember, Samaaj is not one homogenous unit. By Samaaj, I mean all the identities. Social identities that we hold, the human identities that we hold, the groupings that we hold, the institutions of society that exist – that’s what I mean by Samaaj.

But today, we are finding that individuals in the Samaaj sector are really subject to enormous forces of the state and the Bazaar. In 25 years, with the Internet and the mobile phone revolution, we saw individual liberties being stretched so far as well. Anybody can do anything they want from anywhere, at any time, and that includes the ability to spew hate and encourage violence, without any accountability. So from Samaaj side there are issues as well.

On the Samaaj side, we have begun to see a response to this kind of accumulation of power, which strangely enough gave individual liberty one last run in these last 25 years. I feel that we are in the middle of a huge societal correction, where we will see some new societal norms being formed around this notion of individual liberty, market power, and state authoritarianism in a digital age. I don’t know where this will lead, but I can see the corrections happening, they look like upheavals right now. Recent advances in technology have led to the fear of the capture of our days, and our hearts, and our minds by the power of the Bazaar through technology and the surveillance state.

Now, while all of this is going on, a lot of other things are happening that are very positive as well. I really don’t believe in black and whites unless I’m fighting with my husband, in which case I always do. But otherwise, a lot of very interesting things are happening in the Samaaj sector in response to this accumulation of power. Because when power accumulates, there’s always a responsive force that tries to pull it back and maintain a dynamic balance. And so you’re seeing the emergence of many civil society actors around the globe who are responding to this accumulation of power by the state and the market. And that is the interesting space in which I work.

Seeing Like a State

This brings me to the reason why this understanding is so crucial when thinking about organizations like eGovernments. I think eGov has done a fantastic job of working on the supply side for urban areas, which was so broken and almost non-existent before. The pioneering teams here did a successful job of coming from good intentions, and were able to gain the trust of the state at all its levels.

eGov was able to understand the political economy and work with the state’s institutions, bureaucrats, administrators, and officials to ensure more transparency, efficiency and accountability. But this was done from inside, behind the walls of the state. In James Scott’s book, Seeing Like a State, he talks about how the state needs to look after equity, since the market is naturally interested in profit. The main responsibility for maintaining equity on behalf of the Samaaj, falls to the state. However, while the state is mandated with the idea of equity, it often is more comfortable with efficiency. This is because efficiency is easy to measure, it is easy to design for, and it is a placeholder for equity. You feel like you’re moving somewhere good when you try to put efficient systems in place. So that’s what James Scott calls “seeing like a state.”

Here, the state looks to organize citizens and issues in a way that is efficient and convenient to deal with. So, you try to create visibility for the state, and not so much for the people. Scott describes many experiments, including Le Corbusier’s work, the collectivization of the farms in China, and similar land experiments in the Soviet Union. He talks about the redesign of agricultural places like Tanzania and scientific forestry in Germany as examples of actions that were designed to create efficiency for the state, but did not always translate into public benefit. Even with the best of intentions, the way the state sees us is very different from how we would like the state to see us. So when eGov is sitting on this side, we have to always keep in mind the original intention of eGov is to genuinely make the state more accountable to the public good in the best way it can. So no matter what all we do from the supply side, if we don’t hold this as a principal value of the design of whatever supply-side work we do, you may end up with unintended consequences.

For example, the Grievance Redressal mechanism, even if it’s designed efficiently, unless it actually works on the ground for citizens, it cannot be called a success. It may function beautifully from the state’s point of view, and it makes bureaucrats work more efficiently, since they can process 1,000 complaints at a time instead of just one. So while it brings efficiency, it may not bring equity, it may not bring well-being on the other side. This is why the lens of the Samaaj is crucial for eGov because you have come very far with bringing supply-side to some point where it understands its accountability, it understands the need for transparency, it understands how technology can transform the needs of the citizen.

So, now we need to identify the actors within Samaaj who can work with eGov to make sure that all the amazing groundwork they’ve been doing for 16 years gets translated into real public good. This might mean going back to the drawing board, to rethink the designs of some systems that are already in place. From the citizen’s side, what are the challenges for them and how can we redesign to their benefit. When we want efficiency, standardizing systems is the most convenient thing to do, but in reality these need to serve a diverse group of people. And if we’re trying to look at Societal Platform Thinking, where the goal is to address complex societal problems, one of the principles of this is to hold on to and cater to that diversity. This applies to the context of eGov as well. Diversity is at the heart of resilience, so if we want to respect and understand the importance of diversity, especially in a place like India, then we have to be willing to design for that diversity at scale.

Diversity At Scale

When we think of designing for diversity at scale, the challenge is figuring out how to standardize change. Cookie cutter standard mechanisms will kill diversity, but if you believe in diversity as a fundamental principle of good design, then you have to design for diversity at scale. Within the Grievance Redressal mechanism, for instance, the diversity of language has been taken care of, but there may be other contextual, cultural things which we might need to redesign for, to make it effective for both state and citizen.

This is what we’ve tried to do at Pratham Books, where we decided it was time an Indian publisher was able to distribute and democratize the joy of reading. We kept this principle of diversity at scale, to unlock the potential of ordinary people who created a whole reading movement for the children of this country. There are 250 million children in India, the total population of many other countries. So how do we unlock the potential of parents, teachers, writers, illustrators, translators, editors, and storytellers, in order to make a movement of people? We did this by creating an open platform, a Creative Commons platform, which allowed everybody to participate, putting a book or a story in every child’s hand.

Since I have left, the next team has done even better. Sometimes you have to leave so that the next creativity can come into an institution. And the next platform, called StoryWeaver, allows anybody, anywhere in the world to write and publish a story, to translate somebody else’s story, and to illustrate somebody else’s story. Of course, the original has to be acknowledged. You can print other people’s stories, you can sell other people’s stories, because once you take greed off the table, once you take certain power ideas off the table, you can unleash public good and creativity. So, tens of millions of children around the world have benefited by unleashing the imaginations of writers, artists, mothers, fathers, and teachers. But all of this comes from the philosophy that the Samaaj must form the base, and the Sarkaar and Bazaar should not oppress them. Instead, they should unleash the potential of Samaaj.

When we think about organizations like eGov, the time has come to shift to the Samaaj side and look at eGov’s work from that lens. We need to strive to not see like a state, but see like a citizen.

Covid-19: Securing the Present and the Future

This is the most serious crisis since World War II. Politicians must step up; voters must allow them to.

Politicians are elected because they campaign in poetry, but voters don’t always account for the fact that elected representatives must govern in prose. That chasm between the promise and the delivery becomes more dangerous at times like these. Just like wartime generals have to be different from peacetime generals, crisis-time politicians have to step up from being normal-time politicians.

In times of the coronavirus pandemic (Covid-19), we need our leaders to assume new responsibilities. They must first educate themselves about the crisis by listening to, and learning from, experts. Then, they must communicate what they know to us, without creating undue alarm. They must be honest enough to admit their fallibility. They need to be inspirational enough to command our cooperation. They need to lobby for their own constituencies to get a share of central and shared resources. They need to transparently prioritise these resources for those who may need them most. They have to be frontline responders.

Simultaneously, they also have to safeguard the future. History has shown us that in crises, a centralised, and unaccountable leadership can emerge. Unless carefully managed, this can lead to a breakdown of trust between the government and the public. Other politicians must then evolve into system leaders. They must safeguard democracy itself; to protect against a creeping authoritarianism that is hard to push back when normalcy returns. To do so, they must demonstrate the relevance of empowered local government.

Is it even possible for our politicians to step up to the plate? Will we allow them to, even if they wanted to try? Can voters respect the difficult situation their representatives find themselves in? Can we give them space to think ahead, even as they try to contain the immediate calamity?

Benjamin Disraeli once said, “The world is weary of statesmen whom democracy has degraded into politicians”.

One reason for such a deterioration is that voters expect too much from representatives. Strangely, we barely hold them accountable for their primary duty as lawmakers. We don’t always appreciate that good laws make for good societies, and that our representatives have the constitutional duty to help craft those good laws. Instead, most people expect their elected representatives to be at their beck and call, to provide patronage and brokerage, to help their communities through small but urgent hardships. It is a 24/7, largely thankless job for most politicians.

I saw this personally in my husband, Nandan Nilekani’s, unsuccessful Lok Sabha campaign. He would imagine big possibilities for the country, which would also make people’s lives much better. Most voters, though, asked about things that affected them in the here and now — whether a community hall could be built, or the speed bumps could be removed outside their gates or if the stray dogs would be taken care of.

Inevitably, voters feel frustrated when all these requests cannot be met. Sometimes, politicians give up on this impossible quest and ride roughshod over their constituencies. It is not too surprising that we have politicians across all parties with criminal records, who keep getting re-elected, even from prison. Many have their troops of men to fulfil some of the basic wishes of the voters, keep things in check, and appear to be locally effective.

Of course, we still have several wonderful politicians. They work as hard as they possibly can to serve their people, help pass good laws, represent the interests of their constituents at every opportunity and also reach out and communicate with their voters.

We must help their tribe increase, especially now. American theologian and author James Freeman Clarke observed: “The difference between a politician and a statesman is that a politician thinks about the next election while the statesman thinks about the next generation.”

There are wonderful instances from India’s democratic history where India’s statesmen have done just that. Former Prime Minister (PM) Jawaharlal Nehru’s government built the nation’s core infrastructure. PV Narasimha Rao’s government opened up the economy for next-generation entrepreneurs. Atal Bihari Vajpayee’s government filled critical gaps in the education system, and developed the nation’s roads and telecommunication networks for today’s digital or migrant citizen. Their eyes were pinned to the horizon.

The pandemic and the economic downturn that accompanies it offer a creative opportunity for politicians to become statesmen. As poet Muhammad Iqbal wrote, “Nations are born in the hearts of poets – they prosper and die in the hands of politicians.” If our politicians focus on the word “prosper”, and if voters allow politicians to do what statesmen must, perhaps this unprecedented crisis would serve to strengthen our democracy for future generations, and not to undermine it.

All over the world, people are looking to their leaders to guide them through the double whammy they are facing: The Covid-19 pandemic and the unfolding economic crisis. This has been probably the most challenging time for politicians since the World War II. They need our empathy and our forbearance.

Hindustan Times