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


Samaaj and Bazaar: Congruence over Divergence

This is an edited version of Rohini Nilekani’s keynote talk on Samaaj and Bazaar: Congruence over Divergence at Dasra Philanthropy Week 2019 in Mumbai. We often set up Civil Society (Samaaj) and Markets (Bazaar) as opposing binaries. In this talk, Rohini proposes that they have more in common and more to gain, collectively, in collaborating to uphold the Rule of Law.

We’ve all come a long way in the philanthropy sector in India. Apart from the older, very well-known philanthropists, we are seeing the arrival of so many new and committed philanthropists to the sector getting engaged. And yet as we look around, we see that no matter which sector we are engaged in – as civil society institutions, corporate CSR agencies, or as philanthropists – the problem seems to rush ahead faster than our approach, our solution, and we don’t seem to quite get there. 

Even today, after so many people and civil society organizations working in the area of education and most of the philanthropic capital having gone to the education sector, if you look at this year’s ASER report, it feels like we might have failed our children. Even now, so many of them cannot do division and multiplication in class five. Where are they going to land later, we know that.

So it’s very important for us to understand why we have not achieved as much as we would like to, though we have done so much. And I really believe in the power of intent. So I do think that we are going to do better, but societal problems are very complex and none of us individually or even as sectors (like philanthropists, civil society, markets, or the state) can achieve those things on our own. 

It really requires the whole continuum of Samaaj, Bazaar, and Sarkaar – civil society, markets, and the state – to work together with reduced friction to actually solve complex societal issues. Which is why we come to collaboration, which is absolutely essential as we need to account for the role of different actors in these sectors, the varied skill sets, and the different context from which to come at a problem from multiple angles. 

Luckily, there is a lot more opportunity today to be on collaborative platforms such as Dasra, Co-Impact, the India Philanthropy Initiative, and others. Some of us also got together to look at an area like independent media, and have set up a collaborative giving platform called IPSFM [the Independent and Public-Spirited Media Foundation]. A very new and exciting area that we’re looking at in collaboration is climate change. Led by the Tata Trust, some of us have founded The India Climate Collaborative. It has fairly ambitious goals to spur the ecosystem around working on climate change. So there’s a tremendous opportunity right now to think of collaboration.

In our work over the last four years, my husband Nandan and I have begun to see how we can create a framework around collaboration. We are calling it Societal Platform Thinking. But I acknowledge that collaboration is easier to talk about than to actually do. There’s a lot of friction to collaborate, and maybe two reasons that we cannot achieve the outcomes that would come only through collaboration is that we are not able to really embrace risk and that we don’t know perhaps how to trust, how to let go, how to get out of our comfort zones and do things that we know might fail. So, embracing risk is a lot about failure and the ability to trust. When I say trust, it means that if you are a philanthropist, you have to be able to trust your grantee partners. That means you give them enough flexibility to change what they’re doing based on context and not asking them to give ridiculous amounts of reporting, just so that you feel you are doing all right as a philanthropist.

You have to be able to lead with trust. Through my 30 year journey in this space, I’ve found that once you start off with a relationship of trust, magic happens. Of course, there are some caveats to whom you work with. You should be able to work with trustworthy partners. But I just wanted to highlight that trust is key if you want to achieve social outcomes. By embracing risk and allowing ourselves to trust, we open up our minds and spaces for us to act in. We have to be prepared when we embrace risk, of course, to embrace failure. And once you say, “I’m willing to fail”, it allows you to go where you have not gone before with much more confidence.

So today, for example, as our economy is growing and as our government is able to do much more social spending, there’s a lot of attention being paid to how we can implement government programs better. Certainly CSR has become better at doing that over the last few years. There are many civil society organizations that have helped the government achieve its own mandate at the implementation level. But there are so many areas of society that don’t get looked at enough, where the government is not necessarily doing enough, and where we as philanthropists and civil society organizations need to do much more. Look at issues like mental health, disability, access to justice, environment, and livelihoods. If we were to embrace the risk and not fear failure, we would go into those areas as philanthropists and as new CSO organizations and innovate solutions that could get us out of the usual rot of our societal problems.

Sometimes, I wonder if we are suffering from a lack of imagination. When Vinoba Bhave started ‘Bhoodan’ and Mahatma Gandhi started the ‘Salt Satyagraha’, they were thinking at a universal human level of change. Now when we talk about one district or even 10 districts at a time, that is not enough. At least some of us should be able to say that we will go beyond just doing incremental things and look at achieving a population scale. There is a method to achieving that, and here, intent is not enough. We will need collaborative frameworks that are designed for scale.  

I want to talk a bit more about failure. Failure can lead to a lot of very interesting stuff. Certainly in 30 years, we have failed repeatedly in the work that I do. And in an article I recently wrote, I was thinking of how Gandhi actually failed as a lawyer. He just couldn’t get his practice together, and then he embraced risk and set off in a boat to South Africa. And look what that one failure led to – the transformation of humanity. So we should not be afraid to fail, but then immediately thereafter, to embrace risk and set out to sail to shores yet unseen.

I feel there are three lessons from all the failures that I was able to embrace in 30 years of working in the social sector. The first lesson is from when we started Nagarik for safer roads in 1992. We didn’t understand the root cause of why our roads are not safer. And when you don’t go deep enough to analyze an abstract problem you’re working on, you tend to just work on bandaged solutions. Due to this, the whole thing collapsed under its own weight. The second lesson I understood when I worked at Akshara Foundation, Pratham Books, Arghyam and now EkStep. It’s that you need to clearly demarcate the role of Samaaj, Bazaar, and Sarkaar and not confuse it. Allow Samaaj to do what it does best, allow Sarkaar to do what it does best, and encourage Bazaar to do what it knows how to do best. But if you force Bazaar to go below the line of profitability, if you expect Sarkaar to do what citizens should be doing, if you expect citizens to take on the ownership of what Sarkaar should be doing, it tends to create confusion and not achieve the societal outcome you need.

And the last thing I learned was – and this is very important for philanthropists to really understand – if you want societal level transformation, none of us have the answers. But there are people who have answers in their own context. 

So, how do we distribute the ability to solve? A very key way to distribute the ability to solve, instead of pushing one solution down the pipe, is to open up, to create platforms and to allow public goods to be created from the work that we do. So for example, in Pratham Books, once we created a Creative Commons platform where everybody could do what they do best, we were able to open up the creation, the distribution, the translation, and the sale of books. We were able to scale to tens of millions of children. So this is a very important lesson. 

When philanthropic capital is being used, we owe it to the work that we do and to the ambitions that we have, especially now in the digital age, to create open digital public goods. So that other people can build and innovate on a platform that we support as philanthropists, in areas that perhaps people have not been bold enough to go before.

Dasra’s journey is synonymous with the new age of Indian philanthropy. As we begin this third decade and re-dedicate ourselves, let us all say today, no matter who we are, no matter what work we are doing, that we commit to at least in one area, we will not just do incremental but transformational. And we will do that through collaboration, by embracing risk, and we will do that without fear of failure.

Corporates Should Support the Rule of Law

The time has come to align self-interest and public interest in support of the rule of law and constitutional values.

I have often talked about the continuum of sarkaar, samaaj, and bazaar, and why, for a successful society, these three sectors must work together in a fine balance.

Ideally, sarkaar, or the state, should not grab too much power, bazaar, or the market, should not flout the rule of law or appropriate public resources, and vigilantes from the samaaj, or civil society, should not take the law into their own hands.
This requires awareness and active participation from all citizens. After all, we are citizens first; our primary identity is not as a subject of the state or as a consumer for the market. As citizens, how do we then help build a good society?

The bazaar’s interest in the rule of law

There are many interests between samaaj and sarkaar; bazaar and sarkaar; as well as between samaaj and bazaar. For the purpose of this article, we will examine the congruence of interest between samaaj (society) and bazaar (markets). And it starts with the rule of law.

“No business can thrive without social stability outside its gates.”

We all want and need the rule of law to be upheld. In fact the bazaar—or at least the modern corporation as we know it—would not exist if the rule of law had not created the limited liability company 300 years ago. This allowed innovation to flourish over the centuries, and also provided for the absorption of failure, because wherever there is innovation, there is failure. It is because of the rule of law that companies can fail without going under themselves; and therefore, for their own sake, corporations have a great stake in upholding it. They need the enforceability of contracts, protection of property, availability of fair competition, and so on, otherwise they simply cannot function. But even beyond this, they need the law to be upheld by society at large, because no business can thrive without social stability outside its gates.

Civil society and business therefore have more in common than either believe. Sure, in some cases, civil society has to position itself against business interests, when those interests are being deployed unfairly on the ground. For instance, in the case of public goods like water and land commons, or with environmental issues like pollution and contamination, civil society and business knock up against each other. But they also have a common concern—to keep the sarkaar in check.

Keeping the sarkaar in check

State power worldwide tends to accumulate, and it is to the advantage of both business and civil society, to make sure that the state does not abuse its own power.

Many corporations have been subject to the vagaries of state power while running their businesses; excessive discretionary power also adversely affects the climate in which businesses operate. If the alignment of samaaj and bazaar is understood and worked on, it helps restrain the state.

For example, civil society institutions and business corporations might together, or separately, appeal to the state on poorly framed laws. In the recent proposal to criminalise non-compliance of CSR, both samaaj and bazaar would have been adversely affected.

Both successfully voiced strong reservations against it, and it was rolled back.

“We all need good laws, and an independent, impartial, and efficient judiciary to verify the constitutionality of those laws.”

We all need good laws, and an independent, impartial, and efficient judiciary to verify the constitutionality of those laws. We all require equal access to the justice system. We also need effective public institutions that help uphold the rule of law. It is the only way to both empower the bazaar and uphold the rights of the country’s citizens.

The samaaj has an interest in the rule of law as well, as it is critical for addressing access issues, especially for the poor. Civil society organisations (CSOs) representing samaaj are often driven by passion and a commitment to rights and freedoms.

Sometimes, at great personal risk, they go up against the power of the state and corporations, to create campaigns, build institutions, and push for more agency for people who are left out. Civil society must however learn to communicate better the long term benefits of such work to business.

Because, the bazaar itself cannot do this work. Though they benefit indirectly, corporations cannot support or implement politically sensitive programs, and risk the fallout of such action. It would make them vulnerable to all sorts of state action.

But they can certainly do more than what they’re doing at the moment.

With the civil society institutions that they trust and already have a relationship with, they can, and should, give core institutional support to continue work beyond project-based funding. Even if they do just this, it strengthens civil society capacity to take on issues of rights and exclusions that are adjacent to their work on service delivery.

It’s time to take big bets

Swami Vivekananda said, “Take risks in your life. If you win, you can lead, if you lose, you can guide.”

Indian philanthropy doesn’t take enough risk. However, it cannot achieve its potential without risk-taking. It’s good to keep honouring service delivery improvements, but it’s time to look at our society as a whole, and for the philanthropic sector to step up and get into more important areas such as access to justice. And the congruent interest of samaaj and bazaar is exactly why.

From a recent Boston Consulting Group report—‘Total Societal Impact- A New Lens for Strategy’, it’s clear that corporations which align with samaaj’s ideals will be better off in the long run. There is now exhaustive research that shows that the non-financial side of business is linked to its financial side, and that companies that do well when it comes to ESG—environmental, social, and governance issues—also consistently show better results on their bottom line.

Can we—as corporations and philanthropists—pledge that we will no longer do only incremental work, but will try something transformational? The time has come to align self-interest and the public interest in support of the rule of law and constitutional values.

The common within uncommon ground

It doesn’t have to be the state versus civil society, or business versus civil society, or the state versus business. They are not neccessarily antithetical to each other.

Society is successful when it reduces the friction for the three to co-create solutions. And it’s important for all the three sectors to recognise that—to discover the common within the uncommon ground.

It is an especially opportune time for business and civil society to act more creatively from their own, unrecognised common ground. Poised at a new decade, we can together ensure that this country’s solemn promise to itself—to secure liberty and justice, social, economic, and political—for all its citizens, will be met, and met in abundance.

India Development Review

Times of India


Hindustan Times

Hindustan Times PDF