When Consensual Actions are Illegal

In a liberal democracy or any state, actions that are harmful to others are illegal. So killing is illegal; it is a crime because it harms others. So is stealing a crime because it harms others. But what about actions of an agent that do not harm other people? 

Many of the actions that are not harmful to others are not considered a crime even if it is harmful to the self. This is because liberty is an important category for a liberal democracy. So many of our actions are not considered illegal even when they may be deemed immoral or unhealthy. For example, smoking is injurious to health. There is no dispute with this fact. Yet, in a liberal democracy, smoking would not be considered a crime. This is so because the person's liberty trumps over the potential injury smoking may cause to the agent. Many people in the society would also consider watching of pornography or consensual sex outside of marriage immoral. But again these won't be consider illegal because the liberty/freedom of the agent trumps over certain other people's idea of morality. However, there are certain actions that may be consensual or is chosen by the agent for herself/himself and yet is illegal or must be considered a crime. What are some of those actions? 

Consensual cannibalism is an example when an action is consensual and yet is considered a crime. There is a story of a person who offered himself to be eaten when someone sent out an invitation to eat a human being. The two agree that it was consensual and there is no coercion involved at all. Yet, the cannibal was arrested. You can google or read the story here: Victim of cannibal agreed to be eaten | World news | The Guardian. 

Pedophilic action is another consensual action that deserves criminalization. 

On a slightly different note -- because here it is not about two individuals choices, but an action chosen by an agent for herself -- one may impose some form of punitive measure for driving without helmet or seatbelt. Here, the agent may not harm anyone just by driving on the road without wearing helmet or a seatbelt. Even if there was an accident, it may harm the agent iherelf, not anyone else. Yet, punitive measure for not wearing seatbelt or helmet is fair. 

Controlling Citizen's Food Habit is to Undermine Democracy

The obsession of RSS and BJP in controlling what citizens are allowed to cook in the kitchen continues to play it out. The latest notice is this regard is the order that says cattle can only be purchased for agricultural activities, and not for slaughter (for food). The order is applicable throughout the country.

In 2015 the BJP led Maharashtra government imposed a ban on possession and consumption of beef, going beyond the usual criminalisation of cow slaughter. This would mean even if someone had purchased from a neighbouring state and had brought the meat in, this would invite a criminal case against the buyer. The BJP led Haryana government also followed suit in implementing complete ban of beef. Thankfully, the High Court struck down the Maharashtra's government order saying it cannot control citizen's food habit as it violates citizens' rights.

Since its electoral victory in 2014, Modi's government has been exploring ways to protect cows. The rationale for honouring cow is that it gives milk, and therefore it has to be honoured as “our” mother. Past experience has shown that a direct ban on beef consumption would be struck down by the Court. Therefore, this time it devised a subtle way to protect the cow by allowing cattle to be purchased only for agricultural activities. How many millions of rupees will the government spend in setting up such an infrastructure that will facilitate such selling and buying requires serious examination specially when there are 35 farmers in the country who commit suicide each day. However, let this inquiry be reserved for another day.

One of the side effects of making laws to protect cows is the harmful effect it engenders on human lives. Every now and then in the name of cow, people are being slaughtered. Since these humans are slaughtered in the name of cow, the government that makes laws to protect cows failed to prosecute the criminals as if prosecuting these criminals will impede their agenda. Corruption, usually understood, is taking money to hijack justice. In this case, however, cow is the token used to hijack justice for those murdered. Whether it is money or cow, anyone hijacking justice is a party to corruption.

But there is also another dimension that makes the whole agenda undemocratic. Is controlling citizen's food habit a democratic exercise? Defenders of cows argue that beef consumption hurt their sentiment, and therefore beef consumption needs to be banned. The irony in this argument is that these people do not seem to care for the sentiments of those whose relatives have been murdered in the name of cow. But to respond to the question, one may need to raise a counter-question: How much of my liberty will you curb to restrain me from hurting your sentiment?

Food habit is about basic aspects of our lives. Food consumption is a very essential aspect of our animality just as breathing air is. This liberty is thus the most important liberty of all liberties. This is the reason why in the name of sentiment, curbing this aspect of liberty is wrong. This is the kind of liberty that engenders entitlement, or rather fundamental rights. Imposing ban on food choices by the state in the name of honouring someone's sentiment is to place democratic value upside down. Since democratic states are built on the pillar of liberty, undermining liberty is to undermine democracy; and undermining democracy is dangerous.

In a state like India that is composed of diverse ethnicities, religions and historical narratives, to impose a homogeneous cultural pattern from the top is to invite resentment and destructive forces to emerge. If cow is an endangered species, like tiger is, then its preservation is a moral obligation and the state has reason to ban beef consumption. But in the absence of such a reason, curbing someone's food choices in order to nurture someone's sentiment does not sit well with how democratic state should make laws.

NB: This article appears on The Hornbill Express on 2nd June, 2017.

Was John Stuart Mill Being Inconsistent?

I doubt that the stringent and sweeping protection of individual liberty that Mill advocates can be convincingly defended on utilitarian grounds -- Robert Adams ( Finite and Infinite Goods: A Framework for Ethics, p. 329).

Mill's robust celebration of individuality is the most distinctive contribution of 'On Liberty'. But it is also a kind of heresy. Since it appeals to moral ideals beyond utility -- ideals of character and human flourishing -- it is not really an elaboration of Bentham's principle ( of Utilitarianism) but a renunciation of it, despite Mill's claim to the contrary -- Michael Sandel ( Justice: What's the Right Thing to do?, pp. 51-52).

Mill may be liberals' most celebrated philosopher because of his defence of individual liberty in his essay 'On Liberty'. Yet by defending Utilitarianism, I think, he has compromised consistency in his thought. As Sandel points out, to defend individual liberty Mill points to excellence.

On Capital Punishment

Is Gay Right a Human Right Issue?

Is gay right is a human right? Someone argued here that gay right is a human right issue. He argued that since it is a human right issue, it should be decriminalised. I agree that it should be decriminalised, but I disagree with the reason provided for why it should be decriminalised. 

Human rights are rights that each person possesses by virtue of being a human person, and violating human right amounts to dehumanising the person. If a person is forced to have sex against her or his consent, that can be a violation of her or his human rights. But if a person is not allowed to have sex, will that be a violation of her or his human right? Or if I put it in a slightly different way: if a person chooses to restrain from sex, would she or he be violating her or his human rights? I would answer the latter question in negative; celibacy is not a violation of one's human rights. I shall come back to the former question later. 

But one may argue that there is a difference between choosing to remain single and being forced to remain single. After all, there is a difference between choosing to fast voluntarily and being forced to starve. If I choose to fast voluntarily, that is not a violation of human right; but if I was forcefully starved, that would be a violation of human right. Now is this analogy quite right? Is state's position -- or rather lack of it -- in not positively legitimising gay sex akin to not positively providing food where and when there is starvation? I think there is a difference. No one can survive without food; one can live well without expression of homosexual activity or heterosexual activity. But one may still argue that the state not legitimizing same sex union is different from forcing a person not to have same sex relation. And I do think that there is a difference. Let me take the latter case first i.e the state forcing a person not to have same sex relation. This is also the question that I paused in the second paragraph.

The state forcing a person not to have same sex relation would mean that the state criminalises people who have same sex relation; meaning, the state considers homosexual activity a crime.

Now if gay right is a human right, what would that mean? Now if gay right is a human right, the state has to take steps to positively and actively promote and legitimise it. This is what being an item of human right would mean. If starvation is a human right issue, then the state should not only starve people, but when there is starvation the state has to actively work and ensure that starvation is wiped out. Now this is problematic.

But are these two the only options -- The state criminalising homosexual activity and the state legitimising and advancing gay marriage saying that it is a matter of human right?

Now if same sex union is a human right, then those religious communities that teach the members of the community against homosexual practice cannot do that. Because saying that homosexual practice is morally wrong and should refrain from that would be a violation of human right of someone. So I would say that to argue for expression of homosexual taste. based on human right is a wrong-headed argument. In my previous post, from a different perspective I argue why same sex marriage should not be legalised, but also why it should not be criminalised; I argue that it should be a non-criminal act yet not a legalised act that the state affirms, recongises and celebrates. It should rather be treated like live-in relationship which is neither a criminal activity nor a legal union.

I agree that homosexual practice should be decriminalised. But to argue for that based on human right is, I think, a mistake. Human right is a thin idea. To put different kinds of right into the category of human right is to do disservice to human right. I think decriminalisation of same sex relation should rather be argued based on the idea of a liberal state.

So the third option is consider it as a non-criminal act, and leave it at that. This is to say that the state is not criminalising it nor is it legalising it. The state does not legitimise gay union no more or no less that it does with adultery or fornication. This way it leaves room for religious communities the freedom to shape the moral consciousness of the members and also the gays to be single or otherwise and also it leaves the state not too morally stringent that it curtails individual liberty nor too morally loose that age old civilisational scaffold like marriage and religious teachings are undermined. 

Same Sex Relation: To Criminalise or to Legalise or a Third Way?

Shashi Tharoor, an Indian Parliamentarian, recently started a petition that seeks to make an amendment in the section 377 of the Indian Penal Code. The section reads " whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine." Tharoor argues that it impacts the LGBTQ community, and also the heterosexual couples. The campaign to seek amendment has also been sought even by the Naz Foundation. Tharoor mentions that rape and pedophilia should not be legitimised, but different forms of sexual expressions between consenting adults must be made legal. Here is the quote: Section 377 should be amended so that all consensual sex between consenting adults irrespective of gender and sexuality is legal. I have an issue with the word 'legal'. 

The headline in the Petition says " Decriminalise Homosexuality". However, the content of the petition is not really about decriminalisation of homosexual practice; it is about legalisation of homosexuality practice. It is because of this inconsistency that I did not sign the petition. Let me explain further what I am saying.

It is one thing to decriminalise homosexual act; it is another thing to legalise it.  This is not the case in all situations. But this is so particularly for matter involving sexuality. Let me explain the differences with examples.

In certain sates of India, beef consumption is banned. So if you consume beef in these states, you are consuming an illegal food item. And it is taken as a criminal act, and you can be jailed for that. However, fish consumption is legal. The state will not send anyone to jail for consuming fish. The government does not say that fish or cabbage or potato or tomato and so on are legalised food items. It is understood that beef consumption is an illegal act and consuming other food items like those mentioned above are legal acts. Here only two categories are employed: illegal act or legal act. The idea here is that if it is not an illegal act, then it is a legal act.

When it comes to sexuality, employing just two categories will not work. I would argue that we need three categories: illegal act (or criminal act), non illegal act ( non criminal act) and legal act. Rape is a criminal act; it is illegal. You rape, and you can go to jail. As of now homosexual act also falls in this category. You have sexual relation with a person of same sex, you can be jailed. But fornication between one adult male and one adult female is not a criminal act. Society or parents may find it unacceptable, but if it was consensual then the two individuals cannot be sent to jail. I would call this as non illegal act (or non criminal act). The third category is the sexual relation between husband and wife. This is a legal act. This third category -- marital sexual relation -- is different from the first category and the second category because it takes place within the state (or concerned authority) sanctioned institution. Marriage is a formal recognition of the union that involves authority's sanction, witnessed by friends and families and often accompanied by celebration. The couple is honoured by providing certificate of marriage. Because marriage is an institutionalised union, sexual relation within marriage cannot be equated with fornication; the legal standing between the second category and the third category has to be different. If we do not treat them differently, we are compromising with the most basic institution called family. And this is a very serious issue.

Given that family, which traditionally is composed of male-female equation, is the basic building block of a civilisation, I would not want the state to legalise same sex union. Or to put it different, I do not want same sex union to be recognised, celebrated and honoured by the state. Immanuel Kant would invoke the universalisability principle to examine the moral imperative of an action. He says that we should act on that maxim that it can be acted on universally. I would apply the maxim here like this. If everyone begins to marry the person of same sex, human species would extinct. If the state legalises same sex marriage, it would mean it recognises, celebrates and honours same sex marriage. Given that same sex marriage, if universalised, can result in the extinction of human race, the state should not recognise, celebrate and honour it.

I am okay about decriminalising homosexual act, which would mean it would no longer be placed alongside criminal act like rape; instead, it would be placed alongside non-criminal act like fornication. A liberal state would have to allow individual to exercise liberty to a great extent unless it infringes on the autonomy of other people. I may not appreciate it nor consider it right. However, a liberal state would have to allow citizens to exercise liberty, and this is different from recognising, celebrating and honouring a conduct. However, I would insist that the state should not legalise it.

When it concerns food items, the state will not dish out certificate and say that this is a legal food item. That's why if it is not illegal, it would mean that it is legal. With sexuality, the government does give certificate. Here it is about people coming together to make an institution. Here the nature of the matter is different from that of the consumption habit. And because of the nature of the matter, it requires three categories; unlike food matter that works with only two categories.

Is Modi a Victim of Intolerance of Rival Parties?

Arun Jaitley, who holds the post of Finance Minister, says that the Prime Minister Narendra Modi is a victim of intolerance. Read the news here . Jaitley made this statement after many historians, scientists, artists and writers lambasted Modi's government for creating intolerant environment in the country. These people were joined by prominent figures like RBI Governor Raghuram Rajan, Industrialist Narayan Murthy and others. The BJP probably got the sting finally and therefore it was forced to deflect the controversy towards its political rivals. But what is the truth? Is it BJP or the Congress and the Left that have been intolerant all these months? 

Until yesterday, as per the paper, RSS was saying the population of Christians and the Muslims must be checked. Prior to that those who share similar ideology with RSS and BJP have made statements that do not epitomise tolerance. One BJP Minister was heard saying 'haraamzada' (Bastards) -- illigitimate child -- to refer to certain group of people. Another one said that those who oppose BJP should go to Pakistan. Still another said that if Muslim must stay in India, they must give up beef; and on one occasion a BJP leader was reported to have said Nathuram Godse, the murderer of Gandhi, was a patriot. Another leader said that those who opposed Surya Namaskar (Sun Worship/Adoration) should drown in the sea. These are all about verbal intolerance. I never hear any such fiery words coming out from the mouth of  leaders belonging to the Congress or the Left parties. 

But the worse thing is that people like Kalburgi and Pandsare were murdered for being  religious critics. Aklaq was murdered after being accused of eating beef, when what he ate was mutton. Rasool was set on fire and died few days later due to injury over rumour of slaughtering cows. All these murderers share similar ideology with that of RSS and BJP. All these killings coming after fiery speeches  delivered by RSS/BJP leaders cannot be dismissed as coincidences. These are classical cases of intolerance by RSS and BJP. Modi is not a victim of intolerance of rival parties. At worst Modi is a victim of intolerance of his party members or rather a victim of his own apathy towards intolerance by his party members. 

Arun Jaitley is plain wrong to shift the blame to his political rivals for intolerance that fills the air today. His party has not sacked anyone nor taken any disciplinary action against anyone for delivering such speeches. Instead of blaming others, he should have gathered up moral audacity to say that his party has been wrong and now that it is mending ways. Unfortunately BJP has been refusing to show moral uprightness. When the political rivals accused it of corruption and asked the party to sack corrupt members, one BJP leader said something to the effect that removing corrupt people is not in their nature. This is moral bankruptcy. And demonstrating moral bankruptcy in public by such a large political party is to self-destruct. 

Aristotle and Eugenics

In chapter VII section xvi of The Politics, Aristotle talks about marriage and eugenics. He writes that if one marries too young or too old, children are not healthy. And therefore one should get married at the right age to beget good children. For female, the appropriate age to get married is 18 and for male, it's 37. Aristotle think that this is also good particularly because by the time the man gets weak and old at around 70, the child, if born as planned, would be of marriageable age. 

Aristotle also writes, ' with regard to the choice between abandoning an infant or rearing it, let there be a law that no cripple child be reared.' Aristotle society was not in a position to rear deformed child. They would leave deformed child out in the open to die. To control population, they would even sometimes leave a healthy child to die. Unlike Plato who fixed an exact number for an ideal state,  Aristotle does put an exact number for an idea state. But he says that it should be large enough to be self sustaining and yet not too large that the state cannot 'survey' the number.

This reminds me of a dialogue in a movie called The Mission. One can find the plot of the movie here. A wonderful movie! In this movie, before the transfer of the land where the mission work was being undertaken, from Spanish control to Portuguese control, there was a debate for and against this transfer of land. The one defending the transfer of the land from the Spanish to the Portuguese wanted to capture the native people and sell them as slave. There is handsome money involved in slave trading and under Portuguese law slavery was okay then.  But the one arguing against the transfer, the Christian Priest, feared that such transfer would enslave the native people; and since Spanish law did not allow slave trading, he wanted the land to be under Spanish control. The one defending the transfer says something to the effect that the Guarani people are not fully human; they are rather like animal; they even killed their children... and therefore using them as slave was fine. To this the priest retorted that they had to keep their population under control... and to run away from slave traders, they could not even raise so many children because that made it difficult form them to escape being caught and then sold as slave.

But the point is that leaving deformed children to die was not uncommon in the past. That was there in the Roman society too. And we read of Christians in the first century picking up discarded children from dung heaps and raising them. There might have been other social/religious/ethnic communities having done similar thing; maybe my reading is limited and therefore I am not aware of such stories. But the point is that discarding deformed children was common then. Today all sorts of societies have made such thing illegal. Though we read stories of female foeticide specially in certain part of the world, and the stories are being confirmed through skewed sex ratio, but there is possibly no state/kingdom that does not prohibit such thing officially. Let alone discarding disabled people, the world today strives to invent new machines/tools to enhance their capability to perform different activities as live as normal life as far as possible.

Is the fact that discarding the deformed and the weak  being acceptable in the ancient society but not acceptable now one aspect of moral progress?  I think it is! 

Maintain Dry Status, Please

Political leaders in the state have been deliberating on the pros and cons of lifting dry status in the state. As per the paper report, there is no sustained argument in support of maintaining status quo. Instead the policy makers appeared to support lifting of dry status and make alcohol consumption legal. Given that the impact felt on the larger society will be tremendous, there requires sustained debate on the subject involving law makers, civil society, religious leaders, researchers etc. One of the MLAs stated that removing of dry status will ensure production and availability of only quality-controlled liquor to the public. This kind of reasoning is without empirical support. The empirical support would rather point to the opposite direction.

Maharashtra, Uttar Pradesh, West Bengal and other states legalise alcohol consumption. But even in these states there are plenty of 'toxic' liquor available, and thriving. Just last month – June, 2015 – in Maharashtra 104 people died after consuming illicit alcohol, and over 40 continued to remain hospitalised. In January, 2015, in Uttar Pradesh at least 25 people died after taking local made liquor, and over 100 hospitalised. Prior to that over 40 people died in the same state after consuming local made liquor during a religious festival. Few years before that 130 people died after consuming illicit liquor in West Bengal, with dozens more landing in hospital. In 2008, 180 people died after taking local made liquor in Karnataka. These are small samples of deaths caused by country-made liquor. It is reported that in Maharashtra in certain areas, within just one Ward – let alone district – death through alcohol poisoning occurs every month.

Given that people in the state are equally money minded, if not more, illicit liquor will thrive. State machinery will find it impossible to ensure the quality of alcohol being brewed by the local vendors. If dry status is lifted, the state will have thousands of local brewers, and the state machinery will never be in a position to monitor the quality. When the state machinery is unable to effectively check petrol adulteration, can it monitor and regulate the quality of possibly thousands of local liquor brewers? Empirical findings prove that illicit liquor thrive so much more in states where liquor is legalised compared to dry states. The MLA is mistaken to believe that removal of dry status will engender quality-controlled liquor.

The paper reported that the government expects to make Rs. 300-500 crores through alcohol related business once dry status is lifted. This needs critical evaluation. Tripura, whose population higher than that of Manipur, makes around Rs 124 crores out of alcohol related business last year. It is highly unlikely for Manipur Goverment to generate revenue 2-4 times more than Tripura by removing dry status. If such a monetary figure is to obtain, it can do so only if a significant percentage of population is driven to drinking. But with more drinkers, social cost increases. At present Supreme Court normally directs government to pay Rs. 5 lakhs as compensation for undue death. Placing monetary value on a person's life is problematic. Despite the problem, if one takes this figure, it would take the death of 600-1000 people that government must compensate to neutralise the monetary gain of Rs. 300-500 crores. In a small state, such number of death is unlikely. And God help us that such thing never happens! But even if dozens of death occur in, say, a far flung village in the hill, the chance of the event not being reported is so high. Media coverage in the sate is far below the desired level. And with many villages several miles away from the nearest police station, there is no measure the state government will step in to investigate the disaster and prevent further incident of such sort.

Once dry status is lifted, more men will come home and beat up their wives and children. Domestic quarrelling and beating are much more common in homes where the husband drinks compared to those where no one drinks alcohol. Poor productivity in offices and field will be more widespread. Local fights between drunkards will be common scene. Drunk driving will increase manifold resulting in higher number of accidents and increasing medical care cost to the injured. But the cost for such hospitalisation is not born by the 'bad' boy himself; the cost falls is born by the entire family. Kidney-liver damage will rise substantially, adding financial pressure on the wife specially. With more illicit liquor brewers thriving than it is under dry status, more families will fall under the spell of alcohol related illnesses. It is not just the money spent to buy one drink, which in many cases would have been earned by the wife selling vegetables on the roadside, but the physical abuse on the wife that gets more frequent and the tense environment in which the children are raised which is followed by apathy towards children's education and moral progress. Hundreds of homes will get wrecked by removing dry status. The big question is: Has the government calculated such social cost and converted them in monetary value? What is the net monetary difference between the gain and the loss?

State exists for the flourishing of the citizens. And given this function of a state, it is high time that it cracks down on alcohol business prevailing under dry status. Lifting dry status will rather be going towards the opposite direction the state ought to pursue. Instead of facilitating and developing the skill and excellence of a human person, by removing dry status the state will impregnate the health and minds of the citizens with illness and darkness. Policy makers have moral obligation not to lead the citizens toward such dark abyss. Therefore, maintain dry status, please.

(This article appears on The Herald on 11th July, 2015) 

In Defence of Dry Status

One of the repeatedly stated reasons for lifting of dry status is that the prohibition is not really effective as it was anticipated when the legal provision kicked in. Reason such as this, however, requires further inquiry. In any given decent society, actions like murder or rape are criminalised with heavy penalty. However, no political society has been able to curb such criminal actions with cent percent efficiency. This does not entail that murder or rape can now be legalised because the state machinery has failed to effectively prevent such actions. It rather implies that the state needs to wake up from its slumber and get to work. True, alcohol consumption is unlike rape or murder; after all there is no apparent violation of anyone's right by one's liquor consumption as it is so with rape or murder. However, the given reason that dry status is not quite effective in curbing drinking is not a valid reason for lifting of the dry status; if at all it must imply a lesson, then it is that the state machinery is a failure. Given this factor, maintaining dry status or otherwise would have to depend on the social benefit or social cost that alcohol consumption elicits.

If there are black marketers today making profit from the business, at the expense of the general public, it is not proper for government to fit into the shoe of these black businessmen. With legal provision, government can indeed make black money white. Yet, the moral reason remains; and therefore, the so called white money may not really be white. There are black businessmen making hefty profit for selling heroin, ganja, pseudoephedrine and other tablets. State cannot be venturing in to fill the shoe of this thriving black market and make these businesses legal.

The reason why government had introduced dry status in the first place was due to social cost, and even today if government is to lift dry status, this factor must determine its course of action. Public health experts everywhere are unanimous in voicing that social cost is far higher than the social benefit that the state can dole out through revenue that it generates from liquor business. Kidney-liver damage, poor parenting, accident from reckless drunken driving, local fights, spouse quarrel, lower work productivity etc. are going to be rapidly increasing with far more easy access to liquor. If the state machinery is helpless in effectively maintaining prohibition, to consider effective monitoring of import-export and prevent further social degeneration it is not being realistic.

On behalf of the citizens, political leaders must legislate and pursue a wide range of goal that includes health, education, social harmony etc. Political goal is not about making more money, but about human development and therefore human flourishing. It is not state's business teaching husband how to express love to his wife, but it must be of state's concern if husband would come home drunk and beat his wife and children. If the state needs more money to ensure protection and care of its citizen and also its infrastructural development, it must explore other measures to generate revenue – the kind of measure that will not damage human development. Tourism may serve a fine example for such measure. Any measure that will radically increase physical abuse, health hazard, social tension etc. ought not to be pursued. The state has a moral obligation to steer clear of such policies by virtue of the moral ideal upon which the state is based and also has envisioned for its citizens. The state is not an amoral institution and ought not to be one because human being is an inherently moral animal. Therefore lifting of dry status which certainly will have massive social cost ought not to be considered at this point of time.

What good is money if its pursuit results in damaging human lives?

On AFSPA

There are those hardcore Indian nationalists who have defended Armed Forces Special Powers Act. In the name of national security, criticism of the Act has even been prevented. Those who criticise the Act are portrayed as compromising their love for the motherland, and only those who defend the Act are protective of the country. Thankfully, P. Chidambaram has been vocal about the untenability maintaining the Act as it stands today. He has once again raised the matter, which can be read here. He has done that in the past too as a Home Minister but could not alter the status of the Act due to Army folks putting their foot down to any proposal to get the Act amended.

Two comments. First, the Act would not have generated such controversy had the army personnel acted strictly within the guidelines provided by the Act. However, the matter is such that the army personnel would rape or kill through fake encounter again and again and again and again and again...and then get away with all of these by invoking the Act. The Act does not provide immunity for rape or torture or fake encounter killing. However, as it happens in the ground, the army personnel would go about doing anything and then get away with it. The Act has been misused! But if there is the understanding within the army and the government that the Act virtually contain allows the army anything to do and get away with it, then let it be spelled out explicitly. But this cannot happen! A state will never admit that the it gives the army personnel to commit such crime against the civilians, deliberately and systematically for over fifty years! But if it is not willing to be transparent, why continue to maintain the Act as it is? 

Second, the army cannot defend its action publicly. The covert acts that have been deliberately and systematically committed on civilians, and invoking AFSPA whenever dragged to Court, cannot be allowed to continue. How can crimes against humanity be allowed to continue in the name of AFSPA? The debates at the level of ideas and the way democratic form of governance, which includes defending human rights or right to liberty of any individual, are sustained and needs to progress, are not the job of army personnel; this domain lies with the civil authority. To let the army put its foot down against the wishes of the civil government and let the Act continue as it stands is not a healthy way of governing the state. Every body contributes to sustain the state, and each one has its role. The army must perform role to sustain the state, and so must the civil authority. There is even this rumour in the North East that the army deliberately create low intensity warfare to receive high funding. Given this rumour and its history of being a victim of army excesses, allowing the army to have final say in policy matter is unhealthy.

This draconian Act should not continue as it stands today.

Wolterstorff's Justice: Chapter 2

This is the second chapter of the book, but the third post. The previous post is here. This second chapter is titled 'A Contest of Narratives'.

The right order theorists tell a story that says something to the effect that the idea of subjective right develops with the emergence of political liberalism. (Political liberalism is that strand of political thought that considers rights of an individual as the first virtue a state must protect.) Other writer would trace the source of the idea of subjective/natural right to the writing of Ockham. Now Ockham was a thinker belonging to the Franciscan order. After the death of St. Francis, who had voluntarily chosen a life of poverty, there was a dispute between the Pope and the Franciscan. The Pope was of the opinion that the Franciscan did have some sort of ownership of property. One of the effects of having to give up ownership of everything would mean that the church cannot own anything. Ockham and others went to make a case that it is lawful to give up right to own property, but one cannot renounce the 'natural right' to use properties that may belong to someone. Thus, argue right orders theorists, Ockham invented the idea of subjective right... Nick argues that the idea of such of kind of right goes much older than Ockham and political thinkers like Hobbes and Locke.

Nick counter-argues by saying that the right theorists narrative fail to adequately take into consideration the account of right that was already in use in the works of the jurists in the medieval period and also by the older thinkers. Nick cites research work by different modern writers to make a case that the Roman jurists were using the idea of subjective right in their work, and that those who argue that subjective/natural right emerged in Medieval period did not adequately take into consideration the different ways 'right' was employed For example, those in jurisprudence employed the idea in their work. Going beyond that, Nick also argues that when Ockham, the Medieval thinker, employed the language of right, he was not inventing the idea out of the blue; Christian thinkers (or Church Fathers) who were teaching and writing in the first 500 years were already using that sort of idea. The idea of natural right was unmistakably present in the work of John Chrysostom (347-407) , Ambrose of Milan (337-397) and Basil of Caesarea (329/330-379).

Based on the principle of correlative, a right theorist may accept that if there is natural right then it must imply that there is natural duty. But the difference between a right theorist and right order theorist goes deeper. And here is the difference: Does a person have inherent worth for which she/he possess an inherent right or is right conferred to a person by an entity/someone? Nick argues for the former, and this is something he will go on to develop in the following chapters. But if his argument stands, then the right order theorists argument that rights are conferred by state/law/contract etc, and it is not something that a person possesses as if it's an inherent property will be challenged.

I think Nick was convincing enough in his argument that the idea of subjective/natural right was already in use much before Ockham and others. Yet whether a right order theorists can still accept the idea of inherent right and remain a right order theorist is possible or not is something Nick will try to argue in the following chapters. And whether he is successful or not, the readers will have to wait.

Introduction of Wolterstorff's Justice: Rights and Wrongs

Besides other posts, I am going to be blogging about Justice: Rights and Wrongs, written by philosopher Nicholas Wolterstorff of Yale University. This is not a book review, but a summary of each chapter. I have read the book twice, and this is my third reading of the book. Most of the books I have read do not get the privilege of being read twice, let alone thrice. C S Lewis Mere Christianity, Vinoth Ramachandra's God's That Fail  and Michael Sandel's Justice: What's the Right Things to do? are the only three books I have read twice, as far as I could remember right now. The Bible and Wolterstorff's book Justice are going to be the only two books I would have read thrice or more! Since this is my third reading, I want to believe that I have understood him well.

The book has 17 chapters, besides Preface and Introduction in the beginning and Epilogue at the end. So it's as if it has 20 chapters. This post will summarise Preface and Introduction together.

Nick begins to engage with the concept of justice after two life-changing events. The first one is on Apartheid South Africa in 1976, where he witnessed the Afrikaners denying justice to the 'blacks' and 'coloured' people. The second event in on Palestinian  issue in 1978, where he heard the Palestinians speak out against injustice meted out to them. These events energised him to speak out against injustice like no other events before. 

Nick is explicit that he is a Christian and his account of justice is a theistic account. Even so, his account of justice is based on inherent right that an individual possesses. He begins in the Introduction by stating that there are oppositions to the concept of rights as justice from within and outside the religious tradition he comes from. Some say that ethics of care is more appropriate; others argue against right-talks due to political and social reasons. Some say that the idea of right as justice gives rise to individualistic way of thinking and therefore it should be discouraged. Right-proponents are alleged to have said, 'this is my right; that is my right etc.' and focus so much on individual right, and thus fail to talk about care, responsibility, duty, obligation etc. Nick argues that it is one thing to care, but another thing to be cared; it is one thing to fail to do one's moral duty and thus wrong a person, but another thing to be a victim and be wronged. The language of care, duty, obligation etc cannot accommodate the story of the victim, of the one being wronged. Thus, doing away with the language of rights is to entail doing away with the story of the victim, and this is something we cannot afford. Theory of justice requires language and concept of rights, and we cannot do away with rights based concept of justice. This is Nick's defence of rights based idea of justice. 

Nick says that there are two primary conceptions of justice in the western tradition: justice as right order and the concept of justice based on inherent rights. Former is Plato's view and those who agree with him and the latter is his view and those who have argued something similar to his view even earlier. Aristotle's concept of justice as equality is possibly the third conception. Nick is going to argue for the concept of justice based on inherent right. But he will also be rejecting what proponents of justice as right order say about rights based justice which is that rights based idea of justice emerged much later. Nick will argue  that right-theorists position emerged much before Medieval period and therefore is not of recent origin and that this concept does not necessarily give rise to excessive individualism.

Affirmative Action & Electoral Politics

Introduction

Affirmative action is an approach devised to provide special opportunities to those groups of people who are disadvantaged because of various reasons. It is not a new approach. This concept was introduced in India by the framers of the Constitution to benefit those who are socially and educational backward. This policy of affirmative action being in place for over sixty years now has significantly contributed to the welfare of the people in the state. However, the fact that there is still social and economic inequality suggests that it is still in great need. The persisting inequality does not suggest that affirmative action as a political policy has failed; it rather suggests that it requires reform so it is more efficient. Critics of affirmative action have from time to time argued to do it away. The article will argue that affirmative action is required to establish a just and a flourishing society. 

The rest of the essay is available here, pp. 35-39.

NB: My article published in a peer reviewed journal no. ISSN: 2278-473X.

Must Soldiers Fight Unjust Wars?

If the state ever legislates an act that says that all the citizens must worship the statue of the Prime Minister/President, do I have to obey the law? Or must I obey a law that says that I should never ever utter a word against the economic policy of the government? Living in such a state of condition would be terrible! It is likely that most people in 21st century may say that it would be better to rebel against such system and overthrow it; put to an end such kind of system. However, as many would be willing to fight against such regime – not even worthy of being called a government – there would be many others who would be willing to die fighting to protect such system.

Wars come and go. Some wars are just; some unjust. If we are to loosely define them, one may define them as wars that are waged to expand territory are unjust whereas wars that are fought in self-defence are just. On both counts, the soldiers play the key role. Even when it is an unjust war, it is the soldiers who go out to the field to fight; and again in just war too, it is the soldiers who go out to fight to protect the people and the territory. Whether it is the US invasion of Iraq on the pretext of Saddam Hussein producing WMD or the Qaddhafi's army fighting to protect his dictatorial regime, it was the soldiers who composed the main fighting unit. The moral dilemma that may emerge before a soldier is whether they join the fight against bad regime or fight and even kill the civilians who attempt to overthrow such oppressive government; or whether to go and even fight in a foreign territory as an occupational army or leave the army.

Army units do not function on democratic principle which guarantees one a significant amount of right to dissent though it is the civil government which may be in place. Whether it is a big army or a small army, army personnel are bound by the oath they have taken to follow the order of their superior. The order given by the superior may not always be just and fair, yet they are bound by the oath as long as they remain in the army. Imagine a situation where someone puts a revolver on your forehead and asks you to shoot a child. You can refuse to shoot and get yourself killed or you can shoot and yet remain blameless. The reason why you remain blameless despite killing an innocent child is because your action was not intentional. This is the kind of situation an army personnel face in a battlefield. You disobey an order of your superior and so get court-martialed or you obey order.

These are the options before a person: first, do not join the army and you face no such situation whether one must fight or not fight an unjust war; you take up other job. Second, join the army but quit much ahead because you see foresee potential dilemma. Third, stay in the army and report for duty and be obedient to the orders given to you. The third option is what many army personnel do. If the fight is judged to be unjust later, the responsible official or officer who gave the order is to be held responsible for the order, not the soldiers acting on the order.