Anticipating the Unintended #50: Sunday Double Bill: Ab Tak Chappal & Close Encounters of The Third Kind

This newsletter is really a weekly public policy thought-letter. While excellent newsletters on specific themes within public policy already exist, this thought-letter is about frameworks, mental models, and key ideas that will hopefully help you think about any public policy problem in imaginative ways. It seeks to answer just one question: how do I think about a particular public policy problem/solution?

India Policy Watch 1: The Chimera Of A Just State

Insights on burning policy issues in India

— Raghu Sanjaylal Jaitley

Vikas Dubey, a dreaded gangster with multiple cases of murder against him, was killed in a police ‘encounter’ on Friday morning. In the past week, five of his associates who were involved in gunning down eight policemen were killed in different encounters or while they were in custody.

The Perfect Encounter

Dubey was arrested on Thursday at Ujjain. On the way to Kanpur in police custody, their vehicle overturned. Then Dubey did things that confirmed his legend. In that overturned van, he freed himself from his handcuffs (Houdini). He snatched a service revolver and shot out of the van defying gravity (Iron Man). He then ran some distance despite having a steel rod in his leg that gave him a limp (Forrest Gump). After a while he remembered he had gun that could be used to shoot at the police (Gulshan ‘bad man’ Grover). Instead he was shot dead. While displaying such daredevilry, he kept his mask on. Guns didn’t scare him. Virus did.

As far as subliminal messages on the danger of COVID-19 go, this can’t be surpassed.

The police claimed the vehicle turned over because the ‘tired’ driver tried swerved away to save a herd of cows. God bless him. Running over a cow could possibly have meant a different headline. Anyway, I remain in hope we will soon hear the transmission system of that vertiginous vehicle was made in China. That will make it a perfect encounter.

Encounter killings aren’t new in India. Yet this week was remarkable. Almost everyone predicted Dubey and his associates will be killed in encounters. And we counted them down while the police filled us with stories of the encounters. The public response to the killings has been unsurprising. The ‘nationalists’ view these as a form of speedy justice that the due process of law won’t guarantee. Their argument is these gangsters deserved what they got. So, what’s to complain? The ‘liberals’ are aghast at the vigilantism of the state. This is a slippery slope, they warn. And then there are those who wonder what dark secrets about the establishment did Dubey and his gang carry with them to their graves.

This sordid saga can be looked at from multiple perspectives. We are interested in two. First, the nature of the relationship between criminals and politicians in India. How do we understand it?

Second, the increasing allure of retributive justice in our society. What confers legitimacy to retributive justice and what are its constraints?

1. A Theory For Criminals In Politics

Let’s paint a picture of the Indian state in broad strokes. Like all states, it has a legitimate monopoly over violence, and it uses it to manage law and order, among other things. India is a poor country and for most of its citizens the state is also the ultimate provider of resources and services. The Indian state is large in its remit and in its ambition but ineffective in translating them to actions. On paper, it has a lot of responsibilities but in reality it doesn’t have resources to discharge them.

There are three kinds of state behaviour that sets the ground for criminality.

One, the absence of the state. This is quite common in India where the state has low capacity but high ambition. In many interior parts of India, the state can’t fulfil its responsibility of providing law and order. Also, its role as the ultimate provider of resources and services is compromised by vested groups who coral them. In the absence of the state, a local enforcer takes over. This enforcer represents the interests of specific dominant group (mostly a caste), captures the resources of the state and becomes the quasi-state in the region. But this capture of the state is not without ‘contestation’ from other groups. This leads to a cycle of crimes resulting in consolidation of power or a fragile peace between the groups.

The politicians find these enforcers useful because they hold sway over voting blocs. In a ‘first past the post’ electoral system with multiple parties in fray where a 30-35 per cent vote share is adequate to win a seat, these enforcers can swing the elections. In the 80s as the hegemony of the Congress weakened, many enforcers cut out the middleman (politician) and jumped into the electoral fray. The growth in Indian economy meant they got richer by capturing government contracts and branching out to other businesses. Over time they had money, muscle power and their loyal caste base – an unbeatable electoral combination.

This model has been replicated across India with minor differences. In regions where Indian state has been able to make deeper inroads, the enforcer has become less a criminal and more a businessman. This applies to the more prosperous states in southern and western India. In the Hindi heartland, it is still the wild west.

Two, the unwarranted interventions of the state with unintended consequences. Think prohibition, bad real estate or tenancy laws, high import tariffs, misclassification of resources like water and coal as public goods and more. Each of these leads to the emergence of powerful mafia that helps citizens circumvent these bad laws. The list of liquor dons, smugglers, water or coal mafia and real estate goons is long in Indian cities. Since corporate political funding in India was banned for a long time, these criminals funded politicians in return for patronage. Over time, they morphed themselves into businessmen and joined political parties.

Three, the absolutist state. This is where the citizens have allowed the state to have unlimited power over them on ideological grounds. The ideology could be political, religious or something contrived. The agents of the state have a free run and often turn into criminals. This is the worst form of criminality in politics. Barring a couple of years of emergency, India has not seen absolute state control. But there is a divide that’s emerging where every issue is seen through a partisan political lens. The priority in framing any narrative is not the merits of a position but how it will help strengthen a political ideology or the other. The debate on the killing of Dubey is an example of this framing. Turkey, Hungary, Philippines and Brazil have seen more egregious versions of this play out in their polity. The institutional strengths of these countries have been no match to this capture. US and UK are in the midst of this battle where the civil society is holding out. We should keep an eye out for any ideological capture.

A Looming Threat

The Indian state brought criminality in politics upon itself through its absence or injudicious interventions. The saga of Dubey’s rise and his death is another instance of this. The solution to this is in narrowing the scope of the state and making it stronger and effective within that. But we aren’t heading towards that solution. The consensus being manufactured justifying Dubey’s extra-judicial killing and the ease with which it is being accepted by people portends the start of the third kind of criminality. We will have agents of the state turning criminals because they have absolute power and the moral sanction of the public. This is dangerous. History has shown it singes everyone. The guilty and the innocent.

This shouldn’t go unchallenged.

2. Retribution Is Not Revenge

There’s an intuitive appeal to the notion of retributive justice. Someone commits a crime. They inflict pain on others without their consent. So, they need to be punished. This is easy to understand. There are philosophical disagreements over this though. There are other theories of punishment that focus on deterrence or incapacitation. But they have moral problems in them too. For instance, deterrence justifies using people as means for a larger good. This is the notion of punishing someone to set an example to others. This goes against Kantian categorical imperative or the supreme principle of morality. Others find retributive justice puzzling. H.L.A. Hart, the famous British legal philosopher, once termed it as a ‘mysterious piece of moral alchemy in which the combination of two evils of moral wickedness and suffering are transmuted into good.’

Kant believed the law of retribution or jus talionis is the only way to determine the appropriate degree of punishment. The three claims of jus talionis are:

  1. Punishment is justified only if it is deserved
  2. It is deserved only if the person has voluntarily done a wrong (that which is being punished)
  3. The severity of punishment is proportionate to the severity of wrongdoing

Among the most convincing arguments made in favour of retributive justice was Herbert Morris’ appeal to fairness. Morris states that for us to live in a society and derive benefits from it, we must accept certain limits on our behaviour. If a person fails to exercise this restraint, he abandons a burden of constraint that others have taken upon themselves. In this way, he gains an ‘unfair’ advantage that others don’t have. This advantage must be squared through a punishment.

The two questions that follow then are – who should be the punisher and what should be the quantum of punishment?

The State As The Punisher

In the state of nature, the victim should be punishing the wrongdoer. This has many problems. The criminal might not be accessible to the victim to inflict punishment. Not all victims may also be in a position to punish. This world is matsyanyaaya, your ability to punish the wrongdoer is circumscribed by your relative power.

This is where the state steps in. Max Weber defined the state as a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory. Simply put, people transfer their right to the use of physical force to the state to earn justice. The state build institutions to use this legitimate force. The institutions include the parliament to draft laws, the judiciary to determine guilt and the police to enforce law. These institutions provide the victim with the access to the wrongdoer, to argue for their punishment and the courts decide on the quantum of punishment based on precedence, written laws and jurisprudence.

The severity of punishment should be proportional to the gravity of the wrong. The gravity of wrong can be tempered by factors like intentions, first-time offence, extenuating circumstances or background. The scale of punishment is set with a few cardinal bands marked for certain kind of crimes and then building an ordinal proportional scale between them. The state sets these laws.

The Fault In Our Encounters

Now, let’s view the reactions to encounter killings from this perspective.

  1. The citizens of India have transferred their right to use physical force to the state. This is important for people who argue – what about the rights of those eight policemen killed? The state has all the powers, physical and moral, to exact retributive justice. The system is designed for this. The state as a punisher has defined the norms for the use of this force to ensure it doesn’t turn into a predator. This protects the ordinary, innocent citizens from the unbridled power of the state. These norms include the process for framing of charges, identifying the accessaries, proving guilt and delivering punishment. The state doesn’t have any right to pick and choose among these responsibilities. Any compromise in this chain of checks and balances runs the risk of the state inflicting violence on the innocent. The encounter killings are acts of bad faith by the state because they violate this.
  2. The institutions of the state work in tandem to deliver retributive justice. One arm of state can’t blame another for laxity and strike out on their own. So, the police can’t implicitly blame the judiciary for delays in delivering justice. The failure is collective. In any case, judicial delays aren’t the reasons why criminals like Dubey weren’t behind bars. We have seen the state keep people in detention for long when it has so desired. The state has to find solutions to its problems. The state can’t externalise its failures and plead its hands are tied.
  3. Retributive justice of the state is important to curb vigilantism in society. In its absence, vigilante groups would deliver justice without following any checks and disproportionate to the quantum of offence. When the state abandons due process, it becomes a private vigilante group exacting revenge. This can trigger a cycle of retribution and encourage vigilantism among other private groups. There’s also the risk of criminals escalating violence against the state because there’s a huge ‘dis-incentive’ to surrendering to the state. This will lead to more lawlessness in society hurting ordinary citizens.

Know The Difference

The ‘celebration’ of encounter killings by sections of society and the media lets the state get away with its failures to deliver justice. The multiple holes in the story of the police suggest the state isn’t even making a pretense now to hide its failures. In a perverse way, it has turned this failure into its success by playing to the gallery. Retributive justice shouldn’t turn into revenge orchestrated by the state. The long-term repercussions of this kind of revenge will be terrible for society.

As George Fletcher wrote about retributivism in Rethinking Criminal Law: “It is not to be identified with vengeance or revenge, any more than love is to be identified with lust”.

It is critical we know the difference.

Read the full edition here.

Disclaimer: Views expressed on Anticipating the Unintended are those of the authors’ and do not represent Takshashila Institution’s recommendations.