What we have in India is a vicious cycle of public frustration – where every calamity is followed by a criminal investigation that rarely fixes guilt, let alone the ecosystem
Kolkata flyover collapse, March 31. Credit: Reuters
Two unconnected events in the recent past have grave policy implications for how we respond to public disasters and yet there has been little discussion among policymakers on the subject. On the afternoon of March 31, a flyover collapsed in Kolkata, killing at least 26 people. Among the first official reactions to this event was the arrest of some of the the key managerial personnel of the company in charge of the the flyover construction. On the early morning of April 10, an unauthorised temple fireworks display in Kollam resulted in an explosion and at least 113 died. A number of the temple authorities were arrested by the police.
Both incidents, although different from each other, were met with the same response: a prosecution under the culpable homicide provisions of the Indian Penal Code, with the accused facing long jail sentences,, if convicted. Most people would believe accountability requires that criminal action be taken against the suspected perpetrators. However, we must be extremely vigilant when criminal law is being used as an answer to the ills of a legal system. Not only does criminal law, by its very nature, tend to assign blame and impose a punishment on those identified as blameworthy, it requires diligent investigation and a rigorous prosecution, both of which are usually missing in Indian legal actions. More often than not, criminal cases meander on and are never resolved.
Civil society oversight: an alternative to criminal punishment
It is time Indian public policy began searching for alternatives to criminal sanctions. One such alternative, only the bare outlines of which I can point out here, is not meant to replace entirely the mechanism of criminal sanctions. In some egregious instances, criminal sanctions are necessary in order to deter future conduct of the same kind. But the focus on criminal sanctions is preventing us from using our imagination to address public disasters appropriately. We are living today in the golden age of criminalisation, where every public policy problem is countered with more stringent criminal punishment on the books. However, the abysmal record of criminal law must give us pause before we embrace it.
We must include, through legislation at both the state and Central level, civil society oversight over public regulation and public projects. Unfortunately, we do not have a record of civic participation in political life in our country. The only example we ever had was the jury system, and even that was disbanded in the fifties. There must be a civic oversight committee for every major public regulation (police, traffic, sanitation, housing development) as well as major public works (rail, flyovers, metro stations). These civic oversight bodies must consist of people from all walks of life. They must ideally be from outside the localities in which they are asked to serve, to ensure independence, and they must be of unimpeachable character. Systems must be put in place such that these persons’ careers are actually benefitted by their public services. There are complex problems of selection and incentivising committed and honest people to join but these problems are not so unsurmountable so as to abandon the project altogether.
After every major accident, public hearings must be held, which should be conducted by a body that consists of civic oversight personnel assigned to that area and assisted by technical experts appointed by the government. Public hearings are important, not to assign blame and impose punishment, which only a democratically elected executive and their delegates can do, but to understand the facts and suggest solutions to the consequent humanitarian problems, and oversee any relief efforts that are needed to restore normalcy.
Both the US and the UK use public hearings as a mechanism to address issues of concern to the public. For example, the Lehman Brothers collapse and the accompanying financial meltdown in the US was followed by a series of Congressional public hearings that asked tough questions of the chief executive officers at all the major banks. Similarly, in the wake of the telephone hacking scandal at News of the World, the home affairs committee of the UK parliament held a series of public hearings that sharply questioned police authorities on their inadequate investigation of the case.
Public hearings, memorialised in publicly accessible documents, serve as an important mobiliser of public opinion as well as a record of facts that can be relied on by government authorities including the police. However, public hearings in the UK and the US were held by politicians and were public only in the sense that the hearings were held in the open and televised, and were conducted by elected representatives. I argue for a much deeper engagement from the public, heralding an era in which civic participation is institutionalised rather than ad hoc, direct rather than indirect (through representatives).
What I have stated might be termed as utopian and woolly-headed on the one hand, because people allegedly do not change their behaviour without sanctions, and unjust on the other, because the focus in my suggested alternative is not on retributive or corrective justice but on reconciliation and rehabilitation. These challenges to my alternative are really challenges to a way of thinking about justice that eschews blame and punishment as the primary drivers of human behaviour. One of the urgent objectives of public policy in India is to build a jurisprudence that does not rely excessively on sanctions to regulate behaviour.
What we have in India today is a vicious cycle of public frustration, where every calamity is followed by a criminal investigation, but with the full knowledge of all persons involved – the victims, the government and the alleged offenders – that no resolution of any substance is likely to take place. Neither are the alleged perpetrators brought to book promptly, nor are the victims provided with adequate recompense. The present system, which follows mainstream public policy responses to public disasters, fails on its own terms. We have nothing to lose, indeed we have much to gain, if we experiment with alternate responses to public disasters.
Nigam Nuggehalli teaches at the School of Policy and Governance at Azim Premji University, Bangalore