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Protecting the Harassed and the Harasser

19 Jul

The Supreme Court recently passed a controversial judgment condemning ‘automatic’ arrests by police in dowry harassment cases against husbands and in-laws. The judgment has received a mixed response. While its supporters praise the Court’s strong statement against misuse of this law by women, others raise concerns over the rights and safety of victim women. While the Court rightly asks for the correct implementation of criminal procedures to avoid harassment by misuse of law, its lack of a simultaneous emphasis on the need for protection of women is problematic.

The judgment speaks of the duties of police officers while making arrests and applies to cases beyond the context of cruelty against women. Thus, one way to understand the ratio of the judgment is to look at it as a criminal procedure case divorced from its gender context. The Court merely reminds police officers of their duty under the Criminal Procedure Code (Cr.P.C.) to exercise discretion while arresting even in non-bailable and cognizable offences and to do away with the attitude “to arrest first and then proceed with the rest”. Instead of mechanically making arrests on receiving an allegation, the police should first arrive at a reasonable satisfaction as to the genuineness of the allegation based on some investigation. Under the Cr.P.C., for offences with punishment of seven or less years, like the provision on cruelty in dispute here, the police can arrest without a warrant only when it is satisfied that arrest is necessary for reasons such as preventing tampering with evidence, preventing threat to witnesses, and preventing commission of further offence. An absolute non-exercise of discretion, whether by mechanically arresting or not arresting, is problematic and may cause unnecessary harassment and humiliation to the arrested person. The judgment requires police officers to forward to the Magistrate not only their reasons for arrest, but also reasons for their decision not to arrest, in the latter case within two weeks from the date of institution of the case. Failure to follow these guidelines may render police officers liable for both departmental action and contempt of court proceedings.

While the operative part of the judgment is written largely in such criminal jurisprudence terms, presenting the judgment in this gender-neutral manner will rob it of its true context and hide its possible implications. Even while the direction is to police officers, the Court is more concerned about harassment by “disgruntled wives” than by the police. The Court emphasizes how women are misusing the criminal provision that was intended to protect them from cruelty by husbands or his relatives, and causing harassment through arrests not only of the husband, but also his old or distant relatives, whether male or female. The Court also notes that marriage is a revered institution in India and seems to lament the increase in matrimonial disputes in the country.

The exclusive focus on misuse instead of use of the provision makes the apparently harmless verdict reiterating the criminal procedural law a questionable and unbalanced one. While the misuse of anti-dowry provisions may be common, but even more widespread is the incidence of dowry-related violence. In its attempt to “maintain a balance between individual liberty and societal order”, the Court totally ignores the concerns of women who may actually be victims of harassment. Patriarchal norms normalizing domestic violence, lack of support for women who fight against such violence and the private domain within which the abuse takes place already make legal remedies difficult to access for many women. In this context, valid concerns were raised around the judgment’s implications for a woman deciding whether or not to use criminal law to her rescue and for the safety of a woman who decides to use criminal law but is not able to procure arrest of the accused persons.

There is a need to take on board concerns both regarding protection of women from domestic violence and regarding harassment caused by arrests of falsely accused persons. While the Supreme Court takes care of the latter, it ignores the former. As a matter of fact, the law already provides this protection in the form of the Domestic Violence Act (DVA). The definition of “domestic violence” under the Act covers physical, mental and economic abuse and includes violence related to dowry demands. It further places a duty on a police officer who receives a complaint of domestic violence to inform the aggrieved woman of her rights to receive protection under the DVA. Thus, even where the police may not arrest the accused persons immediately, they may still assist the complainant woman to use the DVA machinery and seek protection and other reliefs.

While the Court reiterates Cr.P.C. provisions to curtail harassment by misuse of dowry laws, it surprisingly misses out a mention of DVA that can simultaneously be used to provide protection to abused women. The police officers need to be reminded of their duty under both these laws. One can hope that this slip by the apex Court will not result in dilution of the actual exercise of their duty under the other law.

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When Sex is not Rape

9 Dec

In October this year, an additional sessions judge in Delhi pronounced a controversial judgment in a rape case involving sexual intercourse between a man and a woman after they informally performed certain marriage-related ceremonies without getting legally married. This post reflects upon the judgment and highlights certain ironies that flow out from the ideology behind this judgment as well as the Indian law that allows marital rape.

In this case, the accused man had applied vermillion over the 24-year-old woman’s forehead and declared themselves as married, after which she consented to sexual intercourse with him. They also went to Jammu for court marriage but the marriage had not been solemnized yet. The judge held that she was a mature woman who should have known that mere performance of certain ceremonies does not suffice to constitute a valid marriage. He also expressed his disturbance at the trend of complaint of rape on false assurance of marriage by girls who consensually engage in sexual intercourse after the performance of some marriage-related ceremonies. The judge remarked that these are mature women who voluntarily elope with their lovers for bodily pleasure and fabricate the story of kidnap and rape to escape harsh treatment from their parents. It is difficult to believe that such women, even if they may belong to rural areas, do not understand what constitutes a valid marriage and are misled by performance of some rites and ceremonies by men. Such complaints trivialize the offence of rape. He also remarked that “girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape.”

While many have criticized this judgment, comments posted below the online news report show that the judgment has also been hailed as correct by many people.

Both the Indian Supreme Court (see Deepak Gulati v. State of Haryana, 20 May 2013) and the Delhi High Court (see Abhishek Jain v. State,7 June 2013) have held that sexual intercourse on false promise of marriage amounts to rape. This case involves not merely a promise to marry, but overt acts clearly indicating the intention of the man to marry the woman. It of course needs to be established that the woman’s consent was obtained on the false promise of marriage and there were no subsequent events as a result of which the marriage did not take place, although the intention to marry was present. The judge and the comments that accuse the woman of misusing the law need to worry about the meaning of free consent. This is not a case where a woman forced a man to marry her after she realized the moral consequences of having sexual intercourse without marriage, and then filed a complaint of rape when he refused marriage. If this was such a case, then why did the man perform the drama of putting vermillion and going to court for court marriage? After declaring them as married, why did he later refuse to accept the woman as his wife? Even though performance of some ceremonies does not constitute a legal marriage, such conduct does indicate expression of intention to marry. And if this promise of marriage was falsely made with the sole intention of having sexual intercourse, the conduct does amount to rape as per Indian law.

This judgment reflects the attitude of a society that blames women for rape, even where the man knowingly commits fraud. The judgment also reflects the tendency to understand rape only as ‘stranger rape’, where an unknown man forcefully assaults a woman who tried to physically resist him but was overcome. A number of reports indicate that most rapes are committed by known men. There is a need to understand the notions of passive submission and wrongfully obtained (even if not physically forcefully obtained) consent.

There are two further ironies that flow from this judgment.

First, the judgment recognises the agency of women where it was missing, but undermines agency where it should have been recognized. Recent developments in feminism have asked for the recognition of agency or autonomy of women and have argued against treating women as passive victims of male domination. In this judgment, by claiming that the woman is mature enough to understand the meaning of marriage the judge recognises the agency of a woman and refrains from treating her as a helpless victim of male domination. At the same time, the judgment preaches women not to have sex before marriage, thus denying them sexual autonomy. Thus, the judgment seems to be giving agency to women for the purpose of depriving a legally available benefit, but not actually providing liberty or any benefit. This is not how the agency discourse should work—viewing agency where there was probably none or very limited, and denying it where it is required to enhance individual liberty.

Second, the judgment, coupled with the Indian law that continues to condone marital rape, leaves women in an awkward position legally. In this case, the woman filed a rape complaint after the man refused to recognize her as his wife. Thus, where sexual intercourse takes place after performance of some informal ceremonies, the judge put the blame on the woman, holding her responsible for her actions, stating that she should know what a valid marriage is, and admonishing her for making false allegations of rape against the man. However, in case a woman is able to prove that the man did in fact marry her by performing these ceremonies, the man then becomes legally absolved from all allegations of rape, since marital rape is not considered a crime. This makes the promise or actual performance of marriage irrelevant, leaving the woman in both cases without any remedy.

In times where we are trying to establish the law on conduct such as sexual harassment and provide legal space to nuanced concepts like ‘a hostile work environment’, it is deplorable that we haven’t even got the basics of a patently grave crime like rape right.

The Minority Vote

2 Sep

This post is a reaction to media reports and analyses that look at the population size of various minority groups and anticipate how it may affect the political outcome in elections. In India, the Modi-Gandhi face-off has led media to calculate Hindu-Muslim ratios in various states and accordingly predict the result of the upcoming elections in 2014. With respect to UK, it was recently reported that ethnic minorities, especially Indians, can significantly affect election results. The need to reach out to the growing population of Asian-American voters was similarly felt in the US. These reports highlight the need for politicians to connect with the minorities to woo voters from minority groups.

My difficulty with such analyses is that they sometimes tend to treat minorities as a homogenous class and are disrespectful of their autonomy. They treat minority groups as a uniform group of voters whose interest lies only in specific issues that interest them, like racial equality or secularism. There seems to be an underlying presumption that other political issues like the economy or foreign policy or healthcare or corruption are not of much concern to them. If minority groups form a sizeable part of the voting population, it is in fact ironic that these other issues will not attract them. Equality is offered as the candy that will lure all minorities. Such reporting may also somewhere sub-consciously affect actual voting, by presenting members of minority groups as part of a broader alliance who must vote for a particular party in order to prove themselves to be loyal members of their group.

In different ways, these reports also tend to both recognize and undermine the autonomy of the majority group. On one hand, they seem to recognize that majority voters are likely to evaluate different issues, policy choices and political promises offered to them, and vote accordingly. Unlike the homogenous minority group, a majority voter might be rich, poor, capitalist, socialist, conservative, and so on. Whether the political party’s orientation is in line with the voter’s ideology and demands is what is likely to determine the outcome in case of the majority voter. However, on the other hand, such reports may present the majority as a group unaffected by the issue of equality. It is assumed that political concerns of the minorities are of no concern to the majority.

Such analyses do tend to direct the attention of political parties and people to important and legitimate concerns of minority groups, especially regarding equality. But equality as an issue should not be treated as an exclusive concern of the minorities in a nation. Further, what about groups that form an insubstantial minority in a country so as to not have sufficient voting power? Should equality for these actual ‘minorities’ be of no concern to the nation? For example, Indian politics seems to be dominated by the majority (Hindus), and the majority within the minorities (Muslims), without much space available to persons following other religions like Christians, Parsis, Sikhs (often clubbed with the Hindus, along with Jains and Buddhists) or Jews.

There is a need to shift focus from identity to issue. Identities may help reveal issues. But addressing issues should be the end, not alluring identities. It can be said that this is how politics works. But at least the media and analysts can try not to present this as legitimate and unproblematic. If offering baits to different groups works in reality, then instead of encouraging this trend and presenting it as a legitimate way of running the polity, we should seek and highlight better ways to make our democracy function.

Mumbai Dance Bar Ban: Differing Perspectives

30 Jul

In 2005, the Government of Maharashtra banned dance performances in eating houses, permit rooms and beer bars through an amendment in the Bombay Police Act, 1951. The ban was recently struck down both by the High Court of Bombay and the Supreme Court of India as unconstitutional.

The High Court and the Supreme Court held the ban to be violative of Article 14 (right to equality) and Article 19(1)(g) (right to practice any profession or occupation). The courts observed that the amendment unreasonably prohibited dance performances in some establishments while permitting them in other establishments like hotels starred three and above. This classification seems to be based on elitist presumptions about the morality of people with lesser incomes and was held to be violating the right to equality. The courts also noted that the prohibition on dancing forced many establishments to shut down and rendered many women workers unemployed. Contrary to its purpose, the law forced many dancers to take up prostitution to earn their living. Thus, the law infringed upon the guarantee under Article 19(1)(g). Now, the state of Maharashtra is likely to revert to the licensing system for regulation of dance bars.

Below, I try to put the debate around prohibiting/regulating dance bars within the framework of various broader perspectives, not necessarily drawn from the judgments, which might help in a better analysis of this debate. My purpose is not to give a definite answer on this issue, but to separate and present the differing strands that get implicated here. Here are the different arguments:

Morality: Dances in beer bars and similar places are obscene and vulgar. They not only degrade women, but also lead to an increase in other immoral activities like prostitution and alcoholism. It can be said this argument belongs to the ‘Conservatives’, though I am wary of using this classification as our prejudices against being a ‘conservative’ may prevent us from fairly appreciating the merits of the argument.

Equality: Performances in dance bars are derogatory to women because they commodity and objectify women. They also often involve minor girls who are trafficked, exploited and forced into dancing in bars. This view is likely to be advocated most strongly by radical feminists who find the root of sex inequality in sexual exploitation of women and argue also against prostitution and pornography on these grounds. They deny that women choose these occupations with their ‘free consent’. This argument opposes bar dancing as being degrading to women not for reasons of protection of public morality, but due to concern for equality of women.

Practical offshoots: Allowing dance bars to flourish may enhance the occurrence of other undesirable activities or hinder implementation of other laws. For example, dance bars are seen as hubs of prostitution and human trafficking. They increase the vulnerability of minor girls and women to sexual exploitation. They may also lead to increased alcohol addiction and related crimes. These practical concerns call for regulation or banning of dance bars.

Right to work and livelihood: All persons have the right to work which includes women’s right to dance in bars. Banning bar dancing not only took away a form of employment, but also forced many bar dancers to take up prostitution to sustain themselves and their families. The ban also forced many establishments to shut down altogether, affecting the livelihood of other workers employed there.

Autonomy: Autonomy feminists seek respect for the agency or choice of women in entering professions such as bar dance, sex work or pornography. They reject the view that women do not take up these activities with their free consent. It is paternalistic to label what is the free choice of a woman as force or exploitation.

Free expression: Dance is a form of expression and prohibition on dance performances in certain establishments is an excessive restriction on the freedom of speech and expression of bar dancers.

Elitism: Selective ban on dances of certain types or in establishments most frequented by people belonging to certain classes or having lesser incomes is based on elitist assumptions about their morality. It is assumed that similar dance performances in establishments like five star hotels do not lead to illegal or immoral activities. It may also imply greater respect for the autonomy of women dancers of a particular class while viewing other women dancers as victims of exploitation. Such bans may stem from beliefs regarding the need to regulate the conduct of certain classes of people. Based on the position on the wider debate on bar dance, this argument may advocate either across-the-board increase or across-the-board decrease in the regulation of dance bars.

This is not an exhaustive set of views on the issue of bar dancing, but I have tried to cover a wide ground. I hope this puts the debate in a wider perspective and helps us avoid conflating the different arguments when responding to the debate.

US v. Windsor: A Case for Same-Sex Marriages?

9 Jul

The US Supreme Court recently gave a landmark decision in US v. Windsor holding Section 3 of the Defense of Marriage Act, 1996 (DOMA), which defines “marriage” as excluding same-sex unions, unconstitutional. Here’s a quick summary of the judgment. The full 77-page judgment is available here. The decision also contains some lessons for the treatment of homosexual conduct in India, as this post highlights at the end.

Background
The case began with a tax dispute. Two women residents of New York, Edith Windsor and Thea Spyer, got married in Ontario, Canada in 2007. Their marriage was recognized in the state of New York. Spyer died in 2009 leaving her entire estate to Windsor. Windsor paid $3,63,053 as estate taxes but claimed a refund seeking federal estate tax exemption for surviving spouses. This is where the controversial legislation DOMA steps in. Because DOMA excludes same-sex partners from its definition of “marriage” and “spouse”, the tax refund was denied. Thereafter Windsor challenged the constitutionality of DOMA.

Judgment
The District Court, the Court of Appeals as well as the Supreme Court declared Section 3 of DOMA unconstitutional. In a 5:4 majority decision, the US Supreme Court held DOMA as violative of the Fifth Amendment of the US Constitution. While the judgment also involved jurisdictional issues, I will deal only with the judgment on merits here.

The majority court noted that regulation of marriage has historically been within the authority of states. DOMA departs from the tradition of federal government deferring to this state authority. Although the statute does not prevent states from enacting laws allowing or providing benefits to same-sex marriages, DOMA holds a wide reach and extent by laying down a comprehensive definition of marriage for purposes of all federal laws. It affects over 1000 federal laws on various aspects involving marital status including social security, housing, taxes, crimi¬nal sanctions, copyright and veterans’ benefits.

The state of New York, by allowing same-sex marriages, confers dignity and protection on same-sex couples to enjoy their liberty. But the federal government has imposed restrictions and disabilities on them through DOMA. Fifth Amendment’s Due Process Clause protects liberty, which includes equal protection of laws. DOMA singles out and injures and degrades the very class of persons that the state considers entitled to recognition and protection, violating basic due process and equal protection principles.

The court observed that both purpose and effect of DOMA are to impose disadvantage, inferior status and stigma upon same-sex couples, whose marriage has been recognized by the state. Looking at the legislative history and title of DOMA, the majority noted that it is based on moral disapproval of homosexuality and aims to defend the heterosexual marriage institution. Further, the purpose of DOMA was to discourage state laws allowing same-sex marriages and to restrict the freedom and choice of lawful same-sex couples. DOMA treats same-sex unions deemed lawful by states as second-class marriages and also humiliates the children raised in same-sex unions. The majority concluded that the principal purpose and effect of DOMA are to impose inequality. And no legitimate objective overcomes this purpose and effect.

Thus, the court held that Section 3 of DOMA violates Fifth Amendment of the US Constitution. Notably, the court explicitly denied deciding whether DOMA’s intrusion violates the principle of federalism. The majority also cautioned that the judgment is confined to same-sex marriages that have been recognized as lawful by a state.

Dissents

Four of the nine Justices expressed their dissents and held that DOMA is constitutional. The major points of dissent from the separate dissenting opinions are summarized here.

The judges pointed out that it is not clear what the majority’s conclusion of unconstitutionality is based on. There are three possibilities:

(1) Federalism. While the majority does refer to federal government’s departure from deferring to state authority, it itself denies basing its judgment on the grounds of violation of federalism.

(2) Equal Protection. If the decision is based on the violation of equal protection principle, the court has failed to address the basic issue of the level of scrutiny that must be applied to laws against same-sex unions. US equality jurisprudence provides three levels of scrutiny (strict, intermediate and rational-basis) that courts may apply to test the constitutionality of laws. The majority does not seem to apply any of these. Further, the court fails to appreciate the legitimate governmental interests behind this statute in ensuring stability and uniformity in the definition of marriage for the purposes of federal laws, especially in the presence of varying state laws on the status of same-sex unions. Relying on the title of the Act and snippets of legislative history, the majority strikes down the law based solely on its opinion of illicit legislative motive of harming a class of persons.

(3) Liberty and Due Process. The majority held that DOMA deprives liberty and violates basic due process principles. This suggests that the court used substantive due process, which protects rights and liberties deeply rooted in American history and tradition. The court did not assert that right to same-sex marriage is one such right. There is no constitutional right to same-sex marriages. Thus, this is a claim for recognition of new right from the judiciary, and deserves certain judicial restraint.

The dissenting opinions also highlight how this decision acts as a judicial invasion of democracy. The Constitution does not choose between opposing views on the institution of marriage. The dispute over same-sex marriages should be democratically decided by the people, acting through their elected representatives at state and federal levels, and not the court. The court casts the supporters of the traditional institution of marriage as bigots, wrongfully appropriating an important public policy debate.

Position in India
US v. Windsor inevitably reminds India of the pending decision from the Indian Supreme Court on an appeal against the Delhi High Court decision in Naz Foundation case. But there are important distinctions between the two disputes. The Naz judgment held unconstitutional Section 377 of the Indian Penal Code (IPC) that criminalized consensual sexual conduct between same-sex adults, appeal against which is pending before Supreme Court. There is a difference between homosexuality as an identity, homosexual conduct that IPC criminalized and same-sex marriages. The issue of same-sex marriage is yet to be dealt with by Indian courts.

While decriminalization may be an easier issue than same-sex marriages as it spares decision on questions on the institution of marriage, the Naz judgment does seem to be much more legally and constitutionally grounded that the majority opinion in US v. Windsor. Perhaps a bit more nuanced analysis could have at least saved the majority from dissenting Justice Scalia’s remark of the court’s opinion being just “nonspecific hand-waving”.

Legalizing Betting in Sports: Some Reflections on Law Making (Part II)

13 Jun

In my previous post, I looked at the recent proposal to legalize betting in sports in India and reflected upon the question of the moral authority of the state to ban conduct such as betting. In this post, I examine some of the justifications offered for the non-implementation of betting laws and the impact of legalization of betting on fixing.

Even as the recent IPL scandal has exposed intricate links between fixing and betting, a solution to betting is being proposed as a solution to fixing. There is a difference between fixing and betting. I don’t think anyone would support legalized or regulated fixing. Fixing is deplorable; it turns a match to a scripted episode, denies honest players a chance to win (or lose) a game on their effort (or the lack of it), and undermines the faith the fans repose in the game and the players. However, legalization of betting in sports is being seen as one of the solutions to mitigate the practice of fixing.

There are mixed reactions to this proposal. On one hand, it seems that betting causes fixing, because bookies are willing to pay players and fix the game to make substantial profits by changing the odds in their favour and winning bets. On the other hand, it is argued that legalization will help monitor the conduct of bookies, take betting away from criminals to financed bookies who have incentive to report corruption, and provide regulatory authorities with a data source to rely on when investigating cases of suspicious bets and fixing. It is also argued that the law should allow regulated betting rather than waste resources imposing a blanket ban which, in any case, is impossible to implement fully. Whether legalization of betting will actually help check fixing or not is debatable. It is argued by some that such experiments in the past have not worked, for example, fixing exists in football even in countries where betting is legal, and spot fixing occurred in cricket in England in 2010 involving Pakistani players, although betting is legal in England.

Here, I do not want to pronounce upon whether a betting ban is in fact impossible to implement and whether legalization will actually help control instances of spot fixing and match fixing. What I do want to reflect upon is whether obedience to a law (i.e. whether a law is generally followed by people) should be a valid ground to repeal or change the law? Assuming these justifications are in fact correct, should that be a good reason to legalize betting? There are two aspects of this argument involved here: one, betting laws themselves are incapable of being fully enforced; and two, legalization of betting will make another law (anti-fixing law) more efficacious.

Enforcing Laws on betting

Let us begin with the first aspect. I believe that the argument in favour of changing betting laws due to their non-enforceability has been received quite comfortably and without much challenge. Similar arguments to legalize conduct because of the perceived difficulty in  implementing them have been made in other areas like prostitution and illegal migration. In India, many laws remain unenforced and many crimes happen despite strict criminal laws. I don’t believe anyone would argue that we should, for instance, legalize rape just because rapes will anyway continue to occur. What about anti-piracy measures under copyright laws?

Of course, no one is so naïve as to argue for legalization on the sole ground that implementation is not possible. However, we need to examine if this should be a ground at all. I feel there is some laziness involved in making the argument to change laws just because they are not being implemented. Questions on legalization of prostitution vis-a-vis rape has got nothing to do with implementation, but about substantive questions about what we consider legal and illegal. I am not saying that the consideration of actual enforcement of a law is irrelevant to law making. However, by itself, inefficacy and non-implementation are not the grounds to change a law.

Other considerations

So what are these other considerations? At first, we need to examine if a law is actually ‘impossible’ to enforce. Many laws may be easy to make but difficult to implement. Is the question really about the difficulty of enforcement or the inadequacy of our enforcement mechanisms? Road traffic laws may be ‘impossible’ to fully implement, but when they are strictly and correctly enforced by concerned authorities through fines and other penalties, these laws may become more efficacious.

Legal philosopher Hans Kelsen has a fascinating point of view on this. He states that the validity of a law is not conditional on the law being efficacious. In fact, according to him, if a norm is anyway followed by all, then the enactment of the very law is meaningless. This indicates that some discord between the law and reality is bound to exist. We may think of ways to make existing enforcement mechanisms better or consider adopting different enforcement mechanisms, without changing the substantive law.

Non-efficacy may help us question some more substantive aspects as well. We may look at the ‘mischief’ that the law seeks to remedy and reconsider if we really do want to regulate that ‘mischief’. For example, in my previous post I considered whether the state should criminalize victimless conducts like betting. If yes, what is the best way to address the mischief—stricter criminal laws as was done in recent amendments on rape laws, or decriminalization coupled with regulation as is being argued in the case of betting? If majority of people are disobeying a law, it might be a good ground to examine our motives and strategies, but not by itself to change the law.

We also need to consider some of the ‘side-effects’ of existing laws. Arguments for relaxation in betting (and prostitution and migration) laws involve not only the continuation of the banned conduct, but also that these laws drive illegal conduct underground, furthering the mischief. Drawing from Justice O.W. Holmes’ Bad Man theory, instead of eradicating the evil, the law may instead drive the bad man to engage in it more clandestinely, causing greater harm.

This brings us to the second aspect that legalization of betting will help address the bigger problem of fixing. The argument is to decriminalize one conduct to check another crime, probably a higher evil (like relaxed migration laws may help reduce vulnerability of migrants to exploitation and forced prostitution). Again, rather than treating this as a ground for legalization itself, there is a need to examine the motives and regulation strategies of the conduct sought to be legalized. There is also a need to examine the strategies being used to counter the higher evil, in this case, fixing. What other possible strategy may prevent a ‘bad man’ from engaging in a wrongful conduct? If the motives behind criminalizing the lesser evil are justified, the improved efficacy of the other law cannot by itself be a ground for decriminalization.

Thus, while concerns around efficacy and non-implementation are valid, we need to use these concerns to question and address the more significant issues. If the real problem lies elsewhere, we must not lazily use these as excuses to change the law.

Legalizing Betting in Sports: Some Reflections on Law Making (Part I)

4 Jun

The recent IPL betting and fixing scandal has brought shame on the country and the sport. It has also got the law makers thinking about their laws and policies to check such practices. One of the solutions being offered is to legalize betting in sports in India. A complete ban on betting is often thought to be difficult to implement, and that legalization may help regulate betting instead of driving it underground. Legalization will also allow regulated betting to act as a potential source of funds, and will help reduce instances of match fixing and spot fixing.

This proposal has received mixed reactions and has both pros and cons. But there are two broader questions these recent debates evoke about our law and policy making and the way we respond to scandals such as these. Firstly, what moral authority does the state have to ban conduct such as betting? And secondly, should inefficacy of law be a valid ground to repeal or change the law? I will devote this post to the first question, and my next post on the second one shall (hopefully) follow soon.

The debate on legalization of betting raises interesting questions around the moral authority of the state to ban betting in the first place. There is no doubt that the state has legal authority to pass laws on betting. Entry 34 of the State List in the Indian Constitution allows states to make laws on betting and gambling and Entry 62 allows imposition of taxes on such luxuries. Further, Entry 40 of the Union List allows the centre to regulate lotteries. But should a state interfere in activities such as betting by criminalizing such conduct?

What could be the justifications behind criminalization of betting? Criminal law is usually invoked in cases involving a public wrong, causing a harm or threat of harm to another person. However, in case of betting, it is possible that two parties consensually enter into a betting arrangement, where one loses and the other wins, and there is no harm caused to anyone else. Some acts are criminalized based on the threat to the unity and integrity of the nation, like the offence of sedition. It is unlikely that betting poses such a risk. The state also sometimes criminalizes conduct that it perceives as immoral or which are likely to offend society’s collective morality. The law criminalizing homosexual conduct was one such law. It is debatable if betting is considered ‘immoral’ in this sense, and whether the state can or should make conduct which is immoral illegal, even if such actions are not harmful or violative of any person’s right. If betting is a ‘victimless crime’, the debate over its legalization raises interesting questions around the liberty of citizens, the government’s role in modern India and the legitimacy of the state to take decisions on behalf of the people to prohibit acts it considers undesirable.

Interestingly, the Constituent Assembly debates reveal that the insertion of the entry on betting and gambling was opposed on the ground that such insertion might lead to legalization of such activities. One of the members, Shri Lakshminarayan Sahu, argued that mention of such activities should have no place in a constitution built on the ideals of truth and non-violence practiced by Mahatama Gandhi. It was when Chairman Ambedkar clarified that insertion of the entry will in fact empower the state to prohibit such activities, that the motion to insert the entry was passed. [Constituent Assembly Debates, Volume IX, 2 September 1949].

The negative stance towards betting and some of the justifications behind its criminalization are visible in Supreme Court judgments. The court has referred to the Vedas, Mahabharat and other ancient texts to conclude that Indian law makers have always viewed gambling as a “sinful and pernicious vice”. Such practices leave people indebted and homeless, disrupt families, destroy wealth, disavow values like honesty and truth and lower the standard of living. Interestingly, there were also references to texts like that of Kautilya who would have allowed regulated gambling and enabled the state to earn revenue from it. The court has developed a distinction between games of chance and games of skill and allowed games such as horse racing and rummy to legally exist as falling in the category of games of skill. [Dr. K.R. Lakshmanan v. State Of Tamil Nadu, AIR 1996 SC 1153; State of Andhra Pradesh v. K. Satyanarayana (1968) 2 SCR 387; State of Bombay v. RMD Chamarbaugwala, AIR 1957 SC 699].

Irrespective of whether betting in cricket is a game of chance or skill, should a state prohibit even games of chance? Should it be the state’s business to criminalize activities to make sure that people spend their time and money in productive activities instead of getting addicted to wasteful acts which might have some negative effects in society? What about activities like drinking and smoking, which are perhaps more ‘harmful’ than betting, in terms of harming the person doing the act, disrupting families, increasing risk of other crimes, and are engaged in by a larger number of people. Even if it may not involve any skill, betting might be a form of private entertainment for some people.

This also raises the question whether criminal law is the proper law to regulate betting. Undesirable conduct in society can be regulated through other means such as civil law, tort law and tax law. Criminal law involves a higher level of social sanction, as opposed to others. Should betting be subject to that?

There is an implicit assumption about the illegality of betting in the Constituent Assembly Debates and the Supreme Court judgments. The recent debates on legalization of betting have also largely failed to engage with the wider questions about the state’s moral authority to ban betting. The debates have largely focused on the practicalities of implementation and the economics of regulation. The exercise of the power of the state to ban or regulate the conduct has remained unquestioned. While there is no doubt such practical concerns are significant, I find questions around the role of the state and liberty of the people more interesting. As a state, India needs to consider if it should deal with certain private acts which may have some negative offshoots for society through the medium of law, and, if yes, what will be the best legal strategy to regulate such conduct. Perhaps we should use moments of legal uncertainty and possible change such as these to engage with these larger questions on the ethics of law making in India.

My next post will deal with the second question raised above on inefficacy of laws. It is often stated that full implementation of a blanket ban on betting is impossible. It is also argued that legalization of betting will help reduce instances of the crime of fixing. My next post will examine, assuming that the state has a legitimate ground to ban betting, if these arguments would justify legalization of betting.

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