Atanu Dey On India's Development

Unfair and Unlovely

April 20, 2007 by Atanu Dey

An accident is not a crime, and a crime is not an accident. That distinction kept playing in my mind as I thought of the incident in which a drunken driver, Alistair Pereira, killed seven and injured eight pavement dwellers in Mumbai one night last November. The case against him was ruled to be one of rash driving and not one of culpable homicide by a court. Pereira was handed down a six-month prison sentence and a fine of Rs 5 lakhs (approximately US$ 11,000.)

That ruling by a lower court provoked the High Court of the state of Maharashtra to take suo moto re-examination of the case as a possible miscarriage of justice. “The HC issued notices to the state government, Pereira and relatives of the deceased and those injured, asking why the court should not examine and satisfy itself about the ‘correctness, legality and propriety of the findings, sentence and order passed during the trial,’ ” reports the Mumbai newspaper DNA. This comes as a welcome surprise to me and I applaud the action of the HC.

I agree with the conception of justice as fairness, as outlined by the Harvard philosopher John Rawls (1921—2002). Fairness must be the cornerstone of any social contract that I live under and subscribe to. “Is it fair?” is the question that would most interest me when I am evaluating any institution or situation.

When I meditate on the deaths of those poor people, and realize that it was not an accident but a crime, I am revolted by a judgment that does not even amount to a slap on a wrist for the criminal. Yes, people are involved in fatal traffic accidents. But a drunken driver killing people is not a traffic accident. To drive under the influence of alcohol is a deliberate decision. That action is more voluntary than involuntary. If that deliberate act leads to the death of innocents, the driver is guilty of murder, not involuntary manslaughter.

Six months of jail time for killing seven people? That’s not fair in my opinion. If the man had killed – or even injured – someone rich and powerful, I am sure that he would not have gotten off so lightly. But in this case, the victims were the poorest of the poor in the city of Mumbai. They slept on the streets, occasional victims of drunken driving by the rich and powerful. If I recall correctly, one movie idol of Indian cinema also had mowed down a handful of sleeping street people not too long ago. He too got away with it.

Collectively I think that the Indian society lacks a sense of fairness. I know that my claim will upset many proud Indians but no more than it upsets me to reach that conclusion. I see too many cases of oppression around for me to conclude that as a society we do not have a very well developed sense of what is fair and what is not.

What would I have ruled had I been the judge? If the prosecution had demonstrated that the driver was drunk and killed a bunch of people, I would throw the book at the criminal. And in the imaginary situation, I would imagine the book to say the following in the case of drunken drivers turned killers.

First, for every person killed, the driver gets a 20 year sentence. Second, he has to pay monetary damages that are set equal to the life-time income of an average person. Ten of the 20 years have to be served in prison and ten outside, with prison years alternating. If the killer has resources to pay for the monetary damages, they will be recovered immediately. Any shortfall in the monetary damages will be recovered from the person’s earnings during his time out of jail. After having finished the 20 years of sentence time, he will be free but his earnings will continue to make up for any shortfall in the monetary damages. The monetary damages are to go to the next of kin of the deceased.

So in the case of Alistair Pereira, since he killed 7 people, the total sentence time is set at 140 years. And total monetary damages to be around $200,000 (7 people times $700 person per year times 40 years of working life). He is wealthy and the family will be able to pay that off immediately. Alistair can then settle down to do his time in jail for the rest of his natural life. The $200,000 can go to help the families of those killed by Alistair.

I am not in favor of revenge. I don’t think that hanging Pereira is fair and just. He is responsible for the harm he caused and by killing him, the harm cannot be undone. But if he were to continue to work to repair the monetary damage at least, it would be better for society as a whole.

What I do advocate is that cases of Pereira-like killings must be prevented. How? By making people aware of that drunken driving kills; that those who kill while under the influence of alcohol will have to pay reparations and also serve mandatory jail time; and most importantly, no one is exempt from the fair application of this law.

The drunk movie star who killed the pavement dwellers some time ago provided an excellent opportunity for society to curb the incidence of drunken killing. Society should have locked that “hero” away for life, stripped him of all his assets to the last penny, and then publicized the incident and the punishment to such as extent that no one who was not totally comatose for the subsequent year would be unaware of who committed the crime, what his punishment for doing so was, and how thoroughly he paid for it. This would effectively put the fear of god into even retards and they would not dream of going near a driving wheel when they have had a few drinks.

But life is cheap in India. The guys who drive SUVs and Toyota Corollas are rich enough to buy out the law enforcement officers. The police can be bought and so can the judges. Politicians, I kid you not, can also be bought. Sorry that my cynicism is showing. But unless the people have a strong sense of fairness, there is little chance that justice will prevail in a country.

That sense of fairness, I am afraid, cannot be bought in a tube of Fair and Lovely.

  • http://desilibertarian.blogspot.com triya

    There is no incentive for the judge to slap a huge penalty. Rather his incentive is to be in the good books of the rich guy and get kickbacks in the process. The problem is during Colonization Indians became so enamoured with those in power that they fawned at their feet (to capture rents). It is the same thing that has continued even though the Brits are long gone. Justice and rule of law are so arbitrary that I can hope for neither in the courts as the common man. Even within the voluminous Constitution, there are no absolute rights. The rights of individuals in the country are dependent on their caste and religion, so it was inevitable that more relativity has creeped in through the class distinction.

  • Harsh Gupta

    “The drunk movie star who killed the pavement dwellers some time ago provided an excellent opportunity…”

    Mr. Khan should undoubtedly have been given a harsher punishment in my opinion, but to do so just because he was a public personality would have not been fair either.

    Who gave the government the right to free ride on somebody’s popularity to create (absolutely well-intentioned) deterrence?

  • http://ipatrix.com Patrix

    Well said. I’ve always believed that the one thing that stops India from being the next superpower is enforcement of law and order. If not completely, then at least as you mention to the extent of fairness.

    But do you see a solution in the short-term considering how much corruption has seeped into almost all nooks and crannies of the society and the law & order mechanism. Is there any hope to expect otherwise?

  • But Sir

    Patrix, Short term solution is F1 visa, H1B visa, B1 visa. Get the visa, leave the country, escape from such arbitrary capricious injustice. In a few generations, things will sort themselves out. By then we’ll all be dead.

  • Charul

    Atanu,

    I think your observation on the lack of sense of fairness is completely on track. While crime and accidents are big items, it’s also reflected in mundane day-to-day habits and activities. I know many people who would think nothing of getting their electricity metering or their phone metering doctored (by paying a small bribe to the meter guy) so that they can pay less for their A/C’s and international phone calls. Or consistently park your car in the wrong spot and eventually “steal” it from your neighbor who gives up in disgust. Such things abound in India. When highly educated upper middle class do this without hesitation, what can you expect from society?

    One possible reason for this inherent lack of fairness which comes to my mind (possibly the root cause) is the scarcity mentality we all grow up with. All resources are, by wide experience, scarce. So any means seem justified in capturing them. And the classic game theory implication is that if I don’t use it (or do it), someone else will. So might as well do it ….

    - C

  • Anuraag

    I am going to look at this from a completely different angle. Why are people sleeping on the streets in the very first place? This question goes to the heart of the matter. And an even more important question: What are we as a society doing about this problem?

    I am one of those who strongly believes that the government is basically incompetent to begin with. Government = Incompetent in my dictionary. That’s why we as a society get so excited when the incompetent government tries to do something that’s out of its comfort zone. So the government is not going to do anything about this. And neither should we want it to do anything.

  • Anant

    Frankly thats a rather emotional analysis. First off, this particular case had the outcome it did, not because the judge was biased but because the police put together an incredibly weak case. This is incidentally something the judge in question pointed out. So it is hardly fair to cast aspersions on the judge, at least not without any information to the contrary. In that case this is no longer a case of ‘fairness’ but rather corruption.

    Secondly, even were the police case as strong as possible, this is not murder. At the very best (or worst) you could call drunk driving and killing someone involuntary culpable homicide. And that would be stretching it since there was no intent whatsoever on the part of the accused to harm the victims.

    As for Rawls – justice as fairness is easily defined in specific contexts and this is not one of them. If I were driving drunk, and happened to swerve and smash into the pavement, but achieved nothing other than hurting myself and ruining my car, would you accuse me of murder? If not why not – the presence or absence of pavement dwellers is wholly outside my control and in both cases my crime and my intent are the same. Since clearly I would get into very little trouble and Alistair is in big trouble, how easily do you determine ‘fairness’.

    I am not trying to underplay the rottenness of the whole affair – whether the crime in the first place, or the probable attempts to subvert the course of law after. But justice systems are not meant to be emotional and provide a cathartic flush of happiness to an onlooker filled with righteous anger. As far as possible they have to follow a system – and that would imply this is not murder, it may be involuntary homicide (which carries a sentence you may still find inadequate), and overall certainly does not justify drawing fairness conclusions – whatever that might mean.

  • http://desilibertarian.blogspot.com triya

    Charul,
    The heart of the matter is clearly defined and strictly enforced property rights. The reason people want to ‘capture’ scarce resources is because there is no clear definition of who owns it. Scarcity is everywhere, even in the US, but when property rights are clearly defined and strictly enforced regardless of who owns the property we wouldn’t have such problems with ‘capture’. Saying that the government or we all own something means no one owns it. Without ownership there is no incentive to protect private property. After all the reason renters maintain the house badly (at least in India) is because they do not own it and they are liable for almost nothing. No one owns the streets so people throw garbage in it and no one cares. A lone bureaucrat sitting in posh office whose job is not tied to performance but to boot-licking people in higher office has no incentive to keep the roads in working condition. His incentive is to keep the higher ups happy so his job and promotion are secure. Solve the problem of property rights in India and you will see a lot of order emerge.

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  • http://valluvar.blogspot.com shiv

    ‘Fair’ is a relative term. The issue here is the culpability of the investigating officers and the prosecution. However there is nothing ‘Indian’ about this. The same phomenon repeats itself in all human societies in one way or the other. Recall the child killed by the Marquis’s coach in ‘Tale of two cities’ or how george bush fires tons of prosecutors for not toeing the line or how the US can invade any country and kill as many as they want with impunity. The factors are the same, its only the degree that is different. Frankly nothing will change irrespective of what laws we make up. The rich and powerful will get away. So i suggest we all work toward getting rich and famous. For the record your killer matinee idol was on KBC the last week being eulogised by your crappy public. He should have been lynched for porching black buck in rajasthan 3 years back(as the bishnoi would have done if they were smarter).In my book that is a more serious crime. (more expendable humans than black buck in India). Every populance gets the government it deserves. If life is cheap in India why complain ? Clearly no one is going to do what it takes to make people value human life (apart from their own) so why the fuss ? This is a supply side equation. If de beers gives up their strangle hold on diamonds, the rock will be worthless. If we breed like bacteria human life gets valued at roughly the same.

  • http://scritic.blogspot.com shreeharsh

    I agree with Anant.

    And like you, I’m very disturbed by the fact that rich people in India can seemingly do irresponsible, even criminal things, and get away with them.

    But if justice is fairplay then the punishment must also be fair to the perpetrator. If it must deter others from driving drunk, it must also ensure — in some way, however flawed — that the perpetrator gets a chance to change, by parole or any other way. 20 years per person may be a little emotional but perhaps 20 years, with a possibility of parole, will do. I don’t really know.

    Finally, I’m not sure if Rawls meant his conception of justice as fairness to apply to crime-punishment scenarios; his concern seems to be more about social practices especially as embedded in socio-politcal institutions, especially the distribution of economic opportunities. But I may be wrong.

  • Krishnan

    The other side of the story is that the poor who get on the wrong side of the law DO NOT get off lightly. It is not uncommon for petty thieves to get killed in police custody, even before they get to court. The poor cannot afford a lawyer and do not know their rights.

    I think the Alistair kind of crime deserves the death sentence. When an act of deliberate negligence has a high probability of multiple deaths, it should be punishable by death.

  • Naren

    I agree that this case amounts to murder.

    Do we have a law(in the books) which says that?

    Laws must be objective. You can’t say what you committed on Day X is a crime today, when on Day X the law books said it wasn’t a crime!

    And the number of years you have specified is YOUR view of fairness – that is exactly the problem! I’d rather trust an iron law than someone’s subjective judgment!

    Finally,
    “He is wealthy and the family will be able to pay that off immediately”

    Why should the financial status then criminal have any bearing on the punishment?

  • neti

    In bombay, the poor people form the majority that elects the local government. That same govt creates irrational land-use/construction regulations that stiffles urban housing development which ultimately leads the poor people to sleep on sidewalks. Suits them just fine.

    Bombay govt should create atleast a few token shelters for the poor.

  • http://indiawellwisher.wordpress.com/ prabodh jog

    I agree life has no value in India.
    There are many crimes what Alistair Pereira committed.
    1. Drink driving.
    2. Rash driving.
    3. Killing innocent people (I think one of them was pregnant woman so should be counted 2 more)

    3 years RI is good for drink driving.
    Death Sentence for killing is more appropriate.

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