Explorations in Marxist social theory & a book review

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Image Courtesy: Wikimedia (for all)

 

This one will be a longer post than usual, but delights me especially because I could manage to get a somewhat minimal sense of the range of thoughts and ideas in the Marxist lineage, which has been a long going effort. The post includes a discussion of a clutch of the thinkers in a rather cursory form. This is guided along a fantastic anthology of essays titled Against Orthodoxy: Social Theory and Its Discontents by Stanley Aronowitz, that I happened to read as a part of a course on Development and Law. What made me pick this book is that Aronowitz has been a career trade unionist. With over three decades of work as a union member, I felt his commentaries merits a closer read. 

The development paradigm in the twenty-first century is characterized as predominantly capitalist. The processes that will achieve higher incomes, better living conditions and great prosperity for the people are believed to be those that operate in and through capitalism. Developing and less developed countries, it is seen are orienting their economies in a manner that they stand to gain from these processes of capitalism. For instance, export led growth is one such process which has gained widespread currency and for which there are rather strong success stories to learn from in Asia. If capitalism as a paradigm is believed to have occupied the center stage and is likely to stay, what then can be said of the tremendous destruction of environment, countries (as this is being written the failed states of Syria, Iraq, Afghanistan continue to contribute headlines of humanitarian crisis every week.) as well as of human lives? How is it that despite the historic devastation of populations (World Wars) as well as planet’s natural resources which happened in twentieth century alone, capitalism still survived and in fact appears to be thriving in the twenty-first century, whereas socialism faded into memory, and in some cases, disgrace?

The above are the kind of questions that Aronowitz’s book Against Orthodoxy grapples with, by the way of his writings over a span of thirty five years from 1972 to 2015. The essays in the book are critiques of social theories and ideas of some of the leading writers of dissident Marxist social theory. The central theme that binds this long running rumination is to understand ‘the system that has produced such devastation as world wars and environmental crisis’ and how does it continue to march on. The essays are united in their problem of subjectivity.

The questions posed by the author emerge from the realm of social theory and in the process of their discussion happen to throw light on major global events and patterns. For instance, he begins by asking if capitalism’s hold on underlying populations is due to its promise, and occasionally fulfillment, of a better life signified by rising levels of consumption? And is the technological revolution of our time manifested in electronically driven communications, entertainments, and fantastic productivity increases so mesmerizing that a few can resist its blandishments? This is where critical social theories from thinkers like Marcuse, Lefebvre, Luckacs, Horkheimer, Gramsci and others are examined to understand how might their ideas assist in understanding these questions better or to even frame the question as the way it was, to begin with.

This collection of essays makes an enriching read to readers with particular interest in Marxist theory and critical social theory. Another burning question that appears to simmer throughout the book is – Is the prospect of fundamental social change so fearful that even when individuals and groups recognize the system’s limitations to fulfill good life, let alone its failures, people hold on to their hopes within the prevailing setup rather than seek alternatives? Or is the radical imagination dried up so that the available past solutions are so discredited that people are forced to live entirely in the present?

It may perhaps be noted that the book does not offer solutions but on how the thinkers included here analyze the problems. The book focuses on major social thinkers within the tradition of historical materialism and dialectical materialism. This is the orthodoxy the book talks of. They agree on the problems but differ among themselves about what is their nature and what is to be done. On the methodological front the book fixes itself intently on historical and dialectical materialism.

The following section offers a snapshot of the thinkers and aspects of their ideas that are discussed in the essays. Marcuse was a critical theorist who saw theory and action as a continuum. He speaks of “technological rationality” in capitalism, while believing that theory must specify material conditions for realization of human liberation.

A fascinating thought that shines through in reading Marcuse is the idea that labour movement’s fate is a barometer of political prospects. This is of tremendous relevance to the contemporary reading of labour movements in developing countries especially. Further, technology is constructed in conceptual sense as a form of social domination. Marcuse points out that individuality no longer mean self- development but instead the relentless pursuit of personal interests. He argues that Marx’s view that as soon as conditions are present, the workers knowledge of their own interests is sufficient for revolutionary action is not true because monopoly capital has found the means to level the proletariat and deprive it of the collective knowledge by which to lead itself.

From a brilliant commentary on Marcuse, Aaronotiwz trains his gaze on sociologists Raymond Williams and Likacs as well as on aspects of methodology. Raymonds, as a pioneer in cultural studies believed in labour movement. He believed it to be “the fundamental cultural institution of the working class and that workers remained “the key to any possible emancipatory social transformation.” On a somewhat parallel note the author notes that one needed a method that was sensitive to history and allowed for the interpretations involved in understanding to evolve.  And in the process, returning to the key question on understating the process of development he proposes that “knowledge about the object of study as well as a broad, deep comprehension of the world” is necessary for the development of understanding.

In another essay Aronowitz explains that Lukacs’ was an attempt to craft a theory in which the subject as much as the object played a formative role in forging history. His argument that the commodity form itself – a category of political economy – transformed relations among people into relations between things. This “thingification” of everday life thereby reified and appeared to make eternal capitalist system itself (this is in some ways derived from Marx’s “fetishism of commodities”). For Lukacs concept of alienation becomes a structural feature of the capitalist system of production and especially of social and political reproduction – here he departs from conventional Marxist theory of ideology.

The everyday life along this exploration of critical social theory enters the inquiry in this book with Lefebvre. The idea of “urbanism” is also credited to Lefebvre. His investigations were directed to the key question of why and how global capitalism, despite a century of unrelieved wars, revolutions, economic crises, and political turmoil in the both “advanced” and developing world, managed to survive. He notes that “whatever happens, alterations in daily life will remain the criterion of change” wherein daily life cannot be defined as a “sub-system” within a larger system. This too appears to be a departure from Marx’s conception of society and its processes.  Daily life is the site of and the crucial condition for the “reproduction of the relations of production”. Its colonization by the state and by economic relations provides the answer to the question of the survival of survival of capitalism in the wake of its horrendous 20th century history. The right to difference is for him a fundamental principle, especially for the effectiveness of the Left’s struggle for democracy.

In the series of essays, everyday life as an inquiry gives way to theory of political organization with which Gramsci’s ideas are explored. This makes a brilliant read for those who are looking forward to an introduction to Gramsci and neo-Marxist political thought.  Gramsci examines the concrete processes of social transformation and particularly how revolutionary forces out to proceed from the present conditions of economic, political and ideological hegemony to a moment when the “historic bloc” of excluded classes and other social formations may contest and win power. In India, one could think of the political party AAP and its electoral win in New Delhi at this juncture. In AAP one can see the observation that “every party is the expression of a social group” fitting well.

Perhaps for the reader of critical social theory and with interests in later thinkers like Horkheimer and Friere the last two essays would make for a high point of this brilliant collection by Aaronowitz.

Horkheimer is quoted by the author which at one level magnificently captures the state of the current state of political Left in India and at another level is a masterstroke in social theory in its prophetic nature –

“the revolution won’t happen with guns, rather it will happen incrementally, year by year, generation by generation. We will gradually infiltrate their educational institutions and their political offices, transforming hem into Marxist entities as we move towards universal egalitarianism”

With Friere the author deals with his ideas in power relationships as well as humanism, which are as rewarding a read as the rest of the book.

In summary, Against Orthodoxy is a book that maps the trend from from Revolution to Radical Democracy and grapples with the question of how capitalism still finds such a widespread acceptance. The book takes on the enterprise of revising and re-contextualizing Marxist theory. Along the course of the essays it points to battle fronts in which Left must venture if it has to combat capitalism arguing that the solutions would emerge if this fine interlinked web of social reality and self-consciousness is examined in enriched forms. The book in its writing style is dense and makes a difficult read but merits effort if one ones to get closer to the heart of Marxist social theory and critical social theory. And finally, it is a treat for readers interested in philosophical enquiry.

On the idea of ‘property’

From a few earlier projects that our firm has handled (in FRA, land acquisition and coastal regulation) and a couple of academic exercises, I began exploring the idea of property and how it has come to be its contemporary understanding. This meant that I begin with earliest conceptions or references to the word property and further interpretations over time.

The point of this post is to share a brief table which attempts to periodise the property discourse and flags thinkers of the respective period. And then highlight fundamental ideas of the early period.

Periods (of the idea of Property)
Characteristics
Thinkers
I: The Greek Period
Property as virtue
Property as common owned
Aristotle
Plato
II: The Modern Period
 Property as individual right
Property ownership and rules of ownership as an instrument to resolve conflicts in society
Property as creation of sovereign state
Hobbes
Hume (that there is nothing ‘natural’ about private property)
Locke
III: The Marxist Idea
 Ownership of labour
Ownership of means of production
Karl Marx
Proudhon
IV: The Liberal & Neo-Liberal Period
 Property as enforceable right
Economic rationale for property rights
Rule of Law
Entitlement Theory
Erosion of social basis of property
Rawls (asking if property is a philosophical question at all)
Hart
Nozick
DeSoto
Table: Periods in progression of the idea of property

In line with Aristotelian thought, John Locke follows makes a significant contribution to the idea of property with his labour theory of property. At this juncture, there is a departure from what constitutes property to an inquiry into how is property created. In a sense, ownership becomes a secondary thought, while the primary goal becomes articulation of what might be called property. Is it something already present and that a person just lays his claim over it or is property a process of creation and consequently the creator holds the right to claim it as his?The idea of property has undergone this clash of idea and practice just the same. Some of the widely noted ideas include Plato’s argument that common ownership was necessary to promote common pursuit of the common interest, and to avoid the social divisiveness that would occur ‘when some grieve exceedingly and others rejoice at the same happenings’ (Stanford Encyclopedia of Philosophy, 2004).  Whereas, Aristotle argues for private ownership of property justifying that this condition is a necessity for a man to act in the interest of prudence and responsibility. Further, he links the idea of property and its practice to the virtue of man. This is a radical departure from Plato’s articulation and perhaps it can be said that the Greek society’s practice of property ownership and its use as an instrument looked closer to Aristotle’s idea of it.

The resolution of the idea of property in this manner continues into the contemporary times, where this line of enquiry is instrumental in deciding upon rights and ownership issues of newer forms of knowledge products and creation that have emerged. In areas like intellectual property, such debates are instrumental because they offer a method of thought as well as a historical reference point as to how questions of ownership, rights and use evolved over time.

Locke’s original position of natural law to think about property as a creation which comes about when labour is applied to natural resources remains pivotal in understanding property as well as labour. An instance of the chasm between idea and practice that the paper argues for can be seen in case of the Lockean proviso (Waldron, 1979)[2].

This is where we see that the conditionality that one may appropriate a property of a person provided that “… there is enough, and as good, left in common for others” remains sidelined and not applied.  While on one hand there are attempts to understand and conceptualize what property might mean, there emerged thoughts on the applicability of such ideas of property. For instance, Hume argues that property relations only make sense under conditions of scarcity (Stanford Encyclopedia of Philosophy, 2004).

It is useful to contrast Locke’s theorization of property with that of Hobbes and Hume who begin by looking at property from the sovereign state’s perspective. Hobbes and Hume, counter to Locke’s idea of property, argue that there is no natural ‘mine’ or ‘thine’, and that property must be understood as the creation of the sovereign state or at the very least the artificial product of a convention ‘entered into by all the members of the society to bestow stability on the possession of… external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry’ (Stanford Encyclopedia of Philosophy, 2004).

While I pursue the shifts in the later periods, it is quite intriguing that research in this area is not pursued by developing countries and particularly in India where property rights are contested and law suits filed in every single city, town and village in the country.

 

[1] Roberto Unger speaks of Hegel’s idea and influence on his work in social theory in a documentary titled The Origins of Roberto Mangabeira Unger’s Philosophical Thought, 2013.

[2] Waldron asks a sharp question on this proviso which is instructive for the reading on property and Locke’s idea. He writes, in the same paper – “what if there is not enough and as good left in common for others? Does that mean nobody may appropriate anything from the state of nature and call it his private property? In other words, is the italicized clause (of necessary condition) intended as a necessary condition on private appropriation, restricting the appropriation of goods to circumstances in which there is plenty left for everybody else?”.

Sexual Harassment & Appropriate Sexual Behaviour: An alternative view (Part 2/2)

Continuing from Sexual Harassment: An alternative view, the following post traces the trajectory of the movement against sexual harassment in India.

The first major event that drew attention to this issue was FOWA’s action in the 1980s. A 1991 report from the same organization describes it as –

(…) militant action by the Forum Against Oppression of Women (Mumbai) against the sexual harassment of nurses in public and private hospitals by patients and their male relatives, ward-boys and other hospital staff; of air-hostesses by their colleagues and passengers; of teachers by their colleagues, principals and management representatives; of PhD students by their guides and so on and so forth received a lukewarm response from the trade unions and adverse publicity in the media (FAOW, 1991).[1]

A slew of cases involving prominent people in India before 1997 brought attention to harassment of women at work place. Noteworthy among these are the case against a high ranking officer of the elite Indian Police Service, another against the Environmental Minister in Dehra Dun and against a state Minister in Kerala, by their women colleagues. These in effect, brought to public attention the incidents of harassment of women at work places in India.

In terms of law, the process was to lodge a complaint under Section 354 of the Indian Penal Code that deals with the ‘criminal assault of women to outrage women’s modesty’, and Section 509 that punishes an individual/individuals for using a ‘word, gesture or act intended to insult the modesty of a woman’. These sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer.[2]

The single most important shift in conception and legal stand on sexual harassment however, happens as a consequence of the case Vishakha vs State of Rajasthan [1997(7) SCC.323] in the Supreme Court of India (SCI). The SCI effect the now widely held and known definition of sexual harassment in India. It stated that sexual harassment includes such unwelcome sexually determined behaviour as:

  • Physical contact
  • A demand or request for sexual favours
  • Sexually coloured remarks
  • Showing pornography
  • Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, for example, leering, telling dirty jokes, making sexual remarks about a person’s body, etc

Further, Vishakha Guidelines regarded it as a duty of the employer to prevent sexual harassment and to provide mechanism for resolution of complaints.

Reconfiguration of perception of appropriate sexual behaviour

What began as a genuine and reasonable concern about safety, culminating in introduction of strict laws against crime against women in India, the action in seeking safe working environment and by extension equal rights for women (often framed as oppressed sex) has lost its way. It only seems appropriate to label the current behaviour in men and women regarding appropriate sexual behaviour between them as an acute case of paranoia.  An almost militant imposition of rules of personal and sexual behaviour combined with a predilection to minutely read into every act of men in terms of an act of harassment or as an act of oppression, which is noticeable in several codes of behaviour for employees in organizations and businesses is evident in India. While it is acknowledged that women’s movements has certainly created a safe working environment for women, but it has in the process has left a free form, mutually determined relationship between individuals (same sex or opposite) into shambles.

Then, the credit that women’s rights group takes in having seeded and brought to fruition is not entirely true. Long before the term “sexual harassment” was coined men like Hillary Putnam, John Rawls and Bernard Williams were encouraging women to protest when men of the faculty (in academic institutions) harassed them.[3] In work places now, people feel significant pressure in minding their conversations and behaviour with the opposite sex, with the consequences that social interaction often is laced with anxiety and pressure to sound and appear correct. Such an environment at work place can be labeled adverse at best.

In the understandably passionate and defensive call for action by several women’s rights groups, one also notices that relationships have turned into a turf war with deviations from the determined ideal, hauled up the legal alley with dire consequences. In fact, there are concerns emerging from women’s groups themselves that the feminists have ventured out too far that now any reasonable and enjoyable conversations have become increasingly difficult to handle. Marx spoke of the “alienation” of self as a consequence in an industrial society. Extending that, one can imagine a similar alienation that is likely to befall men, women and other sex, if such an extreme form of perception and ideological bias of men being the oppressor, women the oppressed and that women are objectified, as a default position, is pursued.

Looking ahead, it would be necessary that the state of women and gender based violence as problems are not framed in women versus men binary; nor should it be seen as a male hegemony in the society. The debate and the quest to understand inequality among the sexes as well as gender based violence need to get much more nuanced than this. Factoring the role of media, projection of sexes in media as well “perfomed” roles[4] of various genders would make an appropriate starting point.

[1] Patel, Vibhuti. A brief history of the battle against sexual harassment at the workplace. Source: http://infochangeindia.org/women/analysis/a-brief-history-of-the-battle-against-sexual-harassment-at-the-workplace.html. Date Accessed – 3 July 2015.

[2] ibid

[3] Martha Nussbaum  in a conversation in UC Berkeley. Transcript: http://globetrotter.berkeley.edu/people6/Nussbaum/nussbaum-con1.html

[4] “Performativity” as an  idea in gender was proposed by Judith Butler

Sexual Harassment & Appropriate Sexual Behaviour: An alternative view (Part 1/2)

sex_harrassment_comic_1

This post is inspired from a paranoia-laced militant behaviour that I witnessed last week, of a Professor (in a law school) as she spoke about the law school’s sexual harassment code, repeatedly emphasizing how robust the school’s code is. And that it goes “beyond” the Supreme Court of India’s Vishaka Guidelines on safety of women at work place in India. It was tiring and mildly discomforting as I imagined implications of such a paranoid behaviour regarding sexual harassment (and by implication “appropriate sexual behaviour” in the society). It read polemical at some places, but helped me in gathering my thoughts on this issue. 

The intellectual and practical space that the three terms – sex, gender and sexual harassment occupy in the contemporary society is marked with confusion and a collective paranoia about safety of women, in particular. The point about paranoia is made with caution here. It is an impressionistic remark based on the reading of newspapers and other media in the span of last two years. Any discussion on sexual harassment inevitably reduces down to the actions, behaviour and treatment meted out to women, by men. Sexual harassment is steeped into the notion of “men are treating women” in unwelcome, undignified and oppressive ways. The implication of such a default and often combative position is very likely to be against the interest of creating a safe working environment for everyone (men, women and LGBT individuals). Such a bias – that men are the perpetrators and that the burden of change of perception and behaviour lies upon the men, to effect a safe and equal environment for all to live and work in. This article questions this notion.

It is in order, then, that one begins with identifying the trajectories of connotation and meaning that these terms – sex, gender and sexual harassment have taken to arrive their use and meaning in the contemporary society.  Then, legal articulation of sexual harassment is discussed from the perspective of Indian society. And finally, we examine if the current landscape of legal, social and cultural movements in creating a safe working environment must be accepted in its current form or are there spaces that need reorganization and perhaps a rethink.

Trajectories of use and meaning

Sex – the noun form “sex” is first used in late 14th century to mean “males or females collectively” from the latin word “sexus”[1]. Its meaning “quality of being male or female” is first recorded in 1520s, though the source remains uncertain. In the later centuries (19th and 20th) “sex” is used as a signifier of biological and apparent differences between the two occurring forms of human beings – male and female. The physical and morphological features that differentiate between the two types of human form were the basis for the two categories of male and female. By the late 20th century we see many works in human behaviour, anthropology and sociology emerging which speak of the behavioural aspects of a males and females.

Gender – With its proximal meaning with Latin “sexus”, “gender” in noun form derives from Old French in the 14th century to mean “kind, sort or class”[2]. With sex acquiring an erotic connotation, gender came in effective use to signify “sex of a human being”. This is where the interchangeable use of gender and sex begins (as seen in English language), though in feminist writings later on, sex and gender are used with clear distinction – of meaning biological attributes and social attributes respectively. By the 21st century, mainstream sociology, psychology and anthropology makes the meaning of sex and gender (as biological attributes and social, acquired, performed attributes, respectively) commonplace.

Sexual harassment – This term is of the most recent origin among the three. And perhaps the most variedly construed as well as interpreted. It must be acknowledged that sexual harassment is often of subjective nature wherein the individual who has been subjected to such treatment decides the nature of it.  This presents obvious challenges for the law to determine or establish harassment and violation of an individual’s self.

The emergence of “sexual harassment” as a term lies in work of women activists in the US in 1970s when they began speaking of the harassment and unfair treatment, of sexual nature, at their workplaces. It is instructive to read this passage about the origin of the term –

“Eight of us were sitting in an office … brainstorming about what we were going to write on posters for our speak-out. We were referring to it as ‘sexual intimidation,’ ‘sexual coercion,’ ‘sexual exploitation on the job.’ None of those names seemed quite right. We wanted something that embraced a whole range of subtle and un-subtle persistent behaviors. Somebody came up with ‘harassment.’ ‘Sexual harassment!’ Instantly we agreed. That’s what it was.[3]

Prominent activists and academicians along with women’s rights organizations brought sexual harassment to public attention in the successive years and rallied for changes in work place environment as well as demanded a process of redressal.

In later works, particularly of Catherine MacKinnon, sexual harassment is interpreted as a form of sex discrimination under the Civil Rights Act, 1964. MacKinnon’s paper “Sexual Harassment of Working Women” becomes a seminal work in understanding of sexual harassment and its interpretation as a form of sex discrimination. MacKinnon notes that that men’s victimization of women “is sufficiently pervasive in American society as to be nearly invisible.[4]

Further, by the time of trial of the case Alexander vs. Yale, MacKinnon’s arguments on sexual harassment and the existing law on civil rights had taken shape of a legal theory. This has been a turning point in the US law as well as the Indian law relating to protection of women against sexual harassment at work place.

It is remarkable that MacKinnon’s work embraces “a philosophy of lawyering that proceeds from individual narratives to legal principle. To advance her conception of equality, she has made women’s experience speak to legal theory.” [5] This approach, as is seen in later years until present, has been at the heart of effecting a regime of strict and perhaps stricter laws against sexual harassment and protection of women at work place.

[1] Online Etymology Disctionary

[2] ibid

[3] Brownmiller, Susan. In Our Time: Memoir of a Revolution.

[4] Uggen, Christopher and Blackstone, Amy. Sexual Harassment as a Gendered Expression of Power. American Sociological Review, Vol 69. N0. 1 (Feb, 2004), pp. 64-92

[5] Dinner, Deborah. A Firebrand Flickers. Legal Affairs Magazine. March-April, 2006

State & Pace: Criminal Justice in India

Turns out that not just crash courses happen in four weeks, but policies too are made in India in four weeks. Some of them with policy goal as big as fast tracking of justice system in the country.  The Supreme Court’s or Chief Justice of India’s words wouldn’t have probably made a visible impact in a pre-NDA government regime. But these are major affairs now, for these hold the same promise of “good governance” and “efficiency” that BJP government has been promising the country.

High speed winds blow through the justice system this year. Besides the debate on the need and constitution of Judicial Appointment Commission, two other events last week are worth noting. First, Supreme Court’s instruction to the Center to formulate a policy within four weeks to speed up trial in criminal cases, adding that it is not a good sign of democracy and good governance. Second, the Chief Justice of India’s Independence Day address and his comment –

A curious and tragic paradox is that our prisons house more undertrial prisoners than convicts. In almost all central prisons, more than 50 per cent are undertrial prisoners; in district prisons more than 72 per cent are undertrial prisoners. The process itself has become a punishment. As head of judiciary, I cannot feel more pain than that.

– R.M. Lodha,  Chief Justice of India, Independence Day Address

In earlier posts – Indian prisons at a glance & prison reforms in India: a quick history, the issues affecting the system were mentioned. With the recent speech of Chief Justice and the Supreme Court instruction to the center we see current state of these issues and their gravity. The Chief Justice further added –

I was shocked to learn that two lakh criminal trials are pending all over the country which are more than five years old and 40,000 trials are pending which are over 10 years old. In the Supreme Court by the end of the year, over 65,000 cases are pending. These are peanuts compared to what we are seeing all over the country.

In an earlier project, we looked at the numbers for prisoners and crime rate from the NCRB database for the period 2001 – 2010. This post is to plug in some graphs which support the comments by the Chief Justice and also give a sense of the magnitude of the problem.  The other intent of the project was to understand and articulate the kind of criminal justice system that India exhibits, with a theoretical reference to Packer’s models of criminal justice. . Herbert Packer proposes that a criminal process is a function of a value system. This value system characterizes the kind of criminal process that a society has – it can be to control crime (repression of criminal conduct) or it could be oriented towards following a due process which is geared towards fact finding.[1] These two models – crime control and due process, are examined in case of India using empirical evidence. Each of these models has a set of characteristics. I examine if the prison and crime statistics support the characteristics of either of the model.

 

Graph 1: Prison capacity and prison strength in India during 2001-2010

Graph 1: Prison capacity and prison strength in India during 2001-2010

Slide2

Graph 2: This graph shows how prison occupancy has changed over the decade (2001-2010) vs. the percentage change in prisoner strength in the same period.

When seen together graph 1 & 2 show a broader picture of how prisoner strength and occupancy has moved over a ten year period. This appears to be a shorter time frame to analyze. However, this is the best dataset available from a government agency (NCRB) for those interested in prisons and criminal justice to look at. It is interesting to note that from 2005 prison strength has shown negative change, which appears to be in line with Chief Justice’s observation on very low conviction rate. The dipping blue trend line in graph 2 could either be that more prisoners were released during the period 2005-2010 versus those who were sent to jail. Or also in a derived way, that conviction rate has shown a drop in the same period. More datapoints would be needed to say the latter.

Graph 3 below shows the percentage of convicted prisoners and undertrials as a part of the total prison population. The second quote above gets an empirical ground with this one.

 

Slide3

Graph 3: Percentage of undertrials and convicted prisoners in India during the period 2001-2010.

Next, we move to crime data and look at the cases listed for investigation vs. cases investigated. NCRB records this data for all the states. The graphs here are national figures. Graph 4 shows the cases listed for investigation vs cases investigated. This is a rough measure of police capacity and efficiency. The cases taken up for investigation from the listed is perhaps the only impressive figure in the analysis. It reaches upto 80%.

Slide5

Graph 4: Cases listed for investigation vs. cases investigated. All India figures from 2001-2010

Then we move on to see that with such a high percentage of undertrials in the prisons across the country, how many of them have access to legal aid. This in our understanding appeared to be one of the major reasons for so many people languishing in prisons without a conviction. Also, this points to the idea of an “accessible justice system” and is a broader measure of that access. 2010 is the year when over 20% of undertrials get access to legal aid. It doubled from 10% to over 20% within a decade. This also builds a ground for more lawyering for the poor and the vulnerable in the country.

Slide6

Graph 5: Undertrial prisoners with access to legal aid between the period 2001-2010.

In countries with an even higher prisoner population and high rates of incarceration there is a very serious debate going on about the cost of keeping a person in prison. This has also been effecting the sentencing given by judges, where they have often been found to be carefully thinking about the cost of keeping a person in prison if sentenced for imprisonment vs. giving him a sentence which gives a non-prison punishment. We were curious to see how much does it cost in India to keep a person in prison. Graph 5 shows the cost per prisoner per year incurred by the government of India. Approximately Rs. 19,500 was spent per year on each prisoner. Looking at the poverty line consideration of Rs 32/day (which was criticized widely to be too low an estimate; makes Rs 11,680 per year) a prisoner does way too well. And if we consider a dollar a day income i.e USD 1/day (makes Rs 21,900 per year) then too the prisoners aren’t doing too bad.

Slide7

Graph 5: Cost incurred per prisoner per year between 2001-2010

Let us now look at the conviction rate for IPC crimes for the same period. Graph 6 shows the same. Since the number of undertrials are high and conviction rate very low at about 36% in 2010 it appears that the to be characteristic of a due process model. Due process model relies heavily upon investigations and prosecution. Empirical evidence on investigations indicate that as soon as cases are registered they are followed up. There is little lag in the cases registered and cases investigated in a year. It is difficult to enforce either of the model for India though the system shows a lot of characteristics similar to the due process model.

Slide8

Graph 6: Conviction rate for IPC crimes between year 2001-2010.

 

Finally, where does this analysis leave us? If prison system is to be reformed, then it should be examined from the view of procedural and rule based bottlenecks in the system The analysis here demonstrates that overcrowding of prisons is made into a key problem and point of action when reforms are attempted. Whereas, in fact, data suggests that prison occupancy is only 123% which does not appear to be a serious problem of space. If the movement of prisoners into and out of the jails is smoothened out then we can hope to reduce the burden on the prison system. Also, the reason for computing the expenditure on a prisoner in a year is to offer an estimate of what it costs versus other options of sentencing a convict. With this figure, sentencing must be seen in relation with the other likely alternatives that are cheaper and also make effective correction strategy.

 

[1]Two Models of the Criminal Process, 113 U. Penn. L. Rev. 1 (1964). Herbert L. Packer

 

 

Prison reforms in India: A quick history

In our work, we figured that a concise history of prison reforms is hard to find. So, in this post I have pieced together the events that led to improving prison conditions and what came of those efforts. Plus, a schematic on criminal justice system. This should be useful for those who’d like to know the processes involved in commitment of a crime, reporting to the police, investigation, trial and finally conviction. This might also help in just understanding the news better, because in India a typical headline with “chargsheet filed…” is all too common.

Tracing the trajectory of reforms in any sector in India is essentially an exercise in tracking the various committees that Government of India might have setup at different times, particularly since independence in 1947. The state of affairs in the respective sector then is a cumulative effect of these committees over the decades. Prison management too has a similar course. For the present enquiry on prison reform I begin with a study by Dr. W. C. Reckless, an expert on correctional work in 1951, commissioned by Government of India. The study report titled “Jail Administration in India” recommended a revision of outdated jail manuals. This recommendation was supported by the Eighth Conference of the Inspector Generals of Prisons in 1952. A consequence of this was the All India Jail Manual Committee set up in 1957 to prepare a model prison manual. The report suggested wide ranging reforms – latest methods in jail administration, probation, after-care, juvenile and remand homes etc. The report also suggested amendments in the Prison Act 1894 to provide a legal base for correctional work. The committee drafted a Model Prison Manual in 1960. The current prison management is guided by this model prison manual.
The next major development in prison reforms comes after two decades from the development of prison manual. In 1980 a Committee on Jail Reform (Mulla Committee) was set up by Government of India which was to review laws, rules and regulations governing prisons and correctional facilities in India. Situation of women prisoners however had to wait till 1987 when Justice Krishna Iyer Committee was appointed to study the state of women prisoners. It suggested appointment of more women in police force to in view of their special role in tackling women and child offenders.
The concern about congestion of under-trial prisoners in jails features for the first time in Law Commission of India report number 78 published in 1979. But, it seeks solace in the fact that the “problem (is) not confined to India”. The report recommendations for amendment of bail procedure such that it provides for those undertrial prisoners who have difficulty in finding surety for their bail when granted by the court. It also recommended widening the list of bailable offenses. It further suggested that the undertrial prisoners must not be housed in the same prison as convicts. This “contamination” according to the commission leads to deleterious effect on undertrial prisoners.

The most recent exercise in addressing prison reform is the Committee on Reforms of the Criminal Justice System in 2000 to consider measures for revamping the Criminal Justice System. This was a wider exercise which in its effect might lead to better prison system overall. It aimed at “simplifying judicial procedures and practices, bringing about synergy among the judiciary, the Prosecution and Police, making the system simpler, faster, cheaper and people-friendly, and restoring the confidence of the common man”. What is interesting is that this committee rightly identifies a procedural flaw in the trial process in the Criminal Justice System, which builds the need for reform. It states –

The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is therefore necessary to strengthen the Adversarial System by adopting with suitable modifications some of the good and useful features of the Inquisitorial System.

The committee’s recommendation on measures easing convictions, lowering the threshold of evidence and making confessions made to the police admissible as evidence is of relevance to prison reform. These measures are likely to impact prison overcrowding as well.

An overview of criminal process in India

An overview of criminal process in India

Criminal justice system in India is outlined in the schematic above.  This schematic is necessary to understand the locations in the system where delays, irregularities, deviation from the procedures and other divergences occur. For instance, the accumulating number of undertrials in the prisons is because at the stage of investigation the police of the state generally adopts an “active” approach. This means that the suspect is taken into police custody and then interrogation is carried out. This practice starts building up prison population which further compounds after the chargesheet is filed and a trial process initiated against the accused. At this stage a further clogging happens in the system because many of the accused either do not have wherewithal to arrange for their bail or simply do not have access to legal aid to file for a bail.

Until the filing of chargesheet (See schematic) the process is conducted by police department. They receive complaints and initiate investigations. If the police department is understaffed then it is likely that the investigations will suffer from a higher pendency.

Theorizing Rape and Potential Rapists

Sculptor Giambologna's "Rape of Sabine Women". Just as he delighted in solving the complex spatial problems of three intertwined figures in this famous sculpting, detached from the nature and act, the theoretical exercise too appears the same. (Image: Wikipedia)

Sculptor Giambologna’s “Rape of Sabine Women”. Just as he delighted in solving the complex spatial problems of three intertwined figures in this famous sculpting, detached from the nature and act, the theoretical exercise too appears the same. (Image: Wikipedia)

I have often felt that the urge to theorize does more disservice to the disciplines apart from the waste of time and resources that happens anyway. The discontent is about the sort of scholarship prevails that has no link to practice. Then that begets the question if one should even care for such scholarship. It is not meant to be a tirade against theory.

At the university, someone proposed a seminar on rape and specifically on the thought – if all men are potential rapists. Fantastic timing to have a faculty seminar on such a topic in India, where the frequency of rapes being reported in the newspapers as well as the number of high profile cases coming to light is at an all time high. The intention and personal motivations of the researcher are not suspected. Considering that they are well meaning beyond doubt, the method and arguments are reflected upon. To attempt a framework about how to understand a phenomenon in the society – particularly of extreme forms of sexual violence towards women is understandable.It is not just this particular case of presenting theory on rape that I am referring to. It is about a variety of opportunistic research that is pursued in the academia which sort of gets into a discipline because the ‘time is right’. No problem with this as long as the reasons reflect integrity and coherence. For instance, the historical background of rape and how women have been raped in every recorded century is irrelevant to a question of contemporary sexual violence against women in India. Theorizing rape in the following way is at best an opportunistic move and lacks practical sense or relevance. Here are the assumptions which drove the thought on rape in the seminar and why they are contentious –

  1.  Taking an ‘immanent’ position in theory – While the intellectual honesty in proposing a position where the researcher himself is located within the world which he is examining is appreciated, this doesn’t explain why this position should be the most ethical of other positions in theoretical exercises. The danger that is often talked about is that researcher cannot occupy a moral high ground when he speaks of subjects like desire and violence. The propensity to commit to these acts in him is as much present as in the ‘others’ that he is directing his enquiry on. And therefore, instead of being located somewhere outside the system and examining the ‘others’ he must be located within this system. This is the immanent position. However, does this automatically incorporate high and desirable ethical standards in the theory? The presenter seemed to think so. The point I am making is that it is not enough to indicate a position in a theory. The work must also reflect this at every assertion that it makes. Being located in the same system as the observed (in the binary of observer and observed) and yet not being able to grasp that rapes are not only an ‘opportunistic’ behaviour among men but are also driven by motivations – like ‘teaching the woman a lesson’ by outraging her modesty. Such a phrase is not unheard of in India. How does it escape a consideration here is not quite clear.
  2. That ‘desire’ is the only driver of rape: This is a psycho-analytical hangover that keeps manifesting itself in studies which are better of without such a lens. This can get tiring besides being frustrating – the idea that there is violence in all of us, subdued within and that this finds expression when one gets an ‘opportunity’. If ever there was a depressing take on the human condition it is this. It is baffling that one can label all men as desirous of raping women, restraining themselves because they have not got the opportunity to do so.
  3. Use of history in this analysis – This is by far the most contentious aspect of theorizing rape in the current times, for me. How does one use historical evidences and to what effect is worth reflecting on. If one cites the rape of Sabine women in ancient Rome as an evidence to prevalence of the tendency of rape in men then it is either a serious error of judgement on the researcher’s part or that historical information is being distorted to the effect of making one’s point forcibly. How is the rape of Sabine women committed by roman men in 750 BC suggestive of anything related to propensity to rape by men today? Besides this, the implied meaning of “rape” in the form that it was recorded in history may not have been of ‘sexual violation’ but that it meant ‘abduction’ (i.e. Latin form of ‘rape’ and not the modern English usage).  Not stating this doubt about the intended meaning and ambiguity in the use of word ‘rape’ is a serious issue. On this basis alone, one can call off the entire exercise to be of dubious nature. 

At our company, while conducting field research for clients we have often observed the big disconnect between theories in a discipline such as social sciences and the real action on ground. Out of maybe 10 theories in sociology only about 2 or 3 theories are likely to have any bearing on the patterns observed in real world. But this is just our experience. Many of these theories as our friend proposed right in the beginning remain at an ‘immanent’ level – i.e. a mental act performed entirely within the mind.

Return to Freud (via Lacan)

freud_post

The “unconscious” isn’t a bathtub bubble emerging from a good theoretical lather in which the intellectual has been wallowing. I have been wrong about it. And being contemptuous of psychoanalysis as a discipline was too uninformed (didn’t people say psychoanalysis is dead?). In fact, a realization waylaid me this morning that the idea of unconscious is not mere an abstraction but  something that can make itself felt if one is attentive enough to see whats happening. At the university, I brushed aside all the papers on psychoanalysis thinking that it ain’t something I need to bother about. My location today is at the other side of this opinion. I read a little bit of Freud (Civilization and Its Discontents & Interpretation of Dreams) and even less of Lacan. For I thought that the stuff these guys talk about is hardly real. That was naivete. Finishing Interpretation of Dreams, Freud wrote –

“Insight such as this falls to one’s lot but once in a lifetime”.

And such is this moment as this post is being written. Freud’s distinction of conscious/unconscious is presented as a theory for the constitution of the mind. For him the mind is divided into two – the conscious and the unconscious. The unconscious is a mental process to which an individual bears no awareness. This is comprised of – ID, Ego and Superego. The processes in the unconscious amount to the major psychic events that occur in an individual’s life. The conscious is what an individual lives by and is guided by in his social world.

However, when one reads Freud through Lacan it begins to make better sense as Lacan takes a step forwards and says unconscious isn’t just theory but theory and practice both which confronts the individual. Zizek puts it as –

 “It does not show an individual the way to accommodate him- or herself to the demands of social reality; it explains how something like “reality” constitutes itself in the first place.”

When Lacan suggests a ‘return to Freud’ he means a return to understanding consciousness as not a subdued, adjusted self with neutered unconscious or a return to ‘the core of the Freudian revolution’ as Zizek interprets it. The most appealing aspect of Lacan’s interpretation of the unconscious is that he finds unconsciousness as structured as a language. He argues that it is not an irrational drive but that it has its own grammar and logic – that the unconscious ‘talks and thinks’. It is a site where the actual reality, the true and bare core of reality locates itself. This reality is not what an individual has to adjust with or identify with. But that this is what he has to learn to live with.

The intention of this post is to get at this. The unconscious is not a wild terrain which plays in unpredictable manner within an individual. It is the basal layer of all truths that constitute and affect the individual’s life. And with this unconscious, one doesn’t ‘adjust’ neither one makes room for it. Sooner or later he has to return to it and live with it, by it. Also, it appears that all along in one’s life things gradually move towards the manifestation of the unconscious. But that this is happening takes effort to know and realize.

Trigger for this thought was a recent french film that I watched – Amour. About an ageing couple who live by themselves and the painfully hard decision that the old man has to take when he finds that he can no longer care for her bedridden and completely incapacitated wife. A must watch. For some serious hard-hitting real life drama! 

Foucault Redux

Citations (in red box) of Foucault's work on Google Scholar

Citations (in red box) of Foucault’s work on Google Scholar

On Technologies of the Self

Foucault is back! Here at the university, where people just don’t get tired of including a paper or two in every course, from the wide range of topics he has written or lectured on. And it turns out that he is also back in academia going by citation figures of Foucault’s works on Google Scholar. Figures from the past five years suggest a surge in the references made to his papers worldwide. This seems to be an interesting development for it is hard to imagine Foucault as a philosopher, historian or a thinker aligned to any conventional field of thought or academic discipline. Yet, his thoughts on history, sexuality, power, history of ideas, modernity and social criticism are considered as essential reading in sociology, political science, philosophy and history.

His work Technologies of the Self has been an interesting read for several reasons. The prevalent structures of social relationships, identity, behaviour, thought systems and the institutions that govern such forms in the society are a consequence of how individuals construct an idea of themselves with others in the society as well as with their own selves.  The mechanism by which an individual achieves this is referred to as technologies of production of the self by Foucault. These technologies are categorized as –

Technologies of Production – includes social arrangements like family, marriage, tribe and communes. These relationships are produced to create a sense of collective existence and social order under which individuals sustain themselves and prosper.

Technologies of Sign Systems – the relationships created in a society need communicative and signaling mechanisms embedded in the practice of such relationships. These are sign systems which either establish an order or therefore guide a form of behaviour – like husband and wife in a matrimonial relationship. This determines how others should behave with a woman who is a wife of someone else.  Or the sign systems could simple serve the need for expression and communication like language, tattoos and ornamentation.

Technologies of Power – individuals in a society behave and also place themselves in a certain relation to each other. This relation is determined by how much influence one has over the other. The technologies of power include patriarchy in a family structure, chief or headman of a tribe and similar production of roles which imply exercise of a certain coercive influence of an individual over others. Social contract is another production of the self with which individuals realize a sense of security and cohesiveness within a group, society or a nation.

Technologies of Self – the range of impressions, awareness, consciousness and construction of one’s own being leads to a production of an individual’s identity. These mechanisms are technologies of self. For instance, sexuality and an individual’s own idea of it – his sense of the body, its desires, its constitution, aesthetics and form, together determine his image of himself. What he ‘produces’ of himself marks his identity and drives an idea of a personality. This then bears upon his behaviour and his relationship with others.

Technologies of the self is a fairly useful articulation of what ‘being’ can mean and how this comes into effect. Further, this could help understand what well-being could possibly mean. Well-being and the self are complementary and in some sense inextricable from each other. My interest in post-colonial identity formation benefits from Foucault’s conception of the self. Thinking through this lens it could be argued that the post-colonial subject is a consequence of power relationships that existed between t individual and the colonial master. In a post on Tranquebar, I was alluding to this phenomenon when I read a conquest in the practice of modern day religion in this former Dutch colony. Such productions have led to conflicting image of self as a subdued, submissive being, at times. On why some former colonies which are independent nations today behave and operate in the way that they do could be examined through this idea. The sense of identity that a person possesses remains an enormously interesting subject, precisely because there doesn’t seem to be a definite way of seeing onself but is always spontaneously forming itself and each emerging sense of identity is as forceful as the other.

Alernative Dispute Resolution & Legal System Reform in India

This is the summer of dreaming dangerously (yes, Zizek too is in the summer reading list). I have been trying to pack in three different projects in this summer plus a travel in the subcontinent. Here goes a brief on the first internship at the Bangalore Mediation Center in Bangalore on mediation as a method of alternative dispute resolution in India’s legal system reform. 

 

This summer I work with a team on a project to study mediation as an alternative dispute resolution method. ADR is looked upon in the legal fraternity as a way ahead in achieving legal system reform in India. There is a tremendous backlog of pending cases in the Indian courts across states and in the Supreme Court of India. Estimates suggest that if the number of cases pending in the courts are continued to be tried in the same way as now then it would take up to 340 years to solve all of them. That by any means is a tough situation in a society. Therefore, alternatives are being considered. One stream of thought suggests that what is to be done is clearly known – that the legal system faces capacity and resources issues and therefore open up more courts and modernize the courts to be able to handle such a heavy case load. The other approach however suggests that we must look at alternatives to the process of dispute resolution itself. Why is it necessary that every case must be adjudicated i.e tried in a court of law where a judgment is handed over to the parties and they live with it? An alternative approach can be to – mediation, conciliation, arbitration and counseling. These means are different from a trial in the way that it doesn’t involve a judgment of what is right or wrong (primarily) and instead focuses on what are the disputing parties’ interests and how to achieve a state where both the parties’ interests are met by negotiation. The neutralizing communication skills and powerful bargaining strategies of facilitated negotiation can strengthen the system’s capacity to bring justice to the society, as Chodosh suggests.

ADR is not new to India. It existed as a part of the Arbitration Act of 1940. Arbitration and Conciliation Act, 1996 and the National Legal Service Authority Act, 1987 (under which the Lok Adalats were constituted) are provisions which offer alternatives to a regular trial in court. Also, Section 89 of the Code of Civil Procedure provides for Mediation as an Alternative Dispute Resolution mechanism in India. However, with the increasing pendency of cases there is an increasing thrust on ADR as the legal processes in India proceed at a very slow pace. In 2007, High Court of Karnataka set up Bangalore Mediation Center (BMC) to mediate cases that would be referred to it from various courts in the state. The center is overseen by a director, a coordinator and a team of 82 trained mediators who are all practicing lawyers. BMC is widely perceived as a successful initiative because of the high number of cases it has mediated as well as for its high settlement rate. It mediated over 18,000 cases in a five year period since 2007 with a success rate of about 64%.

We examine the case data from BMC for general patterns that could suggest trends in using mediation as an ADR method. The exercise also serves as an exercise in testing how valid is BMC’s claim about its success in mediation of cases. We look for the type of cases mediated, success rates, time taken for the cases to be solved and what kind of cases are more likely to get resolved through mediation. For instance, family disputes have a higher tendency of resolution by mediation than cases of criminal nature.

What interests me in this study is that I come to this field from a non-legal background. I do not have training in law except a semester long course in law and governance, which served as an orientation into reading the law, understanding it and gaining a proficiency which can help in working in development sector. The dataset from BMC therefore looks interesting, for the associations and relationships that I figure between the variables are not seen the same way by the others with a law degree.

Over the next few weeks I sit as an observer in the mediation sessions and closely watch the process where a mediator is hearing a case between two parties at the BMC. The mediation sessions are observed to identify interests of both the parties. What kind of motivations do they hold and how does the mediator figure these out. The concerns, goals, priorities and means through which a resolution is achieved are of critical importance in understanding mediation as a process. And then how does all of these differ across various types of cases like matrimonial cases, family disputes etc. Observe interests, as the coordinator of BMC suggests. The enthusiasm towards mediation is high at BMC. One lawyer even suggests that “this is a silent revolution going on in the Indian courts”.

A good social (ethnographic?) account of the process and a identifying patterns (related to method, type etc) in mediation of cases would be a more likely product of this study.