The original purpose of laws was to prevent humans from infringing on another individual’s rights and liberty while exercising their own. So, any infringement on another person’s life, liberty and property in the broad sense became punishable by law so that men can coexist. The examples are obvious; theft, assault, murder, rape, fraud etc. These laws are absolutely essential for a free society.
The second set of laws, far more controversial, is those criminalizing acts which have no victims. Human acts which offend society in general or tarnish the moral fabric that a community seeks to preserve are also punishable. These laws detail what are also known as victimless crimes as there is no specific infringement on another individual’s life, liberty or property. These laws outlaw prostitution, suicide, drugs etc. In an ideal world, these laws shouldn’t exist and an individual’s rights must be supreme, but then that is in an ideal world.
While there is clear reason and purpose for the first set of laws to preserve order and uphold individual rights, and one could find religious or moral justification for the second set, there is a third set of laws which exist just to satisfy the whim of a nanny state, or in our case a mai-baap state, to protect an individual from himself.
The paternalistic state believes that people are fundamentally stupid and must be protected from behaving rashly, even if such behaviour affects no one else. The most obvious example of this is the helmet law, or the requirement to wear seat belts, which seems innocuous. But what happens when the paternalism is taken to a new level? By outlawing street food because it is presumed to be unhygienic? Or, in an outrageous example, the nanny state excluding the individual from litigation to protect one from one’s lawyers?
So, the real question is: Do we really need the state to protect us from ourselves or our foolishness? Or are we capable of evaluating the little risks we take to make our lives more pleasurable?
The helmet law or the requirement to wear a seat belt is an excellent example. But it doesn’t stop there. The Indian government likes to believes in the English notion of parens patriae , where the Crown is the protector of his subjects as a parent.
For instance, the West Bengal government attempted to outlaw hand-pulled rickshaws, to preserve the dignity of the rickshawpuller and to give the presumption of a less disparate society. The rickshawpullers obviously oppose the law as they are happy pulling rickshaws and value their source of livelihood. But do they know better? Can they be trusted with preserving their own dignity? Was it not the actual father of the nation who said that all work is worship?
It’s not just rickshawpullers. Virtually all labour laws in India attempting to protect labour from the exploitative capitalist actually assume that every individual labourer is incapable of entering into a contract, being aware of the risks and rewards, and making a living. It takes away the right of two adults to enter into a mutually agreeable contract.
Similarly, the government outlawed bar girls from dancing in bars to preserve the dignity of these women. What they did has put many thousands of women out of work and taken away their only source of livelihood. Did the bar girls weigh their loss of dignity against their livelihood? Or perhaps they felt no indignity in dancing to entertain at bars in the first place!
The Supreme Court, as always, has taken paternalism to a new level when it banned cooking on the streets by street vendors because street food, by default, is always unhygienic and citizens are too stupid to choose what to eat. We are all aware of the potential risk of falling sick eating pani puris on the street and yet we value the pleasure of a good, and slightly unhygienic, pani puri over the expected risks. But can we really be trusted with such an important decision?
Most of these instances may seem trivial to those who are not part of informal labour force, or who don’t enjoy that occasional pani puri. But sometimes paternalism in India takes on Orwellian forms.
The Indian government took it to a whole new level during the Bhopal gas tragedy case more than 20 years ago. It passed the Bhopal Gas Tragedy Act, 1985, which allowed only the state to sue Union Carbide.
The victims and citizens of Bhopal were not allowed to sue the company who took away the lives and health of their families and the prosperity of their city because the state felt that “ambulance chasers” would take away most of their compensation in legal fees. While the ambulance chasers might have taken away most of it, the government did an even more efficient job by taking away the entire compensation of most victims.
While each instance seems trivial, especially since it affects particular classes of people, there is a larger question at hand. Do we have the right to take risks that only affect us? Do we have the freedom to live our lives as we choose after weighing the risks, even if we are being foolish according to the government? And if part of freedom is the freedom to be a fool, are we free?
Shruti Rajagopalan is a lawyer and a writer. Comments are welcome at theirview@livemint.com